TMI Blog1984 (4) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... gmen to join the military service at the risk of their lives to serve the nation to cope with the emergency needs of the Government of India. The Government of India as well as the State Governments decided to give certain benefits to encourage the young energetic youths to join military service at the critical juncture of national emergency. The Government in the States and the Centre issued different circulars and advertisements on radio and the press promising certain benefits to be given to yougmen who join the military service at the critical juncture. In July 1963 a circular was issued by the Financial Commissioner, Punjab with regard to the concessions to civilian employees and others who joined military service, which will account for increments, seniority and pension in civil employment. Later on, on the instructions of the Central Government concessions as were promises through circulars and by other means were incorporated in the rules framed by the joint Punjab Government under Article 309 of the Constitution. Keeping in view the needs of the country and assurances contained in conditions of service in executive instructions the petitioners and the appellants and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 309 of the Constitution which are called `The Punjab National Emergency (Concession) Rules, 1965. The relevant rules 2, 3, 4, and 5 of these rules are as under : 2. Definition :- For the purpose of these rules, the expression `military service' means enrolled or commissioned service in any of the three wings of the Indian Armed Forces (including service as a Warrant Officer) rendered by a person during the period of operation of the proclamation of emergency made by the President under Article 352 of the Constitution of India on the 26th October, 1962 or such other service as may hereafter be declared as military service for the purposes of these rules. Any period of military training followed by military service shall also be reckoned as Military Service. 3. Maximum age-limit and minimum qualification : i) The maximum age-limit prescribed for appointment to any service or post shall be relaxed in favour of a person who has rendered military service to the extent of his military service, provided he produces a certificate from the competent authority that he had rendered continuous military service for a period of not less than six months and was discharged because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may also be allowed to count for pension in exceptional cases under the orders of the Government. 5. Seniority, promotion, increment, pension and leave of Government employees:- The period spent on military service by a Government employee shall count for seniority promotion, increment and pension in the service or post held by him immediately before his joining military service. A permanent Government employee who renders military service, shall earn leave during such service according to the leave rules applicable to him immediately before his joining military service. A temporary Government employees shall during military service, be governed by the military rules in all respects. The employee concerned shall be entitled to proforma promotion in his parent department under the 'next below' rule and also to seniority in higher posts to which he would otherwise have been entitled if he had not joined military service. According to these rules and the previous assurances given by the Government the petitioners were to be given seniority by counting period of military service for the purpose of determining seniority, increments and pension etc. Immediately on appointm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court and they gave rise to civil appeal Nos. 3096 and 3095 of 1980 respectively. Some of the ex-military officers have filed writ petitions directly before this Court under Article 32 of the Constitution and they are writ petition Nos. 6436 and 6437 of 1980. The petitioners in the writ petitions under Article 226 of the Constitution before the High Court challenged the amendment of the Punjab Government National Emergency (Concession) Rules 1965 with retrospective effect as violative of Arts. 14, 16, 19,31 and 311 of the Constitution and prayed for the following relief: 1. The Punjab Government National Emergency (Concession) Haryana First Amendment Rules, 1976 be declared ultras. Article 16 of the Constitution of India. 2. A writ in the nature of certiorari quashing the seniority list of Haryana Service of Engineers, PWD (B R Branch), Class II be issued. 3. A writ in the nature of mandamus directing respondents 1 and 2 to declare the petitioners senior to respondents. The High Court came to the conclusion that the petitioners have availed of the concession under sub-rule (3) of rule 3 of 1965. Rules inasmuch as the educational qualifications in the case of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill not be according to law. It may be pointed out at the very outset that the Parliament as also the State Legislature have plenary powers to legislate within the field of legislation committed to them and subject to certain constitutional restrictions they can legislate prospectively as well as retrospectively. It is, however, a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect. But the rule in general is applicable where the object of the statute is to affect the vested rights or to impose new burden or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to effect existing rights, it is deemed to be prospective only. Provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. The Governor can also exercise the same powers under Art. 309 of the Constitution and there is not the slightest doubt that the impugned amendment brought in has been made retrospective. The impugned amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyment was not a bar to appointment to the service ? We do not think that we will be justified in attributing such an unreasonable intention to the rule-making authority. In our view, the only reasonable interpretation of the amended rule, consistent with the prevailing situation, is to hold that only those persons who having joined the service of the Union or the State or a post under the Union or the State previously continued to hold the post on the date of the coming into force of the rule, are excluded from appointment to the Punjab Civil Service (Judicial Branch). The expression 'joined or joins' must be given a reasonable interpretation in the context of the situation and we think that our interpretation does not strain the language or attributes unreasonableness to the rule-making authority. In that view, the petitioner cannot be said to be ineligible for appointment. Next reliance was placed upon Ex-Major N.C. Singhal v. Director General, Armed Forces Medical Service. In that case the conditions of service of the appellant were governed by paragraph 13 of the Army Instruction No I/S of 1954 and his previous full pay commissioned service should have been taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no element of retroactivity involved. Of course, the rules will not operate to deprive any person of promotions already earned in the past, but, for purposes of future promotions and seniority in the department, the principles laid down in the impugned rule will necessarily govern all the personnel alike. This case instead of supporting the contention of Shri Mahajan goes to strengthen the contention raised on behalf of the appellant and the petitioners. Much emphasis was laid by Shri Mahajan on the case of B.S. Vadera v. Union of India Ors. In that case the petitioners, who were working as Assistants, were reverted as Upper Division Clerk in 1967 by the operation of the Railway Board's Secretariat Clerical Service (Reorganisaion) Scheme. The said scheme was framed on February 5, 1957 but was brought into effect from December 1, 1954. Certain modifications to the scheme relating to the manner of filing up of permanent and temporary vacancies in Grade I of the Service were made in 1963. The petitioners challenged the orders of reversion as illegal inasmuch as their promotion as Upper Division Clerks and later as Assistants had been on a permanent basis and could not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs under the Bombay District Municipal Act and the Bombay Municipal Boroughs Act, as applied to areas in the State of Gujarat, were converted into Gram and Nagar Panchayats under section 307 of the Gujarat Panchayats Act and all officers and servants in the employ of such municipalities became officers and servants of interim Panchayats and allocated to the panchayat service. Thus, secretaries and officers of dissolved municipalities also became secretaries and officers of Gram and Nagar panchayats. District Local Boards constituted under the Bombay Local Boards Act stood dissolved on the passing of the Gujarat Panchayats Act and all officers and servants in the employment of the Board were deemed to be transferred to the service of the successor District Panchayat under section 326 of the Gujarat Panchayats Act. Also allocated to the panchayat service were those government servants who are transferred to the panchayat under section 157 and such other officers and servants employed in the state service as were necessary. All these secretaries, officers and servants became members of a service under the State as soon as they were allocated to the panchayat service But, by the Amendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rigin. Such a classification would be unreasonable and entirely irrelevant to the object sought to be achieved. It is to navigate around these two obstacles of Article 311 and Article 14 that the Amending Act is sought to be made retrospective, to bring about an artificial situation as if the erstwhile municipal employees never became members of a service under the State. Can a law be made to destroy today's accrued constitutional rights by artificially reverting to a situation which existed 17 years ago ? No. The legislation is pure and simple self-deceptive if we may use such an expression with reference to a legislature made law. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution and have to conform to the dos and don'ts of the Constitution, neither prospective nor retrospective laws can be made so to contravene fundamental rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say 20 years ago the parties had no ri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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