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PETITIONER: S.R. BHAGWAT & ORS.

       Vs.

RESPONDENT: THE STATE OF MYSORE

DATE OF JUDGMENT12/09/1995

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) BHARUCHA S.P. (J) FAIZAN UDDIN (J)

CITATION:  1996 AIR  188            1995 SCC  (6)  16  JT 1995 (6)   444        1995 SCALE  (5)270

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar, J.      William Macpeace  Thakare in  his lectures  on "English Humorists of  18th Century"  spoke of Jonathan Swift working in the  household of  Sir William  Temple in  the  following terms : "His servility was so boisterous that it looked like independence". As  will be  highlighted in this judgment the servility of judgment-debtor, State of Mysore, the precursor of the  State of  Karnataka was  eqally boisterous  when  it tried to cast off its judgment debtor’s role by resorting to legislative independence, which as will be demonstrated, has remained a legally futile attempt.      This is a petition under Article 32 of the Constitution of India.  The petitioners  have brought  in  challenge  the provisions of  the Mysore  Ordinance 1  of 1973, namely, The Mysore State  Civil Services  (Regulation of  Promotion, Pay and Pension) Ordinance No. 1 of 1973. By an amendment to the petition they  have also brought in challenge the provisions of  the   Karnataka  State  Civil  Services  (Regulation  of Promotion, Pay  and Pension) Act, 1973 (hereinafter referred to  as   ‘the  impugned   Act’)  which  replaced  the  State Ordinance. At the stage of arguments learned counsel for the petitioners concentrated  his attack  on the  provisions  of Sub-sections (2),  (3), (4),  (5), (6), and (8) of Section 4 as well  as Section  11 Sub-section (2) of the Act in so far as they  conflicted with  the order of the High Court, which had become final between the parties. It is not necessary to refer  hereinafter   to  the  provisions  of  the  erstwhile Ordinance which has been replaced by the Act, the provisions of which  are brought  on the  anvil  of  scrutiny  in  this petition. Background Facts      In order  to highlight the grievance of the petitioners against the  impugned provisions  of the Act it is necessary

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to note  at the  outset the  facts leading to this petition. Petitioners Nos. 1 to 5 were civil servants of the erstwhile State of Hyderabad and Bombay. Their services stood allotted to the  new State  of Mysore under Section 115 of the States Reorganisation Act,  1956 (hereinafter  referred to  as  the ‘Reorganisation Act’).  The new  State of  Mysore was formed with effect  from 1.11.1956  under  the  provisions  of  the Reorganisation Act, enacted by the Parliament in exercise of its powers  under Articles  3 and  4 of  the Constitution of India. Section  115 of  the Reorganisation  Act provided for allotment  of   civil  servants   of  the  erstwhile  States territories of which were transferred to the successor State by the  provisions of Part II of the Act and accordingly the petitioners’ services  stood statutorily allotted to the new State of  Mysore. In  this context  the Parliament conferred the  power   of  integration  of  services  on  the  Central Government  under  Section  115(5)  of  Reorganisation  Act. Accordingly  integration   of  services   took  effect  from 1.11.1956.      After the  reorganisation of  the  States  the  Central Government for purposes of effecting integration of services laid down  the principles  relating to equation of posts and the preparation  of seniority  lists. The Central Government also directed  the State  Government to decide provisionally the equation  of posts and also to fix seniority and to call for representations  from the  aggrieved officials,  to send the same  for final  decision by the Government of India. In pursuance of  the directions  of the Central Government, the State Government  took its  own time  to prepare provisional Inter-State Seniority  Lists and to call for objections. The State Government also directed the appointing authorities of the new  State of  Mysore to  make provisional promotions on the basis  of the  provisional inter-State  Seniority  Lists subject to  the clear  condition that  promotion  should  be revised  in   accordance  with  the  ranking  in  the  Final Seniority Lists to be effective from 1.11.1956 as decided by the Government  of India  in exercise  of its  powers  under Section 115(5) of the Reorganisation Act. Sub-section (7) of Section 115  of  the  Reorganisation  Act  laid  down  that, ‘nothing in this section shall be deemed to affect after the appointed day  the operation  of the provisions of Chapter I of  Part   XIV  of  the  Constitution  in  relation  to  the determination  of  the  conditions  of  service  of  persons serving in  connection with  the affairs of the Union or any State, provided  that the  conditions of  service applicable immediately before  the appointed  day to  the case  of  any person referred  to in  sub-section (1)  or sub-section  (2) shall not  be varied  to his  disadvantage except  with  the previous approval of the Central Government.’      On account  of aforesaid  integration  of  services  of employees of States which got reorganised as aforesaid, till the inter-se  seniority of  the concerned allotted employees of  such  States  was  finally  determined  by  the  Central Government as  required by Sub-section (5) of Section 115 of Reorganisation Act, the reorganised States like the State of Mysore were  permitted to  act on  the basis  of provisional seniority list of such employees and to effect promotions on that basis  so that  the administration  of the  reorganised States might  not suffer.  But that was subject to the rider that the  said provisional  list was  subject to alterations when final  list was  prepared and  once that  happened  the concerned State  Government had  to give effect to the final list. The  said principle was laid down by this Court in the case of G.S. Ramaswamy etc. etc. v. The Inspector General of Police, Mysore  State, Bangalore AIR 1966 SC 175 at page 180

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as under :      "The next  point that  has been urged is      that in  any case till final integration      of   service   was   made,   the   State      Government was not entitled to take into      account the  provisional  list  of  sub-      inspectors and  could  only  proceed  to      give promotions  and to  make  transfers      region-wise according to the eligibility      lists of  former States  from which  the      territories came to the new State and if      that  was  done  the  petitioners  being      senior in  their  region  could  not  be      reverted............ We  can see nothing      in  law   which   prevents   the   State      Government from  proceeding according to      the provisional list after such list was      prepared. We  are of  opinion  that  the      view taken  by the  Mysore High Court in      the earlier  writ  petitions  after  the      framing  of  the  provisional  seniority      list is correct and the State Government      would be  entitled to  act on  that list      subject of  course to  this that  if the      provisional list  is in  any way altered      when the  final list  is  prepared,  the      State Government  would give  effect  to      the final list."      Petitioners Nos.1,  2 and  4 had  joined service in the former State  of  Bombay  and  were  on  31.10.1956  in  the category of  Deputy Conservator  of Forests. Petitioner No.3 was also  a Deputy  Conservator of  Forests  in  the  former Hyderabad State.  In the year 1957 the State Government made provisional equation.  The posts  of Senior  Conservator  of Forests and  Assistant Conservator  of Forests, were equated with the  post of  Deputy Conservator of Forests coming from Hyderabad  and   Bombay.  This   was  objected   to  by  the petitioners and others. The State Government again published a list  in  1960  with  slight  modification.  However,  the Central Advisory  Committee to whom the representations were forwarded as  per  the  provisions  of  Sub-section  (5)  of Section  115   of  the   Reorganisation  Act,  accepted  the petitioners’ contentions.  As a  result in category III only the officials,  namely, Deputy  Conservator  of  Forests  of Hyderabad and  Bombay and  Senior Assistant  Conservator  of Forests from  Mysore were  included. The Government of India accepted the  said equation and communicated it to the State Government on 7.11.1962.      Thereafter several writ petitions were presented before the Mysore  High Court  being Writ  Petition No.2186 of 1963 and others.  They were  disposed of  by the  High Court. The main judgment  was rendered  in Shankariah v. Union of India 1965(2) Mysore  Law Journal  40.  The  correctness  of  this decision was  challenged before  this Court. But the appeals were dismissed.  Even  thereafter  in  accordance  with  the directions of  the  Central  Advisory  Committee  the  Union Government   again   considered   the   matter   and   fresh notifications were  issued in  May 1969. These notifications were on  the same line as the earlier notifications. A fresh batch of  writ petitions  was filed before the High Court of Mysore  which  dismissed  them  by  order  dated  21.9.1971. Special Leave  Petitions against  this  decision  were  also dismissed  by   this  Court   on  22.12.1972.   Thus   final adjudication was made regarding the claim of petitioners and others similarly situated for equation and seniority.

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    In  the  background  of  the  aforesaid  settled  legal position the  petitioners  claimed  that  though  they  were senior in  the final  seniority lists  to many others, their juniors had  got promoted  in the  meantime on  the basis of higher ranking  in the  provisional seniority list which was earlier operative  till  it  got  superseded  by  the  final seniority list  as  aforesaid.  As  their  claim  for  being granted deemed  dates of  promotions with  all consequential benefits was  not accepted  by  the  State  of  Mysore,  the petitioners filed  writ petitions  before the  High Court of Karnataka being Writ Petitions Nos. 2598 of 1970 and others. All these  five writ petitions filed by the petitioners came to be  allowed by  a Division  Bench of  the High  Court  of Mysore at  Bangalore by  an order dated 21.9.1971. The State of Mysore  was the  first respondent  in those petitions and which is  the main  respondent in the present writ petition. While allowing  these writ  petitions the  Division Bench of the High  Court granted  relief to  the petitioners  in  the following terms :      "We, therefore,  make a  common order in      all these  writ petitions  that the case      of  each   of   these   petitioners   be      considered for  promotion  to  the  post      next above  the cadre of the post he was      holding on  1.11.1956 as  on the date on      which any  one of  his juniors according      to the  final inter State Seniority List      was for  the first  time so promoted and      that if  he is found fit and promoted he      be given all including consideration for      promotion to higher cadres and financial      benefits. Time three months."      It is  not in dispute between the parties that pursuant to the  aforesaid direction  issued by the Division Bench of the High Court the respondent-State has considered the cases of all  the petitioners  for being  granted deemed  dates of promotions and  they have  been given  such deemed  dates of promotions. The aforesaid decision of the Division Bench has become final  between the parties. As consequential monetary benefits  on   the  grant   of  deemed   promotions  to  the petitioners as  directed by  the aforesaid decision were not made  available  to  the  petitioners  they  filed  contempt petitions in  the High  Court. These contempt petitions were got adjourned from time to time before the High Court by the respondent-State.  In   the  meantime  the  respondent-State resorted to  its legislative  powers and issued the impugned Ordinance which ultimately culminated into the impugned Act. By the  impugned provisions of the Ordinance and the Act the actual financial  benefits directed  to be made available to the petitioners pursuant to the orders of the Division Bench of the  High Court  which had  become final are sought to be taken away  as can  be seen from the scrutiny of the Act. It is under these circumstances that the petitioners filed this petition under Article 32 for getting a declaration that the impugned provisions  in so  far as  they tried to confiscate the financial  benefits made  available to them by the writs of mandamus  issued by  the High  Court are null and void as they amount  to legislative  over-ruling of binding judicial decisions and  seek to  deprive them  of  their  fundamental rights guaranteed under the Constitution. Rival Contentions      Learned counsel  for the  petitioners in support of his submission has  relied upon  a number  of decisions  of this Court with a view to submitting that the impugned provisions clearly seek  to nullify final binding dicisions of the High

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Court against the State and in favour of the petitioners. It is an admitted position that common decision of the Division Bench of  the High  Court, has not been challenged higher up by the  respondent-State. Learned  senior  counsel  for  the respondent Shri  Madhava Reddy  on  the  other  hand  fairly submitted  that   he  could  not  support  provisions  which attempted  to   bypass  the  High  Court’s  directions.  His principal  submission,   however,  was   that  consequential financial benefits  directed by the High Court did not cover monetary benefits flowing from deemed promotions. He also in passing submitted  that the  foundation of  the  High  Court judgment was  displaced by  the impugned  Act but ultimately did not  pursue the  point any  further. Hence  we need  not dilate on that additional aspect any further. Conclusion and Reasons for the same      Having  given   our  anxious   consideration  to  rival contentions we have reached the conclusion that the impugned provision of  the Act, namely, Section 11 Sub-section (2) is clearly ultra  vires the  powers of the State Legislature as it encroaches upon the judicial field and tries to over-rule the  judicial  decision  binding  between  the  parties  and consequently the  relevant sub-sections  of Section  4 which are also in challenge will have to be read down as indicated hereinafter in  this  judgment.  Before  we  advert  to  the relevant provisions of the impugned Karnataka Act it will be appropriate to  keep in  view  the  settled  legal  position governing the present controversy.      It is now well settled by a catena of decisions of this Court that  a binding  judicial  pronouncement  between  the parties cannot  be made  ineffective with  the  aid  of  any legislative power by enacting a provision which in substance over-rules such  judgment and  is not  in  the  realm  of  a legislative  enactment   which  displaces   the   basis   or foundation of  the judgment and uniformly applies to a class of persons  concerned with  the entire  subject sought to be covered by such an enactment having retrospective effect. We may only refer to two of these judgments.      A Constitution  Bench of  this Court  in  the  case  of Cauvery Water  Disputes Tribunal  (1993 Supp. (1) SCC 96(II) had to  pronounce on the validity of Karnataka Kauvery Basin Irrigation Protection  Ordinance, 1991  by which  an interim order passed  by  a  statutory  Tribunal  supported  by  the decision of this Court dated 26th April 1991 which had ruled that the  Tribunal had  power to  consider the  question  of granting interim  relief since  it was specifically referred to it,  was sought to be displaced. Sawant, J., speaking for the Constitution  Bench held  that the  said provisions were unconstitutional and  ultra vires.  In paragraph  76 of  the Report the following observations were made :      "The principle  which emerges from these      authorities is  that the legislature can      change the  basis on which a decision is      given by  the Court  and thus change the      law in  general,  which  will  affect  a      class of persons and events at large. It      cannot, however, set aside an individual      decision inter  partes and  affect their      rights and  liabilities alone.  Such  an      act  on  the  part  of  the  legislature      amounts to exercising the judicial power      of the  State and  to functioning  as an      appellate court or tribunal."      In the case of G.C. Kanungo V. State of Orissa (JT 1995 (4) SC  589) a Division Bench of this Court speaking through Venkatachala,  J.,   had  to   consider  the   validity   of

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Arbitration (Orissa Second Amendment) Act, 1991 which sought to nullify  the  awards  made  by  the  Special  Arbitration Tribunals constituted  under  the  1984  Amendment  Act,  in exercise of the power conferred upon them by the Act itself. Striking down  the provisions  as ultra  vires  and  illegal Venkatachala,  J.,   made  the   following  observations  in paragraph 28 of the Report :      "Thus, the  impugned 1991  Amendment Act      seeks to  nullify the awards made by the      Special      Arbitration       Tribunals      constituted  under  the  1984  Amendment      Act, in  exercise of the power conferred      upon them  by that Act itself. When, the      awards made under the 1984 Amendment Act      by the  Special Arbitration Tribunals in      exercise of  the  State  judicial  power      conferred  upon  them  which  cannot  be      regarded as  those merged  in  Rules  of      Court  or   judgments  and   decrees  of      Courts, are  sought to  be nullified  by      1991 Amendment  Act,  it  admits  of  no      doubt  that  legislative  power  of  the      State Legislature  is used  by  enacting      impugned 1991  Amendment Act  to nullify      or abrogate  the awards  of the  Special      Arbitration Tribunals  by arrogating  to      itself,  a   judicial  power.  [See  Re:      Cauvery Water  Disputes Tribunal  (1991)      Supp. 2  SCR 497]. From this, it follows      that the  State Legislature  by enacting      the 1991  Amendment Act  has  encroached      upon the  judicial  power  entrusted  to      judicial    authority    resulting    in      infringement of  a basic  feature of the      Constitution -  the Rule  of Law.  Thus,      when the  1991 Amendment  Act  nullifies      the awards  of the  Special  Arbitration      Tribunals,  made   in  exercise  of  the      judicial power conferred upon them under      the 1984  Amendment Act,  by encroaching      upon the judicial power of the State, we      have no  option but  to  declare  it  as      unconstitutional having  regard  to  the      well  settled   and   undisputed   legal      position  that   a  legislature  has  no      legislative power  to render ineffective      the earlier judicial decisions by making      a law  which simply declares the earlier      judicial decisions  as invalid  and  not      binding, for  such powers, if exercised,      would not be legislative power exercised      by it,  but judicial  power exercised by      it encoaching upon the judicial power of      the State  Vested in a judicial Tribunal      as  the  Special  Arbitration  Tribunals      under  1984   Amendment  Act.  Moreover,      where the  arbitral awards  sought to be      nullified under  the 1991  Amendment Act      are those  made by  Special  Arbitration      Tribunals  constituted   by  the   State      itself  under   1984  Amendment  Act  to      decide arbitral  disputes to which State      was a  party, it  cannot be permitted to      undo such  arbitral  awards  which  have      gone against  it, by  having recourse to

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    its legislative  power for grant of such      permission as  could result  in allowing      the State, if nothing else, abuse of its      power of legislation."      In view  of the aforesaid settled legal position let us see  how  far  the  impugned  provisions  of  the  Act  bear scrutiny.      We may note at the very outset that in the present case the High Court had not struck down any legislation which was sought  to   be  re-enacted   after  removing   any   defect retrospectively by  the impugned  provisions. This is a case where on  interpretation of existing law, the High Court had given certain  benefits to  the petitioners.  That order  of mandamus was  sought to be nullified by the enactment of the impugned provisions in a new statute. This in our view would be clearly impermissible legislative exercise.      As  already  mentioned  earlier  the  petitioners  have attacked the  impugned provisions  only to  the extent  they seek to  deprive consequential financial benefits to them on the basis  of deemed promotion given to them by the State in compliance  with   the  decision   of  the   Division  Bench aforesaid. Consequently  we will  examine the challenge only from this  limited angle.  But before  we do  so it would be appropriate to  refer to the statutory settings in which the impugned provisions  saw the  light of the day. The impugned Karnataka Act  11 of  1974 is  headed  by  very  instructive Preamble. It  will be profitable to glance at the provisions of the Preamble to the impugned Act :           "An  Act   to   provide   for   the      prospective    promotions    of    civil      servants,  and   to  regulate  the  pay,      seniority, pension  and other conditions      of service  of  civil  servants  in  the      State of  Karnataka including those that      are allotted or deemed to be allotted to      serve in  connection with the affairs of      the  State  of  Karnataka  under  or  in      pursuance of  section 115  of the States      Reorganisation Act, 1956:           Whereas on the basis of the ranking      of civil  servants in the several inter-      State  seniority   lists   prepared   in      pursuance of  sub-section (5) of section      115 of  the States  Reorganisation  Act,      1956 (Central  Act 37  of 1956),  courts      have    directed     the    making    of      retrospective  promotions  to  statutory      and other offices;           And whereas  as held by the Supreme      Court in Ajit Singh Vs. State of Punjab,      reported in  All  India  Reporter  1967,      Supreme  Court  856  and  in  Income-Tax      Officer,  Alleppy   Vs.  N.C.  Ponnoose,      reported in  All  India  Reporter  1970,      Supreme Court  385 appointments of civil      servants to  offices in  which statutory      functions  are  exerciseable  cannot  be      made with retrospective effect;           And      whereas      retrospective      promotions involve  payment of  sums  of      money to  persons who have not worked in      the  promotional   posts   of   officers      concerned,  to   the  detriment  of  the      finances of the State, besides involving      retrospective    reversions    rendering

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    invalid    the    statutory    functions      discharged by the persons reverted;           And      whereas      retrospective      promotions preclude the determination of      the suitability of the civil servants to      hold the  promotional posts  or  offices      and will enable them to continue in such      posts or  offices only  on the ground of      their   eligibility    to    promotions,      resulting in  the  continuance  of  even      unsuitable civil servants in promotional      posts or  offices to  the  detriment  of      public interest;           And whereas  it  is  necessary  and      expedient to  provide against  the  said      consequences:           And whereas  the Central Government      has given  previous approval  under  the      proviso to  sub-section (7)  of  section      115 of  the States  Reorganisation  Act,      1956   (Central    Act   37   of   1956)      communicated in letter No. 5/5/73-SR (S)      dated  22nd   February   1973   of   the      Government     of     India,     Cabinet      Secretariat, Department of Personnel and      Administrative Reforms;" A mere  look at  the third  and fourth  paragraphs  of  this preamble shows  the legislative  intent to  bypass the final directions contained  in the  Division Bench judgment of the High Court  or any  other same  final judgment  in favour of concerned parties  that  they  may  be  given  retrospective promotions  and  all  monetary  benefits  pursuant  thereto. Keeping in view the aforesaid key to the passing of the Act, we will  turn now  to the relevant provisions of the Act. As per sub-section  (2) of  Section 1  of the Act, Section 1 as well as Sections 2 to 10 and 12 shall be deemed to have come into force  on the  first day  of November 1956. It is to be noted that  1st November  1956, was  the date  on which  the States Reorganisation  Act, 1956  was brought into force and which date  under the  Reorganisation Act was treated as the appointed day. Section 2 Clause (a) defines an ‘allottee’ to mean, ‘a  Government servant allotted or deemed to have been allotted to  serve in  connection with  the affairs  of  the State of  Karnataka under  or in pursuance of Section 115 of the States  Reorganisation Act,  1956  (Central  Act  37  of 1956)’. It  is  necessary  to  note  that  State  of  Mysore subsequently got re-designated as State of Karnataka. As per clause (c)  of Section  2 ‘final  seniority list’ means, ‘an inter-State  seniority   list  of   allottees  prepared   in accordance with  the decisions  of Central  Government under the provisions  of sub-section  (5) of  Section 115  of  the States Reorganisation  Act, 1956  (Central Act 37 of 1956)’. Clause (d) of Section 2 defines ‘inter-State seniority list’ to mean,  ‘an inter-State  seniority list prepared from time to time,  on  the  basis  of  the  seniority  in  which  the eligibility of  an allottee  to promotion  to higher post or posts is considered. As the petitioners are allottees within the meaning  of the  said term as defined by Section 2(a) we may straightaway  turn to  Section 4  of the Act which deals with such  allottees.  As  some  parts  of  sub-sections  of Section 4  are brought  in challenge in these proceedings it will be  profitable to  reproduce entire  Section 4 with its sub-sections at this stage :      "4.  Promotions, etc., of allottees -(1)      Where the  seniority of  an allottee  as

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    specified in the provisional inter-State      seniority list  in any  class of post or      office has  been altered  in  the  final      seniority list  relating to  that class,      every promotion  made on  any date after      the first  day of  November 1956, on the      basis of  seniority-cum-merit, shall  be      reviewed   with    reference   to    the      qualifications and other conditions laid      down  in   the  rules   of   recruitment      applicable at the relevant time for such      promotion and  the ranking  in the final      seniority list assigned to the allottees      in that  class of post or office. If any      person senior  in rank  than the  person      promoted is  held  to  be  suitable  for      promotion on  such date  (hereinafter in      this section  referred to as the date of      eligibility), an order shall, subject to      section 9,  be made  promoting the  said      person to  officiate in the said post or      office with  effect from  a  prospective      date to be specified in the order.      (2)  As soon as may be, after the person      promoted  under   sub-section   (1)   is      declared    to    have    satisfactorily      completed the  period of  officiation in      the promoted  post or  office  an  order      shall, subject  to section  9,  be  made      directing that  he shall  be entitled to      initial  pay   on  the  date  of  actual      promotion to the post or office as if he      was holding the said post or office from      the date  of eligibility  and drawn  the      pay and allowances accordingly, but such      person shall  not be entitled to payment      of any  arrears for  the period prior to      the date  of his  actual promotion.  His      rank in the seniority list of persons in      the class  or grade  of service to which      he is  promoted shall  be fixed as if he      had been promoted to that class or grade      of service on the date of eligibility.      (3)  Where consequent upon the review of      promotions made  under sub-section  (1),      it  is  found  that  an  allottee,  who,      before the coming into force of sections      3, 11  and 13  had been  promoted  to  a      higher class  or grade  of service found      eligible for  promotion to  that  higher      class or  grade of  service from  a date      prior to  the date  of actual  promotion      and subject to section 9, is declared to      have satisfactorily completed the period      of officiation  in the  promoted post or      office, an order shall be made directing      that he shall be entitled to initial pay      on the  date of  actual promotion to the      post or  office as if he was holding the      said post  or office  from the  date  on      which he is found eligible for promotion      and  drawn   the  pay   and   allowances      accordingly,  but   he  shall   not   be      entitled to  payment of  any arrears for      the period  prior to  the  date  of  the

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    actual promotion. [Where, on such review      he is  found eligible for promotion to a      higher class  or grade of service from a      date  subsequent  to  the  date  of  his      actual promotion  to such class or grade      of service,  his  pay  on  the  date  of      eligibility shall  be refixed  as if  he      had been  promoted on  such date  but he      shall not be liable to refund the excess      pay and  allowances drawn  by him  up to      the date  of issue  of the  order fixing      the date  of eligibility].  His rank  in      the seniority  list of  persons  in  the      class or grade of service to which he is      promoted shall  be fixed  as if  he  had      been promoted  to that class or grade of      service on the date on which he is found      eligible for promotion.      (4)  Where an  order is  made in respect      of any  allottee under  sub-section  (2)      or, as  the  case  may  be,  under  sub-      section (3),  and  the  ranking  in  the      seniority  list   of  persons   in   the      promoted class  or grade  of service, as      fixed by such order, stands revised, the      promotions made from that class or grade      of service  to the  next higher class or      grade of  service shall  be reviewed  in      accordance  with   and  subject  to  the      provisions  of  sub-section  (1)  as  if      reference therein to the final seniority      list were  references to  the  aforesaid      revised   seniority    list   and    the      provisions  of  sub-section  (2)  shall,      mutatis mutandis, be applicable to every      promotion so made.      (5)  The provisions  of sub-section (4),      mutatis  mutandis,   be  applicable   in      respect of  promotions of  allottees  to      the next higher classes or grades of the      same service.      (6)  The provisions  of sub-section  (3)      shall, mutatis  mutandis, be  applicable      in respect  of review  of promotions  of      allottees made  under  sub-sections  (4)      and (5).      (7)  Where in  respect of  promotions on      the basis  of  seniority-cum-merit  from      any class  or grade  of service  to  the      next higher  class or  grade of service,      the rules of recruitment require service      for a minimum period in the former class      or  grade   to   become   eligible   for      promotion, the  said period shall in its      application to  an allottee eligible for      promotion under  this section, be deemed      to  be   the  period   during  which  he      satisfactorily completes  the period  of      officiation in  the post  or  office  of      that class  or grade  of service  and no      such minimum  service shall be necessary      in the  case of an allottee whose record      of  service   was  satisfactory  on  the      relevant dates  of  eligibility  or  the      relevant dates  on  which  he  is  found

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    eligible for promotion.      (8)  In respect  of promotions  from any      class or  grade of  service by selection      to the  next higher  class or  grade  of      service, where  an allottee  would  have      been eligible  for consideration  if  he      had been promoted to the former class or      grade of  service on  the basis  of  his      seniority in  the final  seniority list,      such allottee, shall, subject to section      9, be  considered for  selection to  the      next higher  class or  grade of service,      immediately  after   he   satisfactorily      completes the  period of  officiation in      the  said   former  class  or  grade  of      service. If  he is selected and promoted      to the  higher class or grade of service      and satisfactorily  completes his period      of officiation  in  the  said  class  or      grade, he  shall be  entitled to initial      pay on  the date  of actual promotion to      the said  class or  grade as  if he  was      holding the said post or office from the      date on  which his  immediate junior  in      the lower class or grade was promoted to      the said  class or grade of service, but      he shall  not be  entitled to payment of      any arrears  for the period prior to the      date of  his actual  promotion. His rank      in the  seniority list of the persons in      the said  class or  grade shall be fixed      as if  he had  been promoted on the date      immediately preceding  the date on which      his immediate  junior in the lower class      or grade  was promoted  to the selection      class or grade of service.      (9)  An order  under sub-section  (2) in      respect of  an  allottee  who  had  been      reduced to a lower stage in a time scale      and whose  increment had  been  withheld      shall be subject to such modification as      the  State   Government  may,  by  order      direct.      (10) No promotions  of allottees made on      the basis of any provisional inter-State      seniority list, shall be reviewed except      after  the   publication  of  the  final      seniority  list   and  in   the   manner      provided in this section.      Explanation :- For purposes of this sub-      section  provisional   inter-State  list      includes  every   inter-State  seniority      list used  as the  basis for carrying on      the  day-to-day  administration  whether      prepared  by  the  State  Government  or      declared by court as operative until the      publication  of   the  final   seniority      list."      We may  recapitulate at this stage that the petitioners have mounted  a limited attack on the impugned provisions of the Act  in so  far as  they deprive  them of  the  monetary benefits flowing  from the  deemed promotion  to be given to them pursuant  to the  orders of  the Division  Bench of the High Court  which have  become final between the parties. We have extracted  the aforesaid Section with its relevant sub-

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sections wherein  the impugned  provisions of  the concerned clauses have been indicated by underlining them. Petitioners contend that  underlined portions  of sub-sections  (2), (3) and (8)  of Section  4 clearly  fall  within  the  teeth  of binding decision of the Division Bench of the High Court and they are  in clear  conflict with the said binding decision. As we  are not  concerned with  other provisions  of the Act except Section 11(2) we may straightaway turn to Section 11. The said provision deals with over-riding effect of the Act. It reads as under :-      "Over-riding effect. - (1)    The      provisions of  this Act  or of any order      made  thereunder   shall   have   effect      notwithstanding  anything   inconsistent      therewith contained  in any law or order      having the  force of  law or  rules made      under the  proviso to Article 309 of the      Constitution of India for the time being      in force or any provision regulating the      conditions of service of any allottee or      in any  order made by virtue of any such      law, rules or provisions.      (2)  Notwithstanding anything  contained      in any  judgment, decree or order of any      court or  other competent  authority the      rights  to  which  a  civil  servant  is      entitled to  in respect  of  matters  to      which the  provisions of  this  Act  are      applicable,  shall   be  determined   in      accordance with  the provisions  of this      Act,  and   accordingly,  any  judgment,      decree or  order directing  promotion or      consideration  for  promotion  of  civil      servants and  payment  of  salaries  and      allowances    consequent    upon    such      promotion shall  be reviewed  and orders      made in  accordance with  the provisions      of this Act." A mere  look at sub-section (2) of Section 11 shows that the respondent, State  of Karnataka,  which was  a party  to the decision of  the Division Bench of the High Court against it had tried  to get  out of the binding effect of the decision by  resorting  to  its  legislative  power.  The  judgments, decrees and  orders of  any court or the competent authority which had  become final  against the State were sought to be done away  with by  enacting the impugned provisions of sub- section (2) of Section 11. Such an attempt cannot be said to be  a   permissible  legislative  exercise.  Section  11(2), therefore, must  be held to be an attempt on the part of the State  Legislature   to  legislatively   over-rule   binding decisions of  competent courts  against the  State. It is no doubt true  that if  any decision  was rendered  against the State of  Karnataka which  was pending in appeal and had not become final  it could  rely upon the relevant provisions of the Act which were given retrospective effect by sub-section (2) of  Section 1  of the Act for whatever such reliance was worth. But  when such  a decision had become final as in the present  case   when  the   High  Court   clearly   directed respondent-State to give to the concerned petitioners deemed dates of  promotions if they were otherwise found fit and in that eventuality  to give all benefits consequential thereon including financial benefits, the State could not invoke its legislative power  to displace  such a  judgment. Once  this decision had become final and the State of Karnataka had not thought it  fit to challenge it before this Court presumably

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because in  identical other  matters this  Court had  upheld other decisions  of the Karnataka High Court taking the same view, it  passes one’s  comprehension  how  the  legislative power can  be pressed in service to undo the binding effects of such mandamus. It is also pertinent to note that not only sub-section (2)  of Section 11 seeks to bypass and over-ride the binding  effect of  the  judgments  but  also  seeks  to empower the  State to  review such  judgments and orders and pass fresh  orders in  accordance  with  provisions  of  the impugned Act.  The respondent-State  in the  present case by enacting sub-section  (2) of  Section 11 of the impugned Act has clearly  sought  to  nullify  or  abrogate  the  binding decision of  the High  Court and  has  encroached  upon  the judicial  power   entrusted  to   the  various   authorities functioning   under    the   relevant   statutes   and   the Constitution. Such  an exercise  of legislative power cannot be countenanced.      It was  contended  by  Shri  Madhava  Reddy  that  even assuming that  the Division  Bench judgment remained binding on the State despite the provisions of the impugned Act, all that the  Division  Bench  has  directed  the  State  is  to consider the  case of  the petitioners for deemed promotions on the  basis of  the final seniority list. That has already been done  and the  petitioners have  no grievance  for  the same. So  far as  the consequential  financial benefits  are concerned they would not cover the monetary benefits flowing from such  deemed promotions. Even this submission cannot be countenanced.  We   have  already   extracted  earlier   the operative portion  of the judgment of the Division Bench. It has been  in terms  directed that if petitioner is found fit and promoted  he may be given all the benefits consequential thereto including  the financial benefits. It is, therefore, obvious that  once the  deemed date of promotion is given to the concerned  petitioners  it  cannot  be  merely  notional promotion re-fixing  his pay  in the  promotional cadre with increments etc.  but  also  would  bring  in  its  wake  all consequential financial  benefits, namely, the salaries that have accrued  to them  on account of such deemed promotions. Whether  such  deemed  promotions  can  also  entail  actual monetary benefits  when  the  concerned  employees  had  not worked on  the promotional  posts, is a question which could have been  agitated by  the respondent-State, if so advised, by challenging  the order  of the Division Bench before this Court. That  was  not  done.  Instead  it  resorted  to  its legislative power  for undoing  the said  directions of  the Division Bench  by arming  itself with  the power  to review that judgment  by resort  to its  legislative function. That was clearly not permissible as it was an act of encroachment on the  judicial pronouncement  of the  High Court which had remained binding  on the  respondent-State. The ratio of the decisions of  this Court  as discussed  earlier clearly  get attracted on  the facts  of the present case and on the same grounds  on   which  this  Court  invalidated  the  relevant provisions of  Arbitration (Orissa  Second  Amendment)  Act, 1991 in  G.C. Kanungo (supra). Section 11 sub-section (2) of the impugned  Act also  has to  be declared  ultra vires and invalid.      We, therefore,  strike down  Section 11 sub-section (2) as  unconstitutional,  illegal  and  void.  So  far  as  the underlined impugned  portions of Section 4 sub-sections (2), (3) and  (8) are  concerned, they  clearly conflict with the binding direction  issued by  the Division Bench of the High Court against  the respondent-State  and in  favour  of  the petitioners. Once respondent-State had suffered the mandamus to give  consequential financial  benefits to  the allottees

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like the  petitioners on  the basis of the deemed promotions such  binding   direction  about  payment  of  consequential monetary  benefits  cannot  be  nullified  by  the  impugned provisions of  Section 4. Therefore, the underlined portions of sub-sections  (2), (3)  and (8) of Section 4 will have to be read  down in the light of orders of the court which have become final  against the  respondent-State and in so far as these provisions  are inconsistent  with these  final orders containing  such  directions  of  judicial  authorities  and competent courts,  these impugned  provisions of  Section  4 have to  give way  and to  the extent  of such inconsistency must  be   treated  to   be  inoperative   and  ineffective. Accordingly  the  aforesaid  provisions  are  read  down  by observing that  the statutory  provisions contained  in sub- sections (2),  (3) and  (8) of Section 4 providing that such persons who  have been  given deemed promotions shall not be entitled to  any arrears for the period prior to the date of their actual  promotion, shall  not  apply  in  cases  where directions to  the contrary  of competent courts against the respondent-State have become final.      In the  result, this writ petition succeeds. Section 11 sub-section  (2)   is  struck   down  as   ultra  vires  the legislative powers  of the  State. Sub-sections (2), (3) and (8) of Section 4 are read down as aforesaid. The respondent- State shall  comply with  the directions  contained  in  the binding decision  of  the  High  Court  of  Karnataka  dated 21.9.1971 in  Writ Petition Nos. 2598, 3302-3304 and 4586 of 1970 and  shall make  available all  consequential financial benefits to  the concerned  petitioners as  directed by  the High Court  within a  period of eight weeks from the receipt of the  orders of  this Court at its end. Rule issued in the Writ Petition is accordingly made absolute with costs.