“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

J U D G M E N T

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  

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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  

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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  

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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  

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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.

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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  

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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.

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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  

Post Minimum  

Qualification Mode of appointment

1. 2. 3. 4.

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3. Assistant  Registrar  (Selection  Post)

By  selection  on  merit  from  confirmed  officers  of  the  category 5, 6 & 7 of Class II  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.”

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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  

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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,  

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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  

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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-

à-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  

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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  

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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  

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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  

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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,  

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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  

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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  

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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  

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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:-

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“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:-

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“…………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.

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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

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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

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