TMI Blog2009 (5) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... er-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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 retrospecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointment, 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 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 Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff (Seniority) Rules, 1971 generally or any other Rule particularly and, 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 rotatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hasis 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 transa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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