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PETITIONER: EX. CAPT. K.C. ARORA AND ANOTHER

       Vs.

RESPONDENT: STATE OF HARYANA AND OTHERS

DATE OF JUDGMENT26/04/1984

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) REDDY, O. CHINNAPPA (J) VENKATARAMIAH, E.S. (J)

CITATION:  1987 AIR 1858            1984 SCR  (3) 623  1984 SCC  (3) 281        1984 SCALE  (1)651  CITATOR INFO :  RF         1991 SC1047  (8)

ACT:      The Punjab  Government National Emergency (Concessions) Rules 1965  Rules 2,  and 3(ii),  as amended  by the Haryana Government  Gazette   Notification  No.   GSR   77/Const/Art 309/Amend/(1)/76  dated   August  9,   1976   amending   the definition of  the expression  "Military Service" in Rule 2, Constitutional  Validity-The   vested  accrued  right  of  a Government Servant cannot be taken away by making amendments of the rules with retrospective effect.

HEADNOTE:      In 1962  an emergency  was imposed by the Government of India on  account of  the external aggression by the Chinese forces in  the Indian Territory. The Government was in great need of youngmen to join the military service at the risk of their lives  to serve  the nation to cope with the emergency needs of the Government of India. The Government of India as well as  the  State  Governments  decided  to  give  certain benefits to  encourage the  young energetic  youths to  join military  service  at  the  critical  juncture  of  national emergency  and  therefore  issued  different  circulars  and advertisements on  radio and  the  press  promising  certain benefits to  youngmen who  join the  military service at the critical juncture.  Later on,  on the  instructions  of  the Central Government  concessions  as  were  promised  through circulars and  by other means were incorporated in the rules framed by  the joint  Punjab Government under Article 309 of the Constitution,  titled as  "The Punjab National Emergency (Concessions) Rules. 1965."      Keeping in view the needs of the country and assurances and  concessions  contained  in  conditions  of  service  in executive instructions,  the petitioners  and appellants and many others  like them joined the army during- the emergency as commissioned  officers in  1963-64 and  had rendered more than five  years of  service reckoned  from 26.10.1982 i. e. date of  proclamation of  emergency and  after their release from the  Army they  were entitled  to benefits  vested them under the conditions of service.      The petitioners  and appellants  and a number of others

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similar to  the petitioners joined the Haryana Government as Assistant  Engineers.  Consequent  upon  their  appointments against the  vacancies reserved  for ex-army  Officers, they became entitled to get their seniority fixed giving them the benefit of  their military  service, but  the gradation list prepared however  did not include their military service for the purposes  of fixation  of their  seniority. The State of Haryana just to deprive the petitioners and others similarly situated,  of  military  service,  amended  the  rules  with retrospective-effect  from   November  1,1966  vide  Haryana Government  Gazette   Notification  No.   GSR   77/Const/Art 309/Amend/(1)/76 dated  March 22,1976  introducing a proviso to rule 4 (ii) of the 1965 Rules and vide Haryana Government Gazette Notification No. GSR 182/Const/Art 309/Amend/(2)/ 624 76 dated  August 9,1976  amending Rule  2 of the 1965 Rules. These notifications  restricted  the  benefits  of  military service upto  January 10,  1968 the  date on which the first emergency was  lifted with the result that the vested rights which accrued to the petitioners in 1969, 1970 and 1971 have been taken  away. The  two writ  petitions Nos. WP 2065/1976 and WP  2065/1976 and WP 1088/1980 challenging the same were dismissed by  the Punjab  and Haryana  High Court  and hence their appeals  Nos. CA  3095 and 3096/1980 by way of special leave. Some  others directly  filed petitions in the Supreme Court under Art 32 and they are WPs 6437 and 6436 of 1980.      Allowing the appeals and the Petitions, the Court ^      HELD  :   1:1.  The   Parliament  as   also  the  State Legislature have  plenary powers  to  legislate  within  the field of  legislation  committed  to  them  and  subject  to certain  constitutional   restrictions  they  can  legislate prospectively as well as retrospectively. [632C-D]      1:2.  It   is,  however,   a  cardinal   principle   of construction that  every statute  is prima facie prospective unless it  is expressly  or by necessary implication made to have retrospective  effect.  But  the  rule  in  general  is applicable where  the object of the statute is to affect the vested rights  or to impose new burden or to impair existing obligations.  Unless   there  are   words  in   the  statute sufficient to  show the  intention  of  the  legislature  to effect existing rights, it is deemed to be prospective only. Provisions which  touch a  right in existence at the passing of the  statute are not to be applied retrospectively in the absence of  express enactment  or necessary  intendment. The Governor can also exercise the same powers under Art. 309 of the Constitution  and there  is not the slightest doubt that the  impugned   amendment   brought   in   has   been   made retrospective. The  impugned amendments  in the instant case by  necessary  implication  have  undoubtedly  retrospective effect. [632D-F]      Harbhajan Singh  v. State of Punjab [1977] 2 S.L.R. 180 ; Ex.  Major. N.C  Singhal v.  Director General Armed Forces Medical Service  : A.I.R.  1972 S.C. 628; State of Mysore v. M.N. Krishna Murty & Ors., [1973] 2 S.C.R. 575; Raj Kumar v. Union of  India & Ors., [1975] 3 S.C.R. 963 ; Wing Commander J. Kumar v. Union of India & Ors. [1982] 2 S.C.C. 116 ; B.S. Vadera v.  Union of  India &  Ors., [1968]  3 S.C.R.  575  ; discussed.      1:3.  The  Haryana  Government  cannot  take  away  the accrued rights  of the  petitioners and  the  appellants  by making amendment of the rules with retrospective effect. The impugned rule  4 (ii)  of  the  Punjab  Government  National Emergency  (Concessions)  Rule,  1965,  as  amended  by  the Haryana Government  Gazette Notification  No. GSR.  77/Const

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/Art.  309/Amend/(1)/76  dated  22nd  March,  1976  and  the Notification  No.   G.S.R.  182/Const/Art/309/Amend.  (2)/76 dated 9th  August,  1976  amending  the  definition  of  the expression ‘military service’ in rule 2, are ultra vires the Constitution, in so far as they effect prejudicially persons who had acquired rights. [639B-C-D-E]      State of Gujarat v. Raman Lal Keshav Lal Soni, [1983] 2 S.C.C. 33 ; followed. 625

JUDGMENT:      ORIGINAL JURISDICTION  : Writ Petitions Nos. 6436-37 of 1980       [Under Article 32 of the Constitution of India]                             AND              Civil Appeals Nos. 3095-96 of 1980      Appeal by  Special leave  from the  Judgment and  Order dated the  10th October, 1980 of the Punjab and Haryana High Court in C. Writ Petition No. 2065 of 1976 & 1088 of 1980)      P.C. Bhartari for the Appellant.      Dr. Y.S.  Chitale and M.G. Ramachandran for Respondents in Writ Petitions.      V.C. Mahajan, I.S. Goel and R.N. Poddar for Respondent.      The Judgment of the Court was delivered by      MISRA, J.  The present  writ petitions under Article 32 of the  Constitution and  the civil appeals by special leave arising  out   of  petitions   under  Article   226  of  the Constitution  raise   common  questions   of  law  and  are, therefore, being disposed of by a common judgment.      The pattern  of facts  in the present group of cases is the same  and therefore,  it is  not necessary  to give  the facts of  each case  separately. In  order to  bring out the points for  consideration in  these cases  we would  like to give the facts of writ petition No. 6436 of 1980.      In 1952  an emergency  was imposed by the Government of India on  account of  the external aggression by the Chinese forces on  the Indian territory. The Government was in great need of youngmen to join the military service at the risk of their lives  to serve  the nation to cope with the emergency needs of the Government of India. The Government of India as well as  the  State  Governments  decided  to  give  certain benefits to  encourage the  young energetic  youths to  join military  service  at  the  critical  juncture  of  national emergency. The  Government in  the  States  and  the  Centre issued different  circulars and  advertisements on radio and the press  promising certain benefits to be given to yougmen who join the military service at the critical juncture. 626      In July  1963 a  circular was  issued by  the Financial Commissioner, Punjab  with  regard  to  the  concessions  to civilian employees  and others  who joined military service, which will  account for increments, seniority and pension in civil employment.  Later on,  on  the  instructions  of  the Central Government  concessions  as  were  promises  through circulars and  by other means were incorporated in the rules framed by  the joint  Punjab Government under Article 309 of the Constitution.      Keeping in view the needs of the country and assurances contained in conditions of service in executive instructions the petitioners and the appellants and many others like them joined  the   army  during  the  emergency  as  Commissioned Officers in  1963-64. They were commissioned officers in the Indian Army for more than five years and after their release

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from the  Army they were entitled to benefits vested in them under the conditions of service.      The Haryana  Government in  the year 1969 advertised 16 posts of  temporary Assistant  Engineers in  P.W.D., B  &  R Branch. At the time of the advertisement on 28th of January, 1969 8  posts out  of the  total of 16 were reserved for ex- emergency commissioned officers and servicemen. Although the advertisement was  for 16 posts but at the time of selection 55 appointment  were  made,  out  of  which  20  posts  were reserved for ex-emergency commissioned officers. Out of this quota of  20 posts  only 7 appointments from amongst the ex- emergency  commissioned   officers  were   made.   Requisite qualifications for  ex-emergency commissioned  officers  and servicemen were as follows :      "1.  Diploma in  civil engineering  from  a  recognised           institution.       2.   Five  years continuous service with distinguished           record.       3.  Adequate knowledge of Hindi.           Note  :   For  purpose  of  counting  five  years’      continuous  service,   the   period   commencing   from      26.10.1962 will only be taken into consideration."      Again in November, 1970 38 posts of temporary Assistant Engineers were  advertised out of 18 posts were reserved for ex-emergency commissioned  officers. At  the time  of making appointments, however,  99 persons were appointed and out of these 99 posts 627 90   posts   were   declared   reserved   for   ex-emergency commissioned  officers.   But  again   only  7  ex-emergency commissioned officers  were appointed  in  response  to  the advertisement.      Petitioner No.  1 on  selection had  joined service  on 17th  of   August,  1971.   The  second  advertisement  also contained the  same qualifications  as  were  in  the  first advertisement. Thus  the two  petitioners in  writ  petition Nos. 6436-37 served the Indian Army for more than five years and thereafter  those  petitioners  were  appointed  in  the service of  the Haryana  Government as  temporary  Assistant Engineers against  the posts  reserved for  the ex-emergency commissioned officers.  There were a number of other persons similar to  the petitioners  who were also appointed against the vacancies reserved for ex-Army officers.      The Government  of Punjab  prior to  the  formation  of Haryana made  statutory  rules  under  Article  309  of  the Constitution which are called ‘The Punjab National Emergency (Concession) Rules,  1965. The relevant rules 2, 3, 4, and 5 of these rules are as under :           "2. Definition  :- For the purpose of these rules,      the expression  ‘military service’  means  enrolled  or      commissioned service  in any  of the three wings of the      Indian Armed  Forces (including  service as  a  Warrant      Officer) rendered  by a  person during  the  period  of      operation of  the proclamation of emergency made by the      President under  Article 352  of  the  Constitution  of      India on  the 26th  October, 1962 or such other service      as may  hereafter be  declared as  military service for      the purposes  of these  rules. Any  period of  military      training followed  by military  service shall  also  be      reckoned as Military Service.      3. Maximum age-limit and minimum qualification :      i)   The maximum  age-limit prescribed  for appointment           to any  service or post shall be relaxed in favour           of a  person who  has rendered military service to           the extent  of his  military service,  provided he

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         produces  a   certificate   from   the   competent           authority that he had rendered continuous military           service for  a period  of not less than six months           and was  discharged because  of demobilisation  or           reduction not  more than  three years prior to the           date of his registration at an employment 628           exchange  or  the  date  of  his  application  for           employment under the Government.      ii)  A person who has become disabled while in military           service shall also be entitled to exclude from his           age the period from the date he was disabled up to           the date of his application for appointment to any           service or  post under the Government, or till the           end  of   the  present   emergency,  whichever  is           shorter.      iii) In case a person who has rendered military service           does  not   possess  the   minimum   qualification           prescribed for  any service  or post,  he shall be           deemed to  possess  these  qualifications  if  the           appointing authority  certifies that such a person           has   acquired    by   experience   or   otherwise           qualification equivalent  to those  prescribed for           that service or post.        4. Increments, seniority  and  pension  :  period  of      military service  shall count for increments, seniority      and pension as under :-         (i) Increments  : The  period spent  by a  person on      military  service,  after  attaining  the  minimum  age      prescribed for  appointment to  any service or post, to      which he  is appointed,  shall  count  for  increments.      Where no such minimum age is prescribed the minimum age      shall be  as laid  down in  rules 3.9, 3.10 and 3.11 of      the  Punjab   Civil  Services  Rules  Volume  II.  This      concession shall,  however, be admissible only on first      appointment.         (ii) Seniority  : The  period  of  military  service      mentioned  in   clause  (1)   shall   be   taken   into      consideration  for   the  purpose  of  determining  the      seniority  of   a  person  who  has  rendered  military      service.         (iii) Pension  :  The  period  of  military  service      mentioned in  clause (i)  shall count  towards  pension      only in  the case of appointments to permanent services      or posts  under the Government subject to the following      conditions :        (1) The person concerned should have earned a pension      under military rules in respect of the military service      in question. 629        (2) Any bonus or gratuity paid in respect of military      service by  the defence  authorities shall  have to  be      refunded to the State Government.        (3) The period, if any, between the date of discharge      from military  service and  the date  of appointment to      any service  or post  under the  Government shall count      for pension,  provided such  period does not exceed one      year. Any  period exceeding  one year but not exceeding      three years may also be allowed to count for pension in      exceptional cases under the orders of the Government.        5. Seniority, promotion, increment, pension and leave      of Government  employees:- The period spent on military      service  by  a  Government  employee  shall  count  for      seniority  promotion,  increment  and  pension  in  the      service or  post held  by him  immediately  before  his

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    joining  military   service.  A   permanent  Government      employee who renders military service, shall earn leave      during  such  service  according  to  the  leave  rules      applicable  to   him  immediately  before  his  joining      military  service.  A  temporary  Government  employees      shall during  military  service,  be  governed  by  the      military rules  in all respects. The employee concerned      shall be  entitled to  proforma promotion in his parent      department under  the ’next  below’ rule  and  also  to      seniority in  higher posts  to which he would otherwise      have been  entitled  if  he  had  not  joined  military      service.      According to  these rules  and the  previous assurances given by  the Government  the petitioners  were to  be given seniority by  counting period  of military  service for  the purpose of  determining seniority,  increments  and  pension etc.  Immediately  on  appointment  of  the  petitioners  as temporary Assistant  Engineers they  became entitled  to get their seniority  fixed giving  them  the  benefit  of  their military service  but the  gradation list prepared, however, did not  include the military service of the petitioners for the purpose  of fixation  of their  seniority. The  State of Haryana  just   to  deprive   the  petitioners,  and  others similarly situated,  of military  service amended  the rules with retrospective  effect  from  1st  November,  1966  vide Haryana   Government   Gazette   Notification   No.   G.S.R. 77/Const/Art. 309/Amend/(1)/76  dated 22nd  March, 1976. The Amendment was  made in  the rule  4(ii) by adding a proviso, which is in the following terms: 630           "Provided  that   a  person  who  has  availed  of      concession under  sub-rule (3) of rule (3) shall not be      entitled to the concession under this clause."      The Government  also issued  a notification  No. G.S.R. 182/Const/Art/.  309/Amend/(2)/76  dated  9th  August,  1976 making  amendment   in  the  definition  of  the  expression ’military service’  in rule  2 just  to retreat  from  their previous commitments. It reads:           "For the  purpose of  these rules  the  expression      military service’  means  the  service  rendered  by  a      person, who  had been  enrolled or  commissioned during      the  period   of  operation   of  the  proclamation  of      emergency made  by the  President under  Article 352 of      the Constitution  of India on 26th October, 1962 in any      of  the   three  wings   of  the  Indian  Armed  Forces      (including the service as a Warrant Officer) during the      period of  the said  emergency or such other service as      may hereafter  be declared  as military service for the      purpose of these rules. Any period of military training      followed by  military service shall also be reckoned as      military service."      This notification  has been  issued with  retrospective effect  from  1st  of  November,  1966  and  restricted  the benefits of military service upto 10th of January, 1968, the date on which the first emergency was lifted with the result that the  vested rights  which accrued to the petitioners in 1969, 1970 and 1971 have been taken away.      Some  of   the  ex-military   officers  challenged  the impugned amendment  and the  consequent  gradation  list  by filing two petitions, writ petition No.1088 of 1980 and writ petition No.  2065 of  1976 in  the High Court of Punjab and Haryana under  Article 226  of the  Constitution. Both these writ petitions  were dismissed  by the  High Court  and they gave rise  to civil  appeal  Nos.  3096  and  3095  of  1980 respectively. Some  of the  ex-military officers  have filed

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writ petitions  directly before  this Court under Article 32 of the Constitution and they are writ petition Nos. 6436 and 6437 of 1980.      The petitioners in the writ petitions under Article 226 of the  Constitution before  the High  Court challenged  the amendment  of   the  Punjab  Government  National  Emergency (Concession) Rules 631 1965 with retrospective effect as violative of Arts. 14, 16, 19,31 and  311  of  the  Constitution  and  prayed  for  the following relief:      1.       The   Punjab  Government   National  Emergency           (Concession) Haryana  First Amendment  Rules, 1976           be declared ultras. Article 16 of the Constitution           of India.      2.    A  writ in  the nature of certiorari quashing the           seniority list  of Haryana  Service of  Engineers,           PWD (B & R Branch), Class II be issued.      3.    A  writ  in  the  nature  of  mandamus  directing           respondents 1  and 2  to declare  the  petitioners           senior to respondents.      The  High   Court  came  to  the  conclusion  that  the petitioners have  availed of  the concession  under sub-rule (3) of  rule 3  of 1965.  Rules inasmuch  as the educational qualifications in  the case  of  the  petitioners  had  been relaxed in  terms of  sub-rule (3)  of rule  3 and  they had availed  of   these  concessions   at  the   time  of  their recruitment as  temporary Assistant  Engineers. Now  by  the impugned amendment the concession of double benefit has been withdrawn by  adding the  proviso to  cl.  (ii)  of  rule  4 introduced in  1976. previously an ex-servicemen could avail of  the   concession  of   relaxation  in   the  educational qualification at the time of recruitment on the basis of his military service.  Under rule  4  he  could  count  military service towards  seniority. The  proviso has  taken away the second benefit.  The ex-serviceman  who has  been  recruited after availing  of the concession in academic qualifications cannot count  his military  service towards seniority in the civil post  held by  him. This concession has been withdrawn by the  Governor in  exercise of his powers under proviso to Art. 309  of the  Constitution and the amendment having been made in  exercise of the legislative powers conferred on the Governor by  the Constitution  are valid  and suffer from no infirmity. The  High Court  also took the view that there is no estoppel  against the  Government in  the exercise of its legislative sovereign  or executive  powers. The State could amend the  1965 Rules and take away the benefits bestowed on the petitioners.  It also  held that the rules can be framed with retrospective effect and they can take away even vested rights. In  the opinion  of  the  Eight  Court  the  diploma holders in  engineering on  the basis  of their  educational qualification formed  one  class  separate  from  other  ex- emergency commissioned  officer who  are degree  holders  in engineering and  that classification  in the  service can be made on 632 the  basis   of  educational   qualifications  and   such  a classification is not bad.      The appellants  in the appeals against this judgment of the High  Court reiterated  the same contentions before this Court. In  the two  petitions under  Art. 32 of Constitution also similar points have been raised. The main contention on behalf of  the appellants  as  well  as  on  behalf  of  the petitioners is  that the  rules could  not be  amended  with retrospective effect  to deprive  them of  the vested rights

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and if  the appellants  and the  petitioners are entitled to the benefits  of military  service per  force they  would be much more  senior to  others and the gradation list prepared in complete  ignorance of  the military  service will not be according to law.      It may  be pointed  out at  the very  outset  that  the Parliament as also the State Legislature have plenary powers to legislate  within the  field of  legislation committed to them and subject to certain constitutional restrictions they can legislate  prospectively as  well as retrospectively. It is, however, a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary  implication made to have retrospective effect. But the  rule in  general is  applicable where the object of the statute  is to affect the vested rights or to impose new burden or  to impair  existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to  effect existing  rights, it  is deemed to be prospective  only.   Provisions  which   touch  a  right  in existence at  the passing  of the  statute  are  not  to  be applied retrospectively  in the absence of express enactment or necessary  intendment. The Governor can also exercise the same powers  under Art. 309 of the Constitution and there is not the  slightest doubt that the impugned amendment brought in has  been made  retrospective. The  impugned amendment in the instant case by necessary implication have undoubtedly a retrospective effect.      For the  petitioners it was contended that the benefits acquired could  not be  taken  away  by  an  amendment  with retrospective effect.  It was  further  contended  that  the amendment was  discriminatory and  that the  retrospectivity given to  the provisions  of the Amending Act could not cure the discrimination  introduced by  the Act  and sought to be perpetuated by  it. In  support of  this contention reliance was placed upon Harbhajan Singh v. The State of Punjab. 633 In that case the question that fell for consideration before the Constitution  Bench of the Punjab and Haryana High Court was regarding  the interpretation  of rule 3(iii)(cc)(ii)(b) of   the   Demobilised   Indian   Armed   Forces   Personnel (Reservation of Vacancies) in Punjab Civil Service (Judicial Branch)  (First  Amendment)  Rules,  1976.  The  Demobilised Indian Armed  Forces Personnel (Reservation of Vacancies) in the Punjab  Civil Service (Judicial Branch) Rules, 1969, had been  repealed  and  the  Demobilised  Indian  Armed  Forces Personnel (Reservation  of Vacancies)  in the  Punjab  Civil Service (Judicial  Branch) Rules,  1975, as amended, were in force and these excluded from the category of released Armed Forces Personnel,  persons who had joined a civil service of the Union  or a  State or  a civil post under the Union or a State after  their release  from the  Armed  Forces  of  the Union. The Court dealing with the question observed:           "Now the  rule-making  authority  must  have  been      aware that a competitive examination for appointment to      the service  had been  held under  the  old  rules  and      appointments were  yet in the offing. Surely, the rule-      making  authority   did  not  intend  to  exclude  from      appointment candidates  who were eligible under the old      rules but  became ineligible  by reason of an amendment      of the  rules made  after the  process of selection had      almost reached  a final stage. The amendment did not in      any manner  touch the qualifications of the candidates.      Had the  amended rule been in force from the beginning,      persons in  the position  of the  petitioner might  not      have accepted  any employment and preferred to wait for

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    selection and  appointment to  the Punjab Civil Service      (judicial Branch). Are they to be penalised "by barring      their entry  into the  Punjab Civil  Service  (Judicial      Branch) because they accepted employment at a time when      acceptance  of   such  employment  was  not  a  bar  to      appointment to  the service  ? We  do not think that we      will be  justified in  attributing such an unreasonable      intention to  the rule-making  authority. In  our view,      the only reasonable interpretation of the amended rule,      consistent with  the prevailing  situation, is  to hold      that only  those persons  who having joined the service      of the  Union or the State or a post under the Union or      the State  previously continued to hold the post on the      date of the coming into force of the rule, are excluded      from appointment  to the Punjab Civil Service (Judicial      Branch). The expression ’joined 634      or joins’  must be given a reasonable interpretation in      the context  of the  situation and  we think  that  our      interpretation  does   not  strain   the  language   or      attributes   unreasonableness    to   the   rule-making      authority. In  that view, the petitioner cannot be said      to be ineligible for appointment."      Next reliance  was placed upon Ex-Major N.C. Singhal v. Director General, Armed Forces Medical Service. In that case the conditions  of service of the appellant were governed by paragraph 13  of the Army Instruction No I/S of 1954 and his previous full  pay commissioned  service  should  have  been taken in  the matter  of ’antedate’  for the  purpose of his pay. The  conditions of  service were, however, sought to be altered by Army Instruction No. 176 of 1965 to the prejudice of the  appellant. This  Court held  that the  conditions of service in  this regard  were not  liable to  be altered  or modified to  the prejudice  of the appellant by a subsequent administrative   (Army?)   instruction   which   was   given retrospective effect from 26th October, 1962.      Reliance was  also placed  upon State of Mysore v. M.N. Kirshna Murthy  & Ors.  In that  case also the rules of 1959 had been  amended which  sought to  disintegrate the service which  had  been  integrated.  This  Court  held  that  such amendment made  for the  purpose of  justifying the  illegal promotion made,  in the teeth of the protection conferred by Articles 14  and 16(1)  of the  Constitution of  India  upon Indian citizens  in Government service, could not be upheld. The power  of  making  rules  relating  to  recruitment  and conditions of service under the proviso to Article 309 could not be  used to  validate unconstitutional discrimination in promotional chances  of Government  servants who belonged to the same category.      Shri Mahajan appearing for respondent No. 1 in reply on the other  hand contended  that the  rules  made  under  the proviso to  Article 309  of the Constitution are legislative in  character   and,  therefore,   can   be   given   effect retrospectively. In  support of  his submission  he  counted upon Raj Kumar v. Union of India & Ors.      He also  relied on  Wing Commander J. Kumar v. Union of India &  Ors. In  that case a contention was raised that the impugned rule 635 not having been specifically declared to be retrospective in operation, its provisions cannot be applied to the appellant inasmuch as  he had  been inducted into the R & D cadre long prior to  the promulgation  of the  new  rules.  This  Court dealing with the point observed:           "We have  already found  that, as a matter of fact

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    the  practice   generally  followed   in  the   R  &  D      Organisation even  prior to  the  promulgation  of  the      impugned rules,  was to reckon seniority with reference      to the  date of  attainment of  the rank of substantive      major/equivalent. Even otherwise, when a statutory rule      governing seniority  is issued in respect of a service,      the said rule would govern the personnel in the service      with effect from the date of its promulgation and in so      giving effect  to the  rule  in  future,  there  is  no      element of retroactivity involved. Of course, the rules      will not  operate to  deprive any  person of promotions      already earned in the past, but, for purposes of future      promotions  and   seniority  in   the  department,  the      principles  laid   down  in   the  impugned  rule  will      necessarily govern all the personnel alike."      This case  instead of supporting the contention of Shri Mahajan goes  to strengthen  the contention raised on behalf of the appellant and the petitioners.      Much emphasis  was laid  by Shri Mahajan on the case of B.S. Vadera  v. Union  of India  & Ors.  In  that  case  the petitioners, who  were working  as Assistants, were reverted as Upper  Division Clerk  in 1967  by the  operation of  the Railway Board’s Secretariat Clerical Service (Reorganisaion) Scheme. The  said scheme  was framed on February 5, 1957 but was brought  into effect  from  December  1,  1954.  Certain modifications to the scheme relating to the manner of filing up of  permanent and  temporary vacancies  in Grade I of the Service were  made in  1963. The  petitioners challenged the orders of  reversion as  illegal inasmuch as their promotion as Upper Division Clerks and later as Assistants had been on a permanent  basis and  could not  be disturbed and that the scheme  as   well  as  the  various  orders  passed  by  the respondents were  violative of  Articles 14  and 16  of  the Constitution, that  the Railway Board had no power in law to frame either  the scheme  or to  modify the  scheme so as to have retrospective  effect from December 1, 1954. This Court held that the ranking given to the petitioners as a result 636 of which the impugned orders of reversion were passed was in accordance with  the scheme as modified in 1963, and once it is held that the petitioners did not satisfy the requirement of the scheme for being retained as Assistants, there was no question of any discrimination under Article 14 or violation of Article  16, and  that the  Indian Railway  Establishment Code had  been issued  by the  President in  exercise of the powers vested  in him  by the  proviso to Article 309 of the Constitution. Rule  157 of  the Code gives the Railway Board full powers  to make  rules of  general application  to non- gazetted railway servants under their control, and the power to make  rules with retrospective effect cannot be denied to the Railway  Board. Accordingly,  the scheme  framed by  the said Board  in 1957  could be made retrospectively effective from December  1, 1954.  This case undoubtedly supports Shri Mahajan in  his contention  that the  rules can be made with retrospective effect  and there  is nothing  wrong in such a rule. This  case, however,  did  not  deal  with  the  point specifically raised in the present case.      The question,  however, has  been pointedly  considered recently by  a Constitution  Bench of this Court in State of Gujarat v.  Raman Lal  Keshav Lal  Soni. In  that  case  the Gujarat Panchayats  Service was  initially constituted  soon after the  passing of the Gujarat Panchayats Act. There were three cadres  : the district cadre, the taluqa cadre and the local cadre.  Secretaries, Officers  and servants of the old village panchayats  under the Bombay Village Panchayats Act,

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1958 became  secretaries, officers  and servants  of the new gram panchayats  under s.325(2)(x) of the Gujarat Panchayats Act, 1961. Talatis and kotwals, who were government servants were secretaries  and officers of the old village panchayats under the  Bombay Village  Panchayats Act and so they became secretaries and  officers of  the new  gram panchayats under the  Gujarat   Panchayats  Act.  1961.  Some  municipalities constituted for  municipal districts  and municipal boroughs under the  Bombay District  Municipal  Act  and  the  Bombay Municipal Boroughs  Act, as applied to areas in the State of Gujarat, were converted into Gram and Nagar Panchayats under section 307  of the  Gujarat Panchayats Act and all officers and servants  in the  employ of  such municipalities  became officers and servants of interim Panchayats and allocated to the panchayat  service. Thus,  secretaries and  officers  of dissolved  municipalities   also  became   secretaries   and officers of Gram and Nagar panchayats. District 637 Local Boards  constituted under  the Bombay Local Boards Act stood dissolved on the passing of the Gujarat Panchayats Act and all officers and servants in the employment of the Board were  deemed  to  be  transferred  to  the  service  of  the successor  District  Panchayat  under  section  326  of  the Gujarat Panchayats  Act. Also  allocated  to  the  panchayat service were  those government  servants who are transferred to the  panchayat under  section 157 and such other officers and  servants   employed  in   the  state  service  as  were necessary. All  these  secretaries,  officers  and  servants became members  of a service under the State as soon as they were allocated to the panchayat service But, by the Amending Act, secretaries,  officers and  servants of  Gram and Nagar Panchayat who  were allocated  to the panchayat service from the ranks  of the  ex-municipal employees  were sought to be meted out  differential treatment  from the other members of the panchayat  service, more  particularly the  secretaries, officer and  servants of  Gram and Nagar Panchayats who were drawn from the ranks of secretaries, officer and servants of old village  panchayats, that  is, the  Talatis and Kotwals. Their status  as members of a service under the state was to go with  no option to them. Retrospectivity was sought to be given to  the Amending Act so that they could not claim that they were  ever government servants and so could not be made to cease  to be  government servants  and so that they could not claim  that  they  were  singled  out  for  differential treatment for  if they  were never  in the panchayat service they could  not complain of being taken out of the panchayat service. Brother  O. Chinnappa  Reddy speaking for the Court emphatically observed:-           Now in  1978 before  the Amending  Act was  passed      thanks to  the provisions  of the principle Act of 1961      the ex-municipal  employees who  had been  allocated to      the  panchayat   service  as  Secretaries  Officer  and      servants of Gram and Nagar Panchayats, had achieved the      status  of   government  servants.   Their  status   as      government servants  could not  be extinguished so long      as the posts were not abolished and their services were      not terminated  in accordance  with the  provisions  of      Article 311 of the Constitution. Nor was it permissible      to single  them out  for differential  treatment.  That      would offend Article 14 of the Constitution. An attempt      was made  to justify  the purported  differentiation on      the basis  of history  and ancestry  as it were. It was      said that  Talatis and  Kotwals who became secretaries,      officers and servants of Gram and Nagar Panchayats were      government servants, even to start

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638      with,  while   municipal  employees   who  became  such      secretaries, officers  and servants  of Gram  and Nagar      Panchayats were  not. Each  carried  the  mark  or  the      ’brand’ of his origin and a classification on the basis      of the source from which they came into the service, it      was claimed,  was permissible.  We are clear that it is      not. Once  they had joined the common stream of service      to  perform   the  same   duties,  it  is  clearly  not      permissible to  make any classification on the basis of      their  origin.   Such   a   classification   would   be      unreasonable and  entirely  irrelevant  to  the  object      sought to  be achieved.  It is to navigate around these      two obstacles  of Article  311 and  Article 14 that the      Amending Act  is sought  to be  made retrospective,  to      bring about an artificial situation as if the erstwhile      municipal employees  never became  members of a service      under the  State. Can  a law be made to destroy today’s      accrued constitutional rights by artificially reverting      to a situation which existed 17 years ago ? No.           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 have to conform to the dos and      don’ts of  the Constitution,  neither  prospective  nor      retrospective  laws   can  be  made  so  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   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.......Today’s equals cannot be made      unequal by  saying that  they were unequal 20 years ago      and we will restore that position by making a law today      and making  it  retrospective.  Constitutional  rights,      constitutional    obligations     and    constitutional      consequences cannot  be tampered  with that  way. A law      which if made today 639      would be  plainly invalid  as offending  constitutional      provisions in  the context  of the  existing  situation      cannot become  valid by  being made retrospective. Past      virtue (constitutional)  cannot be  made  to  wipe  out      present vice  (constitutional) by  making retrospective      laws. We  are, therefore,  firmly of  the view that the      Gujarat  Panchayats   (Third  Amendment)  Act  1978  is      unconstitutional as  it offends Articles 311 and 14 and      is arbitrary and unreasonable."      In  view   of  this   latest   pronouncement   by   the Constitution Bench of this Court, the law appears to be well settled and  the Haryana  Government cannot  take  away  the accrued rights  of the  petitioners and  the  appellants  by making amendment of the rules with retrospective effect.      For the foregoing discussion the writ petitions as well as the  appeals are allowed and the orders of the High Court

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dated October  10, 1980  are quashed  and the  impugned rule 4(ii)  of   the   Punjab   Government   National   Emergency (Concessions)  Rules   1965  as   amended  by   the  Haryana Government  Gazette   Notification  No.GSR   77/  Const/Art. 309/Amend/(1)/76 dated  22nd March 1976 and the Notification No. GSR. 182/Const/Art. 309/Amend/(2)/76 dated 9 August 1976 amending the definition of the expression ’military service’ in rule 2 are declared to be ultra vires the Constitution in so far as they affect prejudicially persons who had acquired rights as  stated above. A writ in the nature of mandamus is issued directing  respondents Nos.  1 and  2 to  prepare the seniority list  afresh in  the light of the decision of this Court  taking   into  consideration   the  military  service rendered by the petitioners as well as the appellants.      In the  circumstances of the case however there will be no order as to costs.      S.R.                       Appeals & Petitions allowed. 640