High Court Of Delhi & Anr vs A.K. Mahajan & Ors

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6397-6398 OF 2001

High Court of Delhi & Anr. ....Appellants

Versus

A.K. Mahajan & Ors. ....Respondents

WITH

CIVIL APPEAL NOS. 6399-6400 OF 2001

J.P. Aggarwal & Ors. ....Appellants

Versus

A.K. Mahajan & Ors. ....Respondents

JUDGMENT

V.S. SIRPURKAR, J.

1. This judgment shall govern Civil Appeal Nos. 6397-6398 of 2001

and Civil Appeal Nos. 6399-6400 of 2001. Civil Appeal Nos. 6397-6398

are filed by the High Court of Delhi and Civil Appeal Nos. 6399-6400 by

some employees of the High Court of Delhi. In all the Appeals, a common

judgment passed by the High Court is in challenge. By the said judgment,

Writ Petitions filed by some of the High Court employees were allowed. In

the said Writ Petitions, notification dated 7.8.1995, making amendment in 2

Schedule II of the Delhi High Court Establishment (Appointment and

Conditions of Service) Rules, 1972 (hereinafter called "the Rules of 1972"

for short), that pertain to the selection to the posts of Assistant Registrar,

was in challenge. Rule 3 of these Rules dealt with joint inter-se seniority of

confirmed employees in categories of equal status posts. There was a

joint seniority list for three categories of employees, they being:-

(1) Superintendents

(2) Court Masters

(3) Private Secretaries.

Rule 7 provided the mode of appointment. It provided that the

appointment to the post of Assistant Registrar could be made by selection

on merit from confirmed officers of categories 5, 6 and 7 of Class I

mentioned in Schedule I. These categories were none other, but the

Superintendents, Court Masters and Private Secretaries, meaning thereby

that these were the feeder posts to the post of Assistant Registrar. The

last appointment to the post of Assistant Registrar under the said Rules of

1972 was made on 1.6.1993. In the year 1994, 5 vacancies arose in the

post of Assistant Registrar and the selection process was initiated and a

Committee, consisting two Hon'ble Judges of that Court, was constituted.

However, on 2.7.1994, a representation came to be made by the

Superintendents and the Court Masters that if the promotions were made

as per the existing Rules on the basis of the combined seniority list, all the

5 post were likely to be filled only by the Private Secretaries, since they 3

were much more in number and they were promoted in large numbers. It

was, therefore, necessary to correct the imbalance. On 12.7.1994, the

Hon'ble Chief Justice of the High Court directed the representation to be

placed before the Committee constituted for selection to the post of

Assistant Registrar.

2. On 7.11.1994 and 8.11.1994, the Committee interviewed 14 senior

most officers for the aforementioned 5 posts of Assistant Registrar.

However, no decision was taken. The said representation made by the

Superintendents and Court Masters, however, came to be considered on

19.4.1995 and the Committee, therefore, recommended that the existing

Rules should be amended, providing for 1/3rd quota each for

Superintendents, Court Masters and Private Secretaries. It was also

observed that if the recommendations were not accepted, then the vacant

posts of Assistant Registrar could be filled from the candidates already

interviewed. On 19.4.1995, the Hon'ble Chief Justice of that Court directed

the then pending promotions to be made on the basis of the existing Rules

and also held that the amendment of the said Rules should be made.

However, that was to be only for the future posts. Another representation

came to be filed on 26.4.1995 by the Superintendents and the Court

Masters, pointing out that over the years on account of the existing Rules,

the feeder category of Private Secretaries had gained maximum

promotions to the posts of Assistant Registrar at the cost of the two

remaining feeder posts, namely, Superintendents and Court Masters. It 4

was pointed out that in the last 10 years, out of 28 promotions made to the

post of Assistant Registrar, 15 were from the Private Secretaries, while

only 13 came from the categories of Superintendent and Court Master

combined. It was also pointed out that out of the 9 Assistant Registrars

already working, 7 were from the category of Private Secretary and only 2

were from the Superintendents and Court Masters. This representation

was directed to be placed before the same Committee. On 10.5.1995, the

Committee recommended that suitable amendment should be made to the

Rules and also noted that if the present vacancies were allowed to be filled

on the basis of the existing Rules and the interviews already held, it would

lead to a lot of frustration amongst the Superintendents/Court Masters.

The Committee, therefore, reiterated its earlier recommendation that a

quota should be provided for each feeder category. The recommendations

were approved by the Hon'ble Chief Justice of that Court. Thereafter, the

draft amendments were considered by the Committee. Those

amendments were recommended to be effective from 1.7.1993, as the last

appointment to the post of Assistant Registrar was made only on 1.6.1993.

On 7.8.1995, the Hon'ble Chief Justice of that Court approved the

amendment to the Rules, so suggested with retrospective effect from

1.7.1993. By that amendment, existing Rule 7 was amended and it was

provided that the first vacancy in the post of Assistant Registrar would be

filled from Private Secretaries and the second and third vacancies would

be filled from amongst the Superintendents and Court Masters. For that 5

purpose, separate seniority list of Private Secretaries and

Superintendents/Court Masters would be prepared. A fresh selection

process thereafter was started on 9.8.1995 and on 11.8.1995. First senior

most 8 officers from amongst the Private Secretaries and 11 officers from

the seniority list of Superintendents/Court Masters were shortlisted for

interview. The Committee was reconstituted on account of the retirement

of Hon'ble P.K. Bahri, J., who was replaced by Hon'ble Arun Kumar, J. On

11.8.1995, the Committee interviewed candidates and made the

recommendations. It was on the same day that Writ Petition No. 2944 of

1995 was filed by Shri A.K. Mahajan & Others, who belonged to the

category of Private Secretaries. By that Writ Petition, the retrospective

amendment to the Rules was challenged. On 19.8.1995, the Chief Justice

of that Court granted approval to the promotions of 7 persons to the posts

of Assistant Registrar with effect from 17.8.1995. Another Writ Petition,

being CW No. 500 of 1996 came to be filed by Shri S.D. Sharma, wherein

again the same amendment with retrospective effect was challenged. His

grievance was that though he was called for the interviews held in

November, 1994, he was not so called for the interview held in August,

1995. The Writ Petitions came to be allowed by the High court to the

extent that only the retrospective effect of the amendment was found fault

with and was invalidated. It is this common judgment, disposing of both

the Writ Petitions, which has fallen for our consideration in the present

matters.

6

3. Shri P.P. Rao, Learned Senior Counsel appearing on behalf of the

appellants urged that the judgment of the High Court is not correct and

proceeds on the wrong premise that the amendments took away the

crystallized rights of the Writ Petitioners. The Learned Senior Counsel

urged that there is no question of there being any crystallized rights as

there can be no right for the promotion. According to Shri Rao, the

extensive reliance by the appellants on decision in S.B. Mathur Vs. Chief

Justice of Delhi reported in 1989 Supp. (1) SCC 34 was totally uncalled

for and the ratio in that judgment was completely misunderstood by the

High Court. Shri Rao further argued that there can be no question of there

being any crystallized right or vested right in favour of the Writ Petitioners.

It is further pointed out by the Learned Senior Counsel that the whole

exercise was bonafide and taken with the sole objective of avoiding

injustice to a particular class of employees like Superintendents/Court

Masters in comparison to the Private Secretaries.

4. As against this, Shri Shrish Kumar Mishra, Learned Counsel

appearing on behalf of the respondents pointed out that the amendments

and more particularly, the retrospective effect given thereto, completely

annihilated the vested rights for being considered for the promotion. The

argument of Shri Mishra was that in 1994 interviews, one of the Writ

Petitioners was called, the interviews were also held and it was at that

juncture, that the High Court chose to change the parameters of the

selection, which was totally incorrect. He further pointed out that the said 7

amendments resulted in completely wiping out the chances of one of the

Writ Petitioners particularly and the Private Secretaries generally for being

considered for the promotion, which was a fundamental right under Articles

14 and 16 of the Constitution of India. According to the Learned Counsel,

therefore, the said amendments were unconstitutional.

5. It is on these rival pleadings that we have to consider the present

controversy.

6. Before we take up the contested issues for consideration, few things

must be noted:-

(i) At this juncture, one of the original Writ Petitioners, who

was called for interview in 1994, but was not called for

the interviews held in 1995 due to the amendment, has

actually been promoted to the post of Assistant

Registrar, though subsequently. Therefore, his

grievance now remains only insofar as the seniority is

concerned.

(ii) That at the stage of the argument, though the Rule was

extensively amended, the challenge was restricted only

to the retrospective operation of the Rule, so amended.

The other changed structure of the Rule was not assailed by the writ

petitioners.

8

7. This means that what falls for our consideration is only the effect of

retrospective operation of the amendment.

8. We have already pointed out the original Rule No. 7 in the opening

paragraphs of this judgment. We will point out now as to what the

amendment was and for that purpose, we will quote the Original Rule No.

7, as amended, from Schedule II:-

"AMENDMENT IN SCHEDULE II

S.No. Category of Minimum Mode of appointment Post Qualification

1. 2. 3. 4.

9

3. Assistant By selection on merit from Registrar confirmed officers of the (Selection category 5, 6 & 7 of Class II Post) mentioned in Schedule I by rotation in the following manner:-

(a) First vacancy shall be filled in from the officers of category 7 of Class II mentioned in Schedule I (Private Secretary).

(b) Second and third vacancies shall be filled in from the officers of categories 5 & 6 of Class II mentioned in Schedule I (Superintendent and Court Masters) and so on. For the purposes of selection, two seniority lists, one of the officers of category 7 of Class II mentioned in Schedule I (Private Secretary) and other jointed seniority list of officers of categories 5 & 6 of Class I (Superintendent and Court Master) shall be maintained.

Provided that if there be no officer available or found not fit for promotion out of the officers falling in consideration zone in any one of the above said categories, the vacancy may be filled from the other category by rotation as above subject to adjustment at the future selection/selections but without prejudice to the seniority of the person (s) already appointed.

The above amendment shall come into force w.e.f. 01.03.1993." 10

A glance at the Rule, therefore, suggests that the Rule now provided

creation of three separate categories and the selection on merit shall be

distributed in the three categories by rotation. Very surprisingly, this part of

the Rule, which challenged the whole tenor of the earlier Rule, was not

challenged before the High Court at the stage of the argument and the

challenge was only limited to the retrospective nature of the amendment,

which was to come in force with effect from 1.7.1973.

9. At the beginning of the debate itself, Shri Mishra, Learned Senior

Counsel appearing on behalf of the respondent, very fairly stated that the

respondents were not subscribing to some uncharitable remarks in the

judgment regarding the amendment process, as well as, the interviews,

which remarks were also directed against the Committee formulated by the

Hon'ble Chief Justice of that Court and Chief Justice himself. It is

unfortunate that such remarks have been passed. The Learned Counsel

submitted that the respondent did not question the bonafides in the matter.

In that view, we will leave the matter at that.

10. The only question that has remained to be decided is as to whether

because of the retrospective nature of the amendment, the amendment

itself could be invalidated to the extent of retrospectivity. In our opinion,

the answer is negative. The High Court has mainly relied on the reported

decision in 1997(6) SCC 623 Chairman, Railway Board & Ors. Vs. C.R.

Rangadhamaiah & Ors. and more particularly, para 24 thereof. Shri 11

Mishra, Learned Counsel for the respondents also very heavily relied on

this decision. The said para 24 is as follows:-

"24. In many of these decision the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions, which had been given retrospective operation, so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant rule, which was sought to be altered with effect from an anterior date and thereby, taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshal Lal Tandon (AIR 1967 SC 1889), B.S. Yadav (AIR 1969 SC 118) and Raman Lal Keshav Lal Soni (1983(2) SCC 33)."

The Learned Counsel pointed out as held by the High Court that any

provision with retrospective operation, having an adverse effect in the

matter of promotion, seniority, substantive appointment etc. of the

employees would be bad in law and would be in breach of Article 14 and

16 of the Constitution of India. The High Court also proceeded to hold that

since one of the Writ Petitioners, who were invited for interview in the year

1994 was not invited in the year 1995, the vested right of the Writ

Petitioner had been adversely affected by the retrospective operation of

the Rules. We must observe that the para is being interpreted in an

erroneous way. Its clear language suggests that where the amendment, 12

having retrospective operation, which has the effect of taking away a

benefit already available to the employee, then such a provision is

arbitrary, discriminatory and violative of the rights guaranteed under Article

14 and 16 of the Constitution of India.

11. Now, we find no discussion in the whole judgment as to what was

the benefit which was available to the said employee. The High Court has

observed that the benefit of consideration, which was available to the Writ

Petitioner No. 8 prior to the retrospective amendment of the Rules, was not

available to him after the amendment of the Rules. In our opinion, this is

an incorrect notion. There can be no benefit of consideration. To be

considered is a right of employee but merely being considered, in itself, is

not a benefit as it may or may not result in the selection or promotion of an

employee and hence it is in the nature of a chance. A mere chance of

promotion being affected by amendment is in our opinion inconsequential.

This Court has time and again held that since promotion is not a right of

the employee, a mere chance of promotion if affected cannot and does not

invalidate the action on the part of employer.

12. That right of consideration may accrue at a particular point of time or

subsequently thereto. Merely because at a particular point of time the

employee is not considered, does not mean the total denial of the

consideration of the employee. In the present case, it is not as if the

concerned Writ Petitioner No. 8 was altogether denied the benefit of 13

consideration for ever. He was undoubtedly considered later on and was

promoted also. Therefore, it is incorrect to say that the amendment had

the effect of denying him the benefit of consideration, which was available

to him. He did continue with that benefit and was actually benefited under

the same.

13. This is apart from the fact that the concept of consideration is an

uncertain concept. One can understand a pension amount which is

already decided or the promotion which is already granted or the seniority

which is already conferred upon or the substantive appointment which is

already made. If the amendment has the effect of denying this crystallized

promotion, seniority or substantive appointment, then certainly the

amendment could be held as arbitrary. But that has not happened here.

Here, no promotion was already granted or seniority already fixed, or any

substantive appointment already made were affected by the retrospective

amendment. The observations in above quoted para 24 have to be

understood in that sense.

14. The Writ Petitioners did not challenge the creation of three seniority

lists. Earlier, there used to be one single seniority list for the three

categories of employees. After the amendment, it was converted into

three separate seniority lists, also introducing the rotational promotion, vis-

`-vis, the post. This made a huge difference in the inter-se seniority of the

three categories. In fact, in the Writ Petition, though originally the whole 14

amendment was challenged, the challenge to the substantive amendment

creating three separate seniority lists and providing a principle of rotational

promotion was given up. If the Writ Petition had to be allowed, then it was

imperative that the fault should have been found not only with retrospective

effect. Then the whole amendment would have been rendered invalid.

But that did not happen. The Writ Petitioners severed the retrospectivity

part from the other aspects of formulation of three separate seniority lists

and rotational promotion; thereby they gave a complete go-by to the

seniority issue. In short the petitioners contended that they had no difficulty

in the preparation of three seniority lists and the principle of rotational

promotion which substantially affected the otherwise available chances of

promotion to them (private secretaries). Their sole contention was "please

do not apply these rules to us. The rules may be alright for others who

may be in the queue." We fail to understand this stance.

15. The High Court then proceeded to hold that a vested right of

consideration was affected by the retrospective operation of the

amendment and hence the amendment was bad. Shri Mishra, Learned

Counsel for the respondents also pressed the same contention. According

to the Learned Counsel, the denial of consideration was writ large,

particularly in respect of the Writ Petitioner No. 8 since he was actually

called for interview in the year 1994, but not in 1995, after the amendments

were made applicable retrospectively. It was pointed out that a particular

individual, after the amendments, was pushed back substantially. The 15

Learned Counsel also grudged that even when the interviews were

conducted in 1994, yet no appointments were made and instead, the

Committee recommended framing of fresh Rules with the result that some

persons who were the Private Secretaries were denied the chance of

being considered for promotion. The Learned Counsel feebly complained

against this and tried to address us that the recommendations of the

Committee should have been accepted by the Hon'ble Chief Justice of that

Court and no amendments should have been made, affecting the rights of

those who were interviewed in 1994. At this juncture itself, we must make

it clear that such was not the challenge. We have already clarified that it is

difficult to find out any lack of benefits on the part of either the Committee

or the Hon'ble the Chief Justice. The amendments were necessitated on

account of the imbalance in between the three parallel posts of Private

Secretaries, Court Masters and the Superintendents. The statistics itself

suggested that out of the 9 existing Assistant Registrars, 7 were from the

category of Private Secretaries. Once these three posts were held to be

the parallel posts, it was thought unfair that only one category of Private

Secretaries, sheerly on the basis of their number, could walk away with the

maximum number of promotional posts. We do not see anything wrong in

such thinking on the part of the High Court. It was perfectly reasonable to

make the efforts to remedy the imbalance in between the three posts,

which were on the same level. As we have already pointed out, there

could be no question about the bonafides in bringing about these 16

amendments. That was the need of the day and was rightly done.

16. The only question is as to whether the amendments could be

introduced with effect from 1.7.1993. Here, it must be pointed out that the

last appointment to the post of Assistant Registrar was made just about a

month before that date. Thereafter, there were no appointments of the

Assistant Registrar. Since the 5 posts were to be filled-in in the next

interview as per the existing Rule, it was obvious that the same imbalance

would have been perpetuated further. Once a decision was taken to

remedy the imbalance amongst the three posts, it was pointless to create

further imbalance and, therefore, the High Court was right in deciding to

apply the amendments with effect from 1.7.1993. At least on this count,

we do not find any fault with the retrospectivity of the amendments. That

was the need of the day and indeed the imbalance would have affected the

morale of the other two categories, namely, Superintendents and Court

Masters.

17. The things do not stop here. The substantial argument is that in this,

the vested right of consideration was being affected. We have already

explained the observations in para 24 of the judgment in Chairman,

Railway Board & Ors. Vs. C.R. Rangadhamaiah & Ors. (cited supra).

We have also indicated as to how those observations have to be read and

understood. In our opinion, when the Writ Petitioners suggested that their

vested rights or accrued rights were affected because of the retrospective 17

operation, they completely forgot that the observations pertained to the

benefits which were already made available. We have, in the earlier

paragraphs, already explained this concept.

18. The High Court has relied on a decision in S.B. Mathur Vs. Chief

Justice of Delhi (cited supra). Very significantly, this decision also

related to the selection to the same post of Assistant Registrar or the same

three categories with which we are concerned here. There, the Writ

Petition was filed by the Superintendents, objecting to their being treated

on par with Private Secretaries and the Court Masters and being included

in the joint seniority list alongwith them for the purposes of promotion to the

next higher post of Assistant Registrar. It was submitted that the three

categories could not be treated as equal status posts, as the duties etc. for

all the three posts were different. That challenge was repelled by this

Court by holding that it was not necessary that the duties must be same.

The Court held that for treating the certain posts as equated posts or equal

status posts, even the sources of recruitment need not be the same nor

the qualifications for appointment have to be identical. The Court held that

all that was reasonably required was that there must not be such

difference in the pay scales or qualifications of the incumbents of the posts

concerned or in their duties or responsibilities or regarding any other

relevant factor, that it would be unjust to treat the posts alike. The Court

also noted that there was no challenge to the validity of Delhi High Court

Staff (Seniority) Rules, 1971 generally or any other Rule particularly and, 18

therefore, even if the duties and responsibilities attached to these posts

were not the same, they were not so materially different as to render it

inequitable that they should be treated on the same footing for the

purposes of promotion and transfer. Ultimately, the Court repelled the

argument that the three posts could not be treated as of equal status.

19. The High Court has quoted a paragraph from the said judgment and

referred to the argument on behalf of the Writ Petitioners that the issue of

selection to the posts of Assistant Registrar on the basis of joint seniority of

Superintendents/Court Masters and Private Secretaries already stood

settled by this Court and, therefore, the High Court had no power to amend

the Rules by way of retrospective effect. The High Court also noted the

further arguments that by way of retrospective amendment, the effect of

the decision of this Court could not be set at naught. The High Court also

referred to the decision in Tamil Nadu Teachers Association Vs. State

of Tamil Nadu reported in AIR 1998 SC 2267. While commenting on the

case of S.B. Mathur Vs. Chief Justice of Delhi (cited supra), the High

Court observed:-

"We have perused the judgment of the Supreme Curt in S.B. Mathur's case (supra), heavily relied upon by the learned counsel for the petitioners. The process of making appointments to the post of Assistant Registrar in Delhi High Court was dealt with in details by the Supreme Court. Right to combine seniority list, as well as, the promotional opportunities provided in the pre-amended rules became crystallized in the said writ of mandamus issued by the Supreme Court and the same could not be taken away by resorting to the rule making power by respondent Nos. 1 & 2. There is no change in the 19

circumstances. The amendment could only be made when there is such a change in the circumstances that in the given circumstances, the Supreme Court would not have passed such an order." (Emphasis Supplied)

20. In our opinion, the observations are erroneous. True it is that in

case of S.B. Mathur Vs. Chief Justice of Delhi (cited supra), this Court

came to the conclusion that the Rules and more particularly, the Rule

regarding equal status of the three categories were found to be valid

Rules, however, to express that any right to combined seniority list was

created thereto, is completely incorrect. There is no such right. What was

found by this Court was that the Rule for the combined seniority list was

valid and nothing more. There was no question of any right to combined

seniority list. Further, there was no question of any promotional

opportunities becoming crystallized. As we have explained earlier, the

promotional opportunities never became crystallized. What can be

crystallized is a factum of promotion itself and not a chance of promotion.

Last but not the least, there was no mandamus issued by this Court in the

aforementioned judgment. Completely erroneous observation has been

made that a mandamus was issued by this Court and that the same could

not be nullified by resorting to the Rule making power by respondent Nos.

1 & 2 (therein) since there was no change in the circumstances. A further

observation is also incorrect that the amendment could only be made when

there is a change in circumstances. The need for the amendment could

even be felt because of the change of the policy. If the High Court came to

the conclusion that there was any need for amendment on the factual 20

situation, the amendment could always be made. In the present case, the

amendment was necessitated on account of the statistics of promotions to

the three categories, where the Private Secretaries had almost

monopolized the same. Therefore, there was nothing wrong with the

amendments. This Court had also not given any mandamus that the

promotions would only be in the light of the existing Rules and in no other.

The Court had simply approved of the Rules, as they then stood, providing

for the equal status of the three categories and the combined seniority list

for them. This did not mean that this Court directed that there could be no

change in the modality or that there could be no three separate seniority

lists from the three categories. In our opinion, the judgment is completely

misunderstood by the High Court.

21. Further, if this was the situation found by the High Court that the

Rule could not be changed by amendment, the High Court could have and

should have found fault with the whole amendment, not only the

retrospectivity aspect thereof. But that has not happened. The High Court

has not invalidated the amendments, creating three seniority lists for the

three categories and introducing the principle of rotational promotion. It

has only found fault with the retrospectivity. We have already pointed out

that the retrospective effect given to the amendments was after

consideration of material statistics. Further, the date fixed was also

relevant, as it was immediately after the last promotion was effected. We,

therefore, find no fault with the retrospective aspect and in our opinion, the 21

High Court has wrongly found fault with the retrospective aspect on the

incorrect logic that the amendments affected any absolute vested or

accrued rights of being considered. There is no such absolute accrued or

vested right of consideration, which could not be affected by the

retrospective amendments. The only condition is that such retrospective

amendments should be constitutionally valid.

22. In the decision in N.T. Devin Katti and & Ors. Vs. Karnataka

Public Service Commission and & Ors. reported in 1990 (3) SCC 157,

the Court was considering the right of the candidates to be considered.

The question in that case was that as to which Rules were applicable,

particularly, when there were amendments in the Rules after the

advertisement was issued. The Court clearly held that under such

circumstances, normally the existing Rules on the date of advertisement

would be applicable, however, if there is an amendment in the Rule with

retrospective effect, then it would be the amended Rules, which would be

applicable. The Court observed that it was on the date of the

advertisement that the right of the candidate crystallizes. However, the

Court observed that he had no absolute right in the matter. The Court

further observed:-

"............If the Recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules."

The Court also observed that:-

22

"a candidate, on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection in accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature." (Emphasis supplied).

This judgment was relied upon further in case of Marripati Nagaraja

& Ors. Vs. Government of Andhra Pradesh & Ors. reported in 2007(11)

SCC 522. This Court observed:-

"The State, in exercise of its power conferred upon it under the proviso to Article 309 of the Constitution is entitled to make rules with retrospective effect and retroactive operation. Ordinarily, in the absence of any rule and that too a rule which was expressly given a retrospective effect, the rules prevailing as on the date of the notification are to be applied. But, if some rule has been given a retrospective effect which is within the domain of the State, unless the same is set aside as being unconstitutional, the consequences flowing therefrom shall ensue. In such an event, the applicable rule would not be the rule which was existing, but the one which had been validly brought on the statute book from an anterior date..............."

In Virender Singh Hooda & Ors. Vs. State of Haryana & Anr.

reported in 2004(12) SCC 588, in paragraph 45, this Court recognized the

power and competence of the Legislature to make a valid law and make it

retrospectively, so as to bind even past transactions. In para 67 and 68,

the Court explained the aspect of retrospectivity and came to the

conclusion that there was nothing wrong if the Legislature had removed

the basis of the decision of this Court by repealing the circulars. It further

observed that:-

23

"............the candidates have the right to the posts that are advertised and not the ones which arise later for which a separate advertisement is issued. A valid law, retrospective or prospective, enacted by the legislature cannot be declared ultra vires on the ground that it would nullify the benefit which otherwise would have been available as a result of applicability and interpretation placed by a superior Court.

The decision in the case of Chairman, Railway Board (cited

supra) was specifically considered in para 70 of the judgment. The Court

reiterated the observation made in that case that a Rule, which seeks to

reverse from an anterior date a benefit which has been granted or availed

of e.g. promotion or pay scale, can be assailed as being violative of

Articles 14 and 16 of the Constitution to the extent it operates

retrospectively. We have already pointed out that it is only to this extent

that the retrospectivity can be challenged. However, for that there has to

be a tangible benefit awarded like promotion or pay-scale or a rate of

pension. Such is not the state of affairs in the present case. The Court

also made reference to the decision in State of J&K Vs. Triloki Nath

Khosa reported in 1974(1) SCC 19, wherein it was held that impugned

Rules did not recall a promotion already made or reduce a pay-scale

already granted.

23. In short, law regarding the retrospectivity or retroactive operation

regarding the Rules of selection is that where such amended Rules affect

the benefit already given, then alone such Rules would not be permissible

to the extent of retrospectivity.

24

24. We are unable to agree with the judgment of the High Court and

would choose to set aside the same. It is accordingly set aside.

Accordingly, the Writ Petitions filed before the High Court are also

dismissed. However, in the circumstances, there shall be no orders as to

the costs.

....................................J. (Tarun Chatterjee)

.....................................J. (V.S. Sirpurkar) New Delhi May 15, 2009 25

Digital Performa

Case No. : Civil Appeal Nos. 6397-6398 of 2001 With Civil Appeal Nos. 6399-6400 of 2001

Date of Decision : 15.05.2009

Cause Title : High Court of Delhi & Anr.

Versus A.K. Mahajan & Ors.

With

J.P. Aggarwal & Ors.

Versus A.K. Mahajan & Ors.

Coram : Hon'ble Mr. Justice Tarun Chatterjee Hon'ble Mr. Justice V.S. Sirpurkar

C.A.V. On : 5.5.2009

Judgment delivered by : Hon'ble Mr. Justice V.S. Sirpurkar

Nature of Judgment : Reportable