S.S. BOLA AND ORS. ETC. v. B.D. SARDANA AND ORS. ETC.

S.S. BOLA AND ORS. ETC. A ,.. v. B.D. SARDANA AND ORS. ETC.

JULY 11, 1997

Constitution of India, 1950 :

A1ticles 245, 246 and 309, Seventh Schedule, List II, Ently 41-State c Legislature-Power to enact laws rendering judicial decisions ineffec- tive-Held, Legislature is empowered to render a judicial decisio11 i11effective by enacting valid law within its legislative field fu11dame11tally altering or changing the basis upon which the judicial decision was given-But Legisla- ture in exercise of its powers under Altic/es 245 and 246 ca11 not merely declare a decision of a coult of law to be invalid or to be inopera- D tive-Haryana Se1Vice of Engineers Class-I, Public Works Depaltment (Build- ings and Roads Branch, Public Health Branch and lnigation Branch) Act, 1995 is valid except a pa1t of s. 25 thereof-Besides, the Act is not a validation Act since the Coult in the earlier decisions, had not invalidated any provision • but merely inte1preted the relevant provisions of the Rules-Validation Act-Constitution of India-Alticles 32, 226-Judicial Review-Administra- E tive Law.

Se1vice Law :

Ha1yana Se1vice of Engineers Class I Public Works Depa1tment (Build- ings and Roads Branch), (Public Health Branch) and (Inigation Branch) F Respectively Act, 1995--ss. 5(2), 2(12)(c) a11d 12(2~Harya11a Se1Vice of Engineers Class I Public Works Depwtme11t-Promotio11 tO--Criteria for promotion of direct recmits and promotees-Retrmpective operatio11 to the Act-Held, valid-To have a palticular position in seniodty list in a cadre is not a11 accmed or vested right-Losing some steps in se11iority list withi11 a G cadre and future chances ofpromotion getting delayed thereby is not reduction ___.., in rank-State Govemment to prepare seniority list afresh in accordance with the Act.

s. 25-Repealing provision-&.pressio11 'to the extent that these Rules shall conti11ue to apply to the persons, who were members of the se1vice before H 507

p. 508

( A 1st day of November, 1966' is invalid and is strnck dowit-Remaining part of the section and the proviso will remain operative-f'unjab service of En- gineers, Class-I, Public Works Department (Roads & Building Branch) Rules, 1960, Punjab Service of Engineers Class-I Public Works Department (Public Health Branch) Rules, 1961 and the Punjab Service of Engineers Class-I Public Works Department (Irrigation Branch) Rules, 1964. B Interpretation of Statutes :

Statement of Objects and Reasons of a statute-Held, is to be looked into as an extrinsic aid to find out legislative intent when meaning of statute C by its ordinary language is obscure or ambiguous and not when words of statute are clear and unambiguous.

Principle of casus omissus-Applicability of

In the State of Haryana, on its formation on 1.11.1986, the servii;es of D Class I Engineers in three Branches of Public Works Department, namely, Roads and Buildings Branch, Public Health Branch, and Irrigation Branch, were regulated by the Punjab Service of Engineers, Class I Public Works Department (Roads and Buildings Branch) Rules, 1960, the Punjab Service of Engineers Class I Public Works Department (Public Health Branch) Rules, 1961, and the Punjab Service of Engineers, Class I Public Works E Department (Irrigation Branch) Rules, 1964, respectively. Class I service of Engineers consisted of Executive Engineers, Superintending Engiueers, Chief Engineer and later Engineer-in- Chief also in the respective branches. Assistant Executive Engineers and posts of Class II Subordinate Service both were feeder channels for appointment by promotion as Executive F Engineers, the former being direct recruits and the latter were promotees from the Subordinate Service. In the Roads and Buildings Branch and the Public Health Branch 50% posts in Class I service were filled by promotees and 50% posts by direct recruit Assistant Executive Engineers. But as regards the Irrigation Branch till 8 years of framing of the Rules 75% posts were filled by promotees and 25% by direct recruits and thereafter the posts were to be filled by both the cadres in equal proportion i.e. 50% each. To begin with, 14 officers of the erstwhile Punjab Cadre of Engineers were brought in the State of Haryana in Public Health Branch and since the cadre strength of Haryana was 10, four of them were adjusted against ex-cadre posts. Though the Rules provided quota for direct recruit and promotee officers in the Class I posts, these ten officers were brought on the

S.S. BOLA v. B.D. SARDANA 509 basis or their domicile and the ratio between direct recruits and promotees was not observed.

Later, when the gradation lists were prepared, dispute arose between direct recruits and promotees of Roads and Buildings Branch and the Public Health Branch; and writ petitions were filed in the High Court. The B decisions of the High Court were challenged before this Court. This Court decided the matter regarding seniority of Roads and Buildings Branch in the case ofA.N. Sehgal and Others v. Raje Ram Sheoran and Others, [1992] 1 SCC 304 and that relating to Public Health Branch, in S.L. Chopra and Ors. v. State of Haryana and Others, [1992] Supp. 1 SCC 391. The Court, after considering Rules 3(1), 3(2), 5(1)(9), 6, 7, 11(1), 12(2) and 12(3) of C the respectives Rules, held that a direct recruit would always be recruited and appointed to a substantive vacancy, and from the date he started discharging the duty he would be a member of the 'service' whereas a promotee officer, irrespective of initial officiating promotion to a tern· porary vacancy or substantive vacancy, would become member of the D 'service' on his appointment to a substantive vacancy within the 50% quota meant for promotee officers. Thus a promotee occupying a post within 50%

. quota of direct recruits on their not being available, acquired no right to the post and would yield to direct recruits though promoted later to the senior posts i.e. Executive Engineer, Superintending Engineer and Chief E Engineer. The officiating period of the promotee officer between the date of initial promotion and the date of availability of the cadre post would thus ·be rendered fortuitous and stood excluded. This Court interpreted the relevant provisions of the Rules and directed the Government to determine the cadre post regularly, from time to time, allot the posts in F each year of allotment as contemplated under Rule 12 read with Rule 5(2)(a), issue orders appointing the officers substantively to the respective posts within the quota and determine the inter se seniority between direct recruits and promotees accordingly.

The State Government, in pursuance of the directions issued by this G Court, fixed the cadre strength for each year commencing from 1966 and determined the inter se seniority of the promotees and the direct recruits, and prepared a seniority list dated 6.4.1992. As regards the initial 10 posts, which constituted the service initially on 1.11.1966, five were treated as direct recruits fictionally and five as promotees. Against this seniority list H

p. 510

A writ petitions were filed in the High Court. The High Court quashed the list, and aggrieved parties filed petitions for special leave before this Court.

Meanwhile the State Legislature passed the Haryana Service of B Engineers, Class I, Public Works Department (Buildings and Roads Branch, Public Health Branch and Irrigation Branch) Act, 1995 giving the Act retrospective effect from 1.11.1966, thus making the decisions of this Court rendered in Sehgal and Chopra ineffective. The Act was challenged in writ petitions before the High Court and the said writ petitions were transferred to this Court. During the pendency of the matters before this C Court, two other seniority lists were prepared on 13.3.1997 and 19.3.1997 and both these lists were also challenged before this Court.

So far as the Punjab Service of Engineers, Class I, Public Works \ Department (Irrigation Branch) Rules, 1964 were concerned, the said rules D were not considered by this Court earlier. However, the dispute of seniority between direct recruits and promotees arose in the years 1976 and the matter was ultimately disposed of by the High Court in Letters Patent Appeals by its judgment dated 27.8.1992. The State Government as also the promotee officers challenged the said order in appeals before this E Court. When the Act came into force, one of the direct recruits challenged the validity of the Act by filing a writ petition before the High Court. The said writ petition was also transferred to this Court.

It was contended for the direct recruits that the Act was an usurpa- tion of judicial power by the Legislature to annul the judgments of this F Court in Sehgal and Chopra as was clear from the Statement of Objects and Reasons of the Act, and the affidavit filed on behalf of the State Government; that the Act merely declared the earlier judgments to be invalid, and therefore, the Act was invalid and inoperative; that the man- damus issued by this Court in Sehgal and Chopra had to be complied with G and the State Legislature had no power to make the mandamus ineffective and to override the said judgments by enacting the Act; and, that in any case the Legislature could not have given the Act retrospective operation. It was also contended that the Act took away the rights accrued in favour of the direct recruits pursuant to the judgment of this Court, and, there- H fore, the Act should be struck down.

S.S. BOLA v. B.D. SARDANA 511 The contention on behalf of the State Government and the promotee officers was that the State Legislature under Articles 245 and 246 of the Constitution had power to make the law determining the service conditions of the employees of the State and giving it retrospective effect; that the legislature having been aware of the inequitous situation which had been the result of the Rules for determination of inter se seniority between the direct recruits and the promotees as interpreted by this Court in Sehgal and Chopra, intervened in enacting the Act to remove the inequities not by merely declaring the interpretation given by this Court to the relevant provisions of the Rules in the said judgments to be invalid but by making substantial alterations and changes to the basis itself by altering the definition of service, by providing that quota of promotees could exceed beyond 50% as per proviso to 's. 5(2), and by changing the very criterion for determination of seniority, namely, the continuous length of service as engrafted ins. 12(2); and as such the Legislature could not be said to have encroached upon the field of judiciary nor could the legislation be said to be an act of usurpation of judicial power by the Legislature. D Disposing of the matters, this Court

(i) Legislature is empowered to render a judicial decision ineffective E by enacting a valid law fundamentally altering or changing the basis upon , which the judicial decision was given; such a law can also be given retrospective operation. But, Legislature cannot declare a decision of a court of law to be invalid or to be inoperative, in which· case it would be held to be an exercise of judicial power which the Legislature do not possess. F

(ii) To have a particular position in seniority list is not an accrued or a vested right. Chances of promotion are not condition of service.

Per majority (Pattanaik and S. Saghir Ahmad, JJ.) G (i) The Haryana Service of Engineers, Class I, Public Works Depart· ment. (Buildings and Roads Branch), (Public Health Branch) and (Irriga· tion Branch) Respectively Act. 1995 is valid. The changes and alterations in the service rules, brought by the Act and giving the Act retrospective effect rendered the decisions of this Court in the cases of Sehgal and H ,.

512 . SUPREME COURT REPORTS [1997] SUPP. 2S.C.R. A Chopra ineffective. It is not a case of Legislature overriding a judicial decision but a case of rendering a judicial decision ineffective by enacting a valid law within the competence of the Legislature.

(ii) The nature of mandamus which had been issued by this Court B in Sehgal and Chopra was merely a declaration of principles of seniority as the Rules then existing. The Legislature by enacting the Act and giving it retrospective effect made several vital changes both to the definition of service as also to criteria for determining inter se seniority between direct recruits and promotees. The Act has not taken away any accrued right of the direct recruits. c Per Minority (K. Ramaswamy, J.)

(i) The Legislature of Haryana was competent to enact the Haryana Service of Engineers, Class I, Public Works Department (Buildings and D Roads, Branch), (Public Health Branch) and Irrigation Branch) Respec- tively Act, 1995. But since the Act has with retrospective effect, in substance and in effect, declared the law laid down by this Court in Sehgal and Chopra as unenforceable by an indirect side track process of legislative fiat, it is unconstitutional. The Act is unconstitutional to the extent of its ret.rospec- tive operation. The prospective effect does not have any effect on settled E rights of the parties to these litigations.

(ii) The relevant Rules as interpreted by this Court in Sehgal and Chopra is the law under Article 141 of the Constitution. The mandamus issued therein operates inter parties and binds the State Government. The F Act made with retrospective effect is a fraud on the Constitution and is, therefore, unconstitutional. It, therefore, does not affect the vested rights of the direct recruits which are still available to them and they are entitled to have their seniority determined accordingly.

Per Pattanaik, J. G

1. The Haryana Service of Engineers Class I, Public Works Depart- ment, (Buildings and Roads, Branch), (Public Health Branch) and (Irriga- tion Branch) Respectively Act, 1995, is a valid piece of legislation enacted by the State Legislature over which they had legislative competence under H Article 309 and Entry 41 of List II of Vllth Schedule to the Constitution.

S.S. BOLA v. B.D. SARDANA 513 Though by giving the enactment retrospective effect the earlier judgments A of this Court in Sehgal * and Chopra ** have become ineffective, this does not tantambunt to a mere declaration of invalidity of an earlier judgment nor does it amount to an encroachment by the Legislature into the judicial sphere. The Act cannot be said to be an act of usurpation of judicial power by the Legislature. (560-D-E; 575-H; 576-A] B * A.N. Sehgal and Ors. v. Raje Ram Sheoran and Ors., (1992) Supp. 1 SCC 304 and **S.L. Chopra a~id Ors. v. State of Haryana and Ors., (1992) Supp. 1 SCC 391, referred to.

2.1. The Legislature can always render a judicial decision ineffective c by enacting valid law on the topic within its legislative field fundamentally ... altering or changing its character retrospectively. But the Legislature cannot in exercise of its plenary power under Articles 245 and 246 of the Constitution merely declare a decision of a court of law to be invalid or to be inoperative in which case it would be held to be an exercise of judicial D power, which under the scheme of Constitution, the Legislature do not possess. (543-A-C] • Indian Aluminium Co. and Ors. v. State of Kerala and Ors., [1996) 7 SCC 637; J.N. Saxena v. The State of Madhya Pradesh, [1976) 3 SCR 237; M/s. Utkal Contractors and Joinery (P) Ltd. and Ors. v. State of Orissa, (1987) E Supp. SCC 751; Bhubaneshwar Singh and Anr. v. Union of India and Ors., (1994) 6 SCC 77; Comorin Match Industries (P) Ltd. v. State of Tamil Nadu, (1998] 4 SCC 281; Meernt Development Authority and Ors.etc. v. Satbir Singh and Ors. etc., [1996) 11 SCC 462 and State of Orissa and Anr. v. Gopal Chandra Rath and Ors., (1995) 6 SCC 242, relied on. F Shri P. C. Mills Ltd. v. Broach Borough Municipality, [1969) 2 SCC 283; West Ramnad Electric Distribution Company Ltd. v. State of Madras, [1963) 2 SCR 747; Udai Ram Shanna and Ors. etc. v. Union of India and Ors., [1968) 3 SCR 41; Krishan Chandra Gangopadhyaya and Ors. v. Union of India and Ors., [1975) 2 SCC 302 and Hindustan Gum and Chemicals Ltd. G v. State of Haryana and Ors., [1985) 4 SCC 124, cited.

Pritpal Singh and Ors. v. State of Punjab and Ors., [1980] Suppl. SCC 524; State of Gujarat & Anr. etc. v. Raman Lal Keshav Lal Soni and Ors. etc., [1983) 2 SCC 33; Ex. Capt. KC. Arora a11dA11r. v.State of Haryana and H

p. 514

A Ors., [1984] 3 SCC 281; T.R. Kapur and Ors. v. State of Haryana and Ors., [1986] Suppl. SCC 584; P.D. Aggrawal and Ors. v. State of U.P. and Ors., [1987] 3 SCC 622 and Madan Mohan Pathak andAnr. etc. v. Union of India and Ors., [1978] 2 SCC SO, held inapplicable.

2.2. In the case of Sehgal and Chopra this Court had not invalidated B any provision of the recruitment rules but merely interpreted some provisions of the Rules for determining. the inter se seniority between the direct recruits and the promotees. The Act passed by the Legislature, therefore, is not a validation Act but merely an Act passed by the State Legislature giving it retrospective effect from the date the State of Haryana C came into existence and consequently from the date the service in question came into existence. [542-C-D]

2.3. The power of the Legislature under Article 246(3) of the Con- stitution to make law for the State with respect to the matters enumerated D in List II of the Vllth Scheduled to the Constitution is wide enough to make law determining the service conditions of the employees of the State. In the instant case, there has been no challenge to the legislative com- petence of the State Legislature to enact the legislation in question nor has there been any challenge on the ground of contravention of Part III of the Constitution. [542-D-E] E 2.4. Under the constitutional scheme the power of the Legislature to make law is paramount subject to the field of legislation as enumerated in the Entries in different Lists. The function of the judiciary is to interpret the law and to adjudicate the rights of the parties in accordance with law made by the Legislature. [ 542-E-F]

3.1. To find out whether the impugned Act is an usurpation of judicial power by the Legislature it would not be permissible to look to the Statement of Objects and Reasons which accompanied the Bill while introducing the same on the floor of the Legislature nor the affidavit filed by an officer of the Government would control the true and correct meaning of the words of the statute. For that purpose the substantive provisions of the Act would be examined. [574-E-G]

3.2. It is a cardinal rule of interpretation that Objects and Reasons H of a statute is to be looked into as an extrinsic aid to find out legislative

S.S. BOLA v. B.D. SARDANA 515 intent only when the meaning of the statute by its ordinary language Is A obscure or ambiguous. But, if the words used in a statute are clear and unambiguous then the statute itself declares the intention of the Legisla· ture and in such a case it would not be permissible for a Court to interpret the statute by examining the Objects and Reasons of the statute in ques· tion. The general rule of interpretation Is that the language employed is B primarily the determining factor to find out the intention of the Legisla· ture. [545-F·G; 547-B]

Aswini Kumar Ghosh andAnr. v.Arbinda Bose andAnr., SCR [1953] -• 1; The Central Bank of India v. Their Workmen, SCR [1960] 200; State of West Bengal v. Union of India, SCR 1 [1964] 371; Tata Engineering and C Locomotive Co. Ltd. v. Gram Panchayat, Pimpri Waghere, [1976] 4SCC177 and Kanai/al Sur v. Paramnidhi, Sadhukhan, SCR [1958] 360, relied on.

Robert Wigram Crawford v. Richard Spooner, 4 MIA 179 (PC), referred to. D

4.1. The changes and alterations in the Act itself and giving It retrospective effect from the date when the State of Haryana came into existence and consequently the service of Engineers, came into existence, rendered. the earlier decisions of this Court in Sehgal and Chopra ineffec· E tive. The provisions of the Act and the definition of "service" ins. 2(12)(c), proviso to s. 5(2) and the criteria for promotion, which was engrafted in s. 12(2) of the Act, and making it retrospective w.e.f, 1.11.1966, when interpreted, lead to the only conclusion that this Court could not have rendered the decision in Sehgal and Chopra on the face of the aforesaid F provisions of the Act. It is, therefore, not a case of legislation by mere declaration without anything more, overriding a judicial decision but a case of rendering a judicial decision ineffective by enacting a· valid law within the legislative field of the Legislature. [548-G-H; 549·A·B]

4.2. Under the 1960 and the 1961 Rules as interpreted by this Court G in the cases of Sehgal and Chopra, a direct recruit gets the year of allotment as the year in which he is recruited as Assistant Executive Engineer but so far as promotees are concerned they become members of the service only after they are appointed substantively to a cadre post and the quota of promotees cannot exceed 50% of the total number of posts in the service H

p. 516

A excluding the posts of Assistant Executive Engineers to which direct recruitments are made. Inter se seniority between direct recruits and promotees is regulated by Rules 12(6) and (7). As a necessary consequence a direct recruit when promoted as Executive Engineer from the posts of Assistant Executive Engineer was getting seniority over the promotee B Executive Engineers and this situation has been avoided by the impugned Act by changing the definition of "service" in Rule 2(12) of the 1961 Rules, by providing the quota for promotees to exceed 50% in certain contingen· cies like non-availability of direct recruits to man the post of Executive Engineer and by changing the criteria for determination of illter se C seniority and in place of determination of year of allotment, by providing length of continuous service to the post of Executive Engineer to be the determining factor. Necessarily, therefore, by the impugned Act a direct recruit in the rank of Executive Engineer would come down in the grada· tion list than what was assigned under the Rules of 1960 and 1961. [561·A·F] D 5.1. To have a particular position in the seniority list within a cadre can not be said to be an accrued or a vested right of a Government servant; and losing some places in the seniority list within the cadre does not amount to reduction in rank even though the future chances of promotion E get delayed thereby. Chances of promotion of Government servant are not a condition of service. [562·C·E]

The High Court of Calcutta v. Amal Kumar Roy, [1963) 1 SCR 437; The State of Punjab v. Kishan Das, [1971) 3 SCR 389; State of Maharashtra and Ahr. v. Chandrakant Anantit Kulkarni and Ors., [1981) 4 SCC 130; K. F Jagadeesan v. Union of India and Ors., [1990) 2 SCC 228; Union of India . and Ors. v. S.L. Dutta and Anr., [1991) 1 SCC 505 and Zohrabi v. Arjuna and Ors., [1980) 2 SCC 203, relied on.

5.2. The direcfrecruits did not have a vested right nor any right had accrued in their favour in the matter of getting a particular position in the seniority list of Executive Engineers under the pre-amended Rules which is said to have been taken away by the Act. Thus, there is no bar for the Legislature to amend the law in consequence of which the inter se position in rank of Executive Engineer might get altered. Consequently, there is no invalidity in the enactment of the Act. [563-F-H]

S.S. BOLA v. B.D. SARDANA 517

5.3. The nature of mandamus which had been issued by this Court A in Sehgal and Chopra was merely a declaration of the principles of seniority as per 1960 and 1961 Rules and the State Government was to draw up the seniority list in accordance with the said Rules. The Legislature by enact· ing the Act and giving it retrospective effect made several vital changes both in the definition of 'service' as well as in the criteria of determining B the inter se seniority between the direct recruits and promotees. The Act has not taken away any accrued rights of the direct recruits. (554-F-H]

Madan Mohan Pathak and Anr. v. Union of India and Ors., (1998] 2 sec so, held inapplicable. c 6.1. Though the Act is a valid piece of legislation but s. 25 thereof cannot be sustained in toto sim:e a plain reading of the said provision does not make out any meaning. The section repeals the previous Rules as well as the Ordinance of 1995. It purports to indicate that the earlier Rules would apply to persons who were members of the service before 1.11.1986 D though a plain reading of the main part of the section does not convey that meaning. (564-A; 565-A·B]

6.2. The contention that the Court should fill up the gap by applying the principle of casus omissus and provide the word "except" in the first part of s. 25 after the words "to the extent", cannot be accepted. It is not appropriate to apply the principle of casus omissus, inasmuch as the Act itself having been given retrospective effect with effect from 1st November, 1966, the date on which the State of Haryana came into existence, there is no rational to apply the pre-existing rules to those employees who were in the service before that date even after the pre-existing Rules are being repealed by the Act. In this view of the matter, the expression "to the extent that these rules shall continue to apply to the persons who were members of the service before 1st day of November, 1966" ins. 25 of the Act is invalid and is accordingly struck down. Remaining part of s. 25 as well as the proviso to the said section will, however, remain operative. (565-C-G] G

7.1. The High Court fell in error to hold that the State Government was not entitled to re-determine the cadre strength retrospectively every year and such re-determination is invalid and inoperative. On the other hand, since the cadre strength had not been determined regularly, though H

p. 518

A It was enjoined upon the State Government to do so, this had called upon the State Government to re-determine the cadre strength and thereafter . determine the inter se seniority of the direct recruits and promotees in terms of Rule 12 of the Recruitment Rules bearing in mind the law laid down by this Court interpreting the different provisions of the Rules. The B said conclusion of the High Court is, therefore, quashed. [570-A·C]

7.2. As regards the Irrigation Branch, Rule 2(12)(c) makes a promotee officer, on probation or having successfully completed his probation awaiting appointment to a cadre post, to be a member of the service which was not the position in the Public Health Branch as well as C in the Roads and Buildings Branch .. Then again under Rule 5(2) the • percentage of promotees was required to be so regulated as not to exceed 75% of the numbers of posts in the service for the first 8 years from the date of commencement of the Rules and thereafter it shall not exceed 50% of ttie number of posts in the service excluding the posts of Assistant D Executive Engineers. Proviso to the aforesaid rule also entitles the Govern· ment to grant permission beyond 75% during the first 10 years of the commencement of the rules and beyond 50% thereafter in case sufficient number of direct recruit Assistant Executive Engineers are not available and considered fit for promotion. Rule 12 which deals with the determina· tion of inter se seniority is also somewhat different than the similar rule for the Public Health Branch and the Roads and Building Branch which had been considered by this Court in the cases of Sehgal and Chopra. [576-D; 577-A] 7.3. The Division Bench of the High Court was not justified in disposing of the appeal relating to Irrigation Branch, relying upon the earlier decision of this Court in Sehgal's case. The High Court did not focus its attention to the difference in the rules meant for the Irrigation Branch and the Rules meant for the Public Health Branch and Roads and Buildings Branch. The judgment passed by the Division Bench of the High Court in L.P.A. Nos. 367 and 411 of 1992 is erroneous and is, therefore, set aside. [577·A·CJ

7.4. The Act, except a part of s. 25, having been declared intra vires and given retrospective effect with effect from 1.11.1966, the inter se seniority of direct recruits and promotees in each of the services, namely, the Buildings and Roads Branch, the Public Health Branch and the

S.S. BOLA v. B.D. SARDANA 519

Irrigation Branch will have to be re-drawn up in accordance with the provisions of the Act. The seniority lists already drawn up subsequent to the judgments of this Court in the cases of Sehgal and Chopra as well as during the pendency of these appeals in this Court are of no consequence in view of the Act coming into force. [577-D-F] B , Per S. Saghir Ahmad, !. (Concurring) :

1.1. Under the scheme of the Constitution, it is competent for the Legislature to put an end to the finality of a judicial decision and, there- fore, it would be competent for the Legislature to render ineffective the judgment of the court by changing the basis of the Ac.t upon which that judgment was founded. The power to make a law includes the power to give it retrospective effect subject to the restriction imposed by Article 20(1) of the Constitution that a Legislature cannot make retrospective penal laws. It would be valid for the Legislature to make any other enactment with retrospective effect provided no fundamental right is infringed by reason of its taking away the vested right. [578-G-H; 579-A]

Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality & Ors., [1970] 1 SCR 388 = [1969] 2 SCC 283; In re: Cauvery Water Disputes Tribunal, AIR (1992) SC 522 = [1993] Supp. 1 SCC 96 a11d E Bhubaneshwar Singh v. Union of India, [1994] 6 SCC 77, relied on.

Madan Mohan Pathak v. Union of India & Ors., [1978] 3 SCR 334 = [1978] 2 sec 50, referred to. 1.2. To declare what the law is or has been is a judicial power. To F declare what the law shall be is a legislative power. It would be within the exclusive domain of judiciary to expound the law as it is and not to speculate what it should be as it is the function of the Legislature. It is also within the exclusive power of the judiciary to hold that a Statute passed by the Legislature is ultra vires. The Legislature in that situation G does not become a helpless creature as it continues to remain a living pillar of a living Constitution. Though it cannot directly override the judicial decision, it retains the plenary powers under Articles 245, 246 and 248 of the Constitution to alter the law as settled or declared by judicial decisions. [578-8-E] H

p. 520

A Mis. Anwar Khan Mahboob Co. v. State of Madhya Pradesh, (1966] 2 SCR 40, relied on.

Finn CJ. Patel & Co. & Ors. v. The State of Madhya Pradesh, AIR (1953) SC 108, already overruled.

B 2.1. The Legislature can also validate an Act which was declared invalid by the Court or amend it with retrospective effect so as to remove the grounds of its invalidity. [578-F)

Rai Ramklishna & Ors. v. State of Bihar, [1964) 1 SCR 897 and Mt. C Jadao Bahuji v. Municipal Committee, Khandwa & Anr., AIR (1961) SC 1486, relied on.

2.2. Where, however, the statutory provision is interpreted by the Court in a particular manner and directions are issued for implementing the judgment in the light of the interpretation placed on the statutory provisions, the Legislature need not pass a validating Act. In this situation, the Legislature, in exercise of its plenary powers under Articles 245, 246 and 248, can make a new Act altering fundamentally the provisions which were the basis of the judgment passed by the Court. This can be done with retrospective effect. So far as service conditions are concerned, they can be altered with retrospective effect by making service rules under Article 309 or by an Act of the Legislature. [580-A-C]

2.3. In the instant cases, the judgments rendered by this Court in the earlier decisions relating to the seniority of the present incumbents were founded on the service rules then existing. These service rules have since been replaced by the Haryana Service of Engineers, Class I Public Works Department (Buildings and Roads Branch) Respectively Act, 1995, which has been enforced with retrospective effect. The rule of seniority has been altogether altered and replaced by a new law made with retrospective effect so as to do away with the mischief under which an undue advantage was being provided to a direct recruit, which was wholly inequitous and not sustainable on the principles of equity. The Act is valid, except the expres- sion in s. 25, i.e. "to the ext~nt that these rules shall continue to apply to the persons who are members of the Service before 1st day of November H 1966", which is invalid. [580-C-F]

S.S. BOLA v. B.D. SARDANA 521 Comorin Match Industlies (P) Ltd. v. State of Tamil Nadu, [1996) 4 A SCC281; Indian Aluminium Company v. State of Kera/a, [1996) 7 SCC 637 and Meerut Development Authority & Ors. v. Satbir Singh & Ors., [1996) 11 sec 462, relied on.

3. The judgments of the Punjab & Haryana High Court are liable to be set aside, with a direction to the State Government to re-determine the B question of seniority in the light of this judgment and the Act. [580-G]

Per K Ramaswamy, J.

1.1. The Legislature of Haryana was competent under Article 309 or Entry 41 of List II (State List) of the Seventh Schedule to the Constitution C to enac4he Haryana Service of Engineers Class I Public Works Depart· ment, (Buildings and Roads Branch), (Public Health Branch) and (Irriga· tion Branch) Respectively Act, 1995. But, since the Act has with retrospective effect, in substance and in effect, declared the law laid down by this Court in the cases of Sehgal * and * Chopra as unenforceable by D an indirect side track process of legislative fiat, it is unconstitutional. [681-F-G; 682-A·B]

. A.N. Sehgal and Ors. v. Raje Ram Shesoran and Ors., [1992) Supp. 1 SCC 304; S.L. Chopra & Ors. v. State of Ha1yana and Ors., [1992) Supp. 1 sec 391, referred to. E 1.2. The Punjab Service of Engineers Class I Public Works Depart· ment (Buildings and Roads Branch) Rules, 1960 and the Punjab Service of Engineers Class I Public Works Department (Public Health Branch) Rules, 1961, to the extent they are applicable to State of Haryana, !!OW repealed, as interpreted by this Court in Sehgal and Chopra's cases, is the F law under Article 141 of the Constitution. It binds not only inter-parties, but also the other wings of the State, namely, the Legislature and the Executive and all. The mandamus issued therein along with directions to prepare the seniority list and its implementation operates inter-patties and binds the State of Haryana. [681·D·E] G 1.3. The Legislature is not competent to declare with retrospective effect that the law declared by this Court under Article 141 of the Con· stitution in Sehgal and Chopra cases is illegal; nor is it empowered to make the mandamus and directions issued therein as ineffective and unenforce· able, except in certain given circumstances. (681-G-H] H

p. 522

A Madan Mohan Pathak & Anr. v. Union of India & Ors., AIR (1972) SC 50; Janapada Sabha Chhindwara etc. v. The Central Provinces Syndicate Ltd. & A11r. etc., [1970] 3 SCR 745; State of Tamil Nadu & Anr. v. M. Rayappa Gounder & Ors., [1971] 3 SCC 1; Municipal Corporation of the City of Ahmedabad etc. v. New Shorock Sug. & WVg. Co. Ltd. etc., [1971] 1 B SPG 288; /.N. Saksena v. The State of Madhya Pradesh, [1976] 3 SCR 237; Ex. Capt. K. C. Arora & Anr. v. State of Haryana & Ors., [1984] 2 SCC 218; State of Gujarat&Anr. v.Raman Lal Keshav Lal Soni & Ors., [1963] 2 SCC 33; State of Haryana & Ors. v. Kamal Co-operative Fonners' Society Ltd. & Ors., [1993] 2 SCC 363; Cauvery Water Disputes Tribunal [1993] Supp. 1 SCC 96; S.R. Bhagwat & Ors. v. State of Mysore, [1995] 6 SCC 16; Delhi C Cloth & General Mills Co. Ltd. & Anr. v. State of Rajasthan & Ors., [1996] 2 SCC 449; Peddinti Ve11kata Muraliranganatha Desika Iyengar & Ors. v. State of A.P. & Anr., [1996] 3 SCC 75; K Sa11kara11 Nair (Dead) through Lrs. v. Devaki Amma Malathy Amma & Ors., [1996] XI SCC 428, relied on.

2.1. Judicial review is the basic feature of the Constitution which has been entrusted to the constitutional Courts, namely, the Supreme Court of India and High Courts under Article 32 and Articles 226 and 227 respectively. Judicial review passes upon constitutionality of legislative Acts or administrative actions. The Courts either would enforce valid Acts/actions or refuse to enforce them when found unconstitutional. It is the constitutional duty and responsibility of the constitutional Courts, as assigned under the Constitution, to maintain the balance of power between the Legislature, the Executive, and the Judiciary. In a Parliamentary democracy, for the constitutional democracy to remain a living moral and intellectual force, it would be enforced through judicial review z.s an arch of democracy and rule of law. [682-C-E]

,Special Refere11ce No. 1 of 1964 [1965] 1 SCR 413; Mi11e1va Mills v. U11io11 of India, [1980] 3 SCC 625; L. Chandra Kumar v. U11ion of India, [1997) 3 SCC 216; S.R. Bommai v. U11io11 of I11dia, [1994) 3 SCR 1 and Kihoto Hollohan v. Zachillhu a11d Ors., [1992] Supp. 2 SCC 651, followed. G C. Ravicha11dran Iyer v. A.M. Bhattacharjee, [1995] 5 SCC 457 and Kartar Si11gh v. State of Punjab, [1994] 3 SCC 569, referred to.

2.2. In adjudging the constitutionality of an Act or action, the Court is required to carefully scan the impugned law to find out (a) whether the H vice pointed out by the Court or the invalidity suffered by the previous law

S.S. BOLA v. B.D. SARDANA 523 is cured complying with the legal and constitutional requirement, (b) A whether the legislature has competence to enact the law to validate the law, and (c) whether such enactment of Act or validation is consistent with the constitutional principles or within limitations set by the Constitutional or fundamental rights enshrined in Part III of the Constitution. The Court can take into account the real consequences while judging the width of the B power; the Court cannot ignore the consequences flowing from particular construction ascertaining the limits of the provisions that granted the power. [683-C-F; 684-C-E]

-· 3.1. Separation of power among the Legislature, the Executive and the Judiciary is also basic feature of the Constitution. [636-A] C His Holiness Kesavananda Bharati Sripadagalavam v. State of Kerala, [1973] Supp. SCC 11, followed.

3.2. The Legislature in enacting new law or amending the existing law or revalidating the law has power to alter the language in the statute by employing the appropriate phraseology and to put up its own inter- pretation inconsistent with that put up by the Court in au earlier judgment on the basis of the pre- existing law and to suitably make new law, amend the law or alter the law removing the base on which the previous decision was founded. The changes or altered conditions have to be such that the previous decision would not have been rendered by the Court had those conditions existed at the time of declaration of the law in the previous decision as invalid. It is also empowered to give effect to the Acts so enacted or revalidated prospectively or retrospectively with a deemed date or with effect from a particular date. But such an enactment must be applicable prospectively and not to the cases which have become final and the rights having accrued to the parties for long under the judgment cannot be taken away except in the cases of fiscal statutes or cases relating to procedural facets of the Act. [684-A-C; F-G]

Indian Aluminium Ltd. v. State of Kera/a, [1996] 1 SCC 637; Prithvi G Cotton Mills Ltd. v. Broach Borough Municipality & Ors., AIR (1970) SC 192; Sada musa Sugar Works & Ors. v. State of Bihar & Ors., [1996] 9 SCC 681; K Kannadasan v. State of Tamil Nadu, [1996] 5 SCC 670; Comorin Match Indust1ies (P) Ltd. v. State of Tamil Nadu, [1996] 4 SCC 281; R.L. · Arora v. State of Uttar Pradesh & Ors., [1964) 6 SCR 784 and Meerut Development Auth01ity v. Satbir Singh, [1996] 11 SCC 464, relied on. H

524 SUPREMECCURTREPORTS [1997] SUPP.2S.C.R.

A M.M. Pathak v. Union of India, [1978] 3 SCR 334; Udai Ram Shanna t.. & Ors. etc. v. Union of India, [1968] 3 SCR 41; Mis. Utkal Contractors & Joinery (P) Ltd. v. State of Orissa, [1967] Supp. SCC 751; Vinay Mills Co. Ltd. v. State of Gujarat, [1993] 1 SCC 345 and Bhubaneshwar Singh & Anr. v. Union of India & Ors., [1994] 6 SCC 77, referred to. B 3.3. The Legislature has no power to overrule the decision of a con- stitutional Court by mere declaration without properly and constitutionally removing the base upon which the previous decision was founded; nor has it power to direct that the decision of the Court does not bind the State or its instrumentalities. The legislative judgm'ent,. by a facade of compliance or c removal of the base, cannot render the decision or a writ of mandamus issued by the Court ineffective or invalid by a declaratory law that the pre- vious decision of the Court is illegal or inequitous. Such a declaration is not conclusive, but is subject to judicial review. The real test is the effect of the legislation tested on the touch-stone of the Constitution and its direct result on the declaration of law as interpreted earlier or the mandamus/direction D issued by the Court in the previous litigation. The doctrine of incidental power, cannot be extended to the exercise of the legislative power colourably or by fraud on the Constitution. [684-H; 685-A-B; 686-A]

3.4. If the Legislature finds that the declaration of law by this Court/High Court is not consistent with the public policy envisaged in the E Act and the interpretation seems to defeat the public interest or public jus- tice, certainly the Legislature would be entitled to formulate its legislative policy consistent with the constitutional scheme and enact the law/amend even the law declared by.this Court. [663-D-E]

F Indra Sawhney v. Union ofIndia, [1993] Supp. 3 SCC 217, relied on.

I. Venkata Reddy & Ors. v. State of Andhra Pradesh, [1965] 3 SCC 198 and V.M. Syed Mohammad & Co. v. The State ofAndhra Pradesh, [1954] SCR 1117, referred to.

G 4.1. The Statement of Objects and Reasons and the Preamble of an A'ct opens the minds of the makers in enacting the law. It cannot altogether be of eschewed from consideration of the relevant provisions the Act, when its c::: constitutionality is tested and objects of the Act sought to be achieved. [687-C-D]

H 4.2. The Statement of Objects and Reasons while making reference

S.S. BOLA v. B.D. SARDANA 525 of decisions rendered by this Court in Sehgal and Chopra, indicates in A unmistakable brazen terms that the reasons for the enactment was that the declaration of law of this Court became unworkable and caused hardship to senior officers as junior officers gained undue advantage under the law declared by this Court. The object was to undo it and to declare the law in unambiguous terms by enacting the Act. [632-C-D] B 4.3. It is seen from the record, that apart from the Statement of Objects and Reasons, specific stand was taken by the Government in the counter-affidavit filed in the writ petition before the High Court; and the Financial Commissioner in his order while determining the inter se seniority, had expressed himself that the interpretation in Sehgal and C Chopra's cases created inequitous situation favourable to direct recruits creating heart-burning among the promotees. That would indicate that brazen attempt was made by the Executive to mask their stand through legislative intervention. The Legislature did not adopt a proper device in enactment of the Act and there is no doubt that had it been brought to the D notice of the Legislature that the impact of the Act would lead to conflict between judicial review and legislative judgment, Legislature would not have found it expedient or attempted to enact the law to deflate the mandamus making it ineffective and rendered the correct declaration of law as illegal. [662-C-F] E 4.4. The principle of fraud on power is applicable when the Legislature has power to enact but does not exercise that power as elucidated upon. On the other hand, the doctrine of fraud on the Constitution means that when the Legislature has no power and in spite of the constitutional limitation or prohibition, it makes enactment in pretence of its power. [686-G-H; 687-A] F 4.5. The present Act made with retrospective effect is a fraud on the Constitution; a colourable exercise of power; transgression of and trespassing into the power of judicial review expressly conferred in the constitutional Courts, namely, Supreme Court of India under Article 32 and the High Courts, under Article 226i227 of the Constitution. [687-D-E] G

K.C. Ganpat Narayan Dea & Ors. v. The State of Orissa, [1954] SCR 1, referred to.

4.6. The contention that in s. 25 of the Act the word 'except' should be supplied by employing the doctrine of casus omissus, cannot be accepted. The H

p. 526

A legislation did not intend to introduce exception in view of the fact that they cannot directly overrule the decisions in Sehgal and Chopra. What they can· not directly do, cannot indirectly be allowed to be done. The Court cannot compound the camaflouge by supplying the so called omission deliberately caused by the legislature. It is not an unintentional one. [650-C·G]

B Mis. Pyarchand Kesarimal Ponwal Bidi Factory v. Onkar Laxman Thange & Ors., (1969] 2 SCR 272 and JNU v. Dr. KS. Jawatkar & Ors., [1989] Supp. 1 SCC 679, referred to.

Nomes v. Doncaster, (1940) 3 All. E.R. 549, referred to.

c 5.1. The object of inducting young blood by direct recruitment into the service and experienced officers by promotion is constitutionally permis- sible and valid to augment efficiency of service to inculcate discipline, hones· ty, integrity and excellence in higher echelons of service. Similarly, prescription of degree qualification (higher qualification to posts with higher responsibility) for promotion to the higher services is valid. [687-F-G] State of Jammu and Kashmir v. T.N. Khosa, AIR (1974) SC 1 and Mohd. Sugat Ali v. State of Andhra Pradesh, [1976] SCR 482, followed.

5.2. The prescription of the ratio between direct recruits and promotees is equally constitutionally permissible and the permissible limits shall not be altered by executive action, unless the Executive has power. It should give proper, valid and satisfactory explanation in writing prior to exercise of the said power, for deviation from the quota rules and that too as a short term arrangement to tide over administrative ex- p pedience. (687-G-H; 688-A]

S.C. Jaisinghani v. Union of India & Ors., [1967] 2 SCR 703; Shri H.D. Helms & Ors. v. Shri Mohan Chandra Joshi, AIR (1972) SC 2627; Bachan Singh & Anr. v. Union of India & Ors., (1972] 3 SCC 898; V.B. Badami Etc. G v. State of Mysore & Ors., (1976] 1 SCR 815 and Keshav Chandra Joshi & Ors. v. Union of India & Ors., [1992] Supp. 1 272, relied on.

Narender Chandra & Ors. v. Union of India & Ors., (1986] 1 SCR 211; Buleshwar Das v. State of U.P., [1981] 1 SCR 449; M.K. Chauhan v. State of Gujarat, [1971] 1 SCR 1037 and Gonna/ Bhimappa v. State of Kamataka, H [1993] Supp. 3 sec 449, referred to.

S.S. BOLA v. B.D. SARDANA 527 5.3. The Rules concerned are required to be interpreted as regards the operation and effect of the deviation from the quota rules and its effect on the main principle of prescribing quota and integration of the promotee officers into the service on strict compliance with the relevant provisions of the Act/Rules. [688·A·B]

5.4. In an appropriate case, the quota may be relaxed temporarily with a view to meet the administrative exigencies by filling up the posts by promotees. The promotion of the promotee officers to an ex-cadre post or cadre posts would only be to meet the administrative expedience. That would be done, so long as the direct recruit Assistant Executive Engineers, who are members of the Service in junior scale of pay are not available for promotion as Executive Engineer and upwards in accordance with the Rules. As soon as the direct recruits become available, the inter se seniority between the direct recruits and the promotees as Executive Engineers or upward shall be determined in accordance with the Rules/Act within the respective quota. Any appointment in excess of quota is invalid and the service rendered thereunder becomes fortuitous. [688·B·E)

6.1. No one has a vested right to promotion or seniority. The rule/provision in an Act merely affecting the chances of promotion would not be regarded as varying the conditions of service. The chances of promotion are not conditions of service. A rule which merely affects the chances of promotion does not amount to change in the conditions of service. [689·B·E]

State of Maharashtra & Anr. v. Chandrakant Anant Kulkami & Ors., {1981] 4 SCC 1301; Vinod Gurndas Ralkar v.National Insurance Co. Ltd. & Ors., [1991] 4 SCC 333; Zoharabi v. Arjuna & Ors., [1980] 2 SCC 203, F inapplicable.

Ashok Kumar Gupta & Anr. v. State of U.P. & Ors., [1997] 5 SCALE 289, referred to. . KC. Ganpat Narayan Deo & Ors. v. The State of Onssa, [1954] SCR G 1, cited.

6.2. An officer has an interest to seniority acquired by working out the rules. The seniority would be taken away only by operation of valid law. Right to be considered for promotion is a rule prescribed by conditions of H

p. 528

A service. Once a declaration of law, on the basis of existing rules is made by a constitutional Court and a mandamus is issued or direction given for its enforcement by preparing the seniority list, operation of the declaration . of law and the mandamus and directions issued by the Court is the result of the declaration of law but not the operation of the rules per se. [689-C-E]

B 6.3. Affecting the right of a person to be considered for promotion amounts to affecting the conditions of service, though affecting mere chance of promotion may not. The power to frame rules to regulate the conditions of service under the proviso to Article 309 carries with it the power to amend or alter the rules with retrospective effect. However the C benefits acquired under the existing Rules cannot be taken away by an amendment with retrospective effect, that is to say, that there is no power to make such a rule under proviso to Article 309 which affects or impairs ·{ ' vested rights. [678-F-G]

B.S. Wadera v. Union of India, [1968) 3 SCR 575; Raj Kumar v. Union D of India, [1975) 3 SCR 963; K. Nagaraj & Ors. v. State of Andhra Pradesh & Anr., [1985) 1 SCC 523; T.R. Kapur & Ors. v. State of Haryana & Ors., [1986) Supp. SCC 584, referred to.

6.4. When an Act is made or an amendment to the law is made or E revalidation of law is made by colourable exercise of power or fraud on the Constitution, it does not affect the vested rights. The right accrued by the declaration of law or the mandamus or directions issued by the Court cannot be taken away by such law or a valid law by retrospective operation since in the earlier litigation the Court did not declare any law as invalid or unconstitutional. This Court merely declared the law and directed the F State Government to implement the law. [689-E-G]

6.5. In the instant case, as a result of the mandamus issued by this Court, which has become final, a judicially recognised right has been vested in the direct recruits to have their seniority determined under the G repealed Rules; the said right is still available even after the Act has comr into force with retrospective effect since the retrospective effect has already, been held unconstitutional and the repealed Rules are saved by operation of Section 25 of the Act. As a consequence, they are entitled to have their seniority determined accordingly. [678-G-H; 679-A]

H 6.6. Preparation of seniority list in accordance with the declaration

S.S. BOLA v. B.D. SARDANA 529 of law and the mandamus/direction issued is required to be complied with A -· by the State Government unless it is properly revised or reversed by a constitutional Court in hierachy of appeals etc. Once the judgment attains finality, the directions given should be followed thereunder. The law is required to be implemented in its true spirit and not by mere pretence or facade of compliance. [689-G-H; 690-A] B 6.7. The Act is unconstitutional to the extent of retrospective operation of. the Act. The prospective operation does not have any effect on the settled rights of the parties to these litigations since the repealed Rules are saved under s. 25 of the Act and would continue to apply to them. As ·a consequence, they are entitled to have their seniority determined accordingly. Even otherwise, the rights secured by declaratory law were not affected. (690-A-B]

6.8. The prospective operation of the Act from the 4ate of its coming into force namely, 30th November, 1995, would be worked out in the light of the declaration of law in this judgment and be applicable to the other persons in the Service on and from that date or for the purpose of future promotions under the Act to those officers who were not parties to the litigation. [690-B-C]

7.1. A promotee becomes member.of the Service under the repealed E Rules vis-a-vis Buildings ~nd Roads Branch or Public Health Branch only when he is appointed substantively in accordance with Rule 8(9) of the respective Rules including Irrigation Branch within the quota. The decla- ration of law in Sehgdl and Chopra's cases ri:mains unaffected ~nder the Act and continues to be ill force. Similarly, any appointment made and weightage given to the promotees in excess of their quota, does not have any legal effect on the right to the seniority and the promotees within their quota alone are entitled to count their entire length of service from the respective dates of probation, without break. [691-A·B]

7.2. Even if relaxation by way of promotion in excess of the quota is temporarily made by the State Government, the State Government shall record reasons in support ofits action. However, such temporary deviation does not have any effect on the ratio prescribed under the Act/repealed Rules except that the promotee officers from Class-II Service belonging to Irriga- tion Branch are enabled to acc1uire the probationary status as Class-I Officers on a cadre/ex-cadre post. The confirmation of the probation awaits H

p. 530

A the substative vacancy. Until then, the promotees from Irrigation Branch do not become members of the Service in a substantive capacity. The same position has been created under the Act uniformly to all officers. ·- [690-D-E] 7.3. Seniority of a direct recruit appointed as Assistant Executive B Engineer starts from the date on which he starts discharging duties of the post as probationer be it in a substantive vacancy or on ex-cadre post. His seniority remains unaltered. He continues to be a member of the Service of junior scale of pay even before being appointed as Executive Engineer, i.e., in the senior scale of pay to a cadre/ex-cadre post after his promotion as Executive Engineer on probation being declared, if the prescribed mini- C mum period of service is completed or if the same is relaxed by the State Government uniformly to the promotees and the direct recruits, as was held in Chopra's case. Therefore, his seniority has to be determined and promo- tion given within the quota of the direct recruits as Executive Engineer and above in a substantive capacity. [691-C-E] D S.C. Jaisinghani v. Union of India & Ors., [1967] 2 SCR 703, relied on.

Bishan Sarnp Gupta Etc. Etc. v. Union of India & Ors., Etc. Etc., [1975] 1 SCR 104, referred to. E 7,4. The Class II Officers became eligible for promotion as Executive Engineers only after the Committee prepared the list of the eligible officers in accordance with Rule 8 of the repealed Rules/Section 8, after approval by the. Public Service Commission and the State Government. Class II Officers whose names find place in the approved list shall be appointed by promotion as Executive Engineers and upwards as probationers in the order in the list. Appointment on probation and declaration thereof does not get ripened into appointment substantively to cadre post. Appointment to a cadre post available within quota is a condition precedent to become a member of the Service in a substantive capacity. The inter se seniority of the direct recruits and promotee Class II Executive Engineers then shall be determined in accordance with the Rules. It requires to be worked out on that basis. [691-E-F]

7.5. The Division Bench of the High Court, therefore, was not correct to say that 10 posts of the promotees in Public Health Branch occupied from the date of initial constitution, is not challengeable and was not

S.S. BOLA v. B.D.SARDANA(PATIANAIK,J.] 531 challenged and, therefore, the contention that all the 10 posts would be occupied by the promotees in the cadre post, is fallacious and incorrect. Only 50% of the promotees (75% for 8 years in Irrigation Branch) allotted by the State of Punjab to the Haryana Service of Engineers, Class-I on and with effect from 1st day of November, 1966, shall be retained within their quota and balance five posts in Public Health Branch, shall be made over to the direct recruits. The preparation of seniority on that basis is perfectly consistent with the mandamus issued by this Court. Equally the direction issued by this Court with regard to the petitioner in Irrigation Branch and the other direct recruits in Buildings and Roads, Public Health and Irrigation Branches respectively would be applied on the same principles as applied to other direct recruits. They should be carried out accordingly. C The State Government would draw the seniority list afresh in the light of the above law and the directions. The directions of the two Division Benches of the High Court are confirmed with the modifications hereinabove. [691-H; 692-A-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 422 of D 1993 Etc.

From the Judgment and Order dated 27.8.92 of the Punjab & Haryana High Court in C.W.P. No. 9358 of 1989. E D.D. Thakur, K.T.S. Tulsi, Rajinder Sachhar, N.B. Shetye, Dr. Rajeev Dhawan, Ms. Aparna Rohtagi, K.B. Rohtagi, N.N. Bhatt, Jasbir Malik, Prem Malhotra, Jinandra Lal, (B.D. Sardana) (In- Person), Mahabir Singh, S.C. Patel, Dhruv Mehta, S.K. Mehta, Fazlin Anam, S. Verma, Adarsh Goel, Sudershan Ooel, P.N. Puri and P.K. Manohar, for the appearing parties.