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2000 DIGILAW 460 (KER)

Sygol Castro v. State of Kerala

2000-08-28

A.V.SAVANT, K.S.RADHAKRISHNAN

body2000
Judgment :- K.S. Radhakrishnan, J. Petitioners challenge the validity of Government Notification No. G.O.(P) No. 47/90/P & ARD dated 31.10.1990 by which the Government of Kerala, in exercise of the powers conferred under sub-s.(1) of S.2 of the Kerala Public Services Act, 1968 read with S.3 thereof, amended the Special Rules for the Kerala Last Grade Service. The amendment was effected to Rr. 4 and 5 of the Special Rules to the Kerala Last Grade Service. The amendment was intended to ensure equality of opportunity in the chances of promotion to the part-time contingent employees in the State. According to the petitioners, almost similar amendments were made by the Government vide its notification G.O. (P). No. 163/86/GAD dated 21.5.1986 which was challenged before this Court in W. A. No. 749 of 1986, and a Division Bench of this Court in its judgment in N.C, Narayanan Nair v. State of Kerala, 1988 (1) KLT 894 struck down the amendment in so far as it substituted R.5 for category 4 in the Kerala Last Grade Service Special Rules as ultra vires of the Kerala Public Services Act and unconstitutional as offending Art.14 of the Constitution. According to the petitioners, the present amendment Ext. P3, would have the effect of nullifying the binding decision in N.C. Narayanan Nair's case (supra). 2. When the matter came up for hearing before a learned single judge of this Court, the learned single judge vide his order dated 27.1.1998 adjourned the matter for determination by a Division Bench. 3. In order to determine the controversy involved in this case, it is necessary to examine the facts which existed prior to the notification, G.O. (P) No. 163/86/GAD dated 21.5.1986 which was under challenge in N.C. Narayanan Nair's case (supra). 4. According to the Special Rules for the Last Grade Service issued in G.O. (P) No. 82/PD dated 8.3.1966, appointment to the posts coming under category 4, namely, sweepers, cleaners, dhobies, watchman, gardener, etc., were made by promotion of Part-time Contingent Employees of the respective Departments in the State. Part-time Contingent employees are now governed by the Kerala Part-time Contingent Employees Subordinate Service Rules, which were issued by the Government in G.O.P. No. 152/ 75/PD dated 2.8.1975. Part-time Contingent employees are now governed by the Kerala Part-time Contingent Employees Subordinate Service Rules, which were issued by the Government in G.O.P. No. 152/ 75/PD dated 2.8.1975. The Kerala Part-time Contingent Employees Union brought to the notice of the Government that in certain departments, part-time contingent employees with two to three years service would get promotion to regular posts, whereas in certain other departments, part-time contingent employees with several years of service would not get promotion to regular posts. With a view to avoid disparities in the chances of promotion of Part-time Contingent Employees, the Union represented to the Government that a common seniority list of part-time contingent employees of all departments in each revenue district be prepared. 5. Government considered the request favourably and issued an order, G.O. MS. No. 71/82/GAD dated 18.3.1982 stating that appointment to the posts reserved in the Last Grade Service for the part-time contingent employees would be made by promotion of part-time contingent employees based on a common seniority list of part-time contingent employees of all Departments prepared on revenue district-wise basis by the District Collectors. It was also ordered that part-time contingent posts as well as the posts in the Last Grade Service attached to the Departments of Animal Husbandry, and Museums and Zoos would be excluded from the common seniority list because of the special nature of duties and responsibilities attached to the last grade posts in those Departments. Government ordered that the Special Rules for the Kerala Last Grade Service would have to be amended suitably to give statutory validity to the executive order mentioned above. On the basis of the above mentioned order, the following amendment was effected by G.O. (P) No. 163/86/GAD dated 21st May 1986. Government ordered that the Special Rules for the Kerala Last Grade Service would have to be amended suitably to give statutory validity to the executive order mentioned above. On the basis of the above mentioned order, the following amendment was effected by G.O. (P) No. 163/86/GAD dated 21st May 1986. GOVERNMENT OF KERALA General Administration (Rules) Department NOTIFICATION G.O. (P) No. 163/86/GAD Dated, Trivandrum, 21st May, 1986 S.R.O. No. 968/86: - In exercise of the powers conferred by sub-s.(1) of S.2 of the Kerala Public Services Act, 1968 (19 of 1968), read with S, 3 thereof, the Government of Kerala, hereby make the following amendments to the Special Rules for the Kerala Last Grade Service published under notification G.O. (P) No. 82 Public (Rules) Department, dated the 8th March, 1966, in Part 1 of the Kerala Gazette No. 14 dated the 5th April, 1966, as subsequently amended, namely: AMENDMENTS In the said rules in R.5, under sub-r.(a) for category 4 and the existing methods of appointment against it, the following category and methods of appointment shall be substituted namely: "Category 4: (i) By promotion of part-ime contingent employees from the common seniority list prepared on Revenue District-wise basis; or (ii) In the absence of suitable hands under item (i) above, by recruitment through Employment Exchange. Note:- Promotion to this category attached to the under mentioned Departments shall be made from part-time contingent employees of the Department concerned on the basis of seniority and in the absence of suitable hands for such promotion, appointment shall be made by recruitment through Employment Exchange. (i) Department of Animal Husbandry (ii) Department of Museums and Zoos" By order of the Governor C. Ramachandran Secretary to Government EXPLANATORY NOTE (This Note does not form part of the Notification but is intended to indicate general purport). According to the Special Rules for the Kerala Last Grade Service, the method of appointment of part-time contingent employees to the regular posts in the Last Grade Service reserved for them is as follows: (i) By promotion from part time contingent employees of the Department concerned; or (ii) In the absence of suitable hands under item (i) above, by promotion from the part-time contingent employees of other Departments; or (iii) In the absence of suitable persons under items (i) and (ii) above, by recruitment through Employment Exchange. In G.O. (MS) No. 71/82/GAD dated 18.3.1982, it has been ordered that appointment to the post reserved in the Last Grade Service for the part-time contingent employees will be made by promotion of the part-time contingent employees based on a common seniority list of part-time contingent employees of all Departments prepared on Revenue District-wise basis by the District Collectors. It has also been ordered in the above G.O. that the part-time contingent posts as well as the posts in the Last Grade Service attached to the Departments of Animal Husbandry and Museums and Zoos will be excluded from the common seniority list because of the special nature of duties and responsibilities attached to the Last Grade posts in those Departments. The Special Rules for the Kerala Last Grade Service have to be amended suitably to give statutory validity to the executive orders issued in G.O. (MS) No. 71/82/GAD dated 18.3.1982. This notification is intended to achieve the above object. 6. The above mentioned amendment was challenged before this Court by a Hospital Assistant Grade II faced with a possible reversion as part-time Sweeper, and a part-time Sweeper in a Hospital claiming to be promoted as Hospital Assistant Grade II. They were appointed as part-time Sweepers in two Government Hospitals in Kozhikode District under the Health Services Department. The Department had prepared a seniority list of the part-time contingent employees in that Department in the Kozhikode District as on 19.5.1984 where the first appellant in that case was given rank No. 49 and the second appellant's rank was 71. Subsequently, the first appellant was promoted as Hospital Attendant Grade II on 14.7.1986 in a vacancy that arose before 24th June, 1986. According to them, when the Special Rules were amended in June, 1986, part-time Sweepers could be promoted as Hospital Attendants Grade II only on the basis of a common seniority of part-time Contingent Employees of all Departments prepared on Revenue District-wise basis, without reference to the seniority in the Health Services Department, where they were initially appointed. It was pointed out before this Court that Part-time Contingent Sweepers were governed by the Special Rules made in 1975. According to them, the appointing authority for Sweepers in Kozhikode District was the highest Officer of the District, having jurisdiction over the office, or the institution, and it was the District Medical Officer, Kozhikode, who appointed them as Part-time Contingent Sweepers. According to them, the appointing authority for Sweepers in Kozhikode District was the highest Officer of the District, having jurisdiction over the office, or the institution, and it was the District Medical Officer, Kozhikode, who appointed them as Part-time Contingent Sweepers. They had to undergo a period of probation and become full members thereafter. The transfer and postings were to be made by the appointing authority and therefore limited his authority to transfer to units or institutions under his control. But a member of this Part-time contingent service may, on grounds of administrative necessity, be transferred from the jurisdiction of one appointing authority to that of another authority. Such transfers should be made by the authority to which the appointing authorities were, administratively, subordinate. It was also pointed out that the Special Rules for the Kerala Part-time Contingent Service primarily preserved the seniority of the part-time contingent employee in the unit or institution where he was originally appointed, unless he lost it by his own conduct of a request transfer to any other units of his choice. Appellants in that case therefore contended that the amendment to R.5 effected in 1986 was unreasonable, unjust and unworkable and thus beyond the rule-making power conferred under the Public Services Act and was violative of Art.14 of the Constitution, as it drew Sweepers from other Departments to be promoted as Hospital Attendants without regard to the experience gained and without reference to the unaccustomed and unfamiliar tasks associated with Sweepers in hospitals. 7. After examining the scope of 1986 amended rules, the Division Bench held as follows: 15. We are of the view that the amendment now effected in 1986 in respect of category 4 in R.5 is impracticable and unworkable and therefore unreasonable and thus beyond the powers conferred under the Public Services Act for, the Act never intended that such rules would be made by the Government. And we have our reasons. 16. Seniority is relevant at two stages; (a) when promotion is claimed and (b) when retrenchment is effected. It is reckoned for going up or coming down the service ladder. At both the stages where the seniority is relevant the rule does not provide any machinery for the fixation of a combined seniority of the personnel in all Departments in a Revenue District. It is reckoned for going up or coming down the service ladder. At both the stages where the seniority is relevant the rule does not provide any machinery for the fixation of a combined seniority of the personnel in all Departments in a Revenue District. When there are units of several Departments in each District, and when there are Part-time Contingent staff in each of these independent units, the appointing authority or any higher authority in each unit or institution, can prepare the seniority in those establishments. That authority cannot fix the seniority of other establishments or Departments. There is no common authority which has jurisdiction to fix the seniority in all the Departments. It is, therefore, impossible, as it is, to make appointments with reference to a combined seniority which is not correlated to any functional authority. 17. Considerable reliance is placed on an administrative instruction issued on 18.3.1982. (Ext! Rl(c)), in which it is stated, 'the work of preparation and maintenance of the common seniority and making any promotion from the list etc., in each District will be entrusted to the District Collector concerned'. It is difficult to visualise an extra statutory authority weilding some sort of influence or control over all Departments in the District, at least in the preparation of the seniority list of the staff of those independent Departments. It is relevant to note that the District and Sessions Judge is the officer in the judicial Department empowered to appoint Part-time Contingent employees in the Judicial Department of the District. Similarly, the Advocate General makes those appointments in his office. The Secretary to the Governor makes appointments in the Governor's Secretariat at Trivandrum. Is it possible to conclude that the statute and the rules have empowered the Collector to make a seniority list of the employees in these offices, club them with their counter parts in other Departments in that District and fix a combined seniority? When the statutory rule prescribes the appointing authority and he is supreme in his Department for purposes of fixation of seniority, transfer, etc., of his staff, the Government order enabling the District Collector to discharge these duties is plainly opposed to the rule itself. The executive instruction can have no independent existence apart from the rules. Ext. RI(c) has thus to be ignored. The executive instruction can have no independent existence apart from the rules. Ext. RI(c) has thus to be ignored. The position, therefore, is that promotions have to be made on the basis of a seniority of the Part-time Contingent staff in several Departments, when modalities for fixation of combined seniority are not prescribed by rules. The District Collector cannot be administratively authorised to function as a higher authority over the appointing authorities in other independent and separate Departments. Thus for the purpose of the rule, the District Collector has no superior authority over District and Sessions Judge, District Medical Officer, Advocate General or Secretary to the Governor, etc. An authority to fix a common seniority of the staff in several Departments conferred on the District Collector is clearly inconceivable and the rule thus expects the impossible when it directs promotion on the basis of a common seniority in several Departments, prepared by a District Collector on the strength of a defunct administrative order. 18. Disputes may arise when a common seniority is fixed. Disputes may also arise regarding inter se seniority in the same Department or regarding the overall seniority in all the Departments. There is no authority to settle those disputes. The Collector cannot be expected to settle these disputes of seniority pertaining to all the Departments. The heads of institutions/ units in a District are not administrative subordinates of the Collector and the Collector cannot, by virtue of administrative instructions issued before the rules were amended, request or demand from these heads of institutions/ units, particulars to enable the Collector to sit in judgment over the question of seniority raised by aggrieved parties. Nor is there any provision under which the Collector can summon the employees in other Departments for any hearing to settle the disputed seniority. Assuming that the District Collector has implied authority to settle seniority disputes in all the Departments in that District, there is no appellate or revisional authority competent to decide the legality or regularity of the decision taken or order made regarding seniority. A disputed question of seniority remains unsettled under the circumstances and a rule which prescribes promotion on the basis of seniority which is never settled is incapable of uniform enforcement. 19. When retrenchment is effected, the last come is the first to go. A disputed question of seniority remains unsettled under the circumstances and a rule which prescribes promotion on the basis of seniority which is never settled is incapable of uniform enforcement. 19. When retrenchment is effected, the last come is the first to go. If the last of the Hospital Assistants Grade II has to be reverted, he may have to displace the juniormost Part-time Sweeper. That Sweeper may be working in some other Department and he may face retrenchment. In such case, reversion of the Hospital Assistant Grade II in the District Hospital will have to be made by the Collector, transferring him to another Department as Sweeper and the Collector may have to order retrenchment of the juniormost Sweeper in that Department and the reversion and retrenchment may result in a chain reaction in several Departments. Thus transfers, promotion, reversion, etc. of the Last Grade Staff are sought to be conferred on the Collector under the administrative instructions when the rule provides that the authority for the purpose is the appointing authority in each institution. The defunct executive order of 1982 cannot breathe life to an impracticable and unreasonable rule made later. 20. Thus the impugned amendment of the rule is impossible of implementation. It is manifestly unworkable; it is plainly unreasonable. The Public Services Act never intended that an impracticable condition of service should be imposed on any member governed by the Last Grade Special Rules. The amendment is thus beyond the powers conferred on the rule making authority under the Kerala Public Services Act. On the basis of the above reasoning, as we have already pointed out, the Division Bench struck down the amendment inserted by G.O.P. No. 163/86/GAD dated 21.5.1986 in so far as it substituted R.5 for Category 4 in the Kerala Last Grade Service Special Rules. 8. The present amendment effected vide G.O.P. No. 47/90/P & ARD dated 31.10.1990, which is under challenge in this Writ Petition, was brought in, according to the State, after rectifying the anomalies pointed out by the Division Bench. According to the State Government, it had no intention whatsoever to circumvent the directions of the Division Bench in N. C. Narayanan Nair's case, while issuing Ext. P3 amendment. Ext. According to the State Government, it had no intention whatsoever to circumvent the directions of the Division Bench in N. C. Narayanan Nair's case, while issuing Ext. P3 amendment. Ext. P3 was issued to ensure equality of opportunity in the chances of promotion to the Part-time Contingent employees in the State and Government had no intention to overreach the decision of this Court. 9. Counsel for the petitioners Shri. C.P. Sudhakara Prasad has taken up the stand that Ext. P3 amendment has nullified the judgment of the Division Bench and made it ineffective. Counsel submitted that a judicial decision which has attained finality cannot be made ineffective with the aid of any legislative power by amending the rule which in substance is to overreach the judgment. This, according to counsel, is clearly beyond the legislative competence. 10. We shall now examine whether Ext. P3 statutory amendment has the effect of arbitrarily nullifying the decision of this Court in N.C. Narayanan Nair's case (supra), thereby encroached upon the judicial power entrusted upon Courts under the Constitution. The reasons which weighed with the Division Bench in N. C. Narayanan Nair's case to strike down the amendment have already been dealt with in paragraph 7 of the judgment. The question therefore to be decided is whether Ext. P3 amendment has interfered with, or encroached upon, the power of this Court, which is constitutionally recognised. It is therefore necessary to examine the principle governing the law on this question, especially what are all the circumstances under which the legislature could nullify the judicial decisions of courts. 11. It is well settled by a catena of decisions of the Apex Court that a binding judicial decision between the parties cannot be made ineffective with the aid of any legislative power by enacting a provision, which in substance overrules such judgment and is not in the realm of a legislative enactment which displaces the basis or foundation of the judgment and uniformly applies to a class of persons concerned, with the entire subject sought to be covered by such enactment having retrospective effect. It is also well settled that the State cannot invoke its legislative power to displace a judgment which was rendered between the parties, and which has attained finality. It is also well settled that the State cannot invoke its legislative power to displace a judgment which was rendered between the parties, and which has attained finality. It is also well settled that court's judicial decision must always bind unless the conditions under which it was rendered were so fundamentally altered that the decision could not have been given in the altered circumstances. If the Legislature has the power over the subject matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. It will be possible for the Legislature to reenact a law after removing the ineffectiveness or invalidity of a law declared by judicial decision and then to validate the Act, even retrospectively. 12. The principle of power of validation vested in the legislature is no longer res integra. A Constitution Bench of this Court in Shri Prithvi Cotton Mills Ltd. & Ann v. Broach Borough Municipality & Ors. ((1970) 1 SCR 388) which is an erudite leading judgment on this topic, laid by an unanimous Constitution Bench of five judges that S.17 of the Bombay Municipal Boroughs Act, 1925 empowers the municipality to levy'rate on building or lands or both situate within the municipality'. The Rules made under the Act applied the rates on the percentage basis on the capital value of lands and buildings. In Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad ((1964) 2 SCR 608) the Apex Court had held that the term 'rate' must be given the special meaning it had acquired in English law and must be confined to an' impost on the basis of the annual letting value; it could not be validly levied on the basis of capita] value though capital value could be used for the purpose of working out the annual letting value. Thereafter, Gujarat legislature amended the Act and enacted Gujarat Imposition of Tax by Municipalities (Validation) Act, 1963. S.3 thereof which validated past assessments and collections on rate, on lands and buildings, on the basis of capita] value or a percentage of capital value, was declared valid, despite any judgment of a court or Tribunal to the contrary. Future assessment and collection on the basis of capital value for the period from and after the Validation Act, was authorised. Future assessment and collection on the basis of capital value for the period from and after the Validation Act, was authorised. S.99 was enacted in the Gujarat Municipalities Act to proved for the levy of a tax on lands and buildings "to be based on the annual letting value or the capital value or a percentage of capital value of the buildings or lands or both". The same was questioned and the High Court dismissed the Writ Petition. On appeal, when the constitutionality thereof was challenged, this Court 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 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 judicial power which the legislature does not possess or exercise. 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. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the reenacted law. Sometimes the legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon courts. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the reenacted law. Sometimes the legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon courts. The legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a Validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the Validating' law fora valid imposition of the tax". This Court upheld the constitutionality of the impugned enactment. In MA. hath Ram Rajindra Nath, Lucknow v. State of U.P., (1973) 3 S.C.C. 585, the Apex Court dealt with the same point with regard to U.P. Sales Tax Act, 1948. S.3 thereof imposes multipoint sales tax on the sale of certain goods. S.3-A empowered the Government to levy sales tax on some of the goods "at such single point in the series of sales by successive dealers" as may be prescribed by the State Government. Rules had been made whereunder State got power to impose sales tax on the total turnover of the sale of bricks at the point of sale by the manufacturer. The U.P. Sales Tax Act (Amendment and Validation) Ordinance, 1970 was amended substituting such single point of sale as the Government may specify. In Gurnamal v. State of U.P., 26 STC 270, the Allahabad High Court had held that before attracting S.3A, the goods must have been the subject matter of multiple sales. The notification did not fall within the purview of S.3A as bricks were sold directly to the consumers by the manufacturers. In Gurnamal v. State of U.P., 26 STC 270, the Allahabad High Court had held that before attracting S.3A, the goods must have been the subject matter of multiple sales. The notification did not fall within the purview of S.3A as bricks were sold directly to the consumers by the manufacturers. S.3A(1) was amended with retrospective effect by the U.P. Sales Tax (Amendment and Validation) Act, 1970. The validity thereof was questioned. The High Court held that S.3 a (1) as amended was unconstitutional as it delegated essential legislative functions to the State Government. Allowing the appeal, the Apex Court held as follows: This Court has pointed out in several cases the distinction between encroachment on the judicial power and nullification of the effect of a judicial decision by changing the law retrospectively. The former is outside the competence of the legislature but the latter is within its permissible limits. The Apex Court then held that the legislature had not purported either directly or by necessary implication to overrule the decision of the Allahabad High Court. On the other hand, it had accepted the decision as correct, but had removed the basis of the decision by retrospectively changing the law. 13. We however, do not want to burden the judgment with various judicial pronouncements since all those questions were later elaborately considered by the Apex Court in the decision in Indian Aluminium Co. v. State of Kerala, JT 1996 (2) S.C. 85. The question which arose before the Apex Court was under the Kerala Electricity Surcharge (Levy and Collection) Act, 1989. Challenge was against the validation provision contained in S.11 of the Act. It was contended that S.11 was unconstitutional since it interfered with the basic features of judicial review. After elaborately considering the entire case law on the point, the Apex Court laid down the following principles in paragraph 56 of the judgment: 1. The adjudication of the rights of the parties is the essential 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; 3. 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; 3. In a democracy governed by rule of law, the Legislature exercises the power under Arts.245 and 246 and other companion Articles read with the entries in the respective Lists in the Seventh Schedule to make the law which includes power to amend 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 the rule of law permeates to fulfill 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 remain unimpeded. The smooth balance built with delicacy must always be maintained; 5. In its anxiety to safeguard judicial power, it is unnecessary to be over jealous 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 constitutional requirements; (b) whether the Legislature has competence to validate the law; (c) Whether such validation is consistent with the rights guaranteed in Part LQ of the constitution; 7. The Court does not have the power to validate an invalid law 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 declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on 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 can render judicial decision ineffective by enacting valid law on 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 a deeming date or with effect from a particular date. The Legislature can change the character of the tax or duty from impermissible to permissible tax but the tax or levy should answer such character and the Legislature is competent to recover the invalid lax validating such a tax or removing the invalid base for recovery from the subject or render the recovery from the State ineffectual. It is competent for the Legislature to enact the law with retrospective 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; 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 was rendered, consistent with the law of the Constitution and the legislature must have competence to do the same. On the above mentioned principles laid down by the Apex Court, the Apex Court in that case held that S.11 was not an incursion on judicial power of the court and was a valid piece of legislation as part of the Act. 14. An identical question came up for consideration before the Apex Court in a recent decision in Indra Sawhney v. Union of India, (2000) 1 S.C.C. 168. In that case some of the provisions of the Kerala State Backward Classes (Reservation of Appointments or Posts in the Services under the State) Act, 1995 came up for consideration, especially Ss.3,4 and 6 thereof, which are extracted below: 3. In that case some of the provisions of the Kerala State Backward Classes (Reservation of Appointments or Posts in the Services under the State) Act, 1995 came up for consideration, especially Ss.3,4 and 6 thereof, which are extracted below: 3. It is hereby declared, having regard to known facts in existence of the State- (a) that there are no socially advanced sections in any Backward Classes who have acquired capacity to compete with forward classes; and (b) that the Backward Classes in the State are still not adequately represented in the services under the State and they continue to be entitled to reservation under Cl. (4) of Art.16 of the Constitution. 4. Notwithstanding anything contained in any law or in any judgment, decree or order of any court or other authority having regard to the social and educational backwardness of the Backward Classes of citizens, the system of reservations in force on the date of commencement of this Act, as laid down in Rr. 14 to 17 of Part II of the Kerala State and Subordinate Services Rules, 1958, in appointments and posts in the services under the State for Backward Classes of citizens shall continue as such, for the present. 6. Notwithstanding anything contained in any judgment, decree or order of any court or other authority the reservation of appointments or posts in the services under the State for the Backward Classes of citizens made, on the basis of the system of reservation as laid down in Rr.14 to 17 of Part II of the Kerala State and Subordinate Services Rules, 1958, shall, for all purposes, be deemed to be and to have always been validly made, in accordance with law, as if this Act had been in force at all material times when such reservations had been made. It was contended that the above mentioned provisions were unconstitutional since they violated the principles of equality and the law laid down by the Apex Court in Jndra Sawhney v. Union.of India, (1992) Supp. (3) S.C.C. 217. The Apex Court in paragraphs 28 and 29 of the decision held as follows: 28. The question of validation arises in the context of S.6 of the Act. (3) S.C.C. 217. The Apex Court in paragraphs 28 and 29 of the decision held as follows: 28. The question of validation arises in the context of S.6 of the Act. It is true that whenever legislative or executive action is declared as being violative of the provisions of Part III of the Constitution, it will be permissible for the executive or the legislature to remove the defect which is the cause for discrimination prospectively and which defect has been pointed out by the Court. The defect can be removed retrospectively too by legislative action and the previous actions can also be validated. But where there is a mere validation with retrospective effect, without the defect being legislatively removed with retrospective effect, the legislative action will amount to overruling the judgment of the courts by way of legislative fiat and will be invalid as being contrary to the doctrine of separation of powers. 29. In the context of the law laid down mindra Sawhney, (1992) Supp. (3) SCC 217 and in Ashoka Kumar Thakur, (1995) 5 SCC 403, if the legislature of any State does not take steps to remove the defect or to effectively and realistically remove the defect to exclude the "creamy layer" from the backward classes, then the benefits of reservations which are in validly continued in favour of the "creamy layer" cannot be declared retrospectively valid merely by a legislative declaration that such creamy layer is absent as done by S.3 of the Kerala Act. Nor can it be done by means of the validating provision contained in S.6 of that Act. The creamy layer principle laid down in Indra Sawhney, cannot be ignored as done by S.6 of the said Act. We shall elaborate these aspects later. If under the guise of elimination of the "creamy layer", the legislature makes a law which is not indeed a true elimination but is seen by the Court to be a mere cloak, then the Court will necessarily strike down such a law as violative of the principle of separation of powers and of Arts.14,16(1) and Art.16(4). The Apex Court therefore struck down Ss.3, 4 and 6 after holding that the said provisions were violative of the mandate of the Apex Court in Indra Sawhney's case, (1992) Supp. 3 S.C.C. 217. 15. The Apex Court therefore struck down Ss.3, 4 and 6 after holding that the said provisions were violative of the mandate of the Apex Court in Indra Sawhney's case, (1992) Supp. 3 S.C.C. 217. 15. The principle which emerges from the above mentioned decisions is that, Courts have to be vigilant to ensure that the nice balance of power so thoughtfully conceived by our Constitution, is not allowed to be upset but the concern for safeguarding the judicial power does not justify conjuring up trespasses for invalidating laws. There is a large volume of authority showing that if the vice from which an enactment suffers is cured by due compliance with the legal or constitutional requirements, the legislature has the competence to validate the enactment and such validation does not constitute an encroachment on the functions of the judiciary. The validity of a validating taxing law depends upon whether the legislature possesses the competence over the subject-matter of the law, whether in making the validation it has removed the defect from which the earlier enactment suffered and whether it has made due and adequate provision in the validating law for a valid imposition of the tax. 16. On the basis of the above mentioned judicial pronouncements, we may examine as to whether Ext. P3 has got the effect of nullifying the decision of this Court in N.C. Narayanan Nair's case. We have already pointed out in the earlier part of the judgment, the defects noted by the Division Bench in N. C. Narayanan Nair'scase. We are of the view that while issuing Ext. P3 Government took note of all the observations made, and defects pointed out, by the Division Bench. One of the defects pointed out by the Division Bench was that there was no common authority which had jurisdiction to fix seniority in all Departments within a District. Therefore it was impossible to make appointments with reference to combined seniority which is not correlated to any functional authority. The another defect pointed out by the Division Bench was that when appointing authority was the supreme in a Department for the purpose of fixation of seniority, transfer, etc., of its staff, the District Collector could not have superior authority over appointing authority. We find from Ext. The another defect pointed out by the Division Bench was that when appointing authority was the supreme in a Department for the purpose of fixation of seniority, transfer, etc., of its staff, the District Collector could not have superior authority over appointing authority. We find from Ext. P3 that the District Collector of the concerned District, was appointed as the appointing authority for all posts coming under category 4 in the offices and institutions in the District, except those in the Departments of (i) Department of Animal Husbandry; (ii) Department of Museums and Zoos; (iii) Governor's Secretariat; (iv) Departments in the Government Secretariat, including Law, Legislature and Finance; (v) Judicial Department, (vi) Public Service Commission and (vii) Office of the Advocate General. It is also provided that the District Collector can prepare a common seniority list of the Part-time Contingent Employees of the District, collecting details regarding Part-time Contingent employees from the District Authorities of all the Departments and Institutions in the District. On gathering details of availability of vacancies which are coming under category 4 from the Departments/ Institutions concerned, the District Collector can immediately fill up the vacancies according to seniority. Being the appointing authority for all posts coming under category 4, the District Collector can fix and settle the seniority of the employees coming under category 4 of the Kerala Last Grade Service. With regard to the defect that there is no appellate authority to hear or settle disputes in regard to inter-se seniority in the same District or overall seniority in all the Departments, Exts. P3, according to us, took care of the said defect as well. The Secretary, General Administration Department will be the appellate authority for settling the disputes in the matter of common seniority list prepared by the District Collector. Reversion of one from a post will not make any difficulty in accommodating him since a common seniority list is maintained by the District Collector. 17. On a reading of the entire amendment carefully, and applying the principle laid down by the Apex Court in the decisions referred to hereinbefore, we are of the view that while amending the Kerala Last Grade Service Special Rules, by Ext. P3 amendment, the State Government took care to rectify the defects pointed out by the Division Bench. Ext. 17. On a reading of the entire amendment carefully, and applying the principle laid down by the Apex Court in the decisions referred to hereinbefore, we are of the view that while amending the Kerala Last Grade Service Special Rules, by Ext. P3 amendment, the State Government took care to rectify the defects pointed out by the Division Bench. Ext. P3 does not have the effect of overruling, or revising or overriding the decision rendered by this Court in N.C. Narayanan Nair's case. As we have already indicated, and as held by the Apex Court, the Legislature has got power to make a valid law within its legislative field by altering or changing its character retrospectively. In the instance case, State Government has not fundamentally changed or altered its character, only rectified the defects pointed out by the Division Bench so as to achieve the objective, which is laudable, that is to give some chances of promotion to Part-time Contingent Employees in the Last Grade Service, who are in the lowest ladder of civil services. It is also pertinent to note petitioners were not parties to the earlier Division Bench decision. Therefore it cannot be contended that Ext. P3 has unsettled a binding decision inter-parties. Departments which were excluded from the purview of Ext. P3 amendment, which we have already dealt with in the earlier part of the judgment, are a class by themselves because of nature of duties and functions to be discharged by those employees. Peculiarity of those departments justify their exclusion. The correctness of which was also not canvassed by the Petitioners. We are therefore of the view by enacting Ext. P3, the State Government has only rectified the defects pointed out by the Division Bench in N.C. Narayanan Nair's case. In view of the above mentioned circumstances, we do not find any illegality or infirmity in the amendment effected by the State, vide Ext. P3, to the Special Rules of the Kerala Last Grade Service. Writ Petition therefore lacks merits and the same is dismissed.