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

I. In order to pass on the Constitutionality, the court is required to carefully scan the impugned law to find out (a) whether the vice pointed out by the court or the invalidity suffered by the previous law is cured complying with the legal and constitutional requirement, (b) whether the legislature has competence to enact the law to validate law, and (c) whether such enactment of Act or validation is consistent with the constitutional principles or within limitations set by the Constitution or fundamental rights enshrined in Part III of the Constitution or basic structure of the Constitution. 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 construction ascertaining the limits of the provisions that granted the power.

J. The legislature in enacting the law cannot, without anything more p by a mere declaration, directly overrule, revise or override a judicial decision. It can render the judicial decision ineffective only by enacting valid law on the subject within its legislative competence fundamentally altering or changing the character prospectively or retrospectively. The changes or altered conditions have to be such that the previous decision would not have been rendered by the court had those conditions existed G at the time of declaration of the law in the previous decision as invalid. It is also empowered to give effect to the Acts so enacted or revalidate\i \... prospectively or retrospectively with a deemed date or with affect from a particular date.

H K. The legislative judgment, by a facade of compliance or removal

S.S.BOLAv. B.D.SARDANA[K.RAMASWAMY,J.] 685

of the base, cannot render the decision or mandamus issued by the court A . · ineffective or invalid by a declaratory law that the previous decision of the court is illegal or inequitous. Such a declaration is not conclusive, but is subject to judicial review. The real test is the effect of the legislation tested on the touch-stone of the Constitution and its direct result on the declara- tion of law as interpreted earlier or the mandamus/direction issued by the B Court in the previous litigation.

L. The courts have applied the doctrine of "pith and substance'.' and in some cases the doctrine of "incidental" or "ancillary" or "subsidiary power" of the legislature to uphold the law or to validate the law declared by the courts as invalid. Thereon, one of the doctrines is applied when the court finds that the law in pith and substance is within the legislative competence but incidentally trenches upon another subject of legislation. Equally, the doctrine of "ancillary or subsidiary power" of the legislature is applied when the court records a finding that the impugned Act is substan- tially within the legislative competence or within the assigned field of legislation dealt with under a particular subject specified in the respective lisrs of the Seventh Schedule to the Constitution, but incidentally it trenches upon another subject of legislature assigned either to the Parliament or the legislature of a State as the case may be. However, the said doctrines cannot be employed to uphold a law that directly nullifies the declaratory law made by the court in exercise of the power of judicial review or to make the writ of mandamus or direction ineffective or unenforceable, unless its invalidity is properly and constitutionally removed by employing the appropriate language so as to make a new law within the Constitutional limits or limitations or competence of the legislature. F

M. The doctrine of incidental or ancillary power is founded upon the principle that on the face of the Constitution, the Legislative subject falls both in the Union as well as the State lists, but on a careful scrutiny of the subject of enactment, it becomes clear that it falls merely incidentally in one list, but substantially in another lists. The courts should always take G -· care and examine whether the Act is within the permissible and constitu- tional principles. The court would also clearly demarcate the line between validating legislation removing the base on which the foundation of the previous judgment rests and the Act which through colourable attempt of removing the base, renders the judgment of a court ineffective or illegal. H

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A N. The Writ of Mandamus or direction issued by the Court cannot ~ be nullified by a legislative fiat, unless the base is removed within the constitutionally permissible limits. However, the doctrine of incidental power, cannot be extended to the exercise of the legislative power colourably or by fraud on the Constitution.

B 0. Colourable legislation is one where the legislature has no power to legislate on an item either because it is not included in the List of the ( respective Entries in the Seventh Schedule to the Constitution in respect of which it has competence to enact the law, or on account of limits imposed either in Part III of the Constitution relating to fundamental rights c or any other power under the Constitution or in violation of the principle of basic structure of the Constitution. If on an examination of the Act, the court finds that the legislature has travelled beyond its power or com- petence or in transgression of the limits imposed by the Constitution itself, such an enactment is called colourable legislation. In other words, it has a reference to the legislative incompetence and not to the power of the ~ D legislature as such. If the legislature enacts the law in the pretext of the exercise of the legislative power though actually it does not possess such power, the legislation to that extent either is void or become voidable on a declaration to that effect by a Constitutional Court. It would, therefore, be said that the Legislature enacts the law in purported colourable exercise of its power. P. The doctrine of fraud on legislative power means that the legisla- ture really has the power, but does not exercise that power. It merely pretends to have exercised the powers. In the eye of law, such an Act is not a law at all, but is a mere pretence of law and the courts will not take notice of such a law.

Q. The doctrine of fraud on the Constitution is altogether a different principle and a serious charge. When there is a Constitutional prohibition to make an Act, but the legislature, in spite of the Constitutional prohibi- tion or restriction to make such a law, enacts such a law, it is a fraud on the Constitution. Therefore, the distinction between the fraud on power ._ and fraud on the Constitution is clear and unambiguous.

S. The principle of fraud on legislative power is applicable when the legislature has power to enact, but has not exercised that power as en- H visaged upon. On the other hand the doctrine of fraud on the Constitution

S.S. BOLA v. B.D. SAllDANA [K RAMASWAMY, J.] 687

-.> means when the Legislature has no power and in spite of the Constitutional A ., limitation/prohibition, it make an enactment in pretence of or purported exercise of the power. It would be necessary to examine all these concepts in the light of the related subject to determine whether the legislature has competence to enact law or enacted it by playing a fraud on the Constitu- tion/colourable exercise of power. B T. This Court in Prithvi Cotton Mills case, Indian Alluminium's case and host of other decisions, permitted the Legislature to remove the base upon which the previous decision was founded by appropriate phraseology of the Law applied therein, but it could not be by a side-track or by fraud ... on the Constitution or colourable exercise of the power to overrule a c declaratory judgment of the Court.

U. The Statement of Objects and Reasons and the preamble of an Act opens the minds of the makers in enacting the law. It cannot altogether be eschewed from consideration of the relevant provisions of the Act, when its constitutionality is tested and objects of the Act sought to be achieved. D

V. On an examination of the Provisions of the Act, it is clear that though the Legislature of Haryana was competent to make Act 20 of 1995 regulating the conditions of Service and recruitments of the Haryana Service of Engineers Class-I PWD, Buildings and Roads, Public Health E and Irrigation Branches respectively; the Act made with retrospective effect is a fraud on the Constitution; a colourable exercise of power; transgression of and trespassing into the power of judicial review expressly

... <. conferred in· the Constitutional Court, namely, Supreme Court of India under Article 32 and High Courts under Article 226/227 of the Constitu- _, ,J tion. F

W. The object of inducting young blood by direct recruitment into the Service and experienced officers by promotion is constitutionally per- missible and valid to augment efficiency of service to inculcate discipline, honesty, integrity and excellence in higher echelons of service. G I X. The prescription of the ratio between direct recruits and promotees is equally constitutionally permissible and the permissible limits shall not be altered by executive action, unless the Executive has power. For exercise of such power it should give power, valid and satisfactory explanation in writing prior to exercise of the said power, for deviation of H

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A the quota rules and that too as a short term arrangement to tide over administrative expedience.

Y. The concerned Rules are required to be interpreted as regards the operation and effect of the deviation of the quota rule and its effect on the main principle of prescribing quota and integration of the promotee officers into the service on strict compliance with the relevant provisions of the Act/Rules.

Z. In an appropriate case, the quota may be relaxed temporarily with a view to meet the administrative exigencies by manning the posts by the promotees. The promotion of the promotee officers to an ex-cadre post or cadre posts would only be to meet the administrative expedience. That would be done, so long as the direct recruit Assistant Executive Engineers, who are members of the Service in junior scale of pay are not available for promotion as Executive Engineer and upwards in accordance with the Rules. If relaxation vis-a-vis length of service or other incidental qualifica- D tions is given, it should be given uniformly to promotee and direct recruits for reasons to be recorded; the reasons should be relevant and germane to achieve efficiency and excellence of service.

AA. As soon as the direct recruits become available, the illter se E seniority between the direct recruits and the promotees as Executive Engineers or upward shall be determined. Before determination thereof, the rights of the parties are founded upon substantive appointment to the service and to the post, if available, in accordance with the Rules and within the prescribed quota. On that basis and in accordance with the principles laid down in the concerned sections/Rules, the seniority shall be deter- F mined 'between direct recruits inter se and promotees inter se and thereafter '' the fusion of direct recruits and promotees shall be made again in accord- ance with the Rules/Act.

AB. The appointment by promotion, declaration of the probation and confirmation thereof of the promotee officers of Class-II Service as Executive Engineers in Irrigation Branch was only to enable them to perform the duties of the post as probationers and confirmation of the probation made them eligible to continue to officiate in the cadre/ex-cadre post. But substantive ·appointment to a cadre post, if available within the quota to the promotees, was a pre-condition. As soon as the direct recruits become available, the inter se seniority shall be determined between the

S.S.BOLAv. B.D.SARDANA[KRAMASWAMY,J.] 689

direct recruits and the promotees in accordance with the Rules/Act within the respective quota. Any appointment in excess of quota is invalid and the service rendered thereunder becomes fortuitous.

AC. A distinction between right to be considered for promotion and interest to be considered for promotion has always been maintained. Seniority is a facet of interest. The rules prescribe the method of recruit- B ment/selection. Seniority is governed by the rules existing as on the date of consideration for promotion. Seni?rity is required to be worked out ac- cording to the existing rules. No one has a vested right to promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority would be taken away only by operation of valid C law. Right to be considered for promotion is a rule prescribed by condi- tions of service. A rule which affects chances of promotion of a person relates to conditions of service. The rule/provision in an Act merely affect- ing the chances of promotion would not be regarded as varying the condi- tion of service. The chances of promotion are not conditions of service. A D rule which merely affects the chances of promotion does not amount to change in the conditions of service. However, once a declaration of law, on the basis of existing rules, is made by a Constitutional Court and a mandamus is issued or direction given for its enforcement by preparing the · seniority list, operation of the declaration of law and the mandamus and directions issued by the court is the result of the declaration of law but not the operation of the rules per se.

AD. When an Act is made or an amendment to the law is made or revalidation of law is made by colourable exercise of the power or fraud on the Constitution, it does not affect the vested rights. The right accrued by the declaration of law or the mandamus or directions issued by the court cannot be taken away by such law or a valid law by retrospective operation since in the earlier litigation, the court did not declare any law as invalid or unconstitutional. This Court merely declared the law and directed the Haryana State Government to implement the law. G AE. Preparation of seniority list in accordance with the declaration of law and the mandamus/direction issued is required to be complied with by the State Government unless it is properly revised or reversed by a Constitutional Court in hierarchy of appeals etc. Once the judgment attains finality the directions given should be followed thereunder. The law is H

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A required to be implemented in its true spirit and not by mere pretence or facade of compliance.

AF. The Act No. 20. of 1995 is unconstitutional to the extent of retrospective operation of the Act. The prospective operation does not have any effect on the settled rights of the parties to these litigations since the repealed Rules are saved under Section 25 of the Act and would continue to apply to them. Even otherwise, the rights secured by declara- tory law were not affected.

AG. The prospective operation of the Act from the date of the coming into force of the Act, namely, 30th November, 1995, would be worked out in the light of the declaration of law in this judgment and be applicable to the other persons in the Service on and from that date or for the purpose of future promotions under the Act to those officers who were not parties to the litigation. { D AH. Even if relaxation by way of promotion in excess of the quota is temporarily made by the State Government, the State Government shall record reasons in support of its action. However, such temporary deviation does not have any effect on the ratio prescribed under the Act/repealed Rules except that the promotee officers from Class-II Service belonging to E Irrigation Branch are enabled to acquire the probationary status as Class-I officers on a cadre/ex-cadre post. The confirmation of the probation awaits the substantive vacancy. Until then, the promotees from Irrigation Branch do not become members of the Service in a substantive capacity. The same position has been created under the Act uniformly to all officers.

F Al. The ;:irospective operation of the Act in the present case has already been considered and it has been that substantive appointment to a cadre post within quota, if the post is available to the promotee, is a pre-condition. The Act has not advanced the rights of the promotees any further. It is true, as was contended by Shri K.T.S. Tulsi, that so long as G the Act is not declared invalid or unenforceable, it is required to be given effect to. Technically, he is correct. Shri Altaf Ahmad, when initially appeared and argued for the State of Haryana, fairly did not attempt to take the technical stand but confined to the question that the mandamus issued by the declaratory judgment of this Court was not affected by the Act and required enforcement. He was correct in placing reliance on H Section 25. Therefore, the stand taken by Shri K.T.S. Tulsi has enabled us

• S.S.BOLAv. B.D.SARDANA(K.RAMASWAMY,J.) 691

to strike a lethal blow on the unconstitutionality of retrospective operation of the Act. As has been held earlier, the promotee becomes a member of the Service under the repealed Rules vis-a-vis Buildings and Roads Branch or Public Health Branch only when he is appointed substantively in accord- ance with Rule 8(9) of the respective Rules including Irrigation Branch within the quota. The declaration of law in Sehgal and Chopra's cases remains unaffected under the Act and continues to be in force. Similarly, any appointment made and weightage given to the promotees in excess of their quota, as contended in quorns, does not have any legal effect on the right to the seniority and the promotees within their quota alone are entitled to count their entire length of service from the respective dates of probation, without break. When appointed as Assistant Executive Engineer C by direct recruitment, his seniority starts from the date on which he starts discharging duties of the post as probationer be it in a substantive vacancy or on ex-cadre post. His seniority remains unaltered. He continues to be a member of the Service of junior scale of pay even before being appointed as Executive Engineer, i.e., in the senior scale of pay to a cadre/et- cadre post; after his promotion as Executive Engineer on probation being declared, if the prescribed minimum period of service is completed or if the same is relaxed by the State Government uniformly to the promotees and the direct recruits, as was done in the case of B.S. Sardana, his seniority would continue to start from 1971 as was held in Chopra's case. Therefore, his seniority has to be determined and promotion given within the quota of the direct recruits as Executive Engineer and above in a substantive capacity: The Class-II officers became eligible for promotion as Executive Engineers only after the Committee prepared the list of the eligible officers in acco.rdance with the Rule 8 of the repealed Rules/Sec- tion 8, after approval by the Public Service Commission and the State of F Haryana. Class-II officers whose names find place in the approved list shall be appointed by promotion as Executive Engineers and upwards as probationers in the order in the list. Appointment on probation and declaration thereof does not get ripened into appointment substantively to a cadre post. Appointment to a cadre post available within quota is a condition precedent to become a member of the Service in a substantive G capacity. The inter se seniority of the direct recruits and promotee Class-II Executive Engineers then shall be determined in accordance with the Rules. It requires to be worked out on that basis.

AJ. The Division Bench of the High Court, therefore, was not correct H

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A to say that 10 posts of the promotees in Public Health Branch occupied from the date of initial constitution, is not challengeable and was not challenged and, therefore, the contention that all the 10 posts would be occupied by the promotees in the cadre post, is fallacious and incorrect. Only 50% of the promotees (75% for 8 years in Irrigation Branch) allotted B by the State of Punjab to the Haryana Service of Engineers, Class-I on and with effect from 1st day of November, 1966, shall be retained within their quota and the balance five posts in Public Health Branch, shall be made over to the direct recruits. The fair stand taken and correctly advised by Shri Altaf Ahmed should be worked out. The preparation of seniority on that basis is perfectly consistent with the mandamus issued by this Court. C Equally, the direction issued by the High Court with regard to M.L. Gupta in Irrigation Branch and the other direct recruits in Buildings and Roads, Public Health and Irrigation Branches respectively would be applied the same principles as applied to other direct recruits. They should be carried out accordingly. D AK. Dr. B.D. Sardana has neatly made out a case during his argu- ments on merits that the seniority list was not correctly drawn consistent with the mandamus issued in Chopra's case. He has given us various details from the rewrd but we decline to go into that aspect. Instead, we direct the State Government to draw the seniority list afresh in the light of the E above law and directions within sixty days from the date of the receipt of the judgment. Any sort of excuse for delay shall not be countenanced.

Civil Appeal No. 423 of 1994 of respondent-Dr. B.D. Sardana stands allowed. Civil Appeal Nos. 422, 424, 1448-49, 1452-53of1993 and W.P. 582 of 1995 of the promotees and the State Government stand dismissed. The F directions of the two Division Benches of the Punjab & Haryana High Court are confirmed with the modification referred to hereinabove. The transfer Case No. 40 and 44-46 of 1996, writ petitions filed in the High Court stand disposed of in the light of the declaration of law made and · directions given above. G In view of the facts and circumstances, we direct the parties to bear their own costs throughout.

R.P. Appeals, Petition and Transferred Cases disposed of.