GAYA PRASAD PANDEY v. STATE OF BIHAR — 1972 DIGILAW 94 (PAT)

JUDGMENT : Shambhu Prasad Singh, J. The petitioners who were directly recruited to and are members of the junior branch of the Bihar Finance Service (hereinafter I called as 'the Service') have filed this application for quashing Annexure 6 to the petition whereby on 30th of December, 1971, the State of Bihar, respondent no.1, amended Rules 6 and 39 of the Bihar Finance Service Rules, 1953 (hereinafter referred to as 'the Rules') and added a new Rule 39A to the Rules. Respondent nos. 2 to 19 are also members of the junior branch of the service, but they were appointed on promotion. As it appeared from the arguments advanced by learned counsel for the parties, the real contest was as to the amendment of Rule 39 only. Before the amendment Rule 39 read as follows : "39. Seniority-Seniority of officers appointed to the Service shall be determined in accordance with the date of their substantive appointment to the service; Provided that if more than one officer is substantively appointed at the same time- (i) to either branch of the service by direct recruitment, their seniority inter se shall be determined by the ORDER :of preference assigned to them by the Public Service Commission in the list of their recommendations; (ii) to the Senior branch of the Service by promotion, their relative seniority shall be their ORDER :of seniority inter se in the Junior branch of the Service; (iii) to the Junior branch of the Service by promotion, their seniority, inter se shall be determined by the ORDER :of preference assigned to them by the Public Service Commission, except that where more than one officer is promoted from the same service or cadre, their seniority shall be determined by the ORDER :of their position inter se in the service or cadre from which they are promoted; and (iv) to either branch of the service both by direct recruitment and promotion, the officer promoted shall rank senior to the officer recruited direct." The rule after amendment reads as follows: “39. Seniority-Notwithstanding anything to the contrary contained in any law or contract or any JUDGMENT :, decree or ORDER :of any court, tribunal or authority, seniority of the officer appointed to either branch of the service shall be determined with reference to the year of vacancies declared under Rule 6, against which they are appointed on probation. Seniority-Notwithstanding anything to the contrary contained in any law or contract or any JUDGMENT :, decree or ORDER :of any court, tribunal or authority, seniority of the officer appointed to either branch of the service shall be determined with reference to the year of vacancies declared under Rule 6, against which they are appointed on probation. If more than one officer is appointed against vacancy of a particular year- (i) to either branch of the service by direct recruitment, their seniority inter se shall be fixed according to the ORDER :of merit assigned by the Public Service Commission; (ii) to either branch of the service by promotion and by direct recruitment, the officer promoted shall take precedence over the officer recruited direct; (iii) to the Senior branch of the service by promotion, their inter se seniority shall be the same which they held in the junior branch of the service; (iv) to the Junior branch of the service by promotion from different gazetted services and non-gazetted ranks, their seniority inter se shall be determined by the ORDER :of preference assigned to them by the Public Service Commission, except that where more than one officer is promoted from the same service or cadre, their seniority shall be determined by the ORDER :of their position inter se in the service or cadre from which they were promoted; Provided that in the case where officers are promoted both from gazetted and non-gazetted posts, officers promoted from gazetted post shall rank senior to those promoted from non-gazetted posts." 2. The petitioners were appointed on probation to the junior branch of service by the notification dated 2nd of February, 1957 (Annexure 1 to the petition) on the basis of a competitive examination held in the month of December, 1955. Respondents 2 to 7 were temporarily appointed to the junior branch of the Service by notification dated 12th of April, 1956 (Annexure 3 to the petition). The petitioners were confirmed in the junior branch of the Service by notification dated 20th of June, 1960 (Annexure 2 to the petition). Respondents 2 to 7 were substantively promoted to the junior branch of the Service with effect from 16th of September, 1960 and put on probation by a notification of the very date (Annexure 4 to the petition). The petitioners were confirmed in the junior branch of the Service by notification dated 20th of June, 1960 (Annexure 2 to the petition). Respondents 2 to 7 were substantively promoted to the junior branch of the Service with effect from 16th of September, 1960 and put on probation by a notification of the very date (Annexure 4 to the petition). Respondents 8 to 19 were also promoted to the junior branch of the Service and put on probation with effect from the same date, the 16th of September, 1960 by another notification of the date (Annexure 5 to the petition).They (respondents 8 to 19) were confirmed on various date after 19th of September, 1962. In the gradation list prepared by respondent no. 1, the petitioners were shown below respondents 2 to 19. When various representations made by the petitioners were not successful, they filed Civil Writ Jurisdiction Case No, 4 of 1968 before this Court. That was disposed of by ORDER :dated 4th of December, 1968 (reported in A. I. R. 1969 Patna 311). The application was allowed, the gradation list showing the petitioners junior to respondents 2 to 19 was quashed and respondent no. 1 was directed to reconsider and fix their seniority according to the provisions embodied in Rule 39, as it then stood, on the basis of the date of their confirmation. Thereafter respondent no. 1 filed petition for leave to appeal to the Supreme Court and the same was dismissed. Then it filed petition for special leave for appeal to the Supreme Court which was finally heard after notice to the petitioners and was dismissed by the Supreme Court on 15th of October, 1971. During the pendency of the petition for special leave before the Supreme Court, there was no ORDER :staying the operation of the JUDGMENT : passed by this Court. Then came the impugned amendment. 3. The case of the petitioners is that the impugned rules were promulgated only in ORDER :to illegally confer seniority to respondents 2 to 19 over the petitioners which they were held not entitled to on the basis of the rules contained in Rule 39 of the Rule in utter disobedience by the State Government of the JUDGMENT : and ORDER :s of this Court dated 4th of December, 1968. The whole purpose of the amendment of the rule retrospectively was to validate the seniority list which was declared invalid by this Court. This was being done to favour mala fide a few of the officers similarly situate as the petitioners and was beyond the competence of the rule making authority. The amendment of the rule is an attempt to take away the rights of seniority vested and declared by the court of competent jurisdiction of the petitioners in violation of their fundamental rights guaranteed by Articles 14 and 16(1) of the Constitution of India and to disregard the decision of this Court. The impugned amendment was a colourable exercise of powers by the Government and mala fide. 4. A separate application (M.J.C.No. 1 of 1972) has been filed by the petitioners for starting contempt of court proceedings against respondent no. 1 through the Finance Commissioner for the deliberate disobedience of the ORDER :of this Court. A petition has also been filed for adding two ex-Finance Commissioners and the present Finance Commissioner by name a s party to the said application for contempt. 5. The case of the respondents, specially respondent no. 1 according to their show cause is that the principle followed in the matter of fixing seniority in different services of the State, excluding Judicial service, has always been what is embodied in the amended rule. In the opinion of the Government, the language of the rules framed in 1953 was comprehensive enough to continue the said practice, but as this Court found that according to the language of the rules seniority was to be determined with reference to the date of confirmation, which was against the practice followed, for removing the deficiency of language the rule suffered from, the rules were amended. The amendment was quite within the competence of the Government under Article 309 of the Constitution of India which vests the Governor or an authority appointed by him for the purpose with plenary legislative powers to make and amend rules retrospectively. This is further elaborated by respondent no. 1 in paragraph 3 of its reply to counter-affidavit filed on 8th of May, 1972. The case of the Finance Commissioner in the petition for contempt of Court is that whatever has been done has been done bona fide under legal advice and there has been no contempt of Court. 6. Mr. This is further elaborated by respondent no. 1 in paragraph 3 of its reply to counter-affidavit filed on 8th of May, 1972. The case of the Finance Commissioner in the petition for contempt of Court is that whatever has been done has been done bona fide under legal advice and there has been no contempt of Court. 6. Mr. Basudeva Prasad appearing for the petitioners contended that it was not necessary to go into the question whether the amendment was valid or not so far its prospective operation was concerned, but by its retrospective operation it did interfere with the vested right of the petitioners as to their seniority vis-a-vis respondents 2 to 19 and thus made a discrimination between the petitioners and the aforesaid respondents. It was, therefore, violative of Article 16 of the Constitution of India. 7. Mr. Lal Narain Sinha, who appeared for respondents 2 to 19, as well as represented respondent no. 1 submitted that three questions arose for decision in the case; (1) the legislative competence of the Governor, (2) whether under the rule making power the Governor could affect existing conditions of service of the employees of the State, and (3) whether the impugned amendment of Rule 39 of the Rules contravened Article 16 of the Constitution. 8. The Governor has legislative competence and under rule making power he can affect existing conditions of service of the employees of the State have to be answered in the affirmative and in favour of the respondents. 8. The Governor has legislative competence and under rule making power he can affect existing conditions of service of the employees of the State have to be answered in the affirmative and in favour of the respondents. Article 309 of the Constitution runs as follows : "Subject to the provisions of this Constitution, Acts of 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: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under this Article, and any rules so made shall have effect subject to the provisions of any such Act." It is clear from the language of the Article that the Governor of a State or such person as he may direct in making rules regulating the recruitment and conditions of service of persons appointed to service and posts in connection with the affairs of the State so long no law is made by the Legislature exercises plenary power (Sic) can Legislature retrospectively, so the Governor or such person as he may direct can also make rules retrospectively. It has been so held by the Supreme Court in (1) B. S. Vadera V. Union of Indian and others (A.I.R. 1969 Supreme Court 118). Vaidialingam, J. who gave the decision of the Supreme Court in that Case observed as follows :- "It is also significant to note that the proviso to Article 309, clearly lays down that 'any rules so made shall have effect, subject to the provisions of any such Act'. The clear and unambiguous expressions, used in the Constitution, mast be given their full and unrestricted meaning unless hedged-in, by any limitations. The rules, which have to be 'Subject to the provisions of the Constitution', shall have effect, 'Subject to the provisions of any such Act'. The clear and unambiguous expressions, used in the Constitution, mast be given their full and unrestricted meaning unless hedged-in, by any limitations. The rules, which have to be 'Subject to the provisions of the Constitution', shall have effect, 'Subject to the provisions of any such Act'. That is, if the appropriate Legislature has passed an Act, under Article 309, the rules, framed under the Proviso, will have effect, subject to that Act; bat, in the absence of any Act, of the appropriate Legislature, on the matter, in our opinion, the rules, made by the President, or by such person as he may direct, are to have full effect, both prospectively and retrospectively. Apart from the limitations, pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules. In other words, the rules, unless they can be impeached on grounds such as breach of Part III, or any other Constitutional provision, must be enforced, if made by the appropriate authority." In (2) Roshan Lal Tandon V. Union of India and others (A.I.R. 1967 Supreme Court 1889) it has been held that the legal position of a Government servant is more one of status than of contract and terms of service can be altered unilaterally by Government. It has been further held that there h-as been no vested contractual right for the Government servant, The only question, therefore, which falls for decision in the present case is whether the retrospective amendment of Rule 39 violates Article 16 of the Constitution of India or not. According to Mr. Basudeva Prasad it does violate Article 16 of the Constitution. According to Mr. Lal Narain Sinha it does not. 9. In support of his contention Mr. Basudeva Prasad relied on the decisions of the Supreme Court in (3) S. K. Ghosh and another V. Union of India and others (A.I.R. 1968 Supreme Court 1385) and (4) N. C. Singhal V. Director General, Armed Forces (A.I.R. 1972 S.C. 628). In S. K. Ghosh's case; after the petitioners of that case who were appointed in the junior time scale of the Indian Postal Service were promoted to the senior time scale and then to the posts of Directors of Postal Services, their seniority in the junior time scale was revised and they were placed below respondents 3 to 7 of the case. Subsequently their seniority in the grade of Director of Postal Services was also revised and they were shown as junior to respondents 3 to 7 though in fact they were appointed earlier to them. The Supreme Court while allowing the application of the petitioners held and observed as follows: "The presumption exists that the promotion of the petitioners and respondents 3 to 7 to the grade of Directors must have been made in accordance with these instructions and rules, so that the appointment of all these concerned parties as Directors was based on merit to be taken into account at the time of selection and not on seniority in the time scalp of Class I Service. Once a member of the Class I Service in the time scale was selected for promotion to the grade of Director and given seniority over another officer selected later the seniority so determined as a result of selection could not be made dependent on the seniority in the time scale. It is clear that in these circumstances, even if there was justification for revising the seniority inter se of the petitioners and respondents 3 to 7 in the time scale of Class I Service, that revision of seniority could not in any way affect their ORDER :of seniority in the grade of Directors to which they were promoted on the basis of selection in accordance with the rules. It is, therefore, clear that, even if it be held that the ORDER :of the Government dated 5th June, 1965 revising the seniority of these officers in the junior time scale was valid, the ORDER :dated 17th January, 1966 revising the seniority in the grade of Directors of Postal Services is not valid and justified. The seniority in the grade of Director of Postal Services was not dependent on the inter se seniority in the junior time scale and any alteration in the seniority, in the latter could not form the basis for revising the seniority in the former grade. No other justification for the revision of the seniority in the grade of Directors of Postal Services was put forward on behalf of any of the respondents. No other justification for the revision of the seniority in the grade of Directors of Postal Services was put forward on behalf of any of the respondents. It is, thus, clear that the revision of seniority in the grade of Directors of Postal Services by the ORDER :dated 17th January, 1966 was not based on any rule or appropriate principle applicable to determination of seniority in that grade, and, much, therefore, be held to be totally arbitrary. Such an arbitrary ORDER :, which affects the civil rights of the petitioners in respect of future promotion must therefore, be struck down as violating Article 16 of the Constitution. Once this ORDER :dated 17th January, 1966 is quashed, the petitioners will no longer be affected in future by the revision of their seniority in the time scale of the service by the ORDER :dated 5th June, 1965 and consequently, we have refrained from going into the question of the validity of that ORDER :." Mr. Lal Narain Sinha distinguished this decision of the Supreme Court on the ground that if the petitioners of that case would not have been promoted to another scale, their Lordships would not have allowed their application. 10. In (4) N. C. Singhal's case, it has been held by the Supreme Court that the Government has no power to alter or modify the conditions of Service of the Government Servants with retrospective effect to the prejudice of the Government Servants. In this case, their Lordships were dealing with the validity of certain Army instructions. In the JUDGMENT : of their Lordships there is nothing, to show that they took the Army instructions under consideration as rules made under Article 309 of the Constitution of India. In the headnote, however the Reporter has referred to Article 309 of the Constitution of India and Mr. Basudeva Prasad attempted to convince us with reference to some decisions that the Army instructions were rules made by the President under Article 309 of the Constitution. He, therefore, submitted that the decision fully supported his contention. On the other hand, Mr. Lal Narain Sinha submitted that the decision did not proceed on the assumption that the Army instructions were rules under Article 309 of the Constitution of India, and, therefore it was not of any help to the petitioners before us. 11. He, therefore, submitted that the decision fully supported his contention. On the other hand, Mr. Lal Narain Sinha submitted that the decision did not proceed on the assumption that the Army instructions were rules under Article 309 of the Constitution of India, and, therefore it was not of any help to the petitioners before us. 11. In (3) S. K. Ghosh's case it was by ORDER :dated 5th of June, 1965 that seniority in the junior time scale was revised. As it appears from the last sentence of passage quoted from the JUDGMENT : of the Supreme Court the question of the validity of that ORDER :was not decided. Their Lordships of the Supreme Court did not accept the contention of the Government that ORDER :dated 5th of June, 1965 was valid. This is manifest from the sentence-"It is therefore, clear, that, even if it be held that the ORDER :of the Government dated 5th June, 1965 revising the seniority of these officers in the junior time scale was valid, the ORDER :dated 17th January, 1966 revising the seniority in the grade of Directors of Postal Services is not valid and justified." The observation of their Lordships that an arbitrary ORDER :which affects the civil rights of the petitioner in respect of future promotion has to be struck down as violating Article 16 of the Constitution, in my opinion, does support the contention of learned counsel for the petitioners of the case before us. However, that decision cannot be held to be a direct decision in favour of the petitioners. 12. Mr. Basudeva Prasad was not able to show that the Army instructions which were under consideration of the Supreme Court in (4) N. C. Singhal's case were, in fact, made under Article 309 of the Constitution of India. In (5) Kapoor Singh Harnam Singh V. Union of India and others (A. I. R. 1960 Madhya Pradesh 119), the decision on which Mr. Prasad strongly relied to show that Army instructions are rules made under Article 309 of the Constitution of India, what the learned Judges considered as rules under Article 309 of the Constitution was Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952. Obviously the Army instructions of 1949 which were pre-Constitution could not be under Article 309 of the Constitution of India. Obviously the Army instructions of 1949 which were pre-Constitution could not be under Article 309 of the Constitution of India. In absence of any reference to Article 309 of the Constitution in the JUDGMENT : itself the decision of their Lordships of the Supreme Court in (4) N. C. Singhal's case cannot also be taken as direct authority on the point under consideration. 13. At this stage it may be necessary to examine the decision of the Supreme Court in (J) B. S. Vadera's case because Mr. Lal Narain Sinha placed strong reliance on this decision. According to him, in this decision the Supreme Court upheld the power of the rule making authority under Article 309 of the Constitution to make rules affecting seniority of Government servants retrospectively. The petitioners of that case challenged the retrospective revision of their seniority because as a result of the revision they were reverted to lower ranks. Their Lordships accepted the case of the Union of India that the promotion of the petitioners to the rank they were bolding was provisional and on ad hoc basis only. The petitioners, therefore, could not have claimed any right to continue in the pests they were holding. Their Lordships further accepted the case of the Union of India that at the time the petitioners were promoted, the Railway Board Secretariat Clerical Service (Reorganisation) Scheme was under contemplation of the authorities and the promotions were made purely on a temporary and ad hoc basis on that account. The seniority of the petitioners was revised in accordance with the Scheme as ultimately framed. It is not, therefore, a case where seniority of a Government Servant confirmed in the rank he was bolding stood determined according to rules and thus chat decision is not directly to the point on the question whether the amended Rule 39 violates Article 16 of the Constitution. 14. The petitioners were confirmed to the junior branch of the service b3fore respondents 2 to 19. The contention of the respondents that the petitioners and they were substantively appointed to the junior branch of the Service at the same time was not accepted by this Court in C.W.J.C. No. 4 of 1968. According to the rules then existing the petitioners were senior to the respondents. The seniority of a person in Government service, in my opinion, does not depend how it is fixed by the authority concerned. According to the rules then existing the petitioners were senior to the respondents. The seniority of a person in Government service, in my opinion, does not depend how it is fixed by the authority concerned. It stands automatically determined according to the existing rules. The preparation of the seniority list by the authority concerned is a mere formal matter. If the authority commits any mistake in preparing the seniority list and it is not found in accordance with the rules, the mistake must be corrected. Thus, on their confirmation to the junior branch of the Service the petitioners, according to the rules then in force, got a right of seniority over respondents 2 to 19. According to the JUDGMENT : of the Supreme Court in (3) S. K. Ghosh's case such a right must be a civil right of the petitioners on the basis of which they could claim consideration for future promotion before those who were junior to them or, in other words, substantively appointed to that branch of the service subsequently. It is not even the case of the respondents that any scheme as to how seniority was to be determined in the junior branch of the service was under consideration of the Government at the time the petitioners and respondents 2 to 19 were substantively appointed to the service as was the position in (1) Vadera's case. Now if respondent no. 1 amended the rule merely to affect the seniority of the petitioners thereby conferring some rights on respondents 2 to 19, there can be no doubt that it affected the civil rights of the petitioners in respect of future promotion. 15. It was contended on behalf of the respondents that as the petitioners and respondents 2 to 19 constituted different groups, namely, direct recruits and promotees, and as more time was bound to be taken in taking decisions as to appointments by promotion than by direct recruitment, the distinction made by the amended rule between the two groups is not arbitrary but based on a reasonable differentia and, therefore, not discriminative in nature. It cannot, therefore, be said to be violating Article l6 of the Constitution of India. It cannot, therefore, be said to be violating Article l6 of the Constitution of India. It is now well established by the decision of the Supreme Court that once persons are substantively appointed to one grade in the service, any distinction made between them merely on the basis that they were promotees or direct recruits is discriminative in nature and violates Article 16 of the Constitution. Reference may be made to the decisions in, 2) Roshan Lal's case, already referred to above, and in (6) S. M. Pandit and others V. State of Gujarat and others (A.I.R. 1972 S C. 252). After the petitioners and respondents 2 to 19 were substantively appointed to junior branch of the service and thus absorbed in one cadre, distinction cannot be made between them merely on the basis of the fact that the, petitioners are direct recruits and respondents 2 to 19 are promotees so as to affect their civil right of being considered according to the seniority for future promotion. I am, therefore, of the opinion that the amended rule so far it affects the petitioners' right of being considered before respondents 2 to 19 for future promotion is discriminative in nature and thus violative of Article 16 of the Constitution. 16. Reliance was placed by Mr. Lal Narain Sinha on two unreported decisions of this Court in (7) Ram Sarnagat Sinha and others V. The State of Bihar and others (C.W. J.C. Nos. 552 and 847 of 1969) decided on 24th of November, 1971, and (8) Girija Shankar Mairh V. The State of Bihar and others (C.W. J. C. No. 401 of 1970) decided on 28th of March, 1972. In (7) Ram Sarnagat Sihna's case, it has been held that the rules being silent on the question of the determination of the seniority and particularly on that question of seniority of the petitioners vis-a-vis the respondent of that case the notifications which were challenged in effect and substance only gave an official recognition to the actual fact which had been in existence from before and, therefore, it was not a case where this Court could issue a writ. In (8) Girija Shankar Mairh's case there are observations which support the view taken by me in this case. In (8) Girija Shankar Mairh's case there are observations which support the view taken by me in this case. At one place it was observed- "By conferring this notional and fictional benefit of seniority in the next higher rank so as to affect the civil right of the petitioner in the matter of promotion to further higher ranks is denial of equal opportunities in the matter of employment". At another place while considering the decision of the Supreme Court in (9) Mervyn Continho V. Collector of Customs (A. I. R. 1967 Supreme Court 52) it has been observed that if the Governmental action affecting the seniority of a class of Government servants tantamount to a denial of equality of opportunity in relation to the employment, any retrospective rule bringing about the same result can also be struck down as being violative of Article 16 of the Constitution. While dealing with (1) Vadera's case, the learned Judge observed- "Their appointments to the next higher grades, although it had continued for about a decade, were all on temporary and ad hoc basis. I am inclined to think that a pointed reference to these facts in the JUDGMENT : of the Supreme Court was necessitated to find out whether the retrospective operation of the rule under challenge there was affecting the seniority of the petitioners in their next higher ranks. And if it would have been found that the petitioners had been confirmed in their next higher rank and the retrospective operation was affecting their seniority in that rank, I venture to think that on a parity of the reasons given by the Supreme Court in the earlier cases referred to above, perhaps it would have been held that the retrospective operation to affect the seniority in the next confirmed rank was violation of Article 16 of the Constitution." Strong reliance was placed by Mr. Lal Narain Sinha on the following ob• servation of the learned Judge- “On a due consideration of the matter I have come to the conclusion that if by interpretation Rule 3 is not restricted to confer seniority benefits to War Service Recruits in the first and the initial rank but is allowed to extend to affect the next promoted rank, it would be violative of the Article 16 of the Constitution." And the fact that the rule which was challenged in that case was not held to be bad so far it conferred notional benefit on respondent no. 3 in regard to seniority in the initial rank. He also relied on the observation that where there is reasonable nexus between the classification and the object to be achieved on the retrospective operation of the rule cannot possibly be struck down as violative of Article 14 or 16 of the Constitution. Like (3) S. K. Ghosh's case, in (8) Mairh's case also it was not necessary to examine the question whether the fixation of seniority in the initial rank was good or bad because if the fixation of seniority in the promoted rank was to be held, bad, the petitioners were not going to be affected by the fixation of the seniority in the initial rank. The decision, in (8)Mairh's case, therefore, in my opinion also cannot be taken to be as an authority for the proposition that after the seniority of officers substantively appointed to one cadre from different sources and absorbed to that cadre stands determined according to existing rules, amendment of the rules by the Government with retrospective operation thereby affecting the civil right of an employee of consideration, according to that seniority for future promotion merely on the basis that they were appointed to that cadre from different sources is not discriminative and on that ground not violative of Article 16 of the Constitution of India- Strong reliance was placed by Mr. Lal Narain Sinha on the passage quoted below from the decision of the Judicial Committee in (10) Her Majesty the Queen V. Burah (5 Indian Appeals 178) :- "But their Lordships are of the opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and indeed of the nature and principles of Legislation. The Indian Legislature has power expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of coarse be included any act of Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restriction." If I may say so with respect, there can be no doubt that the passage enunciates the correct law. But it was not disputed by Mr. Sinha that the power under Article 309 of the Constitution of India is subject to the fundamental rights conferred upon the citizens under Part III of the Constitution of India and I have already endeavored to show that the impugned amendment so far its retrospective operation is concerned, is violative of Article 16 of the Constitution of India. 18. Reliance was also placed by Mr. Sinha on a Bench decision of this Court in (11) Baijnath Singh V. Secretary, Department of Appointment, Government of Bihar and others (1972 B.L.J.R. 205) as to the meaning of the term 'same time' in the rules of Bihar Junior Civil Service. This decision cannot override the decision in C.W.J.C. No. 4 of 1968 in as much as that is an earlier Bench decision and between the same parties. Further the decision in (11) Baijnath Singh's case is not with regard to rules in Finance Service and the facts of that case were also different. 19. This decision cannot override the decision in C.W.J.C. No. 4 of 1968 in as much as that is an earlier Bench decision and between the same parties. Further the decision in (11) Baijnath Singh's case is not with regard to rules in Finance Service and the facts of that case were also different. 19. So far the application for contempt of court which has been registered as Miscellaneous Judicial Case is concerned, though the action of the Government and Finance Commissioners cannot be commended and have to be looked with displeasure for not carrying out the mandate of the Court without obtaining any stay ORDER :from the Supreme Court, in my opinion, it is not a case where contempt of court proceeding should be started against them in as-much as it appears that on legal advice they bona-fide believed that they could amend the rule retrospectively, That application, therefore, has to be dismissed and the circumstances, it is not necessary to issue notice to Mr. P. S. Appu, and Mr. Nagamani, the two ex-Finance Commissioner, as to why they should not be added as parties to that application. 20. In the result, the Miscellaneous Judicial Case is dismissed and the Civil Writ Jurisdiction Case is allowed. Annexure 6 to the writ petition to the extent it affects the seniority of the petitioners retrospectively is quashed. Respondent no. 1 is further directed to obey the mandate issued to it in Civil Writ Jurisdiction Case No. 4 of 1968. In the circumstances of the case, however, there will be no ORDER :as to costs. S. P. Sinha, J. I agree. Civil Writ Jurisdiction Case allowed Miscellaneous Judicial Case dismissed.