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2018 DIGILAW 2303 (ALL)

DEENA NATH YADAV v. STATE OF U. P.

2018-11-12

A.P.SAHI, AJIT KUMAR

body2018
JUDGMENT Hon’ble Ajit Kumar, J.—Heard Sri Shashi Nandan, learned Senior Advocate assisted by Sri Satendra Tripathi, Advocate for the petitioners, Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddharth Khare, Sri H.N. Singh, learned Senior Advocate assisted by Sri Arvind Tiwari, Advocate, Sri Tarun Agrawal, Advocate for their respective parties under Chapter XXII Rule 5-A of Allahabad High Court Rules, 1952 and Sri B.N. Singh and Sri S.K. Pandey, learned advocates for the respondent Nos. 4 and 5 and learned Standing Counsel for rest of the respondents. 2. By means of this writ petition under Article 226 of the Constitution of India, the petitioners, who are 26 in number, have questioned the amendment of Section 31-E of the U.P. Higher Education Service Commission Act, 1980 (for brevity ‘’Act, 1980') vide U.P. Act No. 38 of 2018. While claiming the amendment to be ultra vires to Sections 12 and 13 of Act, 1980 and to the Articles 14 and 16 of the Constitution of India, the petitioners allege that the vacancies that are sought to be filled in by way of absorption of the working lecturers appointed under the Government Order dated 7th April, 1998, those vacancies were initially sought to be filled in by way of direct recruitment under the Act, 1980 vide Advertisement Nos. 44 and 45 of 2008 and 2009 respectively. They contend that thousands of applicants including them had applied against the advertisements but the State Government withdrew those advertisements under its order dated 21st May, 2015 in order to re-initiate the process as per the prescribed new qualifications under the Regulations of 2014. 44 and 45 of 2008 and 2009 respectively. They contend that thousands of applicants including them had applied against the advertisements but the State Government withdrew those advertisements under its order dated 21st May, 2015 in order to re-initiate the process as per the prescribed new qualifications under the Regulations of 2014. While the petitioners waited and waited for the 4th respondent to re-initiate the process of selection through direct recruitment, the State Legislature enacted U.P. Act No. 38 of 2018 bringing amendment to existing Section 31-E in following terms : “(1) Subject to the provisions contained in Sections 12 and 13, if any vacancy exists, which could not be filled, under the provisions of said sections, a teacher on honorarium who has been appointed in grant-in-aid college on or before March 29, 2011, in accordance with the provisions as specified under G.O. No. 467/Sattar-2-98-3(19)93T.C., dated April 07, 1998 possessing educational qualification determined by the State Government, working and receiving honorarium thereby from State exchequer till the date of commencement of the Uttar Pradesh Higher Education Services Commission (Amendment) Act, 2018, shall be absorbed in the manner prescribed under sub-section (2).” 3. Thus, with the amendment of Section 31-E the new provision came to substitute to the existing provision giving a cut-off date of the teachers working and receiving honorarium from on or before 29th March, 2011 who were sought to be absorbed against the existing vacancies. 4. It is in the above background that the petitioners allege that the amendment has sought to overreach the existing rules of recruitment under the Act, 1980 and thus, it is against spirit, aim and object with which the Act, 1980 was enacted and now the qualified and eligible candidates from open market are deprived of their right to selection and consequential appointment. It is on this count that on the testing anvil of Articles 14 and 16 of the Constitution of India, it is argued that the amending provision is ultra vires to said articles as well as Sections 12 and 13 of the Act, 1980. It is on this count that on the testing anvil of Articles 14 and 16 of the Constitution of India, it is argued that the amending provision is ultra vires to said articles as well as Sections 12 and 13 of the Act, 1980. It is further argued that initially when Section 31-E was introduced by the U.P. Act No. 42 of 2006, the same was questioned through large number of writ petitions, the leading one being Writ Petition No. 5210 of 2007 (Anurag Tripathi and others v. State of U.P. and others) and while upholding the said Act, the Court had observed that “The Court fails to comprehend the exact intention of the State except that there is an attempt to somehow or the other to resort to appointments which are initially stop gap/part-time/ad hoc and thereafter to regularise such appointments. The total outcome of such practice is that the quality of education by teachers duly selected by the Commission has been made a casualty and the ultimate sufferers are the students for whom neither the State nor the authorities appear to have any concern. We, therefore, have no hesitation to record that the State should consider to do way with the practice of short term, ad hoc/part time appointments and thereafter to direct regularization. We however refrain ourselves from striking down Section 31-E of the Commission’s Act only in the background that such arrangement of absorption shall not be repeated and the State shall ensure regular appointment of Lecturers in the affiliated Degree Colleges with all promptness and all necessary steps for fulfilling the said object without any demur shall be taken”, and, therefore, according to the petitioners amendment is vitiated for malice in law and the Court should strike it down. It is argued that by way of amendment the legislature has virtually intended to reverse or override a judicial verdict. In other words, according to the petitioners the mandate as contained in the judgment of the Division Bench (supra) is sought to be altered and nullified by a legislative Act which cannot be appreciated and deserves to be struck down. 5. In other words, according to the petitioners the mandate as contained in the judgment of the Division Bench (supra) is sought to be altered and nullified by a legislative Act which cannot be appreciated and deserves to be struck down. 5. Having heard learned counsel for the parties, we come to conclude that entire petition virtually questions the amendment on twin grounds; firstly, the provision is hit by Articles 14 and 16 of the Constitution of India as well as Sections 12 and 13 of Act, 1980 and ultra vires thereto; and secondly, the amending provision seek intends to override a judicial decision and nullify its effect and so is vitiated for malice in law. 6. Before we go into the question of correctness of the impugned amendment on the first argument, insofar as the challenge to the amending provision Section 31-E is concered, we may notice that the petitioners have not faced any selection process nor, any selection process is on as against vacancies which are sought to be adjusted with the working teachers appointed under the Government Order of 1998 and are being paid honorarium. Though the vacancies in question, as is alleged, were initially sought to be filled in by way of direct recruitment vide two advertisement Nos. 44 and 45 but those advertisements were withdrawn by the State Government under its Order dated 21st May, 2015, which was never challenged. The prayer though in the present writ petition is also to the effect that 4th respondent may be directed to proceed with the selection process but it is an admission on record that the order dated 21st May, 2015 was never challenged and the petitioners did not show nor, we are able to find from pleadings raised in the writ petition that at any point of time they ever sought any direction to the 4th respondent to re-initiate the process of selection in terms of the order dated 21st May, 2015. It appears that the petitioners did not bother either for withdrawal of the selection process or for non-initiation of the process of selection thereafter for a considerable period of time and the teachers who were appointed under the Government Order of 1998 continued to acquire the positions through the selection process as was prescribed for and continued to do teaching work and who are now sought to be absorbed. 7. 7. Yet another fact worth noticing is that the first amendment to the Act, 1980 that was brought in vide U.P. Act No. 42 of 2006 introducing Section 31-E, was challenged on similar counts but the challenge was negated by the Division Bench of this Court in the case of Anurag Tripathi and others v. State of U.P. and others, 2008(4) ADJ 304 (DB), by holding thus : “It is no doubt true that the legislature in respect of a subject within its legislative domain may make law, subject to the constitutional scheme as in the circumstances and conditions is required, including a provision for regularisation/absorption of ad hoc or part-time employees. It is also not in doubt that the Court shall not normally interfere with such legislations which are within the legislative competence except if they violate some of the fundamental rights guaranteed by the Constitution. The power of the Court to interfere with the legislative act has been dealt with in series of judgments by the Hon’ble Supreme Court. In A.K.Roy v. Union of India and others, AIR 1982 SC 719, the Hon’ble Supreme Court has held that Ordinance cannot be struck down on the ground of non-application of mind or mala fides or that the prevailing circumstances did not warrant issue of Ordinance. It can be struck down either on the ground of want competence of the legislature or being violative of the provisions of Part III of the Constitution. The Courts are precluded from inquiring into the proprietary to exercise the legislative power as it has to be assumed that the legislative discretion is properly exercised. The motive of the legislature in passing a Statute cannot be scrutinised by the Courts, nor the Courts can examine whether the legislature had applied its mind to the provisions of the Statute before passing it. The proprietary necessitated by a legislature is for the determination of the legislative authority and not for determination by the Court. In State of Andhra Pradesh v. Mc Dowell & Company, AIR 1996 SC 1627 , the Supreme Court held that an enactment cannot be struck down on the ground that the Court thinks justified. The Parliament and the Legislatures composed as they are the representative of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Parliament and the Legislatures composed as they are the representative of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom.” 8. While observing as above the Division Bench also relied upon the judgment of the Supreme Court in the case of Praboth Verma and others v. State of U.P. and others, AIR 1985 SC 167 , wherein it was held thus : “The reserve pool teachers thus formed a separate and distinct from other applicants for the posts of teachers in recognized institutions. The differentia which distinguished the class of reserve pool teachers from the class of other applicants for the posts of teachers in recognized institutions is the service rendered by the reserve pool teachers to the State and its educational system in a time of crisis and this differentia bears a reasonable and rational nexus or relation to the object sought to be achieved by Ordinances Nos. 10 and 22 of 1978 read with the Intermediate Education Act, namely, to keep the system of High School and Intermediate Education in the State functioning smoothly without interruption so that the students may not suffer a detriment.” 9. Division Bench further observed : “The Court may also notice the judgment of the Hon’ble Supreme Court which has been the sheet anchor of the petitioners qua their absorption namely State of Karnataka and another v. B. Suvarna Malini and another, (2001) 1 SCC 728 . The Hon’ble Supreme Court no doubt upheld the competence of the State legislature to provide for absorption of part time teachers however what is worthwhile to notice is the paragraph 9 of the said judgment which reads as follows: “From the materials on record, it appears that the State Government has been regulating the mode of appointment of part-time Lecturers and it is not correct that there has been no process of selection before such appointment of part-time Lecturers. Even though the selection had not been made by the Public Service Commission, yet there was a process of selection and it further appears that unqualified people were not being appointed as part-time Lecturers. Even though the selection had not been made by the Public Service Commission, yet there was a process of selection and it further appears that unqualified people were not being appointed as part-time Lecturers. Part-time Lecturers having formed a class by themselves and for some reason or the others, they having been deprived of the benefits of the earlier directions of this Court on account of inaction on the part of the State Government, the matter was re-examined by a Committee of experts as to how best, the services of these part-time Lecturers can be utilized and at the same time, there will be no dilution in the quality of teaching nor can there be any infraction in the minimum qualification necessary for appointment as a Lecturer. The concept of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility. All that Article 14 guarantees is a similarity or treatment contra-distinguished from identical treatment. Equality before law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike. Equality before the law does not mean that things which are different shall be treated as though, they are the same. It of course means denial of any special privilege by reason of birth, creed or the like. The legislature as well as the executive Government, while dealing with diverse problems arising out of an infinite variety of human relations must of necessity have the power of making special laws, to attain any particular object and to achieve that object, it must have the power of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not per se amount to discrimination. When the Absorption Rules are examined from the aforesaid standpoint and when we consider the circumstances under which the said Rules were made to solve a human problem and that the Rules made were put to objection to the general public and even the Public Service Commission was consulted and finally was (sicwere laid) before the State Legislature to have their concurrence, we are of the considered opinion that the High Court committed an error in striking down the Rules on the ground that they were discriminatory. When this Court deprecates the regularization and absorption, when it comes to the conclusion that such regularization and absorption has become a common method of allowing back-door entries and then regularizing such entries, it is not that in every case, the Court would be justified in striking down the process of absorption or regularization, more so when such absorption has been made as a legislative measure and that also as a one-time measure, and at the same time insisting upon the essential qualifications to be duly complied with, by the persons intended to be absorbed on regular basis.” 10. In view of the above though we find it difficult to reconcile with the argument as being advanced by the petitioners as the same provision is continued with the change of the cut-off dates vide new amendment now under challenge but we still proceed to examine the amending provision in the light of the arguments advanced. 11. It is out of question to think of a process of selection and recruitment in the realm of public employment which is contrary to Articles 14 and 16 of the Constitution. In order to streamline the process of selection and recruitment wherever either the Institution is of a public nature or the public exchequer is involved, the legislature has enacted Acts providing comprehensive procedure and even rules are framed thereunder to obviate any chance of bias. The Act, 1980 is one such Act, the aims and objects are clearly spelt out for enacting the provisions and looking into the provisions regarding functions of Commission, the procedure of appointment and the recommendations, we find that the proper safeguards have been taken into account. However, as the difficulty may arise or might have arisen from time to time in undertaking process of selection and making recommendations and which might have resulted in inconvenience to privately managed aided colleges that the State Government introduced Government Order dated 7th April, 1998. The Government Order dated 7th April, 1998 focuses on the selection purely on merits and the intention is to empower the management to run their institution properly meeting the academic requirements and obviously for the delayed selection and recruitment process being undertaken by the Commission. The Government Order dated 7th April, 1998 focuses on the selection purely on merits and the intention is to empower the management to run their institution properly meeting the academic requirements and obviously for the delayed selection and recruitment process being undertaken by the Commission. It is under the Government Order dated 7th April, 1998 that the management of the respective colleges have been making appointments of qualified teachers on the basis of honorarium and such selections and appointments were, of course, made subject to the recommendations of the Commission under the Act, 1980. When Section 31-E was introduced vide amending Act No. 42 of 2006, the cut-off date was the date of commencement of the U.P. Act No. 42 of 2006, the existing provisions except the cut-off date which is now under the amended provision as 29th March, 2011 or before, the rest of the procedure is the same as prescribed under existing Section 31-E. It is true that these teachers were appointed through public advertisement as prescribed for under the Government Order and purely on the basis of merit as prescribed for by way of allocation of marks as per the qualification prescribed, there was no such collective open market selection as conceived of under the Act, 1980 but then, their continuance is not being questioned and what is being questioned is their absorption, only for appointments being contrary to the provisions of Act, 1980. 12. We may notice at this stage that in the present petition there is no challenge to the Government Order dated 7th April, 1998 and obviously, for the reason of the second argument of malice in law, in view of the observations made by the Division Bench in the case of Anurag Tripathi (supra). Coming back to the first argument, we find that there is no challenge to the appointment of honorarium teachers in this petition and what is being questioned is only their absorption. Coming back to the first argument, we find that there is no challenge to the appointment of honorarium teachers in this petition and what is being questioned is only their absorption. In other words, what is being questioned is that the State could not have proceeded to amend the provisions to absorb the existing honorarium based teachers as it would defeat the very purpose and the object for which the Act, 1980 was enacted in the first instance, and then it will defeat the very fundamental principle of fairness and transparency in matters of selection and recruitment in public employment for violation of Articles 14 and 16 of the Constitution of India. 13. Regularization in public employment at the end of the State is not only guided by the strict rules of procedure but at times also on principles of moral and equity. The absorption and regularisation by the State being a model employer though may appear to be quite unreasonable to those who are on waiting benches but legislative competence and the power of legislature to enact laws being plenary, the Courts even in the past have upheld the one time measure of absorption of working strength in regular establishment or against the existing substantive vacancies. It is well-settled that where legislature has power to legislate on a subject as here in this case, a legislative competence cannot be questioned merely on a touch stone of Articles 14 and 16 of the Constitution of India. The case of the petitioners is still worse as they are not even party to any selection process so they are not on waiting benches and in the backdrop of our constitutional scheme, there is no fundamental right to employment, though of course one may have claim for consideration but for that a legislative act cannot be invalidated. If the legislative competence is not questionable then the Courts will presume an Act or amending Act to be valid one. The absorption/regularisation is an exception to the general rule. While the legislature can negative claim of an employee for regularisation by bringing suitable provisions, we have no doubt in saying so, that it is equally competent to regularise or absorb its working employees against regular existing strength/vacancies. In equity also those who are working have a right to be considered in preference to those who are not even in selection process. In equity also those who are working have a right to be considered in preference to those who are not even in selection process. While we do agree that in matters of public employment fairness, equality and bias free selection is a cardinal principle of a rule of law society but to say that State is denuded of its power or that an Act of absorption can be questioned on that count is stretching too far a principle which would be, if we may say so, overlapping the powers of judicial review with legislative competence. Such an approach, in our considered opinion, is wholly unwarranted. In the case of Sushma Sharma v. State of Rajasthan, 1985 Supp SCC 45, the Apex Court has held that “it may be borne in mind that wisdom or lack of wisdom in the action of the Government or legislature is not justiciable by Court. See in this connection the observations of the US Supreme Court in Metropolis Theater Co. v. City of Chicago 57 L ED 730. To find fault with a law is not to demonstrate its invalidity. McKenna,J. observed as follows: “It may seem unjust and oppressive, yet be free from judicial interference. The problems of Government are practical ones and may justify, if they do not require, rough recommendations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of Government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void.” 14. So the wisdom of the legislature cannot be questioned in matters of framing rules or amending existing provisions that carve out an exception to the general law and so as such an Act or amending Act cannot be held to be arbitrary. The legislature in its wisdom if decides to absorb the working strength against the existing vacancies as an exception to the general law of recruitment, those who are seeking employment and waiting for recruitment process to be reinitiated, cannot claim any vested right against those vacancies and so also any act of such absorption to say, is with a purpose of defeating their vested right to employment, does not appeal to reason or logic. The Courts in their judicial exercise of power cannot hold a legislative act to be arbitrary which the legislature intended to be an exception to the general rule and with the said aim and object enacted the provision. To hold it otherwise would definitely be amounting to question the legislative competence which we do not sense in any way logical. In the case of A. Manjula Bhashini and others v. Managing Director, Andhra Pradesh Women’s Cooperative Finance Corporation Ltd. and another, (2009) 8 SCC 431 , while testing the amending provision of the Act whereby the regularisation of the daily wagers were negated in spite of directions of the Court and it was held vide para 67 and 68 thus : “67. The distinction between legislative and judicial functions is well known. Within the scope of its legislative competence and subject to other constitutional limitations, the power of the legislature to enact laws is plenary. In exercise of that power, the legislature can enact law prospectively as well retrospectively. The adjudication of the rights of the parties according to law enacted by the legislature is a judicial function. In the performance of that function, the Court interprets and gives effect to the intent and mandate of the legislature as embodied in the statute. If the Court finds that the particular statute is ultra vires the power of legislature or any provision of the Constitution, then the same can be struck down. 68. It is also well-settled that the legislature cannot by bare declaration, without anything more, directly overrule, reverse or override a judicial decision. However it can, in exercise of the plenary powers conferred upon it by Articles 245 and 246 of the Constitution, render a judicial decision ineffective by enacting a valid law fundamentally altering or changing the conditions on which such a decision is based. Such law can also be given retrospective effect with a deeming date or with effect from a particular date. The question whether the legislature possesses the power to enact law apparently affecting pre-existing judgment or amend the existing law which has already been interpreted by the Court in a particular manner, has been considered in several cases.” 15. Such law can also be given retrospective effect with a deeming date or with effect from a particular date. The question whether the legislature possesses the power to enact law apparently affecting pre-existing judgment or amend the existing law which has already been interpreted by the Court in a particular manner, has been considered in several cases.” 15. The Court then referred to several judgments wherein it was held repeatedly that if legislature has competence to legislate over a subject-matter, the Courts exercising their power of judicial review would not enter to examine the correctness of wisdom of legislature in coming to legislate in a particular manner as the same would fall in exclusive province of legislature. 16. Now testing the first argument on the above settled legal position, we find that in the present case the legislature has absolute competence to legislate over the subject-matter and this Court in earlier round of litigation, having not found insertion of new Section 31-E to be illegal even in the backdrop of the decision of the Court in Malvika Shekhar v. Director of Higher Education, U.P. and others, 2004 (1) AWC 321 , we cannot now sit in appeal over the ratio of the judgment in Anurag Tripathi (supra) to hold that the impugned amendment has invalidated a previous law. We must not forget that legislative function can never be confused with executive function. Judicial review of exercise of delegated power is tested on the basis procedure prescribed and the limitations imposed under the principal Act as to how much and manner in which power can be exercised by the delegated authority. The guidelines given under a statute, therefore, becomes an automatic scale to judge an action by the Courts but where legislature with elected representative of people as per the constitutional scheme and given polity, exercises its power in the welfare of the people, the bona fides of such act, in our considered opinion, is beyond the scope of judicial review unless of course, any amending or validating Act tends to destroy basic structure of the Constitution. No such argument has been advanced nor, do we find any such pleadings in the writ petition. Right to employment does not partake the characteristics of any fundamental right. No such argument has been advanced nor, do we find any such pleadings in the writ petition. Right to employment does not partake the characteristics of any fundamental right. Right of consideration in public employment is there, provided there is any selection process underway and the amending provision is intended to overreach the same negating even right to consideration, but we do not find any such case here either. Therefore, we are not impressed by the argument that the amending provisions are ultra vires the Sections 12 and 13 of the Act, 1980 or Articles 14 and 16 of the Constitution of India. 17. Now coming to the second argument that while earlier testing the initial provision of Section 31-E, the Division Bench in Anurag Tripathi (supra) had observed that in future the legislature will not repeat this act of absorption and, therefore, the amendment is vitiated for malice in law as it tries to negate the directions contained in a Judicial verdict, we are afraid as such an interpretation of the legislative competence is not conceived of in our constitutional philosophy. While the directions of the Court may be suggestive in nature but the field in which the legislature is competent to enact the provision, the Court of law, in our considered opinion, cannot hold the provision to be ultra vires merely because it negatives the certain directions of the Court. No thumb rule can be adopted to guide as to how and when the legislature would exercise its power. We have the example that the State of Andhra Pradesh had initially enacted Andhra Pradesh (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994, keeping in view the growing dissatisfaction amongst several thousand unemployed persons including oppressed class in terms of Scheduled Castes and Schedule Tribes and OBCs, who, though were registered with the Employment Exchange but were not able to compete the selection for appointment against the sanctioned posts due to on going process of entry through daily wage. So while, on one hand, the State Government tried to streamline the services of the existing staff, on the other hand, it also tried to restrict appointment on temporary basis against the sanctioned posts and to ensure that the appointment are made through some recruiting agency. So while, on one hand, the State Government tried to streamline the services of the existing staff, on the other hand, it also tried to restrict appointment on temporary basis against the sanctioned posts and to ensure that the appointment are made through some recruiting agency. But in spite of introducing Section 7 which restricted appointment, the State Government under compulsion of the pressure of the vested interest issued Government Order dated 27th April, 1994 incorporating the policy of regularization of the services of those appointed on daily wages or muster role or consolidated pay who had worked continuously for five years and were continuing as on 25th November, 1993 the date of enforcement of the 1994 Act. But the ambiguity and to say so lack of technical nicety in language of Government Order dated 22th April, 1994, the issue of regularization resulted in enormous litigation burdening the public exchequer unnecessarily. The one time measure for regularization became a continuing process of regularization. Resultantly, in the case of District Collector/Chairman and others v. M.L. Singh and others, (2009) 8 SCC 480 , in a very short order, the Apex Court vide para 3 of the order directed thus: “3. As regards payment of wages there is no dispute between the parties that the same have to be paid from the date of regularisation. Insofar as regularisation is concerned, we are of the view that the High Court has rightly directed that on the basis of Notification GOMs No. 212, the respondent employees shall be regularized with effect from the date or dates, they completed five years’ continuous service. It is, however, made clear that the other conditions laid down in the said GOMs No. 212 will have to be satisfied for the purpose of regularisation.” (emphasis supplied) 18. Consequently, the State legislature brought amendment Act No. 27 of 1998 and thereby inserted new provision 7-A which runs as under: “7-A. Abatement of claims.—(1) Notwithstanding any Government order, judgment, decree or order of any Court, tribunal or other authority, no person shall claim for regularisation of service under the first proviso of Section 7 as it was incorporated by the Andhra Pradesh (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) (Amendment) Act, 1998 (Act 3 of 1998). (2) No suit or other proceedings shall be maintained or continued in any Court, tribunal or other authority against the Government or any person or other authority whatsoever for regularisation of services and all such pending proceedings shall abate forthwith. (3) No Court shall enforce any decree or order directing the Government or any person or other authority whatsoever for regularisation of services.” 19. The daily wages employees and similarly placed employees questioned the amending Act. So, the point for consideration before the learned Single Judge of the High Court was whether the amendment made in 1994 Act have the effect of nullifying and overriding the judgment of the Apex Court in District Collector/Chairman and others v. M.L. Singh and others, (2009) 8 SCC 480 and whether Section 7-A inserted vide amending Act No. 27 of 1998 brought by the State legislature amounted to an encroachment of Courts’ power and judicial review. While learned Single Judge allowed the writ petition. The Division Bench allowed the State appeal. Against the said judgment S.L.P. was filed before the Supreme Court and Supreme Court upheld the provision and rejected the argument that by amending provision of the Act the legislature had virtually played a fraud on the decision and directives and mandate contained in the orders of the Court. The Division Bench while upholding the amending provision observed that while exercising the power under Article 226 of the Constitution in terms of power of judicial review over the legislation would no invalidate an Act on the ground of malice or otherwise, the Supreme Court upheld the decision that the legislature is competent to enact a provision with prospective and retrospective effect to provide for a cut-off date which in its wisdom seems to be correct keeping in mind the object with which the amendment is introduced and object sought to be achieved. The Court repelled the argument that the inserting of 7-A by way of amendment vide Act No. 27 of 1998, there was an encroachment of its power of judicial review. While holding so, the Apex Court relied upon its earlier judgments of three Judge Bench in the case of Mylapore Club v. State of T.N., (2005) 12 SCC 752. The Apex Court in its judgment in Manjula Bhashini vide paragraphs 78, 79, 80, 81 and 90 observed thus: “78. While holding so, the Apex Court relied upon its earlier judgments of three Judge Bench in the case of Mylapore Club v. State of T.N., (2005) 12 SCC 752. The Apex Court in its judgment in Manjula Bhashini vide paragraphs 78, 79, 80, 81 and 90 observed thus: “78. In Mylapore Club v. State of T.N., (2005) 12 SCC 752, a three-Judge Bench examined the validity of Sections 2 and 3 of the Madras City Tenants’ Protection (Amendment) Act, 1994 (Act No. 2 of 1996). By Section 2 of the 1996 Act, Section 1 of the Madras City Tenants’ Protection Act, 1921 was amended and Clause (f) was added providing for exemptions for tenancies of land owned by religious institutions and religious charities belonging to Hindu, Muslim, Christian or other religions. By Section 3, it was declared that any proceeding instituted by a tenant in respect of any land owned by such a religious institution or religious charity, which was being exempted from the operation of the Act pending before any Court or other authority, would stand abated and all rights and privileges conferred by the extension of the Madras City Tenants’ Protection Act, 1921 would cease and would become unenforceable. However, a proviso was added to the effect that nothing contained in Section 3 shall be deemed to render invalid, any suit or proceeding in which a decree or order passed had been executed or satisfied in full before the date of the coming into force of the amending Act. 79. In Mylapore Club case (supra) it was argued on behalf of the tenant Club that the amendment made by Sections 2 and 3 of Act No. 2 of 1996, whereby exemption was granted to certain tenancies was not in consonance with the object of the parent Act. It was further contented that Section 3 of the amending Act which provided for certain pending proceedings to abate was a legislative act to put an end to a judicial proceedings and the same was clearly unconstitutional. 80. While rejecting the first argument, the Court observed: “The power to legislate is a plenary power vested in the legislature and unless those who challenge the legislation clearly establish that their fundamental rights under the Constitution are affected or that the legislature lacked legislative competence, they would not succeed in their challenge to the enactment brought forward in the wisdom of the legislature. Conferment of a right to claim the benefit of a statute, being not a vested right, the same could be withdrawn by the legislature which made the enactment. It is open to the legislature to bring in a law that has retrospective operation. That position is not disputed. When it affects vested rights or accrued rights, that question will have to be considered in that context. But the right to take advantage of a statute has been held to be not an accrued right. It could not be said that Amendment Act 2 of 1996 lacked either legislative competence or that it is unconstitutional. It is a matter for the legislature to balance the object of the Parent Act with the object of protecting the rights of religious institutions and religious charities and on the basis of the material available to the legislature, the decision to exempt the buildings of such religious institutions and religious charities has been taken.” 81. While rejecting the second argument, the Court observed: “By Section 3 of amending Act 2 of 1996 impugned herein, which is in pari materia with Section 9 of the amending Act of 1960, the legislature had intended that pending proceedings should be affected. Even otherwise, once the applicability of the Act itself is withdrawn, no relief can be granted to a person who could have been or who was earlier a beneficiary under that enactment, after such withdrawal. Here, the section provides that even if some steps have been taken pursuant to the claim by the tenant under Section 9 of the Parent Act, the proceeding cannot be continued in view of the exemption enacted in favour of the institutions. Reading Section 3 of amending Act 2 of 1996, it could not be said that it is a legislative intervention with a judicial decision. The proviso to Section 3 of amending Act 2 of 1996 has saved concluded transactions based on judicial adjudications. All that the said Section 3 does is to make it explicit that the amendment is intended to apply to pending proceedings. The proviso to Section 3 of amending Act 2 of 1996 has saved concluded transactions based on judicial adjudications. All that the said Section 3 does is to make it explicit that the amendment is intended to apply to pending proceedings. In the context of Section 6 of the General Clauses Act, unless it is shown that any right has accrued to the claimant under Section 6 of the General Clauses Act, such a provision making it clear that the Act could not be applied any more to pending proceedings is not in any way invalid or incompetent. Unless the proceedings have concluded and the rights of the landlord have passed to the tenant, no right accrues to the tenant. He is only in the process of acquiring a right, the process having been set in motion at his instance. When pending proceedings are affected by an amendment, it is open to the legislature to provide that the said process cannot continue. That alone has been done by Section 3 of amending Act 2 of 1996. therefore there is no merit in challenge to Section 3 of the amending Act.” 90. The question whether Section 7A of Act No. 27 of 1998 amounts to an encroachment on the Court’s power on judicial review is answered in negative in view of the three-Judge Bench judgment in Mylapore Club v. State of T.N. (supra) and we respectfully follow the ratio of that judgment. Even otherwise, in view of the interpretation placed by us on the policy of regularisation contained in first proviso to Section 7 of the 1994 Act, the question of abatement of claims etc. has become purely academic.” 20. Even otherwise, we do not find anything suggestive of any substance in the argument that legislature has acted quite arbitrarily in the matter nor, do we find that the amending provision can be held to be bad for any legislative incompetence. Regularisation is always one time measure to absorb the employees working for long and if in its wisdom, the legislature has carved out an exception to the general rule to absorb the working employees, the same is not questionable. Regularisation is always one time measure to absorb the employees working for long and if in its wisdom, the legislature has carved out an exception to the general rule to absorb the working employees, the same is not questionable. We do not only presume the amending Act to be valid but even while testing its validity on the arguments advanced in view of our discussions hereinabove in this judgment, we do not find anything to hold it ultra vires the provisions of Act, 1980 or Articles 14 and 16 of the Constitution of India. 21. The writ petition lacks merit and it is, accordingly, dismissed.