# STATE OF ORISSA AND ORS v. GOPAL CHANDRA RATH AND ORS

- **Citation:** [1995] Supp. 3 S.C.R. 816
- **Court:** Supreme Court of India
- **Decided:** 1995-09-20
- **Case number:** Civil Appeal No. 1306 of 1995
- **Bench:** S.C. Agarwal, G.B. Patnaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-orissa-and-ors-v-gopal-chandra-rath-and-ors-13292
- **Pages:** 10

## Headnote

Inte1pretation of Statutes-Validation Act-Powers of legislature to
validate an Act retrospectively by removing infinnity indicated in any judgment-They cannot merely set aside, annul or ovenide a judgmellt of the
C
Cowt.
All the respondents were appointed as junior teachers in the Department of Surgery, State of Orissa, in the year 1971, before the Orissa
Medical Health Services (Recruitment and Promotion to the Teaching
D
Posts in the Medical Colleges) Rules, 1973, came into force, by process of
selection by a Selection Committee and their inter se seniority before being
finalised under the Rules of 1973, the Orissa Medical Education Service
(Recruitment) Rules, 1979 had come into force. Some of the junior
teachers challenged the gradation list prepared by the State Government
E
F
G
on the ground that the recruitment had not been made by a Selection
Committee appointed by the State Government and therefore, the said
gradation list was not in accordance with the Recruitment Rules. The
Orissa Administrative Tribunal allowed the application on a finding that
the Selection Committee which functioned between June 1971 till the
promulgamation of the Recruitment Rules of 1973 had not been appointed
by the State Government and, as such, had no legal authority to make the
appointment in question. The gradation list prepared in respect of the
junior teachers appointed between 1960 till 1973 had been quashed. The
Special Leave Petition filed against the order of the Tribunal was dismissed. However, the legislature enacted the Orissa Medical Education
Service (Validation of Gradation List of Junior Teachers) Act; 1988
validating the gradation list prepared in respect of the junior teachers
appointed in pursuance of the recommendation of the Selection Committee
from time to time during the period 1.12.1960 and 22.9.1973 notwithstanding any judgment, decree or order of any Court or Tribunal, by substituting the definition of 'Selection Committee' in the Recruitment Rule of 1979
H retrospectively, to mean the Selection Committee which was in existence
816
'.
-
••
STATE v. G.C. RATH
817
from time to time during the period 1.12.1960 to 22.9.1973. Respondent A
No.1 (iled an application in the year 1985 claiming seniority over respondent Nos. 2 to 15. The Tribunal allowed it .and declared respondent No.1
to be senior to respondent Nos. 2 to 15 in the rank of junior teachers with
consequential benefit. Hence this appeal.
The appellant contended that the Tribunal committed gross error in
holding that the seniority was to be determined with reference to their date
B
of appointment as Assistant Surgeons. The respondent alleged that validation Act being an Act to override the judgment of this Court, it was invalid;
that the Selection Committee not having been constituted by the State
Government and that the post of junior teachers and Assistant Surgeons C
being inter changeable at the relevant point of time, the seniority, inter se
had to be determined on the basis of their seniority in the rank of Assistant
Surgeons and accordingly there was no infirmity with the conclusion of the
Tribunal.
The questions raised for consideration were (i) whether in view of D
the validation Act of 1988 inter se seniority of junior teachers was to be
determined in accordance with clause (ii) of sub-rule (2) of Rule 8 of
Recruitment Rules 1979 or with clause (iii) of the sub Rule and (ii) whether
there had been any lacuna in the Validation Act?
E
Allowing the appeal, this Court
HELD : 1.1. The legislatures have the powers to validate an Act by
removing the infirmity indicated in any judgment and that too also
retrospectively but they cannot merely set aside, annual or override a
judgment of the Court. The judgment of the Court was ~erely to the effect F
that the Selection Committee not having been appointed by the State
Government as required under the Rules, the process of Selection got
vitiated. The Orissa Medical Education Services (Validation of Gradation
List of

## Text

A
STATE OF ORISSA AND ORS.
v.
GOPAL CHANDRA RATH AND ORS.
SEPTEMBER 20, 1995
B
[S.C. AGARWAL AND G.B. PATNAIK, JJ.)
Inte1pretation of Statutes-Validation Act-Powers of legislature to
validate an Act retrospectively by removing infinnity indicated in any judgment-They cannot merely set aside, annul or ovenide a judgmellt of the
C
Cowt.
All the respondents were appointed as junior teachers in the Department of Surgery, State of Orissa, in the year 1971, before the Orissa
Medical Health Services (Recruitment and Promotion to the Teaching
D
Posts in the Medical Colleges) Rules, 1973, came into force, by process of
selection by a Selection Committee and their inter se seniority before being
finalised under the Rules of 1973, the Orissa Medical Education Service
(Recruitment) Rules, 1979 had come into force. Some of the junior
teachers challenged the gradation list prepared by the State Government
E
F
G
on the ground that the recruitment had not been made by a Selection
Committee appointed by the State Government and therefore, the said
gradation list was not in accordance with the Recruitment Rules. The
Orissa Administrative Tribunal allowed the application on a finding that
the Selection Committee which functioned between June 1971 till the
promulgamation of the Recruitment Rules of 1973 had not been appointed
by the State Government and, as such, had no legal authority to make the
appointment in question. The gradation list prepared in respect of the
junior teachers appointed between 1960 till 1973 had been quashed. The
Special Leave Petition filed against the order of the Tribunal was dismissed. However, the legislature enacted the Orissa Medical Education
Service (Validation of Gradation List of Junior Teachers) Act; 1988
validating the gradation list prepared in respect of the junior teachers
appointed in pursuance of the recommendation of the Selection Committee
from time to time during the period 1.12.1960 and 22.9.1973 notwithstanding any judgment, decree or order of any Court or Tribunal, by substituting the definition of 'Selection Committee' in the Recruitment Rule of 1979
H retrospectively, to mean the Selection Committee which was in existence
816
'.
-
••
STATE v. G.C. RATH
817
from time to time during the period 1.12.1960 to 22.9.1973. Respondent A
No.1 (iled an application in the year 1985 claiming seniority over respondent Nos. 2 to 15. The Tribunal allowed it .and declared respondent No.1
to be senior to respondent Nos. 2 to 15 in the rank of junior teachers with
consequential benefit. Hence this appeal.
The appellant contended that the Tribunal committed gross error in
holding that the seniority was to be determined with reference to their date
B
of appointment as Assistant Surgeons. The respondent alleged that validation Act being an Act to override the judgment of this Court, it was invalid;
that the Selection Committee not having been constituted by the State
Government and that the post of junior teachers and Assistant Surgeons C
being inter changeable at the relevant point of time, the seniority, inter se
had to be determined on the basis of their seniority in the rank of Assistant
Surgeons and accordingly there was no infirmity with the conclusion of the
Tribunal.
The questions raised for consideration were (i) whether in view of D
the validation Act of 1988 inter se seniority of junior teachers was to be
determined in accordance with clause (ii) of sub-rule (2) of Rule 8 of
Recruitment Rules 1979 or with clause (iii) of the sub Rule and (ii) whether
there had been any lacuna in the Validation Act?
E
Allowing the appeal, this Court
HELD : 1.1. The legislatures have the powers to validate an Act by
removing the infirmity indicated in any judgment and that too also
retrospectively but they cannot merely set aside, annual or override a
judgment of the Court. The judgment of the Court was ~erely to the effect F
that the Selection Committee not having been appointed by the State
Government as required under the Rules, the process of Selection got
vitiated. The Orissa Medical Education Services (Validation of Gradation
List of Junior Teachers) Act, 1988 had removed the lacuna by changing
the definition of the Selection Committee and consequently validating the G
appointments made by such Committee during the period in question.
There is no infirmity with the Validation Act. [824-B-C]
1.2. All the respondents were appointed as junior teachers subsequent to June 1971 and before the Orissa Medical Health Services
(Recruitment and Promotion to the Teaching Posts in the Medical Col- H
818
SUPREME COURT REPORTS [1995} SUPP. 3 S.C.R.
A
leges) Rules 1973, came into force, by process of se~ection by a Selection
Committee and their inter se seniority before being finalised under, the
Recruitment Rules of 1973, the Orissa Medical Education Service
(Recruitment) Rules, 1979 had come into force, the same had to be
determined in accordance with the 1979 Rules. Under clause (iii) of sub
B
Rule (2) of Rule 8 only inter se seniority of those junior teachers who had
been appointed without consultation with the Commission or without
being selected by the Selection Committee had to be determined. All the
respondents having been appointed by a Selection Committee which Committee was valid in the eye of law by virtue of the Validation Act, Clause
(iii) will have no application. The inter se seniority of all the respondents
C which had been determined in accordance with clause (i) of Sub Rule (2)
of Rule 8 must be maintained. (824-E-H]
D
E
F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1306 of
1995.
From the Judgment and Order dated 4.5.92 of the Orissa Administrative Tribunal, Bhubaneshwar in T.A No. 451 of 1987 (OJC. No.
1767/85).
Jayanta Das, P.N. Misra, AC. Pradhan and AK. Panda (NP) for the
Appellants.
S.S. Jawali and Ms. Kirti Mishra for the Respondent.
Bharat Sangal, Sanjiv Das and N.P. Middha for the Intervenor.
The Judgment of the Court was delivered by
PATNAIK, J. This appeal by the State of Orissa is directed against
the judgment of the Orissa Administrative Tribunal, Bhubaneshwar in T.A.
No. 451/87. By the impugned judgment the Tribunal having altered the
seniority of the junior teachers in the Department of Surgery, the same is
G being assailed inter alia on the ground that the Rule 8(2)(iii) cannot have
any application for determining the inter se seniority between these junior
teachers who were appointed in the year 1971 by a Selection Committee.
The brief facts, necessary for examining the point in issue, may be
stated thus; The post of junior teacher is a teaching post attached to the
H Medical Colleges of the State, whereas, Assistant Surgeons are posts
-
-
..
STATE v. G.C. RATH [PATNAIK, J.]
819
attached to different Government hospitals in the State. Between the A
period 1960 till June 1971 the doctors who were appointed as Assistant
Surgeons through a process of selection by the Orissa Public Service
Commission were also being posted as a junior teacher in any of the
Medical Colleges. In June 1971, however, the State Government decided
to fill up the post of junior teacher in the Medical Colleges from amongst
the Assistant Surgeons by process of selection to be selected by the
Selection Committee. In the year 1973, a set of rules for recruitment and
promotion to the various teaching posts in the Medical Colleges were
framed under the Proviso to Article 309 of the Constitution, called the
Orissa Medical Health Services (Recruitment and Promotion to the Teaching Posts in the Medical Colleges) Rules, 1973 (hereinafter referred to as
"The Recruitment Rules of 1973"). Under the said Rules appointment to
B
c
the post of junior teachers could be made through a Selection Board by
recruitment from amongst the Assistant Surgeons with atleast one year
experience in consultation with Public Service Cbmmission. The inter se
seniority of such junior teachers who were appointed on or after 1st D
December 1960 till the commencement of the Recruitment Rules of 1973
was to be determined in accordance with Sub-Rule (2) of Rule 8. In the
aforesaid Recruitment Rules of 1973 the expression "Selection Committee"
was defined in Rule 3(g) to mean the "Selection Committee appointed by
the State Government prior to the commencement of the Rules to select
persons for appointment to the junior teaching post." Be it be stated that E
even prior to the Recruitment Rules of 1973, a set of rules were in vogue
being framed in exercise of powers under the Proviso to Article 309 of the
Constitution called the Orissa Medical Health Service (Promotion to
Senior Teaching Posts in the Medical Colleges) Rules, 1970, to be referred
to as "The Recruitment Rules of 1970". Though the aforesaid Rules of 1970 F
contained the method of promotion to the post of senior teaching post in
the Medical Colleges, namely, the Assistant Professor, Associate Professor
and Professor but it recognised the junior teachers as a cadre and provided
for the criteria for determination of inter se seniority in the rank of junior
teachers, same being that it shall be reckoned with respect to the date of
appointment to the junior teaching post in the speciality and in super G
speciality. While the Gradation List of the junior teachers prepared in
accordance with the Recruitment Rules of 1973, was provisional and the
same had not been finalised,' the Recruitment Rules of 1973 was repealed
and another set of Recruitment Rules were framed called the Orissa
H
820
SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.
A
Medical Education Service (Recruitment) Rules, 1979, (hereinafter
referred to as "The 1979 Recruitment Rules"). The definition of Selection
Committee in Rule 3(g) of the 1979 Recruitment Rule was to the effect
that Selection Committee appointed by the State Government from time
to time in between the period from 1.12.1960 to 22.9.1973 to select persons
B
c
for appointment to the junior teaching posts. Rule 8 of the 1979 Recruitment Rules provided for determination of inter se seniority of junior
teachers. Sub-Rule (2) of Rule 8 is the provision for determination of inter
se seniority of junior teachers appointed on or after 1st December, 1960,
till the date of commencement of the said Recruitment Rule. Clause (i) of
the aforesaid Sub Rule is to the effect that the seniority of junior teachers
shall be reckoned from the date of their appointment to the junior teaching
post. Under the Explanation the date of appointment must be deemed to
be the date on which the notification relating to the appointment is issued
by the Government in consultation with the Commission. Clause (ii) of the
said Sub-Rule is to the effect that persons appointed on the same day as
D junior teachers in pursuance of the recommendations of the Selection
Committee shall be given inter se seniority in accordance with the placement given by the Selection Committee. Clause (iii) of the said Sub-Rule
provides the mode of determining inter se seniority of junior teachers other
than those appointed in consultation with the Commission or the Selection
E
F
G
Committee on the basis of their seniority in the rank of Assistant Surgeons
in the State Medical and Health Services. Clause (iv) of the said Sub Rule
provides that those junior teachers who were appointed on or after 1st
December 1960 in pursuance of the recommendation of the Commission,
to be considered senior to those appointed in the same year without
consulting the Commission, irrespective of the date of appointments.
In the case, in hand, we are really concerned with Clauses (ii) and
(iii) of Sub-Rule (2) of Rule 8. For better appreciation of the point in issue
Sub-Rule (2) of Rule 8 of the 1979 Recruitment Rules is_ extracted herein
below in extenso :-
8. (2) Inter-se seniority of Junior Teachers appointed on or after
the 1st December 1960 till the date of commencement of these
Rules. shall be determined in consultation with the Commission
according to the following principles :-
(i) Seniority of such Junior Teachers of Speciality or Higher
•
...
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STATEv. G.C.RATH[PA1NAIK,J.)
821
Speciality shall be reckoned from the dates of their appointment to the Junior Teaching Posts.
Explanation - The date of appointment shall be deemed to be the
date on which the notification relating to the appointment is issued
by Government in consultation with the Commission.
(ii) Persons appointed on the same day as Junior Teachers
in pur~uance of the recommendations of the Selection Committee shall be given inter se seniority in accordance with the
placements given by the Selection Committee.
A.·
B
c
(iii) Notwithstanding anything contained in clause (i) of this
Sub-Rule, inter se seniority of Junior Teachers other than
those appointed in consultation with the Commission or the
Selection Committee shall. be determined on the basis of their
respective seniority in the rank of Assistant Surgeons in the
State Medical and Health Services.
D
(iv) Notwithstanding anything contained in clause (i) of this
sub-rule, Junior Teachers appointed on or after the 1st
December 1960 in pursuance of the recommendations of the
Commission, which were valid at the time of such appointE
ment, shall be considered senior to those appointed as such
in the same year without consulting the Commission, irrespective of the date of appointments."
Some of the junior teachers had challenged the gradation list prepared by
the State Government on the ground that the recruitment had not been F
made by a Selection Cominittee appointed by the State Government and,
therefore, the said gradation list is not in accordance with the Recruitment
Rules. Originally such Petition had been filed in the High Court and stood
transferred to the Orissa Administrative Tribunal and the Tribunal allowed
that application on a finding that the Selection Committee which functioned between June 1971 till the promulgation of the Recruitment Rules G
of 1973 had not been appointed by the State Government and, as such, had
no legal authority to make the appointment in question. The aforesaid
judgment of the Tribunal was assailed in this Court in a Special Leave
Petition which was dismissed by an order dated 17.1.91, but it was observed
that the interpretation given by the State Administrative Tribunal may not H
822
SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.
A be taken as final and as and when a fresh dispute is raised the matter shall
be taken for. consideration. Since the gradation list prepared under the
Recruitment Rule in respect of the junior teachers appointed between
1.12.1960 ·till 1973 had been quashed on the ground of infirmity in the
Constitution of the Selection Committee, the Legislature came forward
B
c
with the Validation Act called the Orissa Medical Education Servicer.
(Validation of Gradation List of Junior Teachers) Act, 1988, (hereinafter
referred to as "The Validation Act". The definition of the Selection Committee in the Recruitment Rule of 1979 was substituted retrospectively with
effect from 13th August, 1979, to mean that the Selection Committee which
is in eXistence from time to time during the period 1.12.1960 to 22.9.1973
to select persons for appointment to the junior teaching post. The aforesaid
Validation Act also validated the gradation list prepared in respect of the
junior teachers appointed in pursuance of the recommendation of the
Selection Committee from time to time during the period 1.12.1960 and
22.9.1973 notwithstanding any judgment, decree or order of any Cou;t or
D Tribunal. It would be appropriate at this stage to extract Rules 3(g) and 4
of the Validation Act :-
E
F
G
H
3. In rule 3 of the Recruitment Rules, for clause (g), the following
clause shall be substituted, namely :-
(g) "Selection Committee" means the Selection Committee in
existence from time to time during the period between
1.12.1960 and 22~9.1973 to select persons for .appointment to
the Junior Teaching Posts."
4. Notwithstanding any judgment, decree or order of any court or
tribunal or other authority, the gradation lists prepared in pursuance of clause (ii) of sub-rule (2) of rule 8 of the Recruitment
Rules in respect of the Junior Teachers appointed in pursuance
of the recommendations of the Selection Committee in existence
from time to time during the p~riod between 1.12.1960 and
22.9.1973 shall, for all intents and purposes, be_ deemed to have
been validly and effectively prepared as if clause (g) of rule 3 of
the Recruitment Rules as amended by section 3 were in force at
all material times when such gradation lists were prepared, and
accordingly, no suit or other legal proceeding shall be instituted,
maintained or continued in any court or tribunal or before other
-
...
-
STATEv. G.C.RATH[PATNAIK,J.]
823
authority merely on the ground that those lists were prepared on A
the basis of the placement given by the Selection Committee not
constituted by Government in accordance with the provisions
contained in the Recruitment Rules as stood prior to the amendment made under Section 3;
Provided that nothing contained in this section shall affect the
jurisdiction of the Orissa Public Service Commission under subrule (2) of rule 8 of the Recruitment Rules in determining the
inter-se seniority."
B
Respondent no. 1 had filed a Writ application in the year 1985 claiming C
the seniority over respondent nos. 2 to 15 and the said Writ application
stood transferred to the Orissa Administrative Tribunal under Section 29
of the Administrative Tribunal Act and was numbered as Tribunal Appeal
No. 451/87. The Tribunal by the impugned judgment dated 4.5.92 having
allowed the same and having declared respondent no. 1 to be senior to
respondent nos. 2 to 15 in the rank of junior teachers with consequential D
benefit the State has come up to this Court in appeal.
The learned counsel Mr. Das, appearing for the State of Orissa,
contended that the Tribunal committed gross error in holding that the
Validation Act has no application and it further committed error in holding E
that the seniority is to be determined with reference to their date of
appointment as Assistant Surgeons. Mr. Javali, learned senior counsel
appearing for respondent no. 1, on the other hand, contended that Validation Act is nothing but an Act to override the judgment of this Court and,
therefore, on the face of it is invalid. He further contended that the
Selection Committee not having been constituted by the State Government
and on the admitted position that the post of junior teachers and Assistant
Surgeons were inter-changeable at the relevant point of time, the seniority,
inter se has to be determined on the basis of their seniority in the rank of
Assistant Surgeons and accordingly there is no infirmity with the conclusion
of the Tribunal.
It is an undisputed fact that respondent nos. 1 to 15 were appointed
F
G
as junior teachers on different dates subsequent to June 1971 and their
selection had been made by a Selection Committee not appointed by the
State Government but by the Director of Health Service. The question that
arises for consideration is whether in view of the Validation Act of 1988 H
824
SUPREME COURT REPORTS (1995] SUPP. 3 S.C.R.
A inter se seniority of such junior teachers is to be determined in a"ccordance
with clause (ii) of Sub Rule (2) of Rule 8 of Recruitment Rules 1979 or it
is to be determined in accordance with clause (iii) of the said Sub Rule.
Further question that arises for consideration is that whether there has
been any lacuna in. the Validation Act? But so far as the second questior
B
c
D
E
F
is concerned, it is too well settled that the legislature have the powe~ s to
validate an Act by removing the infirmity indicated in any judgment and
that too also retrospectively but they cannot merely set aside, annul or
override a judgment of the Court. The judgment of the Court was merely
to the effect that the Selection Committee not having been appointed by
the State Government as required under the Rules, the process of Selection
got vitiated. The Validation Act has removed the lacuna by changing the
definition of the Selection Committee and consequently validating the
appointments made by .such Committee during the period in question. We
see no infirmity with the aforesaid Validation Act. The contention of Mr.
Javali, learned senior counsel, therefore, cannot be accepted.
Coming back to the first question, the admitted position being that
all the respondents were appointed as junior teachers subsequent to June
1971 and before the Recruitment Rules of 1973 came into force, by process
of Selection by a Selection Committee and their inter se seniority before
being finalised under the Recruitment Rules of 1973, 1979 Recruitment
Rules have come into force, the same has to be determined in accordance
with 1979 Recruitment Rules. A plain reading of the aforesaid Recruitment
Rules would indicate that the inter se seniority of such junior teachers like
respondent nos. 1 to 15 has to be determined in accordance with clause (i)
of Sub Rule (2) of Rule 8. The Tribunal committed gross error by holding
that the inter se seniority is to be determined under Clause (iii) of Sub Rule
(2) of Rule 8 in as much as under the said Sub Rule only inter se seniority
of those junior teachers who had been appointed without consultation with
the Commission or without being selected by the Selection Committee has
to be determined. All the respondents having been appointed by a Selection Committee which Selection Committee is valid Selection Committee
G in the eye of law by virtue of the Validation Act, Clause (iii) of Sub Rule
(2) will have no application and accordingly the question of determining
their seniority on the basis of their respective seniority in the rank of
Assistant Surgeons in the Medical Health Services does not arise. The
Tribunal, in our opinion, has misdirected itself by refering to Clause (iii)
H of Sub Rule (2) of Rule 8 for determining the inter se seniority among the
-
-
-
STATEv. G.C.RATH(PATNAIK,J.]
825
respondents. The said conclusion of the Tribunal is wholly unsustainable A
in law and we accordingly quash the same and direct that the inter se
seniority of all the respondents which has been determined in accordance
with Clause (i) of Sub Rule (2) of Rule 8 must be maintained. In view of
our quashing of the order of the Tribunal declaring the respondent no. 1
as senior to respondent nos. 12 to 15 in the rank of Junior Teacher,
subsequent direction for re-consideration of the case of respondent no. 1
to the promotion on the post of Assistant Professor as well as other post
of higher rank does not arise and the same direction accordingly is
quashed, Civil Appeal is thus allowed. The impugned judgment of the
Tribunal is set aside. But, in the circumstances, there will be no order as
to costs.
RA.
Appeal allowed.
B
c