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

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

A the statutory rule as invalid. The Act is a class by itself and we hope that it finds no companion to its tally ,to seek as precedent by any other legislature to enact the law directly overruling the judgment of the Court.

It is true that definition of the "member" of the service was intro- B duced in Section 2(12) of the Act and an Explanation thereto was supplied which has already been dealt with. Equally, a proviso was added to sub- section (2) of Section 5 which also has been dealt. with. On seniority, Section 12 replacing Rule 12 of the repealed Rules provided two provisos and an Explanation to sub-section (4) which did not find place in repealed Rules relating to Buildings and Roads and Public Health Branches. Their C effect has already been considered and the same needs no reiteration. Even the usual non-obstante clause found in every validating Act does not find place in the Act. The Act itself is not a validating Act for the reason that this Court did not point out any illegality/invalidity in the Rules nor made any declaration as to unconstitutionality of any part of the Rules. As has been seen from the Statement of the Objects and Reasons to the Act, there was no mincing of the words and in unequivocal terms it is stated that the judgments of this Court in Sehgal and Chopra's cases and the order dated March 31, 1995, to be the foundation for alleged disharmony between claiming promotees and claiming direct recruits as if this Act alone finally quenches the disharmony, enacted the law said to be consistent with their good sense of justice. Jn other words, they took no pains to hide that they enacted the law to overrule the judgments of this Court. The question is : can, by any stretch of imagination, it be said that this is the Act for removing the base pointed out in the judgment and validating any invalidity pointed out by this Court? Obviously, no. On the other hand, the true nature and purpose of the Act as revealed by the Statement of Objects and p Reasons is to take away the effect of mandamus issued by this Court and to see that the relief to direct recruits is denied by taking legislative colour. The purported exercise of the power is to ensure their ultimate object, namely, to nullify the judgment of this Court and compliance with the mandamus/directions contained in the judgment by the executive, is un- necessary. G The crucial question, therefore, is : whether such an attempt can be supported on a11y constitutional principle of law? This Court has upheld the power to validate the acts done under a particular provision, largely in fiscal matters. This Court has consistently been of the view as was laid down in Prithvi Cotton Mills Ltd. v. Broach Borough Municipality & Ors.,

S.S.BOLAv. B.D.SARDANA(K.RAMASWAMY,J.] 649

AIR {1970) SC 192. The legislature can exercise its undoubted powers of re-defining the "rate" so as to equate it to a tax on capital value and convert that tax purported to be collected as a rate into a tax on land and building. The principal justification for such revalidation is that the legislature not only equated the tax collected as a tax on land and bnilding which it had the power to levy but also interpreted rate giving a new meaning to the expression 'rate'; while doing so, it put out of action the effect of the decision of this Court to the contrary. The exercise of the· power by the Legislature was thus valid because the legislature does possess the power to levy tax on lands and buildings based on capital value thereof and validating the levy as tax on that base; the implication of the use of the word 'rate' was effectively removed and instead of rate the tax on land and building was imposed. The tax, therefore, can no longer be questioned on the ground that Section 73 of Bombay Borough Act spoke of 'rate' and the imposition was not of a rate as properly understood but a tax on capital value. The ratio in that behalf finds place not only in Indian Aluminum Ltd. case but also in Sada Musa Sugar Works & Ors. v. State of Bihar & Ors., [1996] 9 SCC 681; K. Kannadasan v. State of Tamil Nadu, [1996] 5 SCC 670 D and Com01in Match Industries (P) Ltd. v. State of Tamil Nadu, [1996) 4 sec 281. It is not necessary to traverse the law; nor to go into the facts of all the cases. Suffice 1t to state that all relate to fiscal enactments.

R.L. Arora v. State of Uttar Pradesh & Ors., [1964] 6 SCR 784, related to the validation of the declaration under Section 6 of the Land Acquisition E Act which was declared invalid in R.L. Arora v. State of U.P., [1962] Supp. 2 SCR 149, wherein this Court had held that the Government was devoid of power to publish more than one declaration under Section 6 of that Act. After the amendment of the Principal Act by Amendment Act of 1962, the base on which Section 6 was declared unconstitutional, was removed. That F was upheld by this Court in 1964 since the legislature had the power under the Act to validate the invalidity declared by this Court, by removing the base. After amendment, this Court could no longer declare such a decla- ration to be unconstitutional. Shri Rajeev Dhawan placed strong reliance on a recent judgment of this Court in Meemt Development Authority v. Satbir Singh, (1996] 11 SCC 464, to which one of us, K. Ramaswamy, J. was G

-· a member. Therein, the Land Acquisition Act, the Central Act, was amended by the State Legislature which received the assent of the Presi- dent of India and thereafter the declarations which were found invalid were validated with a non-obsta11te clause. This Court upheld the con- H

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

Shri Rajiv Dhawan further contended that in section 25, the word 'except' should be supplied by employing the doctrine of casus omissus that D the Court has the power to supply that omission to make the Act a consistent whole. In support thereof, he placed reliance on various decisions of this Court, and English Courts viz., Nomes v. Doncaster, {1940) 3 All.E.R. 549; Mis. Pyarchand Kesarimal Ponwal Bidi Factory v. Onkar La.xman Thange & Ors., [1969] 2 SCR 272 and !NU v. Dr. KS. Jawatkar & .:- E Ors., (1989] Supp. 1 SCC 679.

Though in an appropriate case, the Courts adopted the device of supplying the omissions, the doctrine of casus omissus to read the Act to make Act/Section as a consistent scheme of the Act, on the facts in the case, the ratio becomes inapplicable. The reason is obvious. The legislature did not intend to introduce exception in view of the fact that they cannot directly overrule the decisions in Sehgal and Chopra cases. So, what they cannot directly do, cannot indirectly be allowed to be done. When such being the case, the Court cannot compound the camouflage by supplying the so called omission deliberately omitted by the legislature. It is not an unintentional one. It woulci appear from the joint signatures of the Chief Minister. and the Law Secretary on the statement of objects and reasons, •.._ which is a strange feature, they were in dilemma and caught two horns of unwealdy bull and no one was singly prepared to share the responsibility. In that bacakdrop scenario, the so called omission, if suggested 'except' is not an accidental slip. In the smithy of ironing the creases, we cannot

S.S.BOLAv. B.D.SARDANA[KRAMASWAMY,J.] 651

straighten it as it became too hard to meddle, whatever would be the consequence of the use of the word 'except' in Section 25.

In Madan Mohan Pathak&Anr. v. Union of India & Ors., AIR [1972] SCC 50, Section 49 of the LIC Act, empowers Central Government to make regulations consistent with the provisions of the Act. Regulation 58 B empowers the Corporation to grant non-profit sharing bonus to its employees subject to such directions as the Central Government may issue pursuant thereto. Several settlements were effected with the Union of the employees. One of the settlements dated January 24, 1974 was for payment of bonus to class-III and class-IV employees and grant of bonus also was approved by the Central Government. Since payment was not made which C is in violation of Section 18(1) of the Industrial Disputes Act, the employees filed a writ petition for a declaration and direction. The High Court had held that non-implementation violated settlement and direction was given for payment of the bonus. An appeal was preferred against the judgment to the Division Bench of the High Court and was pending. The D LIC (Modification and Settlement) Act, 1976 was enacted. The LPA was dismissed as withdrawn. The writ petition was filed under Article 32 impugning the validity of the 1976 Act which would take away the effect of the writ of mandamus dated May 2, 1976 issued by the High Court against the LIC. Per majority, Justice Bhagwati, speaking on behalf of himself V.R. Krishna Iyer and D.A. Desai, JJ. held that if the contention E of the Union stood accepted, there was a little doubt, subject, of course, to the constitutional challenge to the validity of the impugned order that the judgment of the learned single Judge would have been set aside on the basis of altered law and the writ petition got dismissed by Division Bench of the High Court. p

Bhagwati, J. pointed out that it is significant to note that there was no reference to the judgment of the Calcutta High Court in the Statement of Objects and Reasons, nor any 11011 obstante clause referring to a judg- ment of a court found in Section 3 of the impugned Act. The attention of G the Parliament does not appear to have been drawn to the fact that the Calcutta High Court had already issued a writ of mandamus commanding the LIC to pay an amount of bonus for the year 1st April, 1975 to 31st March, 1976. It appears that unfortunately, the judgment of the Calcutta High Court remained almost unnoticed and the impugned Act was passed in ignorance of that judgment The settlement became enforceable by the H

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

A writ or mandamus granted by the judgment and is not based on settlement to annual cash bonus. This right under the judgment was not sought to be taken away by the impugned Act. The judgment continued to subsist and the LIC is bound to pay annual bonus to Class-III and Class-IV employees in obedience of the writ of mandamus. The error committed by the LIC was that it withdrew the LPA and allowed the judgment of the learned B single Judge to become final. By the time the LPA came up for hearing, ~ the impugned Act had already come mro force and the LIC would have successfully contested the LPA. If such a contention had been raised, there is a little doubt, subject, of course, to any constitutional challenge to the validity of the impugned Act that the judgment of the learned single Judge c would have been up turned down and the writ petition dismissed. But on account of some inexplicable reasons, which is difficult to appreciate, the LIC did not press the LPA and the result was that the judgment of the learned single Judge granting writ of mandamus bC?came final and the LIC is not absolved from the obligations imposed by the judgment to carry out a writ of mandamus by relying on the impugned Act. Beg, J. (then, Chief D Justice) concuning with the above learned Judges had held that the rights of the citizens under the settlements passed into the judgment and the settiement became basis of a mandamus from the Court. It could not be taken away in indirect fashion by enacting some ordinary Act of Parlia- ment. E This Court, therefore held that by reason of the factual or legal situation, the judgment was not rendered ineffective. So long as the judg- ment stands, it must be obeyed by the LIC. "We are, therefore, of the view that anything irrespective of the validity upon, the LIC is bound to obey that writ of mandamus issued by the High Court and to pay the bonus in terms of settlements." Beg. Chief Justice aggreeing with the three learned Judges in para 27 at page 84, it was held that it would be unfair to adopt legislative procedure to undo settlement which had become the basis of the decision of the High Court. Even the legislature can be the basis of a decision to do it, by an alteration of general rights of the class but not by simply excluding those specific settlements between the Corporation and its employees from the purview of Section 18 of the the Industrial Disputes ....... Act which had been held to be non-violative ·and enforced by a writ of mandamus issued by the High Court. Such a selected exclusion would also affect Article 14. Y.V. Chandrachud, J. (as he then was) speaking for himself, S. Murtaza Fazal Ali and P.N. Shinghal, JJ. did not express any

S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.] 653

- opinion on the constitutional invalidation but upheld the majority view on the ground that the writ of mandamus issued by the High Court has not violated the provisions of Article 31(2) of the Constitution. In Janapada · Sabha, Chhindwara Etc. v. The Central Provinces Syndicate Ltd. & Anr. Etc., [1970] 3 SCR 745, a Constitution Bench of this Court was called upon to consider the constitutionality of an Act making the earlier decision of the B Court invalid. In 1935, the Independent Mining Local Board, Chhindwara was constituted. It resolved to levy cess on coal extracted within its area at 3 pies per ton. The sanction of the Local Government as required by Section 51(2) of the C.P. Local Self Government Act, 1920 was not ob- tained before levy. So, it was declared invalid. The validity was challenged and this Court in appeal held that increased levy was unconstitutional. C Thereafter, the State legislature enacted Madhya Pradesh Koyala Upkar (Manyatakaran) Adhiniyam, 1964 and validated the levy. On a writ petition filed under Article 32, a Constitution Bench of this Court had held at page 751 thus: D "On the words used in the Act, it is plain that the Legislature attempted to overrule or set aside the decision of this Court. That, in our judgment, is not open to the Legislature to do under our constitutional scheme. It is open to the legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the Legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in the matter brought before it shall be deemed to be ineffective and the inter- pretation to the law shall be otherwise than as declared by the Court. That judgment was binding between the parties and also by virtue of Article 141 binding on all Courts in the territory of India. The Legislature could not. say that the declaration of law was either erroneous, invalid or ineffective either as a precedent. or between the parties."

In State of Tamil Nadu & Anr. v. M. Rayappa Gounder & Ors., [1971) G 3 SCC 1, a Bench of three Judges considered the validity and effect of the Madras Entertainments Tax (Amendment) Act, (20 of 1966) and declared it invalid insofar as it attempted to validate invalid assessments without removing the basis of its invalidity. It was held that Section 7 did not change the law retrospectively. The effect of the provision is to overrule the H

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

A decision of the Madras High Court and not to change the law retrospec- tively. What the provision say is that notwithstanding any judgment of the Court, the assessment invalidly made must be deemed to be valid. The - Legislature has no power to enact such a provision. The appeal, therefore, was dismissed.

B In Municipal Corporation of the City of Ahmedabad, Etc. v. New Shorock Spg. & Wvg. Co. Ltd. Etc., [1971] 1 SCR 288, a Bench of two Judges was to consider the validity of Section 152A of the Bombay Provincial Municipal Corporation Act, 1949. The appellant had assessed the immov- able properties of the respondents to property tax under the Act which was declared invalid. Amendment Act titled "the Bombay Provincial Municipal Corporation (Gujarat, Amendment) Act, 1968" was passed introducing Section 152A which was not brought to the notice of the Court at the time when the decision was rendered in the first instance; but when a demand was made for refund of the amount, it was justified on the ground that the demand for refund was invalid under Section 152A. That the purport of Section 152A was the tax calculated would be retained but interest would be paid thereon to the assessee. By operation of sub-section (3) of Section 152A, the Corporation refused to refund the amount illegally calculated, despite the orders of the High Court. When an appeal was filed, this Court stated that it made a direct inroad into the judicial powers of the State. E The legislature under the Constitution has, within prescribed limits, power to make laws prospectively as well as retrospectively. By exercise of those powers the legislature can remove basis of a decision rendered by a competent court and thereby render the decision ineffective. But, no legislature in this country has power to ask the instrumentalities of the State p to disobey or disregard the decisions given by courts. Section 152A(3), therefore, was held repugnant to the Constitution.

In l.N. ·saksena v. The State of Madhya Pradesh, [1976] 3 SCR 237, the appellant, a District Judge, challenged his compulsory retirement. The G Memorandum issued by the Governor, empowered the Government to retire a Government servant, on his attaining the age of 55 years, though the age of superannuation was 58 years, raised under the statutory rules issued under proviso to Article 309 of the Constitution. No provision was made in the Rule to retire the Government servant on his attaining the age of 55 years by way of compulsory retirement. Since he was retired at the age of 55 years, he challenged the order of compulsory retirement by filing

S.S.BOLAv. B.D.SARDANA[KRAMASWAMY,J.] 655

a writ petition in this Court. It was held that the appellant will be deemed to have continued in service of the Government in spite of the order. However, since he attained the age of superannuation in the meanwhile, no direction for reinstatement was issued. It was, however, held that he was entitled to the consequential benefits. An Ordinance, followed by an Act of legislature was made and validated the retirement of certain Govern- ment servants including the appellant, despite the judgment of this Court. B validation Act was made with retrospective effect w.e.f. March 1, 1963 and it empowered the Government to retire a Government servant on .his attaining the age of 55 years. The appellant again filed a writ petition in the High Court which was dismissed. But, on appeal, a Bench of four Judges of this Court held that the Act gives naked power to the authorities C to retire any employee after his attaining the age of 55 years without providing any guidelines for the exercise of the power. The impugned Act was held ultra vires the Constitution since it seeks to validate the retirement of the appellant. In doing so, the legislature has overstepped the limits of the legislative power. Even on proper construction of the Act, the Act did not vacate the decree of this Court. D

In Ex. Capt. KC. Arora & Anr. v. State of Haryana & Ors., [1984) 2 SCC 218, a Bench of three Judges of this Court was to consider the retrospective amendment of the service law. Under the Punjab Govern- ment National Emergency (Concessions) Rules, 1965 a right was accrued E to the appointment and seniority. Subsequently, the Haryana Government, by a notification dated March 22, 1976, amended Rule 2 with retrospective effect restricting benefit of Military Service upto June 10, 1968, the date ) on which the emergency was lifted, with the result that the rights which accrued to the .petitioner in 1969-70 and 1971 had been taken away. F Considering the question in para 15, it was held that a provision which touches a right in existence at the passing of the statute is not to be applied retrospectively in the absence of express enactment or necessary intend- ment. The Governor can also exercise the same powers under Article 309 of the Constitution and there was not the slightest doubt that the impugned amendment brought in had been made retrospective. The legislature is . G ,.• undoubtedly competent to legislate with retrospect effect, to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the dos and don'ts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. The law must satisfy the H

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

A requirements of the Constitution. Taking into account the accrued or acquired rights of the parties today, the law cannot say that 20 years ago, the parties had no rights. Therefore, the requirements of the Constitution will not be satisfied if the law is dated back to 20 yeMs. We Me concerned with today's rights and not yesterday's. A legislature cannot legislate today with reference to a situation that obtained 20 yeMs ago and ignore the march of events and the constitutional rights accrned in the course of the 20 years. That would be most arbitrary, unreasonable and a negation of history. (Emphasis supplied). Today's equals cannot be made unequal by saying that they were unequal 20 years ago and we will restore that position by making a law today and making it retrospective. Constitutional rights, constitutional obligations and constitutional consequences cannot be tampered with that way. A law which, if made today, would be plainly invalid as offending constitutional provisions in the context of the existing situation; it cannot become valid by being made retrospective. Past virtue (constitutional) cannot be made to wipe out present vice (unconstitutional) D by making retrospective laws. The Court was, therefore, firmly of the view that the Gujarat Panchayats (Third Amendment) Act, 1978 was unconstitu- tional, as it offended Articles 311 and 14 and was arbitrary and un- reasonable.

E In State of Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors., [1983] 2 SCC 33, prior to the Amendment Act, 1978 by operation of the Panchayat Act, the ex-member employees were allocated to the Panchayat service. The Secretaries, officers and servants of the Gram and Nagar Panchayat had, achieved the status as Government servants. Subsequently, 1. the Act was amended to restitute the former municipal employees to the status of Gram and Nagar Panchayat Employees. A Constitution Bench was to consider whether such an amendment was valid in law. This Court held that once they had achieved the common stream of service to perform the same duties, it is clearly not permissible to make any classification on the basis of their origin.- Such a classification would be unreasonable and entirely irrelevant to the object sought to be achieved. It is to navigate around these two obstacles of Article 311 and Article 14 that the amending Act was sought to be made retrospective, to bring about an artificial '" situation as if the erstwhile municipal employees never became Govern- ment servants. This Court put a question thus : "Can a law be made to destroy today's accrued constitutional rights by artificially reverting to a H situation which existed 17 years ago? The answer was no." ·

S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.) 657

--'.r These two decisions relied on by Shri Rajendra Sachhar, learned A senior counsel for the direct recruits, are apposite to the points in con~ troversy and be applicable to the facts of this case, though these passages were not relied on. Since the lllandamus issued by this Court became final and the dedaration of law is. consistent with the statutory Rules, any amendment to the Act with retrospective effect cannot take away the effect B .... of the manda!llUS and the Act is unconstitutional and impermissible and a legislative judgment is a trespass into the judicial review; which it is not \ vested in the legislature; the working of the legislature has to be confined within the parameters set by the Constitution. It cannot indirectly say that. Courts in exercise of power of judicial review under Articles 32 and 226 of the Constitution or under appellate jurisdiction of this Court under Article c 136 of the Constitution created inequiteous results and resultantly acted to remove injustice arisen from the judgment of the court to the promotees ..

In State of Haryana & Ors. v. Kamal Co-operative Farmers' Society Ltd. & Ors., (1993) 2 SCC 363, this Court considered the validity of the Punjab Village Common Lands (Regulation) Act, 1961 considered and held that Shamllat deh land was not vested in the gram panchayat. By the Amendment Act, 1980 Sections 3, 4, 5 and 7 and proviso to Section 7(1) and new Sections 13-A to 13-D were amended/introduced into the prin- cipal Act with retrospective effect. A Bench of two Judges of this Court was to consider the object of the Act, the effect of the legislative judgment on the judicial verdict ·and held that under Articles 245 and 246 the legislature was not competent to declare any earlier decision as invalid or not binding. It was held that the power of the amendment, though may be exercised prospectively, but it cannot be made retrospective to render ineffective an earlier judicial decision by removing or altering or neutralis- ing the legal basis in the unamended law on which such decision was founded, even retrospectively. The effect of such a law is to declare an earlier judicial decision as invalid or not binding for such power, if exer- cised, would not be a legislative power but a judicial power which cannot be encroached upon by the Legislature under our Constitution.

In the matter of Cauvery Water Disputes Tribunal; (1993] Supp.1 SCC G ..• 96 a Constitution Bench was to consider the validity of the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991. The Constitution Bench had held that the Central Water Board constituted under Inter State Water Disputes Act, 1956 issued interim awards directing Karnataka State to release the water to Tamil Nadu, the lower riparian State. Though, thai If

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

A order could have been nullified in appeal under Article 136 to this Court, the Legislature of Karnataka had no power to nullify the order of the Water Board. It amounts to interference with the judicial power of the Court vested in ,the Board. The reference on other point was also answered accordingly.

B In S.R. Bhagwat & Ors. v. State of Mysore,[1995] 6 SCC 16, the employees working in the Forest Service as Deputy Conservators of Forests e::: were governed by the Mysore State Civil Services (Regulation of Promo- tion, Pay and Pension) Act, 1973. They challenged violation of their right ,. on the basis of Section 115 of State Reorganisation Act since they were employees of former State of Hyderabad, claiming that their rights arose under the Hyderabad Civil Services Regulations. The High Court had upheld their right, but the Karnataka Civil Services (Regulation of Promo- tion, Pay and Pension) Act was amended with retrospective effect. The question arose: Whether the legislature was competent to validly invalidate the decision of the Court under the exercise of the power of judicial review? This Court exercising the power under Article 32 of the Constitu- tion declared the law invalid, holding that the order of mandamus was sought to be nullified by the impugned legislation which is clearly imper- missible legislative exercise. This is also an answer to the proposition relied on by Shri Rajeev Dhawan, i.e. not to rely on Statement of objects and Reasons, as held at page 25 on Statement of Objects as under : E "A mere look at the third and fourth paragraphs of this preamble shows the legislative intent to bypass the final directions contained in,the Division Bench judgment of the High Court."

Keeping in view the aforesaid key to the passing of the Act, the Court F proceeded to examine the relevant provisions of the Act and held it to be invalid.

In Delhi Cloth & General Mills Co. Ltd. & Anr. v. State of Rajastllan Ors., (1996] 2 SCC 449, the State of Rajasthan issued a notification under & G Section 7(1) of the Rajasthan Town Municipalities Act, 1951, proposing to extend the limits of the Kota Municipality so as to include within its limits Raipura village. The provisions of Rajasthan Municipal Act, 1959 relating to the power of delimitation of the municipalities was questioned. The High Court declared that the requirement of the law was not met in dealing with the municipalities and extending limits of the Kota municipalities under that Act; subsequently, Kota Municipality Limits Extension and Validation

S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.) 659

Act was passed. Section 3 of the validating Act, with a non-obstante clause contained in Sections 4 to7 of the 1954 Act, took away the effect of any judgment, decree or order or direction of any other Court in the matter of extension of the limits of Kota municipality to include Raipura and Um- medganj so that they could be deemed always to have been continued to exist within the limits of Kota Municipality. This· Court considered its validity and held that the defect pointed out by the .Court was not validly removed by the validating Act, which is an essential requisite for passing a validation Act. It was, accordingly declared as invalid by a Bench of three Judges. In Peddinti Venkata Muraliranganatha Desika Iyengar & Ors. v. State of A.P. & Anr., [1996) 3 SCC 75, this Court was to consider the con- stitutionality of Section 76 of AP. Charitable and Hindu Religious Institu- c tions and Endowments Act, 1987. The question that arose was whether the legislature, by a side wind, without suitably amending the Inams Abolition Act, as interpreted by the High Court, or repealing it, could directly nullify the said law laid by the court and divest, under Section 76 of the Act, the vested right and declare that the land was not covered by the said ryotwari patta or shall not be transferred or shall be deemed never to have been ·D t~ansferred thereunder and would treat such persons as encroachers? "Religious endowments" is defined under Section 2(22). A Bench of two Judges, (to which one of us K. Ramaswamy, J. was as a member) had declared the said provisions ultra vires the power of the Legislature though the legislature was competent to enact the law. The foundation on the basis E of which the Raiyatwari Patta was granted under Inam Abolition Act was not admittedly removed. Law was enacted to take away the vested rights by a side wind. Accordingly, exercise of the legislative power under Section 76 read with Explanation II of Section 2(22) of the Act was held uncon- stitutional. In K. Sankaran Nair (Dead) through LRs. v. Devaki Amma Malathy Amma & Ors., [1996) XI SCC 428, the Kerala Land Reforms Act, F 1963 barred creation of leases. A judgment was rendered by the Court declaring that such leases were invalid and that the tenants did not acquire any right thereunder. Section 6-C was introduced by Kerala Land Reforms (Amendment) Act, 1979 with effect from 7.7. 1979. The Same came to be questioned and this Court had held that Section 6-C could not be pressed into service by the original appellant for displacing the binding judgments G rendered by the Tribunal, the High Court and the Supreme Court in the earlier tenancy proceedings wherein his claim for tenancy of the suit land had come to be repelled and those judgments became final and binding and were not in any way legally displaced by any competent piece of legislation by the Kerala Legislature. H

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

A A further resume of these precedents would firmly lay the tests that the legislature has power to alter the language in the statute by employing an appropriate phraseology; to put up its own interpretation inconsistent with that put up by this Court in an earlier judgment on the basis of pre-existing law; and to suitably amend or alter the law removing the base on which the previous decision was founded. In the altered structure of the B c statute, the Court in the first instance, had that phraseology been available on the statute, the Court could not have declared the Act as invalid or otherwise of the previous law. Thus, the previous law was rendered as invalid was made valid and ineffectual and the consequential executive action, unenforceable. c In suitable cases, giving retrospective effect to such validating law was permissible by legislative exercise of the power; this Court accepted the retrospective validation in fiscal statute and rarely in other laws relating to procedural facets in the respective legislative Entries in Lists I, II and III of the Seventh Schedule to the· Constitution and rarely in areas of divesting vested rights had under the judgment. But all the decisions related to retrospectively declaring and validating by legislation as valid law by removing the base and of the 'declaration of an invalid law as valid and make the base of removal as legal. In no case a valid declaration of law was attempted to be made invalid or illegal by retrospective legislation. In some cases, the Court upheld the power of making even a fresh legi~lation provided .the law was made removing the base as pointed out in the previous judgment which would no longer be available for future applica- tion and given prospective operation. Such law was made to apply to future cases. The rights acquired or accrued or the benefits accrued under such declaratory law were not taken away except in fiscal statutes or on some procedural aspects of dealing with the rights of the parties. It is equally settled law that no one has vested right in procedure.

In Ex. Capt. KC. Arora's case and Raman Lal Keshav Lal Soni's case, this Court did not approve of retrospective legislation to take away vested rights which accrued over 20 to 17 years prior to validation; this Court G pointed out that a deeming fiction cannot be set on foot to set at naught a situation existing over the years. Legislature is competent and has power fo render a decision ineffective by fundamentally altering the character of law curing the defects pointed out in the previous decision and give it retrospective operation. If the legislation is otherwise constitutional and within competence, legislature can remove the defects but not have power to directly adjudicate it.

S.S.BOIAv. B.D.SARDANA[K.RAMASWAMY,J.] 661

- It is seen that in Sehgal and Chopra's cases, this Court had- issued mandamus directing the State Government to prepare the seniority list inter se between the direct recruits and the promotees in accordance with the repealed statutory Rules as interpreted in the judgments which became final and B.D. Sardana, one of the respondents, in Chopra's case in whose favour a direct mandamus was issued for compliance. The rights to the parties are founded on declaration of law under Article 141 and mandamus · \ and consequential directions to inter parties. The Statement of Objects and Reasons and the Preamble to the Act do clearly indicate a brutal frank admission that attempt was to overrule the judgment of this Court by amending Section 2(12)(c) and introducing an explanation thereto by amending Section 5(2) with a proviso added thereto and Section 12 for preparation ·of the seniority. As seen earlier, this Court did not find any provision of the Rules ultra vires, though the observation came to be made that normal rules of service jurisprudence of continuous length of service were not followed in the r~pealed Rules relating to Buildings and Roads and Public Health Branches of the Service. That observation c~"not be torn of the context with an an attempt to overrule the judgment. It renders the previous litigation and resulted judgment fruitless. The mandamus or direction remains a right embedded in the judgment like an ornament without reaping fruit thereof. The retrospective legislation alters the seniority position and starts replay by redoing promoting once over. This exercise gets repeated time and again as soon as a judgment is rendered playing havoc with the service. The officer would never know his real position in seniority committing him to political masters rather than the Constitution and rule of law and judicial review. Therefore, the Amend- ment Act is a din:ct affront to the mandamus issued by this Court. Though a facade of attempt was made to ~emove the base, the real result of the legislation was to set at naught the effect and direct result of the mandamus issued by this Court. Therefore, it is impermissible by a legislative judgment to render the mandamus issued by this Court ineffective and valid decla- ration of law to become illegal. Therefore, by an indirect side track, the legislature ~ot take away the effect of the mandamus. G It is true, as contended by Shri Rajeev Dhawan, that the legislature is entitled to put up interpretation different from the one taken by the Court; the legislature can by employing appropriate and suitable phraseol- ogy, remove the base on the altered situation which the Court did not find in the statute existing at the time; otherwise, the Court would not have H

662 SUPREME COURT REPORTS [1997} SUPP. 2 S.C.R.

A rendered the firstjudgment and would not have taken that view in the judgment at that time. Such an alteration or removal of the base by legislative amendment certainly is permissible. But such an attempt must - not be a colourable attempt to trench upon the judicial power. This Court in Prithvi Cotton Mills case and recently in lndain Aluminum and Meernt Development Authority cases etc. pointed out that the legislature, some- B times, may give its own meaning and interpretation of the law in the legislative field of action and make the new meaning binding on the Courts. But the legislature in its colourable exercise of legislative power again cannot trespass into, or encroach upon the power of judicial review express- ly conferred on this Court and the High Courts, so as to give a different meaning and directly overruled the binding decision. The Court can take into account the real consequences while judging the width of the power nor can the court ignore the consequences flowing from particular con- struction ascertaining the limits of the provision that granted the power. It is seen from the record, that apart from the Statements of Objects and Reasons, specific stand was taken by the Government in the counter affidavit filed in the High Court in the writ petition and the Financial Commissioner in his order while determining the inter se seniority, had expressed himself that the interpretation in Sehgal and Chopra's cases created iniquitous situation favourable to direct recruits creating heart- burning among the promotees. That would indicate that brazen attempt was made by the executive to mask their stand through legislative inter- E vention. The legislature did not adopt a proper device in enactment of the Act and we have no doubt that had it been brought to the notice of the legislature that the impact of the Act would lead to conflict between judicial review and legislative judgment, as stated hereinbefore, legislature would not have found it expedient or attempted to enact the law to deflate p the mandamus making it ineffective and rendered the correct declaration of law as illegal. Such an attempt has never come across in any of the decisions decided previously. As stated earlier, perhaps this case may stand as a class by itself without any companion to its tally.

It is true that this Court with a view to sustain the validity of the G validation Act applied in some cases, the doctrine of pith and substance and in some cases of incidental or ancillary and subsidiary power to validate the law declared invalid by this Court. The Federal Court in State of U.P. v. Fazal Begum, AIR (1941) FC 16 and this Court in Smt. Yadav v. Municipal Committee, Kadaya, AIR (1961) SC 1487 at 1490, para 10 and host of other decisions, many of which have been considered in Indian H Alluminium's case, upheld the validation Act on the principles of ancillary

S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.) 663

-- and subsidiary power of the legislature to deal with a particular subject specified in the respective lists of the Seventh Schedule. But che said power cannot be used to directly nullify the declaratory law made by this Court in exercise of the power of judicial review to make a specific direction or a mandamus which has become final, ineffectual unless its invalidity, as has been pointed out in earlier judgment/order, is properly removed by employing appropriate language so as to make a new law. Such power i~ generally given in fiscal statutes and cases of exceptional nature but not otherwise to trench upon the power of judicial review in which event it would create disillusionment to a successful litigant or inculcate in him apathy in the efficacy of rule of law and the judicial process. The writ of mandamus or other directions merely remain a pious platitute to rule of law or profligacy to avail of power of judicial review. Care and circumspec- tion should always be taken to clearly demarcate the line between validat· ing legislation removing the base on which the foundation of the previous judgment rests and the Act which clearly, through colourable attempt of removing the base, renders the judgment ineffective or illegal, the writ of mandamus or direction issued by the Constitutional Court by legislative fiat.

Here, we may point out that if the legislature finds that the declara- tion of law by this Court/High Court is not consistent with the public policy envisaged in the Act and the interpretation stems to defeat the public interest or public justice certainly the legislature would be entitled to formulate its legislative policy consistent with the constitutional scheme and enact the law/amend even the law declared by this Court. But such an " enactment must be applicable prospectively and not to the cases which have become fmal and the rights having accrued to the parties for long under the judgment cannot be taken away except in the cases of fiscal statutes or cases relating to procedural facets of the Act. For instance, in llldra Sawhney v. Union of India, (1993] Supp. 3 SCC 217, this Court interpreted Article 16 and held that the word 'employment' would not include 'promotion' and reservation in promotion upheld in Rangachari's case and followed in other cases was declared unconstitutional. Those cases were overruled but simultaneously suggestion was made to the legis- G lature to enact suitable law within five years from the date of the judgment. I The Constitution (77th Amendment) Act, 1995 was enacted introducing Article 16(4A) expressly empowering the State to make any provision for reservation in matters of promotion in any class or classes of posts in the service under the State in favour of Dalits and Tribes which in the opinion. of the State are not adequately represented in the service under the State. H

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

A Such prospective legislation is always permissible but retrospective legisla- tion, thereby, is clearly illegal.

Shri Rajeev Dhawan contended that the law enacted by the Haryana Legislature is in substance and in reality is a law on the subject of regulating the service conditions of the officers of respective Branches of B Haryana Service of Engineers, Class-I, PWD. No motives or ma/a fides can be attributed to the Legislature. There is a presumption in favour of the constitutionality of the statute. The Legislature would be colourably exer- cising the power if it seeks to do indirectly what cannot be done directly. Therefore, it is fraud neither on· power nor on the Constitution, nor a C colourable exercise of the power seeking to overturn the judicial interpreta- tion given by this Court. We find no force in the contention. In T. Venkata Reddy & Ors. v. State of Andhra Pradesh, [1985) 3 SCC 198 at 211, para 14, this Court had held that no ma/a /ides can be attributed to the legislature. Equally, it is settled law that there is a presumption in favour of the constitutionality of a statute as held In V.M. Syed Mohammad & Co. v. The D State of Andhra Pradesh, [1954) SCR 1117 at 1121 and bead roll of prece- dents grown around it; the same need no reiteration.

The doctrine of incidental power is founded upon the principle that in a case where on the face of a statute, it appears that the legislative subject falls both in the Union as well as the State List. But on a careful scrutiny it becomes clear that it falls merely incidentally in one List but substantially in another List, to relieve the statute from its invalidity or unconstitutionality, this Court founded the principle of incidental power. However, it cannot be regarded as the case of substantial encroachment trespassing into another field. The incidental or initial encroachment, therefore, means that in enacting a legislation, the legislature has not traversed beyond the legislative field allotted to it by the arrangements of distribution of powers in the respective Entries in the concerned List in the Seventh Schedule. There has been merely incidental encroachment on the federal/State power of the respective legislature in the respective Lists, but such incidental encroachment does not affect the main scheme of the distribution of the powers in the Seventh Schedule. It is not concerned with the repository of power granted to the legislature under Article 245 or Article 246 or related Articles in that behalf.

Colourable legislation would emerge only when a legislature has no power to legislate on. an item either because it is not included in the List H assigned to it under the respective Entries in the Seventh Schedule of the

S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.] 665

Constitution or on account of limitations imposed either under Part III of the Constitution relating to Fundamental Rights or any other power under the Constitution. As the legislature enacts a statute on an assumption of such power, but when on examination, if it is found that it has travelled beyond its power or competence or in transgression of the limitations imposed by the Constitution itself, such an enactment is called a colourable legislation. It has reference only to the legislative incompetence and not to the power as such. If the legislature enacts law in the pretext of the exercise of its legislative power, though actually it did not possess such power, the legislation to that extent becomes void as the legislature makes its Act only in pretence of and in purported colour able exercise of its power. c The doctrine of fraud on power means that the legislature really has the power but does not exercise that power. It merely pretends to have exercised the power. In the eye of law, such an Act is not a law at all. But it is a mere pretence of law and the Court will not take notice of such law. The doctrine of fraud on the Constitution is altogether a different facet and a serious charge. It would mean that when there is· a constitutional restriction or prohibition to make a legislative enactment but the legislature in spite of the prohibition and restriction makes such law, it is a fraud on the Constitution. Therefore, the distinction between the fraud on power and the fraud on the Constitution is clear and unambiguous. The doctrine of fraud on power cannot be confused with the doctrine of the fraud on the Constitution. The principle of fraud on power is applicable when the legislature has power to enact but does not exercise that power as elucidated above. On the other hand, the doctrine of fraud on the Con- stitution means that when the legislature has no power and in spite of the constitutional limitation or prohibition, it makes enactment in pretence of its power. It would therefore, be necessary to examine each of these concepts in the light of the related subject, the legislative history, the respective Entries in the concerned Lists of the Seventh Schedule and the power of the legislature.

As stated already, the legislature of Haryana does have power to G I • make a law either under Article 309 or under Entry 41 of List II of the Seventh Schedule to the Constitution to regulate the recruitment and conditions of service of its employees. It is seen that the substantive power is under Article 245(1) but the exercise of the power therein is subject to the Constitution. It is already seen that in Chapter IV of Part V of the H

666 SUPREME COURT REPORTS (1997] SUPP.~ S.C.R.

A Constitution, "the Union Judiciary" and in Chapter V of Part VI, all "the High Courts of the States" are the sources under which this Court and the ' High Court came to be constituted and the Judges are appointed under Article 124 or Article 217; the conditions of service of the Judges appointed under the respective Chapters are secured subject to the only power of removal under Article 124(6) and the Rules made therein and in accord- ance with the procedure laid down therein or to regulate the aberations of the conduct with "in house procedure" as was held by this Court in C. Ravichandran Iyer v. A.M. Bhattarcharjee, (1995] 5 SCC 457. The power of judicial review has been expressly conferred by Articles 32 and 226/227 of the Constitution on this Court and the High Courts respectively. Even the judgment of the High Court is subject to further appeal to this Court under Article 136 or on leave granted by the High Court under the respective Articles like 133/134A etc. Thus, the power of judicial review is an inbuilt and ingrained constitutional power expressly conferred on the constitution- al Courts and also their constitutional duty and responsibility to exercise the power of judicial review of legislative or executive action and of other orders of quasi-judicial bodies/authority. The law laid down by this Court is law of the land under Article 141 and it binds all courts within the territory of India. The declaration of law, therefore, is the law of the land which binds all parties and all the courts in the country and all the,.other wings of the State, namely, the Legislature and the Executive, subject to the suitable amendments made to the law as recognised by this court in Prithvi Cotton Mill's case and hosts of decisions followed thereafter. In the light of the above constitutional limitations, the question emerges; whether the Act is a fraud on the Constitution or a colourable legislation?

F It is then contended by counsel for the appellants that right to promotion is not a vested right. The employee has only a right to be considered for promotion in accordance with the rules/law. The Rules framed in exercise of the power under proviso to Article 309 are held to be legislative in character and retroactivity thereof has been upheld in several decisions. The right to promotion is required to be considered in accordance with law at the time of making the promotion. Similarly, seniority list has to be prepared in accordance with the existing law. Sci Rajeev Dhawan further contends that the seniority list of 1992 in com- pliance with the mandamus issued by this Court had already been prepared and, therefore, the effect of the mandamus issued by this Court got exhausted. Subsequently, when the Act was made the seniority list was

S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.] 667

.._ required to be prepared in accordance with law. The seniority, therefore, prepared by the State Government was wrongly set aside by the High Court. So, it is not in accordance with the law. Therefore, it required interference. Proviso to Rule 5(2) of repealed Rules vis-a-vis Irrigation • Branch provided for confirmation and, thereby, under those Rules, unlike in Buildings and Roads and Public Health Branches, the promotees be- B '~ come members of the Service from the date of their promotion. Once they are confirmed in accordance with Rules, their seniority dates back from the date of continuous officiation. The promotion was made in accordance with the Rules. Therefore, the service rendered, though within the quota of the direct recruits, is not fortuitous. In support thereof, he places reliance on B.S. Yadav & Ors. v. State of Haryana & Ors., (1980] Supp. SCC c

524. For retroactivity and for continuous officiation, he placed reliance on the ratio of the Constitution Bench Judgment of Direct Recmits case.

The contention of Shri Rajeev Dhawan that after the preparation of the seniority list in 1992, the mandamus issued by this Court got exhausted and the Acts would take hold of the field and the seniority list would be required to be drawn in accordance with the Act, is clearly unsustainable. A mere pretence of compliance of the direction relating to preparation of the senfority list is not a compliance of the mandamus, it is required to be complied with in letter and spirit as directed therein. Otherwise, it may amount to contempt of the Court to be dealt with in accordance with the relevant law or under suo motu power of this Court or of the High Court. That apart the Government does not rely on the compliance of the man- damns; until it is duly modified by a judicial order of the Court in an appropriate forum known to law, the State cannot seek shelter under the provisions of the Act to decline preparation of seniority list in accordance with the mandamus. Even after the date of the prospective enactment, it needs to be complied with. The reason is obvious that the seniority has to be worked out not in accordance with the law made in the Act but in accordance with the declaration of the law in Sehgal and Chopra's case and the mandamus issued respectively thereunder and similar compliance of the High Court's order in related cases of Irrigation Branch. Even for future appointments, (as rightly pointed by Shri Altaf Ahmad), they cannot • create imbalances and upset the quota prescribed between the direct recruits and the promotees. The contention that the Government acted upon a suggestion made by one of the learned Judges of that High Court that quota should be done away with, has no legal or constitutional foun- H

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

A dation. This Court constantly has upheld the principle of blending youth with their experienced counter-part promotees, i.e., direct recruitment and ---- ~

promotion drawn from two different sources, to augment efficiency in Service as a constitutional princip~e. For instance, for All India Services, direct recruitment of IAS, IPS etc. would be inducted from open market and promotee officers drawn from the respective State Services are their B trainee officers. The direct recruit, many a time, works as a pr9bationer under the promotee officer but on his reaching senior scale, they steal a march over the former senior promotee officer and sit over the promotee c officer. The ground of heart-burning and of junior overtaking senior find no constitutional base and this pretext of frustration and heart-burning is c for negation of the constitutional and statutory base for recruitment through two different sources, namely, induction of young blood by direct recruitment and promotion of mature and experienced officers from the other sources, to fuse into Service, as a valid classification, just, reasonable and fair procedure for augmenting public purpose, naniely, efficiency of the service. Therefore, the equitable considerations strongly, fervently and .... D repeatedly put forth by Shri D.D. Thakur and Rajeev Dhawan do not get their play in the factual zone.

Equally, the contention of Shri Rajeev Dhawan that the legislature would be justified to defeat, by enactment of the Act, the right of a single individual, namely, Dr. B.D. Sardana to benefit the large group of promotee officers, on the higher principle of equity and ethics, does not get acceptance for the reasons already mentioned. It is true that a direct recruit steals a march over the promotees, but so long as the operation of law is within the play of law and the Constitution, the consequences are inevitable and the plea of continuous length of service gets obliterated and thereby arbitration does not get sustenance over majesty of Constitution and lend colour to overcome writ of mandamus issued by this Court.

At this juncture, as stated earlier, we may deal with the effect of the operation of the repealed Rules relating to PWD Irrigation Branch prior to the Act. It is true that under the said Rules, the promotees, in excess of the quota of 75% for eight years and 50% thereafter, would be members of the Service and confirmation of probation shall be made under proviso .. - to sub-rule (2) of Rule 5 of Irrigation Branch Rules. The effect of the Amendment Act has already been considered and needs no reiteration. It was held that until they are duly appointed substantively to the service in accordance with sub-section (9) of Section 8 of the Act or corresponding

S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.) 669

repealed Rules, they do not become members of the Service, though they A . are confirmed probationers. Availability of the cadre post within quota was a pre-condition to become a substantive member of the Service. Though at first blush, we were impressed with the argument of Shri Rajeev Dhawan, on deeper probe, we find it difficult to accept the contentions on true and proper construction of the language. Though we did not substantially B interpret the Irrigation Branch repealed Rules in the earlier judgments, it makes little difference, except to the small extent of making a probationer or officiating promotee Executive Engineer a member of the service, for the purpose of computation of the period of probation and for awaiting appointment in a substantive capacity to any post available within the quota. This conclusion gets manifested by reading the relevant provisions C · in the repealed Rules vis-a-vis Irrigation Branch thus :

Rule 2(12) defines "member of the service", to mean an officer appointed, substantively to a cadre post and includes (a) in the case of a > direct appointment an officer on probation, or such an officer who, having successfully completed his probation, awaits appointment to a cadre post; D (b) in the case of an appointment by promotion an officer on probation or such an officer who having successfully completed his probation "awaits appointment to a cadre post". Rules 5(2), 8(12) and.12(6) read as under.

"5. Recruitment to service - E (a) .....

(b) Recruitment to the service shall be so regulated to the number of posts filled by promotion from Class II Service shall not exceed fifty per cent of the number of posts in the Service, (excluding the F posts of Assistant Executive Engineers).

Provided that till such time as an adequate number of Assistant Executive Engineers, who are eligible and considered, fit for · promotion, are available, the actual percentage of Officer promoted from class II service may be larger than fifty per cent. G • 8(12) Appointment by promotion may be made to an ex-cadre post, or to any post in the cadre in an officiating capacity from the list prepared under this rule.

12(6) Subject to the provisions of sub-rules (7) and (8) below, the H

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

A year of allotment of an officer who is initially appointed to the ~ service as Executive Engineer, shall be the same as that of the juniormost officer in the service whether officiating or confirmed as Executive Engineer before the former's appointment.

Explanation - If an officer appointed to the Service as officiating B Executive Engineer, later on reverts from that post and is again promoted to it, for purpose of this rule, the year of allotment shall [ be determined taking into consideration the date of his latest appointment on the post of the Executive Engineer."

c A conjoint reading of these Rules would indicate that the appoint- ment in a substantive capacity to a cadre post is necessary to become full member of the Service. The inclusive definition of Rule 2(12)(b) makes one a member of the Service on appointment as probationer or on successful completion thereof "awaits appointment to a cadre post". So, both the main D Clauses and this deeming clause of the definition in their turn posit appointment to a cadre post but temporary breather is provided, unlike in Buildings and Roads and Public Health Branches, to enable the promotees to ·be probationers to complete their probation and on success- ful completion, to await appointment in a cadre post to a substantive capacity within the quota. Equally, Rule 5(2) does not advance the case of E the promotees any further. The proviso to Rule (5(2) gives power to the State Government to give promotion obviously prior to appointment to a cadre post, within the quota of direct recruits, to promote Class II officers in excess of the actual percentage, i.e., larger than 50%. Equally, this elbow power given to the State is hedged with the condition that the promotee F Class II officers shall not exceed 50% .of the number of cadre posts in the service excluding the post of Assistant Executive Engineers. Rule 8(12) equally does not advance the case any further. It merely enables a promotee to be appointed to an ex-cadre post or to any post in the cadre in an officiating capacity from the approved list. Again, with a view to enable the promotees either to complete the probation, he has to await appointment as a foll member in a substantive capacity or the cadre posts. But for this elbow power, the promotee has no right like the promotee in .. Buildings and Roads and Public Health Branches, to get into the Service even on probation or in officiating capacity. If so read, Rule 12(6) or Rule 12(9) does not give them the year to allotment over the direct recruits in excess of 50% quota reserved for direct recruits; nor would he be eligible to

'I S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.] 671 steal a march over the direct recruit. Any period of service earlier to the appointment in a substantive capacity to a cadre post within the percentage not exceeding 50% of the number of cadre posts excluding the period in the post of Assistant Executive Engineer, thus, becomes fortuitous. In this behalf, it may be relevant to note some of the previous judgments rendered by the Constitution Benches or three Judges Benches in that perspective. B In S.C. Jaisinghani v. Union of India & Ors., [1967] 2 SCR 703, the celebrated judgment in the field of service jurisprudence, involving con- flicting seniority between direct recruits and promotees, the Constitution Bench speaking through V. Ramaswami, J. had held that the direct recruits ....... _

appointed to Class I, Grade II service after successfully completing the competitive examination for members of the Service, are members of Service from inception. There is a distinction between direct recruits and promotees. It was a case of recruitment from two different sources and the adjustment of seniority between them. The concept of equality in the matter of promotion can be predicated only when the promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on differences between the two sources, and the said differences have a reasonable relation to the nature of the office, it can legitimately be sustained· on the basis of a valid classification. The direct recruits were introduced with a view to improve the deficiency of service. The reason for the classification was that the higher echelons of the service should be filled by experienced officers possessing not only a high degree of ability but also first-rate experience. A rule which gives seniority to outstanding officers on considerable experience and selected on the basis of merit and limiting the promotion to a percentage not exceeding the prescribed limit, cannot be regarded as unreasonable. The F net effect of the rule is that the direct recruits stand to have an edge over the promotees with a lesser period of probation and service and, therefore, the deemed promotion given to Class II, Grade III officers was held unconstitutional. The object of rule of promotion to the direct recruits with · three years' experience is to carry out the policy of Rule l(f)(iii) and not G to allow it to be defeated by the requirement of five years' service in Class-I, Grade-II itself before consideration for promotion to Class-I, Grade-I. Otherwise, a promotee certified as fit by the Departmental Promotion Committee will be senior to direct recruits who completed their probation in that year but the seniority would be an empty formality. If the officer is not allowed to count his period service in Class-II for the purpose H

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

A of promotion to Grade- I, he would have to wait for a long period to go to Grade-I, Class-I. The direct recruits who completed their probation would go to Grade-I, Class I by counting five years' service from the date on which they were placed on probation. The writ of mandamus was accordingly issued directing the respondents to adjust the seniority of the appellant and other officers similarly situated to prepare a fresh seniority list adjusting the recruitment for the period specified between 1951 and 1956, always in accordance with the quota rule. Similar directions were given for the subsequent periods to prepare seniority between direct appointees and promotees, the details of which are not material. The point in issue is that preferential treatment to the direct recruits as against the promotees was held to be reasonable to improve the efficacy of service and seniority determined \\ithin the quota between the period specified in the Rules.

Shri H.D. Helms & Ors. v. Shri Mohan Chandra Joshi, AIR (1972) SC D 2627 is again a case of Income-tax Officers Class-I, Grade-I Service. The question again pertained to the inter se seniority between direct recruits and the promotees within the ratio of one-third and two-third. The Con- stitution Bench considered the question and held that it is for the Govern- ment under Rule 4 to determine the appropriate methodology for filling up particular vacancies and the number of candidates to be recruited by E each method. The vacancy for any particular year being ascertained, not more than one-third of the same are to go to the promotees and the rest to the direct recruits. The ratio is not dependent on whether any direct recruit was appointed in any particular year or not; following the ratio in Jaisinghani's case, the Constitution Bench upheld the ratio between direct , p recruits and promotees and vacancies for the direct recruits whether or not they were recruited in that order, were directed to be preserved for direct recruits. In para 6, it was further pointed out that since at the time of entry into Class-I, Grade-II service the recruitment was from two different sources, no question of infringement of Articles 14 or 16(1) arose. On facts, there was no sufficient material before the Court to decide whether or not the appointment of the promotees were or were not in excess of the quota of 33-1/3% of permanent vacancies available to the promotees. According- ly, the mandamus was issued directing the Central Government to identify the vacancies and fill up the vacancies in accordance with law and within quota. We may point out, at this stage, that no distinction between a post and vacancy was found by this Court. This Court always treated vacancies

S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.) 673

as posts and when the direct recruitment is to be made, it is always to the posts. Similarly, when the appointment by promotion is made, it is made to posts as vacancies in the posts as indiscriminately called vacancies and the ratio of 50% is required to be filled up between direct recruits and the promotees and in the case of the Irrigation Branch for first eight years, 75% posts were reserved for the promotees and 25% for the direct recruits. B The neil on the principle of equity and heart-burning and consequent , accrimony was firmly put by these two Constitution Bench Judgments which were blissfully forgotten.

In Bachan Singh & Anr. v. Union of India & Ors., (1972] 3 SCC 898, another decision of a Constitution Bench, the inter se seniority between the promotees and direct recruits was the question. The appellants were confirmed promotees while the contesting respondents were the direct recruits. It was held that the appointment to Class-I service by interview was made by the Government in consultation with the Union Public Service · Commission, due to emergency subsequently, some of them from both the categories were recruited by the Union Public Service Commission as direct recruits. The amendment of the Rules provided for the appointment by interview. Both the direct recruits and the promotees stand on different footings. No grievance with regard to confirmation was raised. Departmen- tal promotees can be made but they are entitled to occupy post within their quota and they get the seniority in their order within the quota. They E cannot occupy the vacancy of the direct recruits. The direct recruits consisting of those recruited by competitive examination as well as Union Public Service Commission occupy posts within their quota. Dispute of fixation of the seniority between the years 1959 and 1963 inclusive of the quota fixed for the departmental promotees arose for consideration. Inter p se seniority was directed to be confirmed within the respective ratio and seniority was directed to be determined on that basis. (Emphasis supplied)

In V.B. Badami Etc. v. State of Mysore & Ors., [1976] 1 SCR 815, a Bench of three Judges was to consider the inter se seniority between the direct recruits and the promotees. This Court laid down six principles in G determination of the inter se seniority as under :

"The principles generally followed in working out the quota rules are (i) where rules prescribe quota between direct recruits and promotees confirmation or substantive appointment can only be in H

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

respect of clear vacancies in the permanent strength of the cadre; 1 A (ii) confirmed persons are senior to those who are officiating; (iii) as between persons appointed in officiating capacity, seniority is to be counted on the length of continuous service; (iv) direct recruitment is possible only by competitive examination which is the prescribed procedure under the rules. In promotional vacan- B cies, the promotion is either by selection or on the principle of seniority-cum-merit. A promotion could be made in respect of a temporary post or for a specified period, but direct recruitment has generally to be made only in respect of a clear permanent vacancy, either existing or anticipated to arise at or about the c period of probation is expected to be completed; (v) if promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular. The promotees cannot claim any right to hold promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which are within the quota of direct recruits, when the direct recruitment takes place, the direct recruits will occupy the vacancies within their quota. Promotees who are occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota iii the facts and circumstances of the case; and (vi) as long as the quota rule remains, neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies."

This decision was followed by this Court in Sehgal's case. In Keshav F Chandra Joshi & Ors. v. Union of India & Ors., [1992] Supp. 1. 272, a Bench of three Judges of this Court (to which one of us, K. Ramaswamy, J. was a member) considered Rule 5 of those Rules which is pari materia to Section 5(2) of the Act or Rule 5(2) of the repealed Rules and held that in order to be a member of the service, the officer must hold the post in substantive capacity, appointment to this post must be according to rules and within the quota. The membership to the service must be preceded by an order of appointment to the post validly made. Then only an employee can be a member of the service. It was held that the promotee cannot claim advantage of seniority over the direct recruit by virtue of the promotion in excess of their quota. The theory of breaking down of the Rule profounded in Narender Chadha & Ors. v. Union of India & Ors., [1986] 1 SCR 211;

S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.] 675

Buleshwar Das v. State of U.P., (1981) 1SCR449 andM.K. Chauhan·•. State A of Gujarat, (1971] 1 SCR 1037 has fallen apart and no longer gets respite in the light of all the decisions following the Badami's case. The spinning of the breaking down principle was started with the decision in Gonna/ Bhimappa v. State of Kamataka. It was followed in all the subsequent decisions. The confirmation of probation, therefore, does not automatically B amount to appointment to service unless a cadre post within the quota is available and appointment is made in accordance with the repealed Rules vis-a-vis Irrigation Branch made or as per the declaration of law in Sehgal and Chopra's cases. The law in Sehgal and Chopra cases was given accep- tance in Section 8 of the Act. c It it true that the Rules made under the proviso to Article 309 of the Constitution can be issued by amending or altering the Rules with · retrospectivity as consistently held by this Court in catena of decisions viz., B.S. Wadera v. Union of India, (1968] 3 SCR 575; Raj Kumari v. Union of India, (1975] 3 SCR 963; K Nagaraj & Ors. v. State of Andhra Pradesh & D Anr., (1985] 1SCC523; T.R. Kapur& Ors. v. State of Haryana & Ors., (1986] Supp. SCC 584 and host of other decisions. But the question is : whether the Rules can be amended taking away the vested right? As regards the right to seniority, this Court elaborately considered the incidence of the right to seniority and amendment of the Act in the latest decision in Ashok Kumar Gupta & Anr. v. State of U.P. & Ors., (1997) 3 SCALE 289 relieving E the need to reiterate all of them once over. Suffice it to state that it is a settled law that a distinction between right and interest has always been maintained. Seniority is a facet of interest. The rules prescribe the method of selection/recruitment. Seniority is governed by the existing rules and is required to be worked out accordingly. No one has a vested right to p promotion or a seniority but an officer has an interest to seniority acquired by working out the Rules. It would be taken away only by operation of valid law. Right to be considered for promotion is a rule prescribed by condi- tions of service. A rule which affects the promotion of a person relates to conditions of service. The rule merely affecting the chances of promotion cannot be regarded as varying the conditions of service. Chances of promo- G tion are not conditions of service. A rule which merely affects the chances of promotion does not amount to change in the conditions of service.

But the above principle has no application to the facts in this case. We are concerned in the present case with the result of the declaration of H

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

A law and the mandamus issued. by this Court in the preparation of seniority list. As a result of the mandamus issued by this Court, the direct recruits acquired judicially recognised right to a particular position in the service inter se with promotees to be worked out as per the law declared; findings recorded and mandamus and directions issued for enforcement. It has already been held that the legislature cannot, by colourable exercise of the power and fraud on the Constitution, take away the right to be considered in preparation of seniority as per law and for promotion, if found fit, by virtue of a mandamus issued by this Court, unless the rule of law is suitably and validly altered so as to make the mandamus ineffectual. It is already held that a prospective amendment could be brought about removing the base by a constitutionally valid law. It is already seen that confirmation of probation does not ipso facto amount to appointment to a service or in a substantive capacity in Irrigation Branch. It requires to be examined in each case as to when a promotee substantively becomes a member of the Class-I service by operation of the repealed Rules/Act. He does not become a member of the service in a substantive capacity until he is duly appointed in accordance with Rule 8(9) of the repealed Rules or Section 8(9) of the Act. Officer in Irrigation Branch remains a confirmed probationer awaiting appointment to a service in a substantive capacity within quota. Until an order of appointment is so made, he does not become a member of the service substantively. The seniority then is re- quired to be reckoned in accordance with the Rules. The law under the Act prospectively does not have the effect of divesting the vested right had by the direct recruits under the declaration of law given by this Court. The consequence, therefore, would be that though promotee officer of Class-II service in Irrigation Branch was confirmed after completion of probation, he does not become member of the service in substantive capacity until he is duly appointed within 75% quota for eight years after Irrigation Branch repealed Rules came into force and 50% thereafter. Any promotee ap- pointed in excess of quota does not get a continuous service but only becomes a confirmed probationer awaiting appointment to the cadre post of Class-I service as Executive Engineer within the quota. The result of the repealed Rules was that they became confirmed probationers awaiting appointment to the service into a cadre post in a substantive capacity within their quota in accordance with the Rules. The entire continuous officiation in a post reserved for the direct recruits becomes fortuitous the moment they are appointed to a cadre post out side the quota.

S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.] 677

This Court in KC. Ganpat Narayan Dea & Ors. v. The State of Orissa, A [1954] SCR 1 relied on by Shri Dhawan had considered the validity of the colourable legislation. Therein, a Bill relating to Orissa State was published on January 3, 1950. It contained a provision that any sum payable for agricultural income tax for the previous year should be deducted from the gross asset of an estate for the purpose of arriving at its net income on the B basis of which compensation was payable to the estate owners. On January 8, 1950, a Bill to amend the Orissa Agricultural Income-tax Act, 1947 so as to enhance the highest rate of tax from 3 annas in the rupee to 4 annas and reduce the highest slab from Rs. 30,000 to Rs. 20,000, was published. . The Bill was subsequently dropped by the next Chief Minister. On July 22, 1950, another Bill was introduced enhancing the highest rate of 12 annas C 6 pies in the rupee and reduced the highest slab to Rs. 15,000. This was. transformed into law in August, 1950. It was contended that -the rise in agricultural income-tax was a fraud on the Constitution and is a colourable legislation to affect the determination of the compensation payable under the Orissa Estate Abolition Act. This Court held that the question whether D it was a colourable legislation and as such void, did not depend on the motive or bona fides of the legislature to pass that particular law. What the Court has to determine in such a· case is whether the legislature has purported to act within the limits of the power. It has in substance and reality a transgress on the powers, the transgression being veiled by what appears on proper examination to be a mere pretence or disguise. The E whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly. The impugned Act was in substance and form a law in respect. to the taxing of agricultural income; the Legislature was competent to legislate on this subject; the Act was not void and the fact that the object of the legislature was to accomplish p another purpose namely, to reduce the compensation payable under the Estate Abolition Act, cannot render this law a colourable legislation and void as such as the ulterior object itself was not beyond the competence of the legislature. The consequence of the legislation, assuming, that there is no absolute rule of law that whatever is affixed to or built on the soil becomes a part of it. On the facts of that case, it was held that the object G of the Act was to reduce the taxable maximum exemption that is within the legislative competence.

It is seen that when this Court exercises the power of judicial review in an appeal arising from the order of the High Court passed _under Article H

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A 226 of the Constitution, it declared law and issued the mandamus. This exercise of the power of judicial review is expressly conferred by the Constitution of the constitutional Courts, viz., this Court and the High Courts. The Legislature when it exercises the power under Article 245(1), though has the legislative competence under legislative Entry 41, in List-II B of the Seventh Schedule, the purported exercise is to declare by legislative judgment a law made by this Court as invalid; enforcement of mandamus consequently is rendered ineffective. As held earlier, the attempt made was to remove the base of the declaration of law and mandamus and to give retrospective effect. The power of judicial review is a basic structure and a colourable exercise of the legislative power. legislature is prohibited C from repealing, by legislative judgment, the judicial decision. Therefore, it is the legislature which trampelled upon the power of judicial review, transgressed its limits and trespassed into the field of judicial review and given declaration under the Act emasculating the vitality and efficacy of judicial review. It would, therefore, be clear that the enactment of the Act D with retrospective effect is not only a colourable legislative exercise but also as fraud on the Constitution. However prospective operation of the Act may be valid.

In T.R. Kapur's case (supra), a two-Judge Bench was to consider whether retrospective effect to a Rule made under proviso to Article 309 E of the Constitution has the effect of divesting the vested right. It was held that in Rule 6(b) of the Punjab Service of Engineers, Class-I, PWD Irrigation Branch Repealed Rules conferred a vested right on persons like the appellant or direct recruits which could not be taken away by retrospective amendment of Rule 6(b). As has already been held, affecting the right of a person tp be considered for promotion amounts to affecting the conditions of service; though affecting mere chance of promotion may not. The power to frame rules to regulate the conditions of service under the proviso to Article 309 carries with it the power to amend cir alter the rules with retrospective effect. However, it is well settled principle that the benefits acquired under the existing Rules cannot be taken away by an amendment with retrospective effect, that is to say, that there is no power to make such a rule under proviso to Article 309 which affects or impairs vested rights. It would, thus, be clear that a right has been vested in the direct recruits to have their seniority determined under the repealed Rules, as a result of the mandamus issued which became final, which still is available even after the Act has come into force with retrospective effect .

S.S. BOLA v. B.D. SARDANA [K RAMASWAMY, J.] 679

since the retrospective effect has already been held unconstitutional as saved by operation of Section 25 of repealing provision. As a consequence, they are entitled to have their seniority determined accordingly. It is true that in B.S. Yadav's case the Constitution Bench of this Court had con- sidered retrospective effect of the Rules. In para 57 relied on by Shri Rajeev Dhawan, it was held that insofar as rule of seniority is concerned, under the aforesaid amendment, the inter se seniority of the members of the Service is to be determined by the length of continuous service on a post in the Service irrespective of the date of confirmation. That principle requires to be understood in the light of the Rules available therein. At page 524 in para 78, it was clearly held that retrospective effect to the Rules creates frustration and discontentment since the just expectations of the officers are falsified; settled seniority, thereby is unsettled giving room to long drawn out litigation between promotees and direct appoints. That breeds indiscipline which is to be depreq1ted. In para 76, it was observed that the giving retrospective effect to the Amendment amounted to hitting the allotted officers below the belt. It is already stated that under the Rules, D though a promotee Class-II service officiated as Executive Engineer in Haryana Service of Engineers, Class-I, his seniority in Irrigation Branch, though he was a member of the service prior to the Act, was required to be determined with effect ti om the date of appointment to the cadre post in Class-I Service as Executive Engineer, if available, within the quota. Entire other service, though as a confirmed probationer, stands denuded E as fortuitous for the purpose of inter se seniority and consequential promo- tion.

In State of Maharashtra & Anr. v. Chandrakant Anant Kulkarni & Ors., [1981) 4 SCC 130, a Bench of three Judges made distinction between chances of promotion and right to consideration for promotion. The F chances of promotion was held not a condition of the service. Passing of departmental examination confers no right to be promoted under the relevant rules. Hence the promotee was not able to challenge. The ratio therein is inapplicable to the facts of this Case. The ratio in Vinod Gwudas Raikar v. National Insurance Co. Ltd. & Ors., [1991] 4 SCC 333, is also G equally inapplicable. Therein, Rule 6(c) of the General Clauses Act on the effect of the repeal was considered and it was held that the vested right acquired for compensation under the Motor Vehicles Act, 1939 was not taken away by virtue of the repeal in Motor Vehicle Act, 1988. Therefore, it was held that the owners of truck are entitled to compensation under the repealed Act. The ratio therein too has no application to the facts of H

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

A this case. The ratio in Zohrabal v. Aljuna & Ors., [1980] 2 SCC 203 equally is inapplicable to the facts in this case. In that case, though the provision in Section 28(1) of the Hyderabad Tenancy and Agricultural Land Act, 1950, as applicable to Maharashtra, was amended in 1960, the landlord had not taken advantage of the Ac•, by following the procedure in amended provision. In that context, it was held that mere right to take advantage to B the provision of the Act is not a vested right. Far from helping the promotees, as contended by Shri Rajeev Dhawan, it clearly indicates that the law existing as on the date of the declaration as required to be complied with; that is the implication arising from this judgment.

C It is true that in direct recruits case, a Constitution Bench, to which one of us (K. Ramaswamy, J.) was a member, had considered propositions and in paragraph 47 of conclusions and held that if an appointment to a post according to Rules has been made, seniority is to start from the date of appointment and not with reference to the date of the confirmation. Therein, the rules were not concerned with the quota. The question related to the inter se seniority between direct recruits and promotees. In that backdrop, this Court considered the interplay of confirmation and the consequences arising therefrom. It was held that if the appointment came to be made in accordance with the Rules, though on ad hoc basis, after considering the claims of all the eligible persons, the seniority is required to be considered from the date of initial appointment and not from the date of confirmation. But, if it is not made in accordance with the Rules, the appointment on ad hoc basis and the service becomes fortuitous service. In the context and in the background of the case, the above ratio is required to be understood. As explained earlier, the Class-II officer promoted as Executive Engineer, though was officiatiug in Irrigation F Branch and from the date of the officiation, became a member, his seniority was required to be considered only if he was appointed to a cadre post within the quota under Rule 8(9) of repealed Rules or Section 8(9) of the Act in a substantive capacity and in that event his seniority is counted from the day of his probation or officiation when appointed from the approved G list as Executive Engineer. Accordingly, he is required to be considered.

In Bishan Sarup Gupta Etc. Etc. v. Union of India & Ors. Etc. Etc., [1975] 1 SCR 104, the Constitution Bench was to consider the inter se seniority of the direct recruits and promotees of the Income-Tax Depart- H ment. The President issued two Rules under the proviso to Article 309 of

S.S. BOLA v. B.D. SARDANA [K RAMASWAMY, J.] 681

the Constitution with effect from 16.1.1951. Rule 3 dealing with seniority of officers provided that among the promotees, inter se seniority shall be determined in the order of selection for such promotion. The seniority of direct recruits inter se shall be determined by the order of merit in which they are selected. The relative seniority among the promotees and direct recruits shall be in the ratio of 1 : 1 and the same shall be so determined and regulated in accordance with a roster maintained by the Government > for the purpose. When the seniority list was prepared by the Government giving the quota from 1956 to 1958 during which period the quota was not in vogue, this Court directed that the seniority list prepared for that period on the basis of quota was wrong but from 1959 onwards the quota would be required to be worked out. Seniority list from that date was required to be maintained within the quota. Far from helping the promotees, this case goes in favour of the direct recruits. The direct recruits are entitled, from the date when the rule had come into force, to be considered in a block and the inter se seniority should be prepared in accordance with the Rules.

Our conclusions on diverse questions, put in a nutshell, are as under: D

A. The Haryana Service of Engineers Class-I (Buildings and Roads) and (Public Health) Branches of P.W.D. Rules, now repealed, as inter- preted by this Court in Sehgal and Chopra's cases, is the law under Article 141 of the Constitution. It binds not only inter-parties, but also the other E wings of the State, namely, the Legislature and the Executive and all. The mandamus issued therein along with directions to prepare the seniority list and its implementation operates inter-parties and binds the State of Haryana.

B. The Legislature of Haryana was competent to enact the Act 20 of F 1995 under Article 309 or Entry 41 of List-II (State List) of the Seventh Schedule to the Constitution on the subject regulating the conditions of Service and recruitment of its employees in Haryana Service of Engineers Class-I in PWD Buildings and Roads, Public Health and Irrigation Branches respectively. In an appropriate situation, the Legislature is also G empowered to give retrospective effect to the law so enacted. However, the Legislature is not competent to declare with retrospective effect that the law declared by this Court under Article 141 in Sehgal and Chopra cases is illegal; nor is it empowered to make the mandamus and directions issued therein as ineffective and unenforceable, except in given circumstances as H

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

A laid down by this this Court in this decision and several decisions referred to in the judgment.

C. The Haryana Service of Engineers Class-I Public Works Depart- ment, Buildings and Roads, Public Health and Irrigation Branches respec- tively, Act (20 of 1995) has with retrospective effect, in substance and in effect, declared the law laid down by this Court in Sehgal and Chopra's cases as unenforceable by an indirect side track process of legislative fiat which is unconstitutional. The Constitution being supreme, all the organs and bodies 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 limitations.

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

p F. Judicial review does not concern itself with the merits of the Act or action but of the manner in which it has been done and its effect on constitutionalism. It, thereby, creates harmony between fundamental law, namely, the Constitution and the executive action or legislative Act. Its fundamental object is to exert moral force upon the Legislature and the Executive to remain within the limits set by the Constitution and to save the people from tyranny of the Legislative/executive actions. It protects personal liberties of the people, their fundamental freedoms and creates social and economic harmony maintaining constitutional balance and jus- tice in the Society, equality of opportunity and of status with dignity of person, social stability, progress and order under rule of law are the goals set by the Constitution.

S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.] 683

G. The Constitutional Courts as sentinel on the qui vive, have fun- A damental duty and responsibility to build up egalitarian social order under rule of law. In the exercise of the power of judicial review the Judges of the Constitutional Courts must, of necessity, be judicial statesmen. The judicial review is a linkage between the individual liberties and social interest, political stability to counter balance the ultra vires the Acts or B actions by judicious decision. Separation of a power among the Legislature, j the Executive and the judiciary is also basic feature of the Constitution. The unconstitutionality of the Acts/actions arises from violation of the fundamental rights, separation or distribution of powers under the Con- stitution between the three wings of the State or to prevent violation of Constitutional limitations or restrictions. In adjudicating the con- C stitutionality of an Act/action the courts evolve diverse principles wrapped up with Constitutional ethos to pass on its Constitutionality. Ther_eby, judicial review alerts the Legislature/the Executive that their Acts/actions, should conform to the Constitutional requirements or avert the Constitu- ·' tional lapses without trenching upon or trespassing into the field assigned to the other wings of the State and develop mutual respect for each other's powers and functions. It is settled law that if the language in the Act/Sec- tion/clause is clear and unambiguous it is not necessary to fall back upon the Statement 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. In adjudging the constitutionality of an Act or action, it is their function to find out whether the vice pointed out by the courts or invalidity suffered by the previous law, is. cured, complying with the Con- stitution/legal requirements as was pointed out in the previous judgment by applying the primary tests viz., whether legislati.ire is competent to enact the law and whether the Act is consistent with the Constitutional require- F ments. The Legislature has no power to overrule the decision of the Constitutional Court by mere declaration, without properly and constitu- tionally removing the base upon which the previous decision was founded; nor has it the power to direct that the decision of the court does not bind the State or its instrumentalities. G H. In a democracy governed by rule of law, the Legislature exercises its power under Articles 245 and 246 and other companion Articles read with the specified entries in the respective lists of the Seventh Schedule to the Constitution. Power to legislate law would include the power to amend the law, to enact a new law, and in an appropriate case, with retrospective H

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

A effect. The legislature in enacting new law or amending the existing law or revalidating the law has power to alter the language in the statute by employing the appropriate phraseology and to put up its own interpretation inconsistent with that put up by the court in an earlier judgment on the basis of the pre-existing law and to suitably make new law, amend the law or alter the law removing the base on which the previous decision was founded. If a legislature finds that the interpretation given by the court to the existing law is inconsistent with the Constitutional or public policy or the objects of the Act intended to be achieved, the legislature has power to enact new law, or amended the law consistent with Constitutional or public policy sought to be achieved by the statute. Such an enactment must generally be prospective and not retrospective in nature.