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

The first proviso amplifies tha~ if adequate number of Assistant B Executive Engineers who are eligible and fit for promotion as Executive Engineers are not available, the posts in service, as Executive Engineer, even beyond 50% shall be filled up by promotion of members of Class II service or by transfer as may be decided by Government. Filling up by promotion of Class-II officers or by transfer from other Departments in excess of the quota, does not per se make the promotee a member of the service. By operation of sub-section (7) of Section 5, the Government should record in writing the exceptional circumstances for such deviation. The reasons in support thereof do indicate that in grave exceptional circumstances only as an exception for one time measure, the deviation from 50% is permissible, The second proviso further says that in case of irrigation Branch for the first eight years commencing from 1st day of November, 1966 for the word "50%", the word "75%" be read. In other words, the promotees have 75% cadre posts to their quota. It is seen that under the repealed Rules in respect of Buildings and Roads Branch or E Public Health Branch, the proviso was non- existent and the Irrigation Branch Rules did contain this proviso. In other words, prior to the judg- ment rendered by this Court in Sehgal and Chopra's cases, the first proviso was not in vogue and so t!-.ere was no occasion to consider its effect; the need to do the same has arisen in these cases. The promotees do not become members of the service until appointed substantively to a cadre post. When the promotee Class II officer as Exec:utive Engineer would become member of the Haryana Service of Engineers, Class-I would be considered later while dealing with other Sections; suffice it to State that the proviso has been introduced under the Act for the first time and by its operation, the promotees were made eligible for being appointed in excess of 50% quota or by transfer into the quota reserved for direct recruits · either as Executive Engineers when promotee Assistant Executive En- gineers were not available. We would also deal separately with the effect of the existing proviso in Irrigation Branch under the repealed Rules and its effect on the first and second proviso in sub-section (2) of Section 5. H

610 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A Any officer promoted from Class-II service shall be appointed to the post of Executive Engineer, i.e., cadre post substantively and not to an -<:: ex-cadre post. However, he becomes eligible for appointment from Class-II service as probationer/on officiation/transferee form other service. It is dealt with in sub-section (1) of Section 5 and under Sub-section (6) B appointment by transfer of an officer who initially was made to the rank to Executive Engineer. Sub-section (7) of Section 5 deals with exceptional circumstances, for reasons to be recorded in writing, the Government will have the power to relax as special case in regulation of the percentage specified in sub-section (2) of this Section and we do not find any relaxable specified percentage prescribed in that behalf. It is not implicit that total C 50% to the direct recruits is relaxable. Therefore, for the purpose of this case, it is not necessary for us to elaborate further. Suffice it to state that it is relevant for the purpose of this case that a Class-II officer defmed in Section 2(4) which is a feeder cadre for appointment by promotion to Haryana Service of Engineers Class-I, on probation/officiation shall be D appointed to the initial post of Executive Engineer under this sub-section (5) of Section 5 within the prescribed ratio to a cadre post, if any available.

Section 6 deals with the qualifications. Clause (a) and (b) only are relevant for a limited purpose, namely in case of appointment by direct recruitment, the candidate shall be a graduate from a recognised university. E The qualifications have been specified in Appendix 'B' to the Act the details of which are not necessary, suffice it to state that Appendix 'B' is an integral part of clause (a) of Section 6. Similarly, in the case of appointment by promotion from Class II service, the appointee shall have, in addition to the qualifications provided in Clause (a), i.e., Appendix 'B' F eight years completed service and has passed the prescribed tests as mandatory, unless suitably relaxed for reasons to be recorded in writing, the passing of departmental examination of the Class-II service. The proviso are not relevant for the purpose of this case. The mode of com- petition of eight years service has been explained in the explanation ap- pended thereto. The further proviso thereafter and clauses (c) and (d) are not relevant for the purpose of this case, hence they are omitted.

Section 7 prescribes age qualifications with which we are not con- cerned in this case. Section 8 is most relevant provision for the purpose of these cases which deals with appointment by promotion of the officers belonging to Class-II service. It reads as under :

S.S. BOLA v. B.D.SARDANA[KRAMASWAMY,J.) 611

"8(1) A Committee comprising of such members as may be notified A. by Government from time to time shall be constituted for Buildings and Road Branch, Public Health Branch and Irrigation Branch, as the case may be, to prepare a list of officers suitable for promotion to the senior scale of the service. The selection for inclusion in such list shall be based on merit and suitability in all respects with B due regard to seniority. • (2) The Committee shall meet at intervals ordinarily, not exceeding one year, and consider the case of all eligible officers for promotion to the senior scale of the Service, as on the 1st day of January of that year. C (3) The names of the officers included in this list shall be arranged in order of seniority in Class-II service :

Provided that any junior officer, who in the opinion of the Com- mittee, is of exceptional merit and suitability, may be assigned a D place in the list higher than that of officers senior to him.

(4) The !is~ so prepared shall be revised every year.

(5) If in the process of preparing the list or its revision, it is proposed to supersede any eligible candidate, the Committee shall E draw up a list of such officers and may record its reasons for the proposed supersession.

(6) The list prepared or revised in accordance with sub-section (1), (3) and (4) shall then be forwarded to the Commission by F Government alongwith -

(i) the records of all officers included in the list;

(ii) the records of all officers pJiOposed to be superseded as a result of the recommendations made by the Committee; G (iii) the reasons, if any, recorded by the Committee for the proposed supersession of any officer; and

(iv) the observations, if any, of the Government on the recommen- dations of the Committee. H

612 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A (7) The Commission shall consider the list prepared by the Com- mittee along with other documents received from the Government and, unless it considers any change necessary, approve the list.

(8) If the Commission considers it necessary to make any change in the list received from the Government, the Commission shall B inform the Government of the changes proposed and after taking into account the comments, if any, of the GoVernment, may ap- prove the list finally with such modification, if any, as may in its opinion, be just and proper.

c (9) Appointments to the Service shall be made by Government frqm its list in the order in which names have been placed by the Commission.

(10) Appointments by promotion may be made to the post in Service, or to any post in the cadre in an officiating capacity from the list prepared under this section.

(11) It shall not ordinarily be necessary to consult the Commission before appointment under sub-sections (9) or (10) are made, unless during the period intervening between the inclusion of the name of the officer in the list and the date of the proposed appointment there occurs any deterioration in the work of the officer which in the opinion of the Government is such as to render him unsuitable for appointment to the service."

A reading thereof does postulate that a Committee, comprising of the members specified in sub-section (1) of Section 8 and the Rules made in that behalf shall be constituted for selection of Class II officers which . shall prepare a list of suitable officers of promotion to the senior scale of service. In other words, Haryana Service Engineers, Class I, i.e., J:lxecutive Engineers is the only entry gate thrown open to Class II officer, as another feeder source which otherwise would not have been eligible and instead be occupied by promotion of Assistant Executive Engineers already a member of the service but was initially appointed to junior pay scale. The selection for inclusion in the list shall be based on merit and suitability in all respects with due regard to seniority. The Committee shall meet at intervals or- dinarily, not exceeding one year and consider the cases of all eligible Class H II officers for promotion to the post as un 1st day of January of that year.

S.S. BOLA V. B.D.SARDANA [K.RAMASWAMY,J.] 613

The names of the officers included in that list shall be arranged in the order of seniority determined in Class-II service. Any junior officer, who, in the opinion of the Committee, is of exceptional merit and suitability, may be assigned a higher place in the list than that of officers senior to him in Class-II service and equally upwards. In other words, a junior officer who has shown exceptional merit and suitability may supersede a senior officer and scale a march over his seniors and he may be assigned higher place than the senior officer. The list shall be operative for one year and it shall be revised every year. Among class II officers, this sub-section inculcates to develop spirit of competence, superior merit, ability or suitability, in other words, excellence and generates a separate atid competent breed among promotees to augment efficiency and competence in service, apart from honesty and integrity which always remain pre-condition.

In the process of preparing the list or its revision, if the Committee proposed to supersede any otherwise eligible officer, it shall draw the list of such officers and it shall record its reasons in support of the decision for such supersession. It is settled legal position that before reaching decision for such a supersession, the superseded officer shall be entitled to prior opportunity d notice supported by reasons and hearing and then only the recording of reasons would be meaningfuI; otherwise the officer will have no opportunity to meet any of the grounds on the basis of which the Committee may propose to supersede the officer in the preparation of the list or revised list, as the case may be. It is also settled legal position that this is in compliance of the principles of natural justice which is an inbuilt part of the right to justice, fairness in procedure and equality of opportunity which are part of Article 14 of the Constitution. Communica- tion of the reasons to the superseded officer is also a facet of part of . F principles of natural justice. The list thus prepared shall be revised every year and new list prepared before 1st day of January each year. The record of reasons also shall be forwarded to the Government.

The list thus prepared or revised shall be forwarded to the Govern- ment by the Committee and the Government in turn shall forward the list G to the Haryana Public Service Commission along with the record of all the officers included in the list or the revised list. Obviously, the records of all officers proposed to be superseded, as a result of the recommendations by the Committee also shall be forwarded to the Public Service Commis- sion. The reasons recorded by the Committee for the proposed superses- H

614 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A sion of the officer shall also form part of the record communicated to the Public Service Commission. If the Government makes any observations on the recommendations made by the Committee including supersession of any officer thereof, it is necessary that their observations also should form part of the record communicated to the Public Service Commission for its B consideration. In other words, the Government also would examine inde- pendently the record of all officers. Obviously giving due weight to the reasons of the Selection Committee as inbuilt guarantee for independent and objective assessment of merit and suitability of the officer by the Committee and to express its frank opinion so as to improve efficacy of service by the incumbent officers. c The Public Service Commission shall independently consider the list prepared by the Committee along with other documents received from the Government and, unless it consider any change necessary, approve the list. If the Public Service Commission considers it necessary to make any change in the list received from Government, it shall also inform the Government of the proposed changes and after taking into consideration the comments, if any, received in that behalf from the Government, the Public Service Commission should be entitled to consider the same and if necessary alter the order of merit and then communicate the approved list to the Government. At this stage, it would be necessary to clarify that in the process of inter-department exercise an opportunity to officers does not arise. Thereafter, the Government is empowered to finally approve the list with such modification as was suggested and altered by the Public Service Commission. If the alteration suggested by the Public Service Commission would not be acceptable to the Government, then it should again consult the Public Service Commission with supportive reasons and after due consideration to the advice of the Public Service Commission, the Government approves the list of eligible Class-II officers for promotion as Class-I officers, i.e., Executive Engineer.

G Appointments to the Service shall be made by the Government from the final list in the order in which names have been placed by the Public Service Commission and approved by the Government. Appointment by promotion will be made to the cadre post in the service or to any ex-cadre post on probation or in an officiating capacity from the said list. As seen, H the appointment to the service of an officer from Class-II service as an

S.S. BOLA v. B.D. SARDANA [K RAMASWAMY, J.] 615

Executive Engineer shall be made by the Government from the fmal list in A · the order in which their names have been placed by the Commission. Appointment by promotion may also be made to the cadre/ex-cadre post in service as probationer or to any post in the cadre in an officiating capacity from the final list approved and became final under the Section. In other words, after the receipt of the approved list from the Public B Service Commission and its approval by the State Government, the list becomes final and operative for one year or if revised in the meanwhile after following the procedure. An appointment should be made of the Class II officers in the order of the names in the list under Section 8(9) and be put on probation. Equally an appointment in an officiating capacity to the ex-cadre post and in case of administrative necessity to a cadre post may be made by operation of sub-section (10) of Section 8.

By operation of sub-section (11) of Section 8, it shall not ordinarily be necessary to consult the Public Service Commission again, if an appoint- ment under sub-section (9) or (10), unless during the period intervening between the inclusion of the name of the officer in the list and the date of the proposed appointment there occurs any deterioration in the work of any of the officer found approved in the list which in the opinion of the Government is such as to render him unsuitable for appointment to service. Here also, the principles of natural justice be followed of prior opportunity of communication of reasons in support thereof and brief hearing, if E necesF;ary and brit'.f reasons in :-;upport thereof. Thcre.3fter; consultation with the Public Service Commission is mandatory. Appointment on proba- tion and after satisfactory completion of probation and declaration thereof, the probationer shall be appointed under Section 8(9) substantively to any cadre post within the quota, if any post is available. F

Section 9 deals with promotion within service, as indicated in its marginal note. Sub-section (1) provides that subject to the provisions of sub-sections (2) and (3), members of the service shall be eligible for promotion to any post in the service, namely, Executive Engineer, Super- G intending Engineer, Chief Engineer and Engineer-in-Chief within their respective branches. As seen earlier, a direct recruit Assistant Executive Engineer, in the service of senior scale of pay is empowered to officiate in a cadre post, namely, of his appointment as an Executive Engineer or thereafter as a Superintending Engineer and so on, since he has already been a member of the service. Equally, so a direct recruit Executive H

616 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A Engineer. But, unfortunately, the legal effect to the promotee Class-IL officers is different. Unless he is appointed as Executive Engineer in a substantive capacity to the service, after the list is approved, to a cadre post within the quota he becomes a member of the service in a substantive capacity. Even in exceptional circumstances, due to administrative exigency he can be appointed under Section 8(10) to officiate as Executive Engineer B only of the officers from the approved list, appointment even to a cadre post in Class I service, he could be appointed only as probationer/officiat- ing capacity. That is the consequence of the operation of Section 8 and in particular sub-sections (9) and (10), as the case may be. Sub-section (11) only enables the Government to exclude an officer in the approved list provided it finds before the date of appointment that the Government forms an objective opinion on the basis of material on record that in the interregnum, the officer included and approved in the list was found unsuitable for appointment to the service due to deterioration of his work. As seen, as an inbuilt procedure of fairness, compliance of the principles of natural justice in that behalf and consultation with Public Service Com- mission is an integral facet, otherwise it becomes arbitrary, unjust and unfair to an officer whose name was found fit by the Committee and approved by the Public Service Commission and finds his place in the order of merit finally pr~pared by the. Public Service Commission and approved by the State Government, gets denied of the legitimate expectation of appointment by probation. On satisfactory completion of probation, a substantive appoin.tment to a cadre post under Section 8(9) ·-vithin quota shall be made or else promotee appointee remains as a probationer/of- ficiating appointee under Section 8(10). This also is a caveat to the promotee officer/Assistant Executive Engineer to continue to dedicate himself assiduously in the performance of or in discharge of the duty efficiently with honesty and integrity. Thereby, it puts a nail in the coffin of a corrupt proclivity. If he exhibits, it knocks him of the bottom. Legitimate expectation of promotion equally get ensured by all the above stated steps to direct as well as promotee officers as Executive Engineer and upwards. G The proviso to sub-section (1) of Section 9 clearly and unambiguous- ly puts the officer on notice that a member of the service who does not possess any of the university degree or other qualifications prescribed in Appendix B, he shall not be eligible for further promotion to the post of H Superintending Engineer cir above till he acquired the requisite qualifica-

S.S. BOLA v. B.D.SARDANA[KRAMASWAMY,.J.] 617

hons. In other words, though an unqualified officer with a degree of university or other prescribed qualifications specified in Appendix B, but found eligible and meritorious and suitable, he may also be given only one opportunity tc become an Executive Engineer a..'ld thereafter until he acquires all the requisite qualifications and passes all the prescribed tests unless already passed, he shall not be eligible for promotion to the post of Superintending Engineer and above. In this behalf, it is necessary to reiterate that it is the settled legal position that prescription of the degree qualifications (higher qualification to posts with higher responsibility) for promotion to the higher services is a valid qualification and classification as upheld by a Conditution Bench of this Court in State of Jammu and Kashmir v. T.N. Khosa, AIR (1974) SC 1, another Constitution Bench in C Mohd. Sugat Ali v. State of Andhra Pradesh, [1976] SCR 482 and hosts of decisions thereafter. This principle inculcates searching competitive spirit among employees for continuing education in the subject of the charge and a spirit of competition which helps improvement of efficiency of ad- ministration. D Sub-section (2) of Section 9 reiterates the settled legal principle that the promotion shall be made by selection on the basis of merit and suitability in all respects but such a member shall not have any claim to such promotion as a matter of right on mere seniority. In assessing merit and suitability seniority also may be considered but if a junior officer is found more meritorious and suitable, he sreals a march over his seniors E and scale higher ladders in service earlier to his seniors.

Sub-section (3) of Section 9 deals with required length of service as eligibility for promotion to the rank at each stage of Class-I posts. It says that a direct recruit shall not be eligible for promotion, though he is a F member of the service, to the rank to Executive Engineer, unless he rendered five years' service as Assistant Executive Engineer and he has passed the departmental examination as prescribed in Section 15. Under the first proviso, any officer who has renderd six years or more service as an Assistant Executive Engineer shall, unless he is considered ur1suitable G for promotion, be given preference for such promotion over an eligible • Class II officer who has already been defined under Section 2(4) of the Act, namely, officer from the feeder cadre eligible for promotion as Ex- ecutive Engineer of Haryana Service, Class I posts and upwards. The second proviso deals with minimum qualified service for an officer who is a member of the service working on the civil side on Buildings and Roads H

618 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A Branch unless one has served a total minimun period of two years on a post relating to the design or planning or research or survey and investiga- tion or teaching or training or purely office posting whether in Head Office or Circle Office or Research Laboratory under the Haryana Government or while on deputation under any other authority, he is ineligible for promotion as Executive Engineer. Explanation postulates that any service of the specified nature rendered while in class-II service by the member of the Service shall also be counted for computation of two years service as Executive Engineer of such specified nature. In Buildings and Roads Branch previous experience is necessary for promotion as Executive En- gineer so that the required specialised eiqiert service would augment expert performance of the duties as Class-I officer.

Clause (b) of sub-section (2) deals with Superintending Engineers and it prescribes seven years' qualifying service as an Executive Engineer for promotion as Superintending Engineer. The proviso deals with that in the case of promotion of a member to the post of Superintending Engineer working on the civil side in Buildings and Roads Branch, he has served for a total minimum period of two years at a post of Executive Engineer relating to design or planning or research or survey and investigation or teaching or training or purely office posting whether in Head Office Research Laboratory under the Haryana Government or while on deputa- E tion under any other authority. Even for promotion as Superintending Engineer, again two years' experience as Executive Engineer in the above subjects is insisted upon as continuing expert education and as part of service since supervisory officer does not stop at saturation point.

F Clause (c) of Section 9(3) deals with Chief Engineer and Engineer- in-Chief and prescribes three years' qualifying service a,; Superintending Engineer for promotion as Chief Engineer. The proviso adumbrates that if it appears to be necessary to promote an officer in public interest who does not possess such minimum service, the Government may for reasons to be recorded in writing, either generally for a specified period or in any G individual case, reduce the period specified in clauses (a), (b) or (c) to such an extent as it may deem proper. In other words, the proviso to clause (a), (b) or ( c) of sub-section (3) of Section 9 gives elbow power to the Government in an appropriate case either generally or· in a case of any individual to relax the minimum period of service mentioned in the respec- H tive clauses as it deemed proper and appropriate. Situation and the condi-

S.S. BOLA v. B.D.SARDANA [KRAMASWAMY,J.] 619

tion precedent to exercise that power requires that the Government should record its reasons in writing before giving relaxation. It would be obvious that the pressing public interest is the predominant and paramount con- sideration for such relaxation. Reasons recorded for such exercise, must of necessity, IX f acie form part of record which should disclose relevant and germane reasons. It would appear that the scheme of preparing merit list as envisaged in Section 8 is also necessary for promotion as Superintending Engineer and upwards perhaps as inbuilt fair procedure. But for the purpose of these cases, it is not necessary for us to express any fmal opinion. In an appropriate case, it may be considered and decided.

Section 10 relates to appointment by transfer with which we are not concerned. Therefore, it is omitted. Section 11 deals with probation which is again material for the purpose of this case which has got inter link and close connection with the contentions raised by the counsel for the parties and, therefore, reads as under :

"11. (1) Officers appointed to the Service shall remain on probation P for a period of two years, if recruited by direct appointment and one year if recruited otherwise :

Provided that -

(a) any period after appointment to the Service spent on deputa- E. tion on a corresponding or a: higher post shall count towards the period of probation fixed under this Section;

(b) in the case of an appointment by transfer, any period worked in the rank of Executive Engineer or above, prior to appointment to the Service may, at the discretion of Government be allowed to count towards the period of probation fixed under this section; and

(c) an officiating appointment in the Service shall be reckoned as period spent on probation but no member who has thus officiated shall, on the completion of the prescribed period of probation be entitled to be confirmed, unless he is appointed against a cadre post.

(2) If the work or conduct of an officer appointed to the Service during the period of probation is in the opinion of Government, H

620 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A not satisfactory, it may -

(a) dispense with his services, if recruited by direct appointment; or

{b) if recruited otherwise - B (i) revert him to his former post; or

(ii) deal with him in such other manner as the terms and condi- tions of his previous appointment permit.

C (3) On the completion of the period of probation of an officer, the Government may --

(a) confirm such officer in his appointment; or

(b) if no cadre post is vacant for him, declare that he has completed D his probation satfafactorily; or

(c) if his work and r.onduct has, in its opinion, not been satisfactory, dispense with his service, if recruited by direct appointment; or

(d) if recruited otherwise ·- E (i) revert him to his former post or

(ii) deal with him within the terms and conditions of his previous appointment; or

(e) extend his period of probation and thereafter pass such orders F as it could have passed on the expiry of the first period of proba- tion;

Provided that the total period of probation, including extension, if any, shall not exceed three years. G (4) On the satisfactory completion of the period of probation. Government shall confirm such officer in a cadre post, if one is available for him."

By operation of sllb-section (1) of Section 11 an officer appointed to H the Service shall remain on probation, in case of a direct recruit for a

S.S. BOLA v. B.D.SARDANA[K.RAMASWAMY,J.] 621

period of two years and in other cases, namely, appointment by promotion A · or transfer, for a period or one year. The proviso postulates that any period, prior to appointment to the Service spent on deputation on a correspond- ing or a higher post shall count towards the period of probation fixed under Section 11. Clause (b) of the proviso is not relevant, hence omitted. Clause (c) of the proviso to sub-section (1) of Section 11 postulates that an officiating appointment in the Service shall be reckoned as a period spent on probation but no member who has thus officiated shall, on the comple- tion of the prescribed period of probation, be entitled to be confirmed, "unless he is appointed against a cadre post". In other words, clause (c) of the proviso to Section 11(1) is the opening key to understand that in cases of a direct recruit, on satisfactory completion of the period of probation, if he is appointed to an ex-cadre post or promoted to a cadre post but is officiating, the period spent on such posts shall be counted towards proba- tion. Similarly, in the case of a promotee from Class II service defined under Section 2(4) and found eligible, to put in the list, appointed in the service as per the order in the list either under Section 8(10) and put on probation under Section 11(1), he becomes eligible to perform the duties of the post in Class-I Service as Executive Engineer, though he is not member of the Service as he was not appointed substantively to the cadre post "within the quota" to a post "if available to him". On completion of the prescribed period of probation, he shall not be entitled to be confirmed unless he is appointed against a cadre post. Equally a promotee appointed to officiate in a cadre/ex-cadre post is entitled to count the period spent on officiating capacity need not again be put on probation. The period may · be counted towards probation and if he satisfactorily discharges the duties of the post, the probation may be declared. But he is not entitled to be confirmed until the cadre post is available and appointed accordingly. In other words, his confirmation of the probation or completion of probation of officiating officer does not automatically give him absolute right to be appointed against a cadre post; nor does he automatically become a member of the Service, unless he is duly appointed in that behalf to a cadre post in a substantive capacity within the quota to any cadre post, if available to him. '

Section 11 would equally apply to direct recruits as well as promotee/transferee officers. Sub-section (2) deals with the cases relating to officers whose service during probation is found unsatisfactory; they may H

622 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A be discharged from service if appointed by direct recruitment or by promo- tion/transfer revert him to his former post as Class-II officer/revert to parent Department or may be dealt with otherwise in terms and conditions of previous appointment. It is not relevant for the purpose of this case to elaborate further. Sub-section (3) has material bearing in this case. It says that the Government may, on completion of the period of probation of an officer, (a) confirm such officer on his appointment; or (b) if no cadre post is vacant and available within quota for him, declare that he has completed his probation satisfactorily and awaits appointment is a substantive capacity to a cadre post, if available within the quota; or (c) if his work and conduct has, in its opinion, not been satisfactory, dispense with his service, if recruited by direct appointment; or (d) if recruited otherwise (i) revert him to his former post; or (ii) deal with him within the terms and conditions of his previous appointments (e) extend his period of probation and there- after pass such orders as it could have passed on the expiry of the first period of probation. D It would thus be clear that if no cadre post is available to either the direct recruits or the promotee within quota, it shall be declared that they have satisfactorily completed their probation and as soon as the cadre post become available, they would be appointed substantively to the cadre post in accordance with the Rules and within their quota. If the service during probation is found unsatisfactory, the direct recruit is required to be discharged from service; or a promotee or a transferee is required to be reverted to his former post or parent department or be dealt with in such other manner as per the conditions of the services of his previous appoint- ment unless the period of probation is further extended. The provis:i to Section 11(3) postulates that the total period of probation including ex- tended period shall not exceed three years. Confirmation on probation is a condition precedent to acquire the status as confirmed probationer. This G will apply equally to direct recruit or promotee officer. Sub-section 4 of Section 11 says that on the successful completion of the period of proba- tion, Government shall confirm such officer in a cadre post "if one is available for him". It is necessary to recapitulate that the confirmation of an officer, be it direct recruit or promotee, should be only to a cadre post within quota only when the cadre post is available to their respective source. None can trench into the other; nor can they claim officiation as a ·,

S.S. BOLA v. B.D. SARDANA [K RAMASWAMY, J.) 623

rirjit. The officiation is fortuitous, as perfotmance of duty on probation is an enabling provision to complete the prescribed promotion and await appoint- ment in a substantive, capacity to a cadre post within the quota. Equally, of officiating appointment. The effect of the phrase ''shall confinn such officer in a cadre post if one is available" and the words "shall" manifest the intent of the Legislature in unequivocal terms that on mere probation/officiation, he does not ipso facto would beco~e a member of the service in a substantive capacity. Appoitilment under Section 8(9) to a cadre post within the quota is a condition precedent. No more confusion. No more further right. c As seen, by operation of Section 8 read with Sections 9 and 11, the preparation of the seniority list, arrangement of the Class- II officers in the order of merit by the Committee, approval by the Public Service Commis- sion and final approval by the Government are pre-conditions for putting the promotee officers on probation. By necessary implication, a temporary D appointment on probation or officiation on a cadre post/ex-cadre post or on confirmation of the probation on successful completion thereof does not ipso facto give right to be the member of the Service. Appointment to the Service where a cadre post is available under sub-section (9) of Section 8 in a substantive capacity, is a condition precedent. Therefore, a promotee E Class- II officer shall be appointed substantively only within the quota. In other words, if there is necessity of promotion of Class-II officers to the Haryana Service of Engineers Class-I, under the Act, due to exigencies of the administration, they tll_Il be promoted under Section 9 on complying with the pre-condition of selection under Section 8 appointing them tern- F porarily in officiating capacity under Section 8(10). Declaration of success- ful completion of the probation does not ipso facto give them right to be members of the service in a substantive capacity. They get into the service only if cadre post is available within the 50% quota (for 8 years with 75% quota to the Irrigation Branch) and their appointment in a substantive G capacity dates-back to their date of appointment on probation. The inter se seniority of the direct recruits and promotees shall be determined in the manner laid down in the Act only when they are appointed within their respective quota and their appointments are confirmed in a substantive capacity from the respective dates of appointment. The order of seniority H

624 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A of the direct recruits as Assistant Executive Engineers promoted as pxecu- tive Engineer is fixed with reference to the initial date of appointment. It remains unalterable. This was the law laid down in Sehgal and Chopra's. cases and no change has been brought about under the Act. Equally of the direct recruit Executive Engineers under the Act. B The only enabling provision for Class-II Officer prom~ted as Exe~u­ tive Engineers in Buildings and Roads Branch and Public Health Branch has breathed life as probationers and they get confirmation after successful completion; but have to await appointment in a substantive cadre post C within t;he quota. The quota has remained unalterable. Thus, the promotee Class-II officers are appointed to Class-I service as Executive Engineers. This scheme does indicate that the first proviso to sub-section (2) of Section 5 does not automatically give power to the State Government to fill up the posts in service by promotion of the members of Class-II Service D or by transfer in excess of the quota; nor does it amount to relaxation of rule of quota. In other words, it gives an elbow power to the State Government to promote the Class-II officers in excess of 50% quota (75% in case of officers of Irrigation Branch cadr¢ post for 8 years) to meet administrative exigencies and due to non-availability of the eligible and fit E Assistant Executive Engineers who always remain to be members of service in junior scale. It gives only a right to the promotee officer to occupy the cadre post reserved for the direct recruit Executive Engineer and promotee Executive Engineers from the cadre of Assistant Executive En- gineers in junior scale of pay until their availability and no more.

F A reading of these sections does indicate that successful completion of the probation and declaration thereof enables the officer to continue to officiate in a cadre post of Haryana Service of Engineers, Class-I, PWD in the Irrigation Branch hitherto had, but the promotee officers from Build- ings and Roads Branch and Public Health Branch had no such right as was declared by this Court in Chopra and Sehgal's cases. But, now, it has been provided with a limited breather to complete the period of probation or to officiate in an ex-cadre/cadre posts, i.e., due to probation or administrative exigencies. He .shall not be confirmed to the cadre post unless the post is available to him. The phrase 'if one is available' rendered hereinbefore is positive and unambiguous to the effect that successful completion of the

S.S. BOLA v. B.D.SARDANA[KRAMASWAMY,J.] 625

probation and declaration thereof does rtot automatically amount to con- A firmation of such officer in his substantive appointment referred to in clause (a) of sub- section (3) and sub-section (4) of Section 11 makes the matter amply clear in that behalf. Availability of a cadre post within quota shall ·always remain a pre-condition.

The crucial stage has now been set to consider the play of seniority B under the Act. Section 12 dealts with seniority. It reads as under :

"12. (1) In the case of Assistant Executive Engineers the order of the merit determined by the Commission shall not be disturbed in fixing the inter se seniority amongst them. c (2) Inter-se seniority of the members of the Service appointed as Executive Engineers in the Buildings and Roads Branch, Public Health Branch and Irrigation Branch shall be determined by the length of continuous service oil the post of Executive Engineers : D Provided that seniority shall be determined separately for Build- ings and Roads Branch, Public Health Branch and Irrigation Branch.

Provided further that in case of Executive Engineers directly E appointed or promoted from Assistant Executive Engineer or promoted from Class II Service or appointed by transfer on the same day their inter se seniority shall be in the following order :

(i) Executive Engineer directly appointed shall be senior to all; F (ii) Executive Engineer promoted from Assistant Executive En- gineer shall be senior to the Executive Engineer promoted from Class-II service or appointed by transfer;

(iii) Executive Engineer promoted from Class II service shall be G senior to the Executive Engineer appointed by transfer.

(3) In the case of the Executive Engineers appointed by transfer from different cadres, their seniority shall be determined according to pay, preference being given to a member, who was drawing a higher rate of pay in his previous appointment, and if the rates of H

626 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A pay drawn are also the same, then by the length of their service in the appointment; and if the length of such service is also the same, the older member shall be senior to the younger member.

(4) Where a member of the Service, for a cause which Government considers to be sufficient, is unable to join the Service or continues B with Government's approval on deputation outside the Service, it shall be open to Government to allow him credit for such service as if it was service rendered under this Act for purposes of the fixation of his seniority.

c Explanation. - All employment on deputation after a member has joined the Service and has had his seniority fixed under this Act, shall count as if it was employment in the Service and shall not in any way affect the seniority already fixed, except to the extent that such seniority would in any case have been affected had the D member of the Service continued to work in the department."

Sub-section (1) of Section 12 assures continuance of inter se the order of merit determined by the Haryana Public Service Commission. It postu- lates that the order of seniority "shall not be disturbed in fixing the inter se E .seniority amongst them". In other words, between direct recruits, the inler se seniority as determined by the Public Service Commission shall be the guiding star shedding light onto their inter se seniority. Here, it may perhaps be relevant to mention that in a direct recruitment, the open candidates and the reserved candidates are recruited in accordance with the vacancies reserved; or are selected to the respective posts and their fitment is in accordance with the roster maintained by the Government. Their seniority thus determined with the concurrence of the Public Service Commission remains final. Therefore, it is equally settled law that the reserved candidates are also entitled to be considered and appointed to the general vacancies, while the reserved candidates are to be filled into the roster points earmarked for the reserved candidates. Thus, sub-section (1) of Section 12 ensures the compliance of the maintenance of the inter se seniority in that behalf.

Sub-section (2) of Section 12 deals with the inter se seniority between the members of the service appointed as Executive Engineers in the respective Branches. It provides that their inter se seniority shall be deter-

S.S. BOLA v. B.D.SARDANA(KRAMASWAMY,J.] 627

mined by the length of continuous service on the post of Executive En- A gineers. Provided that the seniority shall be determined separately for each of the Branches. The second proviso further says that in the case of Executive Engineers directly appointed or promoted from Assistant Execu- tive Engineers or promoted from Class-II Service or appointed by transfer on the same day, the inter se seniority shall be in the following order : B "(i) Executive Engineers directly appointed shall be senior to all.

(ii) Executive Engineers promoted from Assistant Executive En- gineer shall be senior to the Executive Engineers promoted from Class-II service or appointed by transfer. C

(iii) Executive Engineer promoted from Class-II Service shall be senior to the Executive Engineer appointed by transfer."

In other words, it postulates appointment of Executive Engineers by direct recruitment in which event they shall be put on probation under the relevant provision and on the successful completion of the probation, the seniority between direct recruit Executive Engineer, direct recruit promotee from junior scale of pay, i.e., Assistant Executive Engineers and promotee Class-II officers or transferee officers, shall be directed to be arranged as per their respective ranking specified therein. Thus, seniority shall be .given firstly to direct recruit Executive Engineers; then promotee Assistant Executive Engineer; and then to Class-II promotee officers and in the Jast to the transferee officers, if any. That is made manifest by clause (iii) postulating that Executive Engineer promoted from Class-II service shall be senior to the Assistant Executive Engineers appointed by transfer. F In other words, the direct recruits take seniority over the promotees. For instance in any year, there is direct recruitment of Executive Engineer; in the same year Assistant Executive Engineer is also promoted as Executive -· Engineer; equally, a Class II officer officiating in cadre post after his placement in the select list and approval and successful completion of the probation, is appointed to the Service to any cadre post available to him. G -· In such a case, direct recruit Executive Engineer shall be confirmed first and automatically his seniority would date back to his date of appointment as Executive Engineer on probation. Similarly, the Assistant Executive Engineer would be promoted and kept on probation and his seniority would date back to the date of completion of probation as Executive H

628 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A Engineer but his entry to the service as Assistant Executive Engineer remains unalterable. In a given situation, where suitable relaxation of the minimum qualifying service is given uniformly to the Assistant Executive Engineers as well as the promotees also, the Assistant Executive Engineer promoted as Executive Engineer would become senior to the Executive B Engineer promoted from Class-II service and thereafter if there is any Executive Engineer appointed by transfer, he would become juniormost, irrespective of the date from wliich he was appointed and kept on proba- tion and would await appointment to a cadre post and appointed accord- ingly, as the case may be. It is seen that this provision instead of helping the promotees, alters the law declared by this Court in Sehgal and Chopra's cases to their detriment. The continuous length of service must, of neces- sity, be understood in that perspective; lest several distortions would creep in and would defeat the scheme of seniority and disturb the balance brought out by this section. The continuous length of service should, therefore, be from the respective dates of appointment within the quota to the available cadre posts allocated to the respective sources, i.e., direct recruits as one unit and promotees and transferees as another unit and' inter se between themselves of each source. The effect would be considered after considering the constitutionality of the Act.

E Sub-section (3) of Section 12 makes the matter further clear and states that in the case of Executive Engineer appointed by transfer from different cadres, their seniority shall be determined according to pay, perference being given to a member who was drawing a higher rate of pay in his previous appointment and if the rates of pay drawn are also the same, then by the length of their service in the appointments and if the length of such service is also the same, the older member shall be senior to the younger member. In other words, the transferee officer on successful completion of the probation would be junior-most among others after direct recruits and promotees are fitted into the service. Among the equal transferee appointees on deputation, the officer drawing higher pay in previou.s appointment shall be senior, where pay drawn by them is same, then the officer with longer service would be senior; and if service length is equal, the officer older in age would be senior. It is further explained that all appointments on deputation, after a member has joined the Service as member and "has had his seniority fixed under this Act, shall count as if it was employment in the service and shall not in any way affect the

S.S. BOLA V. B.D.SARDANA[K.RAMASWAMY,J.) 629

seniority already fixed, except to the extent that such seniority would in any case have been affected had the member of the service continued to work in the department".

That will be clear when we look at the conjoint operation of all the provisions and the operation of the seniority under Section 12 of the Act. B

Sections 13 to 22 are not relevant for the purpose of this case; hence they are omitted. Section 23 provides that the Rule of reservation provided J:o Scheduled Castes and Backward Classes, Ex-Servicemen and physically

- handicapped persons or any other class or a category of persons provided previously or other concessions shall not be affected by the provisions of C the Act and same shall continue and Government has been given power to exercise in that behalf the said power from time to time. Section 24 gives power to make Rules and Section 25 is repealing and saving provision. It says that the Haryana Ordinance No. 6 of 1995 is repealed and the statutory Rules~f 1961 relating to the three Branches with their application to the D State of Haryana are also repealed except to the extent that the Rules shall continue to apply to persons who were members of the Service under the respective Rules prior to the 1st day of November, 1966. The proviso saves any penalty or punishment imposed as a result of the disciplinary proceed- ings; disciplinary proceedings initiated or pending under the repealed E Rules; any relaxation for qualification granted to any member of the Service under the repealed Rules and also the benefits accrued to the officers who retired during the period from 1st day of November, 1966 to the date of promulgation of the Ordinance. It further postulates that the Punjab Service of Engineers Class-I, PWD (Buildings and Roads Branch) F Rules, 1960, the Punja_l> Service of Engineers, Class-I, PWD, (Public Health Branch) Rules, 1961 and the Punjab Service of Engineers, Class-I, PWD (Irrigation Branch) Rules, 1961 shall continue to be in force as if the same had not been repealed.

What consequence would emerge from its repeal and savings, is the G question. By operation of the above-quoted sections, the direct recruit Assistant Executive Engineers in junior scale of pay have already been integrated as members of the Service and their pre- existing rights have already been protected and continued. Be it under the law as declared by this Court or by operation of retrospective deeming fiction given to the H

630 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A Act. But as far as the promotee officers are concerned, though deeming fiction is equally available, until they are duly brought in the Service by express order of appointment there is nothing to suggest that they must be deemed to have been appointed un~r the Act. On the other hand, the respective Rules remain unaffected and continue to remain in force. There- B fore, until they are duly and carefully integrated into the Service, they do not become the members of the service in a substantive capacity under the Act. This is the starking consequence that has been brought about under the Act and given little benefit to the promotees than they had under the respective repealed Rules. On the other hand, the axe knocked of their

C leads and they have not been saved under clauses (a) to (d) under proviso to Section 25 of the Act. The direct recruits were already integrated into the membership of the Service and they became the members of the Service - by fiction of the law by giving retrospective effect which otherwise is not necessary as Sehgal and Chopra is the law of the land by Article 141 and no more is needed for them. D The question, therefore, arises; what is the consequence vis-a- vis promotees? Whether the legislature is competent to enact the Act with retrospective effect? At this stage, we would reiterate that the State Legis- lature does have the power to enact the Act under Article 309 as well as E under Article 245(1) read with Entry 41 of List II of the Seventh Schedule to the Constitution. The question only is : whether it can enact the Act with retrospective effect and what would be its consequence? At this stage, it is relevant to note the Statement of Objects and Reasons of the Act which reads as under :

F "There were separate rules regulating service conditions and fixa- tion of seniority in the Engineering Services in P.W.D., B & R, Public Health and PWD Irrigation Branch. These rules although different for the three branches were on identical lines with minor variations. These rules have been interpreted by the Supreme G Court in the cases of A.N. Sehgal v. Sheoran and S.L. Chopra v. B.D. Sardana. Subsequently, the judgment has been interpreted further in the case of A.N. Sehgal v. R.R. Sheoran by an order dated 31st March, 1995 of the Supreme Court in a Contempt Petition filed by Shri R.R. Sheoran. In the Public Health side, the seniority H list prepared under the directions of the Supreme Court in S.L.

S.S.BOIA v. B.D.SARDANA(K.RAMASWAMY,J.) 631

Chopra v. B.D. Sardana's case was challenged in the High Court A which struck down the list. Thereafter, an appeal was filed by the State in the Supreme Court against the order of the High Court in the case State v. B.D. Sardana. The appeal was admitted by the Supreme Court and the operative portion of the judgment of the High Court was stayed: The matter is pending for final decision in B the Supreme Court and meanwhile the seniority list prepared by the State is being operated by Public Health Branch.

2. Meanwhile, consequent to the directions given by the Supreme Court in the case of A.N. Sehgal v. R.R. Sheoran and orders of the C Supreme Court dated 31st march, 1995 in the Contempt Petition filed by R.R. Sheoran subsequently the seniority list had to be redrawn in the case of B & R Branch, which was totally at variance with the manner in which the seniority was drawn up in the case of Public Health Branch. Thus, the directions of the Supreme Court in the case of B & R Branch had created a lot of Administra- D tive problems with certain very junior officers getting undue seniority and becoming senior to the officers under whom they were previously working. This naturally resulted in servere

- groupism and tension. between officers of the department in their day-to-day working. E

3. In order to have uniform rules for all the three branches of Engineering Services and to clarify the position in an unambiguous manner so as to have uniformity and clarity in interpretation, it became necessary to make certain amendments with retrospective F effect. This was possible only by enacting a legislation in this regard. As the Haryana Vidhan Sabha was not in Session, it was decided to achieve the purpose through issue of an Ordinance on 13th May, 1995. The Ordinance replaced the existing rules for all the three branches of the PWD and the common enactment was to govern the service matters of Class-I service of B & R Branch, G Public Health Branch and Irrigation Branch."

As stated earlier, in para 1 of the Statements of Objects and Reasons, reference is made to the judgments rendered by this Court in Sehgal and Chopra's cases and pendency of the litigation in the High Courts and in H

632 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A this Court. Para 2 postulates that pursuant to the orders passed by this Court in the Contempt Petition filed by R.R. Sheoran on March 31, 1995 this Court directed to prepare the seniority list in accordance with the mandamus issued thereunder. It is stated that "thus, the direction of the Supreme Court in the case of B & R Branch had created a lot of B Administrative problems with certain very junior officers getting undue seniority and becoming senior to the officers under whom they were . previously working. This naturally resulted in severe .groupism and tension between officers of, the department in their day-to-day working". Para 3 states that in order to have uniform rules for all the three branches of Engineering Services and to clarify the position in an unambiguous manner so as to have uniformity and equality in interpretation, "it became necessary to make such amendments with retrospective effect. This was possible only by enacting a legislation in that regard". It would, thus, indicate in unmis- takable brazen terms that the reason 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 they wanted to declare the law in unambiguous terms by enacting the Act. Thereby unifor- mity was sought to be achieved with retrospective effect. The attempt of the counsel for promotees and the State of Haryana, to totally ignore the Statement of Objects and Reasons to enacf the law, is impermissible. E Preamble is the key to open the mind of the maker of the law, if the Act read with its Preamble would indicate the object which the Legislature - seeks to achieve in enacting the Act and its intention becomes plain and manifest. It is settled law that if the language in the Act/Section/clause is clear and unambiguous it is not necessary to fall back upon the Statement F of Objects and Reasons of the Act to cull out the intention. Therefore, we need not burden the judgment by citing copious precedents in this behalf.

India is a sovereign, socialist, secular democratic republic. It is axiomatic to reiterate that the preamble, as its integral part, is the basic feature of the Constitution. It assures to every citizen social, economic and G political justice, stated liberties, equality of status and of opportunity with dignity of person to all segments of the society residing in all the States as administrative units of the Union of India in an integrated Bharat. The founding fathers of the Constitution distributed our sovereign power through "We the people of India" among the Legislature, Executive and the H Judiciary.

S.S. BOLA v. B.D.SARDANA[K.RAMASWAMY,J.] 633

In order to achieve fruition of the above goals, as its bastian, the A power of judicial review has expressly been conferred on this Court and the High Courts and the independence to the Judges is secured under the Constitution itself. Democracy and rule of law are two archs of the Con- stitution. Constitutional duties and responsibilities of the constitutional courts and the Judges are enjoined, in terms of their oath taken under the B Third Schedule to the Constitution, to uphold the Constitution and the law and to admidster justice without fear or favour, ill-will or affection. The constitutionalism and rule of law breath and disseminate their vitality through judicial review which is their life-breathe.

The Constitution is the supreme law; the legislature derives the sovereign will of the people to enact the law subject to the Constitution and their powers are derived under Articles 245 and 246 and related Articles read with the Seventh Scheduled and the relevant Entries in the respective Lists I, II and III of the Seventh Schedule to the Constitution. The rule of law, maintenance of the assured fundamental freedoms, the rights and privileges guaranteed as the Fundamental Rights under Chapter III and the Directive Principles of the State Policy under Chapter IV, are pillers to make meaningful the rights to justice, equality of status and of opportunity, and dignity of person assured to every citizen of the country; common citizenship is uniform to all citizens of the country irrespective of their region, religion, race, caste, sex or place of birth or any of them. The fundamental freedoms ar.e' secured to all citizens and each is entitled to ~ ' ' - - - the protection and enforcement according to their needs, avocation, profession etc. Rich and middle class man is entitled to protection of his person and property and right to pursuit of profession, avocation or business of his choice. Poor man is equally entitled to make his right to life, guaranteed under Article 21, meaningful by securing adequate means of livelihood, right to health, education, of residence or shelter etc. which are essential and unavoidable components of life for enjoyment of fundamental freedoms. Therefore, the rights and entitlements vary according to the need and requirement (due to vastness of the country). Regional imbalances hierarchical social structure and division of the people on account of their professing different religions of their choice, or on account of their living in different regions or speaking varied languages and scripts, need to be integrated and social justice and economic empowe!'ment are provided to all weaker sections of the society. H

634 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A In K.artar Singh v. State of Punjab, [1994] 3 SCC 569, a Constitution Bench (to which one of us, K. Ramaswamy, J., was a member) was to consider the constitutionality of the TADA Act. In that behalf, in a separate but partly concurring and partly dissenting judgment, the follow- ing as concurrent, it was held in para 373 at page 715 that the foundation of Indian political and social democracy, as envisioned in the preamble of the Constitution, rests on justice, equality, liberty, and fraternity in secular and spocialist republic in which every individual has equal opportunity to strive towards excellence and of his dignity of person in an integrated egalitarian Bharat. Right to justice and equality and stated liberties which include freedom of expression, belief and movement are the means for excellence. The right to life with human dignity of person is a fundamental right of every citizen for pursuit of happiness and excellence. Personal freedom is a basic condition for full development of human personality. . Article 21 of the Constitution protects the most precious right, viz., D right to life in a civilised society. Liberty, equality and fraternity, the trinity, always blossom and enliven the flower of human dignity. One of the gifts of democracy to the mankind is the right to personal liberty. Life and personal freedom are the prized jewels and Article 19 conjointly assures by Articles 20 to 22 of the Constitution freedom of movement. Freedom can never exist witho11t order. In order that freedom and order co-exist, it E is essential thl!t freedom should be exercised under authority and order should be enforced by authority which is vested solely in the executive.

Fundamental rights are means and Directive Principles are essential ends in a welfare State. The evolution of the State from police State to a p welfare State is the ultimate measure and accepted standard of democratic society which is an avowed constitutional mandate. Ti1ough one of the main functions of the democratic Government is to safeguard liberty of the individual unless its exercise is subject to social control, it becomes anti- social or undermines the security of the State. The Indian democracy wedded to rule of law aims not only to protect the fundamental rights of its citizens but also to establish an egalitarian social order. The individual has to grow within the social confines preventing his unsocial or unbridled growth which could be done by reconciling individual liberty with social control. Liberty must be controlled in the interest of the society but the social interest must never be overbearing to justify total deprivation of individual liberty.

S.S. BOLA v. B.D. SARDANA [K RAMASWAMY, J.] 635

Liberty cannot stand alone but must be paired with a companion virtue-liberty and morality; liberty and law; liberty and justice; liberty and common good; liberty and responsibility, which are concomitants for or- derly progress and social stability. Man being a rational individual has to live in harmony with equal rights of others and more differently for the attainment of antithetic desires. This intertwined network is difficult to delineate within defined spheres of conduct within which freedom of action may be confined. Therefore liberty should not always be an absolute licence but must arm itself within the confines of law. In other words, there can be no liberty without social restraint. Liberty, therefore, as a social concep- tion, is a right to be assured to all members of a society. Unless restraint < is enforced on and accepted by all members of the society, liberty of some must involve the oppression of others. If liberty be regarded a social order, the problem of establishing liberty, must be a problem of organising restraint which society controls over the individual. Therefore, liberty of each citizen is borne of and must be subordinated to the liberty of the greatest number; in other words, common happiness as an end of the society; lest lawlessness and anarchy will hamper social weal and hamper harmony and powerful courses or forces would be at work to undermine social welfare and order.

Thus, the essence of civil liberty is to keep alive the freedoms of the individual subject to the limitation of social control which could be adjusted according to the needs of the dynamic social evolution. Liberty, equality and fraternity are not to be treated as separate entities but a trinity. They form the union in that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality. Equality cannot be divorced form liberty. .Nor can equality and liberty be divorced p from fraternity. Without equality, liberty would produce supremacy of law. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality would not become a natural course of things. Courts, as sentinel on the qui vive, therefore, must strike a balance between the changing needs of the society for peaceful transformation with order and protection of the rights of the citizen. This could be achieved through G securing and protecting liberty, equality fraternity with sociaf justice and economic empowerment and political justice to all citizens only under rule of law.

In His Holiness Kesavananda Bharati Sripadagalavaru v. State of H

636 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A Kera/a, (1973] Supp. SCC 1, a thirteen-Judge Bench (then Full Court) held that separation of powers between the legislature, the executive and the judiciary is also basic feature of the Constitution; the grounds given in support thereof in various judgments were diverse and varied. In Special Reference No. 1of1964 [1965) 1 SCR 413, Chief Justice Gajendragadkar, B speaking for the majority of seven-Judge Bench, upheld judicial review on the anvil of the distribution of the sovereign power among the three organs of the State and express absence of power of judicial review in the Legis- lature; conversely, its conferment on the judiciary as a ground, to exercise judicial review of legislature acts and executive actions. In Minerva Mills v. Union of India, (1980) 3 SCC 625 also, this Court declared judicial review as one of the basic features of the Constitution but reasons again were not uniform. In L. Chandra Kumar v. Union of India, [1997] 3 SCC 216, a seven-Judge Bench (to which two of us, K. Ramaswamy and S. Saghir Ahmad, JJ., were members), speaking through Ahmadi, CJI., surveyed the entire reasoning and pithily put the functional efficacy as main ground, holding that the conferment of the power of judicial review and assurance of security of tenure and the nature of judicial functions, are the formidable grounds for distribution of sovereign power of the people and its location in each of the three organs of the State, i.e. legislature, executive and judiciary as only demarcating lines. It was held that judicial review is the basic feature of the Constitution and is the function of the Constitutional E Courts. The Parliament is devoid of power, by operation of Articles 323A and 323B, to deprive this Court of power of judicial review under Article 32 and the High Courts under Article 226/227. The constitutional Courts, viz., this Court and the High Courts, have fundamental duty and, therefore, they exercise the power of judicial review of legislative Acts, administrative p actions and quasi-legislative orders.

In S.R. Bommai v. ·Union of India, [1994) 3 SCR 1, a nine-Judge Bench of this Court considered the constitutionality of the proclamation of Emergency issued by the President of India exercising the power under Article 356 of the Constitution. In that behalf, one of us, K. Ramaswamy, G J., a member of the Bench, dealt with the power of judicial review of this Court over the constitutional act done by the President. In paras 255 and 256 at page 207, it was held that judicial review is the basic feature of the Constitution. This Court and the High Courts have constitutional duty and responsibility to exercise judicial review as sentinel on the qui vive. Judicial H review is not concerned with the merits of the decision but with the manner

S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.) 637

in which the decision is taken. The exercise of power under Article 356 is A a constitutional exercise of the power of the President. Therefore, judicial review must be distinguished from the justiciability by the Court. The power of judicial review is a constituent power and cannot be abdicated by judicial process of interpretation. However, justiciability of the decision taken by ihe President. is one of exercise of the power by the Court hedged by si:lf-imposed judieial res"traint. It is a cardinal principle of our Constitu- tion that no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution. Its actions are within the confines of the powers given by the Constitution. In para: 257, this Court held that this Court as final arbiter in interpreting the Constitution, declares what the law is. Higher Judiciary has been assigned a delicate task to determine what powers the Constitution has conferred on each branch of the Government and whether the actions of that branch transgress such limitations, and it is the duty and responsibility of this Court/High Courts to lay down the law. It is the constitutional duty to uphold the constitutional values and to enforce the constitutional limitations as the ultimate interpreter of the D Constitution. Judicial review, therefore, extends to examination of the constitutionality of the Proclamation issued by the President under Article

356. In Kihoto Hollohan v. Zachillhu and Others, (1992) Supp. 2 SCC 651, the Constitution Bench, per majority, had undertaken judicial review of Tenth Schedule to the Constitution of its constitutionality and parameters of power of judicial review, though judicial review was expressly excluded. E The minority negated the power to the Parliament to enact the law exclud- ing judicial review. Majority read limitations into it.

It would thus be clear that the constitutional Courts alone are competent and it is their primary constitutional duty to exercise the power p of judicial review to pronounce upon the constitutionality of the Act, Rules and Orders. Judicial review, therefore, is the basic feature upon which hinges the checks and balances blended with hind sight in the Constitution as people's sovereign power for their protection and establishment of egalitarian social order under the rule of law. The judicial review, there- fore, is an integral part of the constitution as its basic structure. G

Though Article 13 of the Constitution is the charter for Judicial Review, Article 32 and Articles 226/227 are the express source under which this Court and the High Court concerned, exercise the power of judicial review. Dr. Ambedkar, the father of the Constitution in his closing rehiarks H

638 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

. A on the Draft Constitution, when asked for , stated that "the soul;' and "heart" of the Constitution lie in Article 32 and mutatis mutandis in Articles 226 and 227 of the Constitution. The reason is that each administrative unit is provided with High Court, but is subject to final decision by Union judiciary, i.e. this Court, in a unity form. The object of judicial review is to maintain constitutionalism and to uphold the constitutionality of the legis- lative Acts, administrative actions and quasi-legislative orders within the confines of the Constitution. It is basically directed against the actions of the State or its instrumentalities.

Democracy is the basic structure. Judicial review stems from federal structure to pass upon constitutionality of legislative or administrative acts either to enforce valid Acts or to refuse to enforce the Acts found uncon- stitutional. Therefore, it is a constitutional mechanism for protecting basic features of the Constitution fundamental freedoms and the rule of law. Judicial review is necessary in a constitutional democracy to maintain the conditions of democratic, sovereignty and as an insurance against the potential abuse of executive or legislative power.

In a parliamentary democracy where constitutional supremacy prevails, Constitution remains a living moral and intellectual force only by judicious exercise of judicial power; the moral and intellectual binding force can be enforced. Judicial review being the arch of democracy and the rule oflaw-life-breathe of constitutionalism, it would succeed in mould- ing the Governmental process and help to regulate the social and economic structure of the society under rule of law. The Legislature derives its authority measured by the Constitution, and they do it within the Constitu- F tional parameters; nothing more and nothing less. The competence of legislature, though flows from Articles 245, 246 and related Articles and legislative heads are desired from relevant Entries in respective Lists of the Seventh Schedule to the Constitution as their fountain source of power, it is subject to the other provisions of the Constitution, i.e., judicial review. So, the constitutionality of the legislative actions and executive Acts should be tested on the anvil of constitutionalism and the ingrained principles. Equity steps in where the law has left yawning gap. In interpreting the constitutional provisions dealing with distribution of powers between the Legislature, the Executive and the Judiciary, neither equity nor equitable considerations play any role much less meaningful role, though ultimately inequitable results may emerge. Application of equitable ·considerations in

S.S. BOLA v.. B.D. SARDANA [K. RAMASWAMY, J.) 639

delineating the spheres of powers between the three organs of the State A would tend to denigrate the constitutional objectives and destroy the Balance and disturb the harmony of power.

By oath, the legislator and the executive solemnly undertake to uphold the Constitution. The legislature and the executive are enjoined by the Constitution to remove social imbalances; reduce social tensions and reorganise social and economic structure of the society by suitable legisla- tive or administrative actions as well as political urges of the time that need attention. If the law made by the legislator is in conflict with the Constitu- tion, it would be obvious that it is no good law and the Constitution has imposed a solemn duty on the judiciary to determine constitutionality and the legality of all laws and executive actions on the touchstone of the Constitution and appropriate principles laid within the parameters of the Constitution itself. The Constitution is enjoined to maintain and preserve harmony between the rulers and the ruled and be a useful instrument to fulfil economic and social needs, adjusting ever-changing social require- D ments by reconciling the conflicting claims of diverse social segments. Judicial review thereby creates harmony between the fundamental law, i.e., the constitution and the legislative enactment. The judicial review in a democracy thus becomes useful instrument embedded in the Constitution for the welfare of the people, social progress and peace and order. E The process of judicial scrutiny of th~ legislative Acts on the touch- stone of the Constitution is technically called "Judicial Review". Its histori- cal and philosophical approach leads to test the enactment of only legal laws based on ethical and rational thinking, which protects and maintains individual liberty and fundamental freedoms, creates social and economic F harmony and has the glorious role of reconciling political imbalances and deny democratic despotism by establishing constitutional balance and jus- tice in the society. The fundamental object of judicial review is to exert a great moral force upon the legislature/executive to remain within the limits of the Constitution and to save· the people from the democratic tyranny. G The Constitution being the supreme, all the organs owe their existence to it. None can claim superiority over the other and each has to function within the four corners of the constitutional provisions and implied limita- tions arise therefroir... Implied limitations built in the exercise of the power is founded upon higher values to enrich the democratic functioning as ~n essential aid to civilised living and existence and as also for smooth trans- H

640 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A actions of business by respective wings of the State. Therefore, implied limitations be sent into the exercise of the powers by all the organs of the - Constitution. To ensure an effective working of judicial review, it is necessary to keep in forefront the history of our Constitution itself, geographical conditions, social structure, economic development, 'social and religious composition of the people of India, the needs of the time, the history of the impugned legislation, necessity of its enactment, the ethical background as well as its social effects, and as also its impact on individual citizens. All these combine to facilitate a right conclusion about the con- stitutionality of law in the process of judicial review. It is always to bear at the back of our mind that where the system of judicial review prevails, it contributes greatly to the constitutional development of the country, social stability and the progress. The legislature has to enact laws forsaken of legislative hibernation and in conformity with the will of the sovereign people, embodied in the Constitution. Legislative Acts which are repugnant to the will of the sovereign people, i.e., which are against the constitutional limitations, restrictions and prohibitions, are void or become violable on a proper declaration of the Court and have no legal sanctity.

The Courts, however, adopt judicial self-restraint in discharging their functions of judicial review in order to maintain harmony between the judiciary, the Legislature and the Executive. The power of judicial review of legislative Acts vested in the High Courts and this Court, must be exercised with wisdom and self- restraint and not in a spirit of cold war between Parliament or State Legislatures and courts. Non-interference with the view of the majority in Parliament with regard to what is reasonable and interference with what is prohibited by the Constitution F may perhaps, be harmonious path for peaceful transition for glorious future. Of course, it cannot be denied that the harmonious working of the Judiciary, the Legislature and Executive would always advance the cause of democracy. In any written Constitution, sovereignty vests in the people as represented by three wings - the Legislature, the Executive, and the Judiciary and no wing can claim supremacy over any other wing. Their G spheres are well defined with balances and counter-balances. When we angulate the pi;oblem in this true spirit and persp~ctive, there may be no occasion for conflict; on the other hand, it would develop mutual respect and harmony in otherwise grueling joints.

H The tradition of judicial self-restraint reqmres some workable

S.S.BOLAv. B.D.SARDANA[KRAMASWAMY,J.] 641

- change. Certain innovations in the scope of judicial review require atten- A fion, and as such, in India, the role of this Court and of the High Courts is that of nation-builders. They have to evolve indigenous and more democratic system of judicial review, which may be helpful in lessening hyper sensitivity and resolve social tensions. The judicial review keeps the law on even keel, enables the citizens of this great democracy to live in a B free and just society with pride and dignity of person; strengthens respect for ·judicial review; creates salutary effect on social weal. Realistic and luminous efforts on the part of our judiciary to articulate the correct perspective with glory would certainly elongate the aspirations of the people. The task of judicial review for constitutional judges is really heavy and onerous, but the working of judicial review with vigilant and searching C mind would greatly lighten the burdens. Unconstitutionality of a statute or executive ·action may arise from violation of principle of distribution of powers or separation of powers; violation or suppression of fundamental rights or freedoms; or violation of some constitutional limitations/restric- tions. D The tendency in the growth and prolixity of the unconstitutional spate of legislation in India, like the Act, unquestionably signifies a matter of great concern and it requires alertness in determination to inculcate the habit of enacting laws in conformity with the Constitution. The supremacy of the Constitution would be vindicated through the process of judicial review.

The founding-fathers very wisely, therefore, incorporated in the Con- stitution itself the provisions of judicial review so as to to maintain the balance of federalism, to protect the fundamental rights and fundamental freedoms guaranteed to the citizens and to afford a useful weapon for availability, availment and enjoyment of equality, liberty and fundamental freedoms and to help to create a healthy nationalism. The function of judicial review is a part of the constitutional interpretation itself. It adjusts the Constitution to meet new conditions and needs of the time. The system of judicial review developed by this Court as final arbiter, has not only a constitutional basis but it has also a philosophical and ethical foundation to maintain democracy and to alert the other wings of the State to abstain from making unconstitutional acts/actions. The vitality of this system stands rooted mostly on our historical perspectives, social and economic vi~w of life of all our people, anci also on the persuasive conscience of the judici;;ry H

642 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A itself. Even Lord A.L. Goodhart, representing the English concept and sentiment of law, has stated in preface to English Law and the Moral Law -- Hamlyen Lectures, 1952 series that where the system of judicial review of legislative Acts does not prevail that law which is divorced from morality, tends to wither and becomes ineffective. Judicial review stands to bring harmony and happiness to the mankind. It seems manifestly clear that for B the ultimate benefit of people the judicial vision in judicial review of legislative and executive acts has necessarily to be wider and flexible for the preservation of liberty and fundamental freedoms to all people, for the growth of the nation, individual culture and civilisation, which are essential to individual's striving and opportunity with stated reasonable restrictions. c Thus, on a pragmatic approach, judicial review is an unavoidable necessity wherever there is a constant danger of legislative or executive lapses, and appalling erosion of ethical standards in the society. The

D absence of judicial review in the Indian Constitution would have created extreme social and economic revolutions leading to the complete annihila- .. tion of democracy and once again loss of sovereignty leading the country into perpetual slavery. We have to make continuity with the past under rule of law as a necessary concomitant to peace and progress and equally put suitable limitations on excessive legislative or executive lapses.

E So long as constitutional democracy prevails, judicial democracy is sure to have a firm stand. The judiciary needs to be firm in its performance of duty and enforcement of the constitutional obligations; and the result of its decision must be towards the ultimate benefit of the nation. The Court , - should always be sentinel on the qui vive as the gnardian of the rights, liberties and fundamental freedoms of the citizens of India. The judiciary cannot forsake its constitutional duty to determine finally the con- stitutionality of an impugned statute/action. India owes its great heritage to America for the modern concept of judicial review. Indian statesmen, foun~ing fathers of the Constitution and the Judges of this Court made the concept of judicial review a living reality to our nascent sovereign, secular, socialist democracy to help the plant of fundamental freedoms grow and ,.. blossom social, economic and political democracy with equal status and dignity of person to all, rich or poor alike to flourish and operate the law on even keel. The. plant of judicial review has grown into a clear vision, more healthy plant by introducing several judicial principles like basic H structUre, and due process of law with protective discrimination in the

S.S.BOLAv. B.D.SARDANA(K.RAMASWAMY,J.] 643

- Constitution itself a viable principles. Judicial review, thus, has a great impact on the social structure of India. It has helped to develop the personal rights of the individual, be it rich or poor, treating them alike as per needs and has strengthened social, economic and political democracy as well. As stated earlier, unbridled individualism and the unbalanced social growth are not healthy signs of the social progress and happiness and peace in the society. They hamper and retard progress and peace. Judicial review has become linking force between the individual and the social interest and political stability and ethical considerations have often been counter-balanced the ultra vires acts by judicial decisions. Judicial review has exerted immensely to raise the level of social morality. Moral and philosophical adjustment is not a mere pious wish, but has foundation on the constitutional sanction and the court has a constitutional obligation in this regard as well. Besides protecting the individual's rights, the court, by upholding the validity of the law, has advanced social and economic progress, agrarian reforms and social justice and economic empowerment. The judges, therefore, are per force judicial statesmen. D

The unconstitutionality of a statute/executive action arises from various constitutional violations such as the violation of the rules of dis- tribution of power, separation of powers, as also from the infringement of fundamental rights and from violation of other constitutional restric- tions/limitations. Various constitutional doctrines have been evolved, which E afford guidance to the court in the scrutiny of unconstitutionality. Thus, judicial review is a moral guarantee wrapped in legal commands. In a welfare State like India, healthy nationalism consists in evolving such socio-economic philosophy for the reconstruction of the society which may be beneficial to the nation and for this the Court is the best adjunct to p filtrate and advance such dynamic principles for developing the nation through judicial review as united Bharat.

In discharging the functions of judicial review, this Court and the High Courts have constitutional duty and obligation to interpret the Con- G stitution to enable all citizens enjoy the rights and fundamental freedoms and foster availment of facilities and opportunities for individual and collective excellence so that nation constantly rises to higher levels of endeavour and achievements; declare the law as unconstitutional if found to be contrary to the Constitution; to protect the fundamental rights and fundamental freedoms guaranteed by the Constitution, maintain and ob- H

644 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A serve federal structure built in by the Constitution and harmonious relationship between the Union of India a.id the States or the States inter se if they go against delegation of essential legislative powers by the Legislature to the Executive; maintain the balance between the Executive and the Legislature; relieve the people from legislative excesses or hyber- nation; maintain harmony between members of society to maintain social order; provide appropriate relief to the citizens by refusing to apply the unconstitutional acts, actions or orders.

The judicial review, thus, alerts the legislature/executive to conform to the constitutional requirements and to avoid constitutional lapses; to act as a check to balance the competing powers without being encroached upon by the other agencies of the State including the Court itself to generate and develop socio- economic structure and to help in the estab- lishment of egalitarian social order; provide equality of opportunity and of status to all citizens on even keel by developing appropriate principles of social engineering and at the same time maintain judicial discipline by .... self-imposed restriction and keep their own power of judicial review within the constitutional parameters. As an essential concomitant, they inculcate faith and confidence in the efficacy of rule of law and enforcement of law and render justice to all citizens justly, fairly within noted equity jurisdic- tion. Law must harmonise social and economic conditions at the given time, E Constitution being the paramount law, and social imbalances and its restructure would be brought about by legislative Acts, administrative actions or quasi-judicial orders for social good in an egalitarian system of governance.

p As stated earlier, the Constitution is founded on ethical considera- tion, high public morality, socio-economic and political urges of the given time. They require alterations for which the Constitution prescribes rights, duties and functions of different governmental organs. Constitution confers powers on each organ of the Government, apart from constitutional com- G pulsions, as moral obligation to obey the limitations and restrictions im- posed by the Constitution. A good and virtuous constitutionalism having moral foundation protects not only fundamental freedoms but also creates a bridge between conflicting interests and becomes a harbinger to the social needs and produces good legislators and good citizens. The constitu- tional Courts as sentinel on the qui vive, therefore, function objectively and dispassionately to correct imbalances and keep check on every wing of the

S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.) 645

• State without trespassing upon the field assigned or powers conferred upon the other wings and at the same time maintain delecate balance on even ) keel.

The question, therefore, emerges; whether the legislature has been invested by the Constitution with power to nullify a mandamus issued by this Court or a High Court by legislative amendment? American B Jurisprudence (2nd Edn.) Section 9 at page 318, deals with the principle of Legislative interference with the judgments of the courts. It is stated that the general rule is that the legislature may not destroy, annul, set aside, vacate, reverse, modify, or impair the final judgment of a court of com- ..... petent jurisdiction, so as to take away private rights which have become c vested by the judgment. A statute attempting to do so has been held unconstitutional as an attempt on the part of the legislature to exercise judicial power, and as a violation of the constitutional guarantee of due process of law. The legislature is not only prohibited from reopening cases previously decided by the courts, but is also forbidden to affect the inherent , attributes of a judgment. That the statute is, under the guise of an act, affecting remedies, does not alter the rule. It is worthy of notice, however, that there are cases in which judgments requiring acts to be done in the future may validly be affected by subsequent legislation making illegal that which the judgment found to be legal, or making legal that which the judgment found to be illegal. In Section 10 at page 319, dealing with "Judgment as to public right", it is further elaborated that "with respect to legislative interference with a judgment, a distinction has been made be- tween public and private rights under which distinction a statute may be valid even though it renders ineffective a judgment concerning a public right. Even after a public right has been established by the judgment of the court, it may be annulled by subseq_uent legislation". .F The question of power of annulment of judgment or order of this Court or of the High Courts by the legislature is no longer res integra. A two-Judge Bench of this Court (to which two of us, K. Ramaswamy and G.B. Pattanaik, JJ., were members) in Indian Aluminium Ltd. v. State of Kera/a, [1996) 7 SCC 637 considered the controversy in extenso. This Court G reviewed the entire case law on the validity of validating Act and laid down nine principles, .culled out from various judgments of this Court, obviating the need to review those cases afresh. The principles as laid down, were set down at pages 662- 63 thus :

(1) The adjudication of the rights of the parties is the essential H

646 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A judicial function. Legislature has to lay down the norms of conduct or rules which will govern the parties and the transactions and require the court to give effect to them :

(2) The Constitution delineated delicate balance in the exercise of the sovereign power by the Legislature, Executive and Judiciary; B (3) In a democracy governed by rule of law, the Legislature exercises the power under Articles 245 and 246 and other com- panion Articles read with the entries in the respective Lists in the Seventh Schedule to make the law which includes power to amend

c the law.

(4) Courts in their concern and endeavour to preserve judicial power equally must be guarded to maintain the delicate balance - devised by the Constitution between the three sovereign functionaries. In order that rule of law permeates to fulfil constitu- tional objectives of establishing an egalitarian social order, the respective sovereign functionaries need free-play in their joints so that the march of social progress and order remain unimpeded. The smooth balance built with delicacy must always be maintained;

(5) rh its anxiety to safeguard judicial power, it is unnecessary to be overzealous and conjure up incursion into the judicial preserve invalidating the valid law competently made;

(6) The Court, therefore, need to carefully scan the law to find out; (a) whether the vice pointed out by the Court and invalidity suffered by previous law is cured complying with the legal and constitutional requirements; (b) whether the Legislature has com- petence to validate the law; (c) whether such validation is consis- tent with the rights guaranteed in Part III of the Constitution.

(7) The Court does not have the power to validate an invalid law or to legalise impost of tax illegally made and collected or to remove the norm of invalidation or provide a remedy. These are not judicial functions but the exclusive province of the Legislature. Therefore, they are not the encroachment on judicial power.

(8) In exercising legislative power, the Legislature by mere decla- H ration, without anything more, cannot directly overrule, revise or

S.S. BOLA v. B.D. SARDANA(K. RAMASWAMY,J.] 647

override a judicial decision. It can render judicial decision ineffec- A tive by enacting valid law pn the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the Court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with B a deeming date or with effect from a particular date. The Legis- lature can change the character of the tax or duty from impermis- sible to permissible tax but the tax or levy should answer such character and the Legislature is competent to recover the invalid tax validating such a tax or removing the invalid base for recovery C from the subject or render the recovery from the State ineffectual. It is competent for the legislature to enact the law with retrospec- tive effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the Court or the direction given for recovery thereof. D

(9) The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law or the Constitution and ihe legislature must have competence to do the same.

All the judgments, except M.M. Pathak v. Union of India, (1978) 3 SCR 334, declared by this Court were found to be either valid or invalid in accordance with law under consideration but the revalidation Act came to be made to remove by employing appropriate language like the doctrine of non-obstante clause, the base upon which the validity of the statute or invalidity of the Act was pointed out in the judgment by way of removal of the defect. The invalidity pointed out in the judgment was suitably removed and law was made revalidating the Act which was made consistent with the law declared by this Court. By that process it nullified the effect of the _,· judgment removing the base or foundation upon which the judgment was rendered. In that altered situation, the Court could not have rendered the previous judgment. There is no decision of any court having upheld the power of the legislature to enact a law making previous decision of the declaration of the law, as was found consistent with the Constitution and H