Holding

The legislature is empowered to render a judicial decision ineffective by enacting a valid law within its legislative field fundamentally altering or changing the basis upon which the judicial decision was given, but cannot merely declare a decision of a court to be invalid.

Summary

The case involves a challenge to the Haryana Service of Engineers Act, 1995, which was enacted with retrospective effect to alter the seniority rules between direct recruits and promotees in the Haryana Public Works Department. The Supreme Court had earlier interpreted the rules in Sehgal and Chopra, but the Act changed the definition of service, quota, and seniority criteria. Direct recruits challenged the Act as an usurpation of judicial power. The majority held that the legislature can render a judicial decision ineffective by enacting a valid law that changes the basis, and the Act was valid except for a part of Section 25. The minority held that the retrospective operation was unconstitutional. The Court disposed of the appeals and directed re-determination of seniority under the Act.

Issues considered

Whether the Haryana Act 20 of 1995 is unconstitutional as an usurpation of judicial power.
Whether the legislature can render a judicial decision ineffective by enacting a valid law.
Whether the Act takes away vested rights of direct recruits.
Whether Section 25 of the Act is valid.

Legislation cited

Constitution of Indias. 245, s. 246, s. 309, s. Seventh Schedule List II Entry 41
Haryana Service of Engineers, Class I, Public Works Department (Buildings and Roads Branch, Public Health Branch and Irrigation Branch) Act, 1995s. 12(2), s. 2(12)(c), s. 25, s. 5(2)

Subjects

Constitution of IndiaService LawSeniorityLegislative powerJudicial reviewValidation ActRetrospective legislationDirect recruitsPromoteesHaryana Service of Engineers Act 1995

Judgment

S.S. BOLA AND ORS. ETC. A
,..
v.
B.D. SARDANA AND ORS. ETC.

JULY 11, 1997

(K. RAMASWAMY, S. SAGHIR AHMAD B
AND G.B. PATTANAIK, JJ.]

Constitution of India, 1950 :

A1ticles 245, 246 and 309, Seventh Schedule, List II, Ently 41-State c
Legislature-Power to enact laws rendering judicial decisions ineffec-
tive-Held, Legislature is empowered to render a judicial decisio11 i11effective
by enacting valid law within its legislative field fu11dame11tally altering or
changing the basis upon which the judicial decision was given-But Legisla-
ture in exercise of its powers under Altic/es 245 and 246 ca11 not merely
declare a decision of a coult of law to be invalid or to be inopera- D
tive-Haryana Se1Vice of Engineers Class-I, Public Works Depaltment (Build-
ings and Roads Branch, Public Health Branch and lnigation Branch) Act,
1995 is valid except a pa1t of s. 25 thereof-Besides, the Act is not a validation
Act since the Coult in the earlier decisions, had not invalidated any provision
• but merely inte1preted the relevant provisions of the Rules-Validation
Act-Constitution of India-Alticles 32, 226-Judicial Review-Administra- E
tive Law.

Se1vice Law :

Ha1yana Se1vice of Engineers Class I Public Works Depa1tment (Build-
ings and Roads Branch), (Public Health Branch) and (Inigation Branch) F
Respectively Act, 1995--ss. 5(2), 2(12)(c) a11d 12(2~Harya11a Se1Vice of
Engineers Class I Public Works Depwtme11t-Promotio11 tO--Criteria for
promotion of direct recmits and promotees-Retrmpective operatio11 to the
Act-Held, valid-To have a palticular position in seniodty list in a cadre is
not a11 accmed or vested right-Losing some steps in se11iority list withi11 a G
cadre and future chances ofpromotion getting delayed thereby is not reduction
___.., in rank-State Govemment to prepare seniority list afresh in accordance with
the Act.

s. 25-Repealing provision-&.pressio11 'to the extent that these Rules
shall conti11ue to apply to the persons, who were members of the se1vice before H
507
508 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.
(
A 1st day of November, 1966' is invalid and is strnck dowit-Remaining part of
the section and the proviso will remain operative-f'unjab service of En-
gineers, Class-I, Public Works Department (Roads & Building Branch) Rules,
1960, Punjab Service of Engineers Class-I Public Works Department (Public
Health Branch) Rules, 1961 and the Punjab Service of Engineers Class-I
Public Works Department (Irrigation Branch) Rules, 1964.
B
Interpretation of Statutes :

Statement of Objects and Reasons of a statute-Held, is to be looked
into as an extrinsic aid to find out legislative intent when meaning of statute
C by its ordinary language is obscure or ambiguous and not when words of
statute are clear and unambiguous.

Principle of casus omissus-Applicability of

In the State of Haryana, on its formation on 1.11.1986, the servii;es of
D Class I Engineers in three Branches of Public Works Department, namely,
Roads and Buildings Branch, Public Health Branch, and Irrigation Branch,
were regulated by the Punjab Service of Engineers, Class I Public Works
Department (Roads and Buildings Branch) Rules, 1960, the Punjab Service
of Engineers Class I Public Works Department (Public Health Branch)
Rules, 1961, and the Punjab Service of Engineers, Class I Public Works
E Department (Irrigation Branch) Rules, 1964, respectively. Class I service of
Engineers consisted of Executive Engineers, Superintending Engiueers,
Chief Engineer and later Engineer-in- Chief also in the respective branches.
Assistant Executive Engineers and posts of Class II Subordinate Service
both were feeder channels for appointment by promotion as Executive
F Engineers, the former being direct recruits and the latter were promotees
from the Subordinate Service. In the Roads and Buildings Branch and the
Public Health Branch 50% posts in Class I service were filled by promotees
and 50% posts by direct recruit Assistant Executive Engineers. But as
regards the Irrigation Branch till 8 years of framing of the Rules 75% posts
G were filled by promotees and 25% by direct recruits and thereafter the posts
were to be filled by both the cadres in equal proportion i.e. 50% each. To
begin with, 14 officers of the erstwhile Punjab Cadre of Engineers were
brought in the State of Haryana in Public Health Branch and since the
cadre strength of Haryana was 10, four of them were adjusted against
ex-cadre posts. Though the Rules provided quota for direct recruit and
H promotee officers in the Class I posts, these ten officers were brought on the
S.S. BOLA v. B.D. SARDANA 509

basis or their domicile and the ratio between direct recruits and promotees A
was not observed.

Later, when the gradation lists were prepared, dispute arose between
direct recruits and promotees of Roads and Buildings Branch and the
Public Health Branch; and writ petitions were filed in the High Court. The B
decisions of the High Court were challenged before this Court. This Court
decided the matter regarding seniority of Roads and Buildings Branch in
the case ofA.N. Sehgal and Others v. Raje Ram Sheoran and Others, [1992]
1 SCC 304 and that relating to Public Health Branch, in S.L. Chopra and
Ors. v. State of Haryana and Others, [1992] Supp. 1 SCC 391. The Court,
after considering Rules 3(1), 3(2), 5(1)(9), 6, 7, 11(1), 12(2) and 12(3) of C
the respectives Rules, held that a direct recruit would always be recruited
and appointed to a substantive vacancy, and from the date he started
discharging the duty he would be a member of the 'service' whereas a
promotee officer, irrespective of initial officiating promotion to a tern·
porary vacancy or substantive vacancy, would become member of the D
'service' on his appointment to a substantive vacancy within the 50% quota
meant for promotee officers. Thus a promotee occupying a post within 50%

. quota of direct recruits on their not being available, acquired no right to
the post and would yield to direct recruits though promoted later to the
senior posts i.e. Executive Engineer, Superintending Engineer and Chief E
Engineer. The officiating period of the promotee officer between the date
of initial promotion and the date of availability of the cadre post would
thus ·be rendered fortuitous and stood excluded. This Court interpreted
the relevant provisions of the Rules and directed the Government to
determine the cadre post regularly, from time to time, allot the posts in F
each year of allotment as contemplated under Rule 12 read with Rule
5(2)(a), issue orders appointing the officers substantively to the respective
posts within the quota and determine the inter se seniority between direct
recruits and promotees accordingly.

The State Government, in pursuance of the directions issued by this G
Court, fixed the cadre strength for each year commencing from 1966 and
determined the inter se seniority of the promotees and the direct recruits,
and prepared a seniority list dated 6.4.1992. As regards the initial 10 posts,
which constituted the service initially on 1.11.1966, five were treated as
direct recruits fictionally and five as promotees. Against this seniority list H
510 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.
A writ petitions were filed in the High Court. The High Court quashed the
list, and aggrieved parties filed petitions for special leave before this
Court.

Meanwhile the State Legislature passed the Haryana Service of
B Engineers, Class I, Public Works Department (Buildings and Roads
Branch, Public Health Branch and Irrigation Branch) Act, 1995 giving the
Act retrospective effect from 1.11.1966, thus making the decisions of this
Court rendered in Sehgal and Chopra ineffective. The Act was challenged
in writ petitions before the High Court and the said writ petitions were
transferred to this Court. During the pendency of the matters before this
C Court, two other seniority lists were prepared on 13.3.1997 and 19.3.1997
and both these lists were also challenged before this Court.

So far as the Punjab Service of Engineers, Class I, Public Works
\
Department (Irrigation Branch) Rules, 1964 were concerned, the said rules
D were not considered by this Court earlier. However, the dispute of seniority
between direct recruits and promotees arose in the years 1976 and the
matter was ultimately disposed of by the High Court in Letters Patent
Appeals by its judgment dated 27.8.1992. The State Government as also
the promotee officers challenged the said order in appeals before this
E Court. When the Act came into force, one of the direct recruits challenged
the validity of the Act by filing a writ petition before the High Court. The
said writ petition was also transferred to this Court.

It was contended for the direct recruits that the Act was an usurpa-
tion of judicial power by the Legislature to annul the judgments of this
F Court in Sehgal and Chopra as was clear from the Statement of Objects
and Reasons of the Act, and the affidavit filed on behalf of the State
Government; that the Act merely declared the earlier judgments to be
invalid, and therefore, the Act was invalid and inoperative; that the man-
damus issued by this Court in Sehgal and Chopra had to be complied with
G and the State Legislature had no power to make the mandamus ineffective
and to override the said judgments by enacting the Act; and, that in any
case the Legislature could not have given the Act retrospective operation.
It was also contended that the Act took away the rights accrued in favour
of the direct recruits pursuant to the judgment of this Court, and, there-
H fore, the Act should be struck down.
S.S. BOLA v. B.D. SARDANA 511
The contention on behalf of the State Government and the promotee A
officers was that the State Legislature under Articles 245 and 246 of the
Constitution had power to make the law determining the service conditions
of the employees of the State and giving it retrospective effect; that the
legislature having been aware of the inequitous situation which had been
the result of the Rules for determination of inter se seniority between the B
direct recruits and the promotees as interpreted by this Court in Sehgal
and Chopra, intervened in enacting the Act to remove the inequities not by
merely declaring the interpretation given by this Court to the relevant
provisions of the Rules in the said judgments to be invalid but by making
substantial alterations and changes to the basis itself by altering the
definition of service, by providing that quota of promotees could exceed C
beyond 50% as per proviso to 's. 5(2), and by changing the very criterion
for determination of seniority, namely, the continuous length of service as
engrafted ins. 12(2); and as such the Legislature could not be said to have
encroached upon the field of judiciary nor could the legislation be said to
be an act of usurpation of judicial power by the Legislature. D
Disposing of the matters, this Court

HELD : per curiam :

(i) Legislature is empowered to render a judicial decision ineffective E
by enacting a valid law fundamentally altering or changing the basis upon
, which the judicial decision was given; such a law can also be given
retrospective operation. But, Legislature cannot declare a decision of a
court of law to be invalid or to be inoperative, in which· case it would be
held to be an exercise of judicial power which the Legislature do not
possess. F

(ii) To have a particular position in seniority list is not an accrued
or a vested right. Chances of promotion are not condition of service.

Per majority (Pattanaik and S. Saghir Ahmad, JJ.)
G
(i) The Haryana Service of Engineers, Class I, Public Works Depart·
ment. (Buildings and Roads Branch), (Public Health Branch) and (Irriga·
tion Branch) Respectively Act. 1995 is valid. The changes and alterations
in the service rules, brought by the Act and giving the Act retrospective
effect rendered the decisions of this Court in the cases of Sehgal and H
,.
512 . SUPREME COURT REPORTS [1997] SUPP. 2S.C.R.
A Chopra ineffective. It is not a case of Legislature overriding a judicial
decision but a case of rendering a judicial decision ineffective by enacting
a valid law within the competence of the Legislature.

(ii) The nature of mandamus which had been issued by this Court
B in Sehgal and Chopra was merely a declaration of principles of seniority
as the Rules then existing. The Legislature by enacting the Act and giving
it retrospective effect made several vital changes both to the definition of
service as also to criteria for determining inter se seniority between direct
recruits and promotees. The Act has not taken away any accrued right of
the direct recruits.
c
Per Minority (K. Ramaswamy, J.)

(i) The Legislature of Haryana was competent to enact the Haryana
Service of Engineers, Class I, Public Works Department (Buildings and
D Roads, Branch), (Public Health Branch) and Irrigation Branch) Respec-
tively Act, 1995. But since the Act has with retrospective effect, in substance
and in effect, declared the law laid down by this Court in Sehgal and Chopra
as unenforceable by an indirect side track process of legislative fiat, it is
unconstitutional. The Act is unconstitutional to the extent of its ret.rospec-
tive operation. The prospective effect does not have any effect on settled
E rights of the parties to these litigations.

(ii) The relevant Rules as interpreted by this Court in Sehgal and
Chopra is the law under Article 141 of the Constitution. The mandamus
issued therein operates inter parties and binds the State Government. The
F Act made with retrospective effect is a fraud on the Constitution and is,
therefore, unconstitutional. It, therefore, does not affect the vested rights
of the direct recruits which are still available to them and they are entitled
to have their seniority determined accordingly.

Per Pattanaik, J.
G
1. The Haryana Service of Engineers Class I, Public Works Depart-
ment, (Buildings and Roads, Branch), (Public Health Branch) and (Irriga-
tion Branch) Respectively Act, 1995, is a valid piece of legislation enacted
by the State Legislature over which they had legislative competence under
H Article 309 and Entry 41 of List II of Vllth Schedule to the Constitution.
S.S. BOLA v. B.D. SARDANA 513
Though by giving the enactment retrospective effect the earlier judgments A
of this Court in Sehgal * and Chopra ** have become ineffective, this does
not tantambunt to a mere declaration of invalidity of an earlier judgment
nor does it amount to an encroachment by the Legislature into the judicial
sphere. The Act cannot be said to be an act of usurpation of judicial power
by the Legislature. (560-D-E; 575-H; 576-A] B
* A.N. Sehgal and Ors. v. Raje Ram Sheoran and Ors., (1992) Supp.
1 SCC 304 and **S.L. Chopra a~id Ors. v. State of Haryana and Ors., (1992)
Supp. 1 SCC 391, referred to.

2.1. The Legislature can always render a judicial decision ineffective c
by enacting valid law on the topic within its legislative field fundamentally
... altering or changing its character retrospectively. But the Legislature
cannot in exercise of its plenary power under Articles 245 and 246 of the
Constitution merely declare a decision of a court of law to be invalid or to
be inoperative in which case it would be held to be an exercise of judicial D
power, which under the scheme of Constitution, the Legislature do not
possess. (543-A-C] •
Indian Aluminium Co. and Ors. v. State of Kerala and Ors., [1996) 7
SCC 637; J.N. Saxena v. The State of Madhya Pradesh, [1976) 3 SCR 237;
M/s. Utkal Contractors and Joinery (P) Ltd. and Ors. v. State of Orissa, (1987) E
Supp. SCC 751; Bhubaneshwar Singh and Anr. v. Union of India and Ors.,
(1994) 6 SCC 77; Comorin Match Industries (P) Ltd. v. State of Tamil Nadu,
(1998] 4 SCC 281; Meernt Development Authority and Ors.etc. v. Satbir Singh
and Ors. etc., [1996) 11 SCC 462 and State of Orissa and Anr. v. Gopal
Chandra Rath and Ors., (1995) 6 SCC 242, relied on. F
Shri P. C. Mills Ltd. v. Broach Borough Municipality, [1969) 2 SCC 283;
West Ramnad Electric Distribution Company Ltd. v. State of Madras, [1963)
2 SCR 747; Udai Ram Shanna and Ors. etc. v. Union of India and Ors.,
[1968) 3 SCR 41; Krishan Chandra Gangopadhyaya and Ors. v. Union of
India and Ors., [1975) 2 SCC 302 and Hindustan Gum and Chemicals Ltd.
G
v. State of Haryana and Ors., [1985) 4 SCC 124, cited.

Pritpal Singh and Ors. v. State of Punjab and Ors., [1980] Suppl. SCC
524; State of Gujarat & Anr. etc. v. Raman Lal Keshav Lal Soni and Ors.
etc., [1983) 2 SCC 33; Ex. Capt. KC. Arora a11dA11r. v.State of Haryana and H
514 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A Ors., [1984] 3 SCC 281; T.R. Kapur and Ors. v. State of Haryana and Ors.,
[1986] Suppl. SCC 584; P.D. Aggrawal and Ors. v. State of U.P. and Ors.,
[1987] 3 SCC 622 and Madan Mohan Pathak andAnr. etc. v. Union of India
and Ors., [1978] 2 SCC SO, held inapplicable.

2.2. In the case of Sehgal and Chopra this Court had not invalidated
B any provision of the recruitment rules but merely interpreted some
provisions of the Rules for determining. the inter se seniority between the
direct recruits and the promotees. The Act passed by the Legislature,
therefore, is not a validation Act but merely an Act passed by the State
Legislature giving it retrospective effect from the date the State of Haryana
C came into existence and consequently from the date the service in question
came into existence. [542-C-D]

2.3. The power of the Legislature under Article 246(3) of the Con-
stitution to make law for the State with respect to the matters enumerated
D in List II of the Vllth Scheduled to the Constitution is wide enough to
make law determining the service conditions of the employees of the State.
In the instant case, there has been no challenge to the legislative com-
petence of the State Legislature to enact the legislation in question nor has
there been any challenge on the ground of contravention of Part III of the
Constitution. [542-D-E]
E
2.4. Under the constitutional scheme the power of the Legislature to
make law is paramount subject to the field of legislation as enumerated in
the Entries in different Lists. The function of the judiciary is to interpret
the law and to adjudicate the rights of the parties in accordance with law
F made by the Legislature. [ 542-E-F]

3.1. To find out whether the impugned Act is an usurpation of
judicial power by the Legislature it would not be permissible to look to the
Statement of Objects and Reasons which accompanied the Bill while
introducing the same on the floor of the Legislature nor the affidavit filed
G by an officer of the Government would control the true and correct
meaning of the words of the statute. For that purpose the substantive
provisions of the Act would be examined. [574-E-G]

3.2. It is a cardinal rule of interpretation that Objects and Reasons
H of a statute is to be looked into as an extrinsic aid to find out legislative
S.S. BOLA v. B.D. SARDANA 515

intent only when the meaning of the statute by its ordinary language Is A
obscure or ambiguous. But, if the words used in a statute are clear and
unambiguous then the statute itself declares the intention of the Legisla·
ture and in such a case it would not be permissible for a Court to interpret
the statute by examining the Objects and Reasons of the statute in ques·
tion. The general rule of interpretation Is that the language employed is B
primarily the determining factor to find out the intention of the Legisla·
ture. [545-F·G; 547-B]

Aswini Kumar Ghosh andAnr. v.Arbinda Bose andAnr., SCR [1953]
-• 1; The Central Bank of India v. Their Workmen, SCR [1960] 200; State of
West Bengal v. Union of India, SCR 1 [1964] 371; Tata Engineering and C
Locomotive Co. Ltd. v. Gram Panchayat, Pimpri Waghere, [1976] 4SCC177
and Kanai/al Sur v. Paramnidhi, Sadhukhan, SCR [1958] 360, relied on.

Robert Wigram Crawford v. Richard Spooner, 4 MIA 179 (PC),
referred to. D

4.1. The changes and alterations in the Act itself and giving It
retrospective effect from the date when the State of Haryana came into
existence and consequently the service of Engineers, came into existence,
rendered. the earlier decisions of this Court in Sehgal and Chopra ineffec· E
tive. The provisions of the Act and the definition of "service" ins. 2(12)(c),
proviso to s. 5(2) and the criteria for promotion, which was engrafted in
s. 12(2) of the Act, and making it retrospective w.e.f, 1.11.1966, when
interpreted, lead to the only conclusion that this Court could not have
rendered the decision in Sehgal and Chopra on the face of the aforesaid F
provisions of the Act. It is, therefore, not a case of legislation by mere
declaration without anything more, overriding a judicial decision but a
case of rendering a judicial decision ineffective by enacting a· valid law
within the legislative field of the Legislature. [548-G-H; 549·A·B]

4.2. Under the 1960 and the 1961 Rules as interpreted by this Court G
in the cases of Sehgal and Chopra, a direct recruit gets the year of allotment
as the year in which he is recruited as Assistant Executive Engineer but so
far as promotees are concerned they become members of the service only
after they are appointed substantively to a cadre post and the quota of
promotees cannot exceed 50% of the total number of posts in the service H
516 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A excluding the posts of Assistant Executive Engineers to which direct
recruitments are made. Inter se seniority between direct recruits and
promotees is regulated by Rules 12(6) and (7). As a necessary consequence
a direct recruit when promoted as Executive Engineer from the posts of
Assistant Executive Engineer was getting seniority over the promotee
B Executive Engineers and this situation has been avoided by the impugned
Act by changing the definition of "service" in Rule 2(12) of the 1961 Rules,
by providing the quota for promotees to exceed 50% in certain contingen·
cies like non-availability of direct recruits to man the post of Executive
Engineer and by changing the criteria for determination of illter se
C seniority and in place of determination of year of allotment, by providing
length of continuous service to the post of Executive Engineer to be the
determining factor. Necessarily, therefore, by the impugned Act a direct
recruit in the rank of Executive Engineer would come down in the grada·
tion list than what was assigned under the Rules of 1960 and 1961.
[561·A·F]
D
5.1. To have a particular position in the seniority list within a cadre
can not be said to be an accrued or a vested right of a Government servant;
and losing some places in the seniority list within the cadre does not
amount to reduction in rank even though the future chances of promotion
E get delayed thereby. Chances of promotion of Government servant are not
a condition of service. [562·C·E]

The High Court of Calcutta v. Amal Kumar Roy, [1963) 1 SCR 437;
The State of Punjab v. Kishan Das, [1971) 3 SCR 389; State of Maharashtra
and Ahr. v. Chandrakant Anantit Kulkarni and Ors., [1981) 4 SCC 130; K.
F Jagadeesan v. Union of India and Ors., [1990) 2 SCC 228; Union of India .
and Ors. v. S.L. Dutta and Anr., [1991) 1 SCC 505 and Zohrabi v. Arjuna
and Ors., [1980) 2 SCC 203, relied on.

5.2. The direcfrecruits did not have a vested right nor any right had
G accrued in their favour in the matter of getting a particular position in the
seniority list of Executive Engineers under the pre-amended Rules which
is said to have been taken away by the Act. Thus, there is no bar for the
Legislature to amend the law in consequence of which the inter se position
in rank of Executive Engineer might get altered. Consequently, there is no
H invalidity in the enactment of the Act. [563-F-H]
S.S. BOLA v. B.D. SARDANA 517

5.3. The nature of mandamus which had been issued by this Court A
in Sehgal and Chopra was merely a declaration of the principles of seniority
as per 1960 and 1961 Rules and the State Government was to draw up the
seniority list in accordance with the said Rules. The Legislature by enact·
ing the Act and giving it retrospective effect made several vital changes
both in the definition of 'service' as well as in the criteria of determining B
the inter se seniority between the direct recruits and promotees. The Act
has not taken away any accrued rights of the direct recruits. (554-F-H]

Madan Mohan Pathak and Anr. v. Union of India and Ors., (1998] 2
sec so, held inapplicable.
c
6.1. Though the Act is a valid piece of legislation but s. 25 thereof
cannot be sustained in toto sim:e a plain reading of the said provision does
not make out any meaning. The section repeals the previous Rules as well
as the Ordinance of 1995. It purports to indicate that the earlier Rules
would apply to persons who were members of the service before 1.11.1986 D
though a plain reading of the main part of the section does not convey that
meaning. (564-A; 565-A·B]

6.2. The contention that the Court should fill up the gap by applying
the principle of casus omissus and provide the word "except" in the first E
part of s. 25 after the words "to the extent", cannot be accepted. It is not
appropriate to apply the principle of casus omissus, inasmuch as the Act
itself having been given retrospective effect with effect from 1st November,
1966, the date on which the State of Haryana came into existence, there is
no rational to apply the pre-existing rules to those employees who were in F
the service before that date even after the pre-existing Rules are being
repealed by the Act. In this view of the matter, the expression "to the extent
that these rules shall continue to apply to the persons who were members
of the service before 1st day of November, 1966" ins. 25 of the Act is invalid
and is accordingly struck down. Remaining part of s. 25 as well as the
proviso to the said section will, however, remain operative. (565-C-G] G

7.1. The High Court fell in error to hold that the State Government
was not entitled to re-determine the cadre strength retrospectively every
year and such re-determination is invalid and inoperative. On the other
hand, since the cadre strength had not been determined regularly, though H
518 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.
A It was enjoined upon the State Government to do so, this had called upon
the State Government to re-determine the cadre strength and thereafter
.
determine the inter se seniority of the direct recruits and promotees in
terms of Rule 12 of the Recruitment Rules bearing in mind the law laid
down by this Court interpreting the different provisions of the Rules. The
B said conclusion of the High Court is, therefore, quashed. [570-A·C]

7.2. As regards the Irrigation Branch, Rule 2(12)(c) makes a
promotee officer, on probation or having successfully completed his
probation awaiting appointment to a cadre post, to be a member of the
service which was not the position in the Public Health Branch as well as
C in the Roads and Buildings Branch .. Then again under Rule 5(2) the •
percentage of promotees was required to be so regulated as not to exceed
75% of the numbers of posts in the service for the first 8 years from the
date of commencement of the Rules and thereafter it shall not exceed 50%
of ttie number of posts in the service excluding the posts of Assistant
D Executive Engineers. Proviso to the aforesaid rule also entitles the Govern·
ment to grant permission beyond 75% during the first 10 years of the
commencement of the rules and beyond 50% thereafter in case sufficient
number of direct recruit Assistant Executive Engineers are not available
and considered fit for promotion. Rule 12 which deals with the determina·
tion of inter se seniority is also somewhat different than the similar rule
E for the Public Health Branch and the Roads and Building Branch which
had been considered by this Court in the cases of Sehgal and Chopra.
[576-D; 577-A]
7.3. The Division Bench of the High Court was not justified in
disposing of the appeal relating to Irrigation Branch, relying upon the
F earlier decision of this Court in Sehgal's case. The High Court did not
focus its attention to the difference in the rules meant for the Irrigation
Branch and the Rules meant for the Public Health Branch and Roads and
Buildings Branch. The judgment passed by the Division Bench of the High
Court in L.P.A. Nos. 367 and 411 of 1992 is erroneous and is, therefore,
G set aside. [577·A·CJ

7.4. The Act, except a part of s. 25, having been declared intra vires
and given retrospective effect with effect from 1.11.1966, the inter se
seniority of direct recruits and promotees in each of the services, namely,
H the Buildings and Roads Branch, the Public Health Branch and the
S.S. BOLA v. B.D. SARDANA 519

Irrigation Branch will have to be re-drawn up in accordance with the A
provisions of the Act. The seniority lists already drawn up subsequent to
the judgments of this Court in the cases of Sehgal and Chopra as well as
during the pendency of these appeals in this Court are of no consequence
in view of the Act coming into force. [577-D-F]
B
, Per S. Saghir Ahmad, !. (Concurring) :

1.1. Under the scheme of the Constitution, it is competent for the
Legislature to put an end to the finality of a judicial decision and, there-
fore, it would be competent for the Legislature to render ineffective the
judgment of the court by changing the basis of the Ac.t upon which that C
judgment was founded. The power to make a law includes the power to give
it retrospective effect subject to the restriction imposed by Article 20(1) of
the Constitution that a Legislature cannot make retrospective penal laws.
It would be valid for the Legislature to make any other enactment with
retrospective effect provided no fundamental right is infringed by reason D
of its taking away the vested right. [578-G-H; 579-A]

Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality
& Ors., [1970] 1 SCR 388 = [1969] 2 SCC 283; In re: Cauvery Water
Disputes Tribunal, AIR (1992) SC 522 = [1993] Supp. 1 SCC 96 a11d E
Bhubaneshwar Singh v. Union of India, [1994] 6 SCC 77, relied on.

Madan Mohan Pathak v. Union of India & Ors., [1978] 3 SCR 334 =
[1978] 2 sec 50, referred to.

1.2. To declare what the law is or has been is a judicial power. To
F
declare what the law shall be is a legislative power. It would be within the
exclusive domain of judiciary to expound the law as it is and not to
speculate what it should be as it is the function of the Legislature. It is
also within the exclusive power of the judiciary to hold that a Statute
passed by the Legislature is ultra vires. The Legislature in that situation G
does not become a helpless creature as it continues to remain a living pillar
of a living Constitution. Though it cannot directly override the judicial
decision, it retains the plenary powers under Articles 245, 246 and 248 of
the Constitution to alter the law as settled or declared by judicial
decisions. [578-8-E] H
520 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A Mis. Anwar Khan Mahboob Co. v. State of Madhya Pradesh, (1966] 2
SCR 40, relied on.

Finn CJ. Patel & Co. & Ors. v. The State of Madhya Pradesh, AIR
(1953) SC 108, already overruled.

B 2.1. The Legislature can also validate an Act which was declared
invalid by the Court or amend it with retrospective effect so as to remove
the grounds of its invalidity. [578-F)

Rai Ramklishna & Ors. v. State of Bihar, [1964) 1 SCR 897 and Mt.
C Jadao Bahuji v. Municipal Committee, Khandwa & Anr., AIR (1961) SC
1486, relied on.

2.2. Where, however, the statutory provision is interpreted by the
Court in a particular manner and directions are issued for implementing
D the judgment in the light of the interpretation placed on the statutory
provisions, the Legislature need not pass a validating Act. In this situation,
the Legislature, in exercise of its plenary powers under Articles 245, 246
and 248, can make a new Act altering fundamentally the provisions which
were the basis of the judgment passed by the Court. This can be done with
E retrospective effect. So far as service conditions are concerned, they can
be altered with retrospective effect by making service rules under Article
309 or by an Act of the Legislature. [580-A-C]

2.3. In the instant cases, the judgments rendered by this Court in the
earlier decisions relating to the seniority of the present incumbents were
F founded on the service rules then existing. These service rules have since
been replaced by the Haryana Service of Engineers, Class I Public Works
Department (Buildings and Roads Branch) Respectively Act, 1995, which
has been enforced with retrospective effect. The rule of seniority has been
altogether altered and replaced by a new law made with retrospective effect
G so as to do away with the mischief under which an undue advantage was
being provided to a direct recruit, which was wholly inequitous and not
sustainable on the principles of equity. The Act is valid, except the expres-
sion in s. 25, i.e. "to the ext~nt that these rules shall continue to apply to
the persons who are members of the Service before 1st day of November
H 1966", which is invalid. [580-C-F]
S.S. BOLA v. B.D. SARDANA 521
Comorin Match Industlies (P) Ltd. v. State of Tamil Nadu, [1996) 4 A
SCC281; Indian Aluminium Company v. State of Kera/a, [1996) 7 SCC 637
and Meerut Development Authority & Ors. v. Satbir Singh & Ors., [1996) 11
sec 462, relied on.
3. The judgments of the Punjab & Haryana High Court are liable to
be set aside, with a direction to the State Government to re-determine the B
question of seniority in the light of this judgment and the Act. [580-G]

Per K Ramaswamy, J.

1.1. The Legislature of Haryana was competent under Article 309 or
Entry 41 of List II (State List) of the Seventh Schedule to the Constitution C
to enac4he Haryana Service of Engineers Class I Public Works Depart·
ment, (Buildings and Roads Branch), (Public Health Branch) and (Irriga·
tion Branch) Respectively Act, 1995. But, since the Act has with
retrospective effect, in substance and in effect, declared the law laid down
by this Court in the cases of Sehgal * and * Chopra as unenforceable by D
an indirect side track process of legislative fiat, it is unconstitutional.
[681-F-G; 682-A·B]

. A.N. Sehgal and Ors. v. Raje Ram Shesoran and Ors., [1992) Supp. 1
SCC 304; S.L. Chopra & Ors. v. State of Ha1yana and Ors., [1992) Supp. 1
sec 391, referred to. E
1.2. The Punjab Service of Engineers Class I Public Works Depart·
ment (Buildings and Roads Branch) Rules, 1960 and the Punjab Service
of Engineers Class I Public Works Department (Public Health Branch)
Rules, 1961, to the extent they are applicable to State of Haryana, !!OW
repealed, as interpreted by this Court in Sehgal and Chopra's cases, is the F
law under Article 141 of the Constitution. It binds not only inter-parties,
but also the other wings of the State, namely, the Legislature and the
Executive and all. The mandamus issued therein along with directions to
prepare the seniority list and its implementation operates inter-patties and
binds the State of Haryana. [681·D·E] G
1.3. The Legislature is not competent to declare with retrospective
effect that the law declared by this Court under Article 141 of the Con·
stitution in Sehgal and Chopra cases is illegal; nor is it empowered to make
the mandamus and directions issued therein as ineffective and unenforce·
able, except in certain given circumstances. (681-G-H] H
522 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.
A Madan Mohan Pathak & Anr. v. Union of India & Ors., AIR (1972)
SC 50; Janapada Sabha Chhindwara etc. v. The Central Provinces Syndicate
Ltd. & A11r. etc., [1970] 3 SCR 745; State of Tamil Nadu & Anr. v. M.
Rayappa Gounder & Ors., [1971] 3 SCC 1; Municipal Corporation of the
City of Ahmedabad etc. v. New Shorock Sug. & WVg. Co. Ltd. etc., [1971] 1
B SPG 288; /.N. Saksena v. The State of Madhya Pradesh, [1976] 3 SCR 237;
Ex. Capt. K. C. Arora & Anr. v. State of Haryana & Ors., [1984] 2 SCC 218;
State of Gujarat&Anr. v.Raman Lal Keshav Lal Soni & Ors., [1963] 2 SCC
33; State of Haryana & Ors. v. Kamal Co-operative Fonners' Society Ltd. &
Ors., [1993] 2 SCC 363; Cauvery Water Disputes Tribunal [1993] Supp. 1
SCC 96; S.R. Bhagwat & Ors. v. State of Mysore, [1995] 6 SCC 16; Delhi
C Cloth & General Mills Co. Ltd. & Anr. v. State of Rajasthan & Ors., [1996]
2 SCC 449; Peddinti Ve11kata Muraliranganatha Desika Iyengar & Ors. v.
State of A.P. & Anr., [1996] 3 SCC 75; K Sa11kara11 Nair (Dead) through
Lrs. v. Devaki Amma Malathy Amma & Ors., [1996] XI SCC 428, relied on.

2.1. Judicial review is the basic feature of the Constitution which has
D been entrusted to the constitutional Courts, namely, the Supreme Court
of India and High Courts under Article 32 and Articles 226 and 227
respectively. Judicial review passes upon constitutionality of legislative
Acts or administrative actions. The Courts either would enforce valid
Acts/actions or refuse to enforce them when found unconstitutional. It is
E the constitutional duty and responsibility of the constitutional Courts, as
assigned under the Constitution, to maintain the balance of power between
the Legislature, the Executive, and the Judiciary. In a Parliamentary
democracy, for the constitutional democracy to remain a living moral and
intellectual force, it would be enforced through judicial review z.s an arch
F of democracy and rule of law. [682-C-E]

,Special Refere11ce No. 1 of 1964 [1965] 1 SCR 413; Mi11e1va Mills v.
U11io11 of India, [1980] 3 SCC 625; L. Chandra Kumar v. U11ion of India,
[1997) 3 SCC 216; S.R. Bommai v. U11io11 of I11dia, [1994) 3 SCR 1 and
Kihoto Hollohan v. Zachillhu a11d Ors., [1992] Supp. 2 SCC 651, followed.
G
C. Ravicha11dran Iyer v. A.M. Bhattacharjee, [1995] 5 SCC 457 and
Kartar Si11gh v. State of Punjab, [1994] 3 SCC 569, referred to.

2.2. In adjudging the constitutionality of an Act or action, the Court
is required to carefully scan the impugned law to find out (a) whether the
H vice pointed out by the Court or the invalidity suffered by the previous law
S.S. BOLA v. B.D. SARDANA 523
is cured complying with the legal and constitutional requirement, (b) A
whether the legislature has competence to enact the law to validate the law,
and (c) whether such enactment of Act or validation is consistent with the
constitutional principles or within limitations set by the Constitutional or
fundamental rights enshrined in Part III of the Constitution. The Court
can take into account the real consequences while judging the width of the B
power; the Court cannot ignore the consequences flowing from particular
construction ascertaining the limits of the provisions that granted the
power. [683-C-F; 684-C-E]

-· 3.1. Separation of power among the Legislature, the Executive and
the Judiciary is also basic feature of the Constitution. [636-A] C
His Holiness Kesavananda Bharati Sripadagalavam v. State of Kerala,
[1973] Supp. SCC 11, followed.

3.2. The Legislature in enacting new law or amending the existing
law or revalidating the law has power to alter the language in the statute D
by employing the appropriate phraseology and to put up its own inter-
pretation inconsistent with that put up by the Court in au earlier judgment
on the basis of the pre- existing law and to suitably make new law, amend
the law or alter the law removing the base on which the previous decision
was founded. The changes or altered conditions have to be such that the
E
previous decision would not have been rendered by the Court had those
conditions existed at the time of declaration of the law in the previous
decision as invalid. It is also empowered to give effect to the Acts so
enacted or revalidated prospectively or retrospectively with a deemed date
or with effect from a particular date. But such an enactment must be
applicable prospectively and not to the cases which have become final and F
the rights having accrued to the parties for long under the judgment
cannot be taken away except in the cases of fiscal statutes or cases relating
to procedural facets of the Act. [684-A-C; F-G]

Indian Aluminium Ltd. v. State of Kera/a, [1996] 1 SCC 637; Prithvi G
Cotton Mills Ltd. v. Broach Borough Municipality & Ors., AIR (1970) SC
192; Sada musa Sugar Works & Ors. v. State of Bihar & Ors., [1996] 9 SCC
681; K Kannadasan v. State of Tamil Nadu, [1996] 5 SCC 670; Comorin
Match Indust1ies (P) Ltd. v. State of Tamil Nadu, [1996] 4 SCC 281; R.L.
· Arora v. State of Uttar Pradesh & Ors., [1964) 6 SCR 784 and Meerut
Development Auth01ity v. Satbir Singh, [1996] 11 SCC 464, relied on. H
524 SUPREMECCURTREPORTS [1997] SUPP.2S.C.R.

A M.M. Pathak v. Union of India, [1978] 3 SCR 334; Udai Ram Shanna
t..
& Ors. etc. v. Union of India, [1968] 3 SCR 41; Mis. Utkal Contractors &
Joinery (P) Ltd. v. State of Orissa, [1967] Supp. SCC 751; Vinay Mills Co. Ltd.
v. State of Gujarat, [1993] 1 SCC 345 and Bhubaneshwar Singh & Anr. v.
Union of India & Ors., [1994] 6 SCC 77, referred to.
B 3.3. The Legislature has no power to overrule the decision of a con-
stitutional Court by mere declaration without properly and constitutionally
removing the base upon which the previous decision was founded; nor has it
power to direct that the decision of the Court does not bind the State or its
instrumentalities. The legislative judgm'ent,. by a facade of compliance or
c removal of the base, cannot render the decision or a writ of mandamus
issued by the Court ineffective or invalid by a declaratory law that the pre-
vious decision of the Court is illegal or inequitous. Such a declaration is not
conclusive, but is subject to judicial review. The real test is the effect of the
legislation tested on the touch-stone of the Constitution and its direct result
on the declaration of law as interpreted earlier or the mandamus/direction
D issued by the Court in the previous litigation. The doctrine of incidental
power, cannot be extended to the exercise of the legislative power colourably
or by fraud on the Constitution. [684-H; 685-A-B; 686-A]

3.4. If the Legislature finds that the declaration of law by this
Court/High Court is not consistent with the public policy envisaged in the
E Act and the interpretation seems to defeat the public interest or public jus-
tice, certainly the Legislature would be entitled to formulate its legislative
policy consistent with the constitutional scheme and enact the law/amend
even the law declared by.this Court. [663-D-E]

F Indra Sawhney v. Union ofIndia, [1993] Supp. 3 SCC 217, relied on.

I. Venkata Reddy & Ors. v. State of Andhra Pradesh, [1965] 3 SCC 198
and V.M. Syed Mohammad & Co. v. The State ofAndhra Pradesh, [1954] SCR
1117, referred to.

G 4.1. The Statement of Objects and Reasons and the Preamble of an A'ct
opens the minds of the makers in enacting the law. It cannot altogether be
of
eschewed from consideration of the relevant provisions the Act, when its c:::
constitutionality is tested and objects of the Act sought to be achieved.
[687-C-D]

H 4.2. The Statement of Objects and Reasons while making reference
S.S. BOLA v. B.D. SARDANA 525
of decisions rendered by this Court in Sehgal and Chopra, indicates in A
unmistakable brazen terms that the reasons for the enactment was that
the declaration of law of this Court became unworkable and caused
hardship to senior officers as junior officers gained undue advantage
under the law declared by this Court. The object was to undo it and to
declare the law in unambiguous terms by enacting the Act. [632-C-D]
B
4.3. It is seen from the record, that apart from the Statement of
Objects and Reasons, specific stand was taken by the Government in the
counter-affidavit filed in the writ petition before the High Court; and the
Financial Commissioner in his order while determining the inter se
seniority, had expressed himself that the interpretation in Sehgal and C
Chopra's cases created inequitous situation favourable to direct recruits
creating heart-burning among the promotees. That would indicate that
brazen attempt was made by the Executive to mask their stand through
legislative intervention. The Legislature did not adopt a proper device in
enactment of the Act and there is no doubt that had it been brought to the D
notice of the Legislature that the impact of the Act would lead to conflict
between judicial review and legislative judgment, Legislature would not
have found it expedient or attempted to enact the law to deflate the
mandamus making it ineffective and rendered the correct declaration of
law as illegal. [662-C-F]
E
4.4. The principle of fraud on power is applicable when the Legislature
has power to enact but does not exercise that power as elucidated upon. On
the other hand, the doctrine of fraud on the Constitution means that when
the Legislature has no power and in spite of the constitutional limitation or
prohibition, it makes enactment in pretence of its power. [686-G-H; 687-A]
F
4.5. The present Act made with retrospective effect is a fraud on the
Constitution; a colourable exercise of power; transgression of and
trespassing into the power of judicial review expressly conferred in the
constitutional Courts, namely, Supreme Court of India under Article 32
and the High Courts, under Article 226i227 of the Constitution. [687-D-E] G

K.C. Ganpat Narayan Dea & Ors. v. The State of Orissa, [1954] SCR
1, referred to.

4.6. The contention that in s. 25 of the Act the word 'except' should be
supplied by employing the doctrine of casus omissus, cannot be accepted. The H
526 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A legislation did not intend to introduce exception in view of the fact that they
cannot directly overrule the decisions in Sehgal and Chopra. What they can·
not directly do, cannot indirectly be allowed to be done. The Court cannot
compound the camaflouge by supplying the so called omission deliberately
caused by the legislature. It is not an unintentional one. [650-C·G]

B Mis. Pyarchand Kesarimal Ponwal Bidi Factory v. Onkar Laxman
Thange & Ors., (1969] 2 SCR 272 and JNU v. Dr. KS. Jawatkar & Ors.,
[1989] Supp. 1 SCC 679, referred to.

Nomes v. Doncaster, (1940) 3 All. E.R. 549, referred to.

c 5.1. The object of inducting young blood by direct recruitment into the
service and experienced officers by promotion is constitutionally permis-
sible and valid to augment efficiency of service to inculcate discipline, hones·
ty, integrity and excellence in higher echelons of service. Similarly,
prescription of degree qualification (higher qualification to posts with
D higher responsibility) for promotion to the higher services is valid.
[687-F-G]
State of Jammu and Kashmir v. T.N. Khosa, AIR (1974) SC 1 and
Mohd. Sugat Ali v. State of Andhra Pradesh, [1976] SCR 482, followed.

5.2. The prescription of the ratio between direct recruits and
E
promotees is equally constitutionally permissible and the permissible
limits shall not be altered by executive action, unless the Executive has
power. It should give proper, valid and satisfactory explanation in writing
prior to exercise of the said power, for deviation from the quota rules and
that too as a short term arrangement to tide over administrative ex-
p pedience. (687-G-H; 688-A]

S.C. Jaisinghani v. Union of India & Ors., [1967] 2 SCR 703; Shri H.D.
Helms & Ors. v. Shri Mohan Chandra Joshi, AIR (1972) SC 2627; Bachan
Singh & Anr. v. Union of India & Ors., (1972] 3 SCC 898; V.B. Badami Etc.
G v. State of Mysore & Ors., (1976] 1 SCR 815 and Keshav Chandra Joshi &
Ors. v. Union of India & Ors., [1992] Supp. 1 272, relied on.

Narender Chandra & Ors. v. Union of India & Ors., (1986] 1 SCR 211;
Buleshwar Das v. State of U.P., [1981] 1 SCR 449; M.K. Chauhan v. State
of Gujarat, [1971] 1 SCR 1037 and Gonna/ Bhimappa v. State of Kamataka,
H [1993] Supp. 3 sec 449, referred to.
S.S. BOLA v. B.D. SARDANA 527
5.3. The Rules concerned are required to be interpreted as regards A
the operation and effect of the deviation from the quota rules and its effect
on the main principle of prescribing quota and integration of the promotee
officers into the service on strict compliance with the relevant provisions
of the Act/Rules. [688·A·B]

5.4. In an appropriate case, the quota may be relaxed temporarily B
with a view to meet the administrative exigencies by filling up the posts by
promotees. The promotion of the promotee officers to an ex-cadre post or
cadre posts would only be to meet the administrative expedience. That
would be done, so long as the direct recruit Assistant Executive Engineers,
who are members of the Service in junior scale of pay are not available for C
promotion as Executive Engineer and upwards in accordance with the
Rules. As soon as the direct recruits become available, the inter se seniority
between the direct recruits and the promotees as Executive Engineers or
upward shall be determined in accordance with the Rules/Act within the
respective quota. Any appointment in excess of quota is invalid and the D
service rendered thereunder becomes fortuitous. [688·B·E)

6.1. No one has a vested right to promotion or seniority. The
rule/provision in an Act merely affecting the chances of promotion would
not be regarded as varying the conditions of service. The chances of
promotion are not conditions of service. A rule which merely affects the E
chances of promotion does not amount to change in the conditions of
service. [689·B·E]

State of Maharashtra & Anr. v. Chandrakant Anant Kulkami & Ors.,
{1981] 4 SCC 1301; Vinod Gurndas Ralkar v.National Insurance Co. Ltd. &
Ors., [1991] 4 SCC 333; Zoharabi v. Arjuna & Ors., [1980] 2 SCC 203, F
inapplicable.

Ashok Kumar Gupta & Anr. v. State of U.P. & Ors., [1997] 5 SCALE
289, referred to.
.
KC. Ganpat Narayan Deo & Ors. v. The State of Onssa, [1954] SCR
G
1, cited.

6.2. An officer has an interest to seniority acquired by working out
the rules. The seniority would be taken away only by operation of valid law.
Right to be considered for promotion is a rule prescribed by conditions of H
528 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A service. Once a declaration of law, on the basis of existing rules is made
by a constitutional Court and a mandamus is issued or direction given for
its enforcement by preparing the seniority list, operation of the declaration .
of law and the mandamus and directions issued by the Court is the result
of the declaration of law but not the operation of the rules per se. [689-C-E]

B 6.3. Affecting the right of a person to be considered for promotion
amounts to affecting the conditions of service, though affecting mere
chance of promotion may not. The power to frame rules to regulate the
conditions of service under the proviso to Article 309 carries with it the
power to amend or alter the rules with retrospective effect. However the
C benefits acquired under the existing Rules cannot be taken away by an
amendment with retrospective effect, that is to say, that there is no power
to make such a rule under proviso to Article 309 which affects or impairs
·{
'
vested rights. [678-F-G]

B.S. Wadera v. Union of India, [1968) 3 SCR 575; Raj Kumar v. Union
D of India, [1975) 3 SCR 963; K. Nagaraj & Ors. v. State of Andhra Pradesh
& Anr., [1985) 1 SCC 523; T.R. Kapur & Ors. v. State of Haryana & Ors.,
[1986) Supp. SCC 584, referred to.

6.4. When an Act is made or an amendment to the law is made or
E revalidation of law is made by colourable exercise of power or fraud on the
Constitution, it does not affect the vested rights. The right accrued by the
declaration of law or the mandamus or directions issued by the Court
cannot be taken away by such law or a valid law by retrospective operation
since in the earlier litigation the Court did not declare any law as invalid
or unconstitutional. This Court merely declared the law and directed the
F State Government to implement the law. [689-E-G]

6.5. In the instant case, as a result of the mandamus issued by this
Court, which has become final, a judicially recognised right has been
vested in the direct recruits to have their seniority determined under the
G repealed Rules; the said right is still available even after the Act has comr
into force with retrospective effect since the retrospective effect has already,
been held unconstitutional and the repealed Rules are saved by operation
of Section 25 of the Act. As a consequence, they are entitled to have their
seniority determined accordingly. [678-G-H; 679-A]

H 6.6. Preparation of seniority list in accordance with the declaration
S.S. BOLA v. B.D. SARDANA 529

of law and the mandamus/direction issued is required to be complied with A
-· by the State Government unless it is properly revised or reversed by a
constitutional Court in hierachy of appeals etc. Once the judgment attains
finality, the directions given should be followed thereunder. The law is
required to be implemented in its true spirit and not by mere pretence or
facade of compliance. [689-G-H; 690-A]
B
6.7. The Act is unconstitutional to the extent of retrospective
operation of. the Act. The prospective operation does not have any effect
on the settled rights of the parties to these litigations since the repealed
Rules are saved under s. 25 of the Act and would continue to apply to them.
As ·a consequence, they are entitled to have their seniority determined C
accordingly. Even otherwise, the rights secured by declaratory law were not
affected. (690-A-B]

6.8. The prospective operation of the Act from the 4ate of its coming
into force namely, 30th November, 1995, would be worked out in the light
of the declaration of law in this judgment and be applicable to the other D
persons in the Service on and from that date or for the purpose of future
promotions under the Act to those officers who were not parties to the
litigation. [690-B-C]

7.1. A promotee becomes member.of the Service under the repealed E
Rules vis-a-vis Buildings ~nd Roads Branch or Public Health Branch only
when he is appointed substantively in accordance with Rule 8(9) of the
respective Rules including Irrigation Branch within the quota. The decla-
ration of law in Sehgdl and Chopra's cases ri:mains unaffected ~nder the Act
and continues to be ill force. Similarly, any appointment made and
weightage given to the promotees in excess of their quota, does not have any F
legal effect on the right to the seniority and the promotees within their
quota alone are entitled to count their entire length of service from the
respective dates of probation, without break. [691-A·B]

7.2. Even if relaxation by way of promotion in excess of the quota is G
temporarily made by the State Government, the State Government shall
record reasons in support ofits action. However, such temporary deviation
does not have any effect on the ratio prescribed under the Act/repealed Rules
except that the promotee officers from Class-II Service belonging to Irriga-
tion Branch are enabled to acc1uire the probationary status as Class-I
Officers on a cadre/ex-cadre post. The confirmation of the probation awaits H
530 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A the substative vacancy. Until then, the promotees from Irrigation
Branch do not become members of the Service in a substantive capacity.
The same position has been created under the Act uniformly to all officers.
·-
[690-D-E]
7.3. Seniority of a direct recruit appointed as Assistant Executive
B Engineer starts from the date on which he starts discharging duties of the
post as probationer be it in a substantive vacancy or on ex-cadre post. His
seniority remains unaltered. He continues to be a member of the Service of
junior scale of pay even before being appointed as Executive Engineer, i.e.,
in the senior scale of pay to a cadre/ex-cadre post after his promotion as
Executive Engineer on probation being declared, if the prescribed mini-
C mum period of service is completed or if the same is relaxed by the State
Government uniformly to the promotees and the direct recruits, as was held
in Chopra's case. Therefore, his seniority has to be determined and promo-
tion given within the quota of the direct recruits as Executive Engineer and
above in a substantive capacity. [691-C-E]
D S.C. Jaisinghani v. Union of India & Ors., [1967] 2 SCR 703, relied
on.

Bishan Sarnp Gupta Etc. Etc. v. Union of India & Ors., Etc. Etc.,
[1975] 1 SCR 104, referred to.
E 7,4. The Class II Officers became eligible for promotion as Executive
Engineers only after the Committee prepared the list of the eligible officers
in accordance with Rule 8 of the repealed Rules/Section 8, after approval
by the. Public Service Commission and the State Government. Class II
Officers whose names find place in the approved list shall be appointed by
F promotion as Executive Engineers and upwards as probationers in the
order in the list. Appointment on probation and declaration thereof does
not get ripened into appointment substantively to cadre post. Appointment
to a cadre post available within quota is a condition precedent to become
a member of the Service in a substantive capacity. The inter se seniority of
G the direct recruits and promotee Class II Executive Engineers then shall
be determined in accordance with the Rules. It requires to be worked out
on that basis. [691-E-F]

7.5. The Division Bench of the High Court, therefore, was not correct
to say that 10 posts of the promotees in Public Health Branch occupied
H from the date of initial constitution, is not challengeable and was not
S.S. BOLA v. B.D.SARDANA(PATIANAIK,J.] 531

challenged and, therefore, the contention that all the 10 posts would be A
occupied by the promotees in the cadre post, is fallacious and incorrect.
Only 50% of the promotees (75% for 8 years in Irrigation Branch) allotted
by the State of Punjab to the Haryana Service of Engineers, Class-I on and
with effect from 1st day of November, 1966, shall be retained within their
quota and balance five posts in Public Health Branch, shall be made over B
to the direct recruits. The preparation of seniority on that basis is perfectly
consistent with the mandamus issued by this Court. Equally the direction
issued by this Court with regard to the petitioner in Irrigation Branch and
the other direct recruits in Buildings and Roads, Public Health and
Irrigation Branches respectively would be applied on the same principles
as applied to other direct recruits. They should be carried out accordingly. C
The State Government would draw the seniority list afresh in the light of
the above law and the directions. The directions of the two Division
Benches of the High Court are confirmed with the modifications
hereinabove. [691-H; 692-A-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 422 of D
1993 Etc.

From the Judgment and Order dated 27.8.92 of the Punjab &
Haryana High Court in C.W.P. No. 9358 of 1989.
E
D.D. Thakur, K.T.S. Tulsi, Rajinder Sachhar, N.B. Shetye, Dr.
Rajeev Dhawan, Ms. Aparna Rohtagi, K.B. Rohtagi, N.N. Bhatt, Jasbir
Malik, Prem Malhotra, Jinandra Lal, (B.D. Sardana) (In- Person), Mahabir
Singh, S.C. Patel, Dhruv Mehta, S.K. Mehta, Fazlin Anam, S. Verma,
Adarsh Goel, Sudershan Ooel, P.N. Puri and P.K. Manohar, for the F
appearing parties.

The Judgments of the Court were delivered by

PATTANAIK, J. I have gone through the erudite judgment prepared
by Brother Ramaswamy, J. and having given an anxious consideration to G
the conclusion arrived .at I am in respectful disagreement with the same.
Taking into account the fact that Brother Ramaswamy, J. would be demit-
ing his office on 13th of July, 1997, and the short time I have at my disposal
I have not been able to be as elaborate as my brother but the two broad
features which have persuaded me to take a contrary view are that the H
532 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A implementation of the conclusions arrived at by Brother Ramaswamy, J.
would lead to a situation where a direct recruit like Mr. B.D. Sardana as
an Assistant Executive Engineer in the year 1977 would become senior to
the promotee like Sri S.S. Bhola who were promoted as Executive Engineer
way back in 1971 long before the entry of Mr. Sardana into the service.
B Further when the legislatures being aware of the aforesaid gross inequities
and anomalous situation have come forward with a legislation by enacting
an Act and giving it retrospective effect from the date the State of Haryana
came into existence the Court should try to sustain the Act unless the Act
is found to be repugnant to any of the constitutional provision. With the
C aforesaid background I have endeavoured broadly with the questions that
arose for consideration.

These appeals by Special Leave as well as the Transfer Cases relate
to the age old problem in almost all services i.e. determination of inter-se
seniority between the direct recruits and promotees within a cadre. These
D cases arise out of the earlier directions of this Court in two cases, namely,
A.N. Sehgal and Others v. Raje Ram Sheoran and Others, [1992) Supp. 1
Supreme Court Cases, 304 and S.L. Chopra and Others v. State of Haryana
and Others, [1992] Supp. 1 Supreme Court Cases 391 and the seniority list
drawn up by the Government of Haryana pursuant to the aforesaid direc-
E tion and the intervention by the legislators in enacting an Act called the
Haryana Service of Engineers, Class I, Public Works Department (Build-
ings and Roads Branch), (Public Health Branch) and (Irrigation Branch)
Act, 1995 (hereinafter referred to as 'the Act'). Civil Appeals nos. 422/93,
423/93 and 424/93, Writ Petition No. 582/95, and Transfer Case No. 44/96
F relate to Public Health Branch and the orders passed by the State Govern-
ment determining the inter se seniority in the said Branch. Out of these
three Civil Appeals one is by the State of Haryana and two others are by
the promotee affected officers belonging to the Public Health Branch and
they are aggrieved by the judgment of the Division Bench of the Punjab
and Haryana High Court in Letters Patent Appeal . Writ Petition No.
G 582/95 is by direct recruit B.D. Sardana under Article 32 of the Constitu-
tion challenging the validity of the Act and praying for direction to grant
him seniority just below the 10 officers who initially constituted the service
when the State of Haryana came into existence. Transfer Case No. 44/96
had also been filed by direct recruit in the Punjab and Haryana High Court
H challenging the validity of the Act which has been transferred pursuant to
S.S. BOLAv. B.D.SARDANA(PATIANAIK,J.] 533

the orders of this Court. Civil Appeal Nos. 1448-49/93 filed by the State A
and Civil Appeal Nos. 1452-53/93 filed by the promotee officers belonging
to the Irrigation Branch are directed against the judgment of the Division
Bench of· the Punjab and Haryana High Court in Letters Patent Appeal
which arose out of a Writ Petition filed by one M.L. Gupta who was
directly appointed as an Assistant Executive Engineer on 27.8.1971. Trans- B
. fer Case No. 40/96 is the Writ Petition filed by Shri Gupta challenging the
validity of the Act which stood transferred to this Court pursuant to the
orders of this Court. The brief facts leading to the enactment of the Act
may be stated as under:

The separate State of Haryana came into existence on 1.11.1966. C
When Punjab and Haryana was one State, the recruitment and conditions
of service of Engineers in the State was being regulated by Rules framed
by the Governor of Punjab in exercise of powers conferred by proviso
under Article 309 of the Constitution. The set of Rules dealing with the
Engineers of the Public Health Branch was called "The Punjab Service D
Engineers, Class-I, Public Works Department (Public Health Branch)
Rules 1961. A similar set of Rules had also been framed by the Governor
under Proviso to Artide 309 of the Constitution for the Engineers belong-
ing to the Roads and Buildings Branch called the Punjab Service of
Engineers, Class-I, Public Works Department (Roads and Buildings E
Branch) Rules, 1960. The provisions of these two rules are almost identical.
A third set of Rules also had been framed by the governor for Engineers
belonging to the Irrigation Branch, called ''The Punjab Service of En-
gineers, Class-I, Public Works Department (Irrigation Branch) Rules.
After the formation. of the State of Haryana the Government of Haryana
adopted all the aforesaid three rules to deal with the service conditions of F
the Engineers belonging to the three branches, namely, the Public Health
Branch, the Roads and Buildings Branch and the Irrigation Branch. The
dispute relating to the fixation of seniority of promotees and direct recruits
in the Roads and Buildings Branch came up for consideration before this
Court in the case of A.N. Sehgal and Others v. Raje Ram Sheoran and G
Others, [1992] Supp. 1 Supreme Court Cases 304, and this Court after
thorough analysis of different provisions of the Rules relating to the Roads
and Buildings Branch interpreted the Rules of seniority and directed the
Government of Haryana to determine the ·cadre post regularly from time
to time and to issue orders appointing substantively to the post within the H
534 SUPR;EME COURT REPORTS [1997) SUPP. 2 S.C.R.

A quota and determine the inter se seniority between the promotees and the
direct recruits in the respective quota cadre post of Executive Engineer.
The provisions of the Public Health Branch Rules came up for considera-
-
tion in the case of S.L. Chopra & Ors. v. State of Haryana and Ors., [1992]
Supp. 1 Supreme Court Cases 391, and the dispute in that case also was
B the determination of inter se seniority between the direct recruits and the
promotees. This Court also interpreted the relevant provisions of the Rules
for determination of intd se seniority in the Public Health Branch and
directed the State Government to determine the cadre strength in Haryana
Service of Engineers, Class I, PwD (Public Health Branch) Rules of the
C posts of Executive Engineer, Superh!lending Engineer and Chief Engineer
and consider the cases of the appellant in the said case as well as the
respondents for promotion to the senior posts of Executive Engineers,
- Superintending Engineers and Chief Engin~ers respectively with the
respective quota of 50 per cent and make appointment if found eligible and
D fit for promotion. It may be stated that the Rules relating to Irrigation
Branch which is slightly different from both the aforesaid Rules, namely,
the Public He~th Branch and Roads and Buildings Branch had never
cropped up for consideration. After the aforesaid two judgments of this
Court and pursuant to the directions issued, the State Government began
E the exercise of fixing the cadre strength during each year commencing from
1966 and also began determination of inter se seniority of the promotees
and direct recruits in the different posts within the service and also drew
up the seniority list of the employees. The first set of seniority list was
drawn up on 6.4.1992 and being aggrieved by the said seniority list, Writ
Petitions were filed and the Punjab and Haryana High Court having
F quash~d the same, Special Leave Petitions were filed in this Court. During
the pendency of the Special Leave Petitions in this Court and prior to the
hearing of the cases two other sets cif seniority lists had been drawn up,
one on 13.3.1997 and another on 19.3.1997 and strenuous arguments had
been advanced in support of and against the aforesaid lists drawn up by
G the Government. The main attack to the aforesaid list is that the earlier
directions issued by this Court in Sehgal's case (supra) as well as Chopra's
case (supra) have not been duly followed in drawing up the seniority list.
Subsequent to the judgment of the Punjab and Haryana High Court
striking down the seniority list prepared by the Government pursuant to
H the directions of this Court in Chopra's case (supra) the Haryana Legis-
S.S. BOLAv. B.D.SARDANA[PATTANAIK,J.] 535
lators enacted the Act to regulate the recruitment and conditions of service A··
of persons appointed in all the three branches and the validity of the said
Act had been challenged in the Writ Petitions filed in Punjab and Haryana
High Court. Those Writ Petitions have been transferred to this Court and
have been numbered as transfer cases. Elaborate arguments were advanced
by the counsel for parties challenging the validity of the aforesaid Act B
basically on the ground that it seeks to merely annul the judgment of this
Court in Sehgal's case (supra) and in Chopra's case (supra) which is not
permissible in law. It may be stated that if the Act is held to be valid then
necessarily the seniority list drawn up by the State Government pursuant
to the directions of this Court in Sehgal's case (supra and Chopra's case C
(supra) will not hold good and a fresh seniority list has to be drawn up as
the Act in question has been given retrospective effect with effect from the
date of the formation of the State of Haryana in November 1966. If the Act
is held to be ultra vires then also it has to be examined whether the seniority
list drawn up by the State Government is in accordance with the earlier
direction given by this Court in Sehgal's case (supra) and Chopra's case D
(supra) and if not what further directions are necessary? It is in this context
it must be borne in mind that in the earlier cases only the principles of
determination of inter se seniority between the direct recruits and the
promotees had been considered and adjudged but as to how the initial
allottees to the services would be considered there was no adjudication in E
as much as that question did not crop up for consideration.

So far as the the Public Health Branch is concerned, on the date of
the formation of the State of Haryana 14 persons were brought frollf the
erstwhile Punjab cadre of Engineers to constitute the initial cadre in the F
State of Haryana and since the cadre strength of the service in Haryana
was only 10, four of these persons were adjusted against l!X-cadre post.
While bringing persons from the erstwhile Punjab cadre to Haryana the .
relevant rules and the quota of direct recruits and promotees in the service
had not been borne in mind and officers were brought from the erstwhile
Punjab cadre depending upon the domicile of the employees. In other G
. words, those who belonged to the Haryana State were brought over to
; Haryana cadre and in regulating the cadre strength the ratio between direct
recruits and promotees as per Recruitment Rules then in force had not
been observed. In the aforesaid premises a question which would arise for
consideration and ultimate decision would be as to how these 10 officers H
536 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A who were brought over from the erstwhile Punjab State and constituted the
initial cadre strength of service in Haryana would be dealt with? This
question had not been dealt with either in Sehgal's case or in Chopra's case
referred to S1;1pra. At this stage it would be appropriate to notice as to what
was decided by this Court in Sehgal and Chopra. Sehgal deals with roads
B and building branch. In that case, one R.R. Sheoran·challenged Gradation
List and the seniority assigned to Sehgal and others by filing a writ petition
in Punjab and Haryana High Court. The Division Bench of the High Court
came to hold that Sheoran was a member of the service from the date of
his initial appointment as Assistant Executive Engineer whereas Sehgal and
C others who were promoted were not members of the service. This decision
was challenged by Sehgal, a promotee officer and it was agreed between
the parties that this Court would decide the principles on consideration of
the Rules and leave the matter for the State Government to determine the
inter se seniority by applying the law. This Court considered Rule 3(1), Rule
3(2), Rule 5(1)(a). Rules 6 and 7, Rule 11(1), Rule 12(3) and sub-rule (12)
D of Rule 2. This Court came to conclusion that a direct recruit would always
be recruited and appointed to a substantive vacancy and from the date he
starts dis~harging the duty attached to the post he is a member of the
service subject to his successfully completing the probation and declaration
thereof at a later date and his appointment relates back to the date of initial
E appointment, subject to his being discharged from service on failure to
complete the probation \vithin or extended period or termination of the
service according to rules. So far as a promotee is concerned it was held
that a promotee would have initial officiating promotion to a temporary
vacancy or substantive vacancy and on successful completion and declara-
F tion of the probation, unless reverted to lower post he awaits appointment
to a substantive vacancy. Only on appointment to a substantive vacancy he
becomes a member of the service. It was also held that a direct recruit
appointed to an ex-cadre post alone is a member of the service even while
on probation and Rule 2(12)(a) applies to them and it does not apply to a
G promotee from Class II service. This Court also held :

"on a conjoint reading of Rules (12(3) and 12(5) it is clear that the
year of allotment of the Assistant Executive Engineer in the post
of Executive Engineer, shall be the calendar year in which the
order of appointment as Assistant Executive Engineer had been
H made. Thus his seniority as Executive Engineer, by fiction of law,
S.S. BOLA v. B.D. SARDANA[PATIANAIK,J.] 537
would relate back to his date of initial appointment as Assistant A·
Executive Engineer and in juxtaposition to Class II officers'
seniority as Executive Engineer is unalterable".

Since Shri Sheoran was appointed as an Assistant Executive En-
gineer on August 30, 1971, it was directed that his seniority as Executive B
Engineer shall accordingly be reckoned. While interpreting Rule 5(2) and
proviso thereto it was held that the intendment appears to be that so long
as the direct recruit Assistant Executive Engineer, eligible and considered
~.
fit for promotion is not available, the promotee from Class II service in
excess of the quota is eligible to occupy in officiating capacity the senior
posts, i.e. Executive Engineers and above. The moment direct recruits are C
available, they alone are entitled to occupy 50 per cent of their quota posts
and the promotees shall give place to the direct recruits. On the question
what is the date from which the seniority of a promotee as Executive
Engineer shall be reckoned, the Court held that a promotee within quota
under rule 5(2) gets his seniority from the initial date of his promotion and D
the year of allotment, as contemplated in Rule 12(6) shall be the next below
'the juniormost officer in the service whether officiating or confirmed as
Executive Engineer before the former's appointment' counting the entire
officiating period towards seniority, unless there is break in the service or
" from the date of later promotion. Such promotee, by necessary implication
would normally become senior to the direct recruit promoted later. Com- E
bined operation of sub-rules (3) to (5) of Rule 12 makes the direct recruit
a member of the service of Executive Engineer from the date of year of
allotment as an Assistant Executive Engineer. The result is that the
promotee occupying the posts within 50 per cent quota of the direct
recruits, acquired no right to the post and should yield to direct recruit, F
though promoted later to him, to the senior scale posts i.e., Executive
Engineer, Superintending Engineer and Chief Engineer. The promotee has
right to confirmation in the cadre post as per Rule 11(4) if a post. is
available to him within his quota or at a later date under Rule 5(2) read
with Rule 11(4) and gets appointment under Section 8(11). His seniority G
would be reckoned only from the date of the availability of the post and
the year of allotment, he shall be next below to his immediate senior
promotee to that year or the juniormost of the previous year of allotment
whether officiating or permanent occupying the post within 50 per cent
quota. The officiating period of the promotee between the dates of initial
promotion and the date of the availability of the cadre post would thus be H
538 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A rendered fortuitous and stands excluded. A direct recruit on promotion
within the quota, though later to the promotee is interposed in between
the periods and interjects the promotee's seniority snaps the links in the
chain of continuity and steals a march over the approved promotee
P!Obationer. Harmonious construction of Rules 2(1), 2(3), 2(7); 2(10),
2(12), 2(12)(a), 5(2)(a), 8, 9(2), 11, 12(3), 12(5) to 12(7) would yield to the
B above result, lest the legislative animation would be defeated and the rules
would be rendered otiose and surplus. It would also adversely affect the
morale and efficiency of the service. Mere officiating appointment by
promotion to a cadre post outside the quota; continuous officiating therein
and declaration of probation would not clothe the promotee with any right
C to claim seniority ov::r the direct recruits. The necessary conclusion would,
therefore, be that the direct recruit shall get his seniority with effect from
the date of the year of the allotment as Assistant Executive Engineer which
is not alterable. Whereas the promotee would get his seniority w.e.f. the
date of the availability of the posts within 50 per cent quota of the
D promotees the year of allotment is variable and the seniority shall be
reckoned accordingly. Appointment to the cadre post substantively and
confirmation thereof shall be mad.e under Rule 8(11) read with Rule 11(4)
of the Rules. A promotee Executive Engineer would only then become
member of the service. 'Appointed substantively' within the meaning of
Rule 2(12)(a) shall be construed accordingly, We, further hold that the
E seniority of the promotee from Class II service as Executive Engineer shall be
determined with effect from the date on which the ca<lre post was available
to him and the seniority shall be determined accordingly. Ultimately this Court
directed the Government of Haryana to determine the cadre posts, if not
already done, regularly from time to time including the post created due to
F exigencies of service in terms of Rule 3(2) read with Appendix 'A' and allot
the posts in each year of allotment as contemplated under Rule 12 read with
Rule 5(2)(a) and issue order appointing substantively to the respective posts
within the quota and determine the inter se seniority between the appellants
therein who were promotees and Sheoran, direct recruits in the respective
quota cadre posts of Executive Engineer. The Court also held that the inter
G se seniority of the direct recruits and promotees shall be determined in
accordance with the principles laid down.

In S.L. Chopra's case, which deals with Public Health Branch, this
Court held that direct recruits get seniority from the date of appointment
H as Assistant Executive Engineer and it is unalterable. But the promotee's
S.S. BOLA v. B.D. SARDANA (PATIANAIK, J.] 539

. seniority is variable by operation of Rules 8(11) and 11(4); 2(12)(a) and A
5(2) of the Rules. The State Government was accordingly directed to
determine the cadre strength in the Haryana Service of Engineers, Class I
PWD (Public Health Branch) under the rules, Executive Engineers, Super-
intending Engineers and Chief Engineers and consider the cases of the
appellants therein as well as the contesting respondents B.D. Sardana, F.L. B
Kansai for promotion to the senior posts of Executive Engineers, Superin-
tending Engineers and Chief Engineers respectively with the respective
quota of 50 per cent and make appointment if found eligible and fit for
promotion. In the said case the appellant was a promotee and the respon-
dents were direct recruits.
c
The seniority list which was drawn up on 6.4.92 assumed that out of
ten incumbents who originally constituted the service in the Public Health
Branch five have to be treated as direct recruits fictionally under Rule 5(3)
and 5 as promotees so that the disparity in the ratio will not influence the
future promotion. The seniority list which was drawn up on 19.3.97 took D
the ten incumbents originally constituted service belonging to the quota of
promotees since factually all of them were promotees under the Punjab
Rules and then determined the inter se seniority of direct recruits and the
promotees by application of law laid down by this Court in Sehgal's case
(supra) Chopra's case (supra).·
E
In course of his submissions, Mr. Tulsi appearing for the State
demonstrated that the Seniority List which was drawn up on 19.3.1977
topsy turbid the position to such an extent that a direct recruit as Assistant
Executive Engineer who was not even born on the cadre when a promotee
had been appointed as the Executive Engineer, such direct recruit became p
senior to the promotee Executive Engineer. Such gross inequity which was
resulted on account of giving effect to the Rules in force and interpreted
by this Court in Sehgal and Chopra persuaded the legislature to intervene
by enacting the Act and giving it retrospective effect.

Let us now examine the validity of the Act, itself which was cha!- G
lenged by the direct recruits in filing Writ Petitions in the High Court of
Punjab and Haryana and those Writ Petitions stood transferred to this
Court. Mr. Sachar, the learned counsel appearing for the writ petitioners
direct recruits contended that the Act is nothing but an usurpation of
judicial power by the legislature to annul the judgments of this Court in H
540 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A Sehgal and Chopra and it merely declares the earlier judgments to be
invalid without anything more and as such is invalid and inoperative.
Further, the Act takes away the rights accrued in favour of the direct
recruits pursuant to the judgments of this Court in Sehgal and Chopra and
consequently the Act must be struck down. The learned counsel also urged
that the mandamus issued by this Court in Sehgal and Chopra has to be
B complied with and the State Legislature has no power to make the man-
damus ineffective by enacting an Act to override the judgment of this Court
which tantamounts to a direct in-road into the sphere occupied by judiciary
and consequently the Act has to be struck down. This argument of Mr.
Sachar was also supported by Mr. Mahabir Singh, the learned counsel
c appearing for the petitioners in T.P. (Civil) No. 46 of 1997 in his written
submissions and it was urged that in any view of the matter the legislatures
could not have given retrospective operation to the Act itself with refer-
ence to a situation that was in existence 25 years ago and such an act of
the legislature must be held to be invalid as was held by this Court in the
D case of State of Gujarat and Another v. Raman Lal Keshav Lal Soni and
Others, [1983) 2 S.C.C. 33. In elaborating the contention that the Act
merely purports to override the judgment of this Court in Sehgal and
Chopra the learned counsel referred to the Objects and Reasons of the
Act as well as the affidavit filed on behal{ of the State Government which
would unequivocally indicate that the Act was enacted to get over the
E judgments of this Court in Sehgal and Chopra.

Mr. K.T.S. Tulsi, the learned senior counsel for the State of Haryana
and Mr: D.D. Thakur and Dr. Rajeev Dhawan, learned senior counsel
appearing for the promotee respondents on the other hand contended that
the power of the State Legislature under Articles 245 and 246 of the
F
Constitution is wide enough to make law determining the service condi-
tions of the employees of the State and it is undisputed position of law that
the legislature can make law giving it retrospective effect. According to the
learned counsel the legislature having been aware of the inequities situa-
tion which have been the result of the Rules which were operating for
G determination of the inter se seniority between the direct recruits and the
promotees as interpreted by this Court in Sehgal and Chopra, intervened
in enacting the Act to remove the aforesaid inequities not by merely
declaring the interpretation given by this Court to the relevant provision
of the Rules in Sehgal and Chopra to be invalid but by making substantial
H alterations and changes to the basis itself and and as such the legislatures
S.S. BOLA v. B.D. SARDANA[PATIANAIK,J.] 541

cannot be said to have encroached upon the field of judiciary nor the A
legislation can be held to be an act of usurpation of judicial power 9Y the
legislatures. According to the learned counsel the basic changes made in
the Act are by altering the definition of service by addition of sub- clause
(c), by providing the quota of promotees could exceed beyond 50% as per
proviso to Section 5(2) and· by changing the very criteria for determination B
of seniority namely the continuous length of service as engrafted in Section
12(2) and these changes having been made and the legislative competence
not having been assailed, the Act must be held to be valid piece of
legislation. It was also contended by the learned counsel that in deciding
the constitutionality of the Act the Court can look into the Objects and
Reasons of the Act only when there is ambiguity in the substantive C
provisions of the Act itself, but where there is no ambiguity in the language
of the Act which-declares the intention of the legislature, the Court would
not be justified in looking to the Objects and Reasons for the enactment
or the affidavit filed by the State Government to hold that the legislatures
have usurped the judicial power and have enacted the Act merely to get D
over the judgments of this Court and mandamus issued by this Court in
Sehgal and Chopra. According to the learned counsel in enacting the Act
the legislature has taken into account the needs of the administration and
laid down the principles for determining the inter se seniority in consonance
with the accepted norms of service jurisprudence namely determination of E
seniority on the basis of length of continuous service in the cadre which
was also observed by this Court in the two earlier cases while interpreting
the Rules of 1961 which was operative in determination of inter se seniority
of the employees. The learned counsel further urged that no vested right
of any employee has been taken away by the Act inasmuch as to obtain a
particular position in the seniority list within a cadre is neither a vested F
right of an employee nor can be said to be fundamental right under Part-III
of the Constitution. Mr. Tulsi, learned counsel appearing for the State of
Haryana in this context said that by operation of the Act no employee
whether a direct recruit or a promotee would be reverted to any lower post
from the post to which promotion has already been made even if he is G
found to be junior to others in the rank of Executive Engineer and as such
the contention of Mr. Sachar and Mr. Mahabir Singh that it takes away a
vested right of the employees is incorrect in law. Lastly, it was contended
that the legislative competence having been conceded and the Act not
having been found to be contrary to any of the fundamental rights under H
542 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

~ A Part-II of the Constitution the only question that requires consideration is
whether it tantamounts to usurpation of judicial power by the legislature
and for the contentions already advanced the Act not being one merely
declaring a law laid down by this Court to be invalid, there has been no
usurpation of judicial power, and therefore, the same is a valid piece of
B legislation determining the service conditions of the employees in the State
of Haryana and this Court will not be justified in holding the Act to be
invalid. A large number of authorities were cited at the Bar in support of
their respective contentions which we will notice while .examining the
correctness of the rival submissions.

c At the outset it must be borne in mind that in the case of Sehgal
(supra) as well as Chopra (supra) this Court had not invalidated any
provisions of the recruitment rules but merely interpreted some provisions
of the rules for determining the inter se seniority between the direct recruits
and the promotees. The Act passed by the legislatures, therefore, is not a
D validation Act but merely an Act passed by the State Legislature giving it
retrospective effect from the date State of Haryana came into existence
and consequently from the date the service in question came into existence.
The power of the legislature under Article 246(3) of the Constitution to
make law for the State with respect to the matters enumerated in List II
E of the VIIth Schedule to the Constitution is wide enough to make law
determining the service conditions of the employees of the State. In the
case in hand there has been no challenge to the legislative competence of
the State legislature to enact the legislation in question and in our view
rightly, nor there has been any challenge on the ground of contravention
of Part III of the Constitution. Under the constitutional scheme the power
F of the legislature to make law is paramount subject to the field of legislation
as enumerated in the Entries in different Lists. The function of the
judiciary is to interpret the law and to adjudicate the rights of the parties
in accordance with law made by the legislature. When a particular Rule or
the Act is interpreted by a Court of law in a specified manner and the law
G making authority forms the opinion that such an interpretation would
adversely effect the rights of the parties and would be grossly inequitious
and accordingly a new set of Rule or Law is enacted, it is very often
challenged as in the present case on the ground that the legislatures have
usurped the judicial power. In such a case the Court has a delicate function
H to examine the new set of laws enacted by the legislatures and to find out
S.S. BOLA v. B.D. SARDANA(PATIANAIK,J.) 543

whether infact the legislatures have exercised the legislative power by A
merely declaring an earlier judicial decision to be invalid and ineffective
or the legislatures have altered and changed the character of the legislation
which ultimately may render the judicial decision ineffective. It cannot be
disputed that the legislatures can always render a judicial decision ineffec-
tive by enacting valid law on the topic within its legislative field fundamen- B
tally altering or changing its character retrospectively as was held by this
Court in the case of Indian Aluminium Company v. The State of Kera/a,
(1996] 7 Supreme Court Cases 637. What is really prohibited is that
. legislature cannot in exercise of its plenary power under Articles 245 and
246 of the Constitution merely declare a decision of a Court of Law to be C
invalid or to be inoperative in which case it would be held to be an exercise
of judicial power. Undoubtedly under the scheme of Constitution the
legislature do not possess the same. Bearing in mind the aforesaid prin-
ciples it is necessary to examine the legality of the Act in question. If we
do not examine the substantive provisions of the Act and merely go by the
object and reasons as given for the enactment of the Act as well as the D
counter affidavit filed on behalf of the State then the Act would be possibly
held to be an intrusion to the judicial sphere by the legislature. The
Statements of Objects and Reasons while introducing the Bill in Haryana
Vidhan Sabha is extracted hereinbelow in extenso :
E
"There were separate rules regulating service conditions and fixa-
tion of seniority in the Engineering Service in P.W.D. B. & R ..
Public Health and PWD Irrigation Branch. These rules although
different for the three branches were on identical lines with minor
variations. These rules have been interpreted in the Supreme Court F
in the case of A. N. Sehgal v. R.R. Sheoran and S.L. Chopra v. B.D.
Sardana. Subst:quently, the judgment has been interpreted further
in the case of A.N. Sehgal v. R.R. Sheoran by an order dated 31st
March, 1995 of the Supreme Court in a Contempt Petition filed
by Shri R.R. Sheoran. In the Public Health side, the seniority list G
prepared under the directions of the Supreme Court in S.L. Chopra
v. B.D. Sardana's case was challenged in the High Court which
struck down the list. Thereafter an appeal was filed by the State
in the Supreme Court against the order of the High Court in the
case of State v. B.D. Sardana. The appeal was admitted by the
Supreme Court and the operative portion of the judgment of the H
544 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A High Court was stayed. The matter is pending for final decision in
the Supreme Court, and meanwhile the seniority list prepared by
the State is being operated by Public Health Branch.

2. Meanwhile, consequent to the directions given by the Supreme
Court in the case of A.N. Sehgal v. R.R. Sheoran and orders of the
B Supreme Court dated 31st March, 1995 in the Contempt Petition
filed by R.R. Sheoran subsequently the seniority list had to be
redrawn in the case of B&R Branch, which was totally at variance
with the manner in which the seniority was drawn up in the case
of Public Health Branch. Thus, the directions of the Supreme
c Court in the case of B & R Branch had created a lot of administra-
tive problems with certain very junior officers getting undue
seniority and becoming senior to the officers under whom they
were previously working. This naturally resulted in severe groupism

D
and tension between officers of the department in their day to day
working.

3. In order to have uniform rules for all three branches of En-
(
gineering services and to clarify the position in an unambiguous
manner so as to have uniformity and clarity in interpretation, it
became necessary to make certain amendments with retrospective
E effect. This was possible only by enacting a legislation in this
regard. As the Haryana Vidhan Sabha was not in session, it was
decided to achieve the purpose through issue of an 'Ordinance on
13th May, 1995. The Ordinance replaced the existing rules for all
the three branches of the PWD and the common enactment was
to govern the service matters of Class-I service B & R Branch,
F Public Health Branch and Irrigation Branch".

The relevant portion of the affidavit of Shri S.N. Tanwar, Joint
Secretary to the Government of Haryana filed in the Punjab and Haryana
High Court indicating the grounds which impelled the legislature to enact
G the legislation in question may be extracted hereinunder :

"This interpretation by the Hon'ble Supreme Court has caused great
hardships to the promotees. In order to remove this hardship to the
promotees an Ordinance was issued on 13.5.1995 which has now become
an Act No.20 of 1995 after assent of the Governor of Haryana on
H 30.11.1995. If this Ordinance/Act is not issued the net result of the Order
S.S. BOLAv. B.D.SARDANA(PATIANAIK,J.] 545
of the Hon'ble Supreme Court would be that the directly recruited Assis- A
tant Executive Engineer would be considered to be Executive Engineer
from the date he was recruited as Assistant Executive Engineer. The
interpretation of the judgment of the Supreme Court creates such a situa-
tion that persons who were promotees and were working as Executive
Engineer years before even the Assistant Executive Engineers were B
recruited became junior to the latter when the latter was promoted as
Executive Engineer. This was somehow considered by the Government to
be very seriously hampering proper working of the department. Giving such
a seniority to a person recruited as Assistant Exef:utive Engineer have
effected adversely the effective working of the department because the
persons who are occupying the posts much higher to the Executive En- C
gineer and above could become junior to Assistant Executive Engineer who
is recruited even after the promotees have been discharging their duties on
these higher posts. If such a situation will continue to prevail the promotees
will not be able to work in that capacity when they would be considered
to be junior to the persons who were recruited to Class I service much later D
than their promotions. Moreover, the Government of Haryana always
considered that the Assistant Executive Engineers directly recruited would
deem to be having a seniority from the date when he is actually promoted
as Executive Engineer. Since the Supreme Court did not accept this
interpretation it became essential for the Government of Haryana inter alia
for the reasons mentioned above to issue this Act retrospectively." E

If these materials are alone considered then one may be persuaded
to accept the submission of Mr. Sachar, the learned senior counsel appear-
ing for the clirect recruits - Writ Petitioners, that the Act in question was
merely to declare the earlier decisions of this Court in Sehgal (supra) and F
in Chopra (supra) as invalid and as such is usurpation of the judicial power
by the legislature. But it is a cardinal rule of interpretation that Objects
and Reasons of a statute is to be looked into as an extrinsic aid to find out
legislative intent only when the meaning of the statute by its ordinary
language is obscure or ambiguous. But if the words used in a statute are
clear and unambiguous then the statute itself declares the intention of the G
legislature and in such a case it would not be permissible for a Court to
interpret the Statute by examining the Objects and Reasons of the Statute
in question.

In the case of Aswani Kumar Ghosh and Another v. Arabi1ida Bose H
546 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A and Another, SCR (1953] 1, Patanjali Sastri, J. speaking for the majority of
the Court, emphatically ruled out the Objects and Reasons appended to a
Bill as an aid to the construction of a Statute. It was observed :

"As regards the propriety of the reference to the Statement of
Objects and Reasons, it must be remembered that it seeks only to
B explain what reasons induced .the mover to introduce the Bill in
the House and what objects he sought to achieve. But those objects
and reasons may or may not correspond to the objective which the
majority of members had in view when they passed it into law. The
Bill may have undergone radical changes during its passage
·c through the House or Houses, an.d there is no guarantee that the
reasons which led to its introduction and the objects thereby sought
to be achieved have remained the same throughout till the Bill
emerges from the House as an Act of the Legislature, for they do
not form part of the Bill and are not voted upon by members. We,
therefore, consider that the Statement of Objects and Reasons
D appended to the Bill should be ruled out as an aid to the construc-
tion of the statute"

In the case of 171e Central Bank of India v. Their Workmen, S.C.R.
(1960] 200, S.K. Das, J., reiterated the principle:
E
"The Statement of Objects and Reasons is not admissible, however,
for construing the section far less can it control the actual words
used". \ ·
I

Sinha J., in the case of State of West Bengal v. Union of India, S.C.R.
F 1 (1964] 371, held :

"It is well settled that the Statement of Objects and Reasons
accompanying a Bill,, when introduced in Parliament cannot be
used to determine the true meaning and effect of the substantive
provisions of the Statute. They cannot be· used except for the
G limited purpose of understanding the background and the antece-
dent state of affairs leading up to the legislation".

In the case of Tata Engineering and Locomotive Co. Ltd. v. Gram
Panchayat, Pimpri Waghere, [1976] 4 SCC 177, this Court did not accept
H the recital in the Statement of Objects and Reasons that the amendment
S.S. BOLA v. B.D. SARDANA [PATIANAIK, J:J 547

was made for the reason that the Panchayats could not levy tax on buildings A
and held that the word 'houses' as originally used was comprehensive
enough to include all buildings including factory buildings and that the
amendment only made explicit what was implicit".

The general rule of interpretation is that the language employed is B
primarily the determining factor to find out the intention of the legislature.
Gajendragadker, J. as he then was in the case of Kanai Lal Sur v. Param-
nidhi Sadhukhan, S.C.R. [1958] 360 had observed that "the first and primary
rule of construction is that the intention of the legislature must be found
in the words used by the legislature itself'. In the case of Robert Wigram C
Crawford v. Richard Spooner, 4 MIA 179 (PC) p. 1987 Lord Brougham had
stated thus."If the legislature did intend that which it has not expressed
clearly; much more, if the legislature intended something very different; if
the legislature intended pretty nearly the opposite of what is said, it is not
for judges to invent something which they do not meet within the words of
the text''. Thus when the plain meaning uf the words used in a statute D
indicate a particular state of affairs the courts are not required to get
themselves busy with the "supposed intention" or with "the policy underly-
ing the statute" or to refer the objects and reasons which was accompanied
in the Bill while introducing the same on the floor of the legislation. It is
only when the plain meaning of the words used in the statute creates an E
ambiguity then it may be permissible to have the extrinsic aid of looking to
the Statement of Objects and Reasons for ascertaining the true intention
of the legislatures. In the aforesaid state of affairs to find out whether the
impugned Act is an usurpation of judicial power by the legislature it would
not be permissible to look to the Statement of Objects and Reasons which
accompanied the Bill while introducing the same on the floor of the F
legislation nor the affidavit filed by an officer of the Government would
control the true and correct meaning of the words of the statute. It would,
therefore, be necessary to examine the Act itself and the changes brought
about by the Act and the consequences thereof in relation to the decisions
of this Court in Sehgal and Chopra interpreting the Rules of seniority G
which were in force and which stood repealed by the Act itself.

The Preamble of the Act which is a key to the enactment clearly
indicates that it is an act for consolidation of rules relating to different
Branches. It reads, thus : H
548 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A "to regulate the recruitment and conditions of service of persons
appointed to the Haryana Service of Engineers, Class I, Public
Works Department (Building and Roads Branch), (Public Health
Branch) and (Irrigation Branch) respectively."

A comparative study of the provisions of the 1961 Rules framed by
B the Government in exercise of power under the proviso to Article 309 of
the Constitution and 1995 Act passed by the Haryana Legislature indicate
the following changes which have been brought about by the Act :

"(a) The definition of member of service in Rule 2(12) of 1961
c rules has been amended, Sub-clause (c) has been inserted in
Clause 12 of Section i of 1995 Act by which an officer awaiting
appointment to a cadre post has been made a member of service.

(b) A proviso has been added to Section 5(2) of 1995 Act which
expressly provides for exceeding the quota of 50% of officers
D promoted to the post of Executive Engineers in the event, adequate
number of Assistant Executive Engineers are not available.

© The Percentage of quota has been altered from 50% to 75% in
the case of Irrigation Branch by incorporating a second proviso to
Section 5(2) of the Act.
E
(d) The rule with regard to determination of seniority has been
completely changed from the one that existed in 1961 rules. While
under the 1961 rules, according to Rule 12, no member of service
could enjoy the benefit of service except in accordance with the
F quota prescribed under Rule 5, under Clause 2 of Section 12 of
the Act, length of continuous service for the post of executive
engineers, has been made the sole determining factor for the
fixation of seniority."

The aforesaid changes and alterations in the Act itself and giving its
G retrospective effect w.e.f. the date when the State of Haryana came into
existence and consequently the service of engineers came into existence,
rendered the earlier decision of this Court in Sehgal and Chopra ineffec-
tive. The provisions of the Act and the definition of "service" in Section
2{12){c), proviso to Section 5(2) and the criteria for promotion which was
H engrafted in Section 12(2) and making it retrospective w.e.f. 1.11.1966,
S.S. BOLA v. B.D.SARDANA(PATIANAIK,J.) 549

when interpreted lead to the only conclusion that this Court could not have A
rendered the decision in Sehgal and Chopra on the face of the aforesaid
provisions of the Act. It is, therefore, not a case of legislature by mere
declaration without anything more overriding a judicial decision but a case
of rendering a judicial decision ineffective by enacting a valid law within
the legislative field of the legislature. It would be appropriate to extract a B
passage from the judgment of this Court in Indian Aluminium _Co. and
Others v. State of Kera/a and Others, (1996) 7 S.C.C. 637, to which two of
us were parties (Ramaswamy, J. and Pattanaik, J.) :

"In a democracy governed by rule of law, the legislature exercises
the power under Article 245 and 246 and other companion articles C
read with the entries in the respective lists in the Seventh Schedule
to make the law which includes power to amend the law. Courts
in their concern and endeavour to preserve judicial power equally
must be guarded to maintain the delicate balance devised by the
Constitution. between the three sovereign functionaries. In order D
that rule of law permeates to fulfil constitutional objectives of
establishing an egalitarian social order, the respective sovereign
functionaries need free play in their joints so that the march of
social progress and order remains unimpeded. The smooth balance
built with delicacy must always be maintained. In its anxiety to
safeguard judicial power, it is unnecessary to be overzealous and E
conjure up incursion into the judicial preserve invalidating the valid
law competently made."

It would be appropriate now to examine the different citations made
at the Bar. Mr. Sachar, the learned senior counsel in support of his F
contention that the impugned judgment is essentially a usurpation of the
judicial power by the legislature relied upon the decisions of this Court in
B.S. Yadav and Others v. State of Haryana & Others and Pritpal Singh and
Others v. State of Punjab and Others, [1980) Supp. Supreme Court cases
524, State of Gujarat & Another Etc. v. Raman Lal Keshav Lal Soni and G
others Etc., [1983) 2 Supreme Court Cases 33, Ex. Capt. KC. Arora and
Another v. State of Haryana and Others, (1984) 3 Supreme Court cases 281,
T.R. Kapur and Others v. State of Haryana and Ors., [1986) Supp. Supreme
Court Cases 684. P.D. Aggarwal and Others v. State of U.P. and Others,
[1987) 3 Supreme Court Cases 622; Madan Mohan Pathak and Another Etc.
v. Union of India and Others, [1978) 2 Supreme Court Cases 50. In B.S. H
550 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A Yadav's case supra the question for consideration before this Court was
whether Governor could frame rule relating to conditions of service of
judicial officers, and if so, then whether such rule contravenes Article 235
of the Constitution? This Court held that a combined reading of Article
309 and Article 235 would lead to the conclusion that though the legislature·
or the Governor has the power to make Rules regulating the recruitment
B and the conditions of service of judicial officers of the State and thereby
regulate seniority of judicial officers by laying down rules of general
application, but that power cannot be exercised in a manner which will lead
to interference with the control vested in the High Court by the first part
of Article 235. In paragraph 76 of the judgment the Court examined the
C amended rule and the retrospectivity of the same and held that since the ·-
Governor exercises the legislative power under the proviso to Article 309
of the Constitution, it is open to him to give retrospective operation to the
rules made under that provision. But the date from which the rules are
made to operate must be shown to bear, either from the face of the rules
D or by extrinsic evidence, reasonable nexus with the provisions contained in
the rules, especially when the retrospective effect extends over a long
period and no nexus is shown in the present case on behalf of the State
Government. On the aforesaid reasonings the Court came to the conclusion
that the retrospective effect that was given to the rules is bad in law. In the
said case neither this Court examined the question of legislature invalidat-
E ing a decision of a competent Court of law nor the question whether there
has been any intrusion by the legislature into the judicial sphere. We fail
to understand how this case is of any assistance to the petitioners in the
Writ Petitions challenging the validity of the Act.

F In Ranum Lat's (case) (supra) the employees of the Panchayat
Services filed a Writ Petition in Gujarat High Court claiming that they are
entitled to the benefit of revision of scales of pay which were made on the
basis of the recommendation of the Pay Commission. The State of Gujarat
resisted those petitions on the ground that the members of the Panchayat
Service were not government semnts and, therefore, they are not entitled
G to claim the relief asked for. The High Court of Gujarat allowed the Writ
Petition on coming to the conclusion that the members of the Panchayat
Service belonging to the local cadre were government servants and directed
the State Government to make suitable orders under Gujarat Panchayat
Service (absorption, seniority, pay and allowance) Rules, 1965 and several
H other directions to fix the pay scales and allowance and other conditions
S.S. BOLA v. B.D.SARDANA(PATIANAIK,J.] • 551

of service of those employees in par with the State Government servants. A
The State had filed appeal against the said judgment in the Supreme Court
and during the pendency of the appeal an Ordinance was passed which
was later on replaced by the Act. The constitutional validity of the amend-
ing Act was challenged by filing the Writ Petition by the ex-Municipal
employees who were included in the local cadre. This Court came to the B
conclusion that the Panchayat Service constituted under Section 203 of the
Gujarat Panchayat's Act is a Civil Service of the State and the Members
of the service are government servants. The Court, however, examined the
validity of the Amending Act and came to the conclusion that before the
Amending Act was passed the employees who had been allocated to the
Panchayat Service had achieved the status of government servants under C
the provisions of the principal Act of 1961 and that status as government
servant cannot be extinguished so long as the posts are not abolished and
their services were not terminated in accordance with the provisions of
Article 311 of the Constitution. It is in this context it was observed :

"The legislation is pure and simple, self-deceptive, if we may use
D
such an expression with reference to a legislature- made law. The
legislature is undoubtedly competent to legislate with retrospective
effect to take away or impair any vested right acquired under
existing laws but since the laws are made under a written Constitu-
tion, and to have conformity to the dos and don'ts of the Constitu- E
tion, neither prospective nor retrospective laws can be made so as
to contravene fundamental rights. The law must satisfy the require-
ments of the Constitution today taking into account the accrued
or acquired rights of the parties today. The law cannot say, 20 years
ago the parties had no rights, therefore, the requirements of the F
Constitution will be satisfied if the law is dated back by 20 years,
We are concerned with today's rights and not yesterday's. A
legislature cannot legislate today with reference to a situation that
obtained 20 years ago and ignore the march of events and the
constitutional rights accrued in the course of the 20 years. That
would be most arbitrary, unreasonable and a negation of history." G

Thus the Amending Act was held to have offended the constitutional
provisions of Article 14 and Article 311 and, therefore, was struck down.

Thus in Raman Lal, the amending Act had the effect of depriving H
552 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A the ex-Municipal employees of their status of membership under the State
without any option to them which was considered to be unconstitutional.
In the case in hand the impugned Act and its retrospectivity merely alters
the seniority within a cadre and such an alteration neither contravenes any
constitutional provision nor it affects any right under Part - III of the
B Constitution. In this view of the matter the aforesaid decision is of no
assistance to the direct recruit petitioners who have assailed the legality of
the Act. In KC. Arora's case, (1984] 3 S.C.C. 281 the amended provisions
being given retrospective effect was found to have affected the accrued
fundamental rights of the parties. Following the earlier judgment of this
C Court in State of Gujarat v. Raman Lal Keshav Lal Soni, (1983] 2 SCC 33,
this Court held that the Government cannot take away the accrued rights
of the petitioners and the appellants, by making amendment to the rules
with retrospective effect. In the aforesaid case under the rules in force the
seniority had been determined by counting the period of military service.
D Under the amendment rules by giving it retrospective effect the aforesaid
benefit had been taken away. This Court, therefore, held that in view of
the rules in force and the assurances given by the Government the accrued
right of considering the military service towards seniority cannot be
retrospectively taken away. In the case in hand no such accrued rights of
the direct recruits are being taken away by the Act. On the other hand on
E account of gross inequitious situation the legislatures have enacted an Act
in consonanc.e with the normal service jurisprudence of determining the
seniority on the basis of continuous length of service in a cadre. The
aforesaid decision, therefore, cannot be said to be a decision in support of
the contention that legislature have usurped the judicial power nor is it a
F decision in support of the contention that by the impugned Act any
fundamental rights of the direct recruits have been infringed. In the case
of T.R. Kapur and Other v. State of Haryana and Others., (1986) supp. SCC
584, when the validity of Punjab Service of Engineers, Class I, PWD
(Irrigation Branch) Rules, 1964 as amended by State of Haryana by
G notification dated June 22, 1984 came up for consideration this Court
found that the said rule is violative of Section 82(6) of the Punjab Reor-
gani~ation Act, 1966, as the prior approval of the Central Government had
not been taken. On the question of power of the Governor to frame Rules
under proviso to Article 309 and to give it retrospective effect the Court
H held that though the rules can be amended retrospectively but any benefit
S.S.BOLAv. B.D.SARDANA[PATIANAIK,J.] 553

accrued under existing rule cannot be taken away. In other words a A
promotion which has already been held in accordance with the rules in
force cannot be nullified by the amended rules by fixing an additional
qualification for promotion. By the impugned Act the Haryana Legislatures
have not purported to nullify any promotion already made under the 1961
Rules which was in force prior to being repealed by the impugned Act. B
Even Mr. Tulsi, appearing for the State, submitted that no promotion
already made under the pre-amended rules will be altered in any manner
by giving effect to the provisions of the Act. In this view of the matter, the
aforesaid decision is also of no assistance to the direct recruits. In Madan
Mohan Pathak and Another v. Union of btdia and Others, (1978) 2 SCC 50, C
a seven Judge Bench of this Court considered the question of the power
of the legislature to annul a judgment of the Court giving effect to rights
of a party. There has been some observations in the aforesaid case w}\i.ch
may support the contention of Mr. Sachar inasmuch as this Court observed
that the rights which had passed into those embodied in a judgment and D
became the basis of a mandamus from the High Court could not be taken
away in an indirect fashion. The main plank of Mr. Sachar's argument is
that after the judgment of this Court in Sehgal and Chopra interpreting the
rules of seniority between the direct recruits and promotees, the direction
of this Court to re-draw the seniority list according to the principle laid E
down by this Court has been taken away by the enactment of the legislature
and thus there has been an in-road of the legislature into the judicial
sphere. But a deeper scrutiny of the decision of this Court in Pathak will
not sustain the arguments advanced by Mr. Sachar. In Pathak's case in
accordance with Regulation 58 a settlement had been arrived at for pay-
ment of bonus to Class III and Class IV employees on 24th of January, F
1974 and the said settlement had been approved by the Central Govern-
ment. Notwithstanding the settlement when the Life Insurance Corporation
did not pay bonus, the employees approached the Calcutta High Court.
The High Court, therefore, issued a writ of mandamus on 21st of May, 1976
calling upon the Life Insurance Corporation to pay the bonus in accord- G
ance with the settlement in question. Against the judgment of the learned
Single Judge a Letters Patent Appeal was preferred and while the said
appeal was pending the Life Insurance Corporation (Modification of Set-
tlement) Act, 1976 came into force on 29th of May, 1976 and Section 3
thereof purported to nullify the judgment of the Calcutta High Court by H
554 SUPREME COURT REPORTS [1997] SUPP.. 2 S.C.R.

A the non-obstante clause in relation to provisions of Industrial Disputes Act.
In other words the Calcutta High Court while issuing mandamus had held
the settlement has a binding effect once approved by the Central Govern-
ment and the same cannot be rescinded. But the impugned Act purported
to nullify the rights of the employees working under Class III and Class IV
B to get annual cash bonus in terms of such settlement. It is in this context
in the majority judgment of the Court delivered by Bhagwati, J ., it was
observed:

"that the judgment given by the Calcutta High Court is not merely
a declaratory judgment holding an impost or tax to be invalid so
c that a validation statute can remove the defect pointed out by the [
judgment amending the law with retrospective effect and validate
such impost or tax. It is a judgment giving effect to the right of
the petitioners to annual cash bonus under the settlement by
issuing a writ of mandamus directing the LIC to pay the amount
of such bonus. If by reason of retrospective alteration of the factual
D or legal situation, the judgment is rendered erroneous, the remedy
may be by way of appeal or review but so long as the judgment
stands, it cannot be disregarded or ignored and it must be obeyed
by the LIC. Therefore, in any event, irrespective of whether the
impugned Act is constitutionally valid or not, the LIC is bound to
E obey the writ of mandamus issued by the Calcutta High Court and
pay annual cash bonus for the year April 1, 1975 to March 31, 1976
to the Class III and Class IV employees".

In making the aforesaid observation the Court did not consider the
constitutionality of the Act but went by theory that the mandamus issued
F by the court calling upon a party to confer certain benefits to the adversary
unless annulled by way of appeal or review has to be obeyed. This principle
has no application to the c<ise in hand as the nature of mandamus which
has been issued by this Court in Sehgal and Chopra was merely a declara-
tion of the principles of seniority as per 1961 Rules and the State Govern-
G ment was to draw up the seniority list in accordance with the said Rules.
The legislature by enacting the Act and giving it retrospective effect made
several vital changes both on the definition of service as well as the criteria
for determining the inter se seniority between the direct recruits and
promotees. The impugned Act as has been stated earlier has not taken
away any accrued rights of the direct recruits, and therefore, the aforesaid
H observation in Pathak's case really will be of no assistance in deciding the
S.S. BOLAv. B.D.SARDANA[PATIANAIK,J.) 555
question as to whether the Act purports to have made an in-road into the A
judicial sphere. The majority judgment came to hold that the impugned
Act is violative of article 31 Clause (2) as the effect of the Act was to
transfer ownership debts due owing to Class III and Class IV employees
in respect of annual cash bonus to the Life Insurance Corporation and
there has been no provision for payment of any compensation for the
compulsory acquisition of these debts. It may be stated that the majority B
judgment did not consider the question as to whether the legislatures by
enacting the Act have usurped the judicial power and have merely declared
the judgment of a competent court of law to be invalid. Beg, C.J. in his
concurring judgment in paragraph 32 of the judgment, however, has ob-
served:
c
"that the real object of the act was to set aside the result of the
mandamus issued by the Calcutta High Court, though, it does not
mention as such, and therefore, the learned Judge held that Section
3 of the Act would be invalid for trenching upon the judicial
power." D

Three other learned Judges, namely; Y.V. Chandrachud, S. Murtaza
Fazal Ali and P.N. Shinghal, JJ. agreed with the conclusion of Bhagwati, J.
but preferred to rest their decision on the sole ground that the impugned
Act violates the provisions of Article 31(2) of the Constitution and in fact E
they considered it unnecessary to express any opinion on the effect of the
judgment of the Calcutta High Court in Writ Petition No. 371 of 1976. Thus
out of seven learned Judges, six learned Judges rested their decision on
the ground that the impugned Act violates Article 31(2) of the Constitution
and did not consider the enactment in question to be an act of usurpation F
of judicial power by the legislature. The observation of Beg, C.J., in
paragraph 32 does not appear to be in consonance with the several
authorities of this Court on the point to be discussed hereafter. Thus the
aforesaid decision cannot be pressed into service in support of Mr. Sachar's
contention. In the aforesaid premises the authorities cited by Mr. Sachar G
in fact do not support the contention urged by the learned senior counsel
and on the other hand a series of authorities of this Court to be discussed
hereafter are directly on the point unequivocally indicating that the power
of the legislature to enact law and giving it retrospective effect which may
.. factually render a decision of a competent court of law ineffective cannot
be whittled down. H
556 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A In /.N. Saxena v. The State of Madhya Pradesh, (1976) 3 SCR 237 a
contention had been raised with regard to the validity of an Act to the
effect that the Act has been passed to overrule a decision of this Court
which the legislature has no power to do. In that case the State of Madhya
Pradesh had raised age of compulsory retirement for government servants
B from 55 years to 58 years but th~ very Memorandum increasing the age of
superannuation also empowered the Government to retire a government
servant after the servant attains the age of 55 years. Thereafter Rules under
proviso to Article 309 of the Constitution were framed whereby the age of
superannuation was raised to 58 years and there was no provision in the
Rules empowering the government to retire a government servant after the
C age of 55 years. The employee concerned, however, was retired from
service on completion of 55 years and the said order on being challenged
the Supreme Court held that the appellant will be deemed to have con-
tinued in service inspite of the order till he attains the age of 58 years and
since the appellant had already attained the age of 58 years it is not possible
D to direct that he should be put in service. But he will be entitled to such
benefits as may accrue now to him by virtue of the success of the Writ
Petition. After the judgment of the Supreme Court an Ordinance was
promulgated which later on became an Act of the State of Madhya Pradesh
and the said Act validated the retirement of the government servants
including the appellant Saxena despite the judgment of the Court. The Act
E was given retrospective effect and it empowered a government to retire a
government servant on his attaining the age of 55 years and the Amending
Act was challenged on the ground that the legislature has usurped the
judicial power. This Court has negatived the said contention and held :

F ''The distinction between a "legislative" act and a ''.judicial" act is
well known, though in some specific instances the line which
separates one category from the other may not be easily discern-
ible. Adjudication of the rights of the parties according to law
enacted by the legislature is a judicial function. In the performance
of this function, the court interprets and gives effect to the intent
G and mandate of the legislature as embodied in the statute. On the
other hand, it is for the legislature to lay down the law, prescribing
norms of conduct which will govern parties and transactions and
to require the court to give effect to that law.

H While, in view of this distinction between legislative and judicial
S.S. BOLAv. B.D.SARDANA[PATIANAIK,J.] 557

functions, the legislature cannot be· a bare declaration, without more, A
directly over-rule, reverse or over-ride a judicial decision, it may, at any
time in exercise of the plenary powers conferred on it by Article 245 and
246 of thr- Constitution render a judicial decision ineffective by enacting or
changing with retrospective, curative or neutralising effect the conditions
on which such decision is based. As pointed out by Ray CJ. in Indira Nehru B
Gandhi v. Raj Narain, the rendering ineffective of judgments or orders of
competent courts and tribunals by changing their basis by legislative enact-
ment is a well-known pattern of all validating Acts. Such validating legis-
lation which removes the causes for ineffectiveness or invalidity of actions
or proceedings is not an encroachment on judicial power."
c
In the case of M/s. Utkal Contractors and Joinary (P) Ltd. and Others
v. State of Orissa, [1987) Supp. Supreme Court Cases 751, a similar conten-
tion had been raised but negatived by this Court. In that case the right to
collect, sale and purchase of sal seeds had been given to the petitioners
and during the subsistance of the contract Orissa legislature passed an Act D
called Orissa Forest Produce (Control of Trade) Act 1981. Under the
provisions of the said Act the State issued Notification on 9.12.1982 which
had the effect of rescinding the contract of the petitioner. That order was
challenged by filing a Writ Petition which, however, was dismissed by the
Orissa High Court. On an appeal this Court reversed the decision of the
Orissa High Court and held that the Act does not apply to sal seeds on E
government land. A declaration was made by this Court that the Act and
the Notification issued under the Act do not apply to the forest produce
grown in government forest and that it was, therefore, open to the Govern-
ment to treat the contract dated 29th May, 1987 as rescinded. The judg-
ment of this Court is reported in [1987] 3 SCC 279. Thereafter on 29th May p
1987 an Ordinance was promulgated, called the Orissa Forest Produce
(Control of Trade) (Amendment and Validation) Ordinance, 1987 and it
was given retrospedive effect as a result of which the earlier decision of
this Court became ineffective. The petitioner, therefore; challenged the
validity of the same on the ground that the legislature have encroached
upon the judicial power and set aside the binding judgment of this Court. G
Negativing the said contention this Court held :

"The legislature may, at any time, in exercise of the plenary power
conferred on it by Articles 245 and 246 of the Constitution render
a judicial decision ineffective by enacting valid law. There is no H
558 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A prohibition against retrospective legislation. The power of the
legislature to pass a law postulates the power to pass it prospec-
tively as well as retrospectively. That of course, is subject to the
legislative competence and subject to other constitutional limita-
tions. The rendering ineffective of judgments or orders of com-
petent courts by changing their basis by legislative enactment is a
B well known pattern of all validating acts. Such validating legislation
which removes the cause of ineffectiveness or invalidity of action
or proceedings cannot be considered as encroachment on judicial
power, The legislature, however, cannot by a bare declaration,
without more, directly overrule, reverse or set aside any judicial
c
I
decision."

This case is to a great extent in pari materia with the case in hand
where this Court had earlier interpreted the Rules determining the inter se
seniority between the direct recruits and promotees and thereafter the
Haryana legislatures have enacted the Act giving it retrospective effect as
D a result of which earlier decisions of this Court in Sehgal (supra) and
Chopra (supra) have become ineffective. In Bhubaneshwar Singh a11d
Another v. Union of llldia and Others, (1994] 6 SCC 77, a three Judge Bench
of this Court held :

E "it is well settled that the Parliament and State Legislatures have
plenary powers of legislation on the subjects within their field. They
can legislate on the said subjects prospectively as well as retrospec-
tively. If the intention of the legislature is clearly expressed that it
purports to introduce the legislation or to amend the existing
legislation retrospectively then subject to the legislative com-
F petence and the exercise being not in violation of any of the
provisions of the Constitution, such power cannot be questioned."

The Court also further held :

"that the exercise of rendering ineffective the judgments or orders
G of competent Courts by changing the very basis by legislation is a
well known device of validating legislation and such validating
legislation which removes the cause of the invalidity cannot be
considered to be an encroachment on judicial power."

H In rendering the aforesaid decision, this Court relied upon heavily on
S.S. BOLAv. B.D.SARDANA[PATIANAIK,J.] 559

the Constitution Bench decision of this Court in Shri P.C. Mills Ltd. v. A
Broach Borough Municipality, (1969) 2 SCC 283. The Court also relied upon
the decisions: of this Court in West Ramnad Electric Distribution Company
Ltd. v. State of Madras, (1963) 2 SCR 747, Udai Ram Shanna and Others
Etc. v. Union of India and Others, (1968) 3 SCR 41; Krishna Chandra
Gangopadhyaya and Others v. Union of India and Others, [1975) 2 SCC 302 B
and Hindustan Gum and Chemicals Ltd. v. State of Haryana and Others,
[1985) 4 SCC 124. In Comorin Match Industries (P) Ltd. v. State of Tamil
Nadu, [1996) 4 SCC 281, the same question again came up for considera-
tion. In this case an assessment order under the Central Sales Tax was set
aside on the basis of the decision of Madras High Court in the case of
Larsen and Tubro. In Larsen and Tubro certain provisions of the Act were C
declared ultra vires. In an appeal against the judgment of Madras High
Court the Supreme Court held that the provisions of the Central Sales Tax
Act which had been declared ultra vires by Madras High Court were validly
enacted. The Central Sales Tax Act was amended and the Amending Act
was given retrospective effect declaring all assessments made upto 9.1.1%9 D
valid and binding. This was challenged on the ground that it tantamounts
to over riding a decision of this Court by Legislatures. Rejecting the said
contention this Court held:

"this is not a case of passing a legislation trying to nullify the
interpretation of law given in the judgment of a court of law. This E
is case of changing the law itself on the basis of which the judgment
was pronounced holding that the assessment orders were er-
roneous in law."

In the case of Indian Aluminium (supra) to which two of us Brother F
Ramaswamy, J. and Pattanaik, J. were parties a similar contention had
been raised and after considering a large number of authorities of this
Court and explaining the decision in the case of Madan Mohan Pathak v.
Union of India, this Court negatived the contention and held that when the
legislatures enacting the Act has competence over the subject matter and G
when the said enactment is consistent with the provisions of Part III of the
Constitution and the earlier defects pointed out by the Court have been
removed by the legislatures then the enactment is a valid piece of legisla-
tion and cannot be struck down by the Court on the ground that it
' encroaches upon the judicial sphere. A relevant passage from th~ aforesaid
decision has already been quoted in the earlier part of the _judgment. •H
560 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A In Meernt Development Authority and Others Etc. v. Satbir Singh and
Others Etc., [1996] 11 SCC 462 on a similar contention being raised this
Court negatived the same and held :

"It is well settled that when the Supreme Court in exercise of power
of judicial £eview, has declared a particular statute to be invalid,
B
the legislature has no power to overrule the judgment; however, it
has· the power to suitably amend the law by use of appropriate
phraseology removing the defects pointed out by the court and by
amending the law consistent with the law declared by the Court
so that the defects which were pointed out were never on statute
c for effective enforcement of the law."

A similar view has been expressed by this Court in the case of State
of Orissa and Another v. Gopal Chandra Rath and Others, (1995] 6 SCC
242. In view of the aforesaid legal position when the impugned Act is
D examined the conclusion is irresistible that the said Act cannot be said to
be an Act of usurpation of the judicial power by the Haryana Legislature,
but on the other hand it is a valid piece of legislation enacted by the State
Legislature over which they had legislative competence under Entry 41 of
List II of the Vllth Schedule and by giving the enactment retrospective
effect the earlier judgments of this Court in Sehgal (supra) and Chopra
E (supra) have become ineffective. But since this does not tantamount to a .
mere declaration of invalidity of an earlier judgment and nor does it
amount to an encroachment by the legislature into the judicial sphere the
Court will not be justified in holding the same to be invalid. Needless to
mention that the impugned Act has neither been challenged on the ground
p of the lack of legislative competence nor has it been established to have
contravened any provisions of Part III of the Constitution. Consequently
Mr. Sachhar's contention has to be rejected and the Act has to be declared
intra vires. Necessarily, therefore the seniority list drawn up on different
dates in accordance with. the earlier Rules of 1961 will have to be annulled
and fresh seniority list has to be drawn up in accordance with the provisions
G of the Act since the Act has been given retrospective effect with effect from
1.11.1996. It may, however, be reiterated that any promotion already made
on the basis of the seniority list drawn up in accordance with the Recruit- ,..
ment Rules of 1961 will not be altered in any manner.·

H . An ancillary question which arises for consideration is whether on
S.S.BOLAv. B.D.SARDANA(PATIANAIK,J.) 561

account of the impugned Act any accrued or vested right of any of the A
~·
direct recruits to the service is being taken away? This consideration is
relevant inasmuch as though the legislature may be empowered to enact
law and give it retrospective effect but such law cannot take ·away any
accrued or vested rights of the employees. Under the 1961 Rules as
interpreted by this Court in the case of Sehgal and Chopra, a direct recruit B
gets the year of allotment as the year in which he is recruited as Assistant
Executive Engineer but so far as promotees are concerned they become
members of the service only after they are appointed substantively to a
cadre post and the quota of promotees can't exceed 50% of the total
number of posts in the service excluding the posts of Assistant Executive
Engineers to which direct recruitments are made. Inter se seniority between C
direct recruits and promo tees is regulated by Rules 12(6) and (7). As a
necessary consequence a direct recruit when promoted as Executive En-
gineer from the post of Assistant Executive Engineer was getting seniority
over the promotee Executive Engineers and this situation has been avoided
by the impugned Act by changing the definition of "service" in Rule 2(12) D
of the 1961 Rules, by providing the quota for promotees to exceed 50% in
certain contingencies like non-availability of direct recruits to man the post
of Executive Engineer and by changing the criteria for determination of
inter se seniority and in place of determination of year of allotment, by
providing length of continuous service to the post of Executive Engineer
to be the determining factor. Necessarily, therefore, by the impugned Act E
a direct recruit in the rank of Executive Engineer would come_ down in the
gradation list than what was assigned under the Rules of 1961. The ques-
tion, therefore is that, is the right of a government servant to get a
particular position in the gradation list a vested or accrued right? The
answer to this question has to be in the negative. As early as in 1962 this F
Court in the case of The High Court of Calcutta v. Amal Kumar Roy, [1963)
1 S.C.R. 437, in the Constitution Bench considered the question whether
losing some places in the seniority list amounted to reduction in
rank, and came to hold :

"In the context of Judicial Service of West Bengal, "reduction in
G
rank" would imply that a person who is already holding the post
of a Subordinate Judge has been reduced to the position of a
Munsif, the rank of a Subordinate Judge being higher than that of
a Munsif. But Subordinate Judges in the same cadre hold the same
rank, though they have to be listed in order of seniority in the Civil H
562 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A List. Therefore, losing some places in the seniority list does not
tantamount to reduction in rank. Hence, it must be held that the
\· provisions of Article 311(2) of the Constitution are not attracted
to this case."

To the said effect is the judgment of this Court in the case of The
B State of Punjab v. Kishan Das, [1971] 3 S.C.R. 389, wherein this Court
observed:

"an order forfeiting the past service which has earned a Govern-
ment l1_ervant increments in the post or rank he holds, howsoever
adverse it is to him, affecting his seniority within the rank to which
c he belongs or his future chances of promotion does not attract
Article 311(2) of the Constitution since it is not covered by the
expression reduction in rank".

Thus to ·have a particular position in the seniority list within a cadre
D can neither be said to be accrued or vested right of a Government servant
and losing sQOie places in the seniority list within the cadre does not
amount to reduction in rank even though the future chances of promotion
ge.ts delayed thereby. It was urged by Mr. Sachar and Mr. Mahabir Singh
appearing for the direct recruits that the effect of re-determination of the
E seniority in accordance with the provisions of the Act is not only the direct
recruits lose a few places of seniority in the rank of Executive Engineer
but their future chances of promotion are greatly jeopardised and that right
having been taken away the Act must be held to be invalid. It is difficult
to accept this contention since chances of promotion of Government
servant are not a condition of service. In the case of State of Maharashtra
F and Another v. ChandrakantAnant Kulkarni and Others, [1981] 4 S.C.C. 130
this Court held :

"Mere chances of promotion are no conditions of service and the
fact that there was reduction in the chances of promotion did not
tantamount to a change in the conditions of service. A right to be
G considered for promotion is a term of service, but mere chances
of promotion are not".

To the said effect a judgment of this Court in the case of K
Jagadeesan v. Union of India and Others, (1990] 2 S.C.C. 228, wherein this
H Court held :
S.S.BOLAv. B.D.SARDANA(PATIANAIK,J.) 563

"the only effect is that his chances of promotion or his right to be A
considered for promotion to the higher post is adversely affected.
This cannot be regarded as retrospective effect being given to the
amendment of the rules carried out by the impugned notification
and the challenge to the said notification on that ground must fail".

Again in the case of Union of India and Others v. S.L. Dutta and B
Another, (1991) 1 S.C.C. 505, this Court held :

"in our opinion, what was affected by the change of policy were
merely the chances of promotion of the Air Vice- Marshals in the
Navigation Stream. As far as the posts of Air Marshals open to C
the Air Vice-Marshals in the said stream were concerned, their
right or eligibility to be considered for promotion still remained
and hence, there was no change in their conditions of service."

In Zohrabi v. Aljuna and Others, (1980] 2 S.C.C. 203, this Court
observed that : D

"a mere right to take advantage of the provisions of an Act is not
an accrued right".

The aforesaid observation would equally app~y to the case in hand E
since the only argument advanced on behalf of the direct recruits was that
the advantage which they were receiving under the 1961 Rules to get their
seniority in the rank of Executive Engineer is being taken away by the
impugned Act. Since the said right is not an accrued right the legislatures
were well within their power to make the law.
F
In the aforesaid premises, it must be held that the direct recruits did
not have a vested right nor any right had accrued in their favour in the
matter of getting a particular position in the seniority list of Executive
Engineers under the pre-amended Rules which is said to have been taken
away by the Act since such a right is neither a vested right of an employee G
nor can it be said to be an accrued right. Thus, there is no bar for the
legislature to amend the law in consequence of which the inter se position
in rank of Executive Engineer might get altered. Consequently, we see no
invalidity in the enactment of the Haryana Service of Engineers, Class I,
Public Works Department (Building and ,Roads Branch) Public Health
Branch) and (Irrigation Branch) Respectively Act, 1995. Though the Act H
564 SUPREME COURT REPORTS [1997] SUPP. 2S.C.R.

A in question is a valid piece of legislation but it is difficult to sustain Section
25 of the Act in toto since a plain reading of the said. provision does not
make out any meaning. Section 25 of the Act is quoted herein below in
extenso:

"25. The Haryana Service of Engineers Class I, Public Works
B Department (Buildings and Roads Branch) (Public Health
Branch) and (Irrigation Branch) Respectively Ordinance, 1995
(Haryana Ordinance No. 6 of 1995), is hereby repealed. The
Punjab Service of Engineers, Class-I, Public Works Department
(Buildings and Roads Branch) Rules, 1960, the Punjab Service· of
c Engineers, Class I, Public Works Department (Public Health
Branch) Rules, 1961, the Punjab Service of Engineers Class I,
Public Works Department (Irrigation Branch) Rules, 1964, in their
application to the State of Haryana, are also hereby repealed to
the extent that these rules shall continue to apply to the persoµs
who were members of the service before 1st day of November,
D 1966;

Provided that such repeal shall not affect -

(a) any penalty or punishment imposed as a result of disciplinary
proceedings;
E
(b) any disciplinary action or proceedings initiated or pending ·
under the rules so repealed;

(c) any relaxation in qualifications granted to any member of the
service under the rules so repealed;
F
(d) the benefits accrued to the persons who have retired from
service during a period commencing from the 1st day of November,
1966 and ending with the date1 of promulgation of the Haryana
Service of Engineers, Class I, Public Works Department (Buildings
and Roads Branch) (Public Health Branch) and (Irrigation
G
Branch) respectively Ordinance, 1995;

and the Punjab Service of Engineers, Class I, Public Works Depart-·
ment (Building and Roads Branch) Rules, 1960, the Punjab Service
of Engineers, Class I, Public Works Department (Punjab Health
H Branch) Rules, 1961 and the Punjab Service of Engineers, Class I,
S.S. BOLA v. B.D.SARDANA[PATIANAIK, J.] 565

Public Works Department (Irrigation Branch) Rules, 1964, shall A
continue to be in force as if the same had not been repealed."

The aforesaid provision repeals the previous Rules framed under _
proviso to Article 309 of the Constitution as well as repealed the Ordinance
of 1995. It also saves the action taken in respect of matters enumerated in B
Clause (a) to (d). It further purports to indicate that the earlier Rules
would apply to the persons who were members of the service before 1st
day of November 1996 though on a plain reading of the main part of
Section 25 really does not convey the aforesaid meaning. The learned
counsel appearing for the State of Haryana could not indicate as to what
is the true meaning of Section 25. Dr. Rajeev Dhawan, learned senior C
counsel, however, in course of his arguments contended that though on a
plain gramatical meaning being given to Section 25 is not susceptible of
representing the intention of the legislature and infact it conveys absolutely
no m(!_aning but the Court should fill up the gap by applying the principle
of casus omissus and provide the word "except" in the first part of Section D
25 after the word "to the extent and. such filling up being done the
provisions of Section 25 would convey the true intention of the legislature.
On principles Mr. Dhawan, learned senior counsel may be right in his
submission that Courts can apply the principle of casus omissus and fill the
gap by adding certain words when the St1tute does not convey the correct E
meaning. But in the case in hand we do not think it appropriate to apply
that principle, inasmuch as the Act itself h~ving been given retrospective
effect with effect from 1st November, 1966 the date on which the State of
Haryana came into existence there is no rationale to apply the pre-existing
rules to those employees who were members of the service before that date
even after the pre-existing rule is being repealed by the Act. In this view F
of the matter we hold that the expression 'to the extent that these rules
shall continue to apply to the persons who were members of the Service
before 1st day of November, 1966 is invalid and is accordingly struck down.
Remaining part of Section 25 as well as the proviso to the said Section will,
however, remain operative. G

.Though in view of our conclusion that the Act is intra vims, the inter
se seniority of the concerned officers are required to be re-determined in
accordance with the Act itself, subject however, to the restrictions that
. promotions already made will not be annulled but since the judgment of H
566 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A the Punjab and Haryana High Court in favour of the direct recruit B.D.
Sardana was rendered by interpreting the Recruitment Rules of 1961 and
relying upon the earlier decisions of this Court in Sehgal and Chopra
(supra) it would be appropriate for us to also deal with the said judgments
-
since an appeal has been carried to this Court by the promotees in Civil
B Appeal No. 422 of 1993. After the judgment of this Court in Sehgal (supra}
and Chopra (supra) when the State Government drew up the seniority list
in the rank of Executive Engineers on 6.4.1992 Shri Sardana who had been
appointed directly as an Assistant Executive Engineer on 7.12.1977 chal-
lenged the said seniority list claiming therein that initially 10 officers having
C formed the cadre when Haryana became a separate State and all of them
being promotees and as such the quota of promotees was in excess of the
50% which is the permissible quota under the Recruitment Rules, he
-
should be given the position just after 10 persons who constituted the initial
cadre irrespective of the fact that he was recruited on 7.12.1977. The
D further contention before the High Court was that the State Government
was not entitled to re-determine the cadre strength each year after the
judgment of this Court in Sehgal (supra) and Chopra (supra). The High
Court by the impugned judgment appears to have been persuaded to
accept both these contentions and the promotees, therefore, have assailed
the legality of the same. Mr. D.D. Thakur, learned senior counsel appear-
E ing for these promotees as well as Dr. Rajeev Dhawan, learned senior
counsel appearing for some of the promotees urged that the High Court
was in error to hold that the State Government was not entitled to re-deter-
mine the cadre strength each year retrospectively subsequent to the judg-
ment of this Court in Sehgal (supra) and Chopra (supra). It was contended
F that 10 persons who constituted the initial cadre when the State of Haryana
was formed and all those 10 persons having been allocated to Haryana
from the erstwhile State of Punjab on the basis of their domicile it would
be reasonable to construe and apply the Recruitment Rules which was in
force in Punjab and which had been adopted by Haryana by fictionally
G holding the recruitment of 10 persons to be the initial recruitment to the
cadre and by fictionally holding that the Recruitment Rules which was
adopted by Haryana was in fact came into existence so far as the State of
Haryana is concerned on 1.11.1966. According to the learned wunsel
unless such a construction is given the position will be very anomalous and
H direct recruits like Shri Sardana will be senior to promotees who had been
S.S.BOLAv. B.D.SARDANA(PATIANAIK,J.) 567

promoted even in the year 1968 or 1969 even though Sardana was recruited A
as an Assistant Executive Engineer only on 7.12.1977. According to the
learned counsel the rule in question cannot be construed in such a manner
to bring about gross inequities and, therefore, a reasonable construction
should be made. Mr. Sachhar, learned senior counsel and Mr. Mahabir
Singh, learned counsel appearing for the direct recruits and Mr. Sardana, B
appearing in person, on the other hand, submitted that it was not necessary
for the State Government to redetermine the cadre strength every year
retrospectively since the judgment of this Court in Sehgal (supra) and
Chopra (supra) merely authorises the Government to determine the cadre
strength if it has not already been done. According to the learned counsel C
such re- determination of cadre strength every year has been mala fidely
done by increasing the strength of the cadre so as to accommodate the
promotees within 50% quota available for them under the Recruitment
Rules and, therefore, such re- determination must be struck down and the
High Court has rightly struck down the same. It was also contended on
their behalf that the initial cadre having been constituted on 1.11.1966 and
the entire cadre being filled up by application of the provisions of the
Recruitment Rules, 5 of them were beyond the permissible limit of 50%
quota in the service. Consequently until the cadre strength is so maintained
so as to bring down the ratio of 50% so far as the promotees are concerned
any direct recruit may during the intervening period must be held to be E
senior to such promotees and, therefore, the High Court was fully justified
in holding that Mr. Sardana should rank below 10 persons who constituted
the initial cadre irrespective of the hardship that may be caused to the
promotees. According to the learned counsel while interpreting a par-
ticular rule the Court is not required to look into the hardship which the F
interpretation may cause so long as the rules are unambiguous.

It was ultimately contended that the High Court has rightly struck
down the seniority list that has been drawn up on 6.4.1992 as well as the
determination of cadre strength made by the State Government and,
further the list that was drawn up on 15.4.1997, while the appeals were G
pending in this Court is the correct gradation list reflecting the inter se
seniority of the direct·recruits and promotees correctly in accordance with
the interpretation of the rules given by this Court in the case of Sehgal
* (supra) and Chopra (supra). The rival submissions require a careful ex-
amination of the relevant provisions of Rule of 1961 as well as in the light H
568 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

. A of the earlier decisions of this Court in Sehgal (supra) and Chopra (supra).
Before examining the same it may be stated that the Division Bench of the .
Punjab and Haryana High Court in the impugned judgment came to the
conclusion that the State Government was not entitled to re- determine the
cadre strength retrospectively and by such action of the State Government
B by increasing the cadre strength promotees have been given undue ad-
vantage and direct recruits like B.D. Sardana have lost their vested right
and, therefore, such an order cannot be sustained in law. The High Court
also further came to the conclusion that on carving of State of Haryana
when the initial cadre was fixed at 10 and 10 persons brought over from
erstwhile state of Punjab the Recruitment Rules 1961 must be made
C applicable to them and consequently the quota of promotees cannot exceed
50%. In this view of the ~atter since all the 10 persons who constituted
the cadre in 1966 were promotees and thus far beyond the permissible
quota of 50%, the first direct recruit in the cadre Shri Sardana must be
given 11th position in the seniority list and he would be senior to all those
D promotees who were promoted affer the initial formation of the cadre
irrespective of their date of promotion as an Executive Engineer and
irrespective of the date on which Mr. Sardana was appointed directly as
an Assistant Executive Engineer on 7.12.1977. As has been stated earlier,
this Court in A.N. Sehgal's case (supra) on considering the recruitment
E rules decided the principles for determination of inter se seniority between
the direct recruits and the promotees and left the matter for the Stat~
Government to re-determine the same by applying the law as declared by
this Court. While interpreting the provisions of the Rules the Court came
to hold that a promotee within quota under Rule 5(2) gets his seniority
F from the initial date of his promotion and the year of allotment, as
contemplated in Rule 12(6) shall be the next below 'the juniormost officer
in ,the service whether officiating or confirmed as Executive Engineer
before the former's appointment' counting the entire officiating period
towards seniority, unless there is break in the service or from the date of
later promotion. Such promotee, by necessary implication, would normally
G become senior to the direct recruit promoted later. Combined operation
of sub-rules (3) to (5) of Rule 12 makes the direct recruit a member of the
service of Executive Engineer from the date of year of allotment as an
Assistant Executive Engineer. The Court further held that necessary con-
clusion would, therefore, be that the direct recruits shall get seniority with
H effect from the date of the year of the allotment as Assistant Executive
S.S. BOLAv. B.D. SARDANA[PATIANAIK,J.] 569

Engineer which is not alterable. Whereas the promotee would get his A
seniority with effect from the date of the availability of the posts within
50% quota of the promotees and the year of allotment is variable and the
seniority shall be reckoned accordingly. In concluding paragraph of the
judgment the Court directed the Government of Haryana to determine the
cadre posts regularly from time to time including the post created due to B
exigencies of service in terms of Rule 3(2) read with Appendix 'A' and allot
the posts in each year of allotment as contemplated under Rule 12 read
with Rule 5(2)(a) and issue orders appointing substantively to the respec-
tive posts within the quota and determine the inter se seniority between the
promotees and direct recruits in the respective quota cadre posts of C
Executive Engineers etc. In Sehgal (supra) the Court was dealing with the
service of Engineers Class I PWD (Roads and Building) Branch. Similarly
in Chopra (supra) the Court dealt with the service of Engineers (Public
Health Branch), the rules of Public Health Branch being the same as the
rules in Roads and Building Branch. In concluding paragraph of the said
judgment though an affidavit had been filed by one of the appellants that D
the State Government has determined the cadre strength but this Court
declined to go into the question and left it open to the Governm~nt to
determine the seniority after giving opportunity to all parties in the light of
the law laid down in the case. In Chopra's case (supra) in paragraph 10 of
the judgment this Court had observed that under Rule 3(2) read with E
Appendix 'A' the State Government is enjoined to determine the cadre
post from time to time and during the first 5 years on first day of January
every year and later from time to time and divide the posts as per the ratio
of the available cadre posts to the promotees and the direct recruits and
shall make appointment in a substantive capacity. F
In course of argument Mr. K.T.S. Tuls~ learned senior counsel
appearing for the State of Haryana had pointed out that the State Govern-
ment had taken steps for making direct recruitment to the cadre but as no
competent people were available, per force the cadre was to be managed
by filling up the posts by promotees and it was done in the public interest. G
The learned coiJnsel had urged that there is no justification in the argu-
ments advanced by the counsel for direct recruits that the promotees were
in fact given undue favour. We are, however, really not concerned with this
submission while interpreting the relevant provisions of the Rules and the
Rules having been framed under the proviso to Article 309 of the Constitu- H
570 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A tion the same has to be scrupulously followed. But at the outset on going
through the two earlier decisions of this Court in Sehgal (supra) and
Chopra (supra) there should be no hesitation to come to the conclusion
that the High Court was in error to hold that the State Government was
not entitled to re-determine the cadre strength retrospectively every year
B and such re-determination is invalid and inoperative. On the other hand
since the cadre strength had not been determined regularly though it was
enjoined upon the State Government to do so this Court had called upon
the State Government to re-determine the cadre strength and thereafter
determine the inter se seniority of the direct recruits and promotees in
terms of Rule 12 of Recruitment Rules bearing in mind the law laid down
C by this Court interpreting the different provisions of the Rules. The said
conclusion of the High Court, therefore, must be quashed.

Now coming to the question as to how the initial appointees to the
service are to be dealt with since in the two earlier cases this Court had
D never considered this question, the question assumes a greater significance.

The Rules framed under the proviso to Article 309 of the Constitu-
tion came into force w.e.f. the June, 1961, the date on which the Rule was
published in the Official Gazette Under sub- rule (1) of Rule 3, it is
stipulated that the service shall comprise of such number of posts of ti.::
E Assistant Executive Engineers, Executive Engineers, Superintending En-
gineers and Chief Engineers as may be specified by Government from tine
to time. Under sub-rule (2) of Rule 3 the strength of the service for the
first five years after the commencement of these rules shall be determined
each year on the 1st day of January or soon thereafter as may be prac-
F ticable according to the provisions of Appendix A and the strength so
determined shall remain in force till it is revised. Sub-rule (2) of Rule 5
stipulates that the recruitment to the service shall be so regulated that the
number of posts filled up by promotion from Class II Service shall not
exceed fifty per cent of the number of posts in the Service, excluding the
posts of Assistant Executive Engineers. Proviso to sub-rule (2) provides
G that till adequate number of Assistant Executive Engineers eligible and
considered fit for promotion are not available the actual percentage of
officer promoted from Class II service may be larger than 50%. Sub-rule
(3) of Rule 5 speaks of a fictional situation namely in the service as
constituted immediately after the commencement of these rules, it shall be
H assumed that the number of persons recruited by promotion from Class II
'
S.S. BOLAv. B.D.SARDANA[PATTANAIK,J.) 571

• Service shall be 50% of the senior posts in the service and future recruit- A
ment shall be based on this assumption. Sub-rules (1) and (2) of Rule 3
and sub-rules (2) and (3) of Rule 5 of 1961 Rules may be extracted
hereinbelow in extenso :

"3. Strength of Seivice : (1) The. Service shall comprise of such
number of posts of Assistant Executive Engineers, Executive En- B
gineers, Superintending Engineers and Chief Engineers as may be
specified by Government from time to time.

(2) Without prejudice to the generality of the provisions of sub-rule
(1) the strength of the Service for the first five years after the C
commencement of these rules shall be determined each year on
the 1st day of January or as soon thereafter as may be practicable
according to the provisions of Appendix A The strength so deter-
mined shall remain in force till it is revised.
D
5. Recrnitment to seivice : (2) Recruitment to the service shall be
so regulated that the number of posts filled by promotion from
Class II Service shall not exceed fifty per cent of the number of
posts in the Service, excluding the posts of Assistant Executive
Engineers;
E
Provided that till such time as an adequate number of Assistant
Executive Engineers, who are eligible and considered fit for
promotion, are available, the actual percentage of Officers
promoted from Class II Service may be larger than fifty per
cent. F

(3) In the service as constituted immediately after the commence-
ment of these rules, it shall be assumed that the number of
recruited by promotion from Class II Service is fifty per cent of
the senior posts in the Service and further recruitment shall be G
based on this assumption."

From a combined reading of the aforesaid provisions the following
situation emerges :

(a) That the Rules came into force w.e.f. 9th of June, 1961 but the H
572 SUPREMECOURTREPORTS [1997]SUPP.2S.C.R.

A service existed even prior to the said date;
(b) On constitution of the service immediately after the commence-
ment of the Rules by operation of a fiction it was assumed that number of
persons recruited by promotion from Class II service is 50% of the senior
B post in the service, This fictional situation emerges in view of sub-rule (3)
of Rule 5, so that, the future recruitment to the service can be regulated
appropriately under sub-rule (2) of Rule 5; and

(c) A duty was enjoined upon the State Government to determine
the strength of the service each year on the 1st day of January or soon
C thereafter as may be practicable for the first five years after the commen-
cement of the Rules and the strength thus determined year to year would
remain in force till it is revised.

When recruitments were being made without determination of the
D cadre strength and statutory rules came into force for the first time on 9th
of June, 1961 the Rules cast a duty on the Government to determine the
cadre strength each year and thereafter make recruitment in terms of Rule
5 regulating the manner of filling up the post in the service subject to the
provisions contained in sub-rule (2) of Rule 5. Rule 12 is rule for deter-
. E mination of seniority. This Rule has already been interpreted by this Court
in Sehgal and Chopra indicating the manner in which the seniority has to
be determined inter se between the promotees and direct recruits. When
State of Haryana came into existence and persons were serving in the
erstwhile State of Punjab were drafted into State of Haryana and con-
F stituted the initial cadre strength of the service in the State of Haryana and
the Government of Haryana adopted the Punjab Rules of 1961 for deter-
mining the service conditions of the employees it would be reasonable to
hold that so far as the State of Haryana is conderned the Recruitment
Rules came into force on 1.11.1966 and since the persons who constituted
the service came from erstwhile State of Punjab depending upon their
G domicile it would be further reasonable to construe that they constituted
the service soon after the rules were adopted by the State of Haryana and
thereafter Rule 5(3) should be attracted in respect of those 10 officers who
constituted the service and by such application, by a fiction 50% should be
treated to be promotees and on so treating them further recruitment to the v

H service was required to be regulated in accordance with sub-rule (2) of
S.S. BOLAv. B.D.SARDANA[PATIANAIK,J.] 573

Rule 5 and it is then the inter se seniority has to be determined under Rule A
12. In other words, out of 10 persons who were brought over from the
erstwhile State of Punjab and constituted the service in the State of
Haryana 5 will be assumed to have been recruited by promotion from Class
II service by application of sub-rule (2) of Rule 5 even if factually all the
10 were promotees while they were recruited under the Punjab Rules. B
Since· the initial cadre strength was only 10 of the total number of posts in
the services, the Recruitment Rules by fiction held 50% of the persons
constituted the service immediately after the commencement of the Rules
to be promotees. Thereafter the State Government was duty bound to
determine the cadre strength every year in the first five years as per
sub-rule (2) of Rule 3 and in fact this direction had been given in the
c
earlier judgments in the case of Sehgal and Chopra and after such
determination of the cadre strength if in a particular year it is found that
the promotees have usurped the quota of direct recruit then such promotee
cannot be held to be senior to the direct recruit notwithstanding their
earlier recruitment to the service. If these principles are borne in mind D
then the gradation list which had been prepared by the State Government
on 6.4.1992 was possibly the correct gradation list and the High Court was
in error to quash the said gradation list on a conclusion that the earlier
direction of this Court in Sehgal and Chopra has not been followed.
Obviously, the High Court misunderstood the directions of this Court in E
the case Sehgal and Chopra. We are, however, not going to examine the
said gradation list that was prepared on 6.4.1992 or any other gradation
list which had been prepared subsequently during the pendency of these
appeals, since in our view the Act having been come into force and the
Act have been given retrospective effect the seniority has to be drawn up F
afresh in accordance with the provisions of the Act.

So far as the rules dealing with Irrigation Branch is concerned, the
said rules namely Punjab Service of Engineers (Irrigation Branch) Class I
Service Rules, 1964 has not been considered earlier by this Court at any
point of time. One Shri M.L. Gupta was appointed to the post of Assistant G
Executive Engineer as a direct recruit on 27.8.1971, pursuant to the result
of a competitive examination held by the Haryana Public Service Commis-
sion in December, 1970 said Shri Gupta was promoted to the post of ~
Executive Engineer on 17.9.1976. He made presentation to the State
Government to fix up his seniority in accordance with the service rules but H

•
574 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A as the said representation was not disposed of for more than three years
he approached the High Court of Punjab and Haryana by filing C.W.P. No.
4335 of 1984. That petition was disposed of by the High Court on the
undertaking given by the State that the seniority will be fixed up soon. The
said undertaking not having been complied with, said Shri Gupta ap-
B preached the High Court in January 1986 by filing Contempt Petition. In
September, 1986 the State Government fixed the inter se seniority of said
Shri Gupta and other members of the service and Gupta was shown at
serial no. 72. Two promotees had been shown at serial nos. 74 and 75.
Those two promotees filed a writ petition challenging the fixation of inter
se seniority between the direct recruits and promotees and High Court of
C Punjab and Haryana by its judgment passed in May 1987 quashed the order
dated 29.9.1986 whereunder the seniority of the direct recruits and
promotees has been fixed and called upon the State Government to pass
a speaking order assigning position in the gradation list. The State Govern-
ment issued a fresh notification on 24.7.1987 giving detailed reasons re-af-
D firming the earlier seniority which had been notified on 29.9.1986. Prior to
the aforesaid notification of the State Government Shri Gupta had filed a
writ petition in the Punjab and Haryana High Court which had been
registered as CWP No. 6012 of 1986 claiming his seniority at No. 22 instead
of 72 which had been given to him under the notification dated 29.9.1986.
E The promotees also filed a writ petition challenging the Government order
dated 24.7.1987 which was registered as CWP No. 5780 of 1987. Both the
writ petitions, one filed by the direct recruit - Shri Gupta (CWP No. 6012
of 1986) and the other filed by the promotees (CWP No. 5780 of 1987)
were disposed of by the learned Single Judge by judgments dated 24th
F January, 1992 and 4th March, 1992 respectively, whereunder the learned
Single Judge accepted the stand of the promotees and Shri Gupta was
placed below one Shri OP Gagneja. Said Shri Gupta filed two appeals to
the Division Bench against the judgment of the learned Single Judge, which
was registered as Letters Patent Appeal Nos. 367 and 411 of 1992. The
aforesaid Letters Patent Appeals were allowed by judgment dated 27th
G August, 1992. This judgment of the Division Bench of Punjab and Haryana
High Court was challenged by the State of Haryana in the Supreme Court
which has been registered as C.A. Nos. 1448-49 of 1993. This Court granted -·
leave and stayed the operation of the judgment in the matter of fixation of
seniority. The promotees also challenged the said judgment of the Division
H Bench in this Court which has been registered as CA Nos. 1452-1453 of _
S.S. BOLA v. B.D. SARDANA(PATIANAIK,J.] 575
1993. during the pendency of these appeals in this Court, an Ordinance A
was promulgated on 13.5.1985 as Ordinance No. 6 of 1995 and the said
Ordinance was replaced by the impugned Act of 20 of 1995 by the Haryana
Legislature. The validity of the Act was challenged by said Shri Gupta and
pursuance to the order of this Court the said writ petition having been
transferred to this Court has been registered as T.C. No. 40 of 1996. So far B
as the validity of the Act is concerned, the question of any usurpation of
judicial power ,by the legislature does not arise in relation to Irrigation
Branch inasmuth as the Recruitment Rules of 1964 framed by the Gover-
nor of Punjab in exercise of power under proviso to Article 309 of the
Constitution which has been adapted by the State of Haryana on and from
the date Haryana was made separate State had not been considered by this C
Court nor any direction has been issued by this Court. The legislative
competence of the State legislature to enact the Act had also not been
assailed and in our view rightly since the State legislature have the powers
under Entry 41 of List - II of the Seventh Schedule to frame law governing
the conditions of service of the employees of the State Government. That D
apart Article 309 itself stipulates that the appropriate Legislature may
regulate the recruitment, and conditions of service of persons appointed,
to public services and posts in connection with the affairs of the Union or
of any State subject to the provisions of the Constitution. Proviso to Article
309 confers power on the President in connection with the affairs of the E
Union and on the Governor in connection with the affairs of the State to
make rules regulating the recruitment, and the conditions of service until
provision in that behalf is made by or under an Act of the appropriate
· Legislature under Article 309 main part. In this view of the matter, the
legislative competence of the State Legislature to enact the legislation in
question is beyond doubt. The only question which, therefore, arises for F
consideration and which is contended in assailing the validity of the Act is
that under the Act the direct recruits would lose several positions in the
gradation list and thereby their as;crued and vested rights would get jeop-
ardised and their future chances, of promotion also would be seriously
hampe;red and such violation tantamounts violation of rights under Part - G
III of the Constitution. For the reasons already given while dealing with
the aforesaid contention in connection with the Public Health Branch and
the Roads and Building Branch the contention raised in the Transfer Case
cannot be sustained and, therefore, the Transfer Case would stand dis-
missed. The Act in question dealing with tl1e service con<l.iticm. of the H
576 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A engineers belonging to the Irrigation Branch must be held to be a valid
piece of legislation passed by the competent legislature and by giving it
retrospective effect no constitutional provision has been violated nor any
right of the employee under Part - III of the Constitution has been
infringed requiring interference by this Court.

B So far as the four appeals are concerned, one at the instance of the
State and other at the instance of the promotee engineer, even though it
is not necessary to examine those appeals since the inter se seniority of the
members of the service will:have to be re-drawn up in accordance with the
provisions of Act, yet arguments having been advanced by the learned
C advocates appearing for the parties, we may briefly deal with the same.
The Division Bench of the Punjab and Haryana High Court in disposing
of the Letters Patent Appeal in favour of the direct recruit has come to
the conclusion that the interpretation given by the Supreme Court to the
Recruitment Rules dealing with the Public Health Branch and the Roads
D and Building Branch in Sehgal and Chopra would equally apply to the
Irrigation Branch. In coming to the aforesaid conclusion the learned
Judges of the High Court nave failed to appreciate the difference between
the rules dealing with the irrigation Branch and the two set of rules dealing
with the Public Health Branch and the Roads and Building Branch. So far
E as the rules dealing with the Irrigation Branch is concerned, Rule 2(12)(c)
makes a promotee officer on probation or having successfully completed
his probation awaiting appointment to a cadre post to be a member of the
service which was not the position in the Public Health Branch as well as
in the Roads and Building Branch. Then again under Rule 5(2) the
percentage or promotees was required to be so regulated so as not to
F exceed 75% of the number of posts in the service for the first 10 years from
the date of the commencement of the Rules and thereafter it shall not
exceed 50% of the number of posts in the service excluding the posts of
Assistant Executive Engineer. Proviso to the aforesaid rule also entitles the
Government to grant permission beyond 75% during the first 10 years of
G the commencement of the rules and beyond 50% thereafter in case suffi-
cient number of direct recruits - Assistant Executive Engineers are not
available and considered fit for promotion. Rule 12 which deals with the
determination of inter se seniority is also somewhat different than the
similar rule for the Public Health Branch and the Roads and Building
H Branch which had been considered by this Court in the cases of Sehgal and
S.S. BOLA v. B.D. SARDANA[PATIANAIK,J.] 577

Chopra. In this view of the matter, the Division Bench of the Punjab and A
Haryana High Cou.rt was not justified in disposing ?f the appeal relying
upon the earlier decisions of this Court in A.N. Sehgal's case. The learned
Judges have not focussed their attention to the difference in the rules
meant for the Irrigation Branch and the Rult<s meant for the Public Health
Branch and Roads and Building Branch. The impugned judgment, there- B
fore, passed by the Division Bench of the Punjab and Haryana High Court
is erroneous and cannot be sustained. 6ut as has been stated earlier it is
not necessary to delve into the question in a more detailed manner since
the Act having come into force and the Act being made effective retrospec-
tively w.e.f. 1.11.1966, the date on which the State of Haryana was formed, C
the inter se seniority has to be determined in accordance with the
provisions of the Act. Consequently, the judgment of the Punjab and
Haryana High Court in LPA Nos. 367 and 411of1992 is set aside and the
State of Haryana is directed to re-determine the inter se seniority of the
members of the service belonging to the Irrigation Branch in accordance
with the provisions of the Act. Civil Appeal Nos. 1448-1449 of 1993, D
1452-1453 of 1993 and T.C. No. 40 of 1996 are disposed of accordingly.

In the ultimate result, therefore, we hold Haryana Act 20 of 1995 is
intra vims except part of Section 25 which has been held to be ultra vims.
The Act having been given retrospective effect with effect from 1.11.1966 E
the inter se seniority of direct recruits and promotees in each of the
services, namely, the PWD Branch,· the Public Health Branch and the
Irrigation Branch will have to be re-drawn up in accordance with the
provisions of the Act. The seniority lists already drawn up subsequent to
the judgment ofihis Court in the case of Sehgal and Chopra and as well F
as during the pendency of these appeals in this Court are of no conse-
quence in view of the Act coming into force. It is, however, made clear that
any promotion already given on the basis of seniority determined by the
Government under the pre-existing rules will not be annulled notwithstand-
ing any change in the seniority to be determined under the Act. The G
impugned judgments of Punjab and Haryana High Court are set aside. The
State Government is directed to re-consider the question of seniority of the
employees of the three Branches under the Act within a period of six
months from today and to give consequential promotion on that basis soon
thereafter. H
578 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A All the appeals and the transfer cases are disposed of accordingly.

S. SAGHIR AHMAD, J. I have had the advantage of going through
the judgment prepared separately by Brother Ramaswamy and Brother
Pattanaik. I agree with Brother Pattanaik on all the questions involved in
B this case, but I want to add a few words of my own without setting out the
facts of the case which have already been reproduced in the two Judg-
ments.

2. To declare what the law is or has been is a judicial power. To
declare what the law shall be is a legislative power. This is the principle
C deducible from the decision of the Federal Court in Basanta Chandra v.
Emperor, AIR (1944) FC 86 (90) and Ogden v. Black Ledge, (1804) 2
Lawyers Edition 276 (278).

3. It would be within the exclusive domain ofjudiciary to expound
D the law as is it and not to speculate what it should be as it is the function
of the Legislature. It is also within the exclusive power of the judiciary to
hold that a Statute passed by the Legislature is ultra vires. The Legislature
in that situation does not become a helpless creature as it continues to
remain a living pillar of a living Constitution. Though it cannot directly
E override the judicial decision, it retains the plenary powers under Articles
245, 246 and 248 to alter the law as settled or declared by judicial decisions.
This is what was observed by this Court in Mis. Anwar Khan Mahboob Co.
v. State of Madhya Pradesh, (1966] 2 SCR 40, which had the effect of
indirectly overruling its previous decision in Finn C.J. Patel & Co. & Ors.
F v. 17ie State of Madhya Pradesh, AIR (1953) SC 108. The Legislature can
also validate an Act which was declared invalid by the Court or amend it
with retrospective effect so as to remove the grounds of its im :,Jidity. (See
: Rai Ramkrishna & Ors. v. State of Bihar, (1964) 1 SCR 897 and Mt. Jadao
Bahuji v. Municipal Committee, Khandwa & Anr., AIR (1961) SC 1486).

G 4. The power to make a law includes the power to give it retrospec-
tive effect subject to the restriction imposed by Article 20( 1) that a Legis-
lature cannot make retrospective penal laws. It would be valid for the
Legislature to make any other enactment with retrospective effect provided
no Fundamental Right is infringed by reasons of its taking away the vested
H right. Under the scheme of the Constitution, it is competent for the
S.S. BOLAv. B.D.SARDANA[S.SAGHIRAHMAD,J.] 579

Legislature to put an end to the finality of a judicial decision and, therefore, A
it would be competent for the Legislature to render ineffective the judg-
ment of the court by changing the basis of the Act upon which that
judgment was founded (See : Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach
Borough Municipality & Ors., (1970] 1 SCR 388 = (1969] 2 SCC 283; In re:
Cauvery Water Disputes Tribunal, AIR (1992) SC 522.(1993] Supp. 1 SCC B
96). Hidayatullah, CJ. in Shri Prithvi Mills case observed as under :

"When a Legislature sets out to validate a tax declared by a court
to be illegally collected under an ineffective or an invalid law, the
cause for ineffectiveness or invalidity must be removed before C
validation can be said to take place effectively. The most important
condition, of course, is that the Legislature must possess the power
to impose the tax, for, if it does not, the action must ever remain
ineffective and illegal. Granted legislative competence, it is not
sufficient to declare merely that the decision of the Court shall not
bind for that is tantamount to reversing the decision in exercise of D
judicial power which the Legislature does not possess or exercise.
0

A court's decision must always bind unless the conditions on which
it is based are so fundamentally altered that the decision could not
have been given in the altered circumstances."
E
This decision was considered in Madan Mohan Pathak v. Union of India &
Ors., [1978] 3 SCR 334 = (1978j 2 SCC 50, but was not doubted by the
majority view in that case.

5. In Bhubaneshwar Singh v. Union of India, [1994) 6 SCC 77, it was F
observed that any action in exercise of the power under an enactment,
which has been declared invalid by a Court, cannot be made valid by
merely saying so unless the defect which has been pointed out by the Court
is removed with retrospective effect. It was further observed that the
Validating Legislation must remove the cause of invalidity. It was further G
observed that till such defect as was pointed out by the Court in a Statute
was removed by the subsequent enactment with retrospective effect, the
binding nature of the judgment of the Court cannot be ignored. In a
situation of this nature, it would be open to the Legislature to pass a
Validating Act, even with retrospective effect, removing the defect or the H
580 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A ground on which the Statute was held to be bad or ultra v1res.

6. Where, however, the statutory provision is interpreted by the Court
in a particular manner and directions are issued for implementing the
judgment in the light of the interpretation placed on the statutory
B provisions, the Legislature need not pass a Validating Act. In this situation,
the Legislature, in exercise of its plenary powers under Articles. 245, 246
and 248 can make a new Act altering fundamentally the provisions which
were the basis of the judgment passed by the Court. This can be done with
retrospective effect. So far as service conditions are concerned, they can
be altered with retrospective effect by making service rules under Article
C 309 or by an Act of the Legislature.

7. In the instant case, the judgments rendered by this Court in the
earlier decisions relating to the seniority of the present incumbents were
founded on the service rules then existing. These service rules have since
D been replaced by the impugned Act which has been enforced with
retrospective effect. The various aspects of merits have been considered by
my Brother Pattanaik and I cannot usefully add any further words on
merits. I fully agree and endorse that in view of the settled legal position,
specially those set out in the decisions referred to earlier as also in Comorin
E Match lndustlies (P) Ltd. v. v. State of Tamil Nadu, (1996] 4 SCC 281;
Indian Aluminium Company v. State of Kera/a, (1996] 7 SCC 637; and
Meerut Developmellf Authority & Ors. v. Satbir Singh & Ors., (1996] 11 SCC
462, the impugned Act, namely the Haryana Act XX of 1995 is valid to the
extent indicated by Brother Pattanaik. In this case the rule of seniority has
F been altogether altered and replaced by a new law made with retrospective
effect so as to do away the mischief under which an undue advantage was
being provided to a direct recruit, which was wholly inequitous and not
sustainable on the principles of equity.

8. I also agree that the judgments of the Punjab & Haryana High
G Court are liable to be set aside, with a direction to the State Government
to re-determine the question of seniority in the light of this judgment and
the Haryana Act XX of 1995.

9. The Civil Appeals, the Writ petition and the Transferred Cases
H are disposed of accordingly with no order as to costs.
S.S. BOLA v. B.D.SARDANA(K.RAMASWAMY,J.] 581

K. RAMASWAMY, J. Applications for impleadment allowed. A

These appeals and transfer cases are wrapped up of complex facts
interwoven with diverse principles in service jurisprudence, compounded
by legislative intervention impinging upon judicial review by enacting Act
20 of 1995 to regulate the conditions of service of persons appointed to the B
Haryana Service of Engineers, Class-I, Public Works Department (Build-
ings and Roads Branch), (Public Health Branch) and (Irrigation Branch)
respectively. The said Act 20 of 1995 (for short, the 'Act') came into force
with effoct from November 13, .1995. It amended and repealed the

- Haryana Service of Engineers, Class-I, PWD (Buildings and Roads"
Branch), (Public Health Branch) and (Irrigation Branch) Rules, Irrigation C
Branch by Ordinance 6 of 1995. The latter repealed the Punjab Service of
Engineers, Class-I, PWD (Roads and Buildings Branch), (Public Health
Branch) Rules 1960 and (Irrigation Branch) Rules, 1961 issued under
Proviso to Article 309 of the Constitution (for short the 'Rules'). The Act
was given retrospective effect from 1st day of November, 1966, the date on D
which the State of Haryana was formed by bifurcation of the former State
of Punjab.

The cases have their chequered history. On the date of formation
of the State of Haryana, the respective services were manned by and E
constituted of ten promotee officers allotted from the former State of
Punjab. All of them were from Haryana (erstwhile Punjab) Class-II subor-
dinate officers. The respective repealed Rules constituted Haryana Ser-
vices of Engineers, Class-I, PWD consisting of Buildings and Roads
Branch, Public Health Branch and Irrigation Branch respectively which F
were governed by the statutory repealed Rules. The class-I service of
Engineers consists of the Executive Engineers, Superintending Engineers
and Chief Engineer. Subsequently, the post of Engineer-in-Chief was
added in the respective branches. The Assistant Executive Engineers are
the feeder cadre to the said Class-I Service; they are drawn by way of direct
recruitment. Haryana (erstwhile Punjab) Class-II, Subordinate service was G
also feeder channel for appointment by promotion, as Executive Engineers
and thereafter as Superintending Engineers or Chief Engineers or En-
gineer in Chief, as the case may be. The respective repealed Rules and the
Act contained a provision for appointment by transfer from any other State
or Central Service; however, none was appointed from that feeder channel. H
582 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A Therefore, these cases do not concern that group and ·it has now become
a dried up source. As stated, as on November 1, 1966, ten posts, each
manned by promotee personnel, were allotted to the respective Branches
of Haryana Services of Engineers, Class-I. The Rules provided the ratio of
recruitment in Buildings and Roads and Public Health branches, viz., 50%
B to the direct recruits and 50% to the promotees. In the irrigation Branch,
for the first eight years, the ratio between promotees and direct recruits
was 75% and 25%; thereafter, it became 50 : 50 as in other two branches.
Though the Rules provided for creation of the cadre posts every year under
Article 3 read with Appendix-A of the respective repealed Rules, the State
C failed to demarcate the cadre posts; nor did it operate the services in strict
conformity with the respective quotas as per the repealed Rules. As usual,
it led to the acrimony between the promotees and the direct recruits; their
-
inter se seniority, which is a perennial and unending source of litigation,
has again given rise to these appeals and transferred writ petitions filed in
the High Court of Punjab & Haryana.
D
The usual endless acrimony for seniority, between promotees and
direct recruits, when the former are interjected into the service due to lapse
of regular direct recruitment and their passage into Class-I service, is being
met with turbulence for faculty transposition channels. The unsuccessful
E writ petitions filed in the High Court by promotees were dealt with in
appeals by this Court concerning Buildings and Roads and Public Health
Branches inA.N. Sehgal & Ors. v. Raja Ram Sheoran & Ors., [1992] Supp.
1SCC304 and S.L. Chopra & Ors. v. State of Haryana & Ors., [1992] Supp.
1 SCC 391. Therein, Dr. B.D. Sardana of Public Health Branch was one
the contesting respondents. The third stage now intermingled with the
F chains from the prornotees in Irrigation Branch which undoubtedly was not
dealt with on the previous occasion. They came to be linked with the two
branches and together dealt with in the Ordinance and the Act as well as
by the High Court. The respective repealed Rules stand now wiped out
from the statute after the corning into force of the Act with retrospective
G effect, i.e., from November 1, 1966.

Instead of dealing again with the repealed Rules of the respective
Branches, it would be appropriate, advantageous and of necessity to
reiterate from Sehgal and Chvpra's cases the findings and mandamus issued
H by this Court. The judgments now stand repealed by legislative judgment
S.S. BOLA v. B.D.SARDANA[K.RAMASWAMY,J.) 583

from ex-facie tenner under the Act. Though the facts are baffling, questions A
of law are diverse and the intricacies of judicial review, all require careful
examination for resolution of the controversy. The galaxy of the senior
counsel representing the promotees and the counsel for the State made
their bee-line herculean efforts to sustain the constitutionality of the Act
and the consequential seniority determined on its basis. On ultimate B
analysis, after deep probe and independent investigation, we find that the
valiant arguments of the respective counsel for State and the promotees, if
given acceptance would lead to destruction of the vitality of judicial review;
resultant husk would remain for the successful party; and the mandamus
issued by this court would bear no fruit. Thus, the revelation of emerging C
results given us deeper anxiety to have a pervasive fresh look into the legal
setting and constitutional contours; and to set out our soujourn to tread on
delicate track. Founding Fathers of the Constitution fondly entrusted,
expressly, to this Court "as worthy Judges", in the language of Dr. K.K.
Munshi, the doyan of the Bar and prominent member of the Constitution,
as per the solemn oath tak_en, to uphold the Constitution, to dispense D
justice according to constitution and the law without fear or favour, affec-
tion or ill-will. This case calls for decision on the delicate task of judicial
revit;w of legislative act and we solemnly undertake hereunder, to discharge
that onus constitutional duty.
E
As stated earlier, it is not necessary to reiterate the relevant
provisions of the repealed statutory Rules governing Buildings and Roads
Branch and Public Health Branch since they have been extensively dealt
with by a Bench of two Judges (to which one of us, K.R.S., J., was a
member) in Sehgal and Chopra's cases relieving us of the task to tread the F
path once over; it would be sufficient to record those findings and the
mandamus issued with directions contained therein for compliance. At the
outset, we may state that when the Bench dealt with the matter in Sehgal
and Chopra's cases, a pointed question was put to the counsel then appear-
ing, whether it would be advantageous to decide the question of law
without determination of the cadre posts and fixation of the inter se G
seniority between promotees and direct recruits. The learned counsel for
the parties, including the State, informed this Court of their difficulty in
understanding the scope of the Rules and requested this Court to declare
the law on the Rules and leave it to the State to determine inter se seniority
on the basis of the law so declared. Acceding to that request, the Division H
584 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A Bench considered all the relevant Rules, declared the law and gave the
directions to the State Government and the mandamus for compliance
thereof. In Sehgal's case, in para 6 at page 309, this Court had observed
that the service shall comprise Assistant Executive Engineers, Superintend-
ing Engineers and Chief Engineers. "Rule 3(2) read with Appendix 'A'
enjoins the State of Haryana to determine the cadre strength of service
B each years, Appendix 'A' lays down the procedure for determination of the
cadre strength of service. The senior posts include Executive Engineers and
above while the junior scale posts include Assistant Executive Engineers",
be it cadre or ex-cadre posts. "Rules 6 and 7 prescribed qualification and
method of appointment by direct recruitment. Sub-rule (3) of Rule 7 states
C that appointment to the service shall be made according to the number of
vacancies to be filled up by direct recruitment strictly in the order of merit".
Rule 11(1) regulates and operates probationary period. On satisfactory
completion of the probation by operation of Rule 11(3)(a), the direct
recruits get confirmation into the service and those whos~ service is found
D unsatisfactory become liable to be discharged from service. As stated
earlier, the post of Assistant Executive Engineers was a junior scale post
which is integral to the service and Rule 12(3) prescribes the year of
allotment as the calendar year in which the order of appointment is issued
by the Government.

E In para 7, it is stated that Rule 2(1) defines appointment to service
which includes an appointment made according to the terms and provisions
of the rules to an officiating vacancy or to ex-cadre post provided that an
officer so appointed shall not be deemed to have become a member of
that service as defined in Rule 2(12). The Assistant Executive Engineer,
F though appointed to an ex-cadre post, since he is appointed by direct
recruitment, becomes a member of the service from the date of his appoint-
ment as the Assistant Executive Engineer; though he performs the duty of
an ex-cadre post awaiting appointment to a regular post, on satisfactory
completion of the probation and its confirmation, the seniority dates back
G to the date of appointment. Therefore, the date of his appointment as
Assistant Executive Engineer and his becoming a member of the service
remain unalterable. It was held in paragraph 8 as under :

"A reading of the rules clearly indicates that an Assistant Executive
H Engineer appointed by open competition to a substantive vacancy
S.S. BOLA v. B.D.SARDANA[KRAMASWAMY,J.) 585

in a cadre post and put on probation is a member of the service. A
Equally such Assistant Executive Engineer recruited by open com-
petition and appointed to an ex-cadre post and put on probation
and who having successfully completed his probation and awaits
appointment to a cadre post would also become a member of the
service."
B
In paragraph 9, it was held that "Para ll(b) of Appendix 'A' read
with Rule 3(2), while determining the cadre strength of the service, it
adumbrates creation and appointment of Assistant Executive Engineers
(direct recruit) to an ex-cadre junior scale post in each year. Therefore, in
a given situation, a direct recruit appointed to an ex-cadre post, cannot be C
kept in lurch until he is appointed to a cadre post so as to become a
member of the service. Obviously to avoid such a hiatus, Rule 2(12)(a) was
introduced. The main part of Rule 2(12)(a) declares that an appointee
substantively to a cadre post i.e., permanent post is a member of the
service. The inclusive definition brings out that an officer appointed by D
direct recruitment and put on probation in an ex-cadre post, who having
successfully completed probation and awaits appointment to a cadre post,
is also a member of the service." "The words 'and such an officer' 'directly
appointed' would obviously be referable to an Assistant Executive En-
gineer directly appointed to an ex-cadre post who is entitled to be placed E
on probation and on successful completion awaits appointment to a cadre
post. By operation of the definition clause, he ~!so becomes the member
of the service from the date of initial appointment. This view is further
fortified by the definition of the appointment to the service in Rule 2(1)
which says that appointment to the service includes an appointment made,
according to the terms and provisions of these rules, to an officiating F
vacancy or to an ex-cadre post. Rule 2(7) says that direct appointment
means appointment by open competition but excludes 'promotee' or
'transferee'. So a promotee promoted to an officiating vacancy or an
ex-cadre post does not become a member of the service unless he is
appointed substantively to a cadre post. We, therefore, hold that a direct G
recruit appointed to an ex-cadre post alone is a member of the service even
while on probation and Rule 2(12)( a) applies to them and it does not apply
to a promotee from Class II service."

In para 12, it was held that "It is settled law that prescription of quota H
586 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A for recruitment from different sources is constitutionally a valid rule." Para
13 dealt with quota of 50% to the promotees as Executive Engineer,
Superintending Engineer and Chief Engineer and it was found in para-
graph 12 that 50% of the post as Executive Engineer, Superintending
Engineer and Chief Engineer shall be occupied only by direct recruit
B Assistant Executive Engineers. It may be made clear at this juncture that
the entire Haryana Service of Engineers Class-I, PWD compositly consists
of Executive Engineers, Superintending Engineers, Chief Engineers and
Engineer-in-Chief in the respective Branches. It was, therefore, held that
50% quota between direct recruits and promotees would apply to all posts
C of Executive Engineers, Superintending Engineers and Engineer-in-Chief
unlike in some other State/Central services, Executive Engineers, Superin-
tending Engineers etc. are not each a separate cadre.
'·
In para 19 at page 317, it was held as under :

D "19. It is ;;ettled law that "appointment to a post in accordance with
the rules is a condition precedent and no one can claim appoint -
ment to a post or promotion, as of right, but has a right to be
considered for promotion in accordance with the rules. Appoint -
ment by promotion or direct recruitment, therefore, must be in
accordance with the rules so as to become a member of the service
E
in a substantive capacity. Seniority is to be fixed in accordance with
the principles laid down in the rules."

The rights of promo tees were considered in par a 20 thus :

F "20. Rule 8 prescribes procedure for appointment by promotion
from Class II service. Rule 9(2) states that promotion would be
made by selection on the basis of merit and suitably in all respects
and no member of the service shall have any claim, to such
promotion as a matter or right by mere seniority. The committee
G as constituted under Rule 8 shall prepare the list of officers
considered fit for promotion in the order of merit and on approval
by the Public Service Commission, the State Government shall
appoint the persons from the list in the order in which the names
have been placed by the Commission. Appointment by promotion
H may be made under Rule 8(12) to an ex-cadre post or to any post
S.S. BOLA v. B.D.SARDANA(KRAMASWAMY,J.] 587

in the cadre in an officiating capacity from the list prepared as A
aforesaid. On promotion, as per Rule 11(1), officer shall be on
probation for a period of one year, but if the officer had been
officiating as an Executive Engineer the period of officiation would
be counted towards probation. Rule 11(4) provides that on satis-
factory completion of the probationary period, the government B
confirms the officiating promotee and "appoint him in a substantive
capacity on a cadre post provided the post is available to him". If
no cadre post is available, the officer has to wait for an appoint-
ment to the cadre post."

Accordingly, the promotee officers from the subordinate Class II
c
service as Executive Engineer under Rule 9 read with Rule 8 constitute a
source of recruitment by promotion to Haryana Engineers Service Class-I.
By operation of Rule 11(4), the probationer promotee gets appointed in a
substantive capacity on ".a cadre post available to him". If no cadre post is
available the promotee has to wait for an appointment to the cadre post. D
As regards the quota between direct recruits and promotees, in para 12,
this Court considered the operation of Rule 5 and its effect and held that
"recruitment to the service 'shall be so regulated that the number of posts
so filled by promotion from Class II Service shall not exceed 50% of the
number of posts in the service excluding the posts of Assistant Executive E
Engineer'; provided that till such time the adequate number of Assistant
Executive Engineers who are eligible and considered fit for promotion are
available, the actual percentage of officers promoted from Class II service
may be larger than 50 per cent". It was concluded thus :
F
"A reading thereof clearly manifests the legislative animation,
namely, that the promotees from Class II service shall not exceed
50% of the posts in the service. The word 'shall' indicates that it
is mandatory that the remaining 50% posts shall be kept open only
to the Assistant Executive Engineers who were directly recruited G
but later were found eligible and fit for promotion as Executive
Engineers. Therefore, unless the government resorts, exceptionally
with prior permission of Public Se~vice Commission, vide Rule 10
to recruitment by transfer of an officer from other service of the
State Government or of the Union, the remaining 50% of the posts
of Executive Engineers, Superintending Engineers and Chief En- H
...

588 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A gineers shall be occupied only by the direct recruit Assistant
Executive Engineers."

It is settled law that prescription of quota for recruitment from
different sources is constitutionally a valid rule. It may be necessary to
recapitulate that the service consists of Junior Scale posts; Class II Assis-
B tant Executive Engineers and Class-I posts are of Executive Engineers,
Superintending Engineers and the Chief Engineers. Thus, the entire cadre
posts are held by the promotees and direct recruits from the stage of
·Executive Engineers to the stage of Engineer-in-Chief in the ratio of 50 :
50 between direct recruits and the promotees.
c
The effect of Rule 5 and the result of 50% quota to the promotees
from Class II service was dealt with in para 13 and stated as under :

"The intendment appears to be that so long as the direct recruit
Assistant Executive Engineer eligible and considered fit for
D promotion is not available, the promotee from Class II service in
excess of the quota is eligible to occupy in officiating capacity in
the senior posts, i.e., Executive Engineers a'nd above. The moment
direct recruits are available, they alone are ··entitled to occupy 50%
of their quota posts (Class-I) and the promotees shall give place
E to the direct recruits."

The need to blend the direct recruits and promotees is to augment
efficiency of the service. It was dealt with in paragraph 17 and 18 which
read as under :

F "17. With a view to have efficient and dedicated services account-
able for proper implementation of governinent policies, it is open
and is constitutionally permissible for the State, to infuse into the
services, both talented fresh blood imbued with i:o_nstitutional
commitments, enthusiasm, drive and initiative by direct recruit-
G ment, blended with matured wealth of experience from the subor-
dinate services. It is permissible to constitute an integrated service
of persons recruited from two or more sources, namely, direct
recruitment, promotion from subordii'.ate service or transfer from
other services. Promotee from Subordinate service generally would
H get few chances of promotion to higher ecltelons of service.
S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.) 589

Avenues and facilities for promotion to the higher services to the A
less privileged members of the subordinate service would inculcate
in them dedication to excel their latent capabilities to man the
cadre posts. Talent is not the privilege of the few but equal avenues
made available would explore common man's capabilities over-
coming environmental adversity and open up full opportunities to B
develop one's capabilities to shoulder higher responsibilities
without succumbing to despondency. Equally talented young men-
women of great promise would enter into service by direct recruit-
ment when chances of promotions are attractive. The aspiration
to reach higher echelons of service would thus enthuse a member C
to dedicate honestly and diligently to exhibit competence, straight
forwardness with missionary zeal exercising effective control and
supervisions in the implementation of the programmes. The chan-
ces of promotion would also enable a promotee to imbue involve-
ment in the performance of the duties; obviate frustration and D
eliminate proclivity to corrupt practices, lest one would tend to
become corrupt, sloven and mediocre and a deadwood. In other
words, equal opportunity would harness the human resources to
augment the efficiency of the service and undue emphasis on either
would upset the scales of equality germinating the seeds of
degeneration." E

"18. With a view to achieve this object, the rule- making authority
envisaged to appoint direct recruits as well as by promotion from
Class II Service otherwise by transfer from other services. In
interpreting the rules, effect must be given to allow everyone drawn F
from these sources to have their due share in the service and
chances of involvement to effectively discharge the duties of the
posts honestly and efficiently with dedication. Any wanton or
deliberate deviation in the implementation of the rules should be
curbed and snubbed and the rules must be strictly implemented G
to achieve the above purpose. If wanton deviations are allowed to
be repeated, it would breed indiscipline among the services and
amount to undue favour to some and denial of equality for many
for reasons known or unknown subverting the purpose of the
rules." H
590 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A The interplay of seniority between direct recruit Assistant Executive
Engineers and promotee Clause II subordinate service Engineers for
· promotion as Executive Engineer was dealt with in para 21 which reads as
under:

B "21. A promotee within quota under Rule 5(2) gets his seniority
from the initial date of his promotion and the year of allotment,
as contemplated in Rule 12(6) shall be the next below 'the junior-
most officer in the service whether officiating or confirmed as
Executive Engineer before the farmer's appointment' counting the
c entire officiating period towards seniority, unless there is break in
the service or from the date of later promotion. Such promotee,
by necessary implication, would normally become senior to the
direct recruit promoted later. Combined operation of sub-rules (3)
to (5) of Rule 12 makes the direct recruit a member of the service
of Executive Engineer from the date of year of allotment as an
D
Assistant Executive Engineer. The result is that the promotee
occupying the posts within 50 per cent quota of the direct recruits,
acquired no right to the post and should yield to direct recruit,
though promoted later to him, to the senior scale posts i.e., Ex-
ecutive Engineer, Supt;rintending Engineer and Chief Engineer.
E The promotee has right to confirmation in the cadre post as per
Rule 11(4) if a post is available to him within his quota or at a
later date under Rule 5(2) read with Rule 11(4) and gets appoint-
ment under Section 8(11), his seniority would be reckoned only
from the date of the availability. of the post and the year of
F allotment, he shall be next below to his immediate senior promotee
of that year or the juniormost of the previous year of allotment
whether officiating or permanent occupying the post within 50 per
cent quota. The officiating period of the promotee between the
dates of initial promotion and the date of the availability of the
G cadre post would thus be rendered fortuitous and stands excluded.
A direct recruit on promotion within his quota, though later to the
promotee is interposed in between the periods and interjects the
promotee's seniority; snaps the links in the chain of continuity and
steals a march over the approved promotee probationer. Har-
H monious construction of Rules 2(1), 2(3), 2(7), 2(10), 2(12)(a),
S.S. BOLA v. B.D. SAR.DANA [K. RAMASWAMY, J.j 591

5(2)(a), 8, 9(2), 11, 12(3), 12(5) to 12(7) would yield to the above A
result, lest the legislative animation would be defeated and the
rules would be rendered otiose and surplus. It would also adversely
affect the morale and efficiency of the service. Mere officiating
appointment by promotion to a cadre post outside the quota;
continuous officiation therein and declaration of probation would B
not clothe the promotee with any right to claim seniority over the
direct recruits. The necessary conclusion would, therefore, be that
the direct recruit shall get his seniority with effect from the date
of the year of allotment as Assistant Executive Engineer which is
not alterable. Whereas the promotee would get his seniority with C
effect from the date of the availability of the posts within 50 per
cent quota of the promotees, the year of allotment is variable and
the seniority shall be reckoned accordingly. Appointment to the
cadre post substantively and confirmation thereof shall be made
under Rule 8(11) read with Rule 11(4) of the Rules. A promotee D
Executive Engineer would only then become member of the ser-
vice. 'Appointed sub;tantively' within the meaning of Rule 2(12)(a)
shall be construed accordingly. We, further hold that the seniority
of the promotee from Class II service as Executive Engineer shall.
be determined with effect from the date on which the cadre post
was available to him and the seniority shall be determined accord- E
ingly."

Ultimately, the directions were given in para 28 as under :

"We accordingly, direct the Government of Haryana to determine F
the cadre posts, if not already done, regularly from time to time
including the posts created due to exigencies of service in terms
of Rules 3(2) read with Appendix 'A' and allot the posts in each
year of allotment as contemplated under Rule 12 read with Rule
5(2)(a) and issue orders appointing substantively to the respective G
posts within the quota and determine the inter se seniority between
the appellant-promotees and R.R. Sheoran, direct recruit in the
respective quota cadre posts of Executive Engineers etc. within
four months from the date of receipt of this judgment. The inter
se seniority of promotees and direct recruits shall be determined
accordingly. All the impugned pro11Hltinns or those pending H
592 SUPREME COURT REPORTS [1997] SUPP. 2S.C.R.

A proceedings in the High Court or in this Court shall be subject to
the above determination and the status quo would continue till the
appointments according to the rules are made and seniority is
determined in the light of the law declared in this judgment. The
appeal is disposed of accordingly. In the circumstances, parties are
directed to bear their respective costs."
B
Similarly, in Chopra's case, the same consideration was adopted and
ultimately in paragraphs 11 and 12, this Court had given the directions as
under:

c "11. As far as the appellants are concerned, they shall be con-
sidered for appointment to a substantive vacancy against a cadre
post within their 50 per cent quota of the promotees and their
seniority would be counted next below the immediate senior
promotee of the same year or juniormost promotee of the preced-
ing year of allotment either officiating or confirmed, in accordance
D
with sub-rules (6) and (7) of Rule 12 and Rules 8(11) and 11(4).
The year of allotment is accordingly, alterable. If a promotee Class
II officer holds the cadre post within the quota of direct recruit,
his period of service from the date of initial promotion till the date
of availability of a cadre post is rendered fortuitous. A direct
E recruit though promoted later steals a march over the promotee
and gets right to consideration and if found fit gets promotion
within his 50 per cent quota and thereby becomes senior to the
officiating promotee."

F "12. Therefore, the State Government is directed to determine the
cadre strength in the Haryana Service of Engineers, Class I, PWD
(Public Health Branch) under the rules, Executive Engineers,
Superintending Engineers and Chief Engineers, consider the cases
of the appellants and the contesting respondents B.D. Sardana,
F.L. Kansai for promotion to the senior posts of Executive En-
G gineers, Superintending Engineers and Chief Engineers respective- l
ly with the respective quota of 50 per cent and make appointment,
if found eligible and fit for promotion. This exercise shall be done
within four months from the date of the receipt of the order. The
impugned pro~otions or any appointment made pending the writ
H petitions in the High Court or appeals in this Court are subject to
S.S. BOLA v. B.D.SARDANA[K.RAMASWAMY,J.) 593

the above diredions. The status quo as of today will continue till A
the government carries out the directions. The appeal and the writ
petition are accordingly disposed of and Civil Appeal No. 2316 of
1986 is dismissed but in the circumstances parties are directed to
bear their own costs."

Though time given under the above directions had expired, the State
B
Government failed to comply with directions and we are informed that in
the meanwhile some of the promotees who were not eo-nominee parties to
the appeals before this Court, filed the writ petition in the High Court, R.
Sheoran, promotee from Buildings and Roads Branch had filed a contempt
petition and this Court accepted the unconditional apology for the contrite C
and contumacious conduct committed by them in implementation of the
directions and disregard for the implementation of the mandamus, due to
advice tended to them; this Court directed them by order dated March 31,
1995 to redetermine the seniority in that behalf afresh in the light of the
directions contained in the judgment as well in the order dated March 31, D
1995; we are informed that it has been done.

Dr. B.D. Sardana though filed a contempt petition, since a writ
petition was already pending in the High Court, we felt it expedient to have
the matter decided by the High Court in the light of the law laid down by E
this Court. Similarly, J.K. Dewan and other promotees in Irrigation Branch
claimed seniority over M.L. Gupta, the direct recruit Assistant Executive
Engineer appointed w.e.f. August 21, 1971. They claimed that they were
promoted as Executive Engineers on different dates between March 19,
1970 to November 30, 1973 and M.L. Gupta completed his 5 years' tenure
F
as Assistant Executive Engineer with effect from September 17, 1976 by
which date the promotees had already completed their probation period
and were confirmed as Executive Engineer. Therefore, they claimed
seniority over the direct recruit, M.L. Gupta and Subsequent direct
recruits. Their claim was not acceded to and the final seniority was pub-
lished by the Government. The seniority list was prepared on September G
29, 1986 which was the subject matter of the Writ Petition No. 5082 of 1986
m which the High Court had directed by an order of the aforesaid date to
determine the seniority by passing a speaking order and quashed their
seniority accordingly. Similarly, Writ Petition No. 6182 filed by the direct
recruit, M.L. Gupta claiming seniority uver promotee Executive Engineer H
594 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A was also disposed of. The financial Commissioner by his proceedings dated
July 23, 1987 ordered that the promotees should be placed as juniors to
M.L. Gupta though they were promoted earlier to him. That gave rise to
Writ Petition No. 5780/87 filed by the promotees against M.L. Gupta
claiming seniority over him. The learned Single Judge dismissed the writ
B petition filed by M.L. Gupta and allowed the writ petition filed by the
promotees by his order dated January 24, 1992 and held that the promotees
were senior to the direct recruits. The L.P.A. Nos, 367 and 411 of 1992
filed by M.L. Gupta were allowed by the Division Bench by judgment dated
August 27, 1992 and it was held that M.L. Gupta is senior to the promotees
C and, therefore, the promotee should be ranked junior to him. That gave
rise to number of appeals filed by the promotees as well as the ·State
Government. In M.L. Gupta's case Division Bench had given directions as
under:

"For the reasons recorded above, both the Letters Patent Ap-
D peals are allowed. The judgment of learned Single Judge in both
the cases are set aside. Civil Writ Petition filed by Devki Nandan
Pant and others stands dismissed whereas Civil Writ Petition filed
•
by M.L. Gupta is allowed. The order fixing seniority of M.L. Gupta
vis-a-vis respondent Nos. 2 to 42 is quashed. The promotion of
E respondent Nos. 2 to 42 to the post of Superintending Engineer
and above considering them senior to M.L. Gupta also stands
quashed. Direction is given to the respondents to re-fix the
seniority of members of the service treating M.L. Gupta as senior
to respondent Nos. 2 to 42 allocating necessary years of allotment
arid thereafter pass orders of confirmation and promotion respec-
F tively with retrospective effect from the date the posts became
available for confirmation and promotion."

As stated earlier, Mr. Sardana challenged the seniority prepared by
the Government contrary to the mandamus issued in Chopra's case.
G Similarly, the promotees filed writ petition in the High Court. While
determining the inter se seniority as per the directions of this Court, the
Financial Commissioner had temerity to express himself in writing that the
judgments of this Court were iniquitous against the promotees; therefore,
he followed his own sense of justice proclaimed in this regard, contrary to
H the mandamus, and determined the seniority which came to be challenged
S.S. BOLA v. B.D.SARDANA(KRAMASWAMY,J.) 595

by B.D. Sardana in the High Court. Pending the writ Petition in the High A
Court, the Government came forward with Ordinance No. 6 of 1995 and
the Act, amended the law with retrospective effect from 1st day of Novem-
ber 1966 nullifying the mandamus issued by this Court directing redeter-
mination of the seniority between direct recruits and promotees in
Buildings and Roads Branch and Public Health Branch respectively; B
making the mandamus ineffective by a legislative device. Some of the direct
recruit officers filed writ petition in the High Court challenging the con-
stitutionality of the Ordinance and the Act and the sequenfa•l seniority list
prepared by the Government. When the matters had come up for final
hearing and the pendency of those writ petitions and the effect of the Act
on the seniority of the direct recruits and the judgment in these appeals C·
was brought to our notice, wt passed an order transferring those writ
. petitions to this Court to be heard along with these appeals. Thus, these
transfer cases. The Division Branch by judgment dated August 27, 1994
disposed of writ petitions in the following terms :
D
"after adjustment of B.D. Sardana taking his year of allotment as
1977, as already discussed above, immediately after the aforesaid·
10 persons allocated to State of Haryana since their seniority is
not under challenge declaration of cadre strength for subsequent
years, may be retrospectively, will be valid as right of other direct E
recruits will not be involved as none has so far been appointed to
the service. However, state is required to refix the seniority of B.D.
Sardana, a direct recruit and other promotees to the extent of their
quota fixed including 10 persons allocated to Haryana as on
November 1, 1966 in the cadre. State Government is also required
F
to pass fresh promotion orders of B.D. Sardana and other
promotees to the post of Superintending Engineer and above as
and when such posts became available keeping in view the seniority
of the member to be redetermined."

G
As stated earlier, the seniority list of the. Irrigation branch vis-a-vis
M.L. Gupta was also directed to be reconsidered. All the promotee officers
and the State Government filed appeals against B.D. Sardana as well as
M.L. Gupta. Sardana filed appeal as against the part of the judgment giving
100 per cent quota to initially allotted promotees. H
596 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A We directed the counsel to argue in the first instance on the con-
stitutionality of the Act. Dr. B.D. Sardana appeared in person and, there-
fore, we cannot expect him to argue on the constitutionality; but, on facts,
he made out a good point which may be dealt with at a later stage. Shri
D.D. Thakur, Shri Rajeev Dhawan, Shri Rohtagi, learned senior counsel
B and Shri Tulsi, learned senior counsel for the State, while making candid
statement that the Statement of Objects and Reasons clearly manifests the
blatant object, viz., to nullify the mandamus by a legislative judgment,
requested this Court to eschew it from consideration and look at the
operative parts of the provisions of the Act to find whether the legislature
C has made any attempt to overrule the judicial decisions by legislative
judgment. The attempt of the counsel is as under :

This Court in Sehgal antj Chopra's cases pointed out that the normal
continuous length of service did not find mention in the repealed Rules.
D The promotees became members of the service only from the date of their
substantive appointment to the cadre posts. Consequentially, their length
of service as Executive Engineer, though performed in regular posts which
were available, was cut off as fortuitous. The direct recruits were not
available. The base pointed out in the judgment was knocked of its bottom
by suitable amendments made under the Act repealing the statutory Rules.
E Though the repealing provision again is not happily worded, the Court is
required to supply omission "except as already done" to give effect to the
provisions of the Act so that the senior promotee officers, continuously
officiating from the date of the availability of the posts, though in excess
of the quota, could be deemed to have been regularly appointed. Thereby,
F they became seniors to direct recruits. Shri Rajeev Dhawan appearing for
promotees in Irrigation Branch further contended that the repealed Rules
relating to Irrigation Branch thus contained the proviso to Rule 5(2) of the
repealed Rules which postulates that when the promotees were appointed
and on completion of their probation, it was declared. They must be
deemed to be the members of the service. Thereby, the absence of statutory
G rules in respect of Buildings and Roads Branch and Public Health Branch,
was removed by the proviso to Section 5(2) of the Act with which we deal
with later. Therefore, there is a consistent rule brought in the Act that from
the inception of their appointment by promotion, Class II officers would
become members of the Class-I service. Right to promotion though is not
H a vested right, a right to be considered for promotion is the rule. As and
S.S. BOLA v. B.D. SARDANA [K RAMASWAMY, J.] 597

when vacancy arises, every officer, be it promotee or direct recruit, is A
entitled to consideration for promotion in accordance with the rules then
existing. The effect of retrospective operation would mean that the Act by
fiction of law was in operation with effect from November 1, 1966, when
the promotees were appointed and started officiating, though in excess of
their quota. They were discharging the duties of the posts in accordance B
with the Rules and they became members of the service from the respective
dates of promotion and thereby their continuous length of service as
Executive Engineer and upwards is required to be counted for the purpose
of seniority. Thereby, they became seniors to the direct recruits. By fiction
-' of law, the Act has taken away their right to be considered for promotion
which arises only in accordance with the Rules then existing. Rules of C
quota, due to non-availability of the direct recruits, stood broken down .and
became inoperative. Therefore, the quota also cannot be implemented.

~hri Tulsi further contended that the State had not placed before this
Court when Sehgal and Chopra's decisions were rendered, that the .Govern- D
ment made its efforts to have the direct recruits appointed within their
quota and notified from time to time to the Public Service Commission for
recruitment but due to non-recruitment, the consequence would be that
the promotees who performed the duties of the post must be given un-
broken seniority from the respective dates of promotion. Normal con-
tinuous length of service is the· rule. The Act gives effect to that rule by E
retrospective effect. The mandamus as directed to be implemented within
the prescribed quota is no longer the good law. The Act is a piece of
legislative device within the power and competence of the legislature. No
direction could be given to disobey the law and to determine seniority
contrary to the Act. F

At this juncture, it is also relevant to point out that before ap-
pearance of Shri Tulsi, Shri Altaf Ahmad, learned Additional Solicitor
General had appeared on behalf of the State of Haryana. Shri Altaf Ahmad
had taken a very candid stand and submitted that the direction issued by G
this Court in Sehgal and Chopra's cases are clear, unambiguous and
transparent. Officers, though understood with clarity the directions, had
misapplied the law in their own perception with the wrong notion of
equality. The seniority was not correctly prepared as per the mandamus.
He stated that he would suitably advise the officers to redetermine the
seniority in the light of the directions given by this Court. He further stated H
598 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A that the Legislature was not well advised to make the Act to overrule the
mandamus by .legislative judgment, the Legislature, however, has the com-
•-,
petence to amend the law prospectively removing the defects pointed out
by this Court. The Act will become operative prospectively giving 50 per
cent quota each to the direct recruits and promotees. It remains to be
B operative undi:r the Act. Any relaxation in defiance of the Act giving
advantage to the promotees Would be permissible only if the State Govern-
ment should give satisfactory explanation and that too in writing, that they
made all sincere efforts to have the required number of direct recruits,
recruited within the quota of 50% posts but that became impracticable
since required number of direct recruits were not selected by the Public
C Service Commission. On giving such satisfactory explanation only, the
Government should determine the inter se seniority between direct recruits
· and promotees in respect of the future vacancies only. He would advise the
Government to act accordingly.

D We indeed appreciated the fair stand taken by Shri Altaf Ahmad on
behalf of the State and gave direction to comply with the fixation of the
inter se seniority between the direct recruits and the promotees accordingly. ·
But, ·unfortunately, instead of doing that exercise, the Government have
changed the counsel and Shri Tulsi has taken over the threads from Shri
Ahmad on behalf of the State. According to Shri Tulsi, so.long as the Act
E remains on the statute, no one can be permitted to disobey the law..
According to the learned counsel, the State is empowered te enact the l~w
suitably removing the defects in the law pointed out by the Court Which
was lacking in the repealed Rules by enacting the faw with R!trospective
effect. This is an accepted and recognised constit,µtional principle ap-.
. F proved by this Court in catena of decisions. :Fherefore, the mandamus
issued by this Court is no longer in operation 11nd tM directions ~n in
Sehgal and Chopra's cases are no longer enforceable, The seniority shall
be determined only in accordance with the provisions of the Act. .

Shri Rajeev Dhawan further contended that the motives cannot be
G attributed to the Legislature that it deliberately intended to overrule the
decisions of the Court. The Act is neither a fraud on legislative power nor
a colourable exercise of that power. Entry 41 of List II of the Seventh
Schedule read with Article 309 of the Constitution empowers the Haryana
State Legislature to make the Act. Therefore, the Legislature neither lacks
H competence to enact the law nor it be characterized as fraud on power or
S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.) 599

colourable exercise of power. The Act, therefore, is now uniformly ap- A
plicable to all the three Branches of the P.W.D. Department of the_
Haryana Engineering Service Class-I. The seniority list prepared in 1992
in compliance of mandamus exhausted itself. The seniority should be
determined as per the law as· it exists under the Act. The direct recruits
have no vested right to promotion but they have right to be considered for B
promotion as per the existing law, that is the Act. The learned counsel cited
several decisions in support of the contentions. Shri.Rajeev Dhawan also
has given elaborate written arguments in that behalf. Only Shri Raju
Ramachandran has given brief written arguments on behalf of some of the
direct recruits on the effect of Statement of Objects. Though opportunity
was given to the counsel appearing for direct recruits to give their written C
arguments, many of them have not availed the same.

Three main principal questions arise for decision are : whether the
Act is ultra vires the constitution? Whether the mandamus issued by this
Court became ineffectual and unenforceable after corning into force of the D
Act and whether the inter se seniority between the promotees and direct
recruits has correctly been drawn in accordance with the mandamus issued
by this Court? With a view to get at the bottom of these questions and to
appreciate the respective contentions it is necessary to look into the
relevant provisions in the Act. It would be redundant to reiterate once over
the operative parts of the judgment in Sehgal and Chopra's cases and the E
directions issued thereunder. The ingenuity of the learned counsel for the
promotees would be appreciated for their effort to salvage the promotee
officers to get them seniority from the respective dates of promotion. But
giving legitimacy to the actions in question on the equitable considerations
would leave indelible inversion on the efficacy of judicial review. It would F
grant legitimacy to the legislature to overrule hereafter every inconvenient
final judgment by legislative judgment with retrospective effect, rendering
judicial review a supine mute witness to legislative overruling judicial
decisions emasculating the vitality of judicial review which would generate
feeling of disbelief in the efficacy of rule of law. As soon as a judgment
rendered by constitutional court becomes final, it would become an easy G
passage for the executive to tap the door of the legislature and have the
mle nisi or mandamus or directions issued by a constitutional court nul-
lified by legislative judgment. In view of these starking effects, the true
legal and fonstitutional perspectives requires correct perspective in that
behalf. The inevitable consequences that would emerge from giving accep- H
600 SUPREME COURT REPORTS [1997] SUPP. 2S.C.R.
A tance to the contentions of the counsel for promotees and the State of
Haryana, driven us to give very deep, anxious and thoughtful consideration
to these questions.

Article 309 of the Constitution in Part XIV of the Constitution titled
"Service under the State and the Union", postulates that recruitment and
B conditions of se1vice, the Union or of a State; subject to the provisions of
the Constitution., the ·Acts of the appropriate legislature may regulate the
recruitment and conditions of service of persons appointed to Public
Services and post in connection with the affairs of the Union or of the
State. Under the proviso, the President for Union of India or the Governor
C of the State respectively have been empowered to make rules regulating
the recruitment and conditions of service of persons appointed to the
respective services and post of the Union of India or the State until the
provision in this behalf is made by or under an appropriate legislature
under this Article. Any rules so made shall have effect subject to the
D provisions of such Act. Entry 41 of List II (State List) of the Seventh
Schedule empowers the State legislature to make law concerning State
Public Services; State Public Service Commission. Article 245( 1) empowers
the legislature of the State to make any law for the whole or any part of
the State. Such law shall be subject to the provisions of the Constitution
and the law made by the Parliament for the whole or any part of the
E territory of India.

It would, thus, be clear that the legislature of the State of Haryana
has, no doubt, been empowered to make law regulating recruitment and
conditions of service of the persons serving the State of Haryana. The
p Rules made by the Governor under the proviso to Article 309 shall hold
that field until provision in that behalf is made by an Act of the legislature
of the State of Haryana under that Article or Article 245(1) read with Entry
41 of List II of the Seventh Schedule. The statutory Rule made under the
proviso shall have effect subject to the provisions of such an Act. Thus, the
Act replacing the Ordinance and the repealed Rules shall have effect of
G regulating the recruitment and conditions of service of persons appointed
to the Haryana Services of Engineers Class II, PWD (Buildings & Roads),
(Public Health) and Irrigation Branch) respectively.

As stated earlier, the Act, has come into force on and with effect
H from 1st day of November, 1966 by deeming provision under Section 1(2)
S.S. BOLA V. B.D.SARDANA[KRAMASWAMY,J.) 601

of the Act. By operation of Section 3, it shall apply to the persons who are A
the members of the Service but shall not include persons who were ap-
pointed before the 1st day of November, 1966. In other words, the persons
appointed prior to 1st day of November, 1966 are not governed by the
provisions of the Act and thereby they were not in law, the members of the
service. There was no saving provision with regard to their continued B
membership for retiral service conditions under the repealed Rules except
as mentioned in Section 25 and the proviso thereto. The allotees thereby,
stood excluded from service. The repeal shall not affect the benefit accrued
to the persons who have retired from service during the period commenc-
ing from the 1st day of November, 1966 and ending with the date of the
promulgation of the Ordinance. In other words, even the retired employees C
under the repealed Rules were never members of the service of the
respective Branches except to the extent of the benefits they had already
derived and enjoyed under the repealed Rules. This is the disastrous
consequence that has been brought about in relation to the employees
allotted on 1st November, 1966 and those retired either prior to the 1st day D
of November, 1966, or after passing of the Ordinance 6 of 1995 or from
the date of prospective operation of the Act. They are men of non grata.

As regards the existing members and the service conditior.s of the
respective Branches, Section 2 deals with the definitions. It defines in
sub-section (1) of Section 2 "appointment to the service" to mean an E
appointment made to the post in service and includes an appointment,
made according to the terms and provisions of the Act to an officiating
vacancy of a post in service. "Assistant Executive Engineer" as defined in
Service 2(2), means a member of the service in the junior scale of pay.
Thereby, his entitlement to be a member of the service under the repealed F
Rules has been continued under the Act. His continuance as a member of
the service in the junior scale of pay from the date of his appointment
remained undisturbed and uninterrupted.

Section 2(3) defines 'cadre post' to mean a permanent post in the
service. Section 3(1) of the Act provides that the service shall comprise of G
such number of posts of Assistant Executive Engineers, Executive En-
.'
gineers, Superintending Engineers, Chief Engineers and Engineer-in-Chief,
as may be determined each year on the 1st day of January or as soon
thereafter, as may be practicable according to the provisions of Appendix-
A. The strength so determined shall remain in force till it is revised. It H
602 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A would, thus, be seen that the cadre posts are the permanent posts in the
service determined each year on the Ist day of January or soon thereafter.
The number of cadre posts in the service shall comprise of such number
of the aforestated junior scale posts and senior scale posts. The first
category consists of Assistant Executive Engineers and the second category
consists of Executive Engineers, Superintending Engineers, Chief En-
B gineers and Engineer in-Chief in the respective Branches.

Sub-section (4) of Section 2 defines 'Class-II Service' to mean the
Haryana Service Engineers, Class II Public Work Department in the
Buildings and Roads Branch. Public Health Branch or Irrigation Branch,
C as the case may be. In other words, the Class- II service, namely, the
officers in that category, remain as such officers until they are duly brought
in and made members of service after being duly promoted and appointed
to the service of the respective Branches in accordance with the provisions
of the Act; until then they do not become members of the service of the
D respective Branches of Class-I service. As seen earlier, under sub-section
(1) of Section 2 appointment is made to the posts in the service of the cadre
posts including an appointment made according to the terms and
provisions of the Act to an officiating vacancy of a post in service. By mere
officiation, he does not become a member of the Service. Therefore, before
making an appointment, every year on 1st day of January or soon there-
E after, the required number of cadre posts shall be determined and there-
after any person appointed to the service, be it an Assistant Executive
Engineer, in the junior scale of pay of the service under the Act or
promotee officer from Class-II service defined under Section 2(4) shall be
appointed to a cadre post in accordance with the provisions of the Act
p which is a condition precedent. Until that is done, they do not become
members of the service.

Section 2(8) defines 'direct appointment' to mean as appointment by
open competition but does not include; (a) "appointment made by promo-
G tion"; and (b) an appointment made "by transfer" of an officer already in
the service of a State Government br of the Union. Explanation postulates
that a Class II officer who enters the Service by open competitive selection
shall for the purpose of this Act, be deemed to have entered the Service
by direct appointment. In other words, the promotee officer otherwise
seeks an appointment by direct recruitment by a competitive selection
H through Public Service Commission from open market and appointed as
S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.) 603

, such does become a member of the service. Since by operation of clause A
(a) of sub-section (8) of Section 2, the promotee/transferee shall not be
included as member of the service. An appointment made by promo-
tion/tro.,sfer stood excluded from definition of direct appointment.

Sub-section (12) of Section 2 defines 'member of the service' to mean
"an officer appointed substantively to a cadre post" and includes (a) in the B
case of a direct appointment an officer on probation, or such an officer,
who having successfully completed his probation, awaits appointment to a
cadre post; he becomes a member of the service from the date of the
appointment, since he was appointed directly on probation to a cadre or
to an ex-cadre post. A direct recruit on successful completion of probation C
but kept on' officiating basis in an ex-cadre post, awaits appointment to a
cadre post; nevertheless; remains to be a member of the service. As ~tated
earlier, he continues to be a member of the service in the junior scale of
' pay as Assistant Executive Engineer from the date of his appointment
which remains unalterable. Under clause (b) of Section 2(12) an officer
becomes a member of the service in case of an appointment by transfer D
who is on probation or who, having successfully completed his probation,
awaits appointment to a cadre post, initially as he was appointed by
transfer, becomes a member of the service from the date of his appoint-
ment by transfer provided such an officer does not have a lien on a
substantive post in any Government Department. In other words, it is
settled service jurisprudence under the fundamental Rules that an officer E
cannot be appointed substantively to more than one post and he cannot
also hold two posts simultaneously in a substantive capacity. Therefore, an
officer appointed to a cadre post substantively as per the provisions of the
Act on a transfer but who lost his lien in his parent department, he
becomes a member of the service under the Act from the date of his
F
appointment on successful completion and declaration of his probation,
provided that he ceased to hold a lien on a substantive post in his parent
Department.

Under clause (c) of sub-section (12) of Section 2, in case of an officer
appointed by promotion, he becomes a member of the service on his G
successful completion of probation and awaits appointment to a cadre post.
Explanation qualifies as under :

"It is necessary that a member of the Service shall at any given time
be actually doing the work of a cadre post. He may be working in H
604 SUPREME COURT REPORTS [1997] SUPP.2S.C.R.

A an ex-cadre post for reasons of administrative convenience. Con-
versely, an officer working in an officiating post may in fact perform
the duties of a cadre post."

In other words, the explanation qualifies that a person, i.e., a direct
B recruit Assistant Executive Engineer but was posted to an ex-cadre post,
when he was discharging the duties of the post, though in an ex-cadre post
for reasons of administrative convenience, nonetheless be becomes a mem-
ber of the service by operation of clause (a) of Section 2(12). An officer
officiating against an ex-cadre post may, in fact, perform the duties of the
cadre post. In other words, though on successful completion of the proba-
C tion and awaits appointment to a cadre post, nevertheless, prior to bis
actual appointment to a cadre post, he is empowered to perform and
officiate his duties of a cadre post, though he was appointed as a direct
recruit and was posted to an ex-cadre post. Equally, the promotee Class II
officer appointed on probation is also entitled to continue on an ex- cadre
post or cadre post in an officiating capacity and the period of officiation
D counts towards probation. In other words, the promotee officer does not
come within the ambit of the explanation as a substantive capacity but
authorised the promotee officer to perform the duties of a cadre post either
as a probationer or in an officiating capacity which falls far short of
substantive capacity. By operation of clause (c) of Section 2(12), a Class-II
officer defined under Section 2(4) on his appointment by promotion as an
E Executive Engineer, i.e., to the Class-I service as first appointment from
feeder channel into Class-I service, he is empowered to officiate as an
officer on probation on cadre/ex-cadre post. On successful completion of
his probation, he•does not automatically become a member of the service
until he is duly appointed to a cadre post. In other words, he is empowered,
p by reason of the explanation to Section 2(12), to officiate on a cadre post,
. but it does not amount that he was appointed to a cadre post in a
substantive capacity. This demarcation of the nature of the membership of
the service between direct recruit Assistant Executive Engineer on one
hand and the officer appointed by transfer or promotee Class II officer -,
who does not have such status but gets limited right to officiate in a
G cadre/ex-cadre post as Executive Engineer, brings out the nature of their
membership of the service.

S!-lb-section (15) of Section 2 defines 'service' to mean the Haryana
Service of Engineers, Class I Public Works Department in the Buildings
H and Roads Branch, Public Health Branch and Irrigation Branch, as the
S.S. BOLA V. B.D.SARDANA[KRAMASWAMY,J.] 605

case may be. An officer in Class I service becomes an officer of that service A
only when he is appointed substantively to the cadre post, be it from junior
scale of pay posts, namely, Assistant Executive Engineers, who is a member
of the service in the junior scale of pay or an officer appointed by transfer
or a promotee officer from Class II service to a cadre post as Executive
Engineer. As seen earlier, the Assistant Executive Engineer who is a B
member of the junior scale of pay service, appointed to an ex-cadre post
and has completed the probation and awaits appointment to the cadre post,
remains to be a member of the service and empowered to officiate in the
cadre post as Executive Engineer though he has not become full member
of the service while promotee officer does not get that right unless the C
procedure under Section 8 is gone through and on selection as a
probationer as per the merit list. Therefore, as soon as the Assistant
Executive Engineer successfully completes the probation, unless he is
discharged from service for unsatisfactory performance of the duties, he
remains to be a member of the service as his date of appointment remains
the same, i.e., from the date of his initial appointment as Assistant Execu- D
tive Engineer and remains to be a member of the service and ·entitles to
discharge the service on a cadre post and his seniority dates back to his
date of initial appointment to the cadre/ex-cadre post as Assistant Execu-
tive Engineer. Thereby, the direct recruit Executive Engineer or Assistant
Executive Engineer direct recruit appointed directly to a substantive post E
and Assistant Executive Engineer direct recruit appointed to an ex cadre
post are treated on par and their service conditions remain unalterable
throughout. But, in the case of the officers belonging to Class-II service, as
defined under Service 2(4), he does not become a member of the service
as Class I officer until he is appointed to the cadre post substantively, nor F
he be empowered to officiate in the cadre post except as a probationer or
in an officiating capacity and on successful completion, he awaits appoint-
ment substantively as Executive Engineer to the cadre post if available
within the quota. Until then, he does not become in a substantive capacity
a member of the Haryana Service of Engineers, Class-I. One star effect
which was not even anticipated or visualised in making the Act is that G
though he was made eligible to officiate as a probationer on a cadre post
of Class-I service, namely, Executive Engineer, he does not automatically
become a member of the service; nor does he cease to be a member of his
Class-II service by reason of his promotion as Executive Engineer on
probation/officiation. It is understandable for the reason that the promotee H
606 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A Executive Engineer from Class-II service holds his lien in his Class-II
service in a substantive capacity as a permanent member of Class-II service.
Until he is duly appointed in accordance with the provisions of the Act to
a cadre post, he remains to be a member of Class-II service and awaits
appointment substantively to Class-I service to a cadre post as Executive
Engineer. It is obvious that he cannot cease to hold a lien on his substantive
B
post in Class-II service for the reason that though he was promoted
(technically called temporarily) on probation, if he would be found not to
have satisfactorily completed the probation or the government would find
him to have deteriorated in his performance of duties, he is liable to be
reverted to his substantive part as Class-II officer unless otherwise dealt
C with like disciplinary action. Thereby, though they intended to make the
promotee as a member of the service by the appropriate definitions many [
of which do not find place under the repealed Rules, the Act does not in
reality advance their right to become a member of Haryana Service of
Engineers Class-I, PWD in the respective branches in a substantive
D capacity. If one looks at correct legal perspective, putting up any other
interpretation is impossible.

Section 3(2) does not advance any benefit to the promotees. It
postulates as under :

E "Notwithstanding anything contained in sub-section (1) Govern-
ment may appoint·a member of the se1vice to an ex-cadre post not
included in the service in accordance with the provisions of this
Act, provided such post has been sanctioned."

p In other words, by virtue of the non obstante clause employed in
sub-section (3), it benefits only the direct recruits Assistant Executive
Engineers appointed to the service of the junior scale of pay and posted
to discharge the duties of an ex-cadre who would otherwise be excluded
from the service made a member of the service in accordance with the
provisions of the Act. By virtue of the explanation to sub- section (12) of
G Section 2 and in the light of discussion hereinabove, by mere officiation
even to a non-sanctioned cadre posts under sub-section (1) of Section 3 as
an Executive Engineer by virtue of the 11011-obstante clause in sub-section
(2) of Section 3, he does not become a member of the service; since the
explanation intended to explain that it does not create a right but clarifies
H the purported ambiguity of the operation of the substantive provision. It
S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.] 607

appears to benefit the direct recruits totally and the promotees partially to A
officiate on cadre post/discharging the duties of a cadre post as the
probationer promotee/officiator in an ex-cadre post in order to earn his said
period of service to count it towards probation and legitimatised his
service as -probationer/officiator in an ex-cadre/cadre post who would
otherwise has no right to be posted. Thereby, by virtue of this enabling B
provision in the service in the respective branches in Buildings and Roads
Branch, Public Health Branch and elbow entry was given who were other-
wise totally excluded and the previous legal position held by the officers
from Buildings and Roads, Public health Branches and brought on par with
officers from Irrigation Branch who retained the officiating character. The
rights of the promotees have not any further been advanced. C
Section 4 deals with nationality and domicile of the candidates
seeking appointment to the service, the details whereof are not necessary.
Section 5 reads as under :

"5. (1) Recruitment to the service shall be made by Government D
by any one or more of the following :
•
(a) by direct appointment;

(b) by transfer of an officer already in the Service of a Government,
or of the Union; or E
( c) by promotion for Class-II Service.

(2) Recruitment to the Service shall be so regulated that the
number of posts filled by promotion from Class-II Service shall not
exceed 50% of the strength of Se1vice excluding the posts of Assis- F
tant Executive Engineers;

Provided that if adequate number of Assistant Executive Engineers
who are eligible and fit for promotion are not available, the posts
in service even beyond 50% shall be filled up by promotion of G
members of Class-II service or by transfer as may be decided by
Government :

Provided further that in case of Irrigation Branch for the first eight
years commencing from 1st day of November, 1966, for the word
50%, the word 75% be read. H
608 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A (3) In the case of persons who were members of the Service on
the commencement of this Act it shall be assumed that the member
recruited by promotion from Class-II service is in accordance with
the provisions of sub-section (2) of Section 5, and future recruit-
ment ~hall be based on this assumption.

B (4) Aq direct appointments to the Service shall be made to the
post of- Assistant Executive Engineers :

Provided that a direct appointment may, in exceptional circumstan-
ces for reasons to be recorded in writing, be made to the post of
Executive Engineer.
c
(5) An Officer promoted from Class II Service shall be appointed
to the post of Executive Engineer.

(6) Appointment by transfer of an officer will normally be made
to the rank of Executive Engineer.
D
(7) That in exceptional circumstances, for reasons to be recorded in
writing, Government will have the power to alter the percentage
specified in sub-section (2) of this section."

(Emphasis supplied)
E
Section 5 deals with recruitment to service. Sub-section (1) of Section
5 postulates that recruitment to the service shall be made by Government
by any one or more of the following methods. i.e., (a) by direct appoint-
ment; (b) by transfer; or (c) by promotion from Class-II service, defined
p in Section 2(4). Sub-section 2 posits that recruitment to the service shall
be so regulated that the number of posts filled by promotion from Class-II
service shall not exceed 50% of the strength of se1vice excluding the posts of
Assistant Executive Engineers. Thereby, recruitment, the ratios of 50% and
regulation of the service between direct appointment of the Assistant
Executive Engineers or direct recruitment as Executive Engineer put
G together and appointment by promotion from Class II service/transferee as
Executive Engineers of the strength of the Service consisting of Executive
Engineers, Superintending Engineers, Chief Engineers, and Engineer-in-
Chief in respective branches shall not exceed 50% ratio. In other words, it
is mandatory that while recruiting promotees from Class II service/trans-
H feree from other service, "the service shall be so regulated" that the number
S.S. BOLA v. B.D.SARDANA[K.RAMASW~Y,J.J 609

of posts filled by promotee officer from class II service/transferee "shall not A
~ exceed 50% of the strength of the service". The only exclusion from the
50% quota service in that behalf in computation of the 50% in junior scale
posts occupied by junior scale pay officers, namely Assistant Executive
Engineers.

The first proviso amplifies tha~ if adequate number of Assistant B
Executive Engineers who are eligible and fit for promotion as Executive
Engineers are not available, the posts in service, as Executive Engineer,
even beyond 50% shall be filled up by promotion of members of Class II
service or by transfer as may be decided by Government. Filling up by
promotion of Class-II officers or by transfer from other Departments in C
excess of the quota, does not per se make the promotee a member of the
service. By operation of sub-section (7) of Section 5, the Government
should record in writing the exceptional circumstances for such deviation.
The reasons in support thereof do indicate that in grave exceptional
circumstances only as an exception for one time measure, the deviation D
from 50% is permissible, The second proviso further says that in case of
irrigation Branch for the first eight years commencing from 1st day of
November, 1966 for the word "50%", the word "75%" be read. In other
words, the promotees have 75% cadre posts to their quota. It is seen that
under the repealed Rules in respect of Buildings and Roads Branch or E
Public Health Branch, the proviso was non- existent and the Irrigation
Branch Rules did contain this proviso. In other words, prior to the judg-
ment rendered by this Court in Sehgal and Chopra's cases, the first proviso
was not in vogue and so t!-.ere was no occasion to consider its effect; the
need to do the same has arisen in these cases. The promotees do not
become members of the service until appointed substantively to a cadre F
post. When the promotee Class II officer as Exec:utive Engineer would
become member of the Haryana Service of Engineers, Class-I would be
considered later while dealing with other Sections; suffice it to State that
the proviso has been introduced under the Act for the first time and by its
operation, the promotees were made eligible for being appointed in excess G
of 50% quota or by transfer into the quota reserved for direct recruits
· either as Executive Engineers when promotee Assistant Executive En-
gineers were not available. We would also deal separately with the effect
of the existing proviso in Irrigation Branch under the repealed Rules and
its effect on the first and second proviso in sub-section (2) of Section 5. H
610 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A Any officer promoted from Class-II service shall be appointed to the
post of Executive Engineer, i.e., cadre post substantively and not to an -<::
ex-cadre post. However, he becomes eligible for appointment from Class-II
service as probationer/on officiation/transferee form other service. It is
dealt with in sub-section (1) of Section 5 and under Sub-section (6)
B appointment by transfer of an officer who initially was made to the rank to
Executive Engineer. Sub-section (7) of Section 5 deals with exceptional
circumstances, for reasons to be recorded in writing, the Government will
have the power to relax as special case in regulation of the percentage
specified in sub-section (2) of this Section and we do not find any relaxable
specified percentage prescribed in that behalf. It is not implicit that total
C 50% to the direct recruits is relaxable. Therefore, for the purpose of this
case, it is not necessary for us to elaborate further. Suffice it to state that
it is relevant for the purpose of this case that a Class-II officer defmed in
Section 2(4) which is a feeder cadre for appointment by promotion to
Haryana Service of Engineers Class-I, on probation/officiation shall be
D appointed to the initial post of Executive Engineer under this sub-section
(5) of Section 5 within the prescribed ratio to a cadre post, if any available.

Section 6 deals with the qualifications. Clause (a) and (b) only are
relevant for a limited purpose, namely in case of appointment by direct
recruitment, the candidate shall be a graduate from a recognised university.
E The qualifications have been specified in Appendix 'B' to the Act the
details of which are not necessary, suffice it to state that Appendix 'B' is
an integral part of clause (a) of Section 6. Similarly, in the case of
appointment by promotion from Class II service, the appointee shall have,
in addition to the qualifications provided in Clause (a), i.e., Appendix 'B'
F eight years completed service and has passed the prescribed tests as
mandatory, unless suitably relaxed for reasons to be recorded in writing,
the passing of departmental examination of the Class-II service. The
proviso are not relevant for the purpose of this case. The mode of com-
petition of eight years service has been explained in the explanation ap-
pended thereto. The further proviso thereafter and clauses (c) and (d) are
G not relevant for the purpose of this case, hence they are omitted.

Section 7 prescribes age qualifications with which we are not con-
cerned in this case. Section 8 is most relevant provision for the purpose of
these cases which deals with appointment by promotion of the officers
H belonging to Class-II service. It reads as under :
S.S. BOLA v. B.D.SARDANA[KRAMASWAMY,J.) 611

"8(1) A Committee comprising of such members as may be notified A.
by Government from time to time shall be constituted for Buildings
and Road Branch, Public Health Branch and Irrigation Branch, as
the case may be, to prepare a list of officers suitable for promotion
to the senior scale of the service. The selection for inclusion in
such list shall be based on merit and suitability in all respects with B
due regard to seniority.
•
(2) The Committee shall meet at intervals ordinarily, not exceeding
one year, and consider the case of all eligible officers for promotion
to the senior scale of the Service, as on the 1st day of January of
that year. C
(3) The names of the officers included in this list shall be arranged
in order of seniority in Class-II service :

Provided that any junior officer, who in the opinion of the Com-
mittee, is of exceptional merit and suitability, may be assigned a D
place in the list higher than that of officers senior to him.

(4) The !is~ so prepared shall be revised every year.

(5) If in the process of preparing the list or its revision, it is
proposed to supersede any eligible candidate, the Committee shall E
draw up a list of such officers and may record its reasons for the
proposed supersession.

(6) The list prepared or revised in accordance with sub-section
(1), (3) and (4) shall then be forwarded to the Commission by F
Government alongwith -

(i) the records of all officers included in the list;

(ii) the records of all officers pJiOposed to be superseded as a result
of the recommendations made by the Committee; G
(iii) the reasons, if any, recorded by the Committee for the
proposed supersession of any officer; and

(iv) the observations, if any, of the Government on the recommen-
dations of the Committee. H
612 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A (7) The Commission shall consider the list prepared by the Com-
mittee along with other documents received from the Government
and, unless it considers any change necessary, approve the list.

(8) If the Commission considers it necessary to make any change
in the list received from the Government, the Commission shall
B inform the Government of the changes proposed and after taking
into account the comments, if any, of the GoVernment, may ap-
prove the list finally with such modification, if any, as may in its
opinion, be just and proper.

c (9) Appointments to the Service shall be made by Government
frqm its list in the order in which names have been placed by the
Commission.

(10) Appointments by promotion may be made to the post in
Service, or to any post in the cadre in an officiating capacity from
D the list prepared under this section.

(11) It shall not ordinarily be necessary to consult the Commission
before appointment under sub-sections (9) or (10) are made,
unless during the period intervening between the inclusion of the
name of the officer in the list and the date of the proposed
E appointment there occurs any deterioration in the work of the
officer which in the opinion of the Government is such as to render
him unsuitable for appointment to the service."

A reading thereof does postulate that a Committee, comprising of
F the members specified in sub-section (1) of Section 8 and the Rules made
in that behalf shall be constituted for selection of Class II officers which .
shall prepare a list of suitable officers of promotion to the senior scale of
service. In other words, Haryana Service Engineers, Class I, i.e., J:lxecutive
Engineers is the only entry gate thrown open to Class II officer, as another
feeder source which otherwise would not have been eligible and instead be
G occupied by promotion of Assistant Executive Engineers already a member
of the service but was initially appointed to junior pay scale. The selection
for inclusion in the list shall be based on merit and suitability in all respects
with due regard to seniority. The Committee shall meet at intervals or-
dinarily, not exceeding one year and consider the cases of all eligible Class
H II officers for promotion to the post as un 1st day of January of that year.
S.S. BOLA V. B.D.SARDANA [K.RAMASWAMY,J.] 613

The names of the officers included in that list shall be arranged in the order A
of seniority determined in Class-II service. Any junior officer, who, in the
opinion of the Committee, is of exceptional merit and suitability, may be
assigned a higher place in the list than that of officers senior to him in
Class-II service and equally upwards. In other words, a junior officer who
has shown exceptional merit and suitability may supersede a senior officer B
and scale a march over his seniors and he may be assigned higher place
than the senior officer. The list shall be operative for one year and it shall
be revised every year. Among class II officers, this sub-section inculcates
to develop spirit of competence, superior merit, ability or suitability, in
other words, excellence and generates a separate atid competent breed
among promotees to augment efficiency and competence in service, apart C
from honesty and integrity which always remain pre-condition.

In the process of preparing the list or its revision, if the Committee
proposed to supersede any otherwise eligible officer, it shall draw the list
of such officers and it shall record its reasons in support of the decision D
for such supersession. It is settled legal position that before reaching
decision for such a supersession, the superseded officer shall be entitled
to prior opportunity d notice supported by reasons and hearing and then
only the recording of reasons would be meaningfuI; otherwise the officer
will have no opportunity to meet any of the grounds on the basis of which
the Committee may propose to supersede the officer in the preparation E
of the list or revised list, as the case may be. It is also settled legal position
that this is in compliance of the principles of natural justice which is an
inbuilt part of the right to justice, fairness in procedure and equality of
opportunity which are part of Article 14 of the Constitution. Communica-
tion of the reasons to the superseded officer is also a facet of part of . F
principles of natural justice. The list thus prepared shall be revised every
year and new list prepared before 1st day of January each year. The record
of reasons also shall be forwarded to the Government.

The list thus prepared or revised shall be forwarded to the Govern-
ment by the Committee and the Government in turn shall forward the list G
to the Haryana Public Service Commission along with the record of all the
officers included in the list or the revised list. Obviously, the records of
all officers proposed to be superseded, as a result of the recommendations
by the Committee also shall be forwarded to the Public Service Commis-
sion. The reasons recorded by the Committee for the proposed superses- H
614 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A sion of the officer shall also form part of the record communicated to the
Public Service Commission. If the Government makes any observations on
the recommendations made by the Committee including supersession of
any officer thereof, it is necessary that their observations also should form
part of the record communicated to the Public Service Commission for its
B consideration. In other words, the Government also would examine inde-
pendently the record of all officers. Obviously giving due weight to the
reasons of the Selection Committee as inbuilt guarantee for independent
and objective assessment of merit and suitability of the officer by the
Committee and to express its frank opinion so as to improve efficacy of
service by the incumbent officers.
c
The Public Service Commission shall independently consider the list
prepared by the Committee along with other documents received from the
Government and, unless it consider any change necessary, approve the list.
If the Public Service Commission considers it necessary to make any
D change in the list received from Government, it shall also inform the
Government of the proposed changes and after taking into consideration
the comments, if any, received in that behalf from the Government, the
Public Service Commission should be entitled to consider the same and if
necessary alter the order of merit and then communicate the approved list
E to the Government. At this stage, it would be necessary to clarify that in
the process of inter-department exercise an opportunity to officers does
not arise. Thereafter, the Government is empowered to finally approve the
list with such modification as was suggested and altered by the Public
Service Commission. If the alteration suggested by the Public Service
Commission would not be acceptable to the Government, then it should
F again consult the Public Service Commission with supportive reasons and
after due consideration to the advice of the Public Service Commission, the
Government approves the list of eligible Class-II officers for promotion as
Class-I officers, i.e., Executive Engineer.

G Appointments to the Service shall be made by the Government from
the final list in the order in which names have been placed by the Public
Service Commission and approved by the Government. Appointment by
promotion will be made to the cadre post in the service or to any ex-cadre
post on probation or in an officiating capacity from the said list. As seen,
H the appointment to the service of an officer from Class-II service as an
S.S. BOLA v. B.D. SARDANA [K RAMASWAMY, J.] 615

Executive Engineer shall be made by the Government from the fmal list in A ·
the order in which their names have been placed by the Commission.
Appointment by promotion may also be made to the cadre/ex-cadre post
in service as probationer or to any post in the cadre in an officiating
capacity from the final list approved and became final under the Section.
In other words, after the receipt of the approved list from the Public B
Service Commission and its approval by the State Government, the list
becomes final and operative for one year or if revised in the meanwhile
after following the procedure. An appointment should be made of the Class
II officers in the order of the names in the list under Section 8(9) and be
put on probation. Equally an appointment in an officiating capacity to the
ex-cadre post and in case of administrative necessity to a cadre post may C
be made by operation of sub-section (10) of Section 8.

By operation of sub-section (11) of Section 8, it shall not ordinarily
be necessary to consult the Public Service Commission again, if an appoint-
ment under sub-section (9) or (10), unless during the period intervening D
between the inclusion of the name of the officer in the list and the date of
the proposed appointment there occurs any deterioration in the work of
any of the officer found approved in the list which in the opinion of the
Government is such as to render him unsuitable for appointment to service.
Here also, the principles of natural justice be followed of prior opportunity
of communication of reasons in support thereof and brief hearing, if E
necesF;ary and brit'.f reasons in :-;upport thereof. Thcre.3fter; consultation
with the Public Service Commission is mandatory. Appointment on proba-
tion and after satisfactory completion of probation and declaration thereof,
the probationer shall be appointed under Section 8(9) substantively to any
cadre post within the quota, if any post is available. F

Section 9 deals with promotion within service, as indicated in its
marginal note. Sub-section (1) provides that subject to the provisions of
sub-sections (2) and (3), members of the service shall be eligible for
promotion to any post in the service, namely, Executive Engineer, Super- G
intending Engineer, Chief Engineer and Engineer-in-Chief within their
respective branches. As seen earlier, a direct recruit Assistant Executive
Engineer, in the service of senior scale of pay is empowered to officiate in
a cadre post, namely, of his appointment as an Executive Engineer or
thereafter as a Superintending Engineer and so on, since he has already
been a member of the service. Equally, so a direct recruit Executive H
616 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A Engineer. But, unfortunately, the legal effect to the promotee Class-IL
officers is different. Unless he is appointed as Executive Engineer in a
substantive capacity to the service, after the list is approved, to a cadre post
within the quota he becomes a member of the service in a substantive
capacity. Even in exceptional circumstances, due to administrative exigency
he can be appointed under Section 8(10) to officiate as Executive Engineer
B only of the officers from the approved list, appointment even to a cadre
post in Class I service, he could be appointed only as probationer/officiat-
ing capacity. That is the consequence of the operation of Section 8 and in
particular sub-sections (9) and (10), as the case may be. Sub-section (11)
only enables the Government to exclude an officer in the approved list
C provided it finds before the date of appointment that the Government
forms an objective opinion on the basis of material on record that in the
interregnum, the officer included and approved in the list was found
unsuitable for appointment to the service due to deterioration of his work.
As seen, as an inbuilt procedure of fairness, compliance of the principles
D of natural justice in that behalf and consultation with Public Service Com-
mission is an integral facet, otherwise it becomes arbitrary, unjust and
unfair to an officer whose name was found fit by the Committee and
approved by the Public Service Commission and finds his place in the order
of merit finally pr~pared by the. Public Service Commission and approved
by the State Government, gets denied of the legitimate expectation of
E appointment by probation. On satisfactory completion of probation, a
substantive appoin.tment to a cadre post under Section 8(9) ·-vithin quota
shall be made or else promotee appointee remains as a probationer/of-
ficiating appointee under Section 8(10). This also is a caveat to the
promotee officer/Assistant Executive Engineer to continue to dedicate
F himself assiduously in the performance of or in discharge of the duty
efficiently with honesty and integrity. Thereby, it puts a nail in the coffin
of a corrupt proclivity. If he exhibits, it knocks him of the bottom.
Legitimate expectation of promotion equally get ensured by all the above
stated steps to direct as well as promotee officers as Executive Engineer
and upwards.
G
The proviso to sub-section (1) of Section 9 clearly and unambiguous-
ly puts the officer on notice that a member of the service who does not
possess any of the university degree or other qualifications prescribed in
Appendix B, he shall not be eligible for further promotion to the post of
H Superintending Engineer cir above till he acquired the requisite qualifica-
S.S. BOLA v. B.D.SARDANA[KRAMASWAMY,.J.] 617

hons. In other words, though an unqualified officer with a degree of A
university or other prescribed qualifications specified in Appendix B, but
found eligible and meritorious and suitable, he may also be given only one
opportunity tc become an Executive Engineer a..'ld thereafter until he
acquires all the requisite qualifications and passes all the prescribed tests
unless already passed, he shall not be eligible for promotion to the post of
Superintending Engineer and above. In this behalf, it is necessary to B
reiterate that it is the settled legal position that prescription of the degree
qualifications (higher qualification to posts with higher responsibility) for
promotion to the higher services is a valid qualification and classification
as upheld by a Conditution Bench of this Court in State of Jammu and
Kashmir v. T.N. Khosa, AIR (1974) SC 1, another Constitution Bench in C
Mohd. Sugat Ali v. State of Andhra Pradesh, [1976] SCR 482 and hosts of
decisions thereafter. This principle inculcates searching competitive spirit
among employees for continuing education in the subject of the charge and
a spirit of competition which helps improvement of efficiency of ad-
ministration.
D
Sub-section (2) of Section 9 reiterates the settled legal principle that
the promotion shall be made by selection on the basis of merit and
suitability in all respects but such a member shall not have any claim to
such promotion as a matter of right on mere seniority. In assessing merit
and suitability seniority also may be considered but if a junior officer is
found more meritorious and suitable, he sreals a march over his seniors E
and scale higher ladders in service earlier to his seniors.

Sub-section (3) of Section 9 deals with required length of service as
eligibility for promotion to the rank at each stage of Class-I posts. It says
that a direct recruit shall not be eligible for promotion, though he is a F
member of the service, to the rank to Executive Engineer, unless he
rendered five years' service as Assistant Executive Engineer and he has
passed the departmental examination as prescribed in Section 15. Under
the first proviso, any officer who has renderd six years or more service as
an Assistant Executive Engineer shall, unless he is considered ur1suitable G
for promotion, be given preference for such promotion over an eligible
•
Class II officer who has already been defined under Section 2(4) of the
Act, namely, officer from the feeder cadre eligible for promotion as Ex-
ecutive Engineer of Haryana Service, Class I posts and upwards. The
second proviso deals with minimum qualified service for an officer who is
a member of the service working on the civil side on Buildings and Roads H
618 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.
A Branch unless one has served a total minimun period of two years on a
post relating to the design or planning or research or survey and investiga-
tion or teaching or training or purely office posting whether in Head Office
or Circle Office or Research Laboratory under the Haryana Government
or while on deputation under any other authority, he is ineligible for
B promotion as Executive Engineer. Explanation postulates that any service
of the specified nature rendered while in class-II service by the member of
the Service shall also be counted for computation of two years service as
Executive Engineer of such specified nature. In Buildings and Roads
Branch previous experience is necessary for promotion as Executive En-
gineer so that the required specialised eiqiert service would augment expert
C performance of the duties as Class-I officer.

Clause (b) of sub-section (2) deals with Superintending Engineers
and it prescribes seven years' qualifying service as an Executive Engineer
for promotion as Superintending Engineer. The proviso deals with that in
D the case of promotion of a member to the post of Superintending Engineer
working on the civil side in Buildings and Roads Branch, he has served for
a total minimum period of two years at a post of Executive Engineer
relating to design or planning or research or survey and investigation or
teaching or training or purely office posting whether in Head Office
Research Laboratory under the Haryana Government or while on deputa-
E tion under any other authority. Even for promotion as Superintending
Engineer, again two years' experience as Executive Engineer in the above
subjects is insisted upon as continuing expert education and as part of
service since supervisory officer does not stop at saturation point.

F Clause (c) of Section 9(3) deals with Chief Engineer and Engineer-
in-Chief and prescribes three years' qualifying service a,; Superintending
Engineer for promotion as Chief Engineer. The proviso adumbrates that if
it appears to be necessary to promote an officer in public interest who does
not possess such minimum service, the Government may for reasons to be
recorded in writing, either generally for a specified period or in any
G individual case, reduce the period specified in clauses (a), (b) or (c) to
such an extent as it may deem proper. In other words, the proviso to clause
(a), (b) or ( c) of sub-section (3) of Section 9 gives elbow power to the
Government in an appropriate case either generally or· in a case of any
individual to relax the minimum period of service mentioned in the respec-
H tive clauses as it deemed proper and appropriate. Situation and the condi-
S.S. BOLA v. B.D.SARDANA [KRAMASWAMY,J.] 619

tion precedent to exercise that power requires that the Government should A
record its reasons in writing before giving relaxation. It would be obvious
that the pressing public interest is the predominant and paramount con-
sideration for such relaxation. Reasons recorded for such exercise, must of
necessity, IX f acie form part of record which should disclose relevant and
germane reasons. It would appear that the scheme of preparing merit list B
as envisaged in Section 8 is also necessary for promotion as Superintending
Engineer and upwards perhaps as inbuilt fair procedure. But for the
purpose of these cases, it is not necessary for us to express any fmal
opinion. In an appropriate case, it may be considered and decided.

Section 10 relates to appointment by transfer with which we are not C
concerned. Therefore, it is omitted. Section 11 deals with probation which
is again material for the purpose of this case which has got inter link and
close connection with the contentions raised by the counsel for the parties
and, therefore, reads as under :

"11. (1) Officers appointed to the Service shall remain on probation P
for a period of two years, if recruited by direct appointment and
one year if recruited otherwise :

Provided that -

(a) any period after appointment to the Service spent on deputa- E.
tion on a corresponding or a: higher post shall count towards the
period of probation fixed under this Section;

(b) in the case of an appointment by transfer, any period worked
in the rank of Executive Engineer or above, prior to appointment
to the Service may, at the discretion of Government be allowed to F
count towards the period of probation fixed under this section;
and

(c) an officiating appointment in the Service shall be reckoned as
period spent on probation but no member who has thus officiated G
shall, on the completion of the prescribed period of probation be
entitled to be confirmed, unless he is appointed against a cadre
post.

(2) If the work or conduct of an officer appointed to the Service
during the period of probation is in the opinion of Government, H
620 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A not satisfactory, it may -

(a) dispense with his services, if recruited by direct appointment;
or

{b) if recruited otherwise -
B
(i) revert him to his former post; or

(ii) deal with him in such other manner as the terms and condi-
tions of his previous appointment permit.

C (3) On the completion of the period of probation of an officer, the
Government may --

(a) confirm such officer in his appointment; or

(b) if no cadre post is vacant for him, declare that he has completed
D his probation satfafactorily; or

(c) if his work and r.onduct has, in its opinion, not been satisfactory,
dispense with his service, if recruited by direct appointment; or

(d) if recruited otherwise ·-
E (i) revert him to his former post or

(ii) deal with him within the terms and conditions of his previous
appointment; or

(e) extend his period of probation and thereafter pass such orders
F
as it could have passed on the expiry of the first period of proba-
tion;

Provided that the total period of probation, including extension, if
any, shall not exceed three years.
G
(4) On the satisfactory completion of the period of probation.
Government shall confirm such officer in a cadre post, if one is
available for him."

By operation of sllb-section (1) of Section 11 an officer appointed to
H the Service shall remain on probation, in case of a direct recruit for a
S.S. BOLA v. B.D.SARDANA[K.RAMASWAMY,J.] 621

period of two years and in other cases, namely, appointment by promotion A
· or transfer, for a period or one year. The proviso postulates that any period,
prior to appointment to the Service spent on deputation on a correspond-
ing or a higher post shall count towards the period of probation fixed under
Section 11. Clause (b) of the proviso is not relevant, hence omitted. Clause
(c) of the proviso to sub-section (1) of Section 11 postulates that an B
officiating appointment in the Service shall be reckoned as a period spent
on probation but no member who has thus officiated shall, on the comple-
tion of the prescribed period of probation, be entitled to be confirmed,
"unless he is appointed against a cadre post". In other words, clause (c) of
the proviso to Section 11(1) is the opening key to understand that in cases C
of a direct recruit, on satisfactory completion of the period of probation,
if he is appointed to an ex-cadre post or promoted to a cadre post but is
officiating, the period spent on such posts shall be counted towards proba-
tion. Similarly, in the case of a promotee from Class II service defined
under Section 2(4) and found eligible, to put in the list, appointed in the
service as per the order in the list either under Section 8(10) and put on D
probation under Section 11(1), he becomes eligible to perform the duties
of the post in Class-I Service as Executive Engineer, though he is not
member of the Service as he was not appointed substantively to the cadre
post "within the quota" to a post "if available to him". On completion of the
prescribed period of probation, he shall not be entitled to be confirmed E
unless he is appointed against a cadre post. Equally a promotee appointed
to officiate in a cadre/ex-cadre post is entitled to count the period spent
on officiating capacity need not again be put on probation. The period may
· be counted towards probation and if he satisfactorily discharges the duties
of the post, the probation may be declared. But he is not entitled to be F
confirmed until the cadre post is available and appointed accordingly. In
other words, his confirmation of the probation or completion of probation
of officiating officer does not automatically give him absolute right to be
appointed against a cadre post; nor does he automatically become a
member of the Service, unless he is duly appointed in that behalf to a cadre
post in a substantive capacity within the quota to any cadre post, if available G
to him. '

Section 11 would equally apply to direct recruits as well as
promotee/transferee officers. Sub-section (2) deals with the cases relating
to officers whose service during probation is found unsatisfactory; they may H
622 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A be discharged from service if appointed by direct recruitment or by promo-
tion/transfer revert him to his former post as Class-II officer/revert to
parent Department or may be dealt with otherwise in terms and conditions
of previous appointment. It is not relevant for the purpose of this case to
elaborate further. Sub-section (3) has material bearing in this case. It says
B that the Government may, on completion of the period of probation of an
officer, (a) confirm such officer on his appointment; or (b) if no cadre post
is vacant and available within quota for him, declare that he has completed
his probation satisfactorily and awaits appointment is a substantive capacity
to a cadre post, if available within the quota; or (c) if his work and conduct
has, in its opinion, not been satisfactory, dispense with his service, if
C recruited by direct appointment; or (d) if recruited otherwise (i) revert him
to his former post; or (ii) deal with him within the terms and conditions of
his previous appointments (e) extend his period of probation and there-
after pass such orders as it could have passed on the expiry of the first
period of probation.
D
It would thus be clear that if no cadre post is available to either the
direct recruits or the promotee within quota, it shall be declared that they
have satisfactorily completed their probation and as soon as the cadre post
E become available, they would be appointed substantively to the cadre post
in accordance with the Rules and within their quota. If the service during
probation is found unsatisfactory, the direct recruit is required to be
discharged from service; or a promotee or a transferee is required to be
reverted to his former post or parent department or be dealt with in such
F other manner as per the conditions of the services of his previous appoint-
ment unless the period of probation is further extended. The provis:i to
Section 11(3) postulates that the total period of probation including ex-
tended period shall not exceed three years. Confirmation on probation is
a condition precedent to acquire the status as confirmed probationer. This
G will apply equally to direct recruit or promotee officer. Sub-section 4 of
Section 11 says that on the successful completion of the period of proba-
tion, Government shall confirm such officer in a cadre post "if one is
available for him". It is necessary to recapitulate that the confirmation of
an officer, be it direct recruit or promotee, should be only to a cadre post
H within quota only when the cadre post is available to their respective
source. None can trench into the other; nor can they claim officiation as a
·,
S.S. BOLA v. B.D. SARDANA [K RAMASWAMY, J.) 623

rirjit. The officiation is fortuitous, as perfotmance of duty on probation is an A
enabling provision to complete the prescribed promotion and await appoint-
ment in a substantive, capacity to a cadre post within the quota. Equally, of
officiating appointment. The effect of the phrase ''shall confinn such officer
in a cadre post if one is available" and the words "shall" manifest the intent
of the Legislature in unequivocal terms that on mere probation/officiation, B
he does not ipso facto would beco~e a member of the service in a
substantive capacity. Appoitilment under Section 8(9) to a cadre post
within the quota is a condition precedent. No more confusion. No more
further right.
c
As seen, by operation of Section 8 read with Sections 9 and 11, the
preparation of the seniority list, arrangement of the Class- II officers in the
order of merit by the Committee, approval by the Public Service Commis-
sion and final approval by the Government are pre-conditions for putting
the promotee officers on probation. By necessary implication, a temporary D
appointment on probation or officiation on a cadre post/ex-cadre post or
on confirmation of the probation on successful completion thereof does
not ipso facto give right to be the member of the Service. Appointment to
the Service where a cadre post is available under sub-section (9) of Section
8 in a substantive capacity, is a condition precedent. Therefore, a promotee E
Class- II officer shall be appointed substantively only within the quota. In
other words, if there is necessity of promotion of Class-II officers to the
Haryana Service of Engineers Class-I, under the Act, due to exigencies of
the administration, they tll_Il be promoted under Section 9 on complying
with the pre-condition of selection under Section 8 appointing them tern- F
porarily in officiating capacity under Section 8(10). Declaration of success-
ful completion of the probation does not ipso facto give them right to be
members of the service in a substantive capacity. They get into the service
only if cadre post is available within the 50% quota (for 8 years with 75%
quota to the Irrigation Branch) and their appointment in a substantive G
capacity dates-back to their date of appointment on probation. The inter
se seniority of the direct recruits and promotees shall be determined in the
manner laid down in the Act only when they are appointed within their
respective quota and their appointments are confirmed in a substantive
capacity from the respective dates of appointment. The order of seniority H
624 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A of the direct recruits as Assistant Executive Engineers promoted as pxecu-
tive Engineer is fixed with reference to the initial date of appointment. It
remains unalterable. This was the law laid down in Sehgal and Chopra's.
cases and no change has been brought about under the Act. Equally of the
direct recruit Executive Engineers under the Act.
B
The only enabling provision for Class-II Officer prom~ted as Exe~u
tive Engineers in Buildings and Roads Branch and Public Health Branch
has breathed life as probationers and they get confirmation after successful
completion; but have to await appointment in a substantive cadre post
C within t;he quota. The quota has remained unalterable. Thus, the promotee
Class-II officers are appointed to Class-I service as Executive Engineers.
This scheme does indicate that the first proviso to sub-section (2) of
Section 5 does not automatically give power to the State Government to
fill up the posts in service by promotion of the members of Class-II Service
D or by transfer in excess of the quota; nor does it amount to relaxation of
rule of quota. In other words, it gives an elbow power to the State
Government to promote the Class-II officers in excess of 50% quota (75%
in case of officers of Irrigation Branch cadr¢ post for 8 years) to meet
administrative exigencies and due to non-availability of the eligible and fit
E Assistant Executive Engineers who always remain to be members of service
in junior scale. It gives only a right to the promotee officer to occupy the
cadre post reserved for the direct recruit Executive Engineer and
promotee Executive Engineers from the cadre of Assistant Executive En-
gineers in junior scale of pay until their availability and no more.

F
A reading of these sections does indicate that successful completion
of the probation and declaration thereof enables the officer to continue to
officiate in a cadre post of Haryana Service of Engineers, Class-I, PWD in
the Irrigation Branch hitherto had, but the promotee officers from Build-
ings and Roads Branch and Public Health Branch had no such right as was
G declared by this Court in Chopra and Sehgal's cases. But, now, it has been
provided with a limited breather to complete the period of probation or to
officiate in an ex-cadre/cadre posts, i.e., due to probation or administrative
exigencies. He .shall not be confirmed to the cadre post unless the post is
available to him. The phrase 'if one is available' rendered hereinbefore is
H positive and unambiguous to the effect that successful completion of the
S.S. BOLA v. B.D.SARDANA[KRAMASWAMY,J.] 625

probation and declaration thereof does rtot automatically amount to con- A
firmation of such officer in his substantive appointment referred to in
clause (a) of sub- section (3) and sub-section (4) of Section 11 makes the
matter amply clear in that behalf. Availability of a cadre post within quota
shall ·always remain a pre-condition.

The crucial stage has now been set to consider the play of seniority B
under the Act. Section 12 dealts with seniority. It reads as under :

"12. (1) In the case of Assistant Executive Engineers the order of
the merit determined by the Commission shall not be disturbed
in fixing the inter se seniority amongst them. c
(2) Inter-se seniority of the members of the Service appointed as
Executive Engineers in the Buildings and Roads Branch, Public
Health Branch and Irrigation Branch shall be determined by the
length of continuous service oil the post of Executive Engineers : D
Provided that seniority shall be determined separately for Build-
ings and Roads Branch, Public Health Branch and Irrigation
Branch.

Provided further that in case of Executive Engineers directly E
appointed or promoted from Assistant Executive Engineer or
promoted from Class II Service or appointed by transfer on the
same day their inter se seniority shall be in the following order :

(i) Executive Engineer directly appointed shall be senior to all;
F
(ii) Executive Engineer promoted from Assistant Executive En-
gineer shall be senior to the Executive Engineer promoted from
Class-II service or appointed by transfer;

(iii) Executive Engineer promoted from Class II service shall be G
senior to the Executive Engineer appointed by transfer.

(3) In the case of the Executive Engineers appointed by transfer
from different cadres, their seniority shall be determined according
to pay, preference being given to a member, who was drawing a
higher rate of pay in his previous appointment, and if the rates of H
626 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A pay drawn are also the same, then by the length of their service in
the appointment; and if the length of such service is also the same,
the older member shall be senior to the younger member.

(4) Where a member of the Service, for a cause which Government
considers to be sufficient, is unable to join the Service or continues
B with Government's approval on deputation outside the Service, it
shall be open to Government to allow him credit for such service
as if it was service rendered under this Act for purposes of the
fixation of his seniority.

c Explanation. - All employment on deputation after a member has
joined the Service and has had his seniority fixed under this Act,
shall count as if it was employment in the Service and shall not in
any way affect the seniority already fixed, except to the extent that
such seniority would in any case have been affected had the
D member of the Service continued to work in the department."

Sub-section (1) of Section 12 assures continuance of inter se the order
of merit determined by the Haryana Public Service Commission. It postu-
lates that the order of seniority "shall not be disturbed in fixing the inter se
E .seniority amongst them". In other words, between direct recruits, the inler
se seniority as determined by the Public Service Commission shall be the
guiding star shedding light onto their inter se seniority. Here, it may
perhaps be relevant to mention that in a direct recruitment, the open
candidates and the reserved candidates are recruited in accordance with
the vacancies reserved; or are selected to the respective posts and their
F fitment is in accordance with the roster maintained by the Government.
Their seniority thus determined with the concurrence of the Public Service
Commission remains final. Therefore, it is equally settled law that the
reserved candidates are also entitled to be considered and appointed to
the general vacancies, while the reserved candidates are to be filled into
G the roster points earmarked for the reserved candidates. Thus, sub-section
(1) of Section 12 ensures the compliance of the maintenance of the inter
se seniority in that behalf.

Sub-section (2) of Section 12 deals with the inter se seniority between
the members of the service appointed as Executive Engineers in the
H respective Branches. It provides that their inter se seniority shall be deter-
S.S. BOLA v. B.D.SARDANA(KRAMASWAMY,J.] 627

mined by the length of continuous service on the post of Executive En- A
gineers. Provided that the seniority shall be determined separately for each
of the Branches. The second proviso further says that in the case of
Executive Engineers directly appointed or promoted from Assistant Execu-
tive Engineers or promoted from Class-II Service or appointed by transfer
on the same day, the inter se seniority shall be in the following order :
B
"(i) Executive Engineers directly appointed shall be senior to all.

(ii) Executive Engineers promoted from Assistant Executive En-
gineer shall be senior to the Executive Engineers promoted
from Class-II service or appointed by transfer. C

(iii) Executive Engineer promoted from Class-II Service shall be
senior to the Executive Engineer appointed by transfer."

In other words, it postulates appointment of Executive Engineers by
direct recruitment in which event they shall be put on probation under the D
relevant provision and on the successful completion of the probation, the
seniority between direct recruit Executive Engineer, direct recruit
promotee from junior scale of pay, i.e., Assistant Executive Engineers and
promotee Class-II officers or transferee officers, shall be directed to be
arranged as per their respective ranking specified therein. Thus, seniority E
shall be .given firstly to direct recruit Executive Engineers; then promotee
Assistant Executive Engineer; and then to Class-II promotee officers and
in the Jast to the transferee officers, if any. That is made manifest by clause
(iii) postulating that Executive Engineer promoted from Class-II service
shall be senior to the Assistant Executive Engineers appointed by transfer. F
In other words, the direct recruits take seniority over the promotees. For
instance in any year, there is direct recruitment of Executive Engineer; in
the same year Assistant Executive Engineer is also promoted as Executive -·
Engineer; equally, a Class II officer officiating in cadre post after his
placement in the select list and approval and successful completion of the
probation, is appointed to the Service to any cadre post available to him. G
-· In such a case, direct recruit Executive Engineer shall be confirmed first
and automatically his seniority would date back to his date of appointment
as Executive Engineer on probation. Similarly, the Assistant Executive
Engineer would be promoted and kept on probation and his seniority
would date back to the date of completion of probation as Executive H
628 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A Engineer but his entry to the service as Assistant Executive Engineer
remains unalterable. In a given situation, where suitable relaxation of the
minimum qualifying service is given uniformly to the Assistant Executive
Engineers as well as the promotees also, the Assistant Executive Engineer
promoted as Executive Engineer would become senior to the Executive
B Engineer promoted from Class-II service and thereafter if there is any
Executive Engineer appointed by transfer, he would become juniormost,
irrespective of the date from wliich he was appointed and kept on proba-
tion and would await appointment to a cadre post and appointed accord-
ingly, as the case may be. It is seen that this provision instead of helping
C the promotees, alters the law declared by this Court in Sehgal and Chopra's
cases to their detriment. The continuous length of service must, of neces-
sity, be understood in that perspective; lest several distortions would creep
in and would defeat the scheme of seniority and disturb the balance
brought out by this section. The continuous length of service should,
therefore, be from the respective dates of appointment within the quota to
D the available cadre posts allocated to the respective sources, i.e., direct
recruits as one unit and promotees and transferees as another unit and'
inter se between themselves of each source. The effect would be considered
after considering the constitutionality of the Act.

E Sub-section (3) of Section 12 makes the matter further clear and
states that in the case of Executive Engineer appointed by transfer from
different cadres, their seniority shall be determined according to pay,
perference being given to a member who was drawing a higher rate of pay
in his previous appointment and if the rates of pay drawn are also the same,
F then by the length of their service in the appointments and if the length of
such service is also the same, the older member shall be senior to the
younger member. In other words, the transferee officer on successful
completion of the probation would be junior-most among others after
direct recruits and promotees are fitted into the service. Among the equal
transferee appointees on deputation, the officer drawing higher pay in
G previou.s appointment shall be senior, where pay drawn by them is same,
then the officer with longer service would be senior; and if service length
is equal, the officer older in age would be senior. It is further explained
that all appointments on deputation, after a member has joined the Service
as member and "has had his seniority fixed under this Act, shall count as
H if it was employment in the service and shall not in any way affect the
S.S. BOLA V. B.D.SARDANA[K.RAMASWAMY,J.) 629

seniority already fixed, except to the extent that such seniority would in any A
case have been affected had the member of the service continued to work
in the department".

That will be clear when we look at the conjoint operation of all the
provisions and the operation of the seniority under Section 12 of the Act. B

Sections 13 to 22 are not relevant for the purpose of this case; hence
they are omitted. Section 23 provides that the Rule of reservation provided
J:o Scheduled Castes and Backward Classes, Ex-Servicemen and physically

- handicapped persons or any other class or a category of persons provided
previously or other concessions shall not be affected by the provisions of C
the Act and same shall continue and Government has been given power to
exercise in that behalf the said power from time to time. Section 24 gives
power to make Rules and Section 25 is repealing and saving provision. It
says that the Haryana Ordinance No. 6 of 1995 is repealed and the statutory
Rules~f 1961 relating to the three Branches with their application to the D
State of Haryana are also repealed except to the extent that the Rules shall
continue to apply to persons who were members of the Service under the
respective Rules prior to the 1st day of November, 1966. The proviso saves
any penalty or punishment imposed as a result of the disciplinary proceed-
ings; disciplinary proceedings initiated or pending under the repealed E
Rules; any relaxation for qualification granted to any member of the
Service under the repealed Rules and also the benefits accrued to the
officers who retired during the period from 1st day of November, 1966 to
the date of promulgation of the Ordinance. It further postulates that the
Punjab Service of Engineers Class-I, PWD (Buildings and Roads Branch) F
Rules, 1960, the Punja_l> Service of Engineers, Class-I, PWD, (Public Health
Branch) Rules, 1961 and the Punjab Service of Engineers, Class-I, PWD
(Irrigation Branch) Rules, 1961 shall continue to be in force as if the same
had not been repealed.

What consequence would emerge from its repeal and savings, is the G
question. By operation of the above-quoted sections, the direct recruit
Assistant Executive Engineers in junior scale of pay have already been
integrated as members of the Service and their pre- existing rights have
already been protected and continued. Be it under the law as declared by
this Court or by operation of retrospective deeming fiction given to the H
630 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A Act. But as far as the promotee officers are concerned, though deeming
fiction is equally available, until they are duly brought in the Service by
express order of appointment there is nothing to suggest that they must be
deemed to have been appointed un~r the Act. On the other hand, the
respective Rules remain unaffected and continue to remain in force. There-
B fore, until they are duly and carefully integrated into the Service, they do
not become the members of the service in a substantive capacity under the
Act. This is the starking consequence that has been brought about under
the Act and given little benefit to the promotees than they had under the
respective repealed Rules. On the other hand, the axe knocked of their

C
leads and they have not been saved under clauses (a) to (d) under proviso
to Section 25 of the Act. The direct recruits were already integrated into
the membership of the Service and they became the members of the Service
-
by fiction of the law by giving retrospective effect which otherwise is not
necessary as Sehgal and Chopra is the law of the land by Article 141 and
no more is needed for them.
D
The question, therefore, arises; what is the consequence vis-a- vis
promotees? Whether the legislature is competent to enact the Act with
retrospective effect? At this stage, we would reiterate that the State Legis-
lature does have the power to enact the Act under Article 309 as well as
E under Article 245(1) read with Entry 41 of List II of the Seventh Schedule
to the Constitution. The question only is : whether it can enact the Act with
retrospective effect and what would be its consequence? At this stage, it is
relevant to note the Statement of Objects and Reasons of the Act which
reads as under :

F "There were separate rules regulating service conditions and fixa-
tion of seniority in the Engineering Services in P.W.D., B & R,
Public Health and PWD Irrigation Branch. These rules although
different for the three branches were on identical lines with minor
variations. These rules have been interpreted by the Supreme
G Court in the cases of A.N. Sehgal v. Sheoran and S.L. Chopra v.
B.D. Sardana. Subsequently, the judgment has been interpreted
further in the case of A.N. Sehgal v. R.R. Sheoran by an order dated
31st March, 1995 of the Supreme Court in a Contempt Petition
filed by Shri R.R. Sheoran. In the Public Health side, the seniority
H list prepared under the directions of the Supreme Court in S.L.
S.S.BOIA v. B.D.SARDANA(K.RAMASWAMY,J.) 631

Chopra v. B.D. Sardana's case was challenged in the High Court A
which struck down the list. Thereafter, an appeal was filed by the
State in the Supreme Court against the order of the High Court
in the case State v. B.D. Sardana. The appeal was admitted by the
Supreme Court and the operative portion of the judgment of the
High Court was stayed: The matter is pending for final decision in B
the Supreme Court and meanwhile the seniority list prepared by
the State is being operated by Public Health Branch.

2. Meanwhile, consequent to the directions given by the Supreme
Court in the case of A.N. Sehgal v. R.R. Sheoran and orders of the C
Supreme Court dated 31st march, 1995 in the Contempt Petition
filed by R.R. Sheoran subsequently the seniority list had to be
redrawn in the case of B & R Branch, which was totally at variance
with the manner in which the seniority was drawn up in the case
of Public Health Branch. Thus, the directions of the Supreme
Court in the case of B & R Branch had created a lot of Administra- D
tive problems with certain very junior officers getting undue
seniority and becoming senior to the officers under whom they
were previously working. This naturally resulted in servere

- groupism and tension. between officers of the department in their
day-to-day working. E

3. In order to have uniform rules for all the three branches of
Engineering Services and to clarify the position in an unambiguous
manner so as to have uniformity and clarity in interpretation, it
became necessary to make certain amendments with retrospective F
effect. This was possible only by enacting a legislation in this
regard. As the Haryana Vidhan Sabha was not in Session, it was
decided to achieve the purpose through issue of an Ordinance on
13th May, 1995. The Ordinance replaced the existing rules for all
the three branches of the PWD and the common enactment was
to govern the service matters of Class-I service of B & R Branch, G
Public Health Branch and Irrigation Branch."

As stated earlier, in para 1 of the Statements of Objects and Reasons,
reference is made to the judgments rendered by this Court in Sehgal and
Chopra's cases and pendency of the litigation in the High Courts and in H
632 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A this Court. Para 2 postulates that pursuant to the orders passed by this
Court in the Contempt Petition filed by R.R. Sheoran on March 31, 1995
this Court directed to prepare the seniority list in accordance with the
mandamus issued thereunder. It is stated that "thus, the direction of the
Supreme Court in the case of B & R Branch had created a lot of
B Administrative problems with certain very junior officers getting undue
seniority and becoming senior to the officers under whom they were
. previously working. This naturally resulted in severe .groupism and tension
between officers of, the department in their day-to-day working". Para 3
states that in order to have uniform rules for all the three branches of
Engineering Services and to clarify the position in an unambiguous manner
C so as to have uniformity and equality in interpretation, "it became necessary
to make such amendments with retrospective effect. This was possible only
by enacting a legislation in that regard". It would, thus, indicate in unmis-
takable brazen terms that the reason for the enactment was that the
declaration of law of this Court became unworkable and caused hardship
D to senior officers as junior officers gained undue advantage under the law
declared by this Court. The object was to undo it and they wanted to
declare the law in unambiguous terms by enacting the Act. Thereby unifor-
mity was sought to be achieved with retrospective effect. The attempt of
the counsel for promotees and the State of Haryana, to totally ignore the
Statement of Objects and Reasons to enacf the law, is impermissible.
E Preamble is the key to open the mind of the maker of the law, if the Act
read with its Preamble would indicate the object which the Legislature
-
seeks to achieve in enacting the Act and its intention becomes plain and
manifest. It is settled law that if the language in the Act/Section/clause is
clear and unambiguous it is not necessary to fall back upon the Statement
F of Objects and Reasons of the Act to cull out the intention. Therefore, we
need not burden the judgment by citing copious precedents in this behalf.

India is a sovereign, socialist, secular democratic republic. It is
axiomatic to reiterate that the preamble, as its integral part, is the basic
feature of the Constitution. It assures to every citizen social, economic and
G political justice, stated liberties, equality of status and of opportunity with
dignity of person to all segments of the society residing in all the States as
administrative units of the Union of India in an integrated Bharat. The
founding fathers of the Constitution distributed our sovereign power
through "We the people of India" among the Legislature, Executive and the
H Judiciary.
S.S. BOLA v. B.D.SARDANA[K.RAMASWAMY,J.] 633

In order to achieve fruition of the above goals, as its bastian, the A
power of judicial review has expressly been conferred on this Court and
the High Courts and the independence to the Judges is secured under the
Constitution itself. Democracy and rule of law are two archs of the Con-
stitution. Constitutional duties and responsibilities of the constitutional
courts and the Judges are enjoined, in terms of their oath taken under the B
Third Schedule to the Constitution, to uphold the Constitution and the law
and to admidster justice without fear or favour, ill-will or affection. The
constitutionalism and rule of law breath and disseminate their vitality
through judicial review which is their life-breathe.

The Constitution is the supreme law; the legislature derives the C
sovereign will of the people to enact the law subject to the Constitution
and their powers are derived under Articles 245 and 246 and related
Articles read with the Seventh Scheduled and the relevant Entries in the
respective Lists I, II and III of the Seventh Schedule to the Constitution.
The rule of law, maintenance of the assured fundamental freedoms, the D
rights and privileges guaranteed as the Fundamental Rights under Chapter
III and the Directive Principles of the State Policy under Chapter IV, are
pillers to make meaningful the rights to justice, equality of status and of
opportunity, and dignity of person assured to every citizen of the country;
common citizenship is uniform to all citizens of the country irrespective of E
their region, religion, race, caste, sex or place of birth or any of them. The
fundamental freedoms ar.e' secured to all citizens and each is entitled to
~ ' ' - - -
the
protection and enforcement according to their needs, avocation, profession
etc. Rich and middle class man is entitled to protection of his person and
property and right to pursuit of profession, avocation or business of his F
choice. Poor man is equally entitled to make his right to life, guaranteed
under Article 21, meaningful by securing adequate means of livelihood,
right to health, education, of residence or shelter etc. which are essential
and unavoidable components of life for enjoyment of fundamental
freedoms. Therefore, the rights and entitlements vary according to the need
and requirement (due to vastness of the country). Regional imbalances G
hierarchical social structure and division of the people on account of their
professing different religions of their choice, or on account of their living
in different regions or speaking varied languages and scripts, need to be
integrated and social justice and economic empowe!'ment are provided to
all weaker sections of the society. H
634 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A In K.artar Singh v. State of Punjab, [1994] 3 SCC 569, a Constitution
Bench (to which one of us, K. Ramaswamy, J., was a member) was to
consider the constitutionality of the TADA Act. In that behalf, in a
separate but partly concurring and partly dissenting judgment, the follow-
ing as concurrent, it was held in para 373 at page 715 that the foundation
B of Indian political and social democracy, as envisioned in the preamble of
the Constitution, rests on justice, equality, liberty, and fraternity in secular
and spocialist republic in which every individual has equal opportunity to
strive towards excellence and of his dignity of person in an integrated
egalitarian Bharat. Right to justice and equality and stated liberties which
include freedom of expression, belief and movement are the means for
C excellence. The right to life with human dignity of person is a fundamental
right of every citizen for pursuit of happiness and excellence. Personal
freedom is a basic condition for full development of human personality.
.
Article 21 of the Constitution protects the most precious right, viz.,
D right to life in a civilised society. Liberty, equality and fraternity, the trinity,
always blossom and enliven the flower of human dignity. One of the gifts
of democracy to the mankind is the right to personal liberty. Life and
personal freedom are the prized jewels and Article 19 conjointly assures
by Articles 20 to 22 of the Constitution freedom of movement. Freedom
can never exist witho11t order. In order that freedom and order co-exist, it
E is essential thl!t freedom should be exercised under authority and order
should be enforced by authority which is vested solely in the executive.

Fundamental rights are means and Directive Principles are essential
ends in a welfare State. The evolution of the State from police State to a
p welfare State is the ultimate measure and accepted standard of democratic
society which is an avowed constitutional mandate. Ti1ough one of the main
functions of the democratic Government is to safeguard liberty of the
individual unless its exercise is subject to social control, it becomes anti-
social or undermines the security of the State. The Indian democracy
wedded to rule of law aims not only to protect the fundamental rights of
G its citizens but also to establish an egalitarian social order. The individual
has to grow within the social confines preventing his unsocial or unbridled
growth which could be done by reconciling individual liberty with social
control. Liberty must be controlled in the interest of the society but the
social interest must never be overbearing to justify total deprivation of
H individual liberty.
S.S. BOLA v. B.D. SARDANA [K RAMASWAMY, J.] 635

Liberty cannot stand alone but must be paired with a companion A
virtue-liberty and morality; liberty and law; liberty and justice; liberty and
common good; liberty and responsibility, which are concomitants for or-
derly progress and social stability. Man being a rational individual has to
live in harmony with equal rights of others and more differently for the
attainment of antithetic desires. This intertwined network is difficult to B
delineate within defined spheres of conduct within which freedom of action
may be confined. Therefore liberty should not always be an absolute licence
but must arm itself within the confines of law. In other words, there can
be no liberty without social restraint. Liberty, therefore, as a social concep-
tion, is a right to be assured to all members of a society. Unless restraint
<
is enforced on and accepted by all members of the society, liberty of some C
must involve the oppression of others. If liberty be regarded a social order,
the problem of establishing liberty, must be a problem of organising
restraint which society controls over the individual. Therefore, liberty of
each citizen is borne of and must be subordinated to the liberty of the
greatest number; in other words, common happiness as an end of the D
society; lest lawlessness and anarchy will hamper social weal and hamper
harmony and powerful courses or forces would be at work to undermine
social welfare and order.

Thus, the essence of civil liberty is to keep alive the freedoms of the
individual subject to the limitation of social control which could be adjusted E
according to the needs of the dynamic social evolution. Liberty, equality
and fraternity are not to be treated as separate entities but a trinity. They
form the union in that to divorce one from the other is to defeat the very
purpose of democracy. Liberty cannot be divorced from equality. Equality
cannot be divorced form liberty. .Nor can equality and liberty be divorced p
from fraternity. Without equality, liberty would produce supremacy of law.
Equality without liberty would kill individual initiative. Without fraternity,
liberty and equality would not become a natural course of things. Courts,
as sentinel on the qui vive, therefore, must strike a balance between the
changing needs of the society for peaceful transformation with order and
protection of the rights of the citizen. This could be achieved through G
securing and protecting liberty, equality fraternity with sociaf justice and
economic empowerment and political justice to all citizens only under rule
of law.

In His Holiness Kesavananda Bharati Sripadagalavaru v. State of H
636 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A Kera/a, (1973] Supp. SCC 1, a thirteen-Judge Bench (then Full Court) held
that separation of powers between the legislature, the executive and the
judiciary is also basic feature of the Constitution; the grounds given in
support thereof in various judgments were diverse and varied. In Special
Reference No. 1of1964 [1965) 1 SCR 413, Chief Justice Gajendragadkar,
B speaking for the majority of seven-Judge Bench, upheld judicial review on
the anvil of the distribution of the sovereign power among the three organs
of the State and express absence of power of judicial review in the Legis-
lature; conversely, its conferment on the judiciary as a ground, to exercise
judicial review of legislature acts and executive actions. In Minerva Mills v.
Union of India, (1980) 3 SCC 625 also, this Court declared judicial review
C as one of the basic features of the Constitution but reasons again were not
uniform. In L. Chandra Kumar v. Union of India, [1997] 3 SCC 216, a
seven-Judge Bench (to which two of us, K. Ramaswamy and S. Saghir
Ahmad, JJ., were members), speaking through Ahmadi, CJI., surveyed the
entire reasoning and pithily put the functional efficacy as main ground,
D holding that the conferment of the power of judicial review and assurance
of security of tenure and the nature of judicial functions, are the formidable
grounds for distribution of sovereign power of the people and its location
in each of the three organs of the State, i.e. legislature, executive and
judiciary as only demarcating lines. It was held that judicial review is the
basic feature of the Constitution and is the function of the Constitutional
E Courts. The Parliament is devoid of power, by operation of Articles 323A
and 323B, to deprive this Court of power of judicial review under Article
32 and the High Courts under Article 226/227. The constitutional Courts,
viz., this Court and the High Courts, have fundamental duty and, therefore,
they exercise the power of judicial review of legislative Acts, administrative
p actions and quasi-legislative orders.

In S.R. Bommai v. ·Union of India, [1994) 3 SCR 1, a nine-Judge
Bench of this Court considered the constitutionality of the proclamation of
Emergency issued by the President of India exercising the power under
Article 356 of the Constitution. In that behalf, one of us, K. Ramaswamy,
G J., a member of the Bench, dealt with the power of judicial review of this
Court over the constitutional act done by the President. In paras 255 and
256 at page 207, it was held that judicial review is the basic feature of the
Constitution. This Court and the High Courts have constitutional duty and
responsibility to exercise judicial review as sentinel on the qui vive. Judicial
H review is not concerned with the merits of the decision but with the manner
S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.) 637

in which the decision is taken. The exercise of power under Article 356 is A
a constitutional exercise of the power of the President. Therefore, judicial
review must be distinguished from the justiciability by the Court. The
power of judicial review is a constituent power and cannot be abdicated by
judicial process of interpretation. However, justiciability of the decision
taken by ihe President. is one of exercise of the power by the Court hedged B
by si:lf-imposed judieial res"traint. It is a cardinal principle of our Constitu-
tion that no one, howsoever lofty, can claim to be the sole judge of the
power given under the Constitution. Its actions are within the confines of
the powers given by the Constitution. In para: 257, this Court held that this
Court as final arbiter in interpreting the Constitution, declares what the
law is. Higher Judiciary has been assigned a delicate task to determine what C
powers the Constitution has conferred on each branch of the Government
and whether the actions of that branch transgress such limitations, and it
is the duty and responsibility of this Court/High Courts to lay down the
law. It is the constitutional duty to uphold the constitutional values and to
enforce the constitutional limitations as the ultimate interpreter of the D
Constitution. Judicial review, therefore, extends to examination of the
constitutionality of the Proclamation issued by the President under Article
356. In Kihoto Hollohan v. Zachillhu and Others, (1992) Supp. 2 SCC 651,
the Constitution Bench, per majority, had undertaken judicial review of
Tenth Schedule to the Constitution of its constitutionality and parameters
of power of judicial review, though judicial review was expressly excluded. E
The minority negated the power to the Parliament to enact the law exclud-
ing judicial review. Majority read limitations into it.

It would thus be clear that the constitutional Courts alone are
competent and it is their primary constitutional duty to exercise the power p
of judicial review to pronounce upon the constitutionality of the Act, Rules
and Orders. Judicial review, therefore, is the basic feature upon which
hinges the checks and balances blended with hind sight in the Constitution
as people's sovereign power for their protection and establishment of
egalitarian social order under the rule of law. The judicial review, there-
fore, is an integral part of the constitution as its basic structure. G

Though Article 13 of the Constitution is the charter for Judicial
Review, Article 32 and Articles 226/227 are the express source under which
this Court and the High Court concerned, exercise the power of judicial
review. Dr. Ambedkar, the father of the Constitution in his closing rehiarks H
638 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

. A on the Draft Constitution, when asked for , stated that "the soul;' and "heart"
of the Constitution lie in Article 32 and mutatis mutandis in Articles 226
and 227 of the Constitution. The reason is that each administrative unit is
provided with High Court, but is subject to final decision by Union
judiciary, i.e. this Court, in a unity form. The object of judicial review is to
B maintain constitutionalism and to uphold the constitutionality of the legis-
lative Acts, administrative actions and quasi-legislative orders within the
confines of the Constitution. It is basically directed against the actions of
the State or its instrumentalities.

Democracy is the basic structure. Judicial review stems from federal
C structure to pass upon constitutionality of legislative or administrative acts
either to enforce valid Acts or to refuse to enforce the Acts found uncon-
stitutional. Therefore, it is a constitutional mechanism for protecting basic
features of the Constitution fundamental freedoms and the rule of law.
Judicial review is necessary in a constitutional democracy to maintain the
D conditions of democratic, sovereignty and as an insurance against the
potential abuse of executive or legislative power.

In a parliamentary democracy where constitutional supremacy
prevails, Constitution remains a living moral and intellectual force only by
judicious exercise of judicial power; the moral and intellectual binding
E force can be enforced. Judicial review being the arch of democracy and
the rule oflaw-life-breathe of constitutionalism, it would succeed in mould-
ing the Governmental process and help to regulate the social and economic
structure of the society under rule of law. The Legislature derives its
authority measured by the Constitution, and they do it within the Constitu-
F tional parameters; nothing more and nothing less. The competence of
legislature, though flows from Articles 245, 246 and related Articles and
legislative heads are desired from relevant Entries in respective Lists of the
Seventh Schedule to the Constitution as their fountain source of power, it
is subject to the other provisions of the Constitution, i.e., judicial review.
So, the constitutionality of the legislative actions and executive Acts should
G be tested on the anvil of constitutionalism and the ingrained principles.
Equity steps in where the law has left yawning gap. In interpreting the
constitutional provisions dealing with distribution of powers between the
Legislature, the Executive and the Judiciary, neither equity nor equitable
considerations play any role much less meaningful role, though ultimately
H inequitable results may emerge. Application of equitable ·considerations in
S.S. BOLA v.. B.D. SARDANA [K. RAMASWAMY, J.) 639

delineating the spheres of powers between the three organs of the State A
would tend to denigrate the constitutional objectives and destroy the
Balance and disturb the harmony of power.

By oath, the legislator and the executive solemnly undertake to
uphold the Constitution. The legislature and the executive are enjoined by B
the Constitution to remove social imbalances; reduce social tensions and
reorganise social and economic structure of the society by suitable legisla-
tive or administrative actions as well as political urges of the time that need
attention. If the law made by the legislator is in conflict with the Constitu-
tion, it would be obvious that it is no good law and the Constitution has
imposed a solemn duty on the judiciary to determine constitutionality and C
the legality of all laws and executive actions on the touchstone of the
Constitution and appropriate principles laid within the parameters of the
Constitution itself. The Constitution is enjoined to maintain and preserve
harmony between the rulers and the ruled and be a useful instrument to
fulfil economic and social needs, adjusting ever-changing social require- D
ments by reconciling the conflicting claims of diverse social segments.
Judicial review thereby creates harmony between the fundamental law, i.e.,
the constitution and the legislative enactment. The judicial review in a
democracy thus becomes useful instrument embedded in the Constitution
for the welfare of the people, social progress and peace and order.
E
The process of judicial scrutiny of th~ legislative Acts on the touch-
stone of the Constitution is technically called "Judicial Review". Its histori-
cal and philosophical approach leads to test the enactment of only legal
laws based on ethical and rational thinking, which protects and maintains
individual liberty and fundamental freedoms, creates social and economic F
harmony and has the glorious role of reconciling political imbalances and
deny democratic despotism by establishing constitutional balance and jus-
tice in the society. The fundamental object of judicial review is to exert a
great moral force upon the legislature/executive to remain within the limits
of the Constitution and to save· the people from the democratic tyranny. G
The Constitution being the supreme, all the organs owe their existence to
it. None can claim superiority over the other and each has to function
within the four corners of the constitutional provisions and implied limita-
tions arise therefroir... Implied limitations built in the exercise of the power
is founded upon higher values to enrich the democratic functioning as ~n
essential aid to civilised living and existence and as also for smooth trans- H
640 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A actions of business by respective wings of the State. Therefore, implied
limitations be sent into the exercise of the powers by all the organs of the
-
Constitution. To ensure an effective working of judicial review, it is
necessary to keep in forefront the history of our Constitution itself,
geographical conditions, social structure, economic development, 'social
B and religious composition of the people of India, the needs of the time, the
history of the impugned legislation, necessity of its enactment, the ethical
background as well as its social effects, and as also its impact on individual
citizens. All these combine to facilitate a right conclusion about the con-
stitutionality of law in the process of judicial review. It is always to bear at
the back of our mind that where the system of judicial review prevails, it
C contributes greatly to the constitutional development of the country, social
stability and the progress. The legislature has to enact laws forsaken of
legislative hibernation and in conformity with the will of the sovereign
people, embodied in the Constitution. Legislative Acts which are repugnant
to the will of the sovereign people, i.e., which are against the constitutional
D limitations, restrictions and prohibitions, are void or become violable on a
proper declaration of the Court and have no legal sanctity.

The Courts, however, adopt judicial self-restraint in discharging their
functions of judicial review in order to maintain harmony between the
judiciary, the Legislature and the Executive. The power of judicial review
E of legislative Acts vested in the High Courts and this Court, must be
exercised with wisdom and self- restraint and not in a spirit of cold war
between Parliament or State Legislatures and courts. Non-interference
with the view of the majority in Parliament with regard to what is
reasonable and interference with what is prohibited by the Constitution
F may perhaps, be harmonious path for peaceful transition for glorious
future. Of course, it cannot be denied that the harmonious working of the
Judiciary, the Legislature and Executive would always advance the cause
of democracy. In any written Constitution, sovereignty vests in the people
as represented by three wings - the Legislature, the Executive, and the
Judiciary and no wing can claim supremacy over any other wing. Their
G spheres are well defined with balances and counter-balances. When we
angulate the pi;oblem in this true spirit and persp~ctive, there may be no
occasion for conflict; on the other hand, it would develop mutual respect
and harmony in otherwise grueling joints.

H The tradition of judicial self-restraint reqmres some workable
S.S.BOLAv. B.D.SARDANA[KRAMASWAMY,J.] 641

- change. Certain innovations in the scope of judicial review require atten- A
fion, and as such, in India, the role of this Court and of the High Courts
is that of nation-builders. They have to evolve indigenous and more
democratic system of judicial review, which may be helpful in lessening
hyper sensitivity and resolve social tensions. The judicial review keeps the
law on even keel, enables the citizens of this great democracy to live in a B
free and just society with pride and dignity of person; strengthens respect
for ·judicial review; creates salutary effect on social weal. Realistic and
luminous efforts on the part of our judiciary to articulate the correct
perspective with glory would certainly elongate the aspirations of the
people. The task of judicial review for constitutional judges is really heavy
and onerous, but the working of judicial review with vigilant and searching C
mind would greatly lighten the burdens. Unconstitutionality of a statute or
executive ·action may arise from violation of principle of distribution of
powers or separation of powers; violation or suppression of fundamental
rights or freedoms; or violation of some constitutional limitations/restric-
tions.
D
The tendency in the growth and prolixity of the unconstitutional
spate of legislation in India, like the Act, unquestionably signifies a matter
of great concern and it requires alertness in determination to inculcate the
habit of enacting laws in conformity with the Constitution. The supremacy
of the Constitution would be vindicated through the process of judicial E
review.

The founding-fathers very wisely, therefore, incorporated in the Con-
stitution itself the provisions of judicial review so as to to maintain the
balance of federalism, to protect the fundamental rights and fundamental F
freedoms guaranteed to the citizens and to afford a useful weapon for
availability, availment and enjoyment of equality, liberty and fundamental
freedoms and to help to create a healthy nationalism. The function of
judicial review is a part of the constitutional interpretation itself. It adjusts
the Constitution to meet new conditions and needs of the time. The system G
of judicial review developed by this Court as final arbiter, has not only a
constitutional basis but it has also a philosophical and ethical foundation
to maintain democracy and to alert the other wings of the State to abstain
from making unconstitutional acts/actions. The vitality of this system stands
rooted mostly on our historical perspectives, social and economic vi~w of
life of all our people, anci also on the persuasive conscience of the judici;;ry H
642 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A itself. Even Lord A.L. Goodhart, representing the English concept and
sentiment of law, has stated in preface to English Law and the Moral Law
--
Hamlyen Lectures, 1952 series that where the system of judicial review of
legislative Acts does not prevail that law which is divorced from morality,
tends to wither and becomes ineffective. Judicial review stands to bring
harmony and happiness to the mankind. It seems manifestly clear that for
B the ultimate benefit of people the judicial vision in judicial review of
legislative and executive acts has necessarily to be wider and flexible for
the preservation of liberty and fundamental freedoms to all people, for the
growth of the nation, individual culture and civilisation, which are essential
to individual's striving and opportunity with stated reasonable restrictions.
c
Thus, on a pragmatic approach, judicial review is an unavoidable
necessity wherever there is a constant danger of legislative or executive
lapses, and appalling erosion of ethical standards in the society. The

D
absence of judicial review in the Indian Constitution would have created
extreme social and economic revolutions leading to the complete annihila-
..
tion of democracy and once again loss of sovereignty leading the country
into perpetual slavery. We have to make continuity with the past under rule
of law as a necessary concomitant to peace and progress and equally put
suitable limitations on excessive legislative or executive lapses.

E So long as constitutional democracy prevails, judicial democracy is
sure to have a firm stand. The judiciary needs to be firm in its performance
of duty and enforcement of the constitutional obligations; and the result of
its decision must be towards the ultimate benefit of the nation. The Court ,
-
should always be sentinel on the qui vive as the gnardian of the rights,
F liberties and fundamental freedoms of the citizens of India. The judiciary
cannot forsake its constitutional duty to determine finally the con-
stitutionality of an impugned statute/action. India owes its great heritage
to America for the modern concept of judicial review. Indian statesmen,
foun~ing fathers of the Constitution and the Judges of this Court made the
concept of judicial review a living reality to our nascent sovereign, secular,
G socialist democracy to help the plant of fundamental freedoms grow and ,..
blossom social, economic and political democracy with equal status and
dignity of person to all, rich or poor alike to flourish and operate the law
on even keel. The. plant of judicial review has grown into a clear vision,
more healthy plant by introducing several judicial principles like basic
H structUre, and due process of law with protective discrimination in the
S.S.BOLAv. B.D.SARDANA(K.RAMASWAMY,J.] 643

- Constitution itself a viable principles. Judicial review, thus, has a great A
impact on the social structure of India. It has helped to develop the
personal rights of the individual, be it rich or poor, treating them alike as
per needs and has strengthened social, economic and political democracy
as well. As stated earlier, unbridled individualism and the unbalanced
social growth are not healthy signs of the social progress and happiness B
and peace in the society. They hamper and retard progress and peace.
Judicial review has become linking force between the individual and the
social interest and political stability and ethical considerations have often
been counter-balanced the ultra vires acts by judicial decisions. Judicial
review has exerted immensely to raise the level of social morality. Moral
and philosophical adjustment is not a mere pious wish, but has foundation C
on the constitutional sanction and the court has a constitutional obligation
in this regard as well. Besides protecting the individual's rights, the court,
by upholding the validity of the law, has advanced social and economic
progress, agrarian reforms and social justice and economic empowerment.
The judges, therefore, are per force judicial statesmen. D

The unconstitutionality of a statute/executive action arises from
various constitutional violations such as the violation of the rules of dis-
tribution of power, separation of powers, as also from the infringement of
fundamental rights and from violation of other constitutional restric-
tions/limitations. Various constitutional doctrines have been evolved, which E
afford guidance to the court in the scrutiny of unconstitutionality. Thus,
judicial review is a moral guarantee wrapped in legal commands. In a
welfare State like India, healthy nationalism consists in evolving such
socio-economic philosophy for the reconstruction of the society which may
be beneficial to the nation and for this the Court is the best adjunct to p
filtrate and advance such dynamic principles for developing the nation
through judicial review as united Bharat.

In discharging the functions of judicial review, this Court and the
High Courts have constitutional duty and obligation to interpret the Con- G
stitution to enable all citizens enjoy the rights and fundamental freedoms
and foster availment of facilities and opportunities for individual and
collective excellence so that nation constantly rises to higher levels of
endeavour and achievements; declare the law as unconstitutional if found
to be contrary to the Constitution; to protect the fundamental rights and
fundamental freedoms guaranteed by the Constitution, maintain and ob- H
644 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.
A serve federal structure built in by the Constitution and harmonious
relationship between the Union of India a.id the States or the States inter
se if they go against delegation of essential legislative powers by the
Legislature to the Executive; maintain the balance between the Executive
and the Legislature; relieve the people from legislative excesses or hyber-
nation; maintain harmony between members of society to maintain social
B
order; provide appropriate relief to the citizens by refusing to apply the
unconstitutional acts, actions or orders.

The judicial review, thus, alerts the legislature/executive to conform
to the constitutional requirements and to avoid constitutional lapses; to act
C as a check to balance the competing powers without being encroached
upon by the other agencies of the State including the Court itself to
generate and develop socio- economic structure and to help in the estab-
lishment of egalitarian social order; provide equality of opportunity and of
status to all citizens on even keel by developing appropriate principles of
D social engineering and at the same time maintain judicial discipline by ....
self-imposed restriction and keep their own power of judicial review within
the constitutional parameters. As an essential concomitant, they inculcate
faith and confidence in the efficacy of rule of law and enforcement of law
and render justice to all citizens justly, fairly within noted equity jurisdic-
tion. Law must harmonise social and economic conditions at the given time,
E Constitution being the paramount law, and social imbalances and its
restructure would be brought about by legislative Acts, administrative
actions or quasi-judicial orders for social good in an egalitarian system of
governance.

p As stated earlier, the Constitution is founded on ethical considera-
tion, high public morality, socio-economic and political urges of the given
time. They require alterations for which the Constitution prescribes rights,
duties and functions of different governmental organs. Constitution confers
powers on each organ of the Government, apart from constitutional com-
G pulsions, as moral obligation to obey the limitations and restrictions im-
posed by the Constitution. A good and virtuous constitutionalism having
moral foundation protects not only fundamental freedoms but also creates
a bridge between conflicting interests and becomes a harbinger to the
social needs and produces good legislators and good citizens. The constitu-
tional Courts as sentinel on the qui vive, therefore, function objectively and
H dispassionately to correct imbalances and keep check on every wing of the
S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.) 645

• State without trespassing upon the field assigned or powers conferred upon A
the other wings and at the same time maintain delecate balance on even
)
keel.

The question, therefore, emerges; whether the legislature has been
invested by the Constitution with power to nullify a mandamus issued by
this Court or a High Court by legislative amendment? American B
Jurisprudence (2nd Edn.) Section 9 at page 318, deals with the principle
of Legislative interference with the judgments of the courts. It is stated that
the general rule is that the legislature may not destroy, annul, set aside,
vacate, reverse, modify, or impair the final judgment of a court of com-
..... petent jurisdiction, so as to take away private rights which have become
c
vested by the judgment. A statute attempting to do so has been held
unconstitutional as an attempt on the part of the legislature to exercise
judicial power, and as a violation of the constitutional guarantee of due
process of law. The legislature is not only prohibited from reopening cases
previously decided by the courts, but is also forbidden to affect the inherent
, attributes of a judgment. That the statute is, under the guise of an act, D
affecting remedies, does not alter the rule. It is worthy of notice, however,
that there are cases in which judgments requiring acts to be done in the
future may validly be affected by subsequent legislation making illegal that
which the judgment found to be legal, or making legal that which the
judgment found to be illegal. In Section 10 at page 319, dealing with
"Judgment as to public right", it is further elaborated that "with respect to E
legislative interference with a judgment, a distinction has been made be-
tween public and private rights under which distinction a statute may be
valid even though it renders ineffective a judgment concerning a public
right. Even after a public right has been established by the judgment of the
court, it may be annulled by subseq_uent legislation".
.F
The question of power of annulment of judgment or order of this
Court or of the High Courts by the legislature is no longer res integra. A
two-Judge Bench of this Court (to which two of us, K. Ramaswamy and
G.B. Pattanaik, JJ., were members) in Indian Aluminium Ltd. v. State of
Kera/a, [1996) 7 SCC 637 considered the controversy in extenso. This Court G
reviewed the entire case law on the validity of validating Act and laid down
F nine principles, .culled out from various judgments of this Court, obviating
the need to review those cases afresh. The principles as laid down, were
set down at pages 662- 63 thus :

(1) The adjudication of the rights of the parties is the essential H
646 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A judicial function. Legislature has to lay down the norms of conduct
or rules which will govern the parties and the transactions and
require the court to give effect to them :

(2) The Constitution delineated delicate balance in the exercise
of the sovereign power by the Legislature, Executive and Judiciary;
B
(3) In a democracy governed by rule of law, the Legislature
exercises the power under Articles 245 and 246 and other com-
panion Articles read with the entries in the respective Lists in the
Seventh Schedule to make the law which includes power to amend

c
the law.

(4) Courts in their concern and endeavour to preserve judicial
power equally must be guarded to maintain the delicate balance
-
devised by the Constitution between the three sovereign
functionaries. In order that rule of law permeates to fulfil constitu-
tional objectives of establishing an egalitarian social order, the
D respective sovereign functionaries need free-play in their joints so
that the march of social progress and order remain unimpeded.
The smooth balance built with delicacy must always be
maintained;

(5) rh its anxiety to safeguard judicial power, it is unnecessary to
E be overzealous and conjure up incursion into the judicial preserve
invalidating the valid law competently made;

(6) The Court, therefore, need to carefully scan the law to find
out; (a) whether the vice pointed out by the Court and invalidity
suffered by previous law is cured complying with the legal and
F
constitutional requirements; (b) whether the Legislature has com-
petence to validate the law; (c) whether such validation is consis-
tent with the rights guaranteed in Part III of the Constitution.

(7) The Court does not have the power to validate an invalid law
G or to legalise impost of tax illegally made and collected or to
remove the norm of invalidation or provide a remedy. These are
not judicial functions but the exclusive province of the Legislature.
Therefore, they are not the encroachment on judicial power.

(8) In exercising legislative power, the Legislature by mere decla-
H ration, without anything more, cannot directly overrule, revise or
S.S. BOLA v. B.D. SARDANA(K. RAMASWAMY,J.] 647

override a judicial decision. It can render judicial decision ineffec- A
tive by enacting valid law pn the topic within its legislative field
fundamentally altering or changing its character retrospectively.
The changed or altered conditions are such that the previous
decision would not have been rendered by the Court, if those
conditions had existed at the time of declaring the law as invalid.
It is also empowered to give effect to retrospective legislation with B
a deeming date or with effect from a particular date. The Legis-
lature can change the character of the tax or duty from impermis-
sible to permissible tax but the tax or levy should answer such
character and the Legislature is competent to recover the invalid
tax validating such a tax or removing the invalid base for recovery C
from the subject or render the recovery from the State ineffectual.
It is competent for the legislature to enact the law with retrospec-
tive effect and authorise its agencies to levy and collect the tax on
that basis, make the imposition of levy collected and recovery of
the tax made valid, notwithstanding the declaration by the Court
or the direction given for recovery thereof. D

(9) The consistent thread that runs through all the decisions of this
Court is that the legislature cannot directly overrule the decision
or make a direction as not binding on it but has power to make
the decision ineffective by removing the base on which the decision E
was rendered, consistent with the law or the Constitution and ihe
legislature must have competence to do the same.

All the judgments, except M.M. Pathak v. Union of India, (1978) 3
SCR 334, declared by this Court were found to be either valid or invalid
in accordance with law under consideration but the revalidation Act came F
to be made to remove by employing appropriate language like the doctrine
of non-obstante clause, the base upon which the validity of the statute or
invalidity of the Act was pointed out in the judgment by way of removal of
the defect. The invalidity pointed out in the judgment was suitably removed
and law was made revalidating the Act which was made consistent with the G
law declared by this Court. By that process it nullified the effect of the
_,· judgment removing the base or foundation upon which the judgment was
rendered. In that altered situation, the Court could not have rendered the
previous judgment. There is no decision of any court having upheld the
power of the legislature to enact a law making previous decision of the
declaration of the law, as was found consistent with the Constitution and H
648 SUPREME COURT REPORTS [1997) SUPP. 2-S.C.R.

A the statutory rule as invalid. The Act is a class by itself and we hope that
it finds no companion to its tally ,to seek as precedent by any other
legislature to enact the law directly overruling the judgment of the Court.

It is true that definition of the "member" of the service was intro-
B duced in Section 2(12) of the Act and an Explanation thereto was supplied
which has already been dealt with. Equally, a proviso was added to sub-
section (2) of Section 5 which also has been dealt. with. On seniority,
Section 12 replacing Rule 12 of the repealed Rules provided two provisos
and an Explanation to sub-section (4) which did not find place in repealed
Rules relating to Buildings and Roads and Public Health Branches. Their
C effect has already been considered and the same needs no reiteration. Even
the usual non-obstante clause found in every validating Act does not find
place in the Act. The Act itself is not a validating Act for the reason that
this Court did not point out any illegality/invalidity in the Rules nor made
any declaration as to unconstitutionality of any part of the Rules. As has
been seen from the Statement of the Objects and Reasons to the Act, there
D was no mincing of the words and in unequivocal terms it is stated that the
judgments of this Court in Sehgal and Chopra's cases and the order dated
March 31, 1995, to be the foundation for alleged disharmony between
claiming promotees and claiming direct recruits as if this Act alone finally
quenches the disharmony, enacted the law said to be consistent with their
good sense of justice. Jn other words, they took no pains to hide that they
E enacted the law to overrule the judgments of this Court. The question is :
can, by any stretch of imagination, it be said that this is the Act for
removing the base pointed out in the judgment and validating any invalidity
pointed out by this Court? Obviously, no. On the other hand, the true
nature and purpose of the Act as revealed by the Statement of Objects and
p Reasons is to take away the effect of mandamus issued by this Court and
to see that the relief to direct recruits is denied by taking legislative colour.
The purported exercise of the power is to ensure their ultimate object,
namely, to nullify the judgment of this Court and compliance with the
mandamus/directions contained in the judgment by the executive, is un-
necessary.
G
The crucial question, therefore, is : whether such an attempt can be
supported on a11y constitutional principle of law? This Court has upheld
the power to validate the acts done under a particular provision, largely in
fiscal matters. This Court has consistently been of the view as was laid
H down in Prithvi Cotton Mills Ltd. v. Broach Borough Municipality & Ors.,
S.S.BOLAv. B.D.SARDANA(K.RAMASWAMY,J.] 649

AIR {1970) SC 192. The legislature can exercise its undoubted powers of A
re-defining the "rate" so as to equate it to a tax on capital value and convert
that tax purported to be collected as a rate into a tax on land and building.
The principal justification for such revalidation is that the legislature not
only equated the tax collected as a tax on land and bnilding which it had
the power to levy but also interpreted rate giving a new meaning to the
expression 'rate'; while doing so, it put out of action the effect of the B
decision of this Court to the contrary. The exercise of the· power by the
Legislature was thus valid because the legislature does possess the power
to levy tax on lands and buildings based on capital value thereof and
validating the levy as tax on that base; the implication of the use of the
word 'rate' was effectively removed and instead of rate the tax on land and C
building was imposed. The tax, therefore, can no longer be questioned on
the ground that Section 73 of Bombay Borough Act spoke of 'rate' and the
imposition was not of a rate as properly understood but a tax on capital
value. The ratio in that behalf finds place not only in Indian Aluminum Ltd.
case but also in Sada Musa Sugar Works & Ors. v. State of Bihar & Ors.,
[1996] 9 SCC 681; K. Kannadasan v. State of Tamil Nadu, [1996] 5 SCC 670 D
and Com01in Match Industries (P) Ltd. v. State of Tamil Nadu, [1996) 4
sec 281. It is not necessary to traverse the law; nor to go into the facts of
all the cases. Suffice 1t to state that all relate to fiscal enactments.

R.L. Arora v. State of Uttar Pradesh & Ors., [1964] 6 SCR 784, related
to the validation of the declaration under Section 6 of the Land Acquisition E
Act which was declared invalid in R.L. Arora v. State of U.P., [1962] Supp.
2 SCR 149, wherein this Court had held that the Government was devoid
of power to publish more than one declaration under Section 6 of that Act.
After the amendment of the Principal Act by Amendment Act of 1962, the
base on which Section 6 was declared unconstitutional, was removed. That F
was upheld by this Court in 1964 since the legislature had the power under
the Act to validate the invalidity declared by this Court, by removing the
base. After amendment, this Court could no longer declare such a decla-
ration to be unconstitutional. Shri Rajeev Dhawan placed strong reliance
on a recent judgment of this Court in Meemt Development Authority v.
Satbir Singh, (1996] 11 SCC 464, to which one of us, K. Ramaswamy, J. was G

-· a member. Therein, the Land Acquisition Act, the Central Act, was
amended by the State Legislature which received the assent of the Presi-
dent of India and thereafter the declarations which were found invalid were
validated with a non-obsta11te clause. This Court upheld the con-
H
650 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A stitutionality not only of the Act but also of the notifications issued there- ...
under. It is thus seen that the base on which the invalidity pointed out, was
removed and acts done under the invalid Act were validated legalising the
illegal action. As stated earlier, the effect of the validating Act is to legalise
a law declared and/or a mandamus issued in furtherance thereof, by this
Court to be illegal, invalid or unenforceable. The ratio in these cases is not
B apposite to the fact-situation in the present case. Though Shri Rajeev
Dhawan placed reliance on other decisions viz. Udai Ram Shanna & Ors.
Etc. v. Union of India, [1968) 3 SCR 50; Mis. Utkal Contractors & Joinery
(P) Ltd. v. State of Orissa, [1987) Supp. SCC 751; Vinay Mills Co. Ltd. v.
State of Gujarat, [1993) l SCC 345 and Bhubaneshwar Singh & Anr. v. Union
c of India & Ors., [1994) 6 SCC 77, it would be futile to refer to them in detail
and elucidate the same principles culled out in Indian Aluminium case to
avoid needless burden on the judgment.

Shri Rajiv Dhawan further contended that in section 25, the word
'except' should be supplied by employing the doctrine of casus omissus that
D the Court has the power to supply that omission to make the Act a
consistent whole. In support thereof, he placed reliance on various
decisions of this Court, and English Courts viz., Nomes v. Doncaster, {1940)
3 All.E.R. 549; Mis. Pyarchand Kesarimal Ponwal Bidi Factory v. Onkar
La.xman Thange & Ors., [1969] 2 SCR 272 and !NU v. Dr. KS. Jawatkar & .:-
E Ors., (1989] Supp. 1 SCC 679.

Though in an appropriate case, the Courts adopted the device of
supplying the omissions, the doctrine of casus omissus to read the Act to
make Act/Section as a consistent scheme of the Act, on the facts in the
F case, the ratio becomes inapplicable. The reason is obvious. The legislature
did not intend to introduce exception in view of the fact that they cannot
directly overrule the decisions in Sehgal and Chopra cases. So, what they
cannot directly do, cannot indirectly be allowed to be done. When such
being the case, the Court cannot compound the camouflage by supplying
the so called omission deliberately omitted by the legislature. It is not an
G unintentional one. It woulci appear from the joint signatures of the Chief
Minister. and the Law Secretary on the statement of objects and reasons, •.._
which is a strange feature, they were in dilemma and caught two horns of
unwealdy bull and no one was singly prepared to share the responsibility.
In that bacakdrop scenario, the so called omission, if suggested 'except' is
H not an accidental slip. In the smithy of ironing the creases, we cannot
S.S.BOLAv. B.D.SARDANA[KRAMASWAMY,J.] 651

straighten it as it became too hard to meddle, whatever would be the A
consequence of the use of the word 'except' in Section 25.

In Madan Mohan Pathak&Anr. v. Union of India & Ors., AIR [1972]
SCC 50, Section 49 of the LIC Act, empowers Central Government to
make regulations consistent with the provisions of the Act. Regulation 58 B
empowers the Corporation to grant non-profit sharing bonus to its
employees subject to such directions as the Central Government may issue
pursuant thereto. Several settlements were effected with the Union of the
employees. One of the settlements dated January 24, 1974 was for payment
of bonus to class-III and class-IV employees and grant of bonus also was
approved by the Central Government. Since payment was not made which C
is in violation of Section 18(1) of the Industrial Disputes Act, the
employees filed a writ petition for a declaration and direction. The High
Court had held that non-implementation violated settlement and direction
was given for payment of the bonus. An appeal was preferred against the
judgment to the Division Bench of the High Court and was pending. The D
LIC (Modification and Settlement) Act, 1976 was enacted. The LPA was
dismissed as withdrawn. The writ petition was filed under Article 32
impugning the validity of the 1976 Act which would take away the effect
of the writ of mandamus dated May 2, 1976 issued by the High Court
against the LIC. Per majority, Justice Bhagwati, speaking on behalf of
himself V.R. Krishna Iyer and D.A. Desai, JJ. held that if the contention E
of the Union stood accepted, there was a little doubt, subject, of course,
to the constitutional challenge to the validity of the impugned order that
the judgment of the learned single Judge would have been set aside on the
basis of altered law and the writ petition got dismissed by Division Bench
of the High Court. p

Bhagwati, J. pointed out that it is significant to note that there was
no reference to the judgment of the Calcutta High Court in the Statement
of Objects and Reasons, nor any 11011 obstante clause referring to a judg-
ment of a court found in Section 3 of the impugned Act. The attention of G
the Parliament does not appear to have been drawn to the fact that the
Calcutta High Court had already issued a writ of mandamus commanding
the LIC to pay an amount of bonus for the year 1st April, 1975 to 31st
March, 1976. It appears that unfortunately, the judgment of the Calcutta
High Court remained almost unnoticed and the impugned Act was passed
in ignorance of that judgment The settlement became enforceable by the H
652 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A writ or mandamus granted by the judgment and is not based on settlement
to annual cash bonus. This right under the judgment was not sought to be
taken away by the impugned Act. The judgment continued to subsist and
the LIC is bound to pay annual bonus to Class-III and Class-IV employees
in obedience of the writ of mandamus. The error committed by the LIC
was that it withdrew the LPA and allowed the judgment of the learned
B single Judge to become final. By the time the LPA came up for hearing, ~
the impugned Act had already come mro force and the LIC would have
successfully contested the LPA. If such a contention had been raised, there
is a little doubt, subject, of course, to any constitutional challenge to the
validity of the impugned Act that the judgment of the learned single Judge
c would have been up turned down and the writ petition dismissed. But on
account of some inexplicable reasons, which is difficult to appreciate, the
LIC did not press the LPA and the result was that the judgment of the
learned single Judge granting writ of mandamus bC?came final and the LIC
is not absolved from the obligations imposed by the judgment to carry out
a writ of mandamus by relying on the impugned Act. Beg, J. (then, Chief
D
Justice) concuning with the above learned Judges had held that the rights
of the citizens under the settlements passed into the judgment and the
settiement became basis of a mandamus from the Court. It could not be
taken away in indirect fashion by enacting some ordinary Act of Parlia-
ment.
E
This Court, therefore held that by reason of the factual or legal
situation, the judgment was not rendered ineffective. So long as the judg-
ment stands, it must be obeyed by the LIC. "We are, therefore, of the view
that anything irrespective of the validity upon, the LIC is bound to obey
F that writ of mandamus issued by the High Court and to pay the bonus in
terms of settlements." Beg. Chief Justice aggreeing with the three learned
Judges in para 27 at page 84, it was held that it would be unfair to adopt
legislative procedure to undo settlement which had become the basis of the
decision of the High Court. Even the legislature can be the basis of a
decision to do it, by an alteration of general rights of the class but not by
G simply excluding those specific settlements between the Corporation and
its employees from the purview of Section 18 of the the Industrial Disputes .......
Act which had been held to be non-violative ·and enforced by a writ of
mandamus issued by the High Court. Such a selected exclusion would also
affect Article 14. Y.V. Chandrachud, J. (as he then was) speaking for
H himself, S. Murtaza Fazal Ali and P.N. Shinghal, JJ. did not express any
S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.] 653

- opinion on the constitutional invalidation but upheld the majority view on A
the ground that the writ of mandamus issued by the High Court has not
violated the provisions of Article 31(2) of the Constitution. In Janapada ·
Sabha, Chhindwara Etc. v. The Central Provinces Syndicate Ltd. & Anr. Etc.,
[1970] 3 SCR 745, a Constitution Bench of this Court was called upon to
consider the constitutionality of an Act making the earlier decision of the B
Court invalid. In 1935, the Independent Mining Local Board, Chhindwara
was constituted. It resolved to levy cess on coal extracted within its area at
3 pies per ton. The sanction of the Local Government as required by
Section 51(2) of the C.P. Local Self Government Act, 1920 was not ob-
tained before levy. So, it was declared invalid. The validity was challenged
and this Court in appeal held that increased levy was unconstitutional. C
Thereafter, the State legislature enacted Madhya Pradesh Koyala Upkar
(Manyatakaran) Adhiniyam, 1964 and validated the levy. On a writ petition
filed under Article 32, a Constitution Bench of this Court had held at page
751 thus:
D
"On the words used in the Act, it is plain that the Legislature
attempted to overrule or set aside the decision of this Court. That,
in our judgment, is not open to the Legislature to do under our
constitutional scheme. It is open to the legislature within certain
limits to amend the provisions of an Act retrospectively and to
declare what the law shall be deemed to have been, but it is not E
open to the Legislature to say that a judgment of a Court properly
constituted and rendered in exercise of its powers in the matter
brought before it shall be deemed to be ineffective and the inter-
pretation to the law shall be otherwise than as declared by the
Court. That judgment was binding between the parties and also by F
virtue of Article 141 binding on all Courts in the territory of India.
The Legislature could not. say that the declaration of law was either
erroneous, invalid or ineffective either as a precedent. or between
the parties."

In State of Tamil Nadu & Anr. v. M. Rayappa Gounder & Ors., [1971) G
3 SCC 1, a Bench of three Judges considered the validity and effect of the
Madras Entertainments Tax (Amendment) Act, (20 of 1966) and declared
it invalid insofar as it attempted to validate invalid assessments without
removing the basis of its invalidity. It was held that Section 7 did not change
the law retrospectively. The effect of the provision is to overrule the H
654 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A decision of the Madras High Court and not to change the law retrospec-
tively. What the provision say is that notwithstanding any judgment of the
Court, the assessment invalidly made must be deemed to be valid. The
-
Legislature has no power to enact such a provision. The appeal, therefore,
was dismissed.

B
In Municipal Corporation of the City of Ahmedabad, Etc. v. New
Shorock Spg. & Wvg. Co. Ltd. Etc., [1971] 1 SCR 288, a Bench of two Judges
was to consider the validity of Section 152A of the Bombay Provincial
Municipal Corporation Act, 1949. The appellant had assessed the immov-
able properties of the respondents to property tax under the Act which was
C declared invalid. Amendment Act titled "the Bombay Provincial Municipal
Corporation (Gujarat, Amendment) Act, 1968" was passed introducing
Section 152A which was not brought to the notice of the Court at the time
when the decision was rendered in the first instance; but when a demand
was made for refund of the amount, it was justified on the ground that the
D demand for refund was invalid under Section 152A. That the purport of
Section 152A was the tax calculated would be retained but interest would
be paid thereon to the assessee. By operation of sub-section (3) of Section
152A, the Corporation refused to refund the amount illegally calculated,
despite the orders of the High Court. When an appeal was filed, this Court
stated that it made a direct inroad into the judicial powers of the State.
E The legislature under the Constitution has, within prescribed limits, power
to make laws prospectively as well as retrospectively. By exercise of those
powers the legislature can remove basis of a decision rendered by a
competent court and thereby render the decision ineffective. But, no
legislature in this country has power to ask the instrumentalities of the State
p to disobey or disregard the decisions given by courts. Section 152A(3),
therefore, was held repugnant to the Constitution.

In l.N. ·saksena v. The State of Madhya Pradesh, [1976] 3 SCR 237,
the appellant, a District Judge, challenged his compulsory retirement. The
G Memorandum issued by the Governor, empowered the Government to
retire a Government servant, on his attaining the age of 55 years, though
the age of superannuation was 58 years, raised under the statutory rules
issued under proviso to Article 309 of the Constitution. No provision was
made in the Rule to retire the Government servant on his attaining the age
of 55 years by way of compulsory retirement. Since he was retired at the
H age of 55 years, he challenged the order of compulsory retirement by filing
l.,,_.. ...

S.S.BOLAv. B.D.SARDANA[KRAMASWAMY,J.] 655

a writ petition in this Court. It was held that the appellant will be deemed A
to have continued in service of the Government in spite of the order.
However, since he attained the age of superannuation in the meanwhile,
no direction for reinstatement was issued. It was, however, held that he was
entitled to the consequential benefits. An Ordinance, followed by an Act
of legislature was made and validated the retirement of certain Govern-
ment servants including the appellant, despite the judgment of this Court. B
validation Act was made with retrospective effect w.e.f. March 1, 1963 and
it empowered the Government to retire a Government servant on .his
attaining the age of 55 years. The appellant again filed a writ petition in
the High Court which was dismissed. But, on appeal, a Bench of four
Judges of this Court held that the Act gives naked power to the authorities C
to retire any employee after his attaining the age of 55 years without
providing any guidelines for the exercise of the power. The impugned Act
was held ultra vires the Constitution since it seeks to validate the retirement
of the appellant. In doing so, the legislature has overstepped the limits of
the legislative power. Even on proper construction of the Act, the Act did
not vacate the decree of this Court. D

In Ex. Capt. KC. Arora & Anr. v. State of Haryana & Ors., [1984) 2
SCC 218, a Bench of three Judges of this Court was to consider the
retrospective amendment of the service law. Under the Punjab Govern-
ment National Emergency (Concessions) Rules, 1965 a right was accrued E
to the appointment and seniority. Subsequently, the Haryana Government,
by a notification dated March 22, 1976, amended Rule 2 with retrospective
effect restricting benefit of Military Service upto June 10, 1968, the date
) on which the emergency was lifted, with the result that the rights which
accrued to the .petitioner in 1969-70 and 1971 had been taken away. F
Considering the question in para 15, it was held that a provision which
touches a right in existence at the passing of the statute is not to be applied
retrospectively in the absence of express enactment or necessary intend-
ment. The Governor can also exercise the same powers under Article 309
of the Constitution and there was not the slightest doubt that the impugned
amendment brought in had been made retrospective. The legislature is . G
,.• undoubtedly competent to legislate with retrospect effect, to take away or
impair any vested right acquired under existing laws but since the laws are
made under a written Constitution, and have to conform to the dos and
don'ts of the Constitution, neither prospective nor retrospective laws can
be made so as to contravene fundamental rights. The law must satisfy the H
656 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A requirements of the Constitution. Taking into account the accrued or
acquired rights of the parties today, the law cannot say that 20 years ago,
the parties had no rights. Therefore, the requirements of the Constitution
will not be satisfied if the law is dated back to 20 yeMs. We Me concerned
with today's rights and not yesterday's. A legislature cannot legislate today
B with reference to a situation that obtained 20 yeMs ago and ignore the march
of events and the constitutional rights accrned in the course of the 20 years.
That would be most arbitrary, unreasonable and a negation of history.
(Emphasis supplied). Today's equals cannot be made unequal by saying
that they were unequal 20 years ago and we will restore that position by
C making a law today and making it retrospective. Constitutional rights,
constitutional obligations and constitutional consequences cannot be
tampered with that way. A law which, if made today, would be plainly
invalid as offending constitutional provisions in the context of the existing
situation; it cannot become valid by being made retrospective. Past virtue
(constitutional) cannot be made to wipe out present vice (unconstitutional)
D by making retrospective laws. The Court was, therefore, firmly of the view
that the Gujarat Panchayats (Third Amendment) Act, 1978 was unconstitu-
tional, as it offended Articles 311 and 14 and was arbitrary and un-
reasonable.

E In State of Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors.,
[1983] 2 SCC 33, prior to the Amendment Act, 1978 by operation of the
Panchayat Act, the ex-member employees were allocated to the Panchayat
service. The Secretaries, officers and servants of the Gram and Nagar
Panchayat had, achieved the status as Government servants. Subsequently, 1.
the Act was amended to restitute the former municipal employees to the
F status of Gram and Nagar Panchayat Employees. A Constitution Bench
was to consider whether such an amendment was valid in law. This Court
held that once they had achieved the common stream of service to perform
the same duties, it is clearly not permissible to make any classification on
the basis of their origin.- Such a classification would be unreasonable and
G entirely irrelevant to the object sought to be achieved. It is to navigate
around these two obstacles of Article 311 and Article 14 that the amending
Act was sought to be made retrospective, to bring about an artificial '"
situation as if the erstwhile municipal employees never became Govern-
ment servants. This Court put a question thus : "Can a law be made to
destroy today's accrued constitutional rights by artificially reverting to a
H situation which existed 17 years ago? The answer was no." ·
S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.) 657

--'.r
These two decisions relied on by Shri Rajendra Sachhar, learned A
senior counsel for the direct recruits, are apposite to the points in con~
troversy and be applicable to the facts of this case, though these passages
were not relied on. Since the lllandamus issued by this Court became final
and the dedaration of law is. consistent with the statutory Rules, any
amendment to the Act with retrospective effect cannot take away the effect
B
.... of the manda!llUS and the Act is unconstitutional and impermissible and a
legislative judgment is a trespass into the judicial review; which it is not
\ vested in the legislature; the working of the legislature has to be confined
within the parameters set by the Constitution. It cannot indirectly say that.
Courts in exercise of power of judicial review under Articles 32 and 226 of
the Constitution or under appellate jurisdiction of this Court under Article c
136 of the Constitution created inequiteous results and resultantly acted to
remove injustice arisen from the judgment of the court to the promotees ..

In State of Haryana & Ors. v. Kamal Co-operative Farmers' Society
Ltd. & Ors., (1993) 2 SCC 363, this Court considered the validity of the
Punjab Village Common Lands (Regulation) Act, 1961 considered and
D
held that Shamllat deh land was not vested in the gram panchayat. By the
Amendment Act, 1980 Sections 3, 4, 5 and 7 and proviso to Section 7(1)
and new Sections 13-A to 13-D were amended/introduced into the prin-
cipal Act with retrospective effect. A Bench of two Judges of this Court
was to consider the object of the Act, the effect of the legislative judgment E
on the judicial verdict ·and held that under Articles 245 and 246 the
legislature was not competent to declare any earlier decision as invalid or
not binding. It was held that the power of the amendment, though may be
exercised prospectively, but it cannot be made retrospective to render
ineffective an earlier judicial decision by removing or altering or neutralis-
ing the legal basis in the unamended law on which such decision was F
founded, even retrospectively. The effect of such a law is to declare an
earlier judicial decision as invalid or not binding for such power, if exer-
cised, would not be a legislative power but a judicial power which cannot
be encroached upon by the Legislature under our Constitution.

In the matter of Cauvery Water Disputes Tribunal; (1993] Supp.1 SCC
G
..• 96 a Constitution Bench was to consider the validity of the Karnataka
Cauvery Basin Irrigation Protection Ordinance, 1991. The Constitution
Bench had held that the Central Water Board constituted under Inter State
Water Disputes Act, 1956 issued interim awards directing Karnataka State
to release the water to Tamil Nadu, the lower riparian State. Though, thai If
658 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A order could have been nullified in appeal under Article 136 to this Court,
the Legislature of Karnataka had no power to nullify the order of the Water
Board. It amounts to interference with the judicial power of the Court
vested in ,the Board. The reference on other point was also answered
accordingly.

B In S.R. Bhagwat & Ors. v. State of Mysore,[1995] 6 SCC 16, the
employees working in the Forest Service as Deputy Conservators of Forests
e:::
were governed by the Mysore State Civil Services (Regulation of Promo-
tion, Pay and Pension) Act, 1973. They challenged violation of their right
,.
on the basis of Section 115 of State Reorganisation Act since they were
C employees of former State of Hyderabad, claiming that their rights arose
under the Hyderabad Civil Services Regulations. The High Court had
upheld their right, but the Karnataka Civil Services (Regulation of Promo-
tion, Pay and Pension) Act was amended with retrospective effect. The
question arose: Whether the legislature was competent to validly invalidate
the decision of the Court under the exercise of the power of judicial
D review? This Court exercising the power under Article 32 of the Constitu-
tion declared the law invalid, holding that the order of mandamus was
sought to be nullified by the impugned legislation which is clearly imper-
missible legislative exercise. This is also an answer to the proposition relied
on by Shri Rajeev Dhawan, i.e. not to rely on Statement of objects and
Reasons, as held at page 25 on Statement of Objects as under :
E
"A mere look at the third and fourth paragraphs of this preamble
shows the legislative intent to bypass the final directions contained
in,the Division Bench judgment of the High Court."

Keeping in view the aforesaid key to the passing of the Act, the Court
F proceeded to examine the relevant provisions of the Act and held it to be
invalid.

In Delhi Cloth & General Mills Co. Ltd. & Anr. v. State of Rajastllan
& Ors., (1996] 2 SCC 449, the State of Rajasthan issued a notification under
G Section 7(1) of the Rajasthan Town Municipalities Act, 1951, proposing to
extend the limits of the Kota Municipality so as to include within its limits
Raipura village. The provisions of Rajasthan Municipal Act, 1959 relating
to the power of delimitation of the municipalities was questioned. The High
Court declared that the requirement of the law was not met in dealing with
the municipalities and extending limits of the Kota municipalities under
H that Act; subsequently, Kota Municipality Limits Extension and Validation
S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.) 659

Act was passed. Section 3 of the validating Act, with a non-obstante clause A
contained in Sections 4 to7 of the 1954 Act, took away the effect of any
judgment, decree or order or direction of any other Court in the matter of
extension of the limits of Kota municipality to include Raipura and Um-
medganj so that they could be deemed always to have been continued to
exist within the limits of Kota Municipality. This· Court considered its
validity and held that the defect pointed out by the .Court was not validly
B
removed by the validating Act, which is an essential requisite for passing
a validation Act. It was, accordingly declared as invalid by a Bench of three
Judges. In Peddinti Venkata Muraliranganatha Desika Iyengar & Ors. v. State
of A.P. & Anr., [1996) 3 SCC 75, this Court was to consider the con-
stitutionality of Section 76 of AP. Charitable and Hindu Religious Institu- c
tions and Endowments Act, 1987. The question that arose was whether the
legislature, by a side wind, without suitably amending the Inams Abolition
Act, as interpreted by the High Court, or repealing it, could directly nullify
the said law laid by the court and divest, under Section 76 of the Act, the
vested right and declare that the land was not covered by the said ryotwari
patta or shall not be transferred or shall be deemed never to have been ·D
t~ansferred thereunder and would treat such persons as encroachers?
"Religious endowments" is defined under Section 2(22). A Bench of two
Judges, (to which one of us K. Ramaswamy, J. was as a member) had
declared the said provisions ultra vires the power of the Legislature though
the legislature was competent to enact the law. The foundation on the basis
E
of which the Raiyatwari Patta was granted under Inam Abolition Act was
not admittedly removed. Law was enacted to take away the vested rights
by a side wind. Accordingly, exercise of the legislative power under Section
76 read with Explanation II of Section 2(22) of the Act was held uncon-
stitutional. In K. Sankaran Nair (Dead) through LRs. v. Devaki Amma
Malathy Amma & Ors., [1996) XI SCC 428, the Kerala Land Reforms Act, F
1963 barred creation of leases. A judgment was rendered by the Court
declaring that such leases were invalid and that the tenants did not acquire
any right thereunder. Section 6-C was introduced by Kerala Land Reforms
(Amendment) Act, 1979 with effect from 7.7. 1979. The Same came to be
questioned and this Court had held that Section 6-C could not be pressed
into service by the original appellant for displacing the binding judgments G
rendered by the Tribunal, the High Court and the Supreme Court in the
earlier tenancy proceedings wherein his claim for tenancy of the suit land
had come to be repelled and those judgments became final and binding
and were not in any way legally displaced by any competent piece of
legislation by the Kerala Legislature. H
660 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.
A A further resume of these precedents would firmly lay the tests that
the legislature has power to alter the language in the statute by employing
an appropriate phraseology; to put up its own interpretation inconsistent
with that put up by this Court in an earlier judgment on the basis of
pre-existing law; and to suitably amend or alter the law removing the base
on which the previous decision was founded. In the altered structure of the
B
c
statute, the Court in the first instance, had that phraseology been available
on the statute, the Court could not have declared the Act as invalid or
otherwise of the previous law. Thus, the previous law was rendered as
invalid was made valid and ineffectual and the consequential executive
action, unenforceable.
c In suitable cases, giving retrospective effect to such validating law
was permissible by legislative exercise of the power; this Court accepted
the retrospective validation in fiscal statute and rarely in other laws relating
to procedural facets in the respective legislative Entries in Lists I, II and
III of the Seventh Schedule to the· Constitution and rarely in areas of
D divesting vested rights had under the judgment. But all the decisions
related to retrospectively declaring and validating by legislation as valid law
by removing the base and of the 'declaration of an invalid law as valid and
make the base of removal as legal. In no case a valid declaration of law
was attempted to be made invalid or illegal by retrospective legislation. In
some cases, the Court upheld the power of making even a fresh legi~lation
E provided .the law was made removing the base as pointed out in the
previous judgment which would no longer be available for future applica-
tion and given prospective operation. Such law was made to apply to future
cases. The rights acquired or accrued or the benefits accrued under such
declaratory law were not taken away except in fiscal statutes or on some
procedural aspects of dealing with the rights of the parties. It is equally
F settled law that no one has vested right in procedure.

In Ex. Capt. KC. Arora's case and Raman Lal Keshav Lal Soni's case,
this Court did not approve of retrospective legislation to take away vested
rights which accrued over 20 to 17 years prior to validation; this Court
G pointed out that a deeming fiction cannot be set on foot to set at naught a
situation existing over the years. Legislature is competent and has power
fo render a decision ineffective by fundamentally altering the character of
law curing the defects pointed out in the previous decision and give it
retrospective operation. If the legislation is otherwise constitutional and
within competence, legislature can remove the defects but not have power
H to directly adjudicate it.
S.S.BOIAv. B.D.SARDANA[K.RAMASWAMY,J.] 661

- It is seen that in Sehgal and Chopra's cases, this Court had- issued A
mandamus directing the State Government to prepare the seniority list inter
se between the direct recruits and the promotees in accordance with the
repealed statutory Rules as interpreted in the judgments which became
final and B.D. Sardana, one of the respondents, in Chopra's case in whose
favour a direct mandamus was issued for compliance. The rights to the B
parties are founded on declaration of law under Article 141 and mandamus ·
\ and consequential directions to inter parties. The Statement of Objects and
Reasons and the Preamble to the Act do clearly indicate a brutal frank
admission that attempt was to overrule the judgment of this Court by
amending Section 2(12)(c) and introducing an explanation thereto by
amending Section 5(2) with a proviso added thereto and Section 12 for C
preparation ·of the seniority. As seen earlier, this Court did not find any
provision of the Rules ultra vires, though the observation came to be made
that normal rules of service jurisprudence of continuous length of service
were not followed in the r~pealed Rules relating to Buildings and Roads
and Public Health Branches of the Service. That observation c~"not be D
torn of the context with an an attempt to overrule the judgment. It renders
the previous litigation and resulted judgment fruitless. The mandamus or
direction remains a right embedded in the judgment like an ornament
without reaping fruit thereof. The retrospective legislation alters the
seniority position and starts replay by redoing promoting once over. This
exercise gets repeated time and again as soon as a judgment is rendered E
playing havoc with the service. The officer would never know his real
position in seniority committing him to political masters rather than the
Constitution and rule of law and judicial review. Therefore, the Amend-
ment Act is a din:ct affront to the mandamus issued by this Court. Though
a facade of attempt was made to ~emove the base, the real result of the F
legislation was to set at naught the effect and direct result of the mandamus
issued by this Court. Therefore, it is impermissible by a legislative judgment
to render the mandamus issued by this Court ineffective and valid decla-
ration of law to become illegal. Therefore, by an indirect side track, the
legislature ~ot take away the effect of the mandamus.
G
It is true, as contended by Shri Rajeev Dhawan, that the legislature
is entitled to put up interpretation different from the one taken by the
Court; the legislature can by employing appropriate and suitable phraseol-
ogy, remove the base on the altered situation which the Court did not find
in the statute existing at the time; otherwise, the Court would not have H
662 SUPREME COURT REPORTS [1997} SUPP. 2 S.C.R.

A rendered the firstjudgment and would not have taken that view in the
judgment at that time. Such an alteration or removal of the base by
legislative amendment certainly is permissible. But such an attempt must
-
not be a colourable attempt to trench upon the judicial power. This Court
in Prithvi Cotton Mills case and recently in lndain Aluminum and Meernt
Development Authority cases etc. pointed out that the legislature, some-
B times, may give its own meaning and interpretation of the law in the
legislative field of action and make the new meaning binding on the Courts.
But the legislature in its colourable exercise of legislative power again
cannot trespass into, or encroach upon the power of judicial review express-
ly conferred on this Court and the High Courts, so as to give a different
C meaning and directly overruled the binding decision. The Court can take
into account the real consequences while judging the width of the power
nor can the court ignore the consequences flowing from particular con-
struction ascertaining the limits of the provision that granted the power. It
is seen from the record, that apart from the Statements of Objects and
Reasons, specific stand was taken by the Government in the counter
D affidavit filed in the High Court in the writ petition and the Financial
Commissioner in his order while determining the inter se seniority, had
expressed himself that the interpretation in Sehgal and Chopra's cases
created iniquitous situation favourable to direct recruits creating heart-
burning among the promotees. That would indicate that brazen attempt
was made by the executive to mask their stand through legislative inter-
E vention. The legislature did not adopt a proper device in enactment of the
Act and we have no doubt that had it been brought to the notice of the
legislature that the impact of the Act would lead to conflict between
judicial review and legislative judgment, as stated hereinbefore, legislature
would not have found it expedient or attempted to enact the law to deflate
p the mandamus making it ineffective and rendered the correct declaration
of law as illegal. Such an attempt has never come across in any of the
decisions decided previously. As stated earlier, perhaps this case may stand
as a class by itself without any companion to its tally.

It is true that this Court with a view to sustain the validity of the
G validation Act applied in some cases, the doctrine of pith and substance
and in some cases of incidental or ancillary and subsidiary power to
validate the law declared invalid by this Court. The Federal Court in State
of U.P. v. Fazal Begum, AIR (1941) FC 16 and this Court in Smt. Yadav
v. Municipal Committee, Kadaya, AIR (1961) SC 1487 at 1490, para 10 and
host of other decisions, many of which have been considered in Indian
H Alluminium's case, upheld the validation Act on the principles of ancillary
S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.) 663

-- and subsidiary power of the legislature to deal with a particular subject A
specified in the respective lists of the Seventh Schedule. But che said power
cannot be used to directly nullify the declaratory law made by this Court
in exercise of the power of judicial review to make a specific direction or
a mandamus which has become final, ineffectual unless its invalidity, as has
been pointed out in earlier judgment/order, is properly removed by B
employing appropriate language so as to make a new law. Such power i~
generally given in fiscal statutes and cases of exceptional nature but not
otherwise to trench upon the power of judicial review in which event it
would create disillusionment to a successful litigant or inculcate in him
apathy in the efficacy of rule of law and the judicial process. The writ of
mandamus or other directions merely remain a pious platitute to rule of C
law or profligacy to avail of power of judicial review. Care and circumspec-
tion should always be taken to clearly demarcate the line between validat·
ing legislation removing the base on which the foundation of the previous
judgment rests and the Act which clearly, through colourable attempt of
removing the base, renders the judgment ineffective or illegal, the writ of
mandamus or direction issued by the Constitutional Court by legislative D
fiat.

Here, we may point out that if the legislature finds that the declara-
tion of law by this Court/High Court is not consistent with the public policy
envisaged in the Act and the interpretation stems to defeat the public
interest or public justice certainly the legislature would be entitled to E
formulate its legislative policy consistent with the constitutional scheme
and enact the law/amend even the law declared by this Court. But such an
" enactment must be applicable prospectively and not to the cases which
have become fmal and the rights having accrued to the parties for long
under the judgment cannot be taken away except in the cases of fiscal F
statutes or cases relating to procedural facets of the Act. For instance, in
llldra Sawhney v. Union of India, (1993] Supp. 3 SCC 217, this Court
interpreted Article 16 and held that the word 'employment' would not
include 'promotion' and reservation in promotion upheld in Rangachari's
case and followed in other cases was declared unconstitutional. Those
cases were overruled but simultaneously suggestion was made to the legis- G
lature to enact suitable law within five years from the date of the judgment.
I The Constitution (77th Amendment) Act, 1995 was enacted introducing
Article 16(4A) expressly empowering the State to make any provision for
reservation in matters of promotion in any class or classes of posts in the
service under the State in favour of Dalits and Tribes which in the opinion.
of the State are not adequately represented in the service under the State. H
664 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A Such prospective legislation is always permissible but retrospective legisla-
tion, thereby, is clearly illegal.

Shri Rajeev Dhawan contended that the law enacted by the Haryana
Legislature is in substance and in reality is a law on the subject of
regulating the service conditions of the officers of respective Branches of
B Haryana Service of Engineers, Class-I, PWD. No motives or ma/a fides can
be attributed to the Legislature. There is a presumption in favour of the
constitutionality of the statute. The Legislature would be colourably exer-
cising the power if it seeks to do indirectly what cannot be done directly.
Therefore, it is fraud neither on· power nor on the Constitution, nor a
C colourable exercise of the power seeking to overturn the judicial interpreta-
tion given by this Court. We find no force in the contention. In T. Venkata
Reddy & Ors. v. State of Andhra Pradesh, [1985) 3 SCC 198 at 211, para 14,
this Court had held that no ma/a /ides can be attributed to the legislature.
Equally, it is settled law that there is a presumption in favour of the
constitutionality of a statute as held In V.M. Syed Mohammad & Co. v. The
D State of Andhra Pradesh, [1954) SCR 1117 at 1121 and bead roll of prece-
dents grown around it; the same need no reiteration.

The doctrine of incidental power is founded upon the principle that
in a case where on the face of a statute, it appears that the legislative
subject falls both in the Union as well as the State List. But on a careful
E scrutiny it becomes clear that it falls merely incidentally in one List but
substantially in another List, to relieve the statute from its invalidity or
unconstitutionality, this Court founded the principle of incidental power.
However, it cannot be regarded as the case of substantial encroachment
trespassing into another field. The incidental or initial encroachment,
therefore, means that in enacting a legislation, the legislature has not
F traversed beyond the legislative field allotted to it by the arrangements of
distribution of powers in the respective Entries in the concerned List in
the Seventh Schedule. There has been merely incidental encroachment on
the federal/State power of the respective legislature in the respective Lists,
but such incidental encroachment does not affect the main scheme of the
G distribution of the powers in the Seventh Schedule. It is not concerned with
the repository of power granted to the legislature under Article 245 or
Article 246 or related Articles in that behalf.

Colourable legislation would emerge only when a legislature has no
power to legislate on. an item either because it is not included in the List
H assigned to it under the respective Entries in the Seventh Schedule of the
S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.] 665

Constitution or on account of limitations imposed either under Part III of A
the Constitution relating to Fundamental Rights or any other power under
the Constitution. As the legislature enacts a statute on an assumption of
such power, but when on examination, if it is found that it has travelled
beyond its power or competence or in transgression of the limitations
imposed by the Constitution itself, such an enactment is called a colourable B
legislation. It has reference only to the legislative incompetence and not to
the power as such. If the legislature enacts law in the pretext of the exercise
of its legislative power, though actually it did not possess such power, the
legislation to that extent becomes void as the legislature makes its Act only
in pretence of and in purported colour able exercise of its power.
c
The doctrine of fraud on power means that the legislature really has
the power but does not exercise that power. It merely pretends to have
exercised the power. In the eye of law, such an Act is not a law at all. But
it is a mere pretence of law and the Court will not take notice of such law.
The doctrine of fraud on the Constitution is altogether a different facet D
and a serious charge. It would mean that when there is· a constitutional
restriction or prohibition to make a legislative enactment but the legislature
in spite of the prohibition and restriction makes such law, it is a fraud on
the Constitution. Therefore, the distinction between the fraud on power
and the fraud on the Constitution is clear and unambiguous. The doctrine
of fraud on power cannot be confused with the doctrine of the fraud on E
the Constitution. The principle of fraud on power is applicable when the
legislature has power to enact but does not exercise that power as
elucidated above. On the other hand, the doctrine of fraud on the Con-
stitution means that when the legislature has no power and in spite of the
constitutional limitation or prohibition, it makes enactment in pretence of F
its power. It would therefore, be necessary to examine each of these
concepts in the light of the related subject, the legislative history, the
respective Entries in the concerned Lists of the Seventh Schedule and the
power of the legislature.

As stated already, the legislature of Haryana does have power to G
I • make a law either under Article 309 or under Entry 41 of List II of the
Seventh Schedule to the Constitution to regulate the recruitment and
conditions of service of its employees. It is seen that the substantive power
is under Article 245(1) but the exercise of the power therein is subject to
the Constitution. It is already seen that in Chapter IV of Part V of the H
666 SUPREME COURT REPORTS (1997] SUPP.~ S.C.R.

A Constitution, "the Union Judiciary" and in Chapter V of Part VI, all "the
High Courts of the States" are the sources under which this Court and the '
High Court came to be constituted and the Judges are appointed under
Article 124 or Article 217; the conditions of service of the Judges appointed
under the respective Chapters are secured subject to the only power of
B removal under Article 124(6) and the Rules made therein and in accord-
ance with the procedure laid down therein or to regulate the aberations of
the conduct with "in house procedure" as was held by this Court in C.
Ravichandran Iyer v. A.M. Bhattarcharjee, (1995] 5 SCC 457. The power of
judicial review has been expressly conferred by Articles 32 and 226/227 of
the Constitution on this Court and the High Courts respectively. Even the
C judgment of the High Court is subject to further appeal to this Court under
Article 136 or on leave granted by the High Court under the respective
Articles like 133/134A etc. Thus, the power of judicial review is an inbuilt
and ingrained constitutional power expressly conferred on the constitution-
al Courts and also their constitutional duty and responsibility to exercise
D the power of judicial review of legislative or executive action and of other
orders of quasi-judicial bodies/authority. The law laid down by this Court
is law of the land under Article 141 and it binds all courts within the
territory of India. The declaration of law, therefore, is the law of the land
which binds all parties and all the courts in the country and all the,.other
wings of the State, namely, the Legislature and the Executive, subject to
E the suitable amendments made to the law as recognised by this court in
Prithvi Cotton Mill's case and hosts of decisions followed thereafter. In the
light of the above constitutional limitations, the question emerges; whether
the Act is a fraud on the Constitution or a colourable legislation?

F It is then contended by counsel for the appellants that right to
promotion is not a vested right. The employee has only a right to be
considered for promotion in accordance with the rules/law. The Rules
framed in exercise of the power under proviso to Article 309 are held to
be legislative in character and retroactivity thereof has been upheld in
several decisions. The right to promotion is required to be considered in
G accordance with law at the time of making the promotion. Similarly,
seniority list has to be prepared in accordance with the existing law. Sci
Rajeev Dhawan further contends that the seniority list of 1992 in com-
pliance with the mandamus issued by this Court had already been prepared
and, therefore, the effect of the mandamus issued by this Court got
H exhausted. Subsequently, when the Act was made the seniority list was
S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.] 667

.._ required to be prepared in accordance with law. The seniority, therefore, A
prepared by the State Government was wrongly set aside by the High
Court. So, it is not in accordance with the law. Therefore, it required
interference. Proviso to Rule 5(2) of repealed Rules vis-a-vis Irrigation •
Branch provided for confirmation and, thereby, under those Rules, unlike
in Buildings and Roads and Public Health Branches, the promotees be-
B
'~ come members of the Service from the date of their promotion. Once they
are confirmed in accordance with Rules, their seniority dates back from
the date of continuous officiation. The promotion was made in accordance
with the Rules. Therefore, the service rendered, though within the quota
of the direct recruits, is not fortuitous. In support thereof, he places
reliance on B.S. Yadav & Ors. v. State of Haryana & Ors., (1980] Supp. SCC c
524. For retroactivity and for continuous officiation, he placed reliance on
the ratio of the Constitution Bench Judgment of Direct Recmits case.

The contention of Shri Rajeev Dhawan that after the preparation of
the seniority list in 1992, the mandamus issued by this Court got exhausted D
and the Acts would take hold of the field and the seniority list would be
required to be drawn in accordance with the Act, is clearly unsustainable.
A mere pretence of compliance of the direction relating to preparation of
the senfority list is not a compliance of the mandamus, it is required to be
complied with in letter and spirit as directed therein. Otherwise, it may
amount to contempt of the Court to be dealt with in accordance with the E
relevant law or under suo motu power of this Court or of the High Court.
That apart the Government does not rely on the compliance of the man-
damns; until it is duly modified by a judicial order of the Court in an
appropriate forum known to law, the State cannot seek shelter under the
provisions of the Act to decline preparation of seniority list in accordance F
with the mandamus. Even after the date of the prospective enactment, it
needs to be complied with. The reason is obvious that the seniority has to
be worked out not in accordance with the law made in the Act but in
accordance with the declaration of the law in Sehgal and Chopra's case and
the mandamus issued respectively thereunder and similar compliance of
the High Court's order in related cases of Irrigation Branch. Even for
G
future appointments, (as rightly pointed by Shri Altaf Ahmad), they cannot
• create imbalances and upset the quota prescribed between the direct
recruits and the promotees. The contention that the Government acted
upon a suggestion made by one of the learned Judges of that High Court
that quota should be done away with, has no legal or constitutional foun- H
668 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A dation. This Court constantly has upheld the principle of blending youth
with their experienced counter-part promotees, i.e., direct recruitment and ----
~

promotion drawn from two different sources, to augment efficiency in
Service as a constitutional princip~e. For instance, for All India Services,
direct recruitment of IAS, IPS etc. would be inducted from open market
and promotee officers drawn from the respective State Services are their
B trainee officers. The direct recruit, many a time, works as a pr9bationer
under the promotee officer but on his reaching senior scale, they steal a
march over the former senior promotee officer and sit over the promotee
c
officer. The ground of heart-burning and of junior overtaking senior find
no constitutional base and this pretext of frustration and heart-burning is
c for negation of the constitutional and statutory base for recruitment
through two different sources, namely, induction of young blood by direct
recruitment and promotion of mature and experienced officers from the
other sources, to fuse into Service, as a valid classification, just, reasonable
and fair procedure for augmenting public purpose, naniely, efficiency of
the service. Therefore, the equitable considerations strongly, fervently and ....
D
repeatedly put forth by Shri D.D. Thakur and Rajeev Dhawan do not get
their play in the factual zone.

Equally, the contention of Shri Rajeev Dhawan that the legislature
would be justified to defeat, by enactment of the Act, the right of a single
E individual, namely, Dr. B.D. Sardana to benefit the large group of
promotee officers, on the higher principle of equity and ethics, does not
get acceptance for the reasons already mentioned. It is true that a direct
recruit steals a march over the promotees, but so long as the operation of
law is within the play of law and the Constitution, the consequences are
inevitable and the plea of continuous length of service gets obliterated and
F thereby arbitration does not get sustenance over majesty of Constitution
and lend colour to overcome writ of mandamus issued by this Court.

At this juncture, as stated earlier, we may deal with the effect of the
operation of the repealed Rules relating to PWD Irrigation Branch prior
to the Act. It is true that under the said Rules, the promotees, in excess
G of the quota of 75% for eight years and 50% thereafter, would be members
of the Service and confirmation of probation shall be made under proviso .. -
to sub-rule (2) of Rule 5 of Irrigation Branch Rules. The effect of the
Amendment Act has already been considered and needs no reiteration. It
was held that until they are duly appointed substantively to the service in
H accordance with sub-section (9) of Section 8 of the Act or corresponding
S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.) 669

repealed Rules, they do not become members of the Service, though they A
. are confirmed probationers. Availability of the cadre post within quota was
a pre-condition to become a substantive member of the Service. Though at
first blush, we were impressed with the argument of Shri Rajeev Dhawan,
on deeper probe, we find it difficult to accept the contentions on true and
proper construction of the language. Though we did not substantially B
interpret the Irrigation Branch repealed Rules in the earlier judgments, it
makes little difference, except to the small extent of making a probationer
or officiating promotee Executive Engineer a member of the service, for
the purpose of computation of the period of probation and for awaiting
appointment in a substantive capacity to any post available within the
quota. This conclusion gets manifested by reading the relevant provisions C ·
in the repealed Rules vis-a-vis Irrigation Branch thus :

Rule 2(12) defines "member of the service", to mean an officer
appointed, substantively to a cadre post and includes (a) in the case of a
> direct appointment an officer on probation, or such an officer who, having
successfully completed his probation, awaits appointment to a cadre post; D
(b) in the case of an appointment by promotion an officer on probation or
such an officer who having successfully completed his probation "awaits
appointment to a cadre post". Rules 5(2), 8(12) and.12(6) read as under.

"5. Recruitment to service -
E
(a) .....

(b) Recruitment to the service shall be so regulated to the number
of posts filled by promotion from Class II Service shall not exceed
fifty per cent of the number of posts in the Service, (excluding the F
posts of Assistant Executive Engineers).

Provided that till such time as an adequate number of Assistant
Executive Engineers, who are eligible and considered, fit for ·
promotion, are available, the actual percentage of Officer
promoted from class II service may be larger than fifty per cent. G
• 8(12) Appointment by promotion may be made to an ex-cadre post,
or to any post in the cadre in an officiating capacity from the list
prepared under this rule.

12(6) Subject to the provisions of sub-rules (7) and (8) below, the H
670 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A year of allotment of an officer who is initially appointed to the ~
service as Executive Engineer, shall be the same as that of the
juniormost officer in the service whether officiating or confirmed
as Executive Engineer before the former's appointment.

Explanation - If an officer appointed to the Service as officiating
B Executive Engineer, later on reverts from that post and is again
promoted to it, for purpose of this rule, the year of allotment shall [
be determined taking into consideration the date of his latest
appointment on the post of the Executive Engineer."

c A conjoint reading of these Rules would indicate that the appoint-
ment in a substantive capacity to a cadre post is necessary to become full
member of the Service. The inclusive definition of Rule 2(12)(b) makes one
a member of the Service on appointment as probationer or on successful
completion thereof "awaits appointment to a cadre post". So, both the main
D Clauses and this deeming clause of the definition in their turn posit
appointment to a cadre post but temporary breather is provided, unlike in
Buildings and Roads and Public Health Branches, to enable the
promotees to ·be probationers to complete their probation and on success-
ful completion, to await appointment in a cadre post to a substantive
capacity within the quota. Equally, Rule 5(2) does not advance the case of
E the promotees any further. The proviso to Rule (5(2) gives power to the
State Government to give promotion obviously prior to appointment to a
cadre post, within the quota of direct recruits, to promote Class II officers
in excess of the actual percentage, i.e., larger than 50%. Equally, this elbow
power given to the State is hedged with the condition that the promotee
F Class II officers shall not exceed 50% .of the number of cadre posts in the
service excluding the post of Assistant Executive Engineers. Rule 8(12)
equally does not advance the case any further. It merely enables a
promotee to be appointed to an ex-cadre post or to any post in the cadre
in an officiating capacity from the approved list. Again, with a view to
enable the promotees either to complete the probation, he has to await
G appointment as a foll member in a substantive capacity or the cadre posts.
But for this elbow power, the promotee has no right like the promotee in ..
Buildings and Roads and Public Health Branches, to get into the Service
even on probation or in officiating capacity. If so read, Rule 12(6) or Rule
12(9) does not give them the year to allotment over the direct recruits in
H excess of 50% quota reserved for direct recruits; nor would he be eligible to
'I S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.] 671
steal a march over the direct recruit. Any period of service earlier to the A
appointment in a substantive capacity to a cadre post within the percentage
not exceeding 50% of the number of cadre posts excluding the period in
the post of Assistant Executive Engineer, thus, becomes fortuitous. In this
behalf, it may be relevant to note some of the previous judgments rendered
by the Constitution Benches or three Judges Benches in that perspective.
B
In S.C. Jaisinghani v. Union of India & Ors., [1967] 2 SCR 703, the
celebrated judgment in the field of service jurisprudence, involving con-
flicting seniority between direct recruits and promotees, the Constitution
Bench speaking through V. Ramaswami, J. had held that the direct recruits
.......
_

appointed to Class I, Grade II service after successfully completing the C
competitive examination for members of the Service, are members of
Service from inception. There is a distinction between direct recruits and
promotees. It was a case of recruitment from two different sources and the
adjustment of seniority between them. The concept of equality in the
matter of promotion can be predicated only when the promotees are drawn D
from the same source. If the preferential treatment of one source in
relation to the other is based on differences between the two sources, and
the said differences have a reasonable relation to the nature of the office,
it can legitimately be sustained· on the basis of a valid classification. The
direct recruits were introduced with a view to improve the deficiency of
service. The reason for the classification was that the higher echelons of E
the service should be filled by experienced officers possessing not only a
high degree of ability but also first-rate experience. A rule which gives
seniority to outstanding officers on considerable experience and selected
on the basis of merit and limiting the promotion to a percentage not
exceeding the prescribed limit, cannot be regarded as unreasonable. The F
net effect of the rule is that the direct recruits stand to have an edge over
the promotees with a lesser period of probation and service and, therefore,
the deemed promotion given to Class II, Grade III officers was held
unconstitutional. The object of rule of promotion to the direct recruits with
· three years' experience is to carry out the policy of Rule l(f)(iii) and not G
to allow it to be defeated by the requirement of five years' service in
Class-I, Grade-II itself before consideration for promotion to Class-I,
Grade-I. Otherwise, a promotee certified as fit by the Departmental
Promotion Committee will be senior to direct recruits who completed their
probation in that year but the seniority would be an empty formality. If the
officer is not allowed to count his period service in Class-II for the purpose H
672 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A of promotion to Grade- I, he would have to wait for a long period to go
to Grade-I, Class-I. The direct recruits who completed their probation
would go to Grade-I, Class I by counting five years' service from the date
on which they were placed on probation. The writ of mandamus was
accordingly issued directing the respondents to adjust the seniority of the
B appellant and other officers similarly situated to prepare a fresh seniority
list adjusting the recruitment for the period specified between 1951 and
1956, always in accordance with the quota rule. Similar directions were
given for the subsequent periods to prepare seniority between direct
appointees and promotees, the details of which are not material. The point
in issue is that preferential treatment to the direct recruits as against the
C promotees was held to be reasonable to improve the efficacy of service and
seniority determined \\ithin the quota between the period specified in the
Rules.

Shri H.D. Helms & Ors. v. Shri Mohan Chandra Joshi, AIR (1972) SC
D 2627 is again a case of Income-tax Officers Class-I, Grade-I Service. The
question again pertained to the inter se seniority between direct recruits
and the promotees within the ratio of one-third and two-third. The Con-
stitution Bench considered the question and held that it is for the Govern-
ment under Rule 4 to determine the appropriate methodology for filling
up particular vacancies and the number of candidates to be recruited by
E each method. The vacancy for any particular year being ascertained, not
more than one-third of the same are to go to the promotees and the rest
to the direct recruits. The ratio is not dependent on whether any direct
recruit was appointed in any particular year or not; following the ratio in
Jaisinghani's case, the Constitution Bench upheld the ratio between direct
,
p recruits and promotees and vacancies for the direct recruits whether or not
they were recruited in that order, were directed to be preserved for direct
recruits. In para 6, it was further pointed out that since at the time of entry
into Class-I, Grade-II service the recruitment was from two different
sources, no question of infringement of Articles 14 or 16(1) arose. On facts,
there was no sufficient material before the Court to decide whether or not
G the appointment of the promotees were or were not in excess of the quota
of 33-1/3% of permanent vacancies available to the promotees. According-
ly, the mandamus was issued directing the Central Government to identify
the vacancies and fill up the vacancies in accordance with law and within
quota. We may point out, at this stage, that no distinction between a post
H and vacancy was found by this Court. This Court always treated vacancies
S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.) 673

as posts and when the direct recruitment is to be made, it is always to the A
posts. Similarly, when the appointment by promotion is made, it is made
to posts as vacancies in the posts as indiscriminately called vacancies and
the ratio of 50% is required to be filled up between direct recruits and the
promotees and in the case of the Irrigation Branch for first eight years,
75% posts were reserved for the promotees and 25% for the direct recruits. B
The neil on the principle of equity and heart-burning and consequent
, accrimony was firmly put by these two Constitution Bench Judgments
which were blissfully forgotten.

In Bachan Singh & Anr. v. Union of India & Ors., (1972] 3 SCC 898,
another decision of a Constitution Bench, the inter se seniority between the C
promotees and direct recruits was the question. The appellants were
confirmed promotees while the contesting respondents were the direct
recruits. It was held that the appointment to Class-I service by interview
was made by the Government in consultation with the Union Public Service
· Commission, due to emergency subsequently, some of them from both the D
categories were recruited by the Union Public Service Commission as
direct recruits. The amendment of the Rules provided for the appointment
by interview. Both the direct recruits and the promotees stand on different
footings. No grievance with regard to confirmation was raised. Departmen-
tal promotees can be made but they are entitled to occupy post within their
quota and they get the seniority in their order within the quota. They E
cannot occupy the vacancy of the direct recruits. The direct recruits
consisting of those recruited by competitive examination as well as Union
Public Service Commission occupy posts within their quota. Dispute of
fixation of the seniority between the years 1959 and 1963 inclusive of the
quota fixed for the departmental promotees arose for consideration. Inter p
se seniority was directed to be confirmed within the respective ratio and
seniority was directed to be determined on that basis. (Emphasis supplied)

In V.B. Badami Etc. v. State of Mysore & Ors., [1976] 1 SCR 815, a
Bench of three Judges was to consider the inter se seniority between the
direct recruits and the promotees. This Court laid down six principles in G
determination of the inter se seniority as under :

"The principles generally followed in working out the quota rules
are (i) where rules prescribe quota between direct recruits and
promotees confirmation or substantive appointment can only be in H
674 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

respect of clear vacancies in the permanent strength of the cadre; 1
A
(ii) confirmed persons are senior to those who are officiating; (iii)
as between persons appointed in officiating capacity, seniority is
to be counted on the length of continuous service; (iv) direct
recruitment is possible only by competitive examination which is
the prescribed procedure under the rules. In promotional vacan-
B cies, the promotion is either by selection or on the principle of
seniority-cum-merit. A promotion could be made in respect of a
temporary post or for a specified period, but direct recruitment
has generally to be made only in respect of a clear permanent
vacancy, either existing or anticipated to arise at or about the
c period of probation is expected to be completed; (v) if promotions
are made to vacancies in excess of the promotional quota, the
promotions may not be totally illegal but would be irregular. The
promotees cannot claim any right to hold promotional posts unless
the vacancies fall within their quota. If the promotees occupy any
vacancies which are within the quota of direct recruits, when the
D
direct recruitment takes place, the direct recruits will occupy the
vacancies within their quota. Promotees who are occupying the
vacancies within the quota of direct recruits will either be reverted
or they will be absorbed in the vacancies within their quota iii the
facts and circumstances of the case; and (vi) as long as the quota
E rule remains, neither promotees can be allotted to any of the
substantive vacancies of the quota of direct recruits nor direct
recruits can be allotted to promotional vacancies."

This decision was followed by this Court in Sehgal's case. In Keshav
F Chandra Joshi & Ors. v. Union of India & Ors., [1992] Supp. 1. 272, a Bench
of three Judges of this Court (to which one of us, K. Ramaswamy, J. was
a member) considered Rule 5 of those Rules which is pari materia to
Section 5(2) of the Act or Rule 5(2) of the repealed Rules and held that
in order to be a member of the service, the officer must hold the post in
substantive capacity, appointment to this post must be according to rules
G and within the quota. The membership to the service must be preceded by
an order of appointment to the post validly made. Then only an employee
can be a member of the service. It was held that the promotee cannot claim
advantage of seniority over the direct recruit by virtue of the promotion in
excess of their quota. The theory of breaking down of the Rule profounded
H in Narender Chadha & Ors. v. Union of India & Ors., [1986] 1 SCR 211;
S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.] 675

Buleshwar Das v. State of U.P., (1981) 1SCR449 andM.K. Chauhan·•. State A
of Gujarat, (1971] 1 SCR 1037 has fallen apart and no longer gets respite
in the light of all the decisions following the Badami's case. The spinning
of the breaking down principle was started with the decision in Gonna/
Bhimappa v. State of Kamataka. It was followed in all the subsequent
decisions. The confirmation of probation, therefore, does not automatically B
amount to appointment to service unless a cadre post within the quota is
available and appointment is made in accordance with the repealed Rules
vis-a-vis Irrigation Branch made or as per the declaration of law in Sehgal
and Chopra's cases. The law in Sehgal and Chopra cases was given accep-
tance in Section 8 of the Act.
c
It it true that the Rules made under the proviso to Article 309 of the
Constitution can be issued by amending or altering the Rules with
· retrospectivity as consistently held by this Court in catena of decisions viz.,
B.S. Wadera v. Union of India, (1968] 3 SCR 575; Raj Kumari v. Union of
India, (1975] 3 SCR 963; K Nagaraj & Ors. v. State of Andhra Pradesh & D
Anr., (1985] 1SCC523; T.R. Kapur& Ors. v. State of Haryana & Ors., (1986]
Supp. SCC 584 and host of other decisions. But the question is : whether
the Rules can be amended taking away the vested right? As regards the
right to seniority, this Court elaborately considered the incidence of the
right to seniority and amendment of the Act in the latest decision in Ashok
Kumar Gupta & Anr. v. State of U.P. & Ors., (1997) 3 SCALE 289 relieving E
the need to reiterate all of them once over. Suffice it to state that it is a
settled law that a distinction between right and interest has always been
maintained. Seniority is a facet of interest. The rules prescribe the method
of selection/recruitment. Seniority is governed by the existing rules and is
required to be worked out accordingly. No one has a vested right to p
promotion or a seniority but an officer has an interest to seniority acquired
by working out the Rules. It would be taken away only by operation of valid
law. Right to be considered for promotion is a rule prescribed by condi-
tions of service. A rule which affects the promotion of a person relates to
conditions of service. The rule merely affecting the chances of promotion
cannot be regarded as varying the conditions of service. Chances of promo- G
tion are not conditions of service. A rule which merely affects the chances
of promotion does not amount to change in the conditions of service.

But the above principle has no application to the facts in this case.
We are concerned in the present case with the result of the declaration of H
676 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A law and the mandamus issued. by this Court in the preparation of seniority
list. As a result of the mandamus issued by this Court, the direct recruits
acquired judicially recognised right to a particular position in the service
inter se with promotees to be worked out as per the law declared; findings
recorded and mandamus and directions issued for enforcement. It has
B already been held that the legislature cannot, by colourable exercise of the
power and fraud on the Constitution, take away the right to be considered
in preparation of seniority as per law and for promotion, if found fit, by
virtue of a mandamus issued by this Court, unless the rule of law is suitably
and validly altered so as to make the mandamus ineffectual. It is already
held that a prospective amendment could be brought about removing the
C base by a constitutionally valid law. It is already seen that confirmation of
probation does not ipso facto amount to appointment to a service or in a
substantive capacity in Irrigation Branch. It requires to be examined in
each case as to when a promotee substantively becomes a member of the
Class-I service by operation of the repealed Rules/Act. He does not
D become a member of the service in a substantive capacity until he is duly
appointed in accordance with Rule 8(9) of the repealed Rules or Section
8(9) of the Act. Officer in Irrigation Branch remains a confirmed
probationer awaiting appointment to a service in a substantive capacity
within quota. Until an order of appointment is so made, he does not
E become a member of the service substantively. The seniority then is re-
quired to be reckoned in accordance with the Rules. The law under the
Act prospectively does not have the effect of divesting the vested right had
by the direct recruits under the declaration of law given by this Court. The
consequence, therefore, would be that though promotee officer of Class-II
service in Irrigation Branch was confirmed after completion of probation,
F
he does not become member of the service in substantive capacity until he
is duly appointed within 75% quota for eight years after Irrigation Branch
repealed Rules came into force and 50% thereafter. Any promotee ap-
pointed in excess of quota does not get a continuous service but only
becomes a confirmed probationer awaiting appointment to the cadre post
G of Class-I service as Executive Engineer within the quota. The result of the
repealed Rules was that they became confirmed probationers awaiting
appointment to the service into a cadre post in a substantive capacity within
their quota in accordance with the Rules. The entire continuous officiation
in a post reserved for the direct recruits becomes fortuitous the moment
H they are appointed to a cadre post out side the quota.
S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.] 677

This Court in KC. Ganpat Narayan Dea & Ors. v. The State of Orissa, A
[1954] SCR 1 relied on by Shri Dhawan had considered the validity of the
colourable legislation. Therein, a Bill relating to Orissa State was published
on January 3, 1950. It contained a provision that any sum payable for
agricultural income tax for the previous year should be deducted from the
gross asset of an estate for the purpose of arriving at its net income on the B
basis of which compensation was payable to the estate owners. On January
8, 1950, a Bill to amend the Orissa Agricultural Income-tax Act, 1947 so
as to enhance the highest rate of tax from 3 annas in the rupee to 4 annas
and reduce the highest slab from Rs. 30,000 to Rs. 20,000, was published.
. The Bill was subsequently dropped by the next Chief Minister. On July 22,
1950, another Bill was introduced enhancing the highest rate of 12 annas C
6 pies in the rupee and reduced the highest slab to Rs. 15,000. This was.
transformed into law in August, 1950. It was contended that -the rise in
agricultural income-tax was a fraud on the Constitution and is a colourable
legislation to affect the determination of the compensation payable under
the Orissa Estate Abolition Act. This Court held that the question whether D
it was a colourable legislation and as such void, did not depend on the
motive or bona fides of the legislature to pass that particular law. What the
Court has to determine in such a· case is whether the legislature has
purported to act within the limits of the power. It has in substance and
reality a transgress on the powers, the transgression being veiled by what
appears on proper examination to be a mere pretence or disguise. The E
whole doctrine of colourable legislation is based upon the maxim that you
cannot do indirectly what you cannot do directly. The impugned Act was
in substance and form a law in respect. to the taxing of agricultural income;
the Legislature was competent to legislate on this subject; the Act was not
void and the fact that the object of the legislature was to accomplish p
another purpose namely, to reduce the compensation payable under the
Estate Abolition Act, cannot render this law a colourable legislation and
void as such as the ulterior object itself was not beyond the competence of
the legislature. The consequence of the legislation, assuming, that there is
no absolute rule of law that whatever is affixed to or built on the soil
becomes a part of it. On the facts of that case, it was held that the object G
of the Act was to reduce the taxable maximum exemption that is within the
legislative competence.

It is seen that when this Court exercises the power of judicial review
in an appeal arising from the order of the High Court passed _under Article H
678 SUPR,EME COURT REPORTS [1997] SUPP. 2 S.C.R.

A 226 of the Constitution, it declared law and issued the mandamus. This
exercise of the power of judicial review is expressly conferred by the
Constitution of the constitutional Courts, viz., this Court and the High
Courts. The Legislature when it exercises the power under Article 245(1),
though has the legislative competence under legislative Entry 41, in List-II
B of the Seventh Schedule, the purported exercise is to declare by legislative
judgment a law made by this Court as invalid; enforcement of mandamus
consequently is rendered ineffective. As held earlier, the attempt made
was to remove the base of the declaration of law and mandamus and to
give retrospective effect. The power of judicial review is a basic structure
and a colourable exercise of the legislative power. legislature is prohibited
C from repealing, by legislative judgment, the judicial decision. Therefore, it
is the legislature which trampelled upon the power of judicial review,
transgressed its limits and trespassed into the field of judicial review and
given declaration under the Act emasculating the vitality and efficacy of
judicial review. It would, therefore, be clear that the enactment of the Act
D with retrospective effect is not only a colourable legislative exercise but
also as fraud on the Constitution. However prospective operation of the
Act may be valid.

In T.R. Kapur's case (supra), a two-Judge Bench was to consider
whether retrospective effect to a Rule made under proviso to Article 309
E of the Constitution has the effect of divesting the vested right. It was held
that in Rule 6(b) of the Punjab Service of Engineers, Class-I, PWD
Irrigation Branch Repealed Rules conferred a vested right on persons like
the appellant or direct recruits which could not be taken away by
retrospective amendment of Rule 6(b). As has already been held, affecting
F the right of a person tp be considered for promotion amounts to affecting
the conditions of service; though affecting mere chance of promotion may
not. The power to frame rules to regulate the conditions of service under
the proviso to Article 309 carries with it the power to amend cir alter the
rules with retrospective effect. However, it is well settled principle that the
benefits acquired under the existing Rules cannot be taken away by an
G amendment with retrospective effect, that is to say, that there is no power
to make such a rule under proviso to Article 309 which affects or impairs
vested rights. It would, thus, be clear that a right has been vested in the
direct recruits to have their seniority determined under the repealed Rules,
as a result of the mandamus issued which became final, which still is
H available even after the Act has come into force with retrospective effect .
S.S. BOLA v. B.D. SARDANA [K RAMASWAMY, J.] 679

since the retrospective effect has already been held unconstitutional as A
saved by operation of Section 25 of repealing provision. As a consequence,
they are entitled to have their seniority determined accordingly. It is true
that in B.S. Yadav's case the Constitution Bench of this Court had con-
sidered retrospective effect of the Rules. In para 57 relied on by Shri
Rajeev Dhawan, it was held that insofar as rule of seniority is concerned, B
under the aforesaid amendment, the inter se seniority of the members of
the Service is to be determined by the length of continuous service on a
post in the Service irrespective of the date of confirmation. That principle
requires to be understood in the light of the Rules available therein. At
page 524 in para 78, it was clearly held that retrospective effect to the Rules
creates frustration and discontentment since the just expectations of the C
officers are falsified; settled seniority, thereby is unsettled giving room to
long drawn out litigation between promotees and direct appoints. That
breeds indiscipline which is to be depreq1ted. In para 76, it was observed
that the giving retrospective effect to the Amendment amounted to hitting
the allotted officers below the belt. It is already stated that under the Rules, D
though a promotee Class-II service officiated as Executive Engineer in
Haryana Service of Engineers, Class-I, his seniority in Irrigation Branch,
though he was a member of the service prior to the Act, was required to
be determined with effect ti om the date of appointment to the cadre post
in Class-I Service as Executive Engineer, if available, within the quota.
Entire other service, though as a confirmed probationer, stands denuded E
as fortuitous for the purpose of inter se seniority and consequential promo-
tion.

In State of Maharashtra & Anr. v. Chandrakant Anant Kulkarni & Ors.,
[1981) 4 SCC 130, a Bench of three Judges made distinction between
chances of promotion and right to consideration for promotion. The
F
chances of promotion was held not a condition of the service. Passing of
departmental examination confers no right to be promoted under the
relevant rules. Hence the promotee was not able to challenge. The ratio
therein is inapplicable to the facts of this Case. The ratio in Vinod Gwudas
Raikar v. National Insurance Co. Ltd. & Ors., [1991] 4 SCC 333, is also G
equally inapplicable. Therein, Rule 6(c) of the General Clauses Act on the
effect of the repeal was considered and it was held that the vested right
acquired for compensation under the Motor Vehicles Act, 1939 was not
taken away by virtue of the repeal in Motor Vehicle Act, 1988. Therefore,
it was held that the owners of truck are entitled to compensation under
the repealed Act. The ratio therein too has no application to the facts of H
680 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A this case. The ratio in Zohrabal v. Aljuna & Ors., [1980] 2 SCC 203 equally
is inapplicable to the facts in this case. In that case, though the provision
in Section 28(1) of the Hyderabad Tenancy and Agricultural Land Act,
1950, as applicable to Maharashtra, was amended in 1960, the landlord had
not taken advantage of the Ac•, by following the procedure in amended
provision. In that context, it was held that mere right to take advantage to
B the provision of the Act is not a vested right. Far from helping the
promotees, as contended by Shri Rajeev Dhawan, it clearly indicates that
the law existing as on the date of the declaration as required to be complied
with; that is the implication arising from this judgment.

C It is true that in direct recruits case, a Constitution Bench, to which
one of us (K. Ramaswamy, J.) was a member, had considered propositions
A and B in paragraph 47 of conclusions and held that if an appointment
to a post according to Rules has been made, seniority is to start from the
date of appointment and not with reference to the date of the confirmation.
Therein, the rules were not concerned with the quota. The question related
D to the inter se seniority between direct recruits and promotees. In that
backdrop, this Court considered the interplay of confirmation and the
consequences arising therefrom. It was held that if the appointment came
to be made in accordance with the Rules, though on ad hoc basis, after
considering the claims of all the eligible persons, the seniority is required
E to be considered from the date of initial appointment and not from the
date of confirmation. But, if it is not made in accordance with the Rules,
the appointment on ad hoc basis and the service becomes fortuitous
service. In the context and in the background of the case, the above ratio
is required to be understood. As explained earlier, the Class-II officer
promoted as Executive Engineer, though was officiatiug in Irrigation
F Branch and from the date of the officiation, became a member, his seniority
was required to be considered only if he was appointed to a cadre post
within the quota under Rule 8(9) of repealed Rules or Section 8(9) of the
Act in a substantive capacity and in that event his seniority is counted from
the day of his probation or officiation when appointed from the approved
G list as Executive Engineer. Accordingly, he is required to be considered.

In Bishan Sarup Gupta Etc. Etc. v. Union of India & Ors. Etc. Etc.,
[1975] 1 SCR 104, the Constitution Bench was to consider the inter se
seniority of the direct recruits and promotees of the Income-Tax Depart-
H ment. The President issued two Rules under the proviso to Article 309 of
S.S. BOLA v. B.D. SARDANA [K RAMASWAMY, J.] 681

the Constitution with effect from 16.1.1951. Rule 3 dealing with seniority A
of officers provided that among the promotees, inter se seniority shall be
determined in the order of selection for such promotion. The seniority of
direct recruits inter se shall be determined by the order of merit in which
they are selected. The relative seniority among the promotees and direct
recruits shall be in the ratio of 1 : 1 and the same shall be so determined B
and regulated in accordance with a roster maintained by the Government
>
for the purpose. When the seniority list was prepared by the Government
giving the quota from 1956 to 1958 during which period the quota was not
in vogue, this Court directed that the seniority list prepared for that period
on the basis of quota was wrong but from 1959 onwards the quota would
be required to be worked out. Seniority list from that date was required to C
be maintained within the quota. Far from helping the promotees, this case
goes in favour of the direct recruits. The direct recruits are entitled, from
the date when the rule had come into force, to be considered in a block
and the inter se seniority should be prepared in accordance with the Rules.

Our conclusions on diverse questions, put in a nutshell, are as under:
D

A. The Haryana Service of Engineers Class-I (Buildings and Roads)
and (Public Health) Branches of P.W.D. Rules, now repealed, as inter-
preted by this Court in Sehgal and Chopra's cases, is the law under Article
141 of the Constitution. It binds not only inter-parties, but also the other E
wings of the State, namely, the Legislature and the Executive and all. The
mandamus issued therein along with directions to prepare the seniority list
and its implementation operates inter-parties and binds the State of
Haryana.

B. The Legislature of Haryana was competent to enact the Act 20 of
F
1995 under Article 309 or Entry 41 of List-II (State List) of the Seventh
Schedule to the Constitution on the subject regulating the conditions of
Service and recruitment of its employees in Haryana Service of Engineers
Class-I in PWD Buildings and Roads, Public Health and Irrigation
Branches respectively. In an appropriate situation, the Legislature is also G
empowered to give retrospective effect to the law so enacted. However, the
Legislature is not competent to declare with retrospective effect that the
law declared by this Court under Article 141 in Sehgal and Chopra cases
is illegal; nor is it empowered to make the mandamus and directions issued
therein as ineffective and unenforceable, except in given circumstances as H
682 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A laid down by this this Court in this decision and several decisions referred
to in the judgment.

C. The Haryana Service of Engineers Class-I Public Works Depart-
ment, Buildings and Roads, Public Health and Irrigation Branches respec-
tively, Act (20 of 1995) has with retrospective effect, in substance and in
B effect, declared the law laid down by this Court in Sehgal and Chopra's
cases as unenforceable by an indirect side track process of legislative fiat
which is unconstitutional. The Constitution being supreme, all the organs
and bodies owe their existence to it. None can claim superiority over the
other and each has to function within the four corners of the constitutional
C provisions and implied limitations.

D. The judicial review is the basic feature of the Constitution which
has been entrusted to the Constitutional Courts, namely, the Supreme
Court of India and High Courts under Article 32 and Articles 226 and 227
respectively. It is the Constitutional duty and responsibility of the Constitu- ~
D tional Courts, as assigned under the Constitution, to maintain the balance
of power between the Legislature, the Executive, and the judiciary. In a
Parliamentary democracy, for the Constitutional democracy to remain a
living moral and intellectual force, it would be enforced through judicial
review as an arch of democracy and rule of law.
E E. The judicial review is life-breath of constitutionalism. Judicial
review passes upon constitutionality of legislative Acts or administrative
actions. The courts either would enforce valid Acts/actions or refuse to
enforce them when found unconstitutional.

p F. Judicial review does not concern itself with the merits of the Act
or action but of the manner in which it has been done and its effect on
constitutionalism. It, thereby, creates harmony between fundamental law,
namely, the Constitution and the executive action or legislative Act. Its
fundamental object is to exert moral force upon the Legislature and the
Executive to remain within the limits set by the Constitution and to save
G the people from tyranny of the Legislative/executive actions. It protects
personal liberties of the people, their fundamental freedoms and creates
social and economic harmony maintaining constitutional balance and jus-
tice in the Society, equality of opportunity and of status with dignity of
person, social stability, progress and order under rule of law are the goals
H set by the Constitution.
S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.] 683

G. The Constitutional Courts as sentinel on the qui vive, have fun- A
damental duty and responsibility to build up egalitarian social order under
rule of law. In the exercise of the power of judicial review the Judges of
the Constitutional Courts must, of necessity, be judicial statesmen. The
judicial review is a linkage between the individual liberties and social
interest, political stability to counter balance the ultra vires the Acts or B
actions by judicious decision. Separation of a power among the Legislature,
j
the Executive and the judiciary is also basic feature of the Constitution.
The unconstitutionality of the Acts/actions arises from violation of the
fundamental rights, separation or distribution of powers under the Con-
stitution between the three wings of the State or to prevent violation of
Constitutional limitations or restrictions. In adjudicating the con- C
stitutionality of an Act/action the courts evolve diverse principles wrapped
up with Constitutional ethos to pass on its Constitutionality. Ther_eby,
judicial review alerts the Legislature/the Executive that their Acts/actions,
should conform to the Constitutional requirements or avert the Constitu-
·' tional lapses without trenching upon or trespassing into the field assigned D
to the other wings of the State and develop mutual respect for each other's
powers and functions. It is settled law that if the language in the Act/Sec-
tion/clause is clear and unambiguous it is not necessary to fall back upon
the Statement of Objects and Reasons of the Act to cull out the intention.
Therefore, we need not burden the judgment by citing copious precedents
in this behalf. In adjudging the constitutionality of an Act or action, it is E
their function to find out whether the vice pointed out by the courts or
invalidity suffered by the previous law, is. cured, complying with the Con-
stitution/legal requirements as was pointed out in the previous judgment
by applying the primary tests viz., whether legislati.ire is competent to enact
the law and whether the Act is consistent with the Constitutional require- F
ments. The Legislature has no power to overrule the decision of the
Constitutional Court by mere declaration, without properly and constitu-
tionally removing the base upon which the previous decision was founded;
nor has it the power to direct that the decision of the court does not bind
the State or its instrumentalities.
G
H. In a democracy governed by rule of law, the Legislature exercises
its power under Articles 245 and 246 and other companion Articles read
with the specified entries in the respective lists of the Seventh Schedule to
the Constitution. Power to legislate law would include the power to amend
the law, to enact a new law, and in an appropriate case, with retrospective H
684 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A effect. The legislature in enacting new law or amending the existing law
or revalidating the law has power to alter the language in the statute by
employing the appropriate phraseology and to put up its own interpretation
inconsistent with that put up by the court in an earlier judgment on the
basis of the pre-existing law and to suitably make new law, amend the law
B or alter the law removing the base on which the previous decision was
founded. If a legislature finds that the interpretation given by the court to
the existing law is inconsistent with the Constitutional or public policy or
the objects of the Act intended to be achieved, the legislature has power
to enact new law, or amended the law consistent with Constitutional or
public policy sought to be achieved by the statute. Such an enactment must
C generally be prospective and not retrospective in nature.

I. In order to pass on the Constitutionality, the court is required to
carefully scan the impugned law to find out (a) whether the vice pointed
out by the court or the invalidity suffered by the previous law is cured
D complying with the legal and constitutional requirement, (b) whether the
legislature has competence to enact the law to validate law, and (c) whether
such enactment of Act or validation is consistent with the constitutional
principles or within limitations set by the Constitution or fundamental
rights enshrined in Part III of the Constitution or basic structure of the
Constitution. The Court can take into account the real consequences while
E judging the width of the power nor can the Court ignore the consequences
flowing from particular construction ascertaining the limits of the
provisions that granted the power.

J. The legislature in enacting the law cannot, without anything more
p by a mere declaration, directly overrule, revise or override a judicial
decision. It can render the judicial decision ineffective only by enacting
valid law on the subject within its legislative competence fundamentally
altering or changing the character prospectively or retrospectively. The
changes or altered conditions have to be such that the previous decision
would not have been rendered by the court had those conditions existed
G at the time of declaration of the law in the previous decision as invalid. It
is also empowered to give effect to the Acts so enacted or revalidate\i \...
prospectively or retrospectively with a deemed date or with affect from a
particular date.

H K. The legislative judgment, by a facade of compliance or removal
S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.] 685

of the base, cannot render the decision or mandamus issued by the court A . ·
ineffective or invalid by a declaratory law that the previous decision of the
court is illegal or inequitous. Such a declaration is not conclusive, but is
subject to judicial review. The real test is the effect of the legislation tested
on the touch-stone of the Constitution and its direct result on the declara-
tion of law as interpreted earlier or the mandamus/direction issued by the B
Court in the previous litigation.

L. The courts have applied the doctrine of "pith and substance'.' and
in some cases the doctrine of "incidental" or "ancillary" or "subsidiary
power" of the legislature to uphold the law or to validate the law declared
by the courts as invalid. Thereon, one of the doctrines is applied when the C
court finds that the law in pith and substance is within the legislative
competence but incidentally trenches upon another subject of legislation.
Equally, the doctrine of "ancillary or subsidiary power" of the legislature is
applied when the court records a finding that the impugned Act is substan-
tially within the legislative competence or within the assigned field of D
legislation dealt with under a particular subject specified in the respective
lisrs of the Seventh Schedule to the Constitution, but incidentally it trenches
upon another subject of legislature assigned either to the Parliament or the
legislature of a State as the case may be. However, the said doctrines
cannot be employed to uphold a law that directly nullifies the declaratory E
law made by the court in exercise of the power of judicial review or to
make the writ of mandamus or direction ineffective or unenforceable,
unless its invalidity is properly and constitutionally removed by employing
the appropriate language so as to make a new law within the Constitutional
limits or limitations or competence of the legislature.
F

M. The doctrine of incidental or ancillary power is founded upon the
principle that on the face of the Constitution, the Legislative subject falls
both in the Union as well as the State lists, but on a careful scrutiny of the
subject of enactment, it becomes clear that it falls merely incidentally in
one list, but substantially in another lists. The courts should always take G
-· care and examine whether the Act is within the permissible and constitu-
tional principles. The court would also clearly demarcate the line between
validating legislation removing the base on which the foundation of the
previous judgment rests and the Act which through colourable attempt of
removing the base, renders the judgment of a court ineffective or illegal. H
686 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A N. The Writ of Mandamus or direction issued by the Court cannot
~
be nullified by a legislative fiat, unless the base is removed within the
constitutionally permissible limits. However, the doctrine of incidental
power, cannot be extended to the exercise of the legislative power
colourably or by fraud on the Constitution.

B 0. Colourable legislation is one where the legislature has no power
to legislate on an item either because it is not included in the List of the (
respective Entries in the Seventh Schedule to the Constitution in respect
of which it has competence to enact the law, or on account of limits
imposed either in Part III of the Constitution relating to fundamental rights
c or any other power under the Constitution or in violation of the principle
of basic structure of the Constitution. If on an examination of the Act, the
court finds that the legislature has travelled beyond its power or com-
petence or in transgression of the limits imposed by the Constitution itself,
such an enactment is called colourable legislation. In other words, it has a
reference to the legislative incompetence and not to the power of the ~
D legislature as such. If the legislature enacts the law in the pretext of the
exercise of the legislative power though actually it does not possess such
power, the legislation to that extent either is void or become voidable on
a declaration to that effect by a Constitutional Court. It would, therefore,
be said that the Legislature enacts the law in purported colourable exercise
E of its power.
P. The doctrine of fraud on legislative power means that the legisla-
ture really has the power, but does not exercise that power. It merely
pretends to have exercised the powers. In the eye of law, such an Act is
not a law at all, but is a mere pretence of law and the courts will not take
F notice of such a law.

Q. The doctrine of fraud on the Constitution is altogether a different
principle and a serious charge. When there is a Constitutional prohibition
to make an Act, but the legislature, in spite of the Constitutional prohibi-
tion or restriction to make such a law, enacts such a law, it is a fraud on
G
the Constitution. Therefore, the distinction between the fraud on power ._
and fraud on the Constitution is clear and unambiguous.

S. The principle of fraud on legislative power is applicable when the
legislature has power to enact, but has not exercised that power as en-
H visaged upon. On the other hand the doctrine of fraud on the Constitution
S.S. BOLA v. B.D. SAllDANA [K RAMASWAMY, J.] 687

-.> means when the Legislature has no power and in spite of the Constitutional A
., limitation/prohibition, it make an enactment in pretence of or purported
exercise of the power. It would be necessary to examine all these concepts
in the light of the related subject to determine whether the legislature has
competence to enact law or enacted it by playing a fraud on the Constitu-
tion/colourable exercise of power.
B
T. This Court in Prithvi Cotton Mills case, Indian Alluminium's case
and host of other decisions, permitted the Legislature to remove the base
upon which the previous decision was founded by appropriate phraseology
of the Law applied therein, but it could not be by a side-track or by fraud
... on the Constitution or colourable exercise of the power to overrule a c
declaratory judgment of the Court.

U. The Statement of Objects and Reasons and the preamble of an
Act opens the minds of the makers in enacting the law. It cannot altogether
be eschewed from consideration of the relevant provisions of the Act, when
its constitutionality is tested and objects of the Act sought to be achieved. D

V. On an examination of the Provisions of the Act, it is clear that
though the Legislature of Haryana was competent to make Act 20 of 1995
regulating the conditions of Service and recruitments of the Haryana
Service of Engineers Class-I PWD, Buildings and Roads, Public Health
E
and Irrigation Branches respectively; the Act made with retrospective
effect is a fraud on the Constitution; a colourable exercise of power;
transgression of and trespassing into the power of judicial review expressly

...
<. conferred in· the Constitutional Court, namely, Supreme Court of India
under Article 32 and High Courts under Article 226/227 of the Constitu-
_, ,J tion. F

W. The object of inducting young blood by direct recruitment into
the Service and experienced officers by promotion is constitutionally per-
missible and valid to augment efficiency of service to inculcate discipline,
honesty, integrity and excellence in higher echelons of service. G
I X. The prescription of the ratio between direct recruits and
promotees is equally constitutionally permissible and the permissible limits
shall not be altered by executive action, unless the Executive has power.
For exercise of such power it should give power, valid and satisfactory
explanation in writing prior to exercise of the said power, for deviation of H
688 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A the quota rules and that too as a short term arrangement to tide over
administrative expedience.

Y. The concerned Rules are required to be interpreted as regards
the operation and effect of the deviation of the quota rule and its effect on
the main principle of prescribing quota and integration of the promotee
B officers into the service on strict compliance with the relevant provisions
of the Act/Rules.

Z. In an appropriate case, the quota may be relaxed temporarily with
a view to meet the administrative exigencies by manning the posts by the
C promotees. The promotion of the promotee officers to an ex-cadre post or
cadre posts would only be to meet the administrative expedience. That
would be done, so long as the direct recruit Assistant Executive Engineers,
who are members of the Service in junior scale of pay are not available for
promotion as Executive Engineer and upwards in accordance with the
Rules. If relaxation vis-a-vis length of service or other incidental qualifica-
D tions is given, it should be given uniformly to promotee and direct recruits
for reasons to be recorded; the reasons should be relevant and germane to
achieve efficiency and excellence of service.

AA. As soon as the direct recruits become available, the illter se
E seniority between the direct recruits and the promotees as Executive
Engineers or upward shall be determined. Before determination thereof,
the rights of the parties are founded upon substantive appointment to the
service and to the post, if available, in accordance with the Rules and within
the prescribed quota. On that basis and in accordance with the principles
laid down in the concerned sections/Rules, the seniority shall be deter-
F mined 'between direct recruits inter se and promotees inter se and thereafter ''
the fusion of direct recruits and promotees shall be made again in accord-
ance with the Rules/Act.

AB. The appointment by promotion, declaration of the probation
G and confirmation thereof of the promotee officers of Class-II Service as
Executive Engineers in Irrigation Branch was only to enable them to
perform the duties of the post as probationers and confirmation of the
probation made them eligible to continue to officiate in the cadre/ex-cadre
post. But substantive ·appointment to a cadre post, if available within the
quota to the promotees, was a pre-condition. As soon as the direct recruits
H become available, the inter se seniority shall be determined between the
S.S.BOLAv. B.D.SARDANA[KRAMASWAMY,J.] 689

direct recruits and the promotees in accordance with the Rules/Act within A
the respective quota. Any appointment in excess of quota is invalid and the
service rendered thereunder becomes fortuitous.

AC. A distinction between right to be considered for promotion and
interest to be considered for promotion has always been maintained.
Seniority is a facet of interest. The rules prescribe the method of recruit- B
ment/selection. Seniority is governed by the rules existing as on the date of
consideration for promotion. Seni?rity is required to be worked out ac-
cording to the existing rules. No one has a vested right to promotion or
seniority. But an officer has an interest to seniority acquired by working
out the rules. The seniority would be taken away only by operation of valid C
law. Right to be considered for promotion is a rule prescribed by condi-
tions of service. A rule which affects chances of promotion of a person
relates to conditions of service. The rule/provision in an Act merely affect-
ing the chances of promotion would not be regarded as varying the condi-
tion of service. The chances of promotion are not conditions of service. A D
rule which merely affects the chances of promotion does not amount to
change in the conditions of service. However, once a declaration of law,
on the basis of existing rules, is made by a Constitutional Court and a
mandamus is issued or direction given for its enforcement by preparing the ·
seniority list, operation of the declaration of law and the mandamus and
directions issued by the court is the result of the declaration of law but not E
the operation of the rules per se.

AD. When an Act is made or an amendment to the law is made or
revalidation of law is made by colourable exercise of the power or fraud
on the Constitution, it does not affect the vested rights. The right accrued F
by the declaration of law or the mandamus or directions issued by the court
cannot be taken away by such law or a valid law by retrospective operation
since in the earlier litigation, the court did not declare any law as invalid
or unconstitutional. This Court merely declared the law and directed the
Haryana State Government to implement the law.
G
AE. Preparation of seniority list in accordance with the declaration
of law and the mandamus/direction issued is required to be complied with
by the State Government unless it is properly revised or reversed by a
Constitutional Court in hierarchy of appeals etc. Once the judgment attains
finality the directions given should be followed thereunder. The law is H
690 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A required to be implemented in its true spirit and not by mere pretence or
facade of compliance.

AF. The Act No. 20. of 1995 is unconstitutional to the extent of
retrospective operation of the Act. The prospective operation does not
have any effect on the settled rights of the parties to these litigations since
B the repealed Rules are saved under Section 25 of the Act and would
continue to apply to them. Even otherwise, the rights secured by declara-
tory law were not affected.

AG. The prospective operation of the Act from the date of the
C coming into force of the Act, namely, 30th November, 1995, would be
worked out in the light of the declaration of law in this judgment and be
applicable to the other persons in the Service on and from that date or for
the purpose of future promotions under the Act to those officers who were
not parties to the litigation.
{
D AH. Even if relaxation by way of promotion in excess of the quota
is temporarily made by the State Government, the State Government shall
record reasons in support of its action. However, such temporary deviation
does not have any effect on the ratio prescribed under the Act/repealed
Rules except that the promotee officers from Class-II Service belonging to
E Irrigation Branch are enabled to acquire the probationary status as Class-I
officers on a cadre/ex-cadre post. The confirmation of the probation awaits
the substantive vacancy. Until then, the promotees from Irrigation Branch
do not become members of the Service in a substantive capacity. The same
position has been created under the Act uniformly to all officers.

F Al. The ;:irospective operation of the Act in the present case has
already been considered and it has been that substantive appointment to a
cadre post within quota, if the post is available to the promotee, is a
pre-condition. The Act has not advanced the rights of the promotees any
further. It is true, as was contended by Shri K.T.S. Tulsi, that so long as
G the Act is not declared invalid or unenforceable, it is required to be given
effect to. Technically, he is correct. Shri Altaf Ahmad, when initially
appeared and argued for the State of Haryana, fairly did not attempt to
take the technical stand but confined to the question that the mandamus
issued by the declaratory judgment of this Court was not affected by the
Act and required enforcement. He was correct in placing reliance on
H Section 25. Therefore, the stand taken by Shri K.T.S. Tulsi has enabled us
•
S.S.BOLAv. B.D.SARDANA(K.RAMASWAMY,J.) 691

to strike a lethal blow on the unconstitutionality of retrospective operation A
of the Act. As has been held earlier, the promotee becomes a member of
the Service under the repealed Rules vis-a-vis Buildings and Roads Branch
or Public Health Branch only when he is appointed substantively in accord-
ance with Rule 8(9) of the respective Rules including Irrigation Branch
within the quota. The declaration of law in Sehgal and Chopra's cases B
remains unaffected under the Act and continues to be in force. Similarly,
any appointment made and weightage given to the promotees in excess of
their quota, as contended in quorns, does not have any legal effect on the
right to the seniority and the promotees within their quota alone are
entitled to count their entire length of service from the respective dates of
probation, without break. When appointed as Assistant Executive Engineer C
by direct recruitment, his seniority starts from the date on which he starts
discharging duties of the post as probationer be it in a substantive vacancy
or on ex-cadre post. His seniority remains unaltered. He continues to be a
member of the Service of junior scale of pay even before being appointed
as Executive Engineer, i.e., in the senior scale of pay to a cadre/et- cadre D
post; after his promotion as Executive Engineer on probation being
declared, if the prescribed minimum period of service is completed or if
the same is relaxed by the State Government uniformly to the promotees
and the direct recruits, as was done in the case of B.S. Sardana, his
seniority would continue to start from 1971 as was held in Chopra's case.
Therefore, his seniority has to be determined and promotion given within E
the quota of the direct recruits as Executive Engineer and above in a
substantive capacity: The Class-II officers became eligible for promotion
as Executive Engineers only after the Committee prepared the list of the
eligible officers in acco.rdance with the Rule 8 of the repealed Rules/Sec-
tion 8, after approval by the Public Service Commission and the State of F
Haryana. Class-II officers whose names find place in the approved list shall
be appointed by promotion as Executive Engineers and upwards as
probationers in the order in the list. Appointment on probation and
declaration thereof does not get ripened into appointment substantively to
a cadre post. Appointment to a cadre post available within quota is a
condition precedent to become a member of the Service in a substantive G
capacity. The inter se seniority of the direct recruits and promotee Class-II
Executive Engineers then shall be determined in accordance with the
Rules. It requires to be worked out on that basis.

AJ. The Division Bench of the High Court, therefore, was not correct H
692 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A to say that 10 posts of the promotees in Public Health Branch occupied
from the date of initial constitution, is not challengeable and was not
challenged and, therefore, the contention that all the 10 posts would be
occupied by the promotees in the cadre post, is fallacious and incorrect.
Only 50% of the promotees (75% for 8 years in Irrigation Branch) allotted
B by the State of Punjab to the Haryana Service of Engineers, Class-I on and
with effect from 1st day of November, 1966, shall be retained within their
quota and the balance five posts in Public Health Branch, shall be made
over to the direct recruits. The fair stand taken and correctly advised by
Shri Altaf Ahmed should be worked out. The preparation of seniority on
that basis is perfectly consistent with the mandamus issued by this Court.
C Equally, the direction issued by the High Court with regard to M.L. Gupta
in Irrigation Branch and the other direct recruits in Buildings and Roads,
Public Health and Irrigation Branches respectively would be applied the
same principles as applied to other direct recruits. They should be carried
out accordingly.
D AK. Dr. B.D. Sardana has neatly made out a case during his argu-
ments on merits that the seniority list was not correctly drawn consistent
with the mandamus issued in Chopra's case. He has given us various details
from the rewrd but we decline to go into that aspect. Instead, we direct
the State Government to draw the seniority list afresh in the light of the
E above law and directions within sixty days from the date of the receipt of
the judgment. Any sort of excuse for delay shall not be countenanced.

Civil Appeal No. 423 of 1994 of respondent-Dr. B.D. Sardana stands
allowed. Civil Appeal Nos. 422, 424, 1448-49, 1452-53of1993 and W.P. 582
of 1995 of the promotees and the State Government stand dismissed. The
F directions of the two Division Benches of the Punjab & Haryana High
Court are confirmed with the modification referred to hereinabove. The
transfer Case No. 40 and 44-46 of 1996, writ petitions filed in the High
Court stand disposed of in the light of the declaration of law made and ·
directions given above.
G In view of the facts and circumstances, we direct the parties to bear
their own costs throughout.

R.P. Appeals, Petition and Transferred
Cases disposed of.