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PETITIONER: S.S. BOLA & ORS.

       Vs.

RESPONDENT: B.D. SARDANA & ORS.

DATE OF JUDGMENT:       11/07/1997

BENCH: S. SGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                             With Civil Appeal  Nos.423 of 1993, W.P. (C) No. 582/95 C.A. Nos. 1448-49 of 1993, 1452-53/93 and T.C. (C) Nos. 44-46/96,40/96                       J U D G M E N T S. SAHGIR AHMAD, J.      I have had the advantage of going through the judgments prepared  separately   by  brother   Ramaswamy  and  Brother Pattanaik.  i  agree  with  Brother  Pattanaik  on  all  the questions involved  in this  case, but  I want  to ad  a few words of  my own  without setting  out the facts of the case which have already been reproduced in the two Judgements. 2.   To declare  what the  law is  or has been is a judicial power. To  declare what  the law  shall be  is a legislative power. this is the principle deducible from the education of the Federal Court in Basanta Chandra Vs. Emperor AIR 1944 FC 86 (90)  and Ogden  vs. Black  Ledge 1804(2) Lawyers Edition 276 (278). 3.   It would be within the exclusive domain of judiciary to expound the law as it is and not to speculate what it should be as  it is  the function  to the  Legislature. It  is also within the  exclusive power  of the Judiciary to hold that a statute passed  by  the  Legislature  is  ultra  vires.  The Legislature in  that situation  dose not  become a  helpless creature as  it continues  to remain  a living  pillar of  a living constitution.  Though it cannot directly override the judicial decision,  it  retains  the  plenary  powers  under Articles 245,  246 and  248 to  alter the  law as settled or declared by judicial decisions. This is what was observed by this Court in M/S Anwar Khan Mahboob Co. vs. State of Madhya Pradesh (1966)  2 SCR 40, Which had the effect of indirectly overruling it s previous decision in Firm C.J. Patel & Co. & Ors. vs.  The State  of Madhya  Pradesh AIR 1953 SC 108. The Legislature can  also validate  an Act  which  was  declared invalid by  the Court  or amend it with retrospective effect so as  to remove  the grounds  of its  invalidity. (See  Rai Ramkrishna &  Ors. vs.  State of  Bihar (1964) 1 SCR 897 and Mt. Jadao Bahuji vs. Municipal Committee, Khandwa & Anr. AIR 1961 SC 1986. 4.   The power  to make  a law includes the power to give it retrospective effect  subject to  the restriction imposed by

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Article 20(1)  that a  legislature cannot make retrospective penal laws.  It would  be valid  for the Legislature to make any other  enactment with  retrospective effect  provided no fundamental Right is infringed by reasons of its taking away the vested  right. Under  the Scheme of the constitution, it is competent  for the  Legislature to  put  an  end  to  the finality of  a Judicial decision and, therefore, it would be competent for  the legislature  to  render  ineffective  the judgment of  a court  by changing  the basis of the Act upon which that  judgment was  founded (See:  Shri Prithvi Cotton Mills Ltd.  & Anr.  vs. Broach  Borough Municipality  & ors. (1970) 1  SCR 388=  (1962)2 SCC  522=(1933) Supp.  1 SCC 96. Hidayatulah, CJ.  in Shri  Prithvi Mills  case  observed  as under:      " When  a Legislature  sets out  to      validate a  tax declared by a court      to be  illegally collected under an      ineffective or  an invalid law, the      cause   for    ineffectiveness   or      invalidity must  be removed  before      validation   can    be   said    to      condition, of  Course, is  that the      Legislature must  posess the  power      to impose  the tax, for, if it does      not ,  the action  must ever remain      ineffective  and  illegal.  Granted      legislative competence,  it is  not      sufficient to  declare merely  that      the decision of the Court shall not      bind  for  that  is  tantamount  to      reversing the  decision in exercise      of   judicial   power   which   the      Legislature  does  not  possess  or      exercise. A  court’s decision  must      always bind  unless the  conditions      on  which   it  is   based  are  go      fundamentally  altered   that   the      decision could  not have been given      in the altered circumstances."      This decision was consider ed in Madan Mohan Pathak vs. Union of India & ors. (1978) 3 SCR 334= (1978) 2 SCC 50, but was not doubted by the majority view in that case. 5.   In Bhubaneshwar  Singh vs.  Union of India (1994) 6 SCC 77, it was observed that any action in exercise of the power under an  enactment, which  has been  declared invalid  by a court, cannot  be made  valid by merely saying so unless the defect which  has been  pointed out  by the Court is removed with retrospective  effect. It was further observed that the Validating legislation  must remove the Cause of invalidity. It was  father observed that till such defect as was pointed out by  the Court in a Statute was removed by the subsequent enactment with  retrospective effect,  the binding nature of the Judgment  of the Court cannot be ignored. In a situation of this  nature, it would be open to the Legislature to pass a Validating  Act, even  with retrospective effect, removing the defect or the ground on which the Statute was held to be bad or ultra vires. 6.   Where, however,  the statutory provision is interpreted by the  Court in  a particular  manner  and  directions  are issued for  implementing the  judgment in  the light  of the interpretation  placed  on  the  statutory  provisions,  the Legislature  need   not  pass  a  Validating  Act.  In  this situation, the Legislature in exercise of its plenary powers under Articles  245,246 and  248 can make a new Act altering fundamentally the  provisions which  were the  basis of  the

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judgment  passed  by  the  Court.  This  can  be  done  with retrospective effect.  So  far  as  service  conditions  are concerned, they  can be altered with retrospective effect by making service  rules under  Article 309 or by an Act of the Legislature. 7.   In the  instant case,  the judgments  rendered by  this Court in  the earlier decisions relating to the seniority of the present  incumbents were  founded on  the service  rules then existing  These service  rules have since been replaced by  the   impugned  Act   which  has   been  enforced   with retrospective effect.  The various  aspects of  merits  have been considered  by my  Brother  Pattanaik  an  d  I  cannot usefully add  any further words on merits. I fully agree and endorse  that   in  view  of  the  settled  legal  position, specially those set out in the decisions referred to earlier as also  in Comorin  Match Industries  (P) Ltd. vs. State of Tamil Nadu  (1996) 4  SCC 281,  Indian Aluminium Company vs, State of  Kerala (1996)  7 SCC  637; and  Meerut Development Authority & Ors. vs. Satbir Singh & Ors., (1996) 11 SCC 462, the impugned  Act, namely,  the Haryana  Act XX  of 1995  is valid to  the extent indicated by Brother Pattanaik. In this case the  rule of  seniority has been altogether altered and replaced by  a new  law made with retrospective effect so as to do  away the  mischief under which an undue advantage was being  provided  to  a  direct  recruit,  which  was  wholly inequitous and not sustainable on the principles of equity. 8.   I also agree that the judgments of the Punjab & Haryana High Court  are liable  to be set aside, with a direction to the  state  Government  to  re  determine  the  question  of seniority in  the light of this judgment and the Haryana Act XX of 1995. 9.   The  civil   Appeals,  the   Writ  Petition   and   the Transferred Cases  are disposed of accordingly with no order as to costs.