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Judgment
Justice Rajiv Sharma, Judge
Since common questions of law and facts are involved in all these petitions, the same were taken up together and are being disposed of by a common judgment. However, in order to maintain clarity, the facts of CWP No. 4130/2011 are being taken into consideration.
Material facts necessary for the adjudication of these petitions are that the petitioner in CWP No.4130/2011 has passed matriculation examination with science on 7.7.1981. He was selected as daily wage Class-IV employee on 1.1.1984. He was regularized as Class-IV employee in the respondent-department on 1.4.1995.
The Himachal Pradesh Animal Husbandry (Class-IV) Non-Gazetted Employees'' Organization approached this Court by way of CWP No.950/2010 for the redressal of the grievance of its members. CWP No. 950/2010 was disposed of by this Court on 30.3.2010. Operative portion of judgment dated 30.3.2010 reads thus:
It is for the petitioners to approach the Government in which case the Government would get opportunity to look into the matter and take appropriate action thereon in accordance with law. The writ petition is hence disposed of as follows;
The petitioners may file appropriate representations before the first respondent. In the event of the petitioners filing representations within one month from today, the first respondent shall consider the same within another three months from the date of production of a copy of this judgment along with a copy of the writ petition.
Thereafter, the representation was made by the petitioner. The same was rejected on 19.6.2011. The representation has been primarily rejected on the ground that on same and similar facts CWP No. 275/2009 has been rejected by a Division Bench of this Court on 4.8.2008, titled as Nehar Singh and others versus State of H.P. and another.
Respondent-State has framed Recruitment and Promotion Rules called "Himachal Pradesh Animal Husbandry Department, Veterinary Pharmacist (Class-III, Non Gazetted) Recruitment and Promotion Rules, 2002" under Article 309 of the Constitution of India. These Rules were notified on 23.5.2002. According to these Rules, the total cadre strength of Veterinary Pharmacist was 2066. The minimum qualification prescribed for direct recruitment was matriculation examination with Science (Physics and Chemistry) or its equivalent examination from a recognized Board/University recognized by the State Government and should have passed the prescribed Veterinary Pharmacist training course from departmental training centre for the duration as may be prescribed in the Training Regulations of this category by the Government from time to time. 75% posts were to be filled up by direct recruitment and remaining 25% by promotion, failing which by direct recruitment. Minimum educational qualification for the promotees was also the same as prescribed for direct recruits. 25% promotional posts were to be filled up from amongst the departmental Class-IV employees, who were matric pass with science or its equivalent examination from a recognized University or Board and also possessed one year regular service or regular combined with continuous ad hoc service rendered upto 31.3.1998 plus five years service on daily wages in the Department. He should have also passed the prescribed pharmacist training course from the Departmental Training Centre for the duration as prescribed in the Training Regulations for this category by the Government from time to time.
The respondent-State initiated process for selecting Class-IV employees for Pharmacist training on 26.9.2002 from those Class-IV employees, who had put in five years daily wage service and one year regular service on 31.8.2002 with matriculation with science. The necessary information of the Class-IV employees with their seniority and original matriculation certificate was to be supplied before 10.10.2002 by all the Assistant Directors. The respondent-State amended the Recruitment and Promotion Rules on 31.7.2003. For the existing provision, against column No. 7(A) I, the following provision was substituted, namely:
Should have passed the 10+2 or its equivalent examination and also should have passed the Matriculation Examination with Science (Physics and Chemistry) from the Board/University recognized by the State Government.
For the existing provision against column No.10, the following was substituted:
87 1/2% by direct recruitment.
121/2 % by promotion failing which by direct recruitment.
Similarly, in the existing provision against column No.11, the following substitution was made:
By promotion from amongst the departmental Class-IV employees who possess one year regular service or regular combined with continuous ad hoc service rendered in the grade plus 5 years service on daily wages in the department: Provided that he should have passed the prescribed Pharmacist Training Course from Departmental Training Centres for the duration as prescribed in the Training Regulations of this category by the Government from time to time.
Mr. Keshav Thakur has strenuously argued that names of the petitioners and similarly situate persons were required to be sponsored on the basis of Annexure P-5 dated 26.9.2002 strictly as per the regulations notified on 9.2.1985 whereby qualification of matriculation with science has been prescribed for sponsoring the names of candidates for Veterinary Pharmacist course. He then argued that the amendment carried out in the Recruitment and Promotion Rules with effect from 31.7.2003 could not be given retrospective effect to destroy the vested/accrued rights of the petitioners and similarly situate persons. He also argued that the new guidelines though approved by the Cabinet on 31.10.2002 were never notified. He further argued that by way of amendment carried out in the year 2003, only rule 7-A (i) has been substituted, but rule 7-A (ii) has been retained, which talks of passing of Veterinary Pharmacist training from the department training centre for the duration as may be prescribed in the training regulations of this category by the Government from time to time. He further contended that column 11 also talks of training regulations and not guidelines. Thus, according to him, order dated 19.6.2010 is illegal and arbitrary, as such, violative of Articles 14 and 16 of the Constitution of India.
Mr. Ankush Sood, learned Additional Advocate General has supported the decision dated 19.6.2010. According to him, the issues raised in these petitions have already been adjudicated upon by a Division Bench of this Court in CWP No. 275/2005 decided on 4.8.2008. According to him, though the process had commenced for sponsoring Class-IV employees on 26.9.2002 but the same was put in abeyance after the new guidelines had come into existence as per Annexure SA-2 dated 14.11.2002. He further argued that the process initiated was scuttled as per Annexure SA-3 dated 4.4.2003. He has also argued that now the candidates are being sponsored, who are in possession of 10+2 qualification and four batches have already been sent for training.
We have heard the learned counsel for the parties and have perused the pleadings carefully.
It will be apt at this stage to take into consideration the Regulations called "The Himachal Pradesh Animal Husbandry Department Training Regulation for Pharmacist" dated 19.12.1984, which were duly published in the Rajpatra on 9.2.1985. According to these Regulations, the eligibility for the new entrants was matriculation with science (Physics and Chemistry) or equivalent examination from recognized University or Board. 25% of candidates to be sponsored out of Class-IV employees, who were matriculate with chemistry and physics/general science having five years regular service in the Department and 75% by selection from open market and these candidates were required to be from rural areas. In service Class-IV officials were to be treated on duty for all intents and purposes and were to get their salaries from the offices from where they were getting at the time of their proceeding for the training. According to the Recruitment and Promotion Rules notified on 23.5.2002, the minimum essential qualification was matriculation examination with science with physics and chemistry or its equivalent examination for promotion from amongst the Departmental Class-IV employees. The mode of recruitment was 75% by direct recruitment and 25% by promotion failing which by direct recruitment. It is mentioned in rule 7 that the candidate should have passed the prescribed Veterinary Pharmacist training course from Departmental training centre for the duration as may be prescribed in the Training Regulations of this category by the Government from time to time. Similarly, in rule 11 for promotion from amongst the Departmental Class-IV employees, there is a condition that the Departmental candidate should have passed the prescribed Pharmacist Training Course from Departmental Training Centres for the duration as prescribed in the training regulations for this category by the Government from time to time. The rules notified on 23.5.2002 are required to be read in conjunction with the Himachal Pradesh Animal Husbandry Department Training Regulations for Pharmacists. According to these Regulations, minimum essential qualification prescribed is only matric with science (physics and chemistry).
Respondent-State has already initiated the process for sponsoring the names of Class-IV employees for Veterinary Pharmacists Training on 26.9.2002. The Assistant Directors, Department of Animal Husbandry, Himachal Pradesh were directed to supply the requisite information by 10.10.2002. However, in the meantime, new guidelines were approved by the Cabinet for selection of candidates for the Veterinary Pharmacist Training Course, vide Annexure SA-2 dated 14.11.2002. According to these guidelines, written test was to be conducted by C.S.K.H.P.K.V., Palampur for selection of candidates for admission to the two years training course. The minimum essential qualification was 10+2 examination. It was also stipulated therein that 12.5% candidates of the batch of 400 candidates would be reserved for Class-IV candidates of Animal Husbandry Department having 5 years service in the Department after fulfilling the requisite qualification, i.e. 10+2 examination.
We had passed the following order on 1.9.2011:
During the course of hearing, it has come out that the Animal Husbandry Department had duly notified the Regulations for training of veterinary pharmacists. According to the learned Additional Advocate General, the notification was first issued on 19.12.1984. However, it is seen from the government''s letter dated 14.11.2002 that these Regulations were kept in abeyance and a new set of guidelines was issued, as approved by the Cabinet. There will be a direction to the respondents to file a supplementary affidavit producing the Regulations, specifying the dates on which the Regulations of 1984 were notified in the Rajpatra and also the new guidelines of the year 2002. It shall also be specified in the affidavit as to whether the new guidelines had been notified, as was duly done in the case of the previous one. It shall also be further clarified in the affidavit as to when was the decision taken to keep in abeyance the Regulations and with effect from what date the new guidelines were introduced and whether such decision was also duly notified. Still further, it shall be made clear in the affidavit as to how many training programmes were conducted as per new guidelines and in such training programmes how many class-IV employees had been included as per the 10+2 qualification or /and on relaxation. Post on 21st September, 2011.
In sequel to order dated 1.9.2011, the supplementary affidavit has been filed by respondent No.2. According to the averments contained in the supplementary affidavit, 1984 Regulations were published in Rajpatra on 9.2.1985. The new guidelines were not notified in the Rajpatra as the decision was taken with the approval of the Government and the same was conveyed by the Government vide Annexure SA-2 dated 14.11.2002. We had issued another set of directions to the respondent-State on 12.10.2011, which read thus:
Though the learned Additional Advocate General harped on the several legal as well as factual positions, there appears to be an undisputed legal as well as factual position, as is discernable from the records available before this Court at this stage. In the judgment, dated 4th August, 2008 in CWP No. 275 of 2005, passed by the Division Bench of this Court at paragraph 5, it is stated as follows:-
On 11th September, 2002 advertisement was issued for filling in 400 seats in the Veterinary Pharmacist Training Course. Out of these seats, 100 seats were reserved for class-IV departmental staff. Thereafter, a letter was issued on 13th September, 2002 that only the names of those employees who had passed 10+2 examination having done matriculation with science subject should be sponsored for training.
Though we made an attempt to find out the basis of that letter, we have not been able to lay our hands on the records as available with us. In the letter, dated 14th November, 2002 from the Under Secretary (Animal Husbandry) to the Government of Himachal Pradesh, there is a reference to the Cabinet decision on certain issues regarding the conduct of entrance test for admission to two years'' Veterinary Pharmacist Training Course. There cannot be any dispute that entrance test is only for direct recruits and not for the promotees. Therefore, ex facie the Cabinet decision, as such, may not apply to promotees. Be that as it may, there is no reference to the date of Cabinet decision as to whether the same is prior to 11th September, 2002 or not. At any rate, the same has not been duly notified, as is clearly admitted in the affidavit, dated 20th September, 2011, filed by the Director on a query from this Court. It has to be noted that the training regulations, as originally framed, had been duly notified and the same have been in force ever since 1984. The 1984 training regulations prescribed qualification for training in respect of 25% quota of promotees as matric with Chemistry with Physics/General Science only. There is no valid, proper or legal amendment to these regulations. Still further, it has to be noted that admittedly amendment in the R&P Rules for appointment to the post of Veterinary Pharmacist came into force only on 31st July, 2003 and which prescribed qualification to the post as 10+2 and matriculation with science. The quota of the promotees has also been reduced to 12 1/2 % from 25%.
From the letter, dated 26.9.2002, which is Annexure P-5 in CWP No. 4130 of 2011 from the Director, it is seen that availability of class-IV employees, who fulfilled the qualification matric with science had been called for the purpose of sending them for training. Necessarily, this is for the purpose of filling up 25% of the quota of 400 posts, already advertised.
The position emerging from the factual matrix is as follows:-
(i) When 400 posts were sought to be filled up in September, 2002, the qualification, both for direct and promotees, was only matric with science, since the amendment in the R&P Rules was notified only on 31.7.2003.
(ii) Of the 400 posts, 100 were to be given to the in-service candidates.
(iii) The in-service candidate(s) can be appointed only after training. In other words, the intending appointees are sent for training and those candidates needed to fulfill only the qualification as on September, 2002.
(iv) Whether the candidates, both in the direct and promotees, are initially appointed and sent for training or recruited and sent for training and after training their appointment is not quite clear.
In the above circumstances, there appears to be a good case for the in-service candidates who fulfilled the qualification in terms of the un-amended R&P Rules and also the regulations for laying a claim in respect of 100 vacancies out of 400 vacancies, already notified in September, 2002.
There will be a direction to the Director to file an affidavit with reference to the position as discussed above. It shall also be clarified as to what is the fate of selection as per advertisement for 400 posts, made in September, 2002. There shall also be a specific clarification on point (iv).
Post on 19th October, 2011.
In sequel to the directions issued by us on 12.10.2011, supplementary affidavit has been filed by respondent No.2 on 22.10.2011. According to this affidavit, the new guidelines were approved by the Cabinet on 31.10.2002 and vide letter dated 14.11.2002, educational qualification has been increased from matric to 10+2. It is also averred in the supplementary affidavit that the advertisement made for 400 posts in the month of September, 2002 was cancelled. The gist of the supplementary affidavit is that 12.5% quota was reserved for the category of Class-IV employees, who were possessing 10+2 qualification.
The Regulations were duly framed on 19.12.1984 whereby detailed procedure has been laid down for sponsoring the names of the candidates from Class-IV employees, who were possessing matriculation qualification with science. The ratio prescribed was 25% for Class-IV employees and 75% by way of direct recruitment. These regulations are also referred to in the Recruitment and Promotion Rules notified under Article 309 of the Constitution of India on 23.5.2002. The process was also initiated, as noticed above, for sponsoring the names of Class-IV employees on 26.9.2002. The process has been stalled only on the basis of guidelines approved by the Cabinet on 31.10.2002 conveyed vide Annexure SA-2 dated 14.11.2002. These guidelines are in conflict with the Regulations, i.e. Annexure SA-1. These were notified in Rajpatra on 9.2.1985. The new guidelines have never been notified by the State Government. The qualification and the mode of recruitment prescribed under the Regulations coupled with Recruitment and Promotion Rules notified on 23.5.2002 could not be altered to the disadvantage of the petitioners on the basis of letter dated 14.11.2002. The process once initiated as per letter dated 26.9.2002 read in conjunction with 1984 Regulations was required to be completed till the Regulations framed in the year 1984 were repealed/substituted in accordance with law. What has been stated in letter dated 14.11.2002 is that the Regulations framed in the year 1984 for training course of Veterinary Pharmacist were to be held in abeyance and new guidelines have been approved by the Government. There is no tangible evidence placed on record to show when 1984 Regulations were superseded/rescinded. Even according to amendment carried out in the Rules on 31.7.2003, there is a reference of training regulations and not guidelines, vide Annexure SA-2 dated 14.11.2002
The matter is required to be considered from another perspective. According to the pleadings, 297 seats were available for Class-IV employees to make them eligible for sponsoring their names for Veterinary Pharmacist Training course and thereafter they were to be promoted as Veterinary Pharmacist. This was the position when 1984 Regulations and Recruitment and Promotion Rules notified on 23.5.2002 were in force. The amendment has been carried out on 31.7.2003 whereby qualification of 10+2 has been prescribed and the quota has been reduced from 25% to 12.5% of Class-IV employees.
We are of the considered view that letter dated 14.11.2002 and the amendment dated 31.7.2003 were prospective and could not be given retrospective effect, more particularly, when the process had already been initiated on 26.9.2002 for sponsoring the names of petitioners and similarly situate persons against 25% quota with matriculation with science as qualification. The regulations could not be put in abeyance only on the basis of guidelines. It is settled law that if there is a conflict between Act and Rules, the Act will prevail, if there is a conflict between Rules and Regulations, Rules will prevail and if there is a conflict between Regulations and instructions/guidelines, Regulations would prevail.
It has come in the supplementary affidavit filed by the State that the guidelines issued by the State were never published.
Their Lordships of the Hon''ble Supreme Court in Harla Vs. The State of Rajasthan, have held that natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognizable way so that all men may know what it is or at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. Their Lordships have further held that in the absence of any law, rule, regulation or custom, a law cannot come into being by merely passing a resolution without promulgation or publication in the Gazette or other means. Promulgation or publication of some reasonable sort is essential. Their Lordships have held as under:
We do not know what laws were operative in Jaipur regarding the coming into force of an enactment in that State. We were not shown any, nor was our attention drawn to any custom which could be said to govern the matter. In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before the law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential.
Their Lordships of the Hon''ble Supreme Court in Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, 4 have held that the vacancies in the promotional posts occurring prior to the amendment have to be filled up in accordance with the un-amended rules.
In the instant case the Regulations were framed in the year 1984 and the same were published in the year 1985. The rights, which have accrued to the petitioners on the basis of un-amended rules read with Regulations framed in the year 1984, could not be taken away merely on the basis of guidelines, which were not even published. Once the Regulations have been framed the same can be rescinded/substituted the manner in which the Regulations are made. It is settled law that the rules, instructions and circulars cannot take away the vested rights acquired by the parties until and unless explicit or by implication the indication is given that the rights could be taken away, that too, retrospectively.
Their Lordships of the Hon''ble Supreme Court in T.R. Kapur and Others Vs. State of Haryana and Others, have held that though rules can be amended retrospectively but the benefits acquired under existing rules cannot be taken away. Their Lordships have held as under:
Shri Shanti Bhushan, learned counsel for the petitioners has put forward a three fold contention. First of these submissions is that the impugned notification which purported to amend R. 6(b) of the Class I Rules with retrospective effect from July 10, 1964 making a degree in Engineering essential for promotion to the post of Executive Engineer in Class I service constitutes a variation in the conditions of service applicable to officers belonging to Class II service who are diploma-holders like the petitioners prior to the appointed day, i.e., November 1, 1966, to their disadvantage as it renders them ineligible for promotion to the post of Executive Engineer in Class I service was ultra vires the State Government having been made without the previous approval of the Central Government as enjoined by the proviso to S. 82(6), Punjab Reorganisation Act, 1966. It is urged that any rule which affects the promotion of a person relates to his conditions of service, although mere chances of promotion may not be. The contention, in our opinion, must prevail. The second is that it was not permissible for the State Government to amend R. 6(b) of the Class I Rules with retrospective effect under the proviso to Art. 309 of the Constitution so as to render ineligible for promotion to the post of Executive Engineer in Class I service, the members of Class II service who are diploma-holders although they satisfy the condition of eligibility of eight years'' experience in that class of service. It is said that the unamended R. 6(b) conferred a vested right on persons like the petitioners which could not be taken away by retrospective amendment of R. 6(b). The third and the last submission is that the action of the State Government in issuing the impugned notification making retrospective amendment of R. 6(b) of the Class I Rules was wholly arbitrary, irrational and mala fide and thus violative of Arts. 14 and 16(l) of the Constitution. It is submitted that the impugned notification was calculated to circumvent the direction given by this Court in its order dated February 24, 1984 on the basis of the undertaking given by the learned Additional Solicitor General that the State Government would consider the cases of all eligible officers belonging to Class II service for promotion to the Class I service.
It is well settled that the power to frame rules to regulate the conditions of service under the proviso to Art. 309 of the Constitution carries with it the power to amend or alter the rules with a retrospective effect : B.S. Vadera Vs. Union of India (UOI) and Others, , Raj Kumar Vs. Union of India (UOI) and Others, , K. Nagaraj and Others Vs. State of Andhra Pradesh and Another, and The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, . It is equally well settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may not be. It may further be stated that an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well recognised principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to Art. 309 which affects or impairs vested rights. Therefore, unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules cannot be reverted and their pro motions cannot be recalled. In other words, such rules laying down qualifications for promotion made with retrospective effect must necessarily satisfy the test of Arts. 14 and 16(l) of the Constitution : State of Mysore Vs. M.H. Krishna Murthy and Others, B.S. Yadav and Others Vs. State of Haryana and Others, State of Gujarat and Another Vs. Raman Lal Keshav Lal Soni and Others, and Ex-Capt. K.C. Arora and Another Vs. State of Haryana and Others,
Their Lordships of the Hon''ble Supreme Court in Nani Sha and others versus State of Arunachal Pradesh and others, (2007) 15 SCC 406 have held that in order to give retrospective effect to subordinate legislation, specific mention has to be made in the provisions itself. Their Lordships have held as under:
Reverting back to the effect of the proviso, we do not find anywhere any such intention to apply the proviso with retrospective effect. In order to make a provision applicable with retrospective effect, it has to be specifically expressed in the provision. We do not find such an expression in the said proviso. Nothing had stopped the government before amending the Rule to word it specifically, making it retrospective. That was not done and we are not prepared to hold that the Rule is retrospective. Secondly, we cannot countenance the argument that the Rule has a clarificatory nature. The Rule, for the first time, creates a quota and thus crystallizes the rights of the direct appointees and the promotees which was not there earlier. It, therefore, cannot be viewed as a clarificatory amendment. Again whether the amendment is clarificatory or not would depend upon the language of the provision as also the other Rules. We have examined the Rules which did not suggest that there was any quota existing as such. On the other hand we see Rule 25 which is a Rule regarding seniority and more particularly Rule 25(c). It is apparent from the language of the Rule that the government thought otherwise. Rule 25(c) is as under:
The relative seniority of direct recruits and of promotees shall be determined according the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion under Rule 5
This language suggests that the only quota that was contemplated was as per Rule 5 which we have already explained in the earlier part of the judgment which suggests the 50% quota only in the "substantive vacancies which occurred from time to time" and not the whole vacancies in the cadre. We are, therefore, unable to accept the argument of the learned counsel for the appellants.
Their Lordships of the Hon''ble Supreme Court in Kusumam Hotels (P) Ltd. Vs. Kerala State Electricity Board and Others, have held that the statute or a direction issued thereunder is presumed to be prospective only unless retrospectivity is indicated expressly or by necessary implication. Their Lordships have held as under:
The law which emerges from the above discussion is that the doctrine of promissory estoppel would not be applicable as no foundational fact therefor has been laid down in a case of this nature. The State, however, would be entitled to alter, amend or rescind its policy decision. Such a policy decision, if taken in public interest, should be given effect to. In certain situations, it may have an impact from a retrospective effect but the same by itself would not be sufficient to be struck down on the ground of unreasonableness if the source of power is referable to a statute or statutory provisions. In our constitutional scheme, however, the statute and/or any direction issued thereunder must be presumed to be prospective unless the retrospectivity is indicated either expressly or by necessary implication. It is a principle of rule of law. A presumption can be raised that a statute or statutory rules has prospective operation only.
Their Lordships of the Hon''ble Supreme Court in State of Madhya Pradesh and Others Vs. Yogendra Shrivastava, have held that the rights and benefits already acquired to employees under unamended rules cannot be affected by amending rules with retrospective effect:
It is no doubt true that Rules under Article 309 can be made so as to operate with retrospective effect. But it is well settled that rights and benefits which have already been earned or acquired under the existing rules cannot be taken away by amending the rules with retrospective effect. [See : Ex-Major N.C. Singhal Vs. Director General Armed Forces Medical Services, New Delhi and Another, Ex-Capt. K.C. Arora and Another Vs. State of Haryana and Others, and T.R. Kapoor vs. State of Haryana �1986 Supp. SCC 584]. Therefore, it has to be held that while the amendment, even if it is to be considered as otherwise valid, cannot affect the rights and benefits which had accrued to the employees under the unamended rules. The right to NPA @ 25% of the pay, having accrued to the respondents under the unamended Rules, it follows that respondents-employees will be entitled to Non-Practising Allowance @ 25% of their pay upto 20.5.2003.
In the instant case, there is no indication in the guidelines though those are advisory in nature that the rights accrued to the petitioners on the basis of Regulations 1984 published in the year 1985 could be taken away, more particularly, when the process for sponsoring the names of the petitioners and similarly situate persons had already been commenced by asking for better particulars of the candidates for sending them to two years Veterinary Pharmacist course.
The Division Bench has referred to the guidelines as regulations while rejecting the claim of the petitioners in CWP No. 275/2005. The entire rule position, including regulations has not been referred to in the judgment. The guidelines, as noticed above, are advisory and could not substitute regulations. We have also found that in the rules notified on 31.7.2003, there is a reference only to training regulations and not guidelines
Their Lordships of the Hon''ble in P. Mahendran and others Vs. State of Karnataka and others, have held that the rules which are prospective in nature cannot take away or impair the right of candidates holding diploma in Mechanical Engineering as on the date of making appointment as well as on the date of scrutiny by the Commission they were qualified for selection and appointment. Their Lordships have further held that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Their Lordships have further held that if a rule is expressed in a language which is fairly capable of either interpretation it ought to be construed as prospective only. Their Lordships have held as under:
There is no dispute that under the Recruitment Rules as well as under the advertisement dated 6-10-1983 issued by the Public Service Commission, holders of Diploma in Mechanical Engineering were eligible for appointment to the post of Motor Vehicle Inspectors along with holders of Diploma in Automobile Engineering. On receipt of the applications from the candidates the Commission commenced the process of selection as it scrutinised the applications and issued letters for interview to the respective candidates. In fact the Commission commenced the interviews on August 1984 and it had almost completed the process of selection but the selection could not be completed on account of interim orders issued by the High Court at the instance of candidates seeking reservation for local candidates. The Commission completed the interviews of all the candidates and it finalised the list of selected candidates by 2nd June 1 1987 and the result was published in the State Gazette on 23rd July 1987. In addition to that the selected candidates were intimated by the Commission by separate letters. In view of these facts the sole question for consideration is as to whether the amendment made in the Rules on 14th May 1987 rendered the selection illegal. Admittedly the amending Rule does not contain any provision enforcing the amended Rule with retrospective effect. In the absence of any express provision contained in the amending Rule it must be held to be prospective in nature. The Rules which are prospective in nature cannot take away or impair the right of'' candidates holding Diploma in Mechanical Engineering as on the date of making appointment as well as on the date of scrutiny by the Commission they were qualified for selection and appointment.. In fact the entire selection in the normal course would have been finalised much before the amendment of Rules, but for the interim orders of the High Court. If there had been no interim orders, the selected candidates would have been appointed much before the amendment of Rules. Since the process of selection had commenced and it could not be completed on account of the interim orders of the High Court, the appellants'' right to selection and appointment could not be defeated by subsequent amendment of Rules.
It is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary-intendment for enforcing the Rule with retrospective effect. Since the amending Rule was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.
Their Lordships of the Hon''ble Supreme Court in K. Narayanan and others Vs. State of Karnataka and others, have held that rules operate prospectively. Retrospectivity is exception. The rule making authority should not be permitted normally to act in the past.
Their Lordships of the Hon''ble Supreme Court in A. Manoharan and Others Vs. Union of India (UOI) and Others, have held that once the regulations have been framed in terms of the General Clauses Act, the same must be amended in accordance with the procedures laid down under the principal enactment. Their Lordships have held as under:
22 The legal principle that an administrative act must yield to a statute is no longer res integra. Once a regulation has been framed, in terms of the provisions of the General Clauses Act, the same must be amended in accordance with the procedures laid down under the principal enactment. Even assuming that the Central Government had the jurisdiction to direct the authority to amend the regulations, it was required to be carried out in accordance with law, and, thus all requisite procedures laid down therefor were required to be fulfilled.
In the case in hand, the Regulations have never been amended in the prescribed manner, rather only the guidelines have been issued.
Their Lordships of the Hon''ble Supreme Court in Anil Chandra and Others Vs. Radha Krishna Gaur and Others, have held that the rule /notification/circular claims to be retrospective in nature, it has to be expressly specify the same, as per the rules of interpretation of statutes. Their Lordships have held as under:
The rules pertaining to the reservation and promotion list is prospective in nature and thereby cannot disturb the promotion list of the appellants by virtue of this rule further, if a rule/notification/circular claims to be retrospective in nature, has to expressly specify, as per the rules of interpretation of statutes in the instant petition, the appellants have failed to establish the nature with regard to retrospective effect of the notification/rules.
In the case in hand also, the system which was prevailing for the last 17 years has been destroyed by issuing guidelines. The retrospective effect given to the rules is discriminatory and violative of Articles 14 and 16 of the Constitution of India.
Their Lordships of the Hon''ble Supreme Court in Hemani Malhotra Vs. High Court of Delhi, have held that changing rules of the game during selection process or when it is over is not permissible. Their Lordships have held as under:
It is an admitted position that at the beginning of the selection process, no minimum cut off marks for vive-voce were prescribed for Delhi Higher Judicial Service Examination, 2006. The question, therefore, which arises for consideration of the Court is whether introduction of the requirement of minimum marks for interview, after the entire selection process was completed would amount to changing the rules of the game after the game was played. This Court notices that in Civil Appeal No. 1313 of 2008 filed by K.Manjusree against the State of A.P. & Anr. decided on February 15, 2008, the question posed for consideration of this Court in the instant petitions was considered and answered in the following terms:-
The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.
From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for vive-voce. Therefore, prescribing minimum marks for vive-voce was not permissible at all after written test was conducted.
The contention raised by the learned Counsel for the respondent that the decision rendered in K.Manjusree (Supra) did not notice the decisions in Ashok Kumar Yadav and Others Vs. State of Haryana and Others, as well as K.H. Siraj Vs. High Court of Kerala and Others, and therefore should be regarded either as decision per incuriam or should be referred to Larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned Counsel for the respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or nor, never fell for consideration of this Court in the decisions referred to by the learned Counsel for the respondent. While deciding the case of K.Manjusree (Supra) the Court noticed the decisions in (1) P.K. Ramachandra Iyer and Others Vs. Union of India (UOI) and Others, ; (2) Umesh Chandra Shukla Vs. Union of India (UOI) and Others, and (3) Durgacharan Misra Vs. State of Orissa and Others, and has thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this Court in K.Manjusree (Supra) can neither be regarded as Judgment per incuriam nor good case is made out by the respondent for referring the matter to the Larger Bench for reconsidering the said decision.
Their Lordships of the Hon''ble Supreme Court in T. Nadu Computer SC B.Ed. G.T. Welf. Society Vs. Higher Sec. Scl. Computer Tech. Assn. and Others, have again reiterated the principles that changing rules of the game during selection process or when it is over is not permissible.
Their Lordships have further held in Poonam Verma and Others Vs. Delhi Development Authority, have held that the guidelines per se do not partake of the character of statute and they are advisory in character. Their Lordships have held as under:
Guidelines per se do not partake to the character of statute. Such guidelines in absence of the statutory backdrop are advisory in nature. Mr. Ram Prakash himself has relied upon a decision of this Court in Narendra Kumar Maheshwari Vs. Union of India (UOI) and Others, wherein it has been laid down:
100- This is because guidelines, by their very nature, do not fall into the category of legislation, direct, subordinate or ancillary. They have only an advisory role to play and non-adherence to or deviation from them is necessarily and implicitly permissible if the circumstances of any particular fact or law situation warrants the same. Judicial control takes over only where the deviation either involves arbitrariness or discrimination or is so fundamental as to undermine a basic public purpose which the guidelines and the statute under which they are issued are intended to achieve.
[See also Narendra Kumar Maheshwari Vs. Union of India (UOI) and Others, ; Maharao Sahib Shri Bhim Singhji Ors. Vs. Union of India (UOI) and Others, J.R. Raghupathy and others v. State of A.P. and others (1988) 4 SCC 464 (paragraph 31); Uttam Parkash Bansal and others v. L.I.C. of India (2002) 100 DLT 487]
Guidelines being advisory in character per se do not confer any legal right.
Mr. Ankush Sood, learned Additional Advocate General has placed strong reliance upon judgment rendered by a Division Bench of this Court in CWP No. 275/2005 decided on 4.8.2008. In this judgment, there is no reference to 1984 regulations covering the subject, which were required to be read in conjunction with Recruitment and Promotion Rules notified on 23.5.2002. The rights of the petitioners and similarly situate persons have crystallized as per 1984 Regulations and after the commencement of the selection process on 26.9.2002. Their rights could not be destroyed or taken away on the basis of letter dated 14.11.2002, which admittedly was not even notified by the respondent-State.
Respondent No.1 has rejected the representations of the petitioners on 19.6.2010 only on the ground that this Court has decided the matter in CWP No. 275/2005. The judgment rendered in CWP No. 275/2005 is per incurium since it has not taken into consideration the Regulations, which were framed in the year 1984. It is also borne out from the records that Class-IV employees were being sponsored for training course and they were to be treated on duty during the duration of course. Class-IV employees could not be treated as fresh candidates for the purpose of two years Veterinary Pharmacist training.
The petitioners and similarly situate persons were also legitimately expecting that once the selection process has been commenced on the basis of old rules read with 1984 Regulations, they will be sent for two years Veterinary Pharmacist training by sponsoring their names. The petitioners never expected that the process will be scuttled midway merely on the basis of guidelines, which have no force of law. The petitioners were always expecting that the State will not act in derogation of Regulations promulgated in the year 1984.
In a similar situation, their Lordships of the Hon''ble Supreme Court in The Municipal Corporation of Greater Bombay and Another Vs. Yeshwant Jagannath Vaity and Others, have held as under:
Shri U.U. Lalit, learned senior counsel appearing on behalf of the appellants then urged that the respondents herein had specifically agreed in the letter dated 22.2.1995 and more particularly in terms of para 4 thereof that the Municipal Corporation will grant the benefit of TDR in respect of the concrete/asphalted surface area around the Export Office building as and when the quantum of such TDR is decided by the Municipal Commissioner. It was very earnestly argued by the learned senior counsel that thereby the respondents had compromised their rights and had left it to the discretion of the Municipal Commissioner and, therefore, they could not turn around and say that it was not for the Municipal Commissioner then to decide the quantum as per his own discretion. The argument is clearly incorrect for the simple reason that on the day when this letter was signed, the aforementioned circular dated 9.4.1996 was nowhere in existence. The respondents, therefore, had no reason to believe that the Municipal Commissioner would decide to scale down the entitlement which they legitimately expected because of clauses 5 and 6 in Appendix VII. The aforementioned letter merely provided that the quantum could be decided in terms of the area of courtyard to be developed and the grant of TDR would depend upon as to whether that much area was fully developed as per the satisfaction of the Municipal Commissioner. The scope of condition 4 could not be taken beyond this.
Their Lordships of the Hon''ble Supreme Court in Ajaya Kumar Das Vs. State of Orissa and Others, have held that statutory rules framed under Article 309 of the Constitution of India can be amended only by a rule or notification duly made under Article 309 of the Constitution of India and not by executive orders or circulars or instructions. Their Lordships have held as under:
Neither the Circular dated June 18, 1982 nor the subsequent Circular dated March 19, 1983 modifying the earlier Circular dated June 18, 1982 can override the statutory provision contained in Rule 74(b) of the Code if it results in reduction of pay of the employee on promotion. That Orissa Service Code has been framed under Article 309 of the Constitution of India is not in dispute. It is well settled that Statutory Rules framed under Article 309 of the Constitution can be amended only by a Rule or Notification duly made under Article 309 and not otherwise. Whatever be the efficacy of the Executive Orders or Circulars or Instructions, Statutory Rules cannot be altered or amended by such Executive Orders or Circulars or Instructions nor can they replace the Statutory Rules. The Rules made under Article 309 of the Constitution cannot be tinkered by the administrative Instructions or Circulars.
Similarly, their Lordships of the Hon''ble Supreme Court in PEPSU Road Transport Corporation, Patiala Vs. Mangal Singh and Others, have held that regulations made under a statute laying down the terms and conditions of service of the employees, including the grant of retirement benefits, have the force of law and any action or order in breach of the terms and conditions of the regulations shall amount to violation of the regulations which are in the nature of statutory provisions and shall render such action or order illegal and invalid. Their Lordships have further held that even in the case of non-statutory regulations, specifically providing for the grant of pensionary benefits to the employee qua his employer shall be governed by the terms and conditions encapsulated in such non-statutory regulations. Their Lordships have held as under:
It is well settled law that the Regulations made under the statute laying down the terms and conditions of service of employees, including the grant of retirement benefits, has the force of law. The Regulations validly made under statutory powers are binding and effective as the enactment of the competent legislature. The statutory bodies as well as general public are bound to comply with the terms and conditions laid down in the Regulations as a legal compulsion. Any action or order in breach of the terms and conditions of the Regulations shall amount to violation of Regulations which are in the nature of statutory provisions and shall render such action or order illegal and invalid.
In Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, , this Court, while elaborately discussing the nature and effect of the Regulations made under the Statute, has observed:
The noticeable feature is that these statutory bodies have no free hand in framing the conditions and terms of service of their employees. These statutory bodies are bound to apply the terms and conditions as laid down in the Regulations. The statutory bodies are not free to make such terms as they think fit and proper. Regulations prescribe the terms of appointment, conditions of service and procedure for dismissing employees. These Regulations in the statutes are described as "status fetters on freedom of contract". The Oil and Natural Gas Commission Act in Section 12 specifically enacts that the terms and conditions of the employees may be such as may be provided by Regulations. There is a legal compulsion on the Commission to comply with the Regulations. Any breach of such compliance would be a breach of the Regulations which are statutory provisions. In other statutes under consideration viz. the Life Insurance Corporation Act and the Industrial Finance Corporation Act though there is no specific provision comparable to Section 12 of the 1959 Act the terms and conditions of employment and conditions of service are provided for by Regulations. These Regulations are not only binding on the authorities but also on the public.
x x x
In this view a Regulation is not an agreement or contract but a law binding the corporation, its officers, servants and the members of the public who come within the sphere of its operations. The doctrine of ultra vires as applied to statutes, rules and orders should equally apply to the Regulations and any other subordinate legislation. The Regulations made under power conferred by the statute are subordinate legislation and have the force and effect, if validly made, as the Act passed by the competent legislature.
x x x
There is no substantial difference between a rule and a Regulation inasmuch as both are subordinate legislation under powers conferred by the statute. A Regulation framed under a statute applies uniform treatment to every one or to all members of some group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Industrial Finance Corporation are all required by the statute to frame Regulations inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. These Regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by courts to invalidate actions in violation of rules and Regulations. The existence of rules and Regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory Regulations in the cases under consideration give the employees a statutory status and impose restriction on the employer and the employee with no option to vary the conditions. An ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such contractual relationship of master and servant is damages because personal service is not capable of enforcement. In cases of statutory bodies, there is no personal element whatsoever because of the impersonal character of statutory bodies. In the case of statutory bodies it has been said that the element of public employment or service and the support of statute require observance of rules and Regulations.
In Vidya Dhar Pande Vs. Vidyut Grih Siksha Samiti and Others, the services of the appellant-employee were terminated, in contravention of the service Regulations, by the respondent school. This Court, while reinstating the employee in service, has agreed with the observations made in Sukhdev Singh''s case (Supra). While doing so, this Court has stated :
The question whether a Regulation framed under power conferred by the provisions of a statute has got statutory power and whether an order made in breach of the said Regulation will be rendered illegal and invalid, came up for consideration before the Constitution Bench in the case of Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi. In this case it was held that: [SCC p. 438 : SCC (L&S) P. 118, para 33]
There is no substantial difference between a rule and a Regulation inasmuch as both are subordinate legislation under powers conferred by the statute. A Regulation framed under a statute applies uniform treatment to every one or to all members of some group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Oil and Industrial Finance Corporation are all required by the statute to frame Regulations inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. These Regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by courts to invalidate actions in violations of rules and Regulations. The existence of rules and Regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory Regulations in the cases under consideration give the employee a statutory status and impose restriction on the employer and the employee with no option to vary the conditions.
There is, therefore, no escape from the conclusion that Regulations have force of law. The order of the High Court must, therefore, be reversed on this point unhesitatingly.
Even in the case of non-statutory Regulations, specifically providing for the grant of pensionary benefits to the employee qua his employer shall be governed by the terms and conditions encapsulated in such non-statutory Regulations. In Union of India (UOI) and Others Vs. Brig. P.K. Dutta (Retd.), this Court :
It is true that the Pension Regulations are non-statutory in character. But as held by this Court in Maj. (Retd.) Hari Chand Pahwa Vs. Union of India (UOI) and Another, , the pensionary benefits are provided for and are payable only under those Regulations and can, therefore, be withheld or forfeited under and as provided by those very Regulations. The following observations from the said judgment makes the position clear:
We do not agree even with the second contention advanced by the learned counsel. The provisions of Regulation 16(a) are clear. Even if it is assumed that the Pension Regulations have no statutory force, we fail to understand how the provisions of the said Regulations are contrary to the statutory provisions under the Act or the Rules. The pension has been provided under these Regulations. It is not disputed by the learned counsel that the pension was granted to the Corporation under the said Regulations. The Regulations which provided for the grant of pension can also provide for taking it away on justifiable grounds.
Accordingly, in view of the observations and discussions made hereinabove, all the petitions are allowed. Annexure P-2 dated 19.6.2010 is quashed and set aside. Respondents are directed to complete the process of sponsoring the petitioners and similarly situate persons on the basis of memorandum dated 26.9.2002, if otherwise eligible in terms of the 25% quota as on that date, within a period of four weeks from today for admission to Veterinary Pharmacist course during the current year being conducted by C.S.K.H.P.K.V., Palampur. The selected candidates after the completion of their two years Veterinary Pharmacist course will be entitled for all the consequential benefits. Pending application(s), if any, also stands disposed of. No costs.