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PETITIONER: S.S. BHOLA & ORS.

       Vs.

RESPONDENT: B.D. SARDANA & ORS.

DATE OF JUDGMENT:       11/07/1997

BENCH: G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK, J.      I have  gone through  the erudite  judgment prepared by Brother  Ramaswamy.   J.  and   having  given   an   anxious consideration  to   the  conclusions  arrived  at  I  am  in respectful disagreement  with the  same. Taking into account the fact  that Brother  Ramaswamy, J.  would be demiting his office on  13th of  July, 1997, and the short time I have at my disposal  I have  not been  able to be as elaborate as my brother. But  the two broad features which have persuaded me to take  a contrary  view are that the implementation of the conclusions arrived  at by  Brother Ramaswamy, J. would lead to a  situation where a direct recruit like Mr. B.D. Sardana as an  Assistant Executive  Engineer in  the year 1977 would become senior to the promotees like Shri S.S. Bhola who were promoted as  Executive Engineer way back in 1971 long before the entry of Mr. Sardana into the services. Further when the legislatures being  aware of  the aforesaid gross inequities and anomalous situation have come forward with a legislation by enacting  an Act  and giving it retrospective effect from the date  the State of Haryana came into existence the Court should try  to sustain the Act unless the Act is found to be repugnant to  any of  the constitutional provision. With the aforesaid background  I have  endeavoured broadly  with  the questions that arose for consideration.      These appeals  by Special Leave as well as the Transfer Cases relate  to the  age old problem in almost all services i.e. determination  of inter-se seniority between the direct recruits and promotees within a cadre. These cases arise out of the  directions of  this Court in two cases, namely, A.N. Sehgal and others vs. Raje Ram Sheoran and others 1992 Supp. (1) Supreme  Court Cases  304 and S.L. Chopra and others vs. State of  Haryana and  others - 1992 Supp. (1) Supreme Court Cases 391  and the seniority list drawn up by the Government of Haryana  pursuant to  the  aforesaid  direction  and  the intervention by  the legislators  in enacting  an Act called the  haryana   Service  Engineers,  Class  I,  Public  Works Department  (Building   and  Roads  Branch),  Public  Health Branch)  and  (Irrigation  Branch)  Act,  1995  (hereinafter referred to as "the Act"). Civil appeals nos. 422/93, 423/93

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and 424/93,  Writ Petition No. 582/95, and Transfer Case No, 44/96 relate  to Public  Health Branch and the orders passed by the  State Government  determining the inter se seniority in the  said Branch. Out of these three Civil Appeals one is by the  State of  Haryana and two others are by the promotee affected officers  belonging to the Public Health Branch and they are  aggrieved by the judgment of the Division Bench of the Punjab  and Haryana High Court in Letters Patent Appeal. Writ Petition  No. 582/95  is by direct recruit B.D. Sardana under  Article   32  of  the  Constitution  challenging  the validity of  the Act  and praving for direction to grant him seniority  just   below  the   10  officers   who  initially constituted the  service when the State of Haryana came into existence. Transfer  Case No.  44/96 had  also been filed by direct  recruit   in  the  Punjab  and  Haryana  High  Court challenging  the   validity  of   the  Act  which  has  been transferred pursuant  to the  orders of  this  Court.  Civil Appeal Nos.  1448-49/93 filed  by the State and Civil Appeal Nos. 1452-53/93  filed by the promotee officers belonging to the Irrigation  Branch are  directed against the judgment of the Division  Bench of  the Punjab and Haryana High Court in Letters Patent  Appeal which  arose out  of a  Writ Petition filed by  one M.L.  Gupta who  was directly  appointed as an Assistant Executive Engineer on 27.8.1971. Transfer Case No. 40/96 is  the Writ  Petition filed by Shri Gupta challenging the validity  of the  Act which  stood transferred  to  this Court pursuant  to the orders of this Court. The brief facts leading to the enactment of the Act may be stated as under:-      The separate  State of  Haryana came  into existence on 1.11.1966. When  Punjab and  Haryana   was  one  State,  the recruitment and  conditions of  service of  Engineers in the State was being regulated by Rules framed by the Governor of Punjab in  exercise of  powers conferred  by  proviso  under Article 309  of the  Constitution. The  set of Rules dealing with the  Engineers of  the Public  Health Branch was called "The  Punjab   Service  Engineers,  Class  I,  Public  Works Department (Public  Health Branch) Rules 1961. A similar set of Rules  had also been framed by the Governor under Proviso to  Article  309  of  the  Constitution  for  the  Engineers belonging to the Roads and Building Branch called the Punjab Service of  Engineers,  Class  I,  Public  Works  Department (Roads and  Buildings Branch) Rules, 1960. The provisions of these two  rules are  almost identical. A third set of Rules also had been framed by the Governor for Engineers belonging to the  Irrigation Branch,  called "The  Punjab  Service  of Engineers, Class  I.  Public  Works  Department  (Irrigation Branch) Rules.  After the  formation of the State of Haryana the Government  of Haryana  adopted all  the aforesaid three Rules to  deal with  the service conditions of the Engineers belonging to  the three  branches, namely, the Public Health Branch, the  Roads and  Buildings Branch  and the Irrigation Branch. The dispute relating to the fixation of seniority of promotees and  direct recruits  in the  Roads and  Buildings Branch came  up for  consideration before  this Court in the case of  A.N. Sehgal  and others  vs. Raje  Ram Sheoran  and others -  1992 Supp  (1) Supreme  Court Cases  304, and this Court after thorough analysis of different provisions of the Rules relating to the Roads and Buildings Branch interpreted the Rules  of  seniority  and  directed  the  Government  of Haryana to  determine the  cadre post regularly from time to time and  to issue  orders appointing  substantively to  the post within  the quota  and determine the inter se seniority between  the  promotees  and  the  direct  recruits  in  the respective quota  cadre  post  of  Executive  Engineer.  The provisions of  the Public  Health Branch  Rules came  up for

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consideration in  the case of S.L. Chopra & others vs. State of Haryana  and Others  1992 Supp.  (1) Supreme  Court Cases 391, and the dispute in that case also was the determination of inter  se seniority  between the  direct recruits and the promotees.  This   Court  also   interpreted  the   relevant provisions of  the  Rules  for  determination  of  inter  se seniority in the Public Health Branch and directed the State Government  to  determine  the  cadre  strength  in  Haryana Service of  Engineers, Class  I, PWD  (Public Health Branch) Rules of  the posts  of Executive  Engineer,  Superintending Engineer and  Chief Engineer  and consider  the cases of the appellant in  the said  case as  well as the respondents for promotion  to  the  senior  posts  of  Executive  Engineers, Superintending Engineers  and Chief  Engineers  respectively with  the   respective  quota   of  50  per  cent  and  make appointment if  found eligible and fit for promotion. It may be stated that the Rules relating to Irrigation Branch which is slightly different from both the aforesaid Rules, namely, the Public  Health Branch and Roads and Buildings Branch had never cropped  up for consideration. After the aforesaid two judgments of  this Court  and  pursuant  to  the  directions issued, the  State Government  began the  exercise of fixing the cadre strength during each year commencing from 1966 and also began  determination  of  inter  se  seniority  of  the promotees and  direct recruits in the different posts within the service  and also  drew up  the seniority  list  of  the employees. The  first set  of seniority list was drawn up on 6.4.92 and  being aggrieved  by the said seniority list Writ Petitions were  filed and  the Punjab and Haryana High Court having quashed  the same, Special Leave Petitions were filed in this  Court. During  the pendency  of the  Special  Leave Petitions in  this Court  and prior  to the  hearing of  the cases two  other sets  of seniority lists had been drawn up, one on  13.3.1997  and  another  on  19.3.97  and  strenuous arguments had  been advanced  in support  of and against the aforesaid lists  drawn up by the Government. The main attack to the  aforesaid list is that the earlier directions issued by this  Court in  Sehgal’s case (supra) as well as Chopra’s case (supra)  have not  been duly followed in drawing up the seniority list. Subsequent to the judgment of the Punjab and Haryana High Court striking down the seniority list prepared by the  Government pursuant  to the directions of this Court in Chopra’s case (supra) the Haryana Legislators enacted the Act to regulate the recruitment and conditions of service of persons appointed in all the three branches and the validity of the  said Act  had been  challenged in the Writ Petitions filed in Punjab and Haryana High Court. Those Writ Petitions have been  transferred to  this Court and have been numbered as Transfer  case. Elaborate  arguments were advanced by the counsel  for   parties  challenging   the  validity  of  the aforesaid Act  basically on  the ground  that  it  seeks  to merely annul  the judgment  of this  Court in  Sehgal’s case (supra)  and   in  Chopra’s   case  (supra)   which  is  not permissible in law. It may be stated that if the Act is held to be  valid then necessarily the seniority list drawn up by the State  Government pursuant  to the  directions  of  this Court in  Sehgal’s case  (supra) and  Chopra’s case  (supra) will not  bold good  and a  fresh seniority  list has  to be drawn up as the Act in question has been given retrospective effect with  effect from  the date  of the  formation of the State of  Haryana in November 1966. If the Act is held to be ultra vires  then also  it has  to be  examined whether  the seniority list  drawn up  by  the  State  Government  is  in accordance with the earlier direction given by this Court in Sehgal’s case  (supra) and  Chopra’s case (supra) and if not

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what further directions are necessary? It is in this context it must  be borne in mind that in the earlier cases only the principles of  determination of  inter se  seniority between the direct  recruits and  the promotees  had been considered and adjudge  bet as  to how  the initial  allottees  to  the services would be considered there was no adjudication in as much as that question did not crop up for consideration.      So far as the public health branch is concerned, on the date of  the formation  of the  State of  Haryana 14 persons were brought from the erstwhile Punjab cadre of Engineers of constitute the  initial cadre  in the  State of  Haryana and since the  cadre strength of the service in Haryana was only 10, four  of these  persons were  adjusted against  ex-cadre post. While bringing persons from the erstwhile Punjab cadre to Haryana  the relevant  Rules  and  the  quota  of  direct recruit and  promotees in  the service had not been borne in mind and  officers were  brought from  the erstwhile  Punjab cadre depending upon the domicile of the employees. In other words, those  who belonged to the Haryana State were brought over to  Haryana cadre  and in regulating the cadre strength the ratio  between direct  recruits  and  promotees  as  per Recruitment Rules  then in  force has  not been observed. In the aforesaid  premises a  question which  would  arise  for consideration and ultimate decision would be as to how these 10 officers  who were brought over from the erstwhile Punjab State and  constituted the initial cadre strength of service in Haryana  would be  dealt with? This question had not been dealt with  either in  Sehgal’s case  or  in  Chopra’s  case referred to  supra. At this stage it would be appropriate to notice as  to what  was decided  by this Court in Sehgal and Chopra. Sehgal deals with roads and building branch. In that case, one,  R.R. Sheoran  challenged Gradation  List and the seniority assigned  to Sehgal  and others  by filing  a writ petition in  Punjab and  Haryana High  Court.  The  Division Bench of  the High  Court came  to hold  that Sheoran  was a member  of   the  service  from  the  date  of  his  initial appointment as  Assistant Executive  Engineer whereas Sehgal and others  who  were  promoted  were  not  members  of  the service. This  decision was challenged by Sehgal, a promotee officer and  it was  agreed between  the parties  that  this Court would  decide the  principles on  consideration of the Rules and  leave the  matter for  the  State  Government  to determine the  inter se  seniority by  applying the law. The Court considered Rule 3(1), Rule 3(2), Rule 5(1)(a), Rules 6 and 7,  Rule 11(1),  Rule 12(3) and sub-rule (12) of Rule 2. This Court  came to  the conclusion  that a  direct  recruit would always  be recruited  and appointed  to a  substantive vacancy and  from the  date he  starts discharging  the duty attached to  the post  he is a member of the service subject to his successfully completing the probation and declaration thereof at a later date and this appointment related back to the date  of  initial  appointment,  subject  to  his  being discharged from service on failure to complete the probation within or  extended period  or termination  of  the  service according to rules. So far as a promotee is concerned it was held  that   a  promotee   would  have  initial  officiating promotion to  a temporary vacancy or substantive vacancy and on successful  completion and  declaration of the probation, unless reverted  to lower  posts, he awaits appointment to a substantive vacancy.  Only on  appointment to  a substantive vacancy he becomes a member of the service. It was also held that a direct recruit appointed to an ex-cadre post alone is a member  of the  service even  while on  probation and Rule 2(12)(a) applies to them and it does not apply to a promotee from Class II service. This Court also held:

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    "on a  conjoint  reading  of  Rules      12(3) and  12(5) it  is clear  that      the  year   of  allotment   of  the      Assistant Executive Engineer in the      post of  Executive Engineer,  shall      be the  calendar year  in which the      order of  appointment as  Assistant      Executive Engineer  had been  made.      Thus  his  seniority  as  Executive      Engineer, by  fiction of law, would      relate back  to his date of initial      appointment as  Assistant Executive      Engineer and  in  juxtaposition  to      Class  II  officers’  seniority  as      Executive Engineer is unalterable".      Since  Shri  Sheoran  was  appointed  as  an  Assistant Executive Engineer  on August 30, 1971, it was directed that his seniority  as Executive  Engineer shall  accordingly  be reckoned. While  interpreting Rule  5(2) and proviso thereto it was  held that  the intendment appears to be that so long as the direct recruit Assistant Executive Engineer, eligible and considered  fit for  promotion  is  not  available,  the promotee from  Class II  service in  excess of  the quota is eligible to occupy in officiating capacity the senior posts, i.e., Executive  Engineers  and  above.  The  moment  direct recruits are available, they alone are entitled to occupy 50 per cent  of their  quota posts and the promotees shall give place to  the direct  recruits. On  the question what is the date from  which the  seniority of  a promotee  as Executive Engineer shall  be reckoned,  the Court held that a promotee within quota  under Rule  5(2) gets  his seniority  from the initial date  of his promotion and the year of allotment, as contemplated in  Rule 12(6)  shall be  the next  below  ‘the juniormost officer  in the  service whether  officiating  or confirmed  as   Executive  Engineer   before  the   former’s appointment’ counting  the entire officiating period towards seniority, unless  there is break in the service or from the date  of   later  promotion.  Such  promotee,  by  necessary implication, would  normally become  senior  to  the  direct recruit promoted  later. Combined operation of sub-rules (3) to (5)  of Rule  12 makes the direct recruit a member of the service of  Executive Engineer  from the  date  of  year  of allotment as  an Assistant Executive Engineer. The result is that the  promotee occupying  the posts  within 50  per cent quota of  the direct recruits, acquired no right to the post and should yield to direct recruit, though promoted later to him, to  the senior  scale posts  i.e., Executive  Engineer, Superintending Engineer and Chief Engineer. The promotee has right to confirmation in the cadre post as per Rule 11(4) if a post  is available  to him  within his quota or at a later date  under   Rule  5(2)  read  with  Rule  11(4)  and  gets appointment under  Section 8(11).  His  seniority  would  be reckoned only  from the date of the availability of the post and the  year of  allotment, he  shall be  next below to his immediate senior  promotee to that year or the juniormost of the  previous  year  of  allotment  whether  officiating  or permanent occupying  the post  within 50 per cent quota. The officiating period  of the  promotee between  the  dates  of initial promotion  and the  date of  the availability of the cadre post  would thus  be rendered  fortuitous  and  stands excluded. A  direct recruit  on promotion  within the quota, though later  to the  promotee is  interposed in between the periods and  interjects the promotee’s seniority’s snaps the links in the chain of continuity and steals a march over the approved promotee  probationer. Harmonious  construction  of

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Rules 2(1),  2(2), 2(7), 2(10), 2(12), 2(12)(a), 5(2)(a), 8, 9(2), 11,  12(3), 12(5)  to 12(7)  would yield  to the above result, lest the legislative animation would be defeated and the rules  would be  rendered otiose  and surplus.  It would also adversely  affect the  morale  and  efficiency  of  the service. Mere  officiating appointment  by  promotion  to  a cadre post outside the quota; continuous officiating therein and declaration  of probation  would not clothe the promotee with any  right to claim seniority over the direct recruits. The necessary  conclusion  would,  therefore,  be  that  the direct recruits  shall get  his   seniority with effect from the date of the year of the allotment as Assistant Executive Engineer which  is not alterable. Whereas the promotee would get his seniority w.e.f. the date of the availability of the posts within 50 per cent quota of the promotees. The year of allotment is  variable and  the seniority  shall be reckoned accordingly. Appointment to the cadre post substantively and confirmation thereof  shall be  made under  Rule 8(11)  read with Rule  11(4) of the Rules. A promotee Executive Engineer would only  then become  member of  the service.  ‘Appointed substantively’ within the meaning of the Rule 2(12)(a) shall be  construed   accordingly.  We,   further  hold  that  the seniority of the promotee from Class II service as Executive Engineer shall  be determined  with effect  from the date on which the  cadre post was available to him and the seniority shall be  determined  accordingly."  Ultimately  this  Court directed the  Government of  Haryana to  determine the cadre posts, if  not already  done, regularly  from time  to  time including the  post created  due to exigencies of service in terms of  Rule 3(2)  read with  Appendix ‘A’  and allot  the posts in  each year  of allotment as contemplated under Rule 12 read  with  Rule  5(2)(a)  and  issue  orders  appointing substantively to  the respective  posts within the quota and determine the  inter se  seniority  between  the  appellants therein who  were promotees  and Sheoran, direct recruits in the respective  quota cadre posts of Executive Engineer. The Court also  held that  the inter  se seniority of the direct recruits and  promotees shall  be determined  in  accordance with the principles laid down.      In S.L.  Chopra’s case,  which deals with Public Health Branch, this  Court held  that direct recruits get seniority from the date of appointment as Assistant Executive Engineer and it  is unalterable.  But  the  promotee’s  seniority  is variable by  operation Rules  8(11) and  11(4); 2(12)(a) and 5(2) of  the Rules.  The State  Government  was  accordingly directed to  determine the   cadre  strength in  the Haryana Service of  Engineers, Class  I PWD  (Public Health  Branch) under  the   rules,  Executive   Engineers,   Superintending Engineers and  Chief Engineers and consider the cases of the appellants therein  as well  as the  contesting  respondents B.D. Sardana,  F.L. Kansal for promotion to the senior posts of Executive  Engineers, Superintending  Engineers and Chief Engineers respectively  with the  respective quota of 50 per cent and  make appointment  if found  eligible and  fit  for promotion. In  the   said case  the appellant was a promotee and the respondents were direct recruits.      The seniority list which was drawn up on 6.4.92 assumed that out  of ten  incumbents who  originally constituted the service in  the Public Health Branch five have to be treated as directed  recruits fictionally  under Rules 5(3) and 5 as promotees so  that the  disparity  in  the  ratio  will  not influence the future promotion. The seniority list which was drawn up  on 19.3.97  took  the  ten  incumbents  originally constituted service  belonging to  the  quota  of  promotees since factually  all of them were promotees under the Punjab

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Rules and  then determined  the inter se seniority of direct recruits and  the promotees  by application of law laid down by this  Court in  Sehgal’s case  (supra) and  Chopra’s case (supra).      In course  of his  submissions, Mr. Tulsi appearing for the State  demonstrated that  the Seniority  List which  was drawn up  on 19.3.77  topsy turbid  the position  to such an extent that a direct recruit as Assistant Executive Engineer who was  not even born on the cadre when a promotee had been appointed as  the Executive  Engineer, such  direct  recruit became senior to the promotee Executive Engineer. Such gross inequity which  was resulted  on account of giving effect to the Rules  in force  and interpreted by this Court in Sehgal and  Chopra   persuaded  the  legislature  to  intervene  by enacting the Act and giving it retrospective effect.      Let us now examine the validity of the Act itself which was  challenged  by  the  direct  recruits  in  filing  writ petitions in  the High Court of Punjab and Haryana and those writ petitions  stood transferred to this Court. Mr. Sachar, the leaned  counsel appearing  for the  writ  petitioners  - direct   recruits contended  that the  Act is nothing but an usurpation of  judicial power  by the  legislature to annual the judgments  of this  Court in  Sehgal and  Chopra and  it merely declares  the earlier judgments to be invalid without anything more  and  as  such  is  invalid  and  inoperative. Further the  Act takes  away the rights accrued in favour of the direct recruits pursuance to the judgments of this Court in Sehgal and Chopra and consequently the Act must be struck down. The  learned counsel  also  urged  that  the  mandamus issued by this Court in Sehgal and Chopra has to be complied with and  the State  Legislature has  no power  to make  the mandamus ineffective  by enacting  an Act  to  override  the judgment of this Court which tantamounts to a direct in-road into the  sphere occupied  by judiciary and consequently the Act has  to be  struck down. This argument of Mr. Sachar was also supported  by Mr.  Mahabir Singh,  the learned  counsel appearing for the petitioners in T.P. (Civil) No. 46 of 1997 in his written submissions and it was urged that in any view of  the   matter  the  legislatures  could  not  have  given retrospective operation  to the Act itself with reference to a situation  that was  in existence 25 years ago and such an act of  the legislature  must be  held to  be invalid as was held by  this Court  in the  case of  STATE OF  GUJARAT  AND ANOTHER VS.  RAMAN LAL  KESHAV LAL SONI AND OTHERS. (1983) 2 S.C.C. 33. In elaborating the contention that the Act merely purports to  override the  judgment of  this Court in Sehgal and Chopra  the learned  counsel referred to the Objects and Reasons of  the Act as well as the affidavit filed on behalf of the  State Government  which would unequivocally indicate that the  Act was  enacted to get over the judgments of this Court in Sehgal and Chopra.      Mr. K.T.S.  Tulsi, the  learned senior  counsel for the State of  Haryana and Mr. D.D. Thakur and Dr. Rajeev Dhawan, learned  senior   counsel   appearing   for   the   promotee respondents on  the other  hand contended  that the power of the State  Legislature under  Articles 245  and 246  of  the Constitution is  wide enough  to make  law  determining  the service conditions  of the  employees of the State and it is undisputed position of law that the legislature can make law giving it  retrospective effect.  According to  the  learned counsel the  legislature having been aware of the inequities situation which have been the result of the Rules which were operating  for  determination  of  the  inter  se  seniority between the direct recruits and the promotees as interpreted by this  Court in  Sehgal and Chopra, intervened in enacting

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the Act  to remove  the aforesaid  inequities not  by merely declaring the  interpretation given  by this  Court  to  the relevant provisions  of the Rules in Sehgal and Chopra to be invalid but by making substantial alterations and changes to the basis itself and as such the legislatures cannot be said to have  encroached upon  the field  of  judiciary  nor  the legislation can  be held  to be  an act of usurpation of the judiciary nor  the legislation  can be  held to be an act of usurpation of  judicial power by the legislatures. According to the learned counsel the basic changes made in the Act are by altering  the definition  of service  by addition of sub- clause (c), by providing the quota of promotees could exceed beyond 50%  as per  proviso to  Section 5(2) and by changing the very  criteria for determination of seniority namely the continuous length  of service  as engrafted in Section 12(2) and these  changes having  been  made  and  the  legislative competence not having been assailed, the Act must be held to be valid  piece of legislation. It was also contended by the learned counsel  that in  deciding the  constitutionality of the Act  the Court  can look into the Objects and Reasons of the Act  only when  there is  ambiguity in  the  substantive provisions  of  the  Act  itself,  but  where  there  is  no ambiguity in  the language  of the  Act which  declares  the intention  of  the  legislature,  the  Court  would  not  be justified in  looking to  the Objects  and Reasons  for  the enactment or  the affidavit filed by the State Government to hold that  the legislatures  have usurped the judicial power and have enacted the Act merely to get over the judgments of this Court  and mandamus  issued by this Court in Sehgal and Chopra. According to the learned counsel in enacting the Act the legislature  has taken  into account  the needs  of  the administration and  laid down the principles for determining the inter se seniority in consonance with the accepted norms of service  jurisprudence namely  determination of seniority on the  basis of  length of  continuous service in the cadre which was  also observed  by this  Court in  the two earlier cases  while  interpreting  the  Rules  of  1961  which  was operative in  determination of  inter se  seniority  of  the employees. The  learned counsel further urged that no vested right of  any employee  has  been  taken  away  by  the  Act inasmuch as to obtain a particular position in the seniority list within a cadre is neither a vested right of an employee nor can  be said to be fundamental right under Part - III of the Constitution.  Mr. Tulsi,  learned counsel appearing for the State  of Haryana in this context said that by operation of the  Act no  employee  whether  a  direct  recruit  or  a promotee would  be reverted  to any lower post from the post to which promotion has already been made even if he is found to be junior to others in the rank of Executive Engineer and as such  the contention  of Mr. Sachar and Mr. Mahabir Singh that it  takes away  a vested  right  of  the  employees  is incorrect  in   law.  Lastly,  it  was  contended  that  the legislative competence  having been conceded and the Act not having been  found to  be contrary to any of the fundamental rights under  Part  -  III  of  the  Constitution  the  only question  that   requires  consideration   is   whether   it tantamounts  to   usurpation  of   judicial  power   by  the legislature and for the contentions already advanced the Act not being one merely declaring a law laid down by this Court to be  invalid, there  has been  no usurpation  of  judicial power,  and   therefore,  the  same  is  a  valid  piece  of legislation  determining   the  service  conditions  of  the employees in the State of Haryana and this Court will not be justified in  holding the  Act to be invalid. A large number of authorities  were cited  at the  Bar in  support of their

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respective contentions  which we will notice while examining the correctness of the rival submissions.      At the outset it must be borne in mind that in the case of Sehgal  (supra) as  well as Chopra (supra) this Court had not invalidated  any provisions of the recruitment rules but merely  interpreted   some  provisions   of  the  Rules  for determining  the  inter  se  seniority  between  the  direct recruits  and   the  promotees.   The  Act   passed  by  the legislature, therefore,  is not  a validation Act but merely an  Act   passed  by   the  State   Legislature  giving   it retrospective effect from the date the State of Haryana came into existence and consequently from the date the service in question came  into existence.  The power of the legislature under Article 246(3) of the Constitution to make law for the State with  respect to  the matters enumerated in List II of the VIIth  Schedule to  the Constitution  is wide  enough to make law determining the service conditions of the employees of the  State. In  the  case  in  hand  there  has  been  no challenge  to   the  legislative  competence  of  the  State legislature to  enact the legislation in question and in our view rightly, nor there has been any challenge on the ground of contravention  of Part III of the Constitution. Under the constitutional scheme  the power  of the legislature to make law is  paramount subject  to the  field of  legislation  as enumerated in  the Entries  in different Lists. The function of the  judiciary is  to interpret the law and to adjudicate the rights of the parties in accordance with law made by the legislature.  When   a  particular   Rule  or   the  Act  is interpreted by  a Court of law in a specified manner and the law  making   authority  forms  the  opinion  that  such  an interpretation would  adversely effect  the  rights  of  the parties and  would be  grossly inequitious and accordingly a new set  of Rule  or  Law  is  enacted,  it  is  very  often challenged as  in the  present case  on the  ground that the legislatures have usurped the judicial power. In such a case the Court has a delicated function to examine the new set of laws enacted  by the legislatures and to find out whether in fact the  legislatures have  exercised the legislative power by merely  declaring an  earlier  judicial  decision  to  be invalid and ineffective or the legislatures have altered and changed the  character of  the legislation  which ultimately may render  the judicial  decision ineffective. It cannot be disputed that  the legislatures can always render a judicial decision ineffective  by enacting  valid law  on  the  topic within  its  legislative  field  fundamentally  altering  or changing its  character retrospectively  as was held by this Court in  the case  of Indian Aluminum Company vs. The State of Kerala  (1996) 7  Supreme Court Cases 637. What is really prohibited is  that legislature  cannot in  exercise of  its plenary power  under Article 245 and 246 of the Constitution merely declare a decision of a Court of Law to be invalid or to be  inoperative in  which case  it would be held to be an exercise of  judicial power. Undoubtedly under the scheme of Constitution  the  legislature  do  not  possess  the  same. Bearing in  mind the aforesaid principles it is necessary to examine the  legality of  the Act  in question. If we do not examine the  substantive provisions of the Act and merely go by the  object and reasons as given for the enactment of the Act as  well as the counter affidavit field on behalf of the State then the Act would be possibly held to be an intrusion to the judicial sphere by the legislature. The Statements of Objects and  Reasons while  introducing the  Bill in Haryana Vidhan Sabha is extracted herein below in extenso:-      "There    was     separate    rules      regulating service  conditions  and

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    fixation  of   seniority   in   the      Engineering Services in P.W.D., B &      R.,   Public    Health   and    PWD      Irrigation  Branch.   These   rules      although different  for  the  three      branches were  on  identical  lines      with minor  variations. These rules      have  been   interpreted   in   the      Supreme Court  in the  case of A.N.      Sehgal versus R.R. Sheoran and S.L.      Chopra   versus    B.D.    Sardana.      Subsequently, the judgment has been      interpreted further  in the case of      A.N. Sehgal  versus R.R. Sheoran by      an order  dated 31st March, 1995 of      the Supreme  Court  in  a  Contempt      Petition   filed   by   Shri   R.R.      Sheoran. In the Public Health side,      the seniority  list prepared  under      the directions of the Supreme Court      in   S.L.    Chopra   versus   B.D.      Sardana’s case  was  challenged  in      the High  Court which  struck  down      the list.,  Thereafter,  an  appeal      was  filed  by  the  State  in  the      Supreme Court  against the order of      the High Court in the case of State      versus B.D. Sardana. The appeal was      admitted by  the Supreme  Court and      the  operative   portion   of   the      judgment  of  the  High  Court  was      stayed. The  matter is  pending for      final  decision   in  the   Supreme      Court, and mean while the seniority      list prepared by the State is being      operated by Public Health Branch.      2.  Meanwhile,  consequent  to  the      directions  given  by  the  Supreme      Court in  the case  of A.N.  Sehgal      vs. R.R.  Sheoran and orders of the      Supreme  Court  dated  31st  March,      1995 in the Contempt Petition filed      by R.R.  Sheoran  subsequently  the      seniority list had to be redrawn in      the case of B & R Branch, which was      totally  at     variance  with  the      manner in  which the  seniority was      drawn up  in  the  case  of  Public      Health Branch. Thus, the directions      of the Supreme Court in the case of      B &  R Branch  had created a lot of      Administrative    problems     with      certain   very    junior   officers      getting   undue    seniority    and      becoming  senior  to  the  officers      under  whom  they  were  previously      working. The  naturally resulted in      sever groupism  and tension between      officers of the department in their      day today working.      3. In  order to  have uniform rules      for   all    three   branches    of      Engineering services and to clarify      the  position   in  an  unambiguous      manner so as to have uniformity and

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    clarity   in   interpretation,   it      became necessary  to  make  certain      amendments    with    retrospective      effect. This  was possible  only by      enacting  a   legislation  in  this      regard. As the Haryana Vidhan Sabha      was no  in Session,  it was decided      to  achieve   the  purpose  through      issue of  an Ordinance on 13th May,      1995. The  Ordinance  replaced  the      existing rules  for all  the  three      branches of  the PWD and the common      enactment was to govern the service      matters of  Class-I service  B &  R      Branch, Public  Health  Branch  and      Irrigation Branch."      The relevant  portion of  the affidavit  of  Shri  S.N. Tanwar, Joint  Secretary to  the Government of Haryana filed in the  Punjab and  Haryana High Court indicating the ground which impelled  the legislature  to enact the legislation in question may be extracted hereinunder:-      "This interpretation  by the  Hon’ble Supreme Court has caused great  hardships to the promotees. In order to remove this hardship  to the  promotees an  Ordinance was issued on 13.5.1995 which  has now  become an Act No. 20 of 1995 after assent of  the Governor  of Haryana  on 30.11.1995.  If this Ordinance/Act is  not issued  the net result of the Order of the  Hon’ble  Supreme  Court  would  be  that  the  directly recruited Assistant  Executive Engineer  would be considered to be  Executive Engineer  from the date he was recruited as Assistant Executive  Engineer.  The  interpretation  of  the judgment of  the Supreme  Court create such a situation that persons who  were promotees  and were  working as  Executive Engineer years before even the Assistant Executive Engineers were recruited  became junior  to the latter when the latter was promoted  as  Executive  Engineer.  This  w  as  somehow considered by  the Government to be very seriously hampering proper working of the department. Giving such a seniority to a person  recruited as  Assistant  Executive  Engineer  have effected adversely  the effective  working of the department because the  persons who are occupying the posts much higher to the  Executive Engineer  and above could became junior to Assistant Executive Engineer who is recruited even after the promotees have been discharging their duties on these higher posts. If  such a  situation will  continue to  prevail  the promotees will  not be  able to  working that  capacity when they would  considered to  be junior to the persons who were recruited  to   Class  I   service  much  later  than  their promotions.  Moreover,  the  Government  of  Haryana  always considered that  the Assistant  Executive Engineer  directly recruited would  deem to be having a seniority from the date when he  is actually  promoted as  Executive Engineer. Since the Supreme  Court did  not accept  this  interpretation  it became essential  for the  Government of  Haryana inter alia for  the   reasons  mentioned   above  to   issue  this  Act retrospectively."      If these materials are alone considered then one may be persuaded to  accept the  submission  of  Mr.  Sachhar,  the learned senior  counsel appearing  for the direct recruits - Writ Petitioners,  that the  Act in  question was  merely to declare the  earlier  decisions  of  this  Court  in  Sehgal (supra) and  in Chopra  (supra) a  invalid and  as  such  is usurpation of  the judicial power by the legislature. But it is a  cardinal  rule  of  interpretation  that  Objects  and Reasons of  a statue  is to be look into as an extrinsic aid

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to find  out legislative intent only when the meaning of the statute by  its ordinary  language is  obscure or ambiguous. But if  the words used in a statue are clear and unambiguous then  the  statue  itself  declares  the  intention  of  the legislature and  in such  a case it would not be permissible for a  Court to  interpret  the  Statute  by  examining  the Objects the Reasons for the Statute question.      In the case of ASWINI KUMAR GHOSH AND VS. ARABINDA BOSE AND ANOTHER, S.C.R. (1953) 1, Patanjali Sastri, J., speaking for the  majority of  the Court,  emphatically ruled out the Objects and  Reasons appended  to  a  Bill  an  aid  to  the construction of a statute. It was observed:      "As regards  the propriety  of  the      reference  to   the  Statement   of      Objects and  Reasons,  it  must  be      remembered that  it seeks  only  to      explain what  reasons  induced  the      mover to  introduce the Bill in the      House and what objects he sought to      achieve.  But   those  objects  and      reasons may  or may  not correspond      to the objective which the majority      of members  had in  view when  they      passed it  into law.  The Bill  may      have  undergone   radical   changes      during  its   passage  through  the      House or  Houses, and  there is  no      guarantee that  the  reasons  which      led to  its  introduction  and  the      objects  thereby   sought   to   be      achieved  have  remained  the  same      throughout till  the  Bill  emerges      from the  House as  an Act  of  the      Legislature, for  they do  not form      part of  the Bill and are not voted      upon  by  members.  We,  therefore,      consider  that   the  Statement  of      Objects and Reasons appended to the      Bill should  be ruled out as an aid      to   the    construction   of   the      statute."      In the  case of  THE CENTRAL  BANK OF  INDIA VS.  THEIR WORKMEN. S.C.R.  (1960) 200,  S.K. DAS,  J., reiterated  the principle:      "The  Statement   of  Objects   and      Reasons is not admissible, however,      for construing the section far less      can it  control  the  actual  words      used".      Sinha, J.,  in the  case of  STATE OF  WEST BENGAL  VS. UNION OF INDIA, S.C.R. (1) (1964) 371 held:-      "It  is   well  settled   that  the      Statement of  Objects  and  Reasons      accompanying    a     Bill,    when      introduced in  Parliament cannot be      used to  determine the true meaning      and  effect   of  the   substantive      provisions  of  the  statute.  They      cannot  be   used  except  for  the      limited  purpose  of  understanding      the background  and the  antecedent      state of  affairs leading up to the      legislation".      In the case of TATA ENGINEERING AND LOCOMOTIVE CO. LTD. VS. GRAM  PANCHAYAT, PIMPRI  WAGHERE, (1976) 4 SCC 177, this

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Court did not accept the recital in the Statement of Objects and Reasons  that the amendment was made for the reason that the Panchayats could not levy tax on buildings and held that the word  ‘houses’  as  originally  used  was  comprehensive enough to  include all buildings including factory buildings and  that   the  amendment   only  made  explicit  what  was implicit".      The general rule of interpretation is that the language employed is primarily the determining factor to find out the intention of  the legislature. Gajendragadker, J. as he then was in  the case  of KANAI LAL SUR VS. PARAMNIDHI SADHUKHAN, S.C.R. 1958  360 had  observed that  "the first  and primary rule of construction is that he intention of the legislature must be  found in the words used by the legislature itself". In the case of ROBERT WIGRAM CRAWFORD VS. RICHARD SPOONER, 4 MIA 179  (PC) p.  1987 Lord Brougham had stated thus "If the legislature did  intend that  which  it  has  not  expressed clearly; much  more if  the legislature  intended  something very different;  if the  legislature intended  pretty nearly the opposite of what is said, it is not for judges to invent something which  they do  not meet  within the  words of the text". Thus  when the  plain meaning  of the words used in a statute indicate  a particular  state of  affairs the courts are not  required to  get themselves busy with the "supposed intention" or with "the policy underlying the statute" or to refer the objects and reasons which was accompanied the Bill while introducing  the same on the floor of the legislation. It is  only when  the plain meaning of the words used in the statute creates  an ambiguity  then it may be permissible to have the  extrinsic aid  of  looking  to  the  Statement  of Objects and  Reasons for  ascertaining the true intention of the legislatures. In the aforesaid state affairs to find out whether the  impugned Act  is a usurpation of judicial power by the  legislature it  would not  be permissible to look to the Statement  of Objects  and Reasons which accompanied the Bill  while  introducing  the  same  on  the  floor  of  the legislation nor  the affidavit  filed by  an officer  of the Government would control the true and correct meaning of the words of  the statute.  It would, therefore, be necessary to examine the  Act itself and the changes brought about by the Act  and   the  consequences  thereof  in  relation  to  the decisions of  this Court  in Sehgal  and Chopra interpreting the Rules  of seniority  which were in force and which stood repealed by the Act itself.      The Preamble of the Act which is a key to the enactment clearly indicates  that it  is an  act for  consolidation of ruled relating to different Branches. It reads thus:-      "to regulate  the  recruitment  and      conditions of  service  of  persons      appointed to the Haryana Service of      Engineers, Class  I,  Public  Works      Department  (Building   and   Roads      Branch), (Public Health Branch) and      (Irrigation Branch) respectively."      A comparative study of the provisions of the 1961 Rules framed by  the Governor  in  exercise  of  power  under  the proviso to  Article 309  of the  Constitution and  1995  Act passed by  the Haryana  Legislature indicate  the  following changes which have been brought about by the Act:      (a) The  definition  of  member  of      service in Rule 2(12) of 1961 rules      has been  amended.  Sub-clause  (c)      has been  inserted in  Clause 12 of      Section 2  of 1995  Act by which an      officer awaiting  appointment to  a

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    cadre post  has been  made a member      of service.      (b) A  proviso has  been  added  to      Section  5(2)  of  1995  Act  which      expressly  provides  for  exceeding      the  quota   of  50%   of  officers      promoted to  the post  of Executive      Engineers in  the  event,  adequate      number   of   Assistant   Executive      Engineers are not available.      (c) The  percentage  of  quota  has      been altered from 50% to 75% in the      case  of   Irrigation   Branch   by      incorporating a  second proviso  to      Section 5(2) of the Act.      (d)  The   rule  with   regard   to      determination of seniority has been      completely  changed  from  the  one      that existed  in  1961 rules. While      under the  1961 rules, according to      Rule 12, no member of service could      enjoy the benefit of service except      in  accordance   with   the   quota      prescribed under  Rule  <??>  under      Clause 2  of Section 12 of the Act,      length of  continuous  service  for      the post  of  executive  engineers,      has been  made the sole determining      factor   for    the   fixation   of      seniority."      The aforesaid changes and alterations in the Act itself and giving  it retrospective effect w.e.f. the date when the State of  Haryana came  into existence  and consequently the service of  engineers  came  into  existence,  rendered  the earlier  decisions  of  this  Court  in  Sehgal  and  Chopra ineffective. The provisions of the Act and the definition of "service" in  Section 2(12)(c),  proviso to Section 5(2) and the criteria  for promotion  which was  engrafted in Section 12(2) and  making it  retrospective w.e.f.  1.11.1966,  when interpreted lead  to the  only conclusion  that  this  Court could not have rendered the decision in Sehgal and Chopra on the face  of the  aforesaid provisions  of the  Act. It  is, therefore, not  a case  of legislature  by mere  declaration without anything  more overriding  a judicial decision but a case  of   rendering  a  judicial  decision  ineffective  by enacting a  valid law  within the  legislative field  of the legislature. It  would be  appropriate to  extract a passage from the  judgment of this Court in INDIAN ALUMINIUM CO. AND OTHERS VS.  STATE OF KERALA AND OTHERS, (1996) 7 S.C.C. 637, to  which   two  of  us  were  parties  (Ramaswamy.  J.  and Pattanaik, J.):      "In a democracy governed by rule of      law, the  legislature exercises the      power under  Articles 245  and  246      and other  companion articles  read      with the  entries in the respective      lists in  the Seventh  Schedule  to      make the  law which  includes power      to amend  the law.  Courts in their      concern and  endeavour to  preserve      judicial  power   equally  must  be      guarded to  maintain  the  delicate      balance devised by the Constitution      between   the    three    sovereign      functionaries. In  order that  rule

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    of   law    permeates   of   fulfil      constitutional    objectives     of      establishing an  egalitarian social      order,  the   respective  sovereign      functionaries  need  free  play  in      their joints  so that  the march of      social progress  and order  remains      unimpeded. The smooth balance built      with  delicacy   must   always   be      maintained.  In   its  anxiety   to      safeguard  judicial  power,  it  is      unnecessary to  be overzealous  and      conjure  up   incursion  into   the      judicial preserve  invalidating the      valid law competently made."      It would  be appropriate  now to  examine the different citations made  at the  Bar. Mr.  Sachar, the learned senior counsel in  support of  his  contention  that  the  impugned judgment is  essentially a  usurpation of the judicial power by the  legislature relied  upon the decisions of this Court in B.S.  Yadav and  others vs. State of Haryana & others and Pritpal Singh  and others  vs. State  of Punjab and Others - 1980 (Supp.)  Supreme Court  Cases 524,  State of  Gujarat & Another etc. vs. Raman Lal Keshav Lal Soni and others etc. - (1983) 2  Supreme Court  Cases 33,  Ex. Capt. K.C. Arora and Another vs.  State of Haryana and Others. - (1984) 3 Supreme Court Cases  281, T.R. Kapur and others vs. State of Haryana and  others  1986  (Supp)  Supreme  Court  Cases  584,  P.D. Aggarwal and others  vs. State of U.P. and others - (1987) 3 Supreme Court Cases 622, Madan Mohan Pathak and Another etc. vs. Union of India and others - (1978) 2 Supreme Court Cases 50.  In   B.S.  Yadav’s   case  (supra)   the  question  for consideration before  this Court  was whether Governor could frame rules  relating to  conditions of  service of judicial officers, and  if so,  then whether  such  rule  contravenes Article 235  of the  Constitution? This  Court held  that  a combined reading  of Article  309 and Article 235 would lead to  the  conclusion  that  though  the  legislature  or  the Governor  has   the  power  to  make  Rules  regulating  the recruitment  and  the  conditions  of  service  of  judicial officers of  the State  and thereby  regulate  seniority  of judicial  officers   by  laying   down  rules   of   general application, but  that power cannot be exercised in a manner which will  lead to  interference with the control vested in the High  Court  by  the  first  part  of  Article  235.  In paragraph 76  of the  judgment of Court examined the amended rule and the retrospectively of the same and held that since the Governor  exercises  the  legislative  power  under  the proviso to  Article 309  of the  Constitution, it is open to him to  give retrospective operation to the rules made under that provision.  But the date  from which the rules are made to operate  must be  shown to  bear, either from the face of the rules  or by  extrinsic evidence,  reasonable nexus with the provisions  contained in  the rules, especially when the retrospective   effect extends  over a  long period  and  no nexus is  shown in  the present  case on behalf of the State Government. On  the aforesaid  reasonings the  Court came to the conclusion  that the retrospective effect that was given to the  rules is  bad in  law. In the said case neither this Court examined  the question  of legislature in-validating a decision of  a competent  Court  of  law  nor  the  question whether there has been any intrusion by the legislature into the judicial  sphere. We fail to understand how this case is of any  assistance to  the petitioners in the Writ Petitions challenging the validity of the Act.

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    In Raman  Lal’s  case  (supra)  the  employees  of  the Panchayat Services  filed a  Writ Petition  in Gujarat  High Court claiming  that they  are entitled  to the  benefit  of revision of  scales of  pay which  were made on the basis of the recommendation  of the  Pay  Commission.  The  State  of Gujarat resisted  those petitions  on the  ground  that  the members  of   the  Panchayat  Service  were  not  government servants and,  therefore, they are not entitled to claim the relief asked for. The High Court of Gujarat allowed the Writ Petition on coming to the conclusion that the members of the Panchayat  Service   belonging  to   the  local  cadre  were government servants  and directed  the State  Government  to make  suitable   orders  under   Gujarat  Panchayat  Service (Absorption, seniority,  pay and  allowance) Rules, 1965 and several other directions to fix the pay scales and allowance and other  conditions of  service of  those employees in par with the  State Government  servants. The  State  had  filed appeal against  the said  judgment in  the Supreme Court and during the  pendency of  the appeal  an Ordinance was passed which was  later on  replaced by the Act. The constitutional validity of  the amending  Act was  challenged by filing the Writ  Petition   by  the  ex-Municipal  employees  who  were included  in  the  local  cadre.  This  Court  came  to  the conclusion that  the  Panchayat  Service  constituted  under Section 203  of the  Gujarat  Panchayat’s  Act  is  a  Civil Service of  the State  and the  members of  the service  are government  servants.   The  Court,  however,  examined  the validity of the Amending Act and came to the conclusion that before the  Amending Act  was passed  the employees  who had been allocated  to the  Panchayat Service  had achieved  the status of  government servants  under the  provisions of the principal Act  of 1961 and that status as government servant cannot  be  extinguished  so  long  as  the  posts  are  not abolished  and   their  services   were  not  terminated  in accordance  what  the  provisions  of  Article  311  of  the Constitution. It is in this context it was observed:-      "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  to have  conform      to  the   dos  and  don’ts  of  the      Constitution,  neither  prospective      nor retrospective  laws can be made      so  as  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      rights, therefore, the requirements      of   the   Constitution   will   be      satisfied if  the law is dated back      by 20  years. We are concerned with      today’s rights and not yesterday’s.      A  legislature   cannot   legislate      today with reference to a situation      that  obtained  20  years  ago  and

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    ignore the  march of events and the      constitutional  rights  accrued  in      the course  of the  20 years.  That      would    be     most     arbitrary,      unreasonable  and   a  negation  of      history."      Thus the  Amending Act  was held  to have  offended the constitutional provisions of Article 14 and Article 311 and, therefore, was struck down.      Thus is  Raman Lal,  the amending Act had the effect of depriving the  ex-Municipal employees  of  their  status  of membership under  the State without any option to them which was considered  to be  unconstitutional. In the case in hand the impugned  Act and  its retrospectivity merely alters the seniority within  a cadre  and such  an  alteration  neither contravenes any  constitutional provision nor it affects any right under  Part - III of the Constitution. In this view of the matter the aforesaid decision is of no assistance to the direct recruit petitioners who have assailed the legality of the Act.  In K.C.  ARORA’s case,  (1984) 3  S.C.C.  281  the amended provisions  being  given  retrospective  effect  was found to have affected the accrued fundamental rights of the parties. Following  the earlier  judgment of  this Court  in STATE OF GUJARAT vs. RAMAN LAL KESHAV LAL SONI, (1983) 2 SCC 33, this Court held that the Government cannot take away the accrued rights  of the  petitioners and  the appellants,  by making amendment  to the rules with retrospective effect. In the aforesaid  case under  the rules  in force the seniority had been determined by counting the period military service. Under the  amended rules  by giving  it retrospective effect the aforesaid  benefit had  been  taken  away.  This  Court, therefore, held  that in  view of the rules in force and the assurances given  by the  Government the  accrued  right  of considering the military service towards seniority cannot be retrospectively taken  away. In  the case  in hand  no  such accrued rights  of the  direct recruits are being taken away by  the   Act.  On  the  other  hand  on  account  of  gross inequitious situation  the legislatures  have enacted an Act in consonance  with  the  normal  service  jurisprudence  of determining the  seniority on the basis of continuous length of service  in a  cadre. The  aforesaid decision, therefore, cannot be said to be a decision in support of the contention that legislature have usurped the judicial power nor is it a decision in  support of  the contention that by the impugned Act any  fundamental rights of the direct recruits have been infringed. In  the case of T.R. KAPUR AND OTHER vs. STATE OF HARYANA AND  OTHERS, 1986  (supp) SCC 584, when the validity of Punjab  Service of  Engineers, Class  I, PWD  (Irrigation branch) Rules,  1964 as  amended  by  State  of  Haryana  by notification dated  June 22,  1984 came up for consideration this Court  found that the said rule is violative of Section 82(6) of  the Punjab  Reorganisation Act, 1966, as the prior approval of  the Central  Government had  not been taken. On the question  of power  of the Governor of frame Rules under proviso to  Article 309  and to give it retrospective effect the  Court  held  that  though  the  rules  can  be  amended retrospectively but  any benefit accrued under existing rule cannot be  taken away.  In other words a promotion which has already been  held in  accordance with  the rules  in  force cannot be  nullified by  the  amended  rules  by  fixing  an additional qualification  for promotion. By the impugned Act the Haryana  Legislatures have  not purported to nullify and promotion already  made under  the 1961  Rules which  was in force prior  to being repealed by the impugned Act. Even Mr. Tulsi, appearing  for the State, submitted that no promotion

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already made  under the pre-amended rules will be altered in any manner by giving effect to the provisions of the Act. In this view  of the  matter, the aforesaid decision is also of no assistance  to the direct recruits. In MADAN MOHAN PATHAK AND ANOTHER  vs. UNION OF INDIA AND OTHERS, (1978) 2 SCC 50, a seven Judge Bench of this Court considered the question of the power  of the  legislature to  annual a  judgment of the court giving effect to rights of a party. There has ben some observations in  the aforesaid  case which  may support  the contention of  Mr. Sachar  inasmuch as  this Court  observed that the  rights which  had passed  into those embodied in a judgment and  become the  basis of  a mandamus from the High Court could  not be  taken away  in an indirect fashion. The main plank  of Mr.  Sachar’s  argument  is  that  after  the judgment of this Court in Sehgal and Chopra interpreting the rules  of   seniority  between   the  direct   recruits  and promotees, the  direction  of  this  Court  to  re-draw  the seniority list  according to the principle laid down by this Court  has   been  taken   away  by  the  enactment  of  the legislature and  thus there  has  been  an  in-road  of  the legislature into  the judicial sphere. But a deeper scrutiny of the decision of this Court in Pathak will not sustain the arguments advanced  by  Mr.  Sachar.  In  Pathak’s  case  in accordance with  Regulation 58 a settlement had been arrived at for  payment of bonus to Class III and Class IV employees on 24th  of January,  1974 and  the said settlement had been approved by  the  Central  Government.  Notwithstanding  the settlement when  the Life  Insurance Corporation did not pay bonus, the employees approached the Calcutta High Court. The High Court,  therefore, issued a writ of mandamus on 21st of May, 1976 calling upon the Life Insurance Corporation to pay the bonus  in accordance  with the  settlement in  question. Against the  judgment of  the learned Single Judge a Letters Patent Appeal  was preferred  and while  the said appeal was pending, the  Life Insurance  Corporation  (Modification  of Settlement) Act,  1976 came  into force on 29th of May, 1976 and Section  3 thereof  purported to nullify the judgment of the Calcutta  High  Court  by  the  non-obstante  clause  in relation to  provisions of Industrial Disputes Act. In other words the  Calcutta High  Court while  issuing mandamus  had held the  settlement has  a binding  effect once approved by the Central Government and the same cannot be rescinded. But the impugned  Act purported  to nullify  the rights  of  the employees working under Class III and Class IV to get annual cash bonus  in terms  of such  settlement.  It  is  in  this context in  the majority  judgment of the Court delivered by Bhagwati, J., it was observed:      "that the  judgment  given  by  the      Calcutta High Court is not merely a      declaratory  judgment   holding  an      impost or tax to be invalid so that      t validation statute can remove the      defect pointed  out by the judgment      amending the law with retrospective      effect and  validate such impost or      tax. It is a judgment giving effect      to the  right of the petitioners to      annual   cash   bonus   under   the      settlement by  issuing  a  writ  of      mandamus directing  the LIC  to pay      the amount  of such  bonus.  If  by      reason of  retrospective alteration      of the  factual or legal situation,      the judgment is rendered erroneous,      the remedy  may be by way of appeal

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    or  review   but  so  long  as  the      judgment  stands,   if  cannot   be      disregarded or  ignored and it must      be obeyed by the LIC. Therefore, in      any event,  irrespective of whether      the      impugned       Act      is      constitutionally valid  or not, the      LIC is  bound to  obey the  writ of      mandamus  issued  by  the  Calcutta      High  Court  and  pay  annual  cash      bonus for the year April 1, 1975 to      March 31, 1976 to the Class III and      Class IV employees."      In making  the aforesaid  observation the Court did not consider the constitutionality of the Act but went by theory that the  mandamus issued  by the court calling upon a party to confer  certain benefits to the adversary unless annulled by way  of appeal or review has to be obeyed. This principle has no  application to  the case  in hand  as the  nature of mandamus which  has been  issued by this Court in Sehgal and Chopra  was  merely  a  declaration  of  the  principles  of seniority as  per 1961 Rules and the State Government was to draw up  the seniority  list in  accordance  with  the  said Rules. The  legislature by  enacting the  Act and  giving it retrospective effect  made several vital changes both on the definition  of   service  as   well  as   the  criteria  for determining  the  inter  se  seniority  between  the  direct recruits and  promotees. The impugned Act as has been stated earlier has  not taken away any accrued rights of the direct recruits,  and   therefore,  the  aforesaid  observation  in Pathak’s case  really will  be of  no assistance in deciding the question  as to whether the Act purports to have made an in-road into the judicial sphere. The majority judgment came to hold  that the  impugned Act  is violative  of Article 31 Clause (2)  as  the  effect  of  the  Act  was  to  transfer ownership  debts  due  owing  to  Class  III  and  Class  IV employees in  respect of  annual  cash  bonus  to  the  Life Insurance corporation  and there  has been  no provision for payment of any compensation of the compulsory acquisition of these debts. It may be stated that the majority judgment did not consider  the question as to whether the legislatures by enacting the  Act have  usurped the  judicial power and have merely declared  the judgment of a competent court of law to be  invalid.   Beg,  C.J.  in  his  concurring  judgment  in paragraph 32 of the judgment, however, has observed:      "that the  real object  of the  Act      was to  set aside the result of the      mandamus  issued  by  the  Calcutta      High Court,  though,  it  does  not      mention as such, and therefore, the      learned Judge  held that  Section 3      of the  Act would  be  invalid  for      trenching upon the judicial power."      Three other  learned Judges,  namely; Y.V. Chandrachud, S. Murtaza  Fazal Ali and P.N. Shinghal. JJ. agreed with the conclusion of  Bhagwati, J.  but  preferred  to  rest  their decision on  the sole  ground that the impugned Act violates the provisions  of Article  31(2) of the Constitution and in fact they  considered it  unnecessary to express any opinion on the  effect of the judgment of the Calcutta High Court in Writ Petition  No. 371  of 1976.  Thus out  of seven learned Judges, six  learned Judges  rested their  decision  on  the ground that  the impugned  Act violates Article 31(2) of the Constitution and  did not consider the enactment in question to be  an  act  of  usurpation  of  judicial  power  by  the

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legislature. The  observation of  Beg, C.J., in paragraph 32 does not  appear  to  be  in  consonance  with  the  several authorities of  this Court  on the  point  to  be  discussed hereafter. Thus  the aforesaid   decision  cannot be pressed into service  in support  of Mr. Sachar’s contention. In the aforesaid premises  the authorities  cited by  Mr. Sachar in fact do  not support  the content  in urged  by the  learned senior counsel and on the other hand a series of authorities of this  Court to be discussed hereafter are directly on the point  unequivocally   indicating  that  the  power  of  the legislature to  enact law and giving it retrospective effect which may  factually render  a decision of a competent court of law ineffective cannot be whittled down.      In I.N. SAXENA vs. THE STATE OF MADHYA PRADESH (1976) 3 SCR 237  a contention  had been  raised with  regard to  the validity of  an Act  to the  effect that  the Act  has  been passed to  over rule  a decision  of this  Court  which  the legislature has  no power  to do.  In that case the State of Madhya Pradesh  had raised  age of compulsory retirement for government servants  from 55  years to 58 years but the very Memorandum increasing  the age  of superannuation  empowered the Government  to retire  a government  servant  after  the servant attains  the age of 55 years. Thereafter Rules under proviso to  Article 309  of  the  Constitution  were  framed whereby the age of superannuation was raised to 58 years and there  was   no  provision   in  the  Rules  empowering  the government to  retire a  government servant after the age of 55 years.  The employee concerned, however, was retired from service on  completion of  55 years  and the  said order  on being challenged  the Supreme  Court held that the appellant will be  deemed to  have continued in service inspite of the order till  he attains  the age  of 58  years and  since the appellant had already attained the age of 58 years it is not possible to  direct that he should be put in service. But he will be  entitled to  such benefits an may accrue now to him by virtue  of the  success of  the Writ  Petition. After the judgment of  the Supreme  Court or Ordinance was promulgated which later  on became an Act of the State of Madhya Pradesh and the  said Act validated the retirement of the government servants including the appellant Saxena despite the judgment of the  Court. The Act was given retrospective effect and it empowered a government to retire a government servant on his attaining the  age of  55 years  and the  Amending  Act  was challenged on  the ground  that the  legislature has usurped the judicial  power.  This  Court  had  negatived  the  said contention and held:-      "The    distinction    between    a      "legislative" act  and a "judicial"      act is  well known,  though in some      specific instances  the line  which      separates  one  category  from  the      other    may    not    be    easily      discernible.  Adjudication  of  the      rights of  the parties according to      law enacted by the legislature is a      judicial    function.     In    the      performance of  this function,  the      court interprets  and gives  effect      to the  intent and  mandate of  the      legislature  as   embodied  in  the      statute. On  the other  hand, it is      for the legislature to lay down the      law, prescribing  norms of  conduct      which  will   govern  parties   and      transactions  and  to  require  the

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    court to give effect to that law.      While, in  view of this distinction      between  legislative  and  judicial      functions, the  legislature  cannot      by  a   bare  declaration,  without      more, directly  over-rule,  reverse      or over-ride  a judicial  decision,      it may,  at any time in exercise of      the plenary  powers conferred on it      by  Article  245  and  246  of  the      Constitution  render   a   judicial      decision ineffective by enacting or      changing    with     retrospective,      curative or neutralising effect the      conditions on  which such  decision      is based.  As pointed  out by  Ray,      C.J. in  Indira Nehru Gandhi v. Raj      Narain, the  rendering  ineffective      of judgments or orders of competent      courts and  tribunals  by  changing      their    basis    by    legislative      enactment is  a well-known  pattern      of  all   validating   Acts.   Such      validating    legislation     which      removes     the      causes     for      ineffectiveness  or  invalidity  of      actions or  proceedings is  not  an      encroachment on judicial power."      In the  case of  M/S UTKAL  CONTRACTORS AND JOINERY (P) LTD. AND  OTHERS vs.  STATE OR  ORISSA, 1987 (Supp.) Supreme Court Cases  751 a  similar contention  had been  raised but negatived by  this Court. In that case the right to collect, sale and  purchase of  sale seeds  had  been  given  to  the petitioner and  during the subsistence of the contact Orissa legislature passed  an  Act  called  Orissa  Forest  Produce (control of  trade) Act  1981. Under  the provisions  of the said Act  the State  issued Notification  on 9.12.1982 which had the effect of rescinding the contract of the petitioner. That order  was challenged  by filing a Writ Petition which, however, was  dismissed by  the Orissa  High  Court.  On  an appeal this  Court reversed  the decision of the Orissa High Court and  held that the Act does not apply to sale seeds on government land.  A declaration  was made by this Court that the Act  and the  Notification issued  under the  Act do not apply to  the forest  produce grown in government forest and that it  was, therefore, open to the government to treat the contract dated 29th May, 1987 as rescinded. The judgments of this Court  is reported  in (1987)  3 SCC 279. Thereafter on 29th May  1987 an  Ordinance  was  promulgated,  called  the Orissa Forest  Produce (Control  of  Trade)  (Amendment  and Validation) Ordinance,  1987 and  it was given retrospective effect as  a result  of which  the earlier  decision of this Court  became   ineffective.  The   petitioner,   therefore, challenged the  validity of  the same on the ground that the legislature have  encroached upon the judicial power and set aside the  binding judgment  of this  Court. Negativing  the said contention this Court held:-      "The legislature  may, at any time,      in exercise  of the  plenary  power      conferred on it by Articles 245 and      246 of  the Constitution  render  a      judicial  decision  ineffective  by      enacting valid  law.  There  is  no      prohibition  against  retrospective      legislation.  The   power  of   the

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    legislature   to    pass   a    low      postulates the  power  to  pass  it      prospectively    as     well     as      retrospectively. That of course, is      subject    to    the    legislative      competence  and  subject  to  other      constitutional   limitations.   The      rendering ineffective  of judgments      or orders  of competent  courts  by      changing their basis by legislative      enactment is  a well  known pattern      of  all   validating   acts.   Such      validating    legislation     which      removes     the      causes      of      ineffectiveness  of  invalidity  of      action  or  proceedings  cannot  be      considered   as   encroachment   on      judicial  power.  The  legislature,      however,   cannot    by   a    bare      declaration, without more, directly      overrule, reverse  or set aside any      judicial decision."      This case is to a great extent in pari materia with the case in  hand where  this Court  had earlier interpreted the Rules determining  the inter se seniority between the direct recruits  and   promotees   and   thereafter   the   Haryana legislatures have  enacted the  Act giving  it retrospective effect as  a result of which earlier decisions of this Court in  Sehgal   (supra)  and   Chopra   (supra)   have   become ineffective. In  BHUBANESHWAR SINGH AND ANOTHER vs. UNION OF INDIA AND  OTHERS 1994 6 SCC 77, a three Judge Bench of this Court held:      "it  is   well  settled   that  the      Parliament and  State  Legislatures      have plenary  powers of legislation      on the subjects within their field.      They  can  legislate  on  the  said      subjects prospectively  as well  as      retrospectively. If  the  intention      of  the   legislature  is   clearly      expressed  that   it  purports   to      introduce  the  legislation  or  to      amend  the   existing   legislation      retrospectively,  then  subject  to      the legislative  competence and the      exercise being  not in violation of      any  of   the  provisions   of  the      Constitution, such  power cannot be      questioned."      The Court also further held:-      "that  the  exercise  of  rendering      ineffective the judgments or orders      of competent Courts by changing the      very basis by legislation is a well      known    device    of    validating      legislation  and   such  validating      legislation which removes the cause      of   the   invalidity   cannot   be      considered to be an encroachment on      judicial power."      In rendering  the aforesaid decision, this Court relied upon heavily  on the  Constitution Bench  decision  of  this Court  in   Shri  P.C.   Mills  Ltd.   Vs.  Broach   Borough Municipality (1969)  2 SCC  283. The  Court also relied upon the  decisions   of  this  Court  in  West  Ramona  Electric

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Distribution Company  Ltd. Vs.  State of Madras (1963) 2 SCR 747, Udai  Ram Sharma and others etc. vs. Union of India and others (1968)  3 SCR  41, Krishna  Chandra Gangopadhyaya and others vs.  Union of  India and  others (1975) 2 SCC 302 and Hindustan Gum  and Chemicals  Ltd. Vs.  State of Haryana and other (1985) 4 SCC 124. In Comorin Match Industries (P) Ltd. Vs. State  of Tamil  Nadu (1996) 4 SCC 281 the same question again came  up for consideration. In this case an assessment order under the Central Sales Tax was set aside on the basis of the  decision of  Madras High Court in the case of Larsen and Tubro. In Larsen and Turbo certain provisions of the Act were declared ultra vires. In an appeal against the judgment of Madras  High  Court  the  Supreme  Court  held  that  the provisions of  the Central  Sales Tax  Act  which  had  been declared ultra  vires by  Madras  High  Court  were  validly enacted. The  Central Sales  Tax Act  was  amended  and  the Amending Act  was given  retrospective effect  declaring all assessments made  upto 9.1.1969  valid and binding. This was challenged on  the ground that it tantamounts to over riding a decision of this Court by Legislatures. Rejecting the said contention this Court held:      "this is  not a  case of  passing a      legislation trying  to nullify  the      interpretation of  law given in the      judgment of a court of law. This is      a case  of changing  the law itself      on the  basis of which the judgment      was  pronounced  holding  that  the      assessment orders were erroneous in      law."      In the case of Indian Aluminium (supra) to which two of us Brother  Ramaswamy, J.  and Pattanaik,  J. were parties a similar contention  had been  raised and after considering a large number of authorities of this court and explaining the decision in  the case  of Madan  Mohan Pathak  vs. Union  of India this Court negatived the contention and held that when the legislatures  enacting the  Act has  competence over the subject matter  and when  the said  enactment is  consistent with the  provisions of Part III of the Constitution and the earlier defects  pointed out  by the Court have been removed by the  legislatures then  the enactment is a valid piece of legislation and  cannot be  struck down  by the Court on the ground that  it  encroaches  upon  the  judicial  sphere.  A relevant passage  from the  aforesaid decision  has  already been quoted in the earlier part of the judgment.      In MEERUT  DEVELOPMENT AUTHORITY  AND OTHERS  ETC.  vs. SATBIR SINGH  AND OTHERS ETC. (1996) 11 SCC 462 on a similar contention being  raised this  Court negatived  the same and held:-      "It is  well settled  that when the      Supreme Court  in exercise of power      of judicial  review, has declared a      particular statute  to be  invalid,      the legislature  has  no  power  to      overrule the  judgment; however, it      has the power to suitably amend the      law   by    use   of    appropriate      phraseology  removing  the  defects      pointed out  by the  court  and  by      amending the  law  consistent  with      the law  declared by  the Court  so      that the defects which were pointed      out  were   never  on  statute  for      effective enforcement of the law."      A similar  view has been expressed by this Court in the

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case of  State of  Orissa and another vs. Gopal Chandra Rath and others  - (1995)  6 SCC  242. In  view of  the aforesaid legal  position  when  the  impugned  Act  is  examined  the conclusion is  irresistible that the said Act cannot be said to be  an Act  of usurpation  of the  judicial power  by the Haryana Legislature,  but on  the other  hand it  is a valid piece of  legislation enacted  by the State Legislature over which they had legislative competence under Entry 41 of List II of  the  VIIth  Schedule  and  by  giving  the  enactment retrospective effect  the earlier judgments of this Court in Sehgal (supra)  and Chopra  (supra) have become ineffective. But since  this does not tantamount to a mere declaration of invalidity of  an earlier judgment and nor does it amount to an encroachment  by the legislature into the judicial sphere the Court  will not  justified in  holding the  same  to  be invalid. Needless  to mention  that  the  impugned  Act  has neither been  challenged  on  the  ground  of  the  lack  of legislative competence  nor has  it been established to have contravened any  provisions of Part III of the Constitution. Consequently Mr. Sachhar’s contention has to be rejected and the  Act  has  to  be  declared  intra  vires.  Necessarily, therefore the  seniority list drawn up on different dates in accordance with  the earlier  Rules of  1961 will have to be annulled and  fresh seniority  list has  to be  drawn up  in accordance with  the provisions of the Act since the Act has been given  retrospective effect with effect from 1.11.1996. It may,  however, be  reiterated that  any promotion already made on  the  basis  of  the  seniority  list  drawn  up  in accordance with  the Recruitment  Rules of  1961 will not be altered in any manner.      An ancillary question which arises for consideration is whether on account of the impugned Act any accrued or vested right of  any of the direct recruits to the service is being taken away?  This  consideration  is  relevant  inasmuch  as though the  legislature may  be empowered  to enact  law and give it  retrospective effect  but such law cannot take away any accrued  or vested  rights of  the employees.  Under the 1961 Rules  as interpreted  by this  Court in  the  case  of Sehgal and  Chopra,  a  direct  recruit  gets  the  year  of allotment as  the year in which he is recruited as Assistant Executive Engineer  but so  far as  promotees are  concerned they become  a member  of the  service only  after they  are appointed substantively  to a  cadre post  and the  quota of promotees can’t  exceed 50%  of the total number of posts in the service  excluding  the  posts  of  Assistant  Executive Engineers to  which direct  recruitments are  made. Inter se seniority between direct recruits and promotees is regulated by Rule  12(6) and  (7). As a necessary consequence a direct recruit when promoted as Executive Engineer from the post of Assistant Executive  Engineer was getting seniority over the promotee Executive  Engineers and  this situation  has  been avoided by  the impugned  Act by  changing the definition of "service" in  Rule 2(12) of the 1961 Rules, by providing the quota for  promotees to  exceed 50% in certain contingencies like non-availability  of direct recruits to man the post of Executive  Engineer   and  by   changing  the  criteria  for determination  of   inter  se  seniority  and  in  place  of determination of  year of  allotment, by providing length of continuous service  to the  post of Executive Engineer to be the  determining  factor.  Necessarily,  therefore,  by  the impugned Act  a direct  recruit in  the  rank  of  Executive Engineer would come down in the gradation list than what was assigns under  the Rules of 1961. The question, therefore is that, is the right of a competence under Entry 41 of List II of  the   VIIth  Schedule   and  by   giving  the  enactment

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retrospective effect  the earlier judgments of this Court in Sehgal (supra)  and Chopra  (supra) have become ineffective. But since  this does not tantamount to a mere declaration of invalidity of  an earlier judgment and nor does it amount to an encroachment  by the legislature into the judicial sphere the Court  will not  be justified  in holding the same to be invalid. Needless  to mention  that  the  impugned  Act  has neither been  challenged  on  the  ground  of  the  lack  of legislative competence  nor has  it been established to have contravened any  provisions of Part III of the Constitution. Consequently Mr. Sachhar’s contention has to be rejected and the  Act  has  to  be  declared  intra  vires.  Necessarily, therefore the  seniority list drawn up on different dates in accordance with  the earlier  Rules of  1961 will have to be annulled and  fresh seniority  list has  to be  drawn up  in accordance with  the provisions of the Act since the Act has been given  retrospective effect with effect from 1.11.1996. It may,  however, be  reiterated that  any promotion already made on  the  basis  of  the  seniority  list  drawn  up  in accordance with  Recruitment  Rules  of  1961  will  not  be altered in any manner.      An ancillary question which arises for consideration is whether on account of the impugned Act any accrued or vested right of  any of the direct recruits to the service is being taken away?  This  consideration  is  relevant  inasmuch  as though the  legislature may  be empowered  to enact  law and give it  retrospective effect  but such law cannot take away any accrued  or vested  rights of  the employees.  Under the 1961 Rules  as interpreted  by this  Court in  the  case  of Sehgal and  Chopra,  a  direct  recruit  gets  the  year  of allotment as  the year in which he is recruited as Assistant Executive Engineer  but so  far as  promotees are  concerned they become  a member  of the  service only  after they  are appointed substantively  to a  cadre post  and the  quota of promotees can’t  exceed 50%  of the total number of posts in the service  excluding  the  posts  of  Assistant  Executive Engineers to  which direct  recruitments are  made. Inter se seniority between direct recruits and promotees is regulated by Rule  12(6) and  (7). As a necessary consequence a direct recruit when promoted as Executive Engineer from the post of Assistant Executive  Engineer was getting seniority over the promotee Executive  Engineers and  this situation  has  been avoided by  the impugned  Act by  changing the definition of "service" in  Rule 2(12) of the 1961 Rules, by providing the quota for  promotees to  exceed 50% in certain contingencies like non-availability  of direct recruits to man the post of Executive  Engineer   and  by   changing  the  criteria  for determination  of   inter  se  seniority  and  in  place  of determination of  year of  allotment, by providing length of continuous service  to the  post of Executive Engineer to be the  determining  factor.  Necessarily,  therefore,  by  the impugned Act  a direct  recruit in  the  rank  of  Executive Engineer would come down in the gradation list than what was assigns under  the Rules of 1961. The question, therefore is that, is  the  right  of  a  government  servant  to  get  a particular position  in the  gradation list  is a  vested or accrued right?  The answer to this question has to be in the negative. As  early as in 1962 this Court in the case of THE HIGH COURT  OF CALCUTTA  vs. AMAL KUMAR ROY, (1963) 1 S.C.R. 437, in  the  Constitution  Bench  considered  the  question whether losing some places in the seniority list amounted to reduction in rank, and came to hold:      "In the context of Judicial Service      of West Bengal, "reduction in rank"      would imply  that a  person who  is

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    already  holding   the  post  of  a      Subordinate Judge  has been reduced      to the  position of  a Munsif,  the      rank of  a Subordinate  Judge being      higher than  that of  a Munsif. But      Subordinate Judge in the same cadre      hold the  same  rank,  though  they      have  to  be  listed  in  order  of      seniority  in   the   Civil   List.      Therefore, losing  some  places  in      the   seniority    list   is    not      tantamount to  reduction  in  rank.      Hence, it  must be  held  that  the      provisions of Article 311(2) of the      Constitution are  not attracted  to      this case."      To the  said effect  the judgment  of this Court in the case of  THE STATE OF PUNJAB vs. KISHAN DAS, (1971) 3 S.C.R. 389, wherein this Court observed:      "an  order   forfeiting  the   past      service   which    has   earned   a      Government  servant  increments  in      the  post   or   rank   he   holds,      howsoever adverse  it  is  to  him,      affecting his  seniority within the      rank to  which he  belongs  or  his      future chances  of  promotion  does      not attract  Article 311(2)  of the      Constitution  since   it   is   not      covered by the expression reduction      in rank."      Thus to  have a  particular position  in the  seniority list within  a cadre  can neither  be said  to be accrued or vested right  of a Government servant and losing some places in the  seniority list  within the  cadre does not amount to reduction  in   rank  even  though  the  future  chances  of promotion gets  delayed thereby.  It was urged by Mr. Sachar and Mr.  Mahabir Singh  appearing for the direction recruits that the  effect of  re-determination of  the  seniority  in accordance with  the provisions  of the  Act is not only the direct recruits  lose a  few places of seniority in the rank of Executive  Engineer but their future chances of promotion are greatly jeopardise and that right having been taken away the Act  must be  held to  be invalid.  It is  difficult  to accept  this   contention  since  chances  of  promotion  of Government servant  are not  a condition  of service. In the case of  STATE OF  MAHARASHTRA AND  ANOTHER vs.  CHANDRAKANT ANANT KULKARNI  AND OTHERS,  (1981) 4  S.C.C. 130 this Court held:      "Mere chances  of promotion are not      conditions of services and the fact      that there  was  reduction  in  the      chances  of   promotion   did   not      tantamount  to   a  change  in  the      conditions of  service. A  right to      be considered  for promotion  is  a      term of  service, but  mere chances      of promotion are not".      To the said effect a judgment of this Court in the case of K.  JAGADEESAN vs.  UNION OF  INDIA AND OTHERS , (1990) 2 S.C.C. 228, where in this Court held:      "the  only   effect  is   that  his      chances of  promotion or  his right      to be  considered for  promotion to      the  higher   post   is   adversely

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    affected. This  cannot be  regarded      as retrospective effect being given      to  the   amendment  of  the  rules      carried   out   by   the   impugned      notification and  the challenge  to      the  said   notification  on   that      ground must fail".      Again in  the case of UNION OF INDIA AND OTHER vs. S.L. DUTTA AND ANOTHERS, (1991) 1 S.C.C. 505, this Court held:      "in our  opinion, what was affected      by the change of policy were merely      the chances of promotion of the Air      Vice-Marshals  in   the  Navigation      Stream. As  far as the posts of Air      Marshals  open  to  the  Air  Vice-      Marshals in  the said  stream  were      concerned,    their     right    or      eligibility to  be  considered  for      promotion still remained and hence,      there  was   no  change   in  their      conditions of service".      In ZOHRABI  vs. ARJUNA AND OTHERS, (1980) 2 S.C.C. 203, this Court observed that      "a mere  right to take advantage of      the provisions  of an Act is not an      accrued right".      The aforesaid  observation would  equally apply  to the case in  hand since  the only argument advanced on behalf of the direct  recruits was that the advantage which they we re receiving under the 1961 Rules to get their seniority in the rank of  Executive Engineer  is  being  taken  away  by  the impugned Act.  Since the  said right is not an accrued right the legislatures  were well  within their  power to make the law.      In the  aforesaid premises,  it must  be held  that the direct recruits  did not  have a  vested right nor any right had accrued  in their  favour in  the matter  of  getting  a particular position  in  the  seniority  list  of  Executive Engineers under  the pre-amended Rules which is said to have been taken  away by  the Act since such a right is neither a vested right  of an  employee nor  can it  be said  to be an accrued right.  Thus there  is no bar for the legislature to amend the  law in consequence of which the inter se position in  rank   of  Executive   Engineer   might   get   altered. consequently, we  see no  invalidity in the enactment of the Haryana  Service   of  Engineers,   Class  I,  Public  Works Department  (Building   and  Roads  Branch)  (Public  Health Branch) and  (Irrigation  Branch)  Respectively  Act,  1995. Though the  Act in  question is a valid piece of legislation but it is difficult to sustain Section 25 of the Act in toto since a  plain reading  of the  said provision does not make out any meaning. Section 25 of the Act is quoted hereinbelow in extenso:-      "25.   The   Haryana   Service   of      Engineers  Class  I,  Public  Works      Department  (Buildings   and  Roads      Branch), (Public Health Branch) and      (Irrigation  Branch)   Respectively      Ordinance, 1995  (Haryana Ordinance      No. 6 of 1995), is hereby repealed.      The Punjab  Service  of  Engineers,      Class-I,  Public  Works  Department      (Buildings and Roads Branch) Rules,      1960,   the   Punjab   Service   of      Engineers, Class  I,  Public  Works

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    Department (Public  Health  Branch)      Rules, 1961,  the Punjab Service of      Engineers  Class  I,  Public  Works      Department   (Irrigation    Branch)      Rules, 1964,  in their  application      to the  State of  Haryana, are also      hereby repealed  to the extent that      these rules shall continue to apply      to the  person who  were members of      the  Service   before  1st  day  of      November, 1966;      Provided that such repeal shall not      effect--      (a)  any   penalty  or   punishment      imposed as a result of disciplinary      proceedings;      (b)  any   disciplinary  action  or      proceedings  initiated  or  pending      under the rules so repealed;      (c)     any      relaxation      in      qualifications   granted   to   any      member of  the  service  under  the      rules so repealed;      (d) the  benefits  accrued  to  the      persons  who   have  retired   from      service during  a period commencing      from the  1st day of November, 1966      and  ending   with  the   date   of      promulgation of the Haryana Service      of Engineers, Class I, Public Works      Department  (Buildings   and  Roads      Branch), (Public Health Branch) and      (Irrigation  Branch)   respectively      Ordinance, 1995.      and   the    Punjab   Service    of      Engineers, Class  I,  Public  Works      Department  (Building   and   Roads      Branch)  Rules,  1960,  the  Punjab      Service  of   Engineers,  Class  I,      Public  Works   Department  (Punjab      Health Branch)  Rules 1961  and the      Punjab Service  of Engineers, Class      I,    Public    Works    Department      (Irrigation  Branch)  Rules,  1964,      shall continue to be in force as if      the same had not been repealed."      The aforesaid  provision  repeals  the  previous  Rules framed under  proviso to  Article 309 of the Constitution as well as  repealed the  Ordinance of  1995. It also saves the action taken in respect of matters enumerated in Clause a to d. It  further purports  to indicate  that the earlier Rules would apply  to the  person who  were members of the service before 1st day of November 1996 though on a plain reading of the main  part of  Section 25  really does  not  convey  the aforesaid meaning.  The learned  counsel appearing  for  the State of  Haryana could  not indicate as to what is the true meaning of  Section 25.  Dr. Rajiv  Dhawan,  learned  senior counsel, however,  in course of his arguments contended that though on a plain grammatical meaning being given to Section 25 is  not susceptible of representing the true intention of the Legislature and in fact it conveys absolutely no meaning bu the  Court  should  fill  up  the  gap  by  applying  the principle of  causes   and provide  the work "except" in the first part  of Section  25 after  the worked "to the extend" and such  filling up being done the provisions of Section 25

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would convey  the true  intention of the legislature. Though on principles  Mr. Dhawan,  learned senior  counsel  may  be right in this submission that Courts can apply the principle of causes  omissus and  fill the gap by adding certain words when the Statute does not convey the correct meaning. But it the case  in hand  we do  not think  it appropriate to apply that principle, inasmuch as the Act itself having been given retrospective effect with effect from 1st November, 1966 the date on which the State of Haryana came into existence there is no  rational to  apply the  pre existing  rules to  those employees who  were members  of the service before that date even after  the pre-existing  rule is  being repealed by the Act. In  this view of the matter we hold that the expression ‘to the  extent that  these rules shall continue to apply to the persons  who were  members of the Service before 1st day of November,  1966’ is  invalid and  is  accordingly  struck down. Remaining part of Section 25 as well as the proviso to the said Section will, however, remain operative.      Though in  view of our conclusion that the Act is intro virus, the  inter se seniority of the concerned officers are required to  be re-determined  in accordance  with  the  Act itself, subject however, to the restrictions that promotions already made  will not be annulled but since the judgment of the Punjab  and Haryana  High Court  in favour of the direct recruit  B.D.  Sardana  was  rendered  by  interpreting  the Recruitment Rules  of 1961  and  relying  upon  the  earlier decisions of  this Court  in Sehgal  and Chopra  (supra)  it would be  appropriate for  us to  also deal  with  the  said judgments since  an appeal has been carried to this Court by the promotees  in Civil  Appeal No.  422 of  1993. After the judgment of  this Court in Sehgal (supra) and Chopra (supra) when the  State Government drew up the seniority list in the rank of  Executive Engineers  on 6.4.92 Shri Sardana who had been appointed  directly as  an Assistant Executive Engineer on 7.12.1977  challenged the  said seniority  list  claiming therein that  initially 10  officers having formed the cadre when haryana  became a  separate State and all of them being promotees and  as such  the quota of promotees was in excess of  the  50%  which  is  the  permissible  quota  under  the Recruitment Rules,  he should  be given  the  position  just after  10   persons  who   constituted  the   initial  cadre irrespective of the fact that he was recruited on 7.12.1977. The further  contention before  the High  Court was that the State Government  was not entitled to re-determine the cadre strength each  year after  the judgment  of  this  Court  in Sehgal (supra)  and Chopra  (supra). The  High Court  by the impugned judgment  appears to  have been persuaded to accept both these  contentions and  the promotees,  therefore, have assailed the  legality of the same. Mr. D.D. Thakur, learned senior counsel  appearing for these promotees as well as Dr. Rajiv Dhawan,  learned senior  counsel appearing for some of the promotees urged that the High Court was in error to hold that the  State Government  was not entitled to re-determine the cadre  strength each  year retrospectively subsequent to the judgment  of this  Court in  Sehgal (supra)  and  Chopra (supra). It  was contended  that 10  persons who constituted the initial  cadre when  the State of Haryana was formed and all those  10 persons  having been allocated to Haryana from the erstwhile State of Punjab on the basis of their domicile it would be reasonable to construe and apply the Recruitment Rules which  was in  force in  Punjab  and  which  had  been adopted by Haryana by fictionally holding the recruitment of 10 persons to be the initial recruitment to the cadre and by fictionally holding  that the  Recruitment Rules  which  was adopted by Haryana was in fact came into existence so far as

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the State of Haryana is concerned on 1.11.1966. According to the learned  counsel unless such a construction is given the position will  be very  anomalous and  direct recruits  like Shri Sardana  will be  senior  to  promotees  who  had  been promoted even  in the  year 1968 or 1969 even though Sardana was recruited  as an  Assistant Executive  Engineer only  on 7.12.1977. According  to the  learned counsel  the  Rule  in question cannot be construed in such a manner to bring about gross inequities  and, therefore,  a reasonable construction should be  made. Mr. Sachhar, learned senior counsel and Mr. Mahabir Singh,  learned counsel  appearing  for  the  direct recruits and  Mr. Sardana, appearing in person, on the other hand, submitted  that it  was not  necessary for  the  State Government to  redetermine the  cadre  strength  every  year retrospectively since  the judgment  of this Court in Sehgal (supra) and  Chopra (supra) merely authorises the Government to determine  the cadre  strength if it has not already been done. According to the learned counsel such re-determination of cadre  strength every  year has  been mala fidely done by increasing the  strength of  the cadre  so as to accommodate the promotees  within 50% quota available for them under the Recruitment Rules  and, therefore, such redetermination must be struck  down and  the High  Court has rightly struck down the same.  It was  also contended  on their  behalf that the initial cadre  having been  constituted on 1.11.1966 and the entire  cadre   being  filled   up  by  application  of  the provisions of  the Recruitment  Rules, 5 of them were beyond the  permissible    limit  of  50%  quota  in  the  service. Consequently until the cadre strength is so maintained so as to bring  down the  ratio of 50% so far as the promotees are concerned any  direct recruit  may  during  the  intervening period must  be held  to be  senior to  such  promotees  and therefore, the  High Court  was fully  justified in  holding that  Mr.   Sardana  should   rank  below   10  persons  who constituted the  initial cadre  irrespective of the hardship that may  be caused  to  the  promotees.  According  to  the learned counsel  while interpreting  a particular  rule  the Court is  not required  to look  into the hardship which the interpretation  may     cause  so  long  as  the  rules  are unambiguous. It was ultimately contended that the High Court has rightly  struck down  the seniority  list that  has been drawnup on  6.4.1992 as  well as  the determination of cadre strength made  by the state government and, further the list that was  drawn up  on 15.4.1997,  while  the  appeals  were pending  in   this  Court  is  the  correct  gradation  list reflecting he  inter se seniority of the direct recruits and promotees correctly in accordance with the interpretation of the rules  given by this Court in the case of Sehgal (supra) and Chopra  (supra). The rival submissions require a careful examination of  the relevant   provisions of Rule of 1961 as well as  in the light of the earlier decisions of this Court in Sehgal  (supra) and  Chopra (supra). Before examining the same it  may be stated that the Division Bench of the Punjab and Haryana  High Court in the impugned judgment came to the conclusion that the State Government was not entitled to re- determine the  cadre strength  retrospectively and  by  such action of  the State  Government  by  increasing  the  cadre strength promotees  have  been  given  undue  advantage  and direct recruits  like B.D.  Sardana have  lost their  vested right and,  therefore, such  an order cannot be sustained in law. The High Court also further came to the conclusion that on carving  of State  of Haryana  when the initial cadre was fixed at 10 and 10 persons brought over from erstwhile State of Punjab  the  Recruitment  Rules  of  1961  must  be  made applicable to  them and  consequently the quota of promotees

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cannot exceed  50%. In this view of the matter since all the 10 persons  who constituted the cadre in 1966 were promotees and thus  far beyond  the permissible quota of 50% the first direct recruit  in the cadre Shri Sardana must be given 11th position in the seniority list and he would be senior to all those  promotees   who  were   promoted  after  the  initial formation  of  the  cadre  irrespective  of  their  date  of promotion as  an Executive  Engineer and irrespective of the date on  which Mr.  Sardana was  appointed  directly  as  an Assistant Executive  Engineer  on  7.12.1977.  As  has  been stated earlier,  this Court in A.N. Sehgal’s case (supra) on considering the recruitment rules decided the principles for determination of  inter  se  seniority  between  the  direct recruits and the promotees and left the matter for the State Government to  re-determine the  same by applying the law as declared by this Court. While interpreting the provisions of the Rules  the Court  came to  hold that  a promotee  within quota under  Rule 5  (2) gets his seniority form the initial date  of  his  promotion  and  the  year  of  allotment,  as contemplated in  Rule 12(6)  shall be  the next  below  ‘the juniormost officer  in the  service whether  officiating  or confirmed  as   Executive  Engineer   before  the   former’s appointment’ counting  the entire officiating period towards seniority, unless  there is break in the service or from the date  of   later  promotion.  Such  promotee,  by  necessary implication, would  normally become  senior  to  the  direct recruit promoted  later. Combined operation of sub-rules (3) to (5)  of Rule  12 makes the direct recruit a member of the service of  Executive Engineer  form the  date  of  year  of allotment as  an Assistant  Executive  Engineer.  The  Court further held  that necessary conclusion would, therefore, be that the  direct recruits  shall get  seniority with  effect from the  date of  the year  of the  allotment as  Assistant Executive Engineer  which  is  not  alterable.  Whereas  the promotee would  get his  seniority with effect from the date of the  availability of  the posts  within 50%  quota of the promotees and  the year  of allotment  is variable  and  the seniority  shall  be  reckoned  accordingly.  In  concluding paragraph of  the judgment the Court directed the Government of Haryana  to determine the cadre posts regularly form time to time  including the  post created  due to  exigencies  of service in  terms of  Rule 3(2)  read with  Appendix ‘A’ and allot the  posts in  each year  of allotment as contemplated under Rule  12 read  with  Rule  5(2)(a)  and  issue  orders appointing substantively  to the respective posts within the quota and  determine the  inter  se  seniority  between  the promotees and  direct recruits in the respective quota cadre posts of  Executive Engineers  etc. in  Sehgal  (supra)  the Court was  dealing with the service of Engineers Class I PWD (Roads and Building) Branch. Similarly in Chopra (supra) the Court dealt  with the  service of  Engineers (Public  Health Branch), the rules of Public Health Branch being the same as the rules  in  Roads  and  Building  Branch.  In  concluding paragraph of  the said judgment though an affidavit had been filed by one of the appellants that the State Government has determined the  cadre strength but this Court declined to go into the  question and  left it  open to  the Government  of determine the  seniority after  giving  opportunity  to  all parties in  the light  of the  law laid down in the case. In Chopra’s case  (supra) in  paragraph 10 of the judgment this Court had  observed that  under Rule 3(2) read with Appendix ‘A’ the  State Government is enjoined to determine the cadre post from time to time and during the first 5 years on first day of  January every  year and  later from time to time and divide the posts as per the ratio f the available cadre post

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to the  promotees and  the direct  recruits and  shall  make appointment in a substantive capacity.      In course  of argument  Mr. K.T.S Tulsi, learned senior counsel appearing  for the  State of Haryana had pointed out that the  State Government had taken steps for making direct recruitment to  the cadre  but as  no competent  people were available, per  force the cadre was to be managed by filling up the  posts by  promotees and  it was  done in  the public interest. The  learned counsel  had urged  that there  is no justification in  the arguments  advanced by the counsel for direct recruits  that the promotees were in fact given undue favour. We  are, however,  really not  concerned  with  this submission while interpreting the relevant provisions of the Rules and  the Rules having been framed under the proviso to Article  309   of  the  Constitution  the  same  has  to  be scrupulously followed.  But at  the outset  on going through the two  earlier decisions  of this  Court in Sehgal (supra) and Chopra  (supra) there should be no hesitation to come to the conclusion that the High Court was in error to hold that the State  Government was  not entitled  to re-determine the cadre strength  retrospectively  every  year  and  such  re- determination is  invalid and inoperative. On the other hand since the  cadre strength  had not been determined regularly though it  was enjoined  upon the  State Government to do so this Court  had called  upon the  State  Government  to  re- determine the  cadre strength  and thereafter  determine the inter se  seniority of  the direct recruits and promotees in terms of  Rule 12  of Recruitment  Rules bearing in mind the law laid  down by  this  Court  interpreting  the  different provisions of  the Rules.  The said  conclusion of  the High Court, therefore, must be quashed.      Now coming  to the  question  as  to  how  the  initial appointees to  the service are to be dealt with since in the two earlier  cases this  Court  had  never  considered  this question, the question assumes a greater significance.      The Rules  framed under  the proviso  to Article 309 of the Constitution came into force w.e.f. the <??> June, 1961, the date  on which  the Rule  was published  in the official Gazet. Under  sub-rule (1)  of Rule 3, it is stipulated that the service  shall comprise  of  such  number  of  posts  of Assistant   Executive    Engineers,   Executive   Engineers, Superintending Engineers  and  Chief  Engineers  as  may  be specified by  Government from  time to  time. Under sub-rule (2) of Rule 3 the strength of the service for the first five years after  the common  cement  of  these  rules  shall  be determined each  year on  the 1st  day of  January  or  soon thereafter as may be practicable according to the provisions of Appendix A and the strength so determined shall remain in force till  it is revised. Sub-rule (2) of Rule 5 stipulates that the  recruitment to  he service  shall be  so regulated that the  number of  posts filled up by promotion form Class II Service  shall not exceed fifty per cent of the number of posts in  the Service,  excluding  the  posts  of  Assistant Executive Engineers.  Proviso to  sub-rule (2) provides that till  adequate   number  of  Assistant  Executive  Engineers eligible and  considered fit for promotion are not available the actual  percentage of  officers promoted  form Class  II service may  be larger  than 50%.  Sub-rule (3)  of  Rule  5 speaks of  a fictional  situation namely  in the  service as constituted immediately  after  the  commencement  of  these rules, it  shall be  assumed  that  the  number  of  persons recruited by promotion form Class II Service shall be 50% of the senior posts in the Service and future recruitment shall be based on this assumption. Sub-rules (1) and (2) of Rule 3 and sub-rules  (2) and  (3) of  Rule 5  of 1961 Rules may be

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extracted herein below in extenso :      "3. Strength  of Service  : (1) the      Service  shall   comprise  of  such      number  of   posts   of   Assistant      Executive   Engineers,    Executive      Engineers and  Chief  Engineers  as      may be specified by Government from      time to time.      (2)  Without   prejudice   to   the      generality  of  the  provisions  of      sub-rule (1)  the strength  of  the      Service for  the first  five  years      after  the  commencement  of  these      rules shall be determined each year      on the  1st day  of January  or  as      soon   thereafter    as   may    be      practicable   according    to   the      provisions  of   Appendix  A.   The      strength so determined shall remain      in force till it is revised.      5. Recruitment  to  service  :  (2)      Recruitment to the service shall be      so regulated  that  the  number  of      posts  filled   by  promotion  from      Class II  Service shall  not exceed      fifty per  cent of  the  number  of      posts in the Service, excluding the      posts   of    Assistant   Executive      Engineers;      Provided that  till such time as an      adequate   number    of   Assistant      Executive   Engineers,    who    ar      eligible  and  considered  fit  for      promotion,   are   available,   the      actual   percentage   of   Officers      promoted from  Class II Service may      be larger than fifty per cent.      (3)  In the  Service as constituted      immediately after  the commencement      of these rules, it shall be assumed      that the  number  of  recruited  by      promotion from  Class II Service is      fifty per  cent of the senior posts      in   the    Service   and   further      recruitment shall  be based on this      assumption."      From a combined reading of the aforesaid provisions the following situation emerges :- (a)  That the  Rules came  into force  w.e.f. 9th  of  June, 1961 but the service existed even prior to the said date; (b)  On constitution  of the  service immediately  after the commencement of  the Rules by operation of a fictions it was assumed that  number of  persons recruited by promotion from Class II  service is  50% of the senior post in the service. This fictional  situation emerges in view of sub-rule (3) of Rule 5,  so that,  the future recruitment to the service can be regulated appropriately under sub-rule (2) of Rule 5; and (c)  A duty  was  enjoined  upon  the  State  Government  to determine the  strength of  the service each year on the 1st day of  January or soon thereafter as may be practicable for the first five years after the commencement of the Rules and the strength  thus determined  year to  year would remain in force till it is revised.      When recruitments were being made without determination of the  cadre strength  and statutory  rules came into force

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for the  first time  on 9th  of June, 1961 the Rules  cast a duty on  the Government to determine the cadre strength each year and  thereafter make  recruitment in  terms of  Rule  5 regulating the  manner of filling up the post in the service subject to  the provisions contained in sub-rule (2) of Rule 5. Rule  12 is  rules for  determination of  seniority. This Rule has  already been  interpreted by  this Court in Sehgal and Chopra  indicating the manner in which the seniority bas to be  determined inter  se between the promotees and direct recruits. When  State of  Haryana came  into  existence  and persons were  serving in  the erstwhile State of Punjab were drafted into  State of  Haryana and  constituted the initial cadre strength  of the  service in  the State of Haryana and the Government  of Haryana  adopted the Punjab Rules of 1961 for determining  the service  conditions of the employees it would be  reasonable to  hold that  so far  as the  State of Haryana is  concerned the  Recruitment Rules came into force on 1.11.1966  and since  the  persons  who  constituted  the service came  from erstwhile  State of Punjab depending upon their domicile  it would  be further  reasonable to construe that they  constituted the service soon after the rules were adopted by  the State  of Haryana  and thereafter  Rule 5(3) should be  attracted in  respect of  those 10  officers  who constituted the  service  and  by  such  application,  by  a fiction 50%  should be  treated to  be promotees  and on  so treating  them   further  recruitment  to  the  service  was required to  be regulated in accordance with sub-rule (2) of Rule 5  and it  is then  the inter  se seniority  has to  be determined under  Rule 12. In other words, out of 10 persons who were brought over form the erstwhile State of Punjab and constituted the  service in  the State  of Haryana 5 will be assumed to  have been  recruited by  promotion from Class II service by  application of  sub-rule (2)  of Rule  5 even if factually  all   the  10  were  promotees  while  they  were recruited under  the Punjab  Rules. Since  the initial cadre strength was  only 10  in the year 1966 and since under Rule 5(2) the  promotees cannot exceed 50% of the total number of posts in the services, the Recruitment Rules by fiction held 50%   of the  persons constituted  the  service  immediately after  the  commencement  of  the  Rules  to  be  promotees. Thereafter the  State Government was duty bound to determine the cadre strength every year in the first five years as per sub-rule (2)  of Rule  3 and in fact this direction had been given in  the earlier  judgments in  the case  of Sehgal and Chopra and after such determination of the cadre strength if in a  particular year  it is  found that  the promotees have usurped the quota of direct recruit then such promote cannot be held  to be  senior to the direct recruit notwithstanding their  earlier   recruitment  to   the  service.   If  these principles are  borne in  mind then the gradation list which had been  prepared by  the State  Government on 6.4.1992 was possibly the  correct gradation  list and the High Court was in error  to quash  the said  gradation list on a conclusion that the  earlier direction  of this  Court  in  Sehgal  and Chopra has  not been  followed. Obviously,  the  High  Court misunderstood the  directions of  this  Court  in  the  case Sehgal and  Chopra. We  are however, not going o examine the said gradation  list that  was prepared  on 6.4.1992  or any other gradation  list which  had been  prepared subsequently during the  pendency of these appeals, since in our view the Act having  been come into force and the Act have been given retrospective effect the seniority has to be drawn up afresh in accordance with the provisions of the Act.      So far  as the  rules dealing with Irrigation Branch is concerned, the said rules namely Punjab Service of Engineers

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(Irrigation Branch) Class I Service Rules, 1964 has not been considered earlier  by this  Court at any point of time. One Shri M.L.  Gupta was  appointed to  the  post  of  Assistant Executive  Engineer   as  a  direct  recruit  on  27.8.1971, pursuant to  he result  of a competitive examination held by the Haryana  Public Service  Commission in  December,  1970. Said Shri  Gupta was  promoted  to  the  post  of  Executive Engineer on  17.9.1976. He  made representation to the State Government to  fix up  his seniority  in accordance with the service  rules  but  as  the  said  representation  was  not disposed of for more than three years he approached the High Court of  Punjab and  Haryana by  filing C.W.P.  NO. 4335 of 1984. That petition was disposed of by the High Court on the undertaking given  by the  State that  the seniority will be fixed up soon. The said undertaking not having been complied with, said  Shri Gupta  approached the High Court in January 1986 by  filling Contempt  Petition. In  September, 1986 the State Government  fixed the  inter se seniority of said Shri Gupta and other members of the service ad Gupta was shown at serial no. 72. Two promotees had been shown at serial no. 74 and  75.   Those  two   promotees  filed   a  writ  petition challenging the  fixation of  inter se seniority between the direct recruits  and promotees  and High Court of Punjab and Haryana by its judgment passed in May 1987 quashed the order dated 29.9.1986  whereunder  the  seniority  of  the  direct recruits and  promotees has  been fixed  and called upon the State Government to pass a speaking order assigning position in the  gradation list.  The State Government issued a fresh notification  on   24.7.1987  giving  detailed  reasons  re- affirming the  earlier seniority  which had been notified on 29.9.1986. Prior  to the aforesaid notification of the State Government Shri  Gupta had  filed a  writ  petition  in  the Punjab and  Haryana High  Court which had been registered as CWP No.  6012 of  1986 claiming  his  seniority  at  No.  22 instead of  72  which  had  been  given  to  him  under  the notification dated  29.9.1986. The  promotees also  filed  a writ  petition   challenging  the   Government  order  dated 24.7.1987 which was registered as CWP No. 5780 of 1987. Both the writ petitions, one filed by direct recruit - Shri Gupta (CWP No.  6012 of 1986) and the other filed by the promotees (CWP No.  5780 of  1987) were  disposed of  by  the  learned Single Judge  by judgments  dated 24th January, 1992 and 4th March, 1992  respectively,  whereunder  the  learned  Single Judge accepted the stand of the promotees and Shri Gupta was placed below  one Shri  OP Ganged. Said Shri Gupta filed two appeals to  the Division  Bench against  the judgment of the learned Single Judge, which was registered as Letters Patent Appeal nos, 367 and 411 of 1992. The aforesaid Letter Patent Appeals were  allowed by  judgment dated  27th August, 1992. This judgment  of the  Division Bench  of Punjab and Haryana High Court  was challenged  by the  State of  Haryana in the Supreme Court  which has  been registered as CA Nos. 1448-49 of 1993.  This Court  granted leave and stayed the operation of the  judgment in the matter of fixation of seniority. The promotees also  challenged the said judgment of the Division Bench in  this Court  which has  been registered  as CA Nos. 1452-1453 of  1993. During  the pendency of these appeals in this Court,  a Ordinance  was promulgated  on  13.5.1985  as Ordinance No.  6 of 1995 and the said Ordinance was replaced by  the   impugned  Act   of  20  of  1995  by  the  Haryana Legislature. The  validity of the Act was challenged by said Shri Gupta and pursuance to the order of this Court the said writ petition having been transferred to this Court has been registered as T.C. No. 40 of 1996. So far as the validity of the Act  is concerned,  the question  of any  usurpation  of

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judicial power by the legislature does not arise in relation to Irrigation  Branch inasmuch  as the  Recruitment Rules of 1964 framed  by the  Governor of Punjab in exercise of power under proviso  to Article  309 of the Constitution which has been adapted  by the  State of  Haryana on and from the date Haryana was  made separate  State had not been considered by this court  nor any direction has been issued by this court. The legislative competence of the State legislature to enact the Act  had also  not ben  assailed and in our view rightly since the  State legislature  have the powers under Entry 41 of List  - II of the Seventh Schedule to frame law governing the conditions  of service  of the  employees of  the  State Government. That  apart Article  309 itself  stipulates that the appropriate  Legislature may  regulate the  recruitment, and conditions  of service  of persons  appointed, to public services and  posts in  connection with  the affairs  of the Union or  of any  State subject  to the  provisions  of  the Constitution. Proviso  to Article  309 confers  power on the President in connection with the affairs of the Union and on the Governor  in connection with the affairs of the State to make rules  regulating the recruitment and the conditions of service until  provision in  that behalf is made by or under an Act of the appropriate Legislature under Article 309 main part. In this view of the matter, the legislative competence of  the  State  legislature  to  enact  the  legislation  in question is beyond doubt. The only question which therefore, arises for consideration and which is contended in assailing the validity  of the  Act is  that under  the Act the direct recruits would  lose several positions in the gradation list and thereby  their  accrued  and  vested  rights  would  get jeopardised and their future chances of promotion also would be  seriously   hampered  and   such  violation  tantamounts violation of  rights under  Part -  III of the Constitution. For  the  reasons  already  given  while  dealing  with  the aforesaid contention  in connection  with the  Public Health Branch and  the Road Building Branch the contention rased in the Transfer  Case cannot  be sustained  and, therefore, the Transfer Case  would stand  dismissed. The  Act in  question dealing  with   the  service   conditions  of  he  engineers belonging to  the Irrigation  Branch must  be held  to be  a valid  piece   of  legislation   passed  by   the  competent legislature  and   by  giving  it  retrospective  effect  no constitutional provision  has ben  violated nor any right of the employee  under Part  - III of the constitution has been infringed requiring interference by this Court.      So far  as the  four appeals  are concerned, one at the instance of  the State  and other  at the  instance  of  the promotee engineer,  even  though  it  is  not  necessary  to examine those  appeals since  the inter  se seniority of the members of  the service  will have  to  be  re-drawn  up  in accordance with  the provisions  of the  Act, yet  arguments having been  advanced by the learned advocates appearing for the parties, we may briefly deal with the same. The Division Bench of  the Punjab  and Haryana High Court in disposing of the Letters  Patent Appeal  in favour  of the direct recruit has come  to the conclusion that the interpretation given by the Supreme  Court to the Recruitment Rules dealing with the Public Health  Branch and  the Roads  and Building Branch in Sehgal and  Chopra would  equally apply  to  the  Irrigation Branch. In  coming to  the aforesaid  conclusion the learned Judges of  the High  Court have  failed  to  appreciate  the difference between  the rules  dealing with  the  Irrigation Branch and  the two  sets of  rules dealing  with the Public Health Branch  and the  Roads and Building Branch. So far as the rules  dealing with  the Irrigation Branch is concerned,

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Rule 2(12)(c)  makes a  promotee  officer  on  probation  or having  successfully   completed  his   probation   awaiting appointment to  a cadre  post to  be a member of the service which was  not the  position in  the Public Health Branch as well as  in the  Roads and Building Branch. Then again under rule 5(2)  the percentage of promotees was required to be so regulated so  as not to exceed 75% of the number of posts in the service  for the  first 10  years form  the date  of the commencement of the Rules and thereafter it shall not exceed 50% of  the number  of posts  in the  service excluding  the posts  of  Assistant  Executive  Engineer.  Proviso  to  the aforesaid  rules  also  entitles  the  Government  to  grant permission beyond  75% during  the first  10  years  of  the commencement of  the rules and beyond 50% thereafter in case sufficient number  of direct  recruits - Assistant Executive Engineers  are   not  available   and  considered   fit  for promotion. Rule  12 which  deals with  the determination  of inter se  seniority is  also  somewhat  different  than  the similar rule  for the Public Health Branch and the Roads and Building Branch  which had  been considered by this Court in the cases  of Sehgal and Chopra. In this view of the matter, the Division  Bench of the Punjab and Haryana High Court was not justified  in disposing  of the  appeal relying upon the earlier decisions  of this  Court in A.N. Sehgal’s case. The learned Judges  have not  focussed their  attention  to  the difference in  the rules meant for the Irrigation Branch and the Rules  meant for  the Public Health Branch and Roads and Building Branch. The impugned judgment, therefore, passed by the Division  Bench of  the Punjab and Haryana High Court is erroneous and  cannot be  sustained. But  as has been stated earlier it  is not necessary to delve into the question in a more detailed  manner since  the Act  having come into force and the  Act  being  made  effective  retrospectively  w.e.f 1.11.1966, the  date on  which  the  State  of  Haryana  was formed, the  inter se  seniority has  to  be  determined  in accordance with the provisions of the Act. Consequently, the judgment of  the Punjab  and Haryana  High Court in LPA Nos. 367 and  411 of 1992 is set aside an the State of Haryana is directed to  re-determine the  inter  se  seniority  of  the members of the service belonging to the Irrigation Branch in accordance with the provisions of the Act. Civil Appeal Nos. 1448-1449 of 1993, 1452-1453 of 1993 and T.C. No. 40 of 1996 are disposed of accordingly.      In the  ultimate result, therefore, we hold Haryana Act 20 of  1995 is  intra virus  except part of Section 25 which has been  held to  be ultra virus. The Act having been given retrospective effect with effect from 1.11.1966 the inter se seniority of  direct recruits  and promotees  in each of the services, namely,  the PWD  Branch, the Public Health Branch and the  Irrigation Branch  will have  to be  re-drawn up in accordance with  the provisions  of the  Act. The  seniority lists already  drawn up  subsequent to  the judgment of this court in the case of Sehgal and Chopra and as well as during the pendency  of these  appeals in  this  court  are  of  no consequence in  view of  the Act  coming into  force. It is, however, made  clear that any promotion already given on the basis of  seniority determined  by the  Government under the pre-existing rules  will not be annulled notwithstanding any change in  the seniority to be determined under the Act. The impugned judgments  of Punjab and Haryana High Court are set aside. The  State Government  is directed to re-consider the question of seniority of the employees of the three Branches under the  Act within  a period of six months form today and to  give   consequential  promotion   on  that   basis  soon thereafter.

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    All the  appeals and the transfer cases are disposed of accordingly.