MADRAS BAR ASSOCIATION v. UNION OF INDIA AND ANR.

[HEMANT GUPTA, J.]

164. In light of the above legal position, if the 2006 judgment is seen, it becomes apparent that after considering the contentions of the parties and examining the reports of Expert Committee, this Court posed the issue for determination about the safety of the dam to increase the water level to 142 ft. and came to a categorical finding that the dam was safe for raising the water level to 142 ft. and, accordingly, in the concluding paragraph the Court disposed of the writ petition and the connected matters by permitting the water level of Mullaperiyar dam being raised to 142 ft. and also permitted further strengthening of the dam as per the report of the Expert Committee appointed by the CWC. The review petition filed against the said decision was dismissed by this Court on 27.7.2006. The 2006 judgment having become final and binding, the issues decided in the said proceedings definitely operate as res judicata in the suit filed under Article 131 of the Constitution.”

53. Ram Pravesh Singh is another case where the State law was under consideration. It was not a case where the legislature had intervened to enact a law contrary to the directions given by the High Court. Similarly, Karnail Singh was a case of interpretation of statute and not dealing with enactment by the legislature or Parliament consequent to the directions issued by this Court. The law declared by this Court is binding on all Courts within the territory of India under E Article 141 of the Constitution whereas Article 142 of the Constitution empowers this Court to issue directions to do complete justice. The interpretation of law is binding under Article 141 of the Constitution even if there is a direction under Article 142 but such direction is not all pervasive and binding on the legislature. Such is the consistent line of F judgments by this Court ending with three Judge Bench judgment in Dr. Ashwani Kumar. Proviso to Section 184 (11)

54. The inserted proviso to Section 184(11) by the Ordinance deals with two situations. One is in respect of the candidates appointed from G 26.5.2017 till the notified date that is 4.4.2021 in terms of sub-Section (11) of Section 184. Second is in respect of the candidates who have not been appointed falling within proviso to sub-Section (1) of Section 184, which provides that a person who has not completed the age of fifty years shall not be eligible for appointment as a Chairperson or Member. H

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A There is no doubt that this is a prospective provision as no candidate who has not completed 50 years of age is eligible to seek appointment.

55. I do not find any merit in the argument raised by Mr. Krishnan Venugopal that a selected candidate has a right to seek appointment and that too within three months of the order of this Court. Firstly, a selected candidate has no right to seek appointment. A Constitution Bench of this Court34 had held that the successful candidates do not acquire an indefeasible right to be appointed which cannot be legitimately denied. This Court held as under: “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in ………”

56. The fact that the legislation has intervened to prescribe a F particular age which is at variance with the condition in the advertisement is a good reason not to appoint the candidates. The legality of Sections 174, 175 and 184 of the Finance Act, 2017 has been upheld in the matter of Rojer Mathew. Therefore, after such an amendment, appointments can be made only in terms of the Rules famed under Section 184 of the Finance Act. Now, some of the Rules stand substituted by the Ordinance. G Therefore, candidates who have not been appointed will have to seek appointment only in terms of the substituted Section 184 of the Finance Act. The candidates who were selected cannot seek appointment on the basis of their old selection and being in merit.

34 H Shankarsan Dash v. Union of India, (1991) 3 SCC 47

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[HEMANT GUPTA, J.]

57. Some of the Chairpersons and Members of the Tribunals were appointed between 26.5.2017 to 4.4.2021 in terms of the interim orders passed by this Court in Kudrat Sandhu. The argument raised is that such interim orders have been nullified though such orders were issued on the basis of concession of the learned Attorney General and that such orders are couched in the form of mandate, therefore such mandatory orders cannot be nullified.

58. The concession of the learned Attorney General at the time when interim orders were passed was in view of the prevalent situation to keep the Tribunals functional. The interim orders in Rojer Mathew have merged with the final orders wherein again, this Court directed the appointments to the Tribunals and terms of conditions of appointment shall be in terms of the respective statute before the enactment of the Finance Bill, 2017. Liberty was granted to the Union to seek modification of this order. Therefore, the interim order which permitted the appointments now stands subsumed in the Ordinance which has defined the tenure and the terms and conditions of appointment. The Ordinance D is in fact in terms of the liberty granted to Union to seek modification. Mere fact that an application for modification is pending will not bar the legislature to enact a statute by way of an Ordinance. The appointments made after 26.5.2017 by virtue of Section 184(11) will be governed not by the parent statute but by the terms and conditions as enumerated in the Ordinance. The consent of the learned Attorney General will not act E as an estoppel against the statute i.e. the Ordinance.

59. The interim orders which have been set aside by this Court such as in Cauvery Water Disputes Tribunal, or the Medical Council of India were the cases where the State Legislature had nullified interim orders simpliciter without even attempting to cure the defects. F

60. The judgment in Virender Singh Hooda is quite different. The appellants before this Court were successful in an earlier round of litigation and were thus appointed. It was thereafter that the Act in question was enacted with retrospective effect. The appellants were falling in the first category out of three category of candidates such as (i) those G who had been appointed in implementation of decision in Hooda and Sandeep Singh’s cases before passing of the impugned Act (ii) those, though not so appointed, who have judgments of High Court passed in their favour relying upon Hooda and Sandeep Singh’s cases, and claim a right to appointment but would be deprived of it if the validity of the Act H

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A is upheld and on that basis the judgments of the High Court upturned and (iii) those, who would be covered by law laid down in Hooda’s case on interpretation and applicability of the aforenoted two circulars. This Court held as under: “47. There is a distinction between encroachment on the judicial B power and nullification of the effect of a judicial decision by changing the law retrospectively. The former is outside the competence of the legislature but the latter is within its permissible limits {M/s Tirath Ram Rajindra Nath, Lucknow v. State of U.P. & Anr., [(1973) 3 SCC 585]}. The reason for this lies in the concept of separation of powers adopted by our constitutional scheme. C The adjudication of the rights of the parties according to law is a judicial function. The legislature has to lay down the law prescribing norms of conduct which will govern parties and transactions and to require the court to give effect to that law [I.N. Saksena’s case (supra)].

D 48. The legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter parties and affect their rights and liabilities alone. Such an act on the part of the legislature E amounts to exercising the judicial power by the State and to function as an appellate court or tribunal, which is against the concept of separation of powers. {Re : Cauvery Water Disputes Tribunal [1993 Supp.(1) SCC 96(II)]}. xx xx xx

F 52. It is not possible to accept the contention that vested rights cannot be taken away by legislature by way of retrospective legislation. Taking away of such right would, however, be impermissible if violative of Articles 14, 16 and any other constitutional provision. In State of Tamil Nadu v. Aroorran Sugars G Ltd., [(1997) 1 SCC 326], this Court held that whenever any amendment is brought in force retrospectively or any provision of the Act is deleted retrospectively, in this process rights of some are bound to be affected one way or the other. In every case, it cannot be urged that the exercise by the legislature while introducing a new provision or deleting an existing provision with H

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[HEMANT GUPTA, J.]

retrospective effect per se shall be violative of Article 14 of the A Constitution. If that stand is accepted, then the necessary corollary shall be that legislature had no power to legislate retrospectively, because in that event a vested right is affected.”

61Copy pinpoint61. It is thereafter that this Court protected the appointment of candidates falling in the first category i.e., those who were appointed B prior to the commencement of the Act in question. It was held as under: “68. Despite the aforesaid conclusion, the Act [proviso to Section 4(3)] to the extent it takes away the appointments already made, some of the petitioners had been appointed much before enforcement of the Act (ten in number as noticed hereinbefore) C in implementation of this Court’s decision, would be unreasonable, harsh, arbitrary and violative of Article 14 of the Constitution. The law does not permit the legislature of take back what has been granted in implementation of the court’s decision. Such a course is impermissible”. D

62Copy pinpoint62. The candidates in question were appointed during the pendency of lis. These appointments were not concluded appointments but were subject to the provisions of the parent Act which has been amended by the Finance Act, 2017. They cannot claim any right to continue on the post till the age of retirement under the parent Act in terms of proviso to sub-section (11) of Section 184 of the Finance Act as substituted. The E provisions of the parent Act cease to be in existence with the order passed in Rojer Mathew and subsequent legislative enactments introduced by way of the Ordinance.

63Copy pinpoint63. Thus, I find that the first, second and third proviso to Section 184(1), the use of expression ‘preferably’ in Section 184(7) and the F proviso to Section 184(11) are legal and valid as such provisions fall within the exclusive domain of the legislature. The legislature has not nullified the judgment of this Court on the above aspects as there were no such corresponding provisions in the 2020 Rules, which were part of judicial review process. G

64Copy pinpoint64. It is open to the legislature to fix tenure of the Chairperson and the members other than four years as the tenure of four years was found to be not tenable in MBA-III. Section 184(7) which contemplates that Select Committee should recommend a panel of two names is contrary to the directions of this Court in MBA-III. Thus, Section H

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A 184(11)(i)(ii) and Section 184(7) is declared to be void as the Ordinance has reiterated the provisions which were in 2020 Rules. The challenge to other provisions is not legally sustainable. The writ petition is thus dismissed except to the extent mentioned above.

B Bibhuti Bhushan Bose Writ Petiton disposed of.