We have heard learned counsel for the parties.
These appeals by special leave are directed against the order passed
by the Division Bench of the Delhi High Court dated 22nd July, 2003. The
Division Bench of the Delhi High Court in a writ petition filed by the respondent
herein set aside the order passed by the Administrative Tribunal dated 7th
January, 1999. The order reads as under :-
“In the result these two O.As succeed and are allowed to the extent
that following the Supreme Court's Judgment in Shri Mohanty's case (supra) the
promotions made of those SC/ST candidates under Rule 13 (unamended), IES
Rules, 1961 without considering the case of the applicants in the two O.As before
us, is held by us to be legally unsustainable. Furthermore, the retrospective
operation of the amendment to Rule 13, IES Rules to the extent that the same
takes away the vested rights of the applicants and other general category
candidates is also unreasonable, arbitrary and as such violative of Articles 14 and
16 of the Constitution and is, therefore, struck down.
In the light of the above, respondents are directed to review the
impugned promotions and consider the cases of the applicants for promotions
from the date the impugned promotions were made, with all consequential
benefits. While doing so the respondents should make all efforts to protest the
promotions of reserved category candidates to the extent possible, but if it
becomes absolutely necessary to revert them from the higher posts to which they
have been promoted under the unamended or amended Rules, that may be done.
While doing so, however, any financial benefits given to them while working in the
higher posts should not be withdrawn and should be protected as personal to
them.”
Aggrieved against this order, the writ petition was filed by the
respondents herein and the Division Bench of the Delhi High Court set aside the
aforesaid direction and held that :
“We have, therefore, no other alternative but to set aside the
judgments of the Tribunal and remit the
matter back to it for consideration of the matter afresh.”
So far as CWP No.223 of 2001 is concerned, the Division Bench held
that it is not maintainable and directed the petitioners to approach the Central
Administrative Tribunal. CM No.5066 of 2001 an application made by Mr. Gyan
Prakash in this writ petition is concerned, Court decline to implead applicant as
party.
We may at outset mention that we are not concerned with the facts
relating to the CWP No.223 of 2001. We have been informed that the matter is
pending before the Tribunal pertaining to this subject. Therefore, we are not
going into the facts pertaining to CWP No.223/2001.
The present appeals were filed by two persons namely Nagesh Singh
and B.S.Bhandari who filed the O.A. before the Tribunal praying the following
reliefs :
i) “The Hon'ble Tribunal may be pleased to declare the applicants
having been promoted to Grade III as per Rule 8(1)(b)(i) for his
juniors have been promoted before them.
ii) That out of turn promotion from Grade IV to Grade III of the IES
to junior officers belonging to SC/ST in supersession of claims of
seniors belonging to the general category be
struck down as violative of the statutory rules of the IES, 1971 and
A 14, 16(1) and 335 of the Constitution of India,
iii)This Hon'ble Tribunal may be pleased to quash the impugned
amendment dated 22.9.1989 (Annexure C) amending Rule 13 as
being void,
iv) That the applicants be deemed to be promoted to Grade III of the
IES from the date their juniors have been promoted,
which were granted by the Tribunal and that have been set aside by
the Division Bench. Therefore, we are concerned with the grievance
of these two appellants before us vis-a-vis the respondents who are
party before us. We are not touching the rights of other parties in
any manner.”
Both these appellants i.e Nagesh Singh and B.S. Bhandari joined
Grade IV (Assistant Director) in the Indian Economic Service (IES) on 1st
September, 1982. The other respondents joined the service after them.
Respondent No.1 joined the service on 1.12.1982 and Respondent Nos.2 to 5
joined the service on 29th August, 1983. Respondent No.1 was promoted on 25th
May, 1988 as Grade III (Deputy Director) by the Order dated 25th May, 1988 and
respondent Nos. 2 to 5 were promoted as Grade III
(Deputy Director) on 7th July, 1988. Against these accelerated promotions against
reserved quota was challenged by petitioner Nos. 1 and 2 by filing a
representation but without any result. Therefore, they were driven to file O.A.
before the Central Administrative Tribunal under Section 19 of the
Administrative Tribunal's Act, 1985. The main grievance of these petitioners
before the Tribunal was that as per Rule 13 as it stood in 1988 there was no
reservation quota in promotion for SC/ST and they have been wrongly promoted
under the garb of so called administrative instruction issued on 27th November,
1972. The validity of this Notification dated 27th November, 1972 was also
challenged. It may be relevant to mention here that the Indian Economic Service
Rules, 1961 were framed under proviso to Rule 309 of the Constitution and they
came into force when they were published under the Gazette of India (Extra
Ordinary) dated 1st November, 1961 and in that Rule 13 as it stood reads as under
:-
13. Reservation for Scheduled Castes, Scheduled Tribes etc. -
Appointments to the Service made otherwise than by promotion will be subject to
orders regarding special representation in the Services for Scheduled Castes and
Scheduled Tribes issued by the Ministry of Home Affairs from time to time.”
The grievance of the petitioners was that Rule 13 did not contemplate
any reservation against in promotion quota. It clearly mandates that appointment
of service made otherwise than by promotion will be subject to orders regarding
special representation in service for SC/ST issued by the Ministry of Home Affairs
from time to time. Therefore, according to Rule 13, the reservation could only be
made in service otherwise than by way of promotion. It means that the only area
in which the reservation could be made is in the direct appointment. In our
opinion Rule 13 clearly mandates that the reservation was only in recruitment and
not in promotion. However, this issue has been a subject matter of litigation
before this Court in number of cases but no useful purpose will be served by
highlighting all those cases because subsequently, Rule 13 was amended by
Notification dated 22nd September, 1989 and the amended rule reads as under :-
“13. Reservation for Scheduled Castes and Scheduled Tribes, etc. -
Appointment to the service shall be made subject to the orders relating to
reservation for Scheduled Castes and Scheduled Tribes issued by the Central
Government from time to time.”
As a result of this amendment the hurdle imposed in unamended Rule
13 was taken away and the area was left
open for reservation in direct recruitment as well as in promotions but this
amended rule dated 22nd September, 1989 was made retrospective effect with
effect from 27th November, 1972. On 27th November, 1972 an order was issued
by the Government for providing a reservation for promotion quota also but it
had no legal sanction at that time. Therefore, now a legal sanction was given by
amending Rule 13 and substituting the new rule making it retrospective from 27th
November, 1972 so as to protect all the promotions which have been done from
27th November, 1972. This amended Rule 13 had come up for interpretation in
identical service rules i.e. in the Indian Statistical Service before this Court and
the amended rule in the Indian Statistical Service is pari materia with the present
rule which reads as under :-
13. Reservation for Scheduled Castes and Scheduled Tribes etc. -
Appointment to the service made otherwise than by promotion will be subject to
orders regarding special representation in the Service for Scheduled Castes and
Scheduled Tribes issued by the Government from time to time.” This rule was
also given retrospective operation from 27th November, 1972.
This rule came up for interpretation before this Court and Their
Lordships after examining the various
other decisions of this Court concluded that retrospectivity cannot be given to the
rule and it was observed that the legislature and the competent authority under
Article 309 of the Constitution of India have the power to make laws with
retrospective effect. This power, however, cannot be used to justify the arbitrary,
illegal or unconstitutional acts of the Executive. When a person is deprived of an
accrued right vested in him under a statute or under the Constitution and he
successfully challenges the same in the court of law, the legislature cannot render
the said right and the relief obtained nugatory by enacting retrospective
legislation.
It was also observed that the retrospective operation of the amended
rule 13 cannot be sustained.
It was observed in para 14 and 15 in Union of India and Others vs.
Tushal Ranjan Mohanty and Others case reported in (1994) 5 SCC 450 which
read as under :-
14.”The legislatures and the competent authority under Article
309 of the Constitution of India have the power to make laws
with retrospective effect. This power, however, cannot be used
to justify the arbitrary, illegal or unconstitutional acts of the
Executive. When a person is deprived of an accrued right
vested in him under a statute or under the Constitution and he
successfully challenges the same in the Court of law, the
legislature cannot render the said right and the relief obtain
nugatory by enacting retrospective legislation.
15.Respectfully following the law laid down by this Court in
the judgments referred to and quoted above, we are of the view
that the retrospective operation of the amended Rule 13 cannot
be sustained. We are satisfied that the retrospective
amendment of Rule 13 of the Rules takes away the vested
rights of Mohanty and other general category candidates senior
to Respondents 2 to 9. We, therefore, declare amended Rule
13 to the extent it has been made operative retrospectively to
be unreasonable, arbitrary and, as such, violative of Articles 14
and 16 of the Constitution of India. We strike down the
retrospective operation of the rule. In the view we have taken
on the point it is not necessary to deal with the other
contentions raised by Mohanty.”
Therefore, ratio of this case is equally applicable in this service also.
The net result of above discussion is that at the time when the respondents were
promoted there was no rule and it was only administrative instruction which was
sought to be given a legal sanction by amending the Rule 13 from 1972 but that
retrospectivity has already been set aside in the case of Mohanty(supra).
Therefore, on the basis of the reasoning given by the Hon'ble Sawant,
J. in Union of India vs. V. Mohanty's, we read down the Rule 13 that it cannot be
given retrospectivity. Accordingly, we set aside the order of the Division Bench of
the Delhi High Court and restore the order of the Tribunal passed in OA
No.1206/93 and direct
that the case of both these appellants before us shall be considered by the
respondents from the date when their juniors were promoted to the post of
Deputy Director, Grade III. However, we direct that whatever monetary benefits
which have been accrued to these respondents shall not be deprived to them.
We have been informed that both these appellants have already been
granted retrospective promotion and all the benefits flowing therefrom.
The appeals are allowed and the order of the Delhi High Court is set
aside. All the applications filed by Appellant No.3 – in person – are permitted to
be withdrawn.
No order as to costs.
New Delhi, July 24, 2008