Sucha Lal v. The Punjab State Power Corp. Ltd And ORS
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Krishnamurthy 2006 (4) SCC 517, while dealing with validity and scope of Rule 38A of the Tamil Nadu Minor Mineral Concession Rules, 1959 in Para 15 expounded grounds to challenge subordinate Legislation which is reproduced as below:
"Whether the Rule is valid in entirety?
15. There is a presumption in favour of constitutionality or validity of a sub-ordinate Legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a sub-ordinate legislation can be challenged under any of the following grounds:- a) Lack of legislative competence to make the subordinate legislation. b) Violation of Fundamental Rights guaranteed under the Constitution of India.
c) Violation of any provision of the Constitution of India.
d) Failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
e) Repugnancy to the laws of the land, that is, any enactment.
f) Manifest arbitrariness/unreasonableness (to an extent where court might well say that Legislature never intended to give authority to make such rules).
The court considering the validity of a subordinate
Legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate Legislation conforms to the parent Statute. Where a Rule is directly inconsistent with a mandatory provision of the Statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non-conformity of the Rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the Parent Act, the court should proceed with caution before declaring invalidity"
11.2 In Cellular Operators Association of India v. Telecom Regulatory Authority of India, (2016) 7 SCC 703, Hon'ble Supreme Court while holding Regulations framed under Telecom Regulatory Authority of India Act, 1997 as ultra vires adverted with its earlier judgments and held:- "Violation of fundamental rights
42. We have already seen that one of the tests for challenging the constitutionality of subordinate legislation is that subordinate legislation should not be manifestly arbitrary. Also, it is settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. (See Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India (1985) 1 SCC 641, SCC at p. 689, para 75.
43. The test of "manifest arbitrariness" is well explained in two judgments of this Court. In Khoday Distilleries Ltd. v. State of Karnataka (1996) 10 SCC 304, this Court held: (SCC p. 314, para 13) "13. It is next submitted before us that the amended rules are arbitrary, unreasonable and cause undue hardship
< and, therefore, violate Article 14 of the Constitution. Although the protection of Article 19(1)(g) may not be available to the appellants, the rules must, undoubtedly, satisfy the test of Article 14, which is a guarantee against arbitrary action. However, one must bear in mind that what is being challenged here under Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law-making power. In Indian Express Newspapers (Bombay) (P) Ltd. v.
Union of India (1985) 1 SCC 641, this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; `unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary'. Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say, `Parliament never intended the authority to make such rules; they are unreasonable and ultra vires'. In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution.
But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution."
44. Also, in Sharma Transport v. State of A.P. [(2002) 2 SCC 188], this Court held: (SCC pp. 203-04, para 25) "25. ... The tests of arbitrary action applicable to
* executive action do not necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression "arbitrarily" means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone." 11.3 A two Judge Bench of Hon'ble the Supreme Court in Indian Express Newspapers (Bombay) Private Ltd.
, and others Versus Union of Indian and others, 1985 (1) SCC 641 while dealing with validity of import duty on newsprint imported from outside the country held: "71. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation.
It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. In England, the Judges would say "Parliament never intended authority to make such rules. They are unreasonable and ultra vires".
11.4 A Constitution Bench of Hon'ble Supreme Court in Shayara
Bano Versus Union of India, (2017) 9 SCC 1 has adverted with scope and ambit of challenge to validity of plenary and subordinate Legislation. The Supreme Court after noticing its precedents has concluded: "100. To complete the picture, it is important to note that subordinate legislation can be struck down on the ground that it is arbitrary and, therefore, violative of Article 14 of the Constitution. In Cellular Operators Association of India v. Telecom Regulatory Authority of India, (2016) 7 SCC 703, this Court referred to earlier precedents, and held:
"Violation of fundamental rights
42. We have already seen that one of the tests for challenging the constitutionality of subordinate legislation is that subordinate legislation should not be manifestly arbitrary. Also, it is settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. (See Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India (1985) 1 SCC 641, SCC at p. 689, para 75)
43. The test of "manifest arbitrariness" is well explained in two judgments of this Court. In Khoday Distilleries Ltd. v. State of Karnataka (1996) 10 SCC 304, this Court held (SCC p. 314, para 13):
"13. It is next submitted before us that the amended rules are arbitrary, unreasonable and cause undue hardship and, therefore, violate Article 14 of the Constitution. Although the protection of Article 19(1)(g) may not be available to the appellants, the rules must, undoubtedly, satisfy the test of Article 14, which is a guarantee against arbitrary action. However, one must bear in mind that what is being challenged here under
Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law-making power. In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [(1985) 1 SCC 641, this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature.
A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; `unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary'. Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say, `Parliament never intended the authority to make such rules; they are unreasonable and ultra vires '. In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution."
44. Also, in Sharma Transport v. State of A.P. [(2002) 2 SCC 188], this Court held: (SCC pp. 203-04, para 25) "25. ... The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a
delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression "arbitrarily" means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone."
Conceded position From the perusal of above-cited judgments, it can be culled out that subordinate Legislation can be declared invalid on more grounds than plenary Legislation. A subordinate Legislation primarily can be declared invalid if (i) there is lack of Legislative competency to make alleged subordinate Legislation; (ii) there is violation of fundamental rights guaranteed under Chapter III of the Constitution; (iii) there is violation of any provision of Constitution of India; (iv) the subordinate Legislation is contrary to statute under which subordinate Legislation has been made; (v) the authority has made subordinate Legislation beyond its jurisdiction/authority; (vi) there is repugnancy between subordinate Legislation and any other Legislation; and (vii) the subordinate Legislation is manifestly arbitrary.
Findings 13.
In the case in hand, the petitioner has not alleged that impugned Regulation has been framed by an incompetent authority or it is violative of any provision of Constitution other than Article 14 or it is contrary to any
particular provision of 1948 Act under which Regulation has been framed. The only bald averment and contention of petitioner is that impugned Regulation is arbitrary. It is settled proposition of law that any action whether executive or Legislative, which is arbitrary is violative of Article 14 because arbitrariness and reasonableness are sworn enemies. Reasonableness is facet of fundamental right of equality before law as well as rule of law which governs our nation. A provision cannot be declared invalid merely on assertion that it is arbitrary. The petitioner has miserably failed to point out that as to how impugned Regulation is violative of Constitution of India or 1948 Act or it is arbitrary. 14.
Applying the afore-stated judgments, we are of the considered opinion that petitioner has failed to point out any infirmity in the impugned Regulation which could compel us to declare the impugned Regulation invalid. Even otherwise, it is settled proposition of law that Legislature knows the need of its people and Courts must be loath in interfering in Legislative and policy matters. Burden lies upon a person who claims any provision invalid. The Courts are supposed to presume alleged provisions are constitutional and valid. It is duty of the person who challenges validity of the provision to prove that provision is unconstitutional. In the case in hand, the petitioner, except making bald averments, has failed to point out any infirmity or illegality in the impugned Regulation.
Neither there is averment in writ petition nor learned counsel could point out any material to indicate mala fide of the respondent-corporation. The respondent in terms of Section 79(c) of 1948 Act has power to make Regulation with respect to terms and conditions of its employees.
: responsibilities. The respondent-corporation originally framed Regulations in 1972 and at that point of time qualification of Graduation was considered reasonably good. However, during last 25 years there is revolution in education sector and Post Graduation is a very common qualification, thus, it is difficult to perceive that qualification prescribed is unreasonable or contrary to post under consideration. We do not find the impugned Regulation violative of Chapter III of the Constitution or any other Article of the Constitution or any provision of 1948 Act. Thus, we are left with no option except to uphold the validity of impugned Regulation. =,$'#&( )-$#-$0&65,>($7%&0%,/"0&'0$#0'5$%#&1$"(7-"' 1&/"#$70&>-#' #-$5$#&#&($0?
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The legislation is pure and simple, selfdeceptive, 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 fight acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the do's and don'ts of the Constitution neither prospective nor retrospective laws can be made so a 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, twenty years ago the parties had no fights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years.
We are concerned with today's rights 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. That would be most arbitrary, unreasonable and a negation of history."
15.1.
From the reading of mandate of aforesaid judgments, it is quite evident that rules framed by Legislature may be prospective as well retrospective. There is no bar in framing rules/regulations with retrospective effect provided the rules are not abridging vested or fundamental rights of parties concerned and length of retrospective is unreasonable. It is also
evident that conditions of service which include avenues of promotion may be changed. The appointment of an employee may at the first instance be outcome of a contract, however, as soon as an employee is appointed, he holds a status and is governed by rules and regulations applicable to post held by employee concerned. A rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Article 14 and 16 of the Constitution. A rule cannot deprive an employee from promotion which he has already got. As soon as an employee is promoted, right accrues and by way of retrospective amendment he cannot be demoted. $ 5
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16.
Questions No. (iii) and (iv) are inter-twined, thus, are adjudicated jointly.
In Chairman, Railway Board and others vs.
C.R.Rangadhamaiah and others (1997) 6 SCC 623, Hon'ble Supreme Court has held that employer is competent to frame rules altering the criteria of eligibility for promotion. The rules which operates futuro so as to govern future rights of those employees who are already in service cannot be assailed on the ground of retroactivity. The authority competent to lay down qualification for promotion is also competent to change the qualification. The rules defining qualifications and suitability for promotion are conditions of service and can be changed prospectively as well retrospectively. Thus, rule is, however, subject to well recognized principle that benefit acquired under existing rules cannot be taken away by an amendment with retrospective effect. Therefore, the employees who are already promoted before the amendment cannot be reverted and their promotion cannot be recalled. The Supreme Court has held:- "16. It is no doubt true that once a person joins service
* under the Government the relationship between him and the Government is in the nature of status rather than contractual and the terms of his service while he is in employment are governed by statute or statutory rules, which may be unilaterally altered without the consent of the employees. It has been so held by this Court in Roshan Lal Tandon (supra) and State of Jammu & Kashmir v. Triloki Nath Khosa, [1974] 1 SCR at pp. 779,
780. It may, however, be mentioned that in Roshan Lal Tandon (supra) the petitioner was invoking his rights under the contract of service and the said conten-tion was rejected by the Court with the observations : "We are therefore of the opinion that the petitioner has no vested contractual light in regard to the terms of his service and that the counsel for the petitioner has been unable to make good his submission on this aspect of the case." (p. 196) (emphasis supplied) 19.
In Triloki Nath Khosa and Ors. (supra) rules had been framed altering the criterion of eligibility for promotion from the post of Assistant Engineer to the post of Executive Engineer and the same were challenged on the ground of retrospectivity by the Assistant Engineers who were in service on the date of making of these rules. Rejecting the said contention, this Court said : "16.........It is wrong to characterise the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes, undoubtedly operates on those who entered service before the framing of the rule but it operates in futuro, in the sense that it governs the future right of promotion of those who are already in service. The judgment rules do not recall a
promotion already made or reduce a pay scale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classification founded on such a consideration suffers from a discriminatory vice is another matter which we will presently consider but surely, the rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past. If rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of compulsory retirement in public interest ought to have foundered on the rock of retrospectivity. But such is not the implication of service rules nor is it their true description to say that because they affect existing employees they are retrospective."
20.
It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retrospectivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively."
In T.R.Kapur (supra), Hon'ble Supreme Court has recognized retrospective amendment and has further held that employees who are already promoted before amendment can be reverted provided amending
rules satisfies test of Articles 14 and 16 of the Constitution. In Roshan Lal Tandon and another vs. Union of India and another AIR 1967 SC 1889, a five Judge Bench of Hon'ble Supreme Court while dealing with validity of a notification issued by Railway Board in so far as it granted protection to the existing Apprentice Train Examiners and laid down the procedure to fill upgraded vacancies, has opined that origin of government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government.
In other words, the legal position of a Government servant is more of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emoluments of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status.
It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest.
language of juris- prudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned.
A two Judge Bench of Hon'ble Supreme Court in a little recent judgment in Union of India and others vs. Krishna Kumar and others (2019) 4 SCC 319, after noticing its earlier judgments in Deepak Aggarwal vs. State of U.P., (2011)6 SCC 725 and State of Tripura vs. Nikhil Ranjan Chakraborty, (2017) 3 SCC 646 has concluded that right to be considered for promotion accrues on the date of consideration of the eligible candidates. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancies arose. A candidate has right to be considered in the light of existing rules which implies 'rule in force' on the date the consideration takes place.
In the absence of mandate that vacancy must be filled invariably by the law existing on the date when vacancy arose, no right accrues in favour of an employee and State has right to stipulate that vacancy shall be filled in accordance with amended rules. 16.1 From the perusal of judgments of Hon'ble Supreme Court in !>$(70"+-0&1"'#"1"',50"9A"5,0',50"9"6"(."/A$'-"1 ."/+(&',50"9 C.R.Rangadhamaiah (supra), Wing Commander J.
unilaterally by the government. The right of seniority or promotion do not accrue on the basis of rules and regulations applicable on the date of joining of an employee whereas rules and regulations which are in force at the time of consideration of promotion are applicable. The service conditions pertaining to seniority are always liable to alteration. An employee who has already been promoted can claim his right as accrued right whereas no employee has right to claim his right as a vested or accrued right unless he has already been promoted. The rules/regulations existing on the date of consideration for promotion are applicable, thus, no right on the basis of rules existing on the date of joining of an employee or arising of vacancy accrues or can be claimed.
16.2 In view of judgments of Hon'ble Supreme Court, we are of the considered opinion that no right accrued in favour of the petitioner prior to amendment of 2012 and the respondent-corporation had every right to change the criteria of eligibility of a post. As per petitioner, vacancy arose in 2011 and at that point of time the required qualification was Graduation. As per respondentcorporation, no vacancy was filled in 2011 and vide order dated 23.11.2011, three posts of IPRO in the higher scales were created. The post of Public Relations Officer was re-designated as IPRO. The post of IPRO was filled after impugned amendment.
From the undisputed facts emerging from record, it is quite evident that vacancy of Public Relations Officer arose in 2011, however, no employee was appointed against the vacancy and in 2011, vide order dated 23.11.2011, three posts of IPRO were created and thereafter filled as per
: amended rules. The petitioner after amendment of 2012 became ineligible as he was possessing qualification of Graduation whereas required qualification was Post Graduation. It is not case of petitioner that he was considered or promoted as per rules applicable prior to impugned amendment. The petitioner was never considered or appointed as per rules applicable prior to impugned circular, thus, no right accrued in favour of the petitioner. Thus, claim of petitioner that respondent-corporation was bound to make his appointment as per regulations applicable prior to 2012 is unsustainable and deserves to be rejected.
17.
In view of above observations, we hold:
(i)Impugned circular No. 10/2012 dated 4.10.2012 (Annexure P-2) is neither violative of Article 14 of Constitution of India nor any provision of 1948 Act read with Regulations made thereunder.
(ii)The impugned Regulation is not retrospective. (iii)Promotion is not right of an employee and he cannot challenge change of criteria of promotion unless he has already been promoted and there is retrospective amendment. In view of above findings, there is no merit in the present petition and the same is hereby dismissed.
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< F!5 8 ( G Whether reportable :
Yes