http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: RAJ KUMAR

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT19/03/1975

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. MATHEW, KUTTYIL KURIEN

CITATION:  1975 AIR  536            1975 SCC  (3) 458

ACT: Central    Civil   Services   (Temporary   Service)    Rules 1965--Proviso to rule 5(1)--Retrospective  Amendment--Effect of.

HEADNOTE: The services of the appellant, who was a Government servant, were  terminated forthwith and he was ordered to be  paid  a month’s  pay and allowances calculated at the same  rate  at which  he  was drawing them immediately before the  date  on which the order of termination was served on him or, as  the case may be. tendered to him: Having failed in  departmental representations, the appellant filed a writ petition in  the High Court.  When the petition was before the High Court  it was not brought to the notice of that court that the proviso to  sub-r.  (1)  of  r. 5  of  the  Central  Civil  Services (Temporary   Services)   Rules   1965   was   amended   with retrospective  effect  from  May 1, 1965.   The  High  Court dismissed  the  petition in Iimine and  granted  certificate relying  on  the decision of this Court in R.M.S. v.  K.  V. Gopinath  which  was  not brought to  its  notice  when  the petitioner was dismissed. The  amendment provided that the services of any  Government servant may be terminated forthwith and on such  termination he shall be entitled to claim a Sum equivalent to the amount of  his pay plus allowances for the period of the notice  at the  same  rates at which he was  drawing  them  immediately before the termination of the services or as the case may be for  the  period  by which such notice falls  short  of  one month. Dismissing the appeal, HELD  : (1) The effect of the amendment is that on and  from May  1,  1965 ,is also on the date of the dismissal  of  the appellant  it  was  not  obligatory to  pay  to  him  a  sum equivalent  to the amount of his pay and allowances for  the period  of notice at the rate at which he was  drawing  them immediately before the termination of the services or as the case may be for the period by which such notice falls short. The Government servant is only entitled to claim the amount. The  effect  of  the  amendment  is  that  the  decision  in Gopinath’s case no longer holds good.[965 B-C] (2) There is no doubt that the rule is a valid rule  because it is now well established that rules made under the proviso

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

to Art. 309 of the Constitution ire legislative in character and, therefore, can be given effect to retrospectively. [965 C] (3)  Once  a  law is given retrospective effect  as  from  a particular date all actions taken under that law even before the  amendment was made would be deemed to have  been  taken under  the  law  as amended and there  could  be  really  no question  of  having to validate any  action  already  taken provided  it  is  subsequent  to the  date  from  which  the amendment,  was given retrospective effect. the question  of the particular form of the validation would always depend on the  circumstances of a case and no general formula  can  be devised for all Circumstances. [965 H; 966 A] In  the instant case the action taken against the  appellant was  on a date subsequent to the date on which  the  amended rule  took  effect  and, therefore,  that  action  being  in accordance with the amended rule, is a legally valid  action and there is no need to have a validating provision. [966 B] Prithvi  Mills  v. Broach Muncipality [1970] 1  S.C.R.  388, held inapplicable. (4) When action is taken against a government servant  under the  relevant rules, which enable the authorities  concerned to  terminate his temporary services without  assigning  any reason, the Court would not go into the reasons which and to the services being terminated. [966 D] 964

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1730  of 1972. From  the judgment and order dated the December 6,  1971  of the  Delhi  High Court in Civil Writ  Petition  No.,1261  of 1971. M. C. Bhandare, Govind Das, C. P. Lal, Kapil Sibal and A. N. Goyal,for the appellant. F. S. Nariman, Additional Solicitor General for India and S. P.Nayar,for the respondent. The Judgment of the Court was delivered by ALAGIRISWAMI,  J.-The  appellant was  appointed  as  Airport Ticket  Clerk  in  the  Civil  Aviation  Department  of  the Government of India on 14.8.1967. On 15.6.1971 his  services were  terminated  ’forthwith’ and it was  directed  that  he shall  be  paid a sum equivalent to the  amount  of  paymend allowances for a period of one month (in lieu of the  period of  notice)  calculated  at the same rate at  which  he  was drawing them immediately before the date on which the  order was served on or, as the case may be, tendered to him.   But the pay and allowances were not paid to him at the same time -as the service of the order of termination of his services. His   appeal   against   the   termination   as   well    as representations  having failed he filed a writ petition  out of  which  this  appeal arises.  The  High  Court  of  Delhi dismissed  the writ petition in limine and this  appeal  has been filed in pursuance of a certificate granted by the High Court because of the decision of this Court in R.M.S. v.  K. V.  Gopinath(1)  of which that Court was not aware  when  it dismissed the petitioner’s petition. It was not brought to the notice of the High Court that  the proviso  to  sub-rule  (1) of Rule 5 of  the  Central  Civil Services  (Temporary  Service) Rules 1965 had  been  amended with  retrospective effect from 1st May, 1965.  The rule  as now amended reads               "5. Termination of temporary service-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

             (1)  (a) The services of temporary  Government               servant who is not in quasi-permanent  service               shall be liable to termination at any time  by               a  notice  in  writing  given  either  by  the               Government servant to the appointing authority               or   by  the  appointing  authority   to   the               Government servant;               (b)  The  period of such notice shall  be  one               month;               Provided   that  the  services  of  any   such               Government servant may be terminated forthwith               and on such termination the Government servant               shall be entitled to claim a sum equivalent to               the amount of his pay plus allowances for  the               period  of  the notice at the  same  rates  at               which he was drawing them (1) [1972] 3 S.C.R. 530. 965               immediately  before  the  termination  of  the               services or as the case may be for the  period               by  which  such  notice  falls  short  of  one               mouth." The effect of this amendment is that on 1st May 1965 as also on  15.6.1971,  the date on which the  appellant’s  services were  terminated forthwith it was not obligatory to  pay  to him a sum equivalent to the amount of his pay and allowances for  the  period of the notice at the rate at which  he  was drawing  them  immediately  before the  termination  of  the services or as the case may be for the period by which  such notice  falls  short.  The Government servant  concerned  is only entitled to claim the sums hereinbefore mentioned.  Its effect is that the decision of this Court in Gopinath’s case (supra) is no longer good law.  There is no doubt that  this rule is a valid rule because it it now well established that rules  made  under  the  proviso  to  Article  309  of   the Constitution are legislative in character and therefore  can be  given _effect to retrospectively.  It follows  that  the decisions of the Delhi High Court dismissing the  appellants writ  petition is correct and this appeal will have  to  be, dismissed. But  it was argued- by Mr. Bhandare appealing on  behalf  of the  appellant that there is no validating provision in  the rule  as  now  amended and therefore the  intention  of  the Government  in making the amendment cannot be validly  given effect to.  For this purpose he relied upon the decision  of this  Court  in Prithvi Mills v. Broach Munic.  (1)  and  in particular the following observations therein :               "Sometimes   this  is  done   by   re-enacting               retrospectively  a  valid  and  legal   taxing               provision  and then by fiction making the  tax               already  collected  to  stand  under  the  re-               enacted law.  Sometimes the legislature  gives               its own meaning and interpretation of the  law               under  which  the  tax was  collected  and  by               legislative flat makes the new meaning binding               upon  courts.  The legislature may follow  any               one method or all of them and while it does so               it  may neutralise the effect of  the  earlier               decision   of   the   court   which    becomes               ineffective  after  the  change  of  the  law.               Whichever method is adopted it must be  within               the  competence of the legislature  and  legal               and   adequate   to  attain  the   object   or                             validation.   If the legislature has t he  power

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

             over the subject-matter and competence to make               a  valid law, it can at any time make  such  a               valid  law, and make it retrospectively so  as               to bind even past transactions." This argument proceeds upon a miscomprehension of the  above observation and the effect of a validating statute.  Once  a law is given retrospective effect as from a particular  date all  actions taken under the Act even before  the  amendment was  made would be deemed, to have been taken under the  Act as  amended and there could be really no question of  having to validate any action already taken provided (1) [1970] 1 S.C.R. 388. 966 it  is  subsequent to the date from which the  amendment  is given retrospective effect.  The question of the  particular form   of  the  validation  would  always  depend   on   the circumstances  of  a  case and no  general  formula  can  be devised for all circumstances.  It is enough to say that  in the present case the action taken against the appellant  ,as on  a date subsequent to the date on which the amended  rule takes  effect and therefore that action being in  accordance with the amended rule is illegally a valid action and  there is  no  need  to  have a  validating  provision  in  respect thereof. It was then argued by Mr. Bhandare that the matter has  been disposed  of  in  limine by the High  Court  and  there  are certain  other aspects which may have to be considered,  and therefore  the appeal should not be dismissed but  that  the writ petition should be directed to be disposed of afresh by the  Delhi High Court after considering the other  questions raised  in the writ petition.  There are only two  questions raised by the petitioner in his writ petition.  One is  that certain persons junior to him have been continued in service while his services have been terminated and that it  offends Article 14.  The termination of the appellant’s services was not on the ground of retrechment.  The question of offending Article  14 does not therefore arise.  When action is  taken against  him  under  the relevant  rules  which  enable  the authorities  concerned to terminate his  temporary  service, without assigning any reason the Court would not go into the reasons   which  led  to  the  appellant’s  services   being terminated.  The other point raised in the writ petition  is that  action terminating the appellant’s services  was  mala fide.   We see no substance in this contention.  The  action is  said  to  be mala fide  because  after  the  appellant’s services  were  terminated certain other persons  have  been appointed.   It is not alleged that those persons  exercised their influence and had the petitioner’s services terminated in  order  to  provide them with posts.   Naturally  when  a vacancy arises by the termination of services of an employee other persons would have to be appointed to take his  place. This would not show any mala fides. The  appeal is therefore dismissed but in the  circumstances there will be no order as to costs. P.B.R.                                  Appeal dismissed. 967