TMI Blog2011 (4) TMI 1525X X X X Extracts X X X X X X X X Extracts X X X X ..... otally against any established procedure of law. This is evident from the Constitution Bench decision of this Court in Chairman, Railway Board v. C.R. Rangadhamaiah [ 1997 (7) TMI 662 - SUPREME COURT] . 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. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 journalism in Hindi. As far as promotions were concerned, it was stipulated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 94. 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 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 v. 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 retr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 v. Madangopal AIR 1954 SC 158, Jawaharlal v. State of Rajasthan AIR 1966 SC 764 (770), Tata Iron and Steel Co. Ltd. v. State of Bihar AIR 1958 SC 452, D.G. Gouse and Co. v. State of Kerala, AIR 1980 SC 271 (para 16), Shetkari Sahkari Sakhar Karkhana Ltd. v. 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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