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PETITIONER: RAVINDRANATH PAI & ANR

       Vs.

RESPONDENT: STATE OF KARNATAKA & ANR.

DATE OF JUDGMENT20/02/1995

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) KULDIP SINGH (J) HANSARIA B.L. (J)

CITATION:  1995 AIR 1978            1995 SCC  Supl.  (2) 246  JT 1995 (2)   520        1995 SCALE  (1)800

ACT:

HEADNOTE:

JUDGMENT: 1.   These two civil appeals by special leave     seek    to challenge a common order dated     30.1.1988     of      the Administrative Tribunal, Karnataka in Application Nos.  4814 and  4815 of 1986 moved by the present two appellants.   The Tribunal has dismissed these applications. 2.   A few introductory facts to highlight   the      common grievance of the appellants   may  be noted at  the  outset. The   appellants   were   initially   diploma   holders   in engineering.   They  were recruited as  Supervisors  in  the years  1960  and  1961 in the  Public  Works  Department  of Karnataka State. Later, appellant no.  1 acquired degree  in civil  engineering  in  1967 and appellant  no.  2  acquired graduation in engineering in 1970.  At the time of their re- cruitment,  relevant recruitment rules envisaged  that  only degree  holders  were  entitled to be  appointed  as  Junior Engineers,  whereas  diploma holders could be  appointed  as Supervisors.  In 1969 this position was changed and both the cadres of Junior Engineers and Supervisors were merged  into one  cadre  of Junior Engineers.  This was  followed  by  an order of the Karnataka State in 1971 extending identical pay scales  with  retrospective effect from   1.1.1957  to  both graduate and diploma holder Junior Engineers.  The Karnataka State  by another order dated 9.1.1974 sought  to  bifurcate the  service  into  two  cadres,  namely,  Junior   Engineer (Division-1) and Junior Engineer (Division-II).  The  former cadre  was  to comprise of degree holders and the  later  of diploma holders.  This bifurcation of cadres was sought to 523 be   given   retrospective  effect   from   3.7.1969.   This retrospective  bifurcation was sought to be supported by  an enactment called the Karnataka State Civil Services (Classi- fication  and Scale of Pay of Non-graduate Junior  Engineers of  the  Public Works Department) Act, 1975 being Act  9  of 1975.  The Act provided for classification and scale of  pay

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admissible  to non-graduate Junior Engineers of  the  Public Works Department of the State of Karnataka.  By Section 2 of the said Act, the posts of nongraduate Junior Engineers were declared to have existed with retrospective effect from  1st November, 1956.  By sub-section 2(1)(ii) of the said Act  it was provided that the scales of pay admissible to such  non- graduate  Junior Engineers were to be only  those  specified for  such  category  of posts and not  those  admissible  to category  of Junior Engineer graduates.  These  scales  were also given retrospective effect from 1. 11. 1956. 3.   The  aforesaid  bifurcation of cadres  was  brought  in challenge in Karnataka High Court by writ petition no.  3182 of 1973.  During the pendency of the writ petition Karnataka Act  9  of  1975 came into force.  The  High  Court  by  its decision  dated 1.9.1981 took the, view that bifurcation  of the combined cadre of Junior Engineers which was holding the field from 1969 to 1974 could be operative from 9.1.1974 for the  purpose  of separate pay scales of  graduate  and  non- graduate  Junior Engineers.  In so far as the Act sought  to give  retrospective  effect to its operation  for  a  period prior to 9.1.1974, it was regarded as invalid.  Accordingly, a  writ of mandamus was issued restraining  the  respondents from recovering any part of the salary received by the  non- graduate  Junior Engineers petitioners for any period  prior to  9.1.1974  and a further mandamus was issued to  pay  the salary  which accrued to them upto 9.1.1974, which  had  not been  paid.   The  writ petitions  were  accordingly  partly allowed. 4.  It  is  thereafter that the  appellants  approached  the Karnataka  High Court by filing writ petitions for  issuance of   appropriate   order  against   respondent   authorities directing  them to treat the appellants as Junior  Engineers (Division-1) in the light of their existing qualification of graduation.  The said direction was sought for appellant no. 1  from  3.7.1969, on which date by Gazette  notification  a combined cadre of Junior Engineers had come into  operation, while  a  similar direction was sought for appellant  no.  2 from 1970, from the date on which he got graduation. 5.   These writ petitions were transferred   to          the Karnataka Administrative Tribunal  which had got established in the meantime.  The Tribunal by its impugned common  order dismissed   the  writ  petitions  which  were   treated   as applications.   The Tribunal took the view that decision  of the  Karnataka  High Court dated 1.9.1981, on  which  strong reliance was placed by the appellants, was with reference to the  retrospective  revision of pay scales  only,  that  the Division  Bench  of  the  High Court  had  struck  down  the retrospective effect of the Karnataka Act only on the aspect of   fixing  separate  pay  -scales  for  Junior   Engineers graduates and non-graduates from any date prior to  9.1.1974 but  the  retrospective bifurcation of the cadre  of  Junior Erigineers  into Junior Engineers graduates (DivisionI)  and non-graduates  (Division-II)  was not’ touched by  the  High Court  Consequently, such bifurcation of combined  cadre  of Junior Engineers into the separate cadres of 524 Junior  Engineers - graduates and nongraduates - had  to  be treated  to have come into operation from 1. 11.  1956.   As per the Act there was no question of treating the appellants as belonging to the cadre of Junior Engineers  (Division-1); so too; nongraduate Supervisors would not be entitled to  be included in the cadre of Junior Engineers (Division-1)  even if they acquired degrees while in service. 6.   Having  heard  the learned counsel of the  parties,  we have  reached  the  conclusion  that  the  decision  of  the

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Tribunal cannot be sustained. 7.   It is no doubt true that the appellants had joined  the service  of  the  Karnataka State  as  non-graduate  diploma holder  Supervisors;  but by Government  notification  dated 18th June, 1969 the Governor of Mysore State in exercise  of his  powers  under Article 309 of the  Constitution  amended Karnataka  Public  Works  Department  Service  (Recruitment) Rules,  1960.   The  said amendment  came  into  force  from 3.7.1969,  when the said notification was gazetted.  By  the said amendment to the recruitment rules a combined cadre  of Junior  Engineers  was formed and the category of  posts  of Supervisors was omitted from the entry relating to the posts of  Junior  Engineers  in the schedule to  the  Rules.   The result  was  that from 3.7.1969, pursuant  to  amendment  of recruitment  rules  as per  Government  notification,  there emerged  a  combined  cadre  of  Junior  Engineers  and  all erstwhile incumbents whether graduates or non-graduates were put  on  par in a common cadre of  Junior  Engineers.   ’The earlier  distinction between graduate Junior  Engineers  and non-graduate Supervisors was abolished.  The appellants, who were   earlier   Supervisors,   therefore,   became   Junior Engineers,    pursuant   to   the    aforesaid    Government notification.   Their inter se seniority vis-a-vis  graduate Junior  Engineers  had  to  be,  determined  accordingly  by treating  all of them to be belonging to a common  cadre  of Junior Engineers. 8.   This  situation  not  only continued  but  was  further highlighted  by  Government order dated 5.3.1 Q71  by  which parity  of pay scales to graduates and non-graduates  Junior Engineers was extended with retrospective effect from 1.  1. 1957.  Thus, the appellant Supervisors who were earlier non- graduates became entitled to draw the same pay scale as that of  graduate Junior Engineers, as all of them from  3.7.1969 onwards  belonged  to the same cadre  of  Junior  Engineers. This situation continued till 9.1.1974, when by a Government order  bifurcation  of the common existing cadre  of  Junior Engineers  was  made effective by  re-classifying  posts  of Junior  Engineers  (Division-1)  for  graduates  and  Junior Engineers (Division-II) for non-graduates. 9.It  is of course true that this bifurcation was sought  to be made with retrospective effect from 3.7.1969 and that  is what  even the subsequent Act 9 of 1975 purported to do.  it is  to  be noted that 52 petitioners who went  to  the  High Court  by way of writ petition no. 3182 of 1973  and  others decided  on 9.1.1981 were principally aggrieved by  recovery sought  to  be effected from their pay on the basis  of  the impugned Government order and the Act bifurcating the common cadre  of Junior Engineers retrospectively with effect  from 3.7.1969  and  bringing into force separate pay  scales  for these  two cadres.  It is also true that the High  Court  by its final order 525 gave   relief   to  those  petitioners   by   holding   that retrospective  amendment to the Act by which the pay  scales were sought to be adversely affected could not be sustained. 10.  The Tribunal is, therefore, right when it took the view that  the said decision of the High Court nowhere  expressly laid  down  that the Act was invalid in so far  as  it  gave retrospective effect to the bifurcation of the common  cadre of Junior Engineers with effect from 3.7.1969 and it was  on that basis that the Tribunal nonsuited the appellants.   But in our view the Tribunal’s final conclusion is not well sus- tained.   Once the Karnataka High Court took the, view  that retrospective bifurcation of pay scales of earlier  existing common  cadre  of Junior Engineers was bad, on a  parity  of

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reasoning  and  as a logical corollary it must  follow  that bifurcation  of  that  common  cadre  retrospectively   from 3.7.1969  would also be bad; otherwise, an inconsistent  and incongruous  position  would result, namely,  for  both  the bifurcated  cadres  of Junior  Engineers,  being  Division-I comprising  of graduates and Junior Engineers  Division  -II comprising of non-graduates, one common pay scale (which  is really  meant  for  the higher  cadre  of  Junior  Engineers Division-I)  would remain operative from 3.7.1969  till  the date  the  Karnataka Act 9 of 1975 came into force.   It  is obvious  that  the  aforesaid  situation  would  be   highly discriminatory and violative of Articles 14 and 16(1) of the Constitution,  as it would result in hostile  discrimination against    graduate   Junior   Engineers   Division-I    and discrimination  in favour of non-graduate  Junior  Engineers Division-II. 11.  It has also to be kept in view that the decision of the Karnataka  High  Court  in writ petition 3182  of  1973  and others  is acquiesced in by the State and has become  final. It is obvious that if as per the said decision, separate pay scales   for  Junior  Engineers  (Division-I)   and   Junior Engineers  (Division-II)  are  not  to  be  sustained   with retrospective  effect from 3.7.1969, it necessarily  follows that  such retrospective bifurcation of two separate  cadres also  could  not  be sustained with  effect  from  3.7.1969. Separate cadres cannot survive independently of separate pay scales.  Retrospective bifurcation of common cadres of  Jun- ior  Engineers into two separate cadres of Junior  Engineers (Division-I)  for graduates and Junior Engineers  (Division- II) for nongraduates can survive with separate pay scales or not at all. 12.  With  respect,  the Tribunal has not  appreciated  this legal position.  It is now well settled that even though the Legislature has power to retrospectively amend a statute, it should  not  be  done  in  a  manner  which  would   violate fundamental  rights under Articles 14 read with  16(1).   On the  day  on which the Karnataka Act came  into  force,  the graduates  and non-graduates Engineers belonged to a  common cadre of Junior Engineers and were drawing same pay  scales. There could be no discrimination between graduate incumbents and  nongraduate incumbents of a common cadre in so  far  as common pay scales was concerned, as held by the High  Court. If that is so the Act by its retrospective sweep  could  not destroy the fundamental rights of all these incumbents of  a common  cadre  to be treated alike for all  other  available service benefits flowing from the common cadre. 13.  In this connection, we may usefully refer to a decision of Constitution Bench 526 of  this  Court in the case of State of Gujarat  &  Anr.  v. Raman  Lal  Keshav Lai Soni & Ors (1983 (2)  SCR  287).   At pages  319 & 320 Chinnappa Reddy, J. speaking for the  court has made following pertinent observations:-               "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  t o               conform   to  the  do’s  and  don’ts  of   the               Constitution    neither    prospective     nor               prospective   laws  can  be  made  so  as   to

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             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 twenty years ago the parties had no               rights:  therefore,  the requirements  of  the               Constitution  will be satisfied if the law  is               dated back by twenty years.  We are  concerned               with  today’s  right and not  yesterday’s.   A               legislature   cannot  legislate   today   with               reference to a situation that obtained  twenty               years  ago and ignore the march of events  and               the  constitutional  rights  accrued  in   the               course  of  the twenty years.  This  would  be               most arbitrary, unreasonable and a negation of               history.  It was pointed out of a Constitution               Bench of this Court in B.S. Yadav & Ors.  etc.               v.   State  of  Haryana  and  &   Ors.   etc.,               Chandrachud  CJ.,  speaking  for  the   Court,               "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 to rules  or  by               extrinsic evidence, reasonable nexus with  the               provisions contained in the rules,  especially               when  the retrospective effect extends over  a               long  period as in this case." Today’s  equals               cannot  be  made unequal by saying  that  they               were unequal twenty years ago and we will  re-               store that position by making a law today  and               making   it   retrospective.    Constitutional               rights,    constitutional   obligations    and               constitutional consequences cannot be tempered               with  that  way.  A law which  if  made  today               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." 14.It  is  equally well settled that even a  statutory  rule which  can  have retrospective effect should  not  resulting discrimination or any violation of constitutional right.  In the case of K. Narayanan and Ors. v. State of Karnataka  and Ors.  (1994  Supp (1) SCC 44), R.M. Sahai, J.  speaking  for this  court  has  made the  following  observation  in  this connection:-               "Rules operate prospectively.  Retrospectivity               is  exception.   Where  the  statute   permits               framing of rule with retrospective effect  the               exercise    of   power   must   not    operate               discriminately   or   in  violation   of   any               constitutional  right so as to  affect  vested               right.   The rule making authority should  not                             be permitted normally to act in the past.   Th e               impugned   rule   made  in   1985   permitting               appointment   by   transfer  and   making   it               operative from 1976 subject to availability of               vacancy  in  effect results  in  appointing  a               Junior Engineer in 1986 with effect from 1976.

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             Retrospectivity  of the rules is a  camouflage               for  appointment  of Junior Engineers  from  a               back   date.   The  rule  operates   viciously               against all those Assistant Engineers who were               appointed between 1976 to 1985." 15.  In view of the settled legal position,  therefore,   it must be held that the Act in so    far   as  it  sought   to introduce by Section 2(1) (i), retrospective bifurcation  of the  common  cadre of Junior Engineers into  two  cadres  of Junior   Engineers  (DivisionI  for  graduates  and   Junior Engineers  (Division-II) for non-graduates from 1. 11.  1956 is  inoperative  at  law.   It must be  held,  on  a  parity reasoning  which appealed to the High Court when it held  in writ  petition no.3182 of 1973 and connected  matters,  that Section  2(1)(ii)  could  not  operate  retrospectively   to destroy  common  pay  scales available to  both  the  Junior Engineers graduates and non-graduates.  Section 2(1)(i) also could  not  operate retrospectively to  bifurcate  the  said common  cadre with effect from 1.11.1956. It will also  have only  prospective effect.  Consequently, the bifurcation  of pay  scales  as  well  as of  the  common  cadre  of  Junior Engineers would legally become effective at the highest from 9.1.1974 when the Government order of even dated introducing such  a scheme saw the light of the day.  It could also  not have any retrospective effect. 16.  Once  the  above  conclusion  is  reached,  the  result becomes obvious.  Both the appellants were belonging to  the common  cadre of Junior Engineers upto 8.1.1974. That  cadre got bifurcated into the cadre of Junior Engineers  (Division I) for graduates and Junior Engineers (Division II) for non- graduates with effect from 9.1.1974. Therefore, on  9.1.1974 respondents  were required to fit in the appellants  in  the proper  cadre.   Obviously and admittedly  on  9.1.1974  the appellants were having graduation degrees.  In fact both  of them  had  got their degrees since long from 1967  and  1970 respectively as seen by us earlier.  Consequently, when  the question  of allotting the appellants to  the-proper  bifur- cated  cadre of Junior Engineers with effect  from  9.1.1974 came up, the respondents were bound to treat the  appellants as  belonging  to the bifurcated cadre of  Junior  Engineers (Division-I)  for  graduates with effect from  9.1.1974.  We cannot   accept  the  extreme  contention  put  forward   by appellants  that  they may be treated as  belonging  to  the Junior   Engineers   (Division-I)   from   1967   and   1970 retrospectively as on our own finding such a separate  cadre of  Junior Engineers (Division-I) did not exist during  that period.  To recapitulate, from July 1969 till 8.1.1974 there was  a  common  cadre  of  Junior  Engineers  to  which  the appellants belonged along with other incumbents.  The  cadre of Junior Engineers (Division-I) saw the light of the day on 9.1.1974 as we have discussed earlier. 17.  So, there is no question of treating the appellants  as belonging to bifurcated cadre of Junior Engineers (Division- I) from any date prior to 9.1.1974 as claimed by them.   The appellants are therefore entitled to a partial relief to the following  extent.  The respondent authorities are  directed to treat the appellants as belonging to the cadre of  Junior Engineers   (Division-I)   (Assistant   Engineer,   as   now designated) with effect from 9.1.1974 and fix the salary  of the   appellants  in  the  scale  applicable  to   Assistant Engineers with effect from that date and also to give to the appellants  all consequential benefits including arrears  of salary,  ranking  and seniority in the  cadre  of  Assistant Engineer on that basis. 18.  The  appeals stand allowed to theaforesaidextent.   The

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common judgment and order of the Tribunal shall stand set 528 aside and substituted by the present decision.  In facts and circumstances  of  the  case there will be no  order  as  to costs.