Cmd/Chairman,. B.S.N.L. & Ors vs Mishri Lal & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1405 OF 2007

CMD/Chairman, B.S.N.L. and others .. Appellants

-versus-

Mishri Lal and others .. Respondents

WITH

CIVIL APPEAL NO. 427 OF 2008

Union of India and others .. Appellants

-versus-

Pushpawati Singh .. Respondent

J U D G M E N T

Markandey Katju, J.

Civil Appeal No. 1405 of 2007

1. This appeal has been filed against the impugned judgment and order

dated 16.12.2005 in Civil Misc. Writ Petition No. 73843 of 2005 of the

Division Bench of the Allahabad High Court.

2 2. Heard learned counsel for the parties and perused the record.

3. The respondents 1 to 9 herein, filed a writ petition before the High

Court praying for quashing of the Recruitment Rules 2005 as well as the

letters by which the writ petitioners were told to appear in the Limited

Internal Competitive Examination for promotion to the post of Raj Bhasha

Adhikari AD(OL) which was to be held under the supervision of the CGMT

UP(East), Circle , Lucknow as well as issuing a writ of mandamus

restraining the appellants herein from interfering in the working of the

respondents as AD(OL) on their respective posts and to continue to pay

them their salaries. The aforesaid writ petition was allowed by the

impugned judgment and hence this appeal.

4. It was pointed out by learned counsel for the appellants that the

impugned Raj Bhasha Adhikari Recruitment Rules 2005 were quashed by

the High Court without service of any notice of the writ petition on the

appellants (respondents 3 to 6 in the writ petition) and that too at the

preliminary stage of admission on the basis of an alleged submission of a

counsel who did not have any authority and Vaklatnama in his favour by the

appellants and who had not been given any instruction to appear on their

behalf. We agree with this submission.

3 5. When rules are challenged it is necessary to have the matter gone into

in depth by inviting a counter affidavit and examining the matter in detail.

A summary disposal of a writ petition by allowing it without even calling for

a counter affidavit and quashing the rules, in our opinion, is totally against

any established procedure of law.

6. Apart from the above, on merits also we are of the opinion that the

writ petition deserved to be dismissed and was wrongly allowed.

7. Article 343(1) of the Constitution of India states that the official

language of the Union of India shall be Hindi in Devnagari script. To fulfill

the mandate of this provision the Government of India, Ministry of

Communications, decided to have a Hindi Cell in each Central Government

department and Central Government instrumentality with the object of

promoting progressive use of Hindi in the official notings and

communications. Accordingly, it framed Rules in 1983 under Article 309 of

the Constitution. In 1983, there were 43 posts of Hindi Officers in the

department and it was provided that 50% of the posts will be filled up by

direct recruitment, 30% by promotion and 20% by transfer on deputation.

The essential qualification for holding the post was Masters Degree in the

concerned subject and 5 years' experience of teaching, research, writing or

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journalism in Hindi. As far as promotions were concerned, it was stipulated

that Hindi Translator Grade-I with 3 years' regular service in the grade could

be selected by a Departmental Promotion Committee in consultation with

the Union Public Service Commission.

8. In April 1994, the Department of Telecommunications decided that

since the subordinate units (Telecom Circles) were facing difficulties in

filling up the posts as per the existing provisions, the posts of Hindi Officers

may be filled up amongst the cadre of Hindi Translator Grade-I/Grade-

II/Grade-III with 3, 5 or 8 years' service respectively in the Circle/District

concerned, failing which the posts may be filled up from amongst the Group

`C' cadres based on length of service possessing the qualifications in the

Recruitment Rules.

9. On 1.10.2000, the Department of Telecommunications was

reorganized with the formation of Bharat Sanchar Nigam Limited (in short

`BSNL') as a Government Company to take charge of the operations and

maintenance of telecom and telegraph network of the entire country. The

respondents herein after formation of BSNL were given option for

absorption in the Corporation in the level of Junior Hindi Translators, which

option they exercised and they were absorbed accordingly.

5 10. There were some objections to the Recruitment Rules of 2002 which

had been circulated departmentally, but allegedly these Rules were never in

operation at any point of time. Accordingly, the revised Recruitment Rules

2005 were formulated and issued on 5.8.2005 whereby 120 posts were

classified as Executive with the nomenclature of Raj Bhasha Adhikari.

While the educational qualifications remained the same as before, the mode

of recruitment was totally changed in the Recruitment Rules of 2005. The

entire cadre was to be filled up by a Limited Internal Competitive

Examination. It is these Rules which have been struck down by the High

Court.

11. It may be mentioned that the respondents herein were never regularly

promoted as Hindi Officer at any point of time either under the 1984 Rules

or Recruitment Rules, 2002. They had never been appointed on the basis of

the recommendation of the Departmental Promotion Committee duly

approved by the Union Public Service Commission. In fact, they were

appointed purely on a local officiating basis under the powers delegated to

the Heads of Telecom Circles on the basis of administrative instructions

dated 28.4.1994. Thus, they were never regular appointees and hence had

no vested rights for promotion to the post of Hindi Officer under the

Recruitment Rules of 2002, which, in fact, were never in operation at any

6

point of time. Besides this, when the revised Recruitment Rules 2005 were

formulated, 120 posts were classified as Executive, and for the Executive

cadre posts, the mode of recruitment was changed and it was now to be filled

up by a Limited Internal Competitive Examination. It cannot now be

allowed to be filled up by promotion of persons working on officiating basis.

In our opinion there was nothing illegal in this change of policy.

12. Rules under Article 309 can be changed even during the subsistence

of the old Rules. As held in Raj Kumar vs. Union of India, AIR 1975 SC

1116 (vide para 7), "Rules made under the proviso to Article 309 of the

Constitution are legislative in character, and therefore can be given effect to

retrospectively." Thus, rules under the proviso to Article 309 are

Constitutional rules, not like rules under a statute. Hence they have the

same force as a Statute, though made by the executive.

13. It is well settled that the legislature can legislate retrospectively vide

M.P.V. Sundararamier & Co. vs. State of Andhra Pradesh, AIR 1958

SC 468, J.K. Jute Mills vs. State of Uttar Pradesh, AIR 1961 SC 1534,

Jadao Bahuji vs. Municipal Committee, AIR 1961 SC 1486,

Government of Andhra Pradesh vs. Hindustan Machine Tools Ltd.,

7

AIR 1975 SC 2037 (para 8), Nandumal Girdharilal vs. State of Uttar

Pradesh, AIR 1992 SC 2084, etc.

14. Hence, the approach of the High Court, in our opinion, was totally

incorrect. In State of Punjab and others vs. Arun Aggarwal and others

(2007) 10 SCC 402, it was observed (in para 30):

"There is no quarrel over the proposition of law that the

normal rule is that the vacancy prior to the new Rules

would be governed by the old Rules and not the new

Rules. However, in the present case, we have already

held that the Government has taken a conscious decision

not to fill the vacancy under the old Rules and that such

decision has been validly taken keeping in view the facts

and circumstances of the case".

15. In the present case, a conscious decision was taken in 2005 providing

that all the posts in question should be filled up by Limited Internal

Competitive Examination. This was a policy decision and we cannot see

how the High Court could have found fault with it. It is well settled that the

Court cannot ordinarily interfere with policy decisions.

16. No doubt in some decisions it was held that a vested right cannot be

taken away by amendment of the rules. But what does this really mean?

Since a rule under the proviso to Article 309 is legislative in character vide

Raj Kumar vs. Union of India (supra) the rule can be amended, even with

8

retrospective effect, just as a legislation can be amended with retrospective

effect.

17. In our opinion the expression `vested right' could only mean a vested

Constitutional right, since a Constitutional right cannot be taken away by

amendment of the rules.

18. This is evident from the Constitution Bench decision of this Court in

Chairman, Railway Board vs. C.R. Rangadhamaiah (1997) 6 SCC 623.

It was held therein that pension is no longer treated as a bounty but was a

valuable Constitutional right under Articles 19(1)(f) and 31(1) of the

Constitution, which were available on 1.1.1973 and 1.4.1974 (that is before

the 44th Constitution Amendment). Since this was a Constitutional right it

could not be taken away by amendment of the rules. The Constitution is the

supreme law of the land, and hence a Constitutional right can only be taken

away by amending the Constitution, not by amending the rules or even by

amending the statute.

19. Hence in view of the aforesaid Constitution Bench decision the other

decisions of this Court of smaller benches must be understood to mean that a

vested Constitutional right cannot be taken away by amendment of the rules.

It follows that if the vested right is not a Constitutional right it can be taken

9

away by retrospective amendment of the rules. A legislative act can destroy

existing rights, (unless it is a Constitutional right). Thus, even a taxing

statute can be made retrospectively, and this usually affects existing rights

vide Union of India vs. Madangopal, AIR 1954 SC 158, Jawaharlal vs.

State of Rajasthan, AIR 1966 SC 764(770), Tata Iron & Steel Co. Ltd.

vs. State of Bihar, AIR 1958 SC 452, D.G. Gouse & Co. vs. State of

Kerala, AIR 1980 SC 271 (para 16), Shetkari Sahkari Sakhar Karkhana

Ltd. vs. Collector, AIR 1979 SC 1972 (para 6-7), etc.

20. A rule made under the proviso to Article 309 is a legislative act

(though made by the executive). It is not a piece of delegated legislation like

a rule made under a statute. Hence it can be amended retrospectively.

21. In para 8 & 9 of the impugned judgment, the High Court has

observed:

"The main and the central contention from the side of the

petitioners is that since the Old Rules specifically stated

that since these Rules will remain effective for three

years, it was not for the respondent No. 3 to change these

Rules before three years, and to formulate new set of

rules, changing the basic structure of promotion, as

petitioners who were already working on the post of AD

(OL) as far back as since 10.7.1995 on local officiating

basis.

We agree with the contention of the learned counsel for

the petitioner, because, Law and Equity as well as

1

Honesty and Fair Play jointly provide support of the

petitioners' contention, that once it has been laid down in

the old Rules (Rule 10(iv) that they will not be changed

for three years, respondent No. 3 BSNL, who is a

Government of India enterprise, cannot change the Rules

before expiry of three recruitment years, and cannot

formulate a new set of Rules detrimental to the interests

of the petitioners. This undertaking given by the

respondent No. 3 in the earlier Rules, is sacrosanct, and

the respondent No. 3 is bound to honour the same. They

cannot and should not be allowed to say, a good-bye

from the same. If they wanted to retain the right to

change the Rules, they should not have given an

undertaking by framing sub-rule(iv) of Rule 10 of the

Old Rules. But once they have given this assurance in

the Rules, they respondents cannot and should not be

allowed to turn around and resile from the same".

22. We are of the opinion that the above observations are not sustainable.

When Rules are framed under Article 309 of the Constitution, no

undertaking need be given to anybody and the Rules can be changed at any

time. For instance, if the retirement age is fixed by rules framed under

Article 309, that can be changed subsequently by an amendment even in

respect of employees appointed before the amendment. Hence, we cannot

accept the view taken by the High Court. There is no question of equity in

this case because it is well settled that law prevails over equity if there is a

conflict. Equity can only supplement the law, and not supplant it. As the

Latin maxim states "Dura lex sed lex"' which means "The law is hard, but it

is the law".

1 23. For the aforementioned reasons, the appeal is allowed. The impugned

judgment and order of the High Court is set aside. There shall be no order as

to costs.

Civil Appeal No. 427 of 2008 24. In view of the decision in Civil Appeal No. 1405 of 2007, this appeal

is allowed. The impugned judgment and order of the High Court is set

aside. No costs.

.................................J.

(Markandey Katju)

.................................J.

(Gyan Sudha Misra)

New Delhi;

April 15, 2011