STATE OF ORISSA AND ORS.versusGOPAL CHANDRA RATH AND ORS.

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

                             SEPTEMBER 20, 1995
B
                  [S.C. AGARWAL AND G.B. PATNAIK, JJ.)

          Inte1pretation of Statutes-Validation Act-Powers of legislature to
    validate an Act retrospectively by removing infinnity indicated in any judg-
    ment-They cannot merely set aside, annul or ovenide a judgmellt of the         '.
C   Cowt.

           All the respondents were appointed as junior teachers in the Depart-
    ment of Surgery, State of Orissa, in the year 1971, before the Orissa
    Medical Health Services (Recruitment and Promotion to the Teaching
D   Posts in the Medical Colleges) Rules, 1973, came into force, by process of
    selection by a Selection Committee and their inter se seniority before being
    finalised under the Rules of 1973, the Orissa Medical Education Service
    (Recruitment) Rules, 1979 had come into force. Some of the junior
    teachers challenged the gradation list prepared by the State Government
    on the ground that the recruitment had not been made by a Selection
E   Committee appointed by the State Government and therefore, the said
    gradation list was not in accordance with the Recruitment Rules. The
    Orissa Administrative Tribunal allowed the application on a finding that
    the Selection Committee which functioned between June 1971 till the
    promulgamation of the Recruitment Rules of 1973 had not been appointed
F   by the State Government and, as such, had no legal authority to make the
    appointment in question. The gradation list prepared in respect of the
    junior teachers appointed between 1960 till 1973 had been quashed. The
    Special Leave Petition filed against the order of the Tribunal was dis-
    missed. However, the legislature enacted the Orissa Medical Education
    Service (Validation of Gradation List of Junior Teachers) Act; 1988
G   validating the gradation list prepared in respect of the junior teachers
    appointed in pursuance of the recommendation of the Selection Committee
    from time to time during the period 1.12.1960 and 22.9.1973 notwithstand-
    ing any judgment, decree or order of any Court or Tribunal, by substitut-
    ing the definition of 'Selection Committee' in the Recruitment Rule of 1979
H   retrospectively, to mean the Selection Committee which was in existence
                                        816
                               STATE v. G.C. RATH                            817
    from time to time during the period 1.12.1960 to 22.9.1973. Respondent A


-
    No.1 (iled an application in the year 1985 claiming seniority over respon-
    dent Nos. 2 to 15. The Tribunal allowed it .and declared respondent No.1
    to be senior to respondent Nos. 2 to 15 in the rank of junior teachers with
    consequential benefit. Hence this appeal.

          The appellant contended that the Tribunal committed gross error in        B
    holding that the seniority was to be determined with reference to their date
    of appointment as Assistant Surgeons. The respondent alleged that valida-
    tion Act being an Act to override the judgment of this Court, it was invalid;
    that the Selection Committee not having been constituted by the State
    Government and that the post of junior teachers and Assistant Surgeons          C
    being inter changeable at the relevant point of time, the seniority, inter se
    had to be determined on the basis of their seniority in the rank of Assistant
    Surgeons and accordingly there was no infirmity with the conclusion of the
    Tribunal.

          The questions raised for consideration were (i) whether in view of D
    the validation Act of 1988 inter se seniority of junior teachers was to be
    determined in accordance with clause (ii) of sub-rule (2) of Rule 8 of
    Recruitment Rules 1979 or with clause (iii) of the sub Rule and (ii) whether
    there had been any lacuna in the Validation Act?
                                                                                    E
          Allowing the appeal, this Court

           HELD : 1.1. The legislatures have the powers to validate an Act by
    removing the infirmity indicated in any judgment and that too also
    retrospectively but they cannot merely set aside, annual or override a
    judgment of the Court. The judgment of the Court was ~erely to the effect F
    that the Selection Committee not having been appointed by the State
    Government as required under the Rules, the process of Selection got
    vitiated. The Orissa Medical Education Services (Validation of Gradation
    List of Junior Teachers) Act, 1988 had removed the lacuna by changing
    the definition of the Selection Committee and consequently validating the G
    appointments made by such Committee during the period in question.
    There is no infirmity with the Validation Act. [824-B-C]

          1.2. All the respondents were appointed as junior teachers sub-
    sequent to June 1971 and before the Orissa Medical Health Services
    (Recruitment and Promotion to the Teaching Posts in the Medical Col-            H
    818                   SUPREME COURT REPORTS [1995} SUPP. 3 S.C.R.

A leges) Rules 1973, came into force, by process of se~ection by a Selection
    Committee and their inter se seniority before being finalised under, the
    Recruitment Rules of 1973, the Orissa Medical Education Service
    (Recruitment) Rules, 1979 had come into force, the same had to be
    determined in accordance with the 1979 Rules. Under clause (iii) of sub
                                                                                    -
    Rule (2) of Rule 8 only inter se seniority of those junior teachers who had
B   been appointed without consultation with the Commission or without
    being selected by the Selection Committee had to be determined. All the
    respondents having been appointed by a Selection Committee which Com-
    mittee was valid in the eye of law by virtue of the Validation Act, Clause
    (iii) will have no application. The inter se seniority of all the respondents
C   which had been determined in accordance with clause (i) of Sub Rule (2)
    of Rule 8 must be maintained. (824-E-H]


    1995.
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1306 of                  -
D         From the Judgment and Order dated 4.5.92 of the Orissa Ad-
    ministrative Tribunal, Bhubaneshwar in T.A No. 451 of 1987 (OJC. No.
    1767/85).

         Jayanta Das, P.N. Misra, AC. Pradhan and AK. Panda (NP) for the
    Appellants.
E
            S.S. Jawali and Ms. Kirti Mishra for the Respondent.

            Bharat Sangal, Sanjiv Das and N.P. Middha for the Intervenor.

            The Judgment of the Court was delivered by
F
        PATNAIK, J. This appeal by the State of Orissa is directed against
  the judgment of the Orissa Administrative Tribunal, Bhubaneshwar in T.A.
  No. 451/87. By the impugned judgment the Tribunal having altered the
  seniority of the junior teachers in the Department of Surgery, the same is
G being assailed inter alia on the ground that the Rule 8(2)(iii) cannot have
  any application for determining the inter se seniority between these junior
  teachers who were appointed in the year 1971 by a Selection Committee.

          The brief facts, necessary for examining the point in issue, may be
    stated thus; The post of junior teacher is a teaching post attached to the
H   Medical Colleges of the State, whereas, Assistant Surgeons are posts
                       STATE v. G.C. RATH [PATNAIK, J.]                     819

    attached to different Government hospitals in the State. Between the A
    period 1960 till June 1971 the doctors who were appointed as Assistant
    Surgeons through a process of selection by the Orissa Public Service
    Commission were also being posted as a junior teacher in any of the
    Medical Colleges. In June 1971, however, the State Government decided
    to fill up the post of junior teacher in the Medical Colleges from amongst
                                                                                   B
    the Assistant Surgeons by process of selection to be selected by the
    Selection Committee. In the year 1973, a set of rules for recruitment and
    promotion to the various teaching posts in the Medical Colleges were
    framed under the Proviso to Article 309 of the Constitution, called the
    Orissa Medical Health Services (Recruitment and Promotion to the Teach-
    ing Posts in the Medical Colleges) Rules, 1973 (hereinafter referred to as    c
    "The Recruitment Rules of 1973"). Under the said Rules appointment to
    the post of junior teachers could be made through a Selection Board by
.   recruitment from amongst the Assistant Surgeons with atleast one year
    experience in consultation with Public Service Cbmmission. The inter se
    seniority of such junior teachers who were appointed on or after 1st D
    December 1960 till the commencement of the Recruitment Rules of 1973
    was to be determined in accordance with Sub-Rule (2) of Rule 8. In the
    aforesaid Recruitment Rules of 1973 the expression "Selection Committee"
    was defined in Rule 3(g) to mean the "Selection Committee appointed by
    the State Government prior to the commencement of the Rules to select
    persons for appointment to the junior teaching post." Be it be stated that E
    even prior to the Recruitment Rules of 1973, a set of rules were in vogue
    being framed in exercise of powers under the Proviso to Article 309 of the
    Constitution called the Orissa Medical Health Service (Promotion to
    Senior Teaching Posts in the Medical Colleges) Rules, 1970, to be referred
    to as "The Recruitment Rules of 1970". Though the aforesaid Rules of 1970 F
    contained the method of promotion to the post of senior teaching post in
    the Medical Colleges, namely, the Assistant Professor, Associate Professor
    and Professor but it recognised the junior teachers as a cadre and provided
    for the criteria for determination of inter se seniority in the rank of junior
    teachers, same being that it shall be reckoned with respect to the date of
    appointment to the junior teaching post in the speciality and in super G
    speciality. While the Gradation List of the junior teachers prepared in
    accordance with the Recruitment Rules of 1973, was provisional and the
    same had not been finalised,' the Recruitment Rules of 1973 was repealed
    and another set of Recruitment Rules were framed called the Orissa
                                                                                  H
    820                   SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A   Medical Education Service (Recruitment) Rules, 1979, (hereinafter
    referred to as "The 1979 Recruitment Rules"). The definition of Selection
    Committee in Rule 3(g) of the 1979 Recruitment Rule was to the effect
    that Selection Committee appointed by the State Government from time
                                                                                     •
    to time in between the period from 1.12.1960 to 22.9.1973 to select persons
    for appointment to the junior teaching posts. Rule 8 of the 1979 Recruit-
B   ment Rules provided for determination of inter se seniority of junior
    teachers. Sub-Rule (2) of Rule 8 is the provision for determination of inter
    se seniority of junior teachers appointed on or after 1st December, 1960,
    till the date of commencement of the said Recruitment Rule. Clause (i) of
    the aforesaid Sub Rule is to the effect that the seniority of junior teachers
c   shall be reckoned from the date of their appointment to the junior teaching
    post. Under the Explanation the date of appointment must be deemed to
    be the date on which the notification relating to the appointment is issued
    by the Government in consultation with the Commission. Clause (ii) of the        ...
    said Sub-Rule is to the effect that persons appointed on the same day as
D   junior teachers in pursuance of the recommendations of the Selection
    Committee shall be given inter se seniority in accordance with the place-
    ment given by the Selection Committee. Clause (iii) of the said Sub-Rule
    provides the mode of determining inter se seniority of junior teachers other
    than those appointed in consultation with the Commission or the Selection
    Committee on the basis of their seniority in the rank of Assistant Surgeons
E   in the State Medical and Health Services. Clause (iv) of the said Sub Rule
    provides that those junior teachers who were appointed on or after 1st
    December 1960 in pursuance of the recommendation of the Commission,
    to be considered senior to those appointed in the same year without




                                                                                     -
    consulting the Commission, irrespective of the date of appointments.
F
            In the case, in hand, we are really concerned with Clauses (ii) and
    (iii) of Sub-Rule (2) of Rule 8. For better appreciation of the point in issue
    Sub-Rule (2) of Rule 8 of the 1979 Recruitment Rules is_ extracted herein
    below in extenso :-

G            8. (2) Inter-se seniority of Junior Teachers appointed on or after
             the 1st December 1960 till the date of commencement of these
             Rules. shall be determined in consultation with the Commission
             according to the following principles :-

                  (i) Seniority of such Junior Teachers of Speciality or Higher
                   STATEv. G.C.RATH[PA1NAIK,J.)                         821

             Speciality shall be reckoned from the dates of their appoint-     A.·
             ment to the Junior Teaching Posts.

        Explanation - The date of appointment shall be deemed to be the
        date on which the notification relating to the appointment is issued
        by Government in consultation with the Commission.
                                                                               B
             (ii) Persons appointed on the same day as Junior Teachers
             in pur~uance of the recommendations of the Selection Com-
             mittee shall be given inter se seniority in accordance with the
             placements given by the Selection Committee.

             (iii) Notwithstanding anything contained in clause (i) of this
                                                                               c
             Sub-Rule, inter se seniority of Junior Teachers other than
             those appointed in consultation with the Commission or the
             Selection Committee shall. be determined on the basis of their
             respective seniority in the rank of Assistant Surgeons in the
             State Medical and Health Services.                                D
             (iv) Notwithstanding anything contained in clause (i) of this
             sub-rule, Junior Teachers appointed on or after the 1st
             December 1960 in pursuance of the recommendations of the
             Commission, which were valid at the time of such appoint-         E
             ment, shall be considered senior to those appointed as such
             in the same year without consulting the Commission, ir-
             respective of the date of appointments."

Some of the junior teachers had challenged the gradation list prepared by
the State Government on the ground that the recruitment had not been F
made by a Selection Cominittee appointed by the State Government and,
therefore, the said gradation list is not in accordance with the Recruitment
Rules. Originally such Petition had been filed in the High Court and stood
transferred to the Orissa Administrative Tribunal and the Tribunal allowed
that application on a finding that the Selection Committee which func-
tioned between June 1971 till the promulgation of the Recruitment Rules G
of 1973 had not been appointed by the State Government and, as such, had
no legal authority to make the appointment in question. The aforesaid
judgment of the Tribunal was assailed in this Court in a Special Leave
Petition which was dismissed by an order dated 17.1.91, but it was observed
that the interpretation given by the State Administrative Tribunal may not     H
    822                   SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.

A be taken as final and as and when a fresh dispute is raised the matter shall
    be taken for. consideration. Since the gradation list prepared under the
    Recruitment Rule in respect of the junior teachers appointed between
    1.12.1960 ·till 1973 had been quashed on the ground of infirmity in the
    Constitution of the Selection Committee, the Legislature came forward
    with the Validation Act called the Orissa Medical Education Servicer.
B   (Validation of Gradation List of Junior Teachers) Act, 1988, (hereinafter
    referred to as "The Validation Act". The definition of the Selection Com-
    mittee in the Recruitment Rule of 1979 was substituted retrospectively with
    effect from 13th August, 1979, to mean that the Selection Committee which
    is in eXistence from time to time during the period 1.12.1960 to 22.9.1973
c   to select persons for appointment to the junior teaching post. The aforesaid
    Validation Act also validated the gradation list prepared in respect of the
    junior teachers appointed in pursuance of the recommendation of the
    Selection Committee from time to time during the period 1.12.1960 and
    22.9.1973 notwithstanding any judgment, decree or order of any Cou;t or
D   Tribunal. It would be appropriate at this stage to extract Rules 3(g) and 4
    of the Validation Act :-

             3. In rule 3 of the Recruitment Rules, for clause (g), the following
             clause shall be substituted, namely :-

E                 (g) "Selection Committee" means the Selection Committee in
                  existence from time to time during the period between
                  1.12.1960 and 22~9.1973 to select persons for .appointment to
                  the Junior Teaching Posts."

F           4. Notwithstanding any judgment, decree or order of any court or
            tribunal or other authority, the gradation lists prepared in pur-
            suance of clause (ii) of sub-rule (2) of rule 8 of the Recruitment
            Rules in respect of the Junior Teachers appointed in pursuance
            of the recommendations of the Selection Committee in existence
            from time to time during the p~riod between 1.12.1960 and
G           22.9.1973 shall, for all intents and purposes, be_ deemed to have
            been validly and effectively prepared as if clause (g) of rule 3 of
            the Recruitment Rules as amended by section 3 were in force at
            all material times when such gradation lists were prepared, and
            accordingly, no suit or other legal proceeding shall be instituted,
H           maintained or continued in any court or tribunal or before other
                         STATEv. G.C.RATH[PATNAIK,J.]                         823

              authority merely on the ground that those lists were prepared on       A
              the basis of the placement given by the Selection Committee not


-             constituted by Government in accordance with the provisions
              contained in the Recruitment Rules as stood prior to the amend-
              ment made under Section 3;

                  Provided that nothing contained in this section shall affect the   B
              jurisdiction of the Orissa Public Service Commission under sub-
              rule (2) of rule 8 of the Recruitment Rules in determining the
              inter-se seniority."

      Respondent no. 1 had filed a Writ application in the year 1985 claiming C
      the seniority over respondent nos. 2 to 15 and the said Writ application
      stood transferred to the Orissa Administrative Tribunal under Section 29

...   of the Administrative Tribunal Act and was numbered as Tribunal Appeal
      No. 451/87. The Tribunal by the impugned judgment dated 4.5.92 having
      allowed the same and having declared respondent no. 1 to be senior to
      respondent nos. 2 to 15 in the rank of junior teachers with consequential D
      benefit the State has come up to this Court in appeal.

             The learned counsel Mr. Das, appearing for the State of Orissa,
      contended that the Tribunal committed gross error in holding that the
      Validation Act has no application and it further committed error in holding    E
      that the seniority is to be determined with reference to their date of
      appointment as Assistant Surgeons. Mr. Javali, learned senior counsel


-     appearing for respondent no. 1, on the other hand, contended that Valida-
      tion Act is nothing but an Act to override the judgment of this Court and,
      therefore, on the face of it is invalid. He further contended that the
      Selection Committee not having been constituted by the State Government        F
      and on the admitted position that the post of junior teachers and Assistant
      Surgeons were inter-changeable at the relevant point of time, the seniority,
      inter se has to be determined on the basis of their seniority in the rank of
      Assistant Surgeons and accordingly there is no infirmity with the conclusion
      of the Tribunal.
                                                                                     G
            It is an undisputed fact that respondent nos. 1 to 15 were appointed
      as junior teachers on different dates subsequent to June 1971 and their
      selection had been made by a Selection Committee not appointed by the
      State Government but by the Director of Health Service. The question that
      arises for consideration is whether in view of the Validation Act of 1988      H
    824                   SUPREME COURT REPORTS (1995] SUPP. 3 S.C.R.

A inter se seniority of such junior teachers is to be determined in a"ccordance
    with clause (ii) of Sub Rule (2) of Rule 8 of Recruitment Rules 1979 or it
    is to be determined in accordance with clause (iii) of the said Sub Rule.
    Further question that arises for consideration is that whether there has
    been any lacuna in. the Validation Act? But so far as the second questior
                                                                                    -
    is concerned, it is too well settled that the legislature have the powe~ s to
B   validate an Act by removing the infirmity indicated in any judgment and
    that too also retrospectively but they cannot merely set aside, annul or
    override a judgment of the Court. The judgment of the Court was merely
    to the effect that the Selection Committee not having been appointed by
    the State Government as required under the Rules, the process of Selection
c   got vitiated. The Validation Act has removed the lacuna by changing the
    definition of the Selection Committee and consequently validating the




D
    appointments made by .such Committee during the period in question. We
    see no infirmity with the aforesaid Validation Act. The contention of Mr.
    Javali, learned senior counsel, therefore, cannot be accepted.                  -
         Coming back to the first question, the admitted position being that
  all the respondents were appointed as junior teachers subsequent to June
  1971 and before the Recruitment Rules of 1973 came into force, by process
  of Selection by a Selection Committee and their inter se seniority before
  being finalised under the Recruitment Rules of 1973, 1979 Recruitment
E Rules have come into force, the same has to be determined in accordance
  with 1979 Recruitment Rules. A plain reading of the aforesaid Recruitment
  Rules would indicate that the inter se seniority of such junior teachers like
  respondent nos. 1 to 15 has to be determined in accordance with clause (i)
  of Sub Rule (2) of Rule 8. The Tribunal committed gross error by holding
F that the inter se seniority is to be determined under Clause (iii) of Sub Rule
  (2) of Rule 8 in as much as under the said Sub Rule only inter se seniority
  of those junior teachers who had been appointed without consultation with
  the Commission or without being selected by the Selection Committee has
  to be determined. All the respondents having been appointed by a Selec-
  tion Committee which Selection Committee is valid Selection Committee
G in the eye of law by virtue of the Validation Act, Clause (iii) of Sub Rule
  (2) will have no application and accordingly the question of determining
  their seniority on the basis of their respective seniority in the rank of
  Assistant Surgeons in the Medical Health Services does not arise. The
  Tribunal, in our opinion, has misdirected itself by refering to Clause (iii)
H of Sub Rule (2) of Rule 8 for determining the inter se seniority among the
                      STATEv. G.C.RATH(PATNAIK,J.]                       825

-   respondents. The said conclusion of the Tribunal is wholly unsustainable A
    in law and we accordingly quash the same and direct that the inter se
    seniority of all the respondents which has been determined in accordance
    with Clause (i) of Sub Rule (2) of Rule 8 must be maintained. In view of
    our quashing of the order of the Tribunal declaring the respondent no. 1
    as senior to respondent nos. 12 to 15 in the rank of Junior Teacher,
    subsequent direction for re-consideration of the case of respondent no. 1
                                                                                B
    to the promotion on the post of Assistant Professor as well as other post
    of higher rank does not arise and the same direction accordingly is
    quashed, Civil Appeal is thus allowed. The impugned judgment of the
    Tribunal is set aside. But, in the circumstances, there will be no order as
    to costs.                                                                  c
    RA.                                                     Appeal allowed.