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1989 DIGILAW 430 (KER)

Saratchandran v. Malathy

1989-10-05

PARIPOORNAN, VARGHESE KALLIATH

body1989
Judgment :- 1. W.A. Nos. 893 and 922 of 1987 are against the judgment in O.P.No.10572/85. W.A.Nos.915 and 925 of 1987 are against the judgment in O.P.NO.10650/85. 2. A common question arises in these Writ Appeals and so we feel that these Writ Appeals can be disposed of by a common judgment. By the judgment in O.P.NO.10572/85, a learned single judge of this Court quashed the amendment to the Kerala State Electricity Board (Integration of Boards Secretariat Establishment and General Establishment) Regulation.1981. The amendment was made exercising the powers conferred by Clauses (c) and (k) of S.79 of the Electricity (Supply) Act, 1948. The amendment is a substitution of Regulation.5 of the Kerala State Electricity Board (Integration of Boards Secretariat Establishment and General Establishment) Regulation.1981. In O.P.No.10572/85, Ext.P5 is the copy of the amendment sought to be quashed. In O.P. No. 10650/85, copy of the same amendment is Ext.P11. 3. The learned single judge considered the question of the validity of the amendment in O.P.No. 10572/85 and quashed Ext.P5. Since Ext.P5 has been quashed, in O.P.No.10650/85 following the judgment in O.P.No.10572/85, Ext.P11 also has been quashed and consequential orders challenged in that Original Petition were also quashed. Thus the learned single judge allowed both O.P.No.10572 of 1985 and O.P. No.10650 of 1985. 4. The petitioners in those Original Petitions were the members of the staff of the Kerala State Electricity Board, who were prejudicially affected by the amendment of the Regulation, Ext.P5/Ext.P11. The respondents in the Original Petitions were the Kerala State Electricity Board and certain other members of the staff, who got certain service advantages under Ext.P5/Ext.P11. W.A.Nos.922 and 925 of 1987 are by the Kerala State Electricity Board, the first respondent in O.P.No.10572/85 and O.P.No.10650/85. W.A.Nos. 893 and 915/87 are by the 2nd respondent in O.P.No.10572/85 and O.P.No.10650/1985. 5. Now we shall state briefly the facts unfolded in the case. Prior to 1964, the Kerala State Electricity Board had only a common establishment. The Board constituted a separate and distinct establishment to commence its functioning from 1-4-1964. This separate establishment of the Board was named as Secretariat Establishment. Thus from 1-4-1964, the Board's secretariat establishment was a separate establishment from the common and general establishment. The employees in the general establishment were asked to opt for the Secretariat Establishment of the Board with a condition that only the option of those selected by the Board would be accepted. Thus from 1-4-1964, the Board's secretariat establishment was a separate establishment from the common and general establishment. The employees in the general establishment were asked to opt for the Secretariat Establishment of the Board with a condition that only the option of those selected by the Board would be accepted. Some of the employees opted. In the process of selection, the Board rejected the option of some of the seniors and accepted the option given by their juniors. Direct recruitment to the new and separate establishment was confined to the lowest clerical post. The higher posts were filled up by promotion. This separation of the establishment of a new wing was initially created on executive orders, but subsequently confirmed by the Regulation issued in 1967 as K.S.E.Board (Secretariat Service) Regulations. This also was done by the Board exercising the power under S.79(c) and (k) of the Electricity (Supply) Act, 1948. This Regulation was issued on 26-5-1967. In this Regulation, the Board has made it clear the objects and reasons for a separate Secretariat Service for the Board. It is said that the Board was convinced of the necessity of an independent Secretariat Service for the Board and that by its resolution dated 16-12-1963 has sanctioned the formation of a separate Secretariat Service for the Board independent of the other staff under the Board. Further in the Regulation, it is stated that a separate Secretariat Service was allowed to function from 1-4-1964 and that the Board found it necessary and expedient to frame Regulations for the functioning of the Secretariat Service so formed. Clause VI of the K.S.E.Board (Secretariat Service) regulations makes it clear that the lien of the persons selected and initially appointed in the Secretariat as per Schedule to Board Order No.A-1-14554/63 dated 31-3-1964 in the parent department stand terminated from 1-4-1964 FN. 6. In 1981, the Board had a rethinking and it found not necessary to retain the two wings, viz., secretariat wing and the general wing. Therefore the Board decided to abolish the Secretariat wing by integrating the Secretariat wing with a general wing to form a common establishment. Accordingly Regulation dated 14-1-1981- Ext.P1/Ext.P4 in O.P.Nos.10572/85 and 10650/85 respectively was published. 7. The principles for integrating the personnel belonging to the two wings are enshrined in Regulation.5 of Ext.P1/Ext.P4 Regulation. Therefore the Board decided to abolish the Secretariat wing by integrating the Secretariat wing with a general wing to form a common establishment. Accordingly Regulation dated 14-1-1981- Ext.P1/Ext.P4 in O.P.Nos.10572/85 and 10650/85 respectively was published. 7. The principles for integrating the personnel belonging to the two wings are enshrined in Regulation.5 of Ext.P1/Ext.P4 Regulation. In essence, the principle was to equate the post in the two wings on the basis of scales of pay and to fix the relative seniority in the common establishment with reference to length of service in the equated category. This principle of integration was challenged before this Court in a batch of Original Petitions. A learned single judge allowed those Original Petitions and quashed Ext.P1/Ext.P4. The Judgment of the learned single judge was challenged before a Division Bench in W.A.No.245/82 and connected appeals. All those appeals were disposed of by a common judgment dated 19-11-1984. By the common judgment, all the Writ Appeals were allowed and the Original Petitions were dismissed. This Court, while allowing the writ Appeals and dismissing the Original Petitions, allowed the petitioners in the Original Petitions to make representations before the Board within six weeks from the date of the judgment highlighting the need for modifying the Regulation dated 14-1-1981. This Court directed the board that if such representations are made, the Board should consider them after calling for the objections from the party-respondents and pass appropriate orders as expeditiously as possible, even by amending the Regulation dated 14-1-1981. Pursuant to the observations contained in the common judgment in the Writ Appeals, various representations were filed before the Board. The Board called for the objections from the persons, who alleged that their service conditions are prejudicially affected by the Regulation effecting the integration. After considering the rival contentions raised by the parties, the Board issued the impugned amendment -Ext.P5/Ext.Pll. By Ext.P5/Ext.P11, Regulation.5 in Ext.P1/Ext.P4 has been amended. A significant and important deviation in the principle of integration was effected by the amendment. After considering the rival contentions raised by the parties, the Board issued the impugned amendment -Ext.P5/Ext.Pll. By Ext.P5/Ext.P11, Regulation.5 in Ext.P1/Ext.P4 has been amended. A significant and important deviation in the principle of integration was effected by the amendment. By the amendment the principal norm and formulary of the integration are based thus: "the relative seniority of persons drawn from the Secretariat establishment and the General establishment including the Accounts Wing shall be determined based on their ranking in the advice list of the Kerala Public Service Commission or the Board, as the case may be, at the time of initial recruitment by the P.S.C. or the Board to the respective establishments under the Board subject to the application of rules regarding obligatory departmental tests". This is a vital amendment, since it affects the basic principle formulated for the purpose of integration. So the affected members of the staff filed the two writ petitions challenging the amendment. 8. The learned single judge, after considering the rival contentions of the petitioners and the respondents, found that Ext.P5/Ext.P11 violates Art.16 of the Constitution and so quashed the amendment Ext.P5/Ext.P11 and in O.P.No.10650/85 the consequential orders passed pursuant to Ext.P11. The appellants before us challenge the correctness of the decision of the learned single judge holding that Ext.P5/Ext.P11 is violative of Art.16 of the Constitution. 9. Counsel appearing for the appellants submitted that the Board, as per Clauses (c) and (k) of S.79 of the Electricity (Supply) Act, has the power to amend the Regulations and that the principle of integration is beyond challenge by the petitioners in the Original Petitions and that the amendment does not infringe Art.16 of the Constitution. 10. The learned single judge observed that one of the cardinal Rules of integration is equation of posts and that after equation of posts is made seniority in the equated category has to be determined. In Ext.P1/Ext.P4 scales of pay drawn on the date of integration was taken to be the criterion for equation of posts. Thereafter the date of appointment to a particular category or cadre was taken to be the criterion for determination of relative seniority. This principle was given a go-bye by Ext.P5/Ext.P11 when the amended Regulation provided that the relative seniority of the personnel belonging to two separate wings of service of the Board with reference to the date of their initial recruitment. This principle was given a go-bye by Ext.P5/Ext.P11 when the amended Regulation provided that the relative seniority of the personnel belonging to two separate wings of service of the Board with reference to the date of their initial recruitment. The learned single judge clearly found that the date of initial recruitment cannot be the criterion for equation of posts on the date of integration, because the length of service with reference to the initial recruitment cannot be the basis for integration of persons belonging to different services and that the length of service will have no nexus to the post held by the personnel on the date of integration. The view taken by the learned single judge is that the total length of service under the Board cannot be the criterion for the purpose of fixation of seniority in any cadre when personnel belonging to two services are sought to be integrated. The learned single judge further observed that if integration is to be made with reference to the initial recruitment into the service of the Board, it will result in ignoring the existence of the two services. 11. It has to be noted that the Board has recognised the existence of the two separate service wings and made it clear by the Regulation of 1967 (K-S.E.Board (Secretariat Service Regulations) that the separate Secretariat Service for the Board will be independent of the other staff under the Board and further the Regulation of 1967 made it plain and clear that the lien of the persons selected and initially appointed in the secretariat as per Schedule to Board Order No.A.1-14554/63 dated 31-3-1964 in the parent department stand terminated from 1-4-1964 FN. In view of the above stated facts, the learned single judge found it to be unjust and illegal to lay down a principle of integration as if there exists only one service when by the amendment the principle of integration was laid on the basis of the first entry into the service of the common establishment. In view of the above stated facts, the learned single judge found it to be unjust and illegal to lay down a principle of integration as if there exists only one service when by the amendment the principle of integration was laid on the basis of the first entry into the service of the common establishment. The learned single judge said that the principle of integration envisaged by the amendment makes the whole process ineffective as an integration of two services holding that the principle under the amended Regulation.5 will certainly adversely affect the conditions of service of the petitioners in the Original Petitions and that the principle of integration laid down in Ext.P5/Ext.P11 is clearly violative of Art.16 of the Constitution. 12. Learned counsel Sri. T.P. Kelu Nambiar referred us to A.I.R. 1985 S.C.1276 (Om Prakash Sharma & others v. Union of India and others) and submitted that in the light of the ratio of that decision, the view taken by the learned single judge is wrong and unsupportable. In A.I.R. 1985 S.C.1276, the Supreme Court was considering a question of fixing the seniority of the staff on amalgamation and repatriation of the staff of different departments. Of course, the court held thus: "In the circumstance of the case that when the amalgamation took place, respondents Nos.3 to 6 could not score a march over erstwhile seniors on any valid principle of seniority. This would unquestionably be denial of equality under Art.16 of the Constitution. It may be that they might have enjoyed some accelerated promotion when workshop staff was amalgamated with that of Bombay Office. But when they were repatriated and reamalgamated with original two offices and brought back on the common seniority list, they must find their original place qua the appellants. This is not a case where appellants were passed over at the time of selection or denied promotion on the grounds of unsuitability. In such a situation status quo ante has to be restored. Obviously respondents Nos.3 to 6 will be below the appellants and any other view to the contrary would be violative of Art.16 as it would constitute denial of equality in the matter of promotion". In such a situation status quo ante has to be restored. Obviously respondents Nos.3 to 6 will be below the appellants and any other view to the contrary would be violative of Art.16 as it would constitute denial of equality in the matter of promotion". It has to be noted that when laying down the principle of integration quoted above, the Supreme Court has carefully introduced the principle by observing that "this is not a case where the appellants were passed over at the time of selection or denied promotion on the ground of unsuitability". (emphasis added) The petitioners in the Original Petitions were appointed in the Secretariat wing after a process of selection. Ext.P1 in O.P. No.10650/85 is a circular issued on 16th December, 1963 in regard to the formation of the Secretariat Service-Kerala State Electricity Board. It is made clear in Clause (f) of this circular that the selection of personnel which will also be final will be done by the Secretary and the Chairman having regard to the merit and ability of the individual who have exercised the option. Again in Ext.P2 in O.P. No.10650/85 it has been made clear that the selection shall be based on merit, ability and suitability of the personnel selected for the formation of a separate Secretariat Service. Clause (iv) of Ext.P2 reads thus: "The selection of the personnel for the new unit will be made by the Chairman and Secretary having regard to the merit, ability and suitability of the staff who have opted". In view of these special features, we do not think that the submission made by the learned counsel for the appellants on the basis of the ratio of the decision reported in A.I.R. 1985 S.C 1276 is sustainable. 13. Learned counsel for the respondents Sri. C.P. Sudhakara Prasad submitted before us that the impugned amendment is invalid apart from the fact that it is violative of Art.16 of the Constitution for the additional reason that the amendment is made retrospective in operation. It has to be remembered that the Regulation.5 (amendment) is only a subordinate legislation. 13. Learned counsel for the respondents Sri. C.P. Sudhakara Prasad submitted before us that the impugned amendment is invalid apart from the fact that it is violative of Art.16 of the Constitution for the additional reason that the amendment is made retrospective in operation. It has to be remembered that the Regulation.5 (amendment) is only a subordinate legislation. The parent legislation which gives the power to make subordinate legislation omits to give a specific power to make Regulations with retrospective effect, any Regulation made, exercising the power of delegated legislation relying on the power source of the parent legislation is invalid, if the parent legislation does not confer a delegated power to make regulations with retrospective effect. As regards this principle, it is not possible to entertain any serious doubt. 14. In (1981) 4 S.C.C. 93 (Accountant General and another v. S. Doraiswamy and others), Pathak, J., as he then was, observed that "It is settled law that unless a statute conferring the power to make rules provides for the making of rules with retrospective operation, the rules made pursuant to that power can have prospective operation only". Again in (1986) 2 S.C.C. 365 (Bakul Cashew Co. and others v. Sales Tax Officer, Quilon and another), Venkataramiah, J. has observed that an authority, which has the power to make subordinate legislation cannot make it with retrospective effect unless it is so authorised by the legislature which has conferred that power on it. 15. Counsel for the appellants submitted that the amendment Ext.P5/Ext.P11 has no retrospective operation. It has to be remembered that by Ext.P1/Ext.P4 an integration of the services was made to be effective from a particular date, viz., 14-1-1981. By Ext.P5/Ext.P11 dated 7th November, 1985 Regulation.5 has been amended by stating that the new principle of integration of staff shall take effect from an anterior date. An antecedent crucial date has been given for the purpose of integration, which for all intends and purposes makes the amendment retrospective, since the amendment was made on 7th November, 1985. In Income-Tax Officer, Alleppey v. M.C. Ponnoose and others (1970) 1 SCR 678), an amendment of the definition of Tax Recovery Officer introduced by the Finance Act of 1963, the court considered the question whether as extended definition of Tax Recovery Officer in S.2(44) of the Income-tax Act, 1961, by the Finance Act, 1963 would give retrospective effect. In Income-Tax Officer, Alleppey v. M.C. Ponnoose and others (1970) 1 SCR 678), an amendment of the definition of Tax Recovery Officer introduced by the Finance Act of 1963, the court considered the question whether as extended definition of Tax Recovery Officer in S.2(44) of the Income-tax Act, 1961, by the Finance Act, 1963 would give retrospective effect. The Supreme Court held that the new definition of "Tax Recovery Officer" substituted by S.4 of the Finance Act, 1963 "shall be and shall be deemed always to have been substituted" it could be said that by necessary implication or intendment the State Government had been authorised to invest the officers mentioned in the notification with the powers of a Tax Recovery Officer with retrospective effect. The only effect of the substitution made by the Finance Act was to make the new definition a part of the Act from the date it was enacted. The legal fiction could not be extended beyond its legitimate field and the aforesaid words occurring in S.4 of the Finance Act 1963 could not be construed to embody conferment of a power for a retrospective authorisation by the State in the absence of any express provision in S.2(44) of the Act itself. 16. It is now a well accepted theory that it is open to a sovereign legislature to enact laws which have retrospective operation. But it is profitable to note what Willes,J. has said in Phillips v. Eyre (40 Law J. Rep (NS) QB 28) that even when Parliament enacts retrospective laws "no doubt prima faice of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law". The courts will decline therefore to ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. Legislature of course can delegate its legislative power within the authorised limits. Where any rule or regulation is made by virtue of delegative legislative power, the authority to whom such power has been delegated by the legislature, it may or may not be possible to make the same so as to give retrospective operation. Legislature of course can delegate its legislative power within the authorised limits. Where any rule or regulation is made by virtue of delegative legislative power, the authority to whom such power has been delegated by the legislature, it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But, if in the statute, no such language is to be found expressly or impliedly the courts have to hold that the person or authority exercising subordinate legislative functions, cannot make a rule, regulation or bye-law which can operate with retrospective effect. 17. In the words of "Caries on Statute Law", a statute is retrospective which takes away or impairs any vested right acquired under the existing laws or creates a new obligation or imposes new duty or attaches a new disability in respect to transactions or considerations already passed. 18. In this view, the submission made by the counsel for the respondents that Ext.P5/Ext.P11 is in excess of the subordinate legislative function granted by the statute to the authority, under S.79 of the Electricity (Supply) Act is a substantial and sustainable argument. 19. Counsel for the respondents also referred us to 1989(1) S.C.C. 285 (R.M. Ramual v. State of Himachal Pradesh and others) to support the judgment of the learned single Judge. Relying on the decision, he submitted that integrating of services postulates equation of posts and in this case, if Ext.P5/Ext.P11 is given effect to, it will violate the principle of equation of posts, which is considered to be a cardinal norm to be applied in the matter of integration of services. The Supreme Court has said in the decision cited above that "Integration of services postulates equation of posts. Without such equation, preparation of inter se seniority lists between different groups of officers holding different posts cannot be conceived." In the result, we see no merit in the appeals and we dismiss the appeals.