REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1405 OF 2007

CMD/Chairman, B.S.N.L. and others ..          Appellants

-versus-

Mishri Lal and others ..      Respondents

WITH

CIVIL APPEAL NO. 427 OF 2008

Union of India and others ..       Appellants

-versus-

Pushpawati Singh ..     Respondent

J U D G M E N T

Markandey Katju, J.

Civil Appeal No. 1405 of 2007

1. This appeal has been filed against the impugned judgment and order  

dated 16.12.2005 in  Civil  Misc.  Writ  Petition No.  73843 of  2005 of  the  

Division Bench of the Allahabad High Court.

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2. Heard learned counsel for the parties and perused the record.

3. The respondents 1 to 9 herein, filed a writ petition before the High  

Court praying for quashing of the Recruitment Rules 2005 as well as the  

letters  by  which  the  writ  petitioners  were  told  to  appear  in  the  Limited  

Internal Competitive Examination for promotion to the post of Raj Bhasha  

Adhikari AD(OL) which was to be held under the supervision of the CGMT  

UP(East),  Circle  ,  Lucknow  as  well  as  issuing  a  writ  of  mandamus  

restraining  the  appellants  herein  from  interfering  in  the  working  of  the  

respondents  as  AD(OL) on their  respective  posts  and to  continue to  pay  

them  their  salaries.    The  aforesaid  writ  petition  was  allowed  by  the  

impugned judgment and hence this appeal.

4. It  was  pointed  out  by  learned  counsel  for  the  appellants  that  the  

impugned Raj Bhasha Adhikari Recruitment Rules 2005 were quashed by  

the  High Court  without  service of  any notice  of  the writ  petition  on the  

appellants  (respondents  3  to  6  in  the  writ  petition)  and  that  too  at  the  

preliminary stage of admission on the basis of an alleged submission of a  

counsel who did not have any authority and Vaklatnama in his favour by the  

appellants and who had not been given any instruction to appear on their  

behalf.   We agree with this submission.

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5. When rules are challenged it is necessary to have the matter gone into  

in depth by inviting a counter affidavit and examining the matter in detail.  

A summary disposal of a writ petition by allowing it without even calling for  

a counter affidavit and quashing the rules, in our opinion, is totally against  

any established procedure of law.

6. Apart from the above, on merits also we are of the opinion that the  

writ petition deserved to be dismissed and was wrongly allowed.

7. Article  343(1)  of  the  Constitution  of  India  states  that  the  official  

language of the Union of India shall be Hindi in Devnagari script.  To fulfill  

the  mandate  of  this  provision  the  Government  of  India,  Ministry  of  

Communications, decided to have a Hindi Cell in each Central Government  

department  and  Central  Government  instrumentality  with  the  object  of  

promoting  progressive  use  of  Hindi  in  the  official  notings  and  

communications.  Accordingly, it framed Rules in 1983 under Article 309 of  

the  Constitution.   In  1983,  there  were  43  posts  of  Hindi  Officers  in  the  

department and it was provided that 50% of the posts will be filled up by  

direct recruitment, 30% by promotion and 20% by transfer on deputation.  

The essential qualification for holding the post was Masters Degree in the  

concerned subject and 5 years’ experience of teaching, research, writing or  

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journalism in Hindi.  As far as promotions were concerned, it was stipulated  

that Hindi Translator Grade-I with 3 years’ regular service in the grade could  

be selected by a Departmental Promotion Committee in consultation with  

the Union Public Service Commission.

8. In April  1994, the Department of Telecommunications decided that  

since  the  subordinate  units  (Telecom  Circles)  were  facing  difficulties  in  

filling up the posts as per the existing provisions, the posts of Hindi Officers  

may  be  filled  up  amongst  the  cadre  of  Hindi  Translator  Grade-I/Grade-

II/Grade-III with 3, 5 or 8 years’ service respectively in the Circle/District  

concerned, failing which the posts may be filled up from amongst the Group  

‘C’ cadres based on length of service possessing the qualifications in the  

Recruitment Rules.

9. On  1.10.2000,  the  Department  of  Telecommunications  was  

reorganized with the formation of Bharat Sanchar Nigam Limited (in short  

‘BSNL’) as a Government Company to take charge of the operations and  

maintenance of telecom and telegraph network of the entire country.  The  

respondents  herein  after  formation  of  BSNL  were  given  option  for  

absorption in the Corporation in the level of Junior Hindi Translators, which  

option they exercised and they were absorbed accordingly.

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10. There were some objections to the Recruitment Rules of 2002 which  

had been circulated departmentally, but allegedly these Rules were never in  

operation at any point of time.  Accordingly, the revised Recruitment Rules  

2005  were  formulated  and  issued  on  5.8.2005  whereby  120  posts  were  

classified  as  Executive  with  the  nomenclature  of  Raj  Bhasha  Adhikari.  

While the educational qualifications remained the same as before, the mode  

of recruitment was totally changed in the Recruitment Rules of 2005.  The  

entire  cadre  was  to  be  filled  up  by  a  Limited  Internal  Competitive  

Examination.  It is these Rules which have been struck down by the High  

Court.

11. It may be mentioned that the respondents herein were never regularly  

promoted as Hindi Officer at any point of time either under the 1984 Rules  

or Recruitment Rules, 2002.  They had never been appointed on the basis of  

the  recommendation  of  the  Departmental  Promotion  Committee  duly  

approved  by  the  Union  Public  Service  Commission.   In  fact,  they  were  

appointed purely on a local officiating basis under the powers delegated to  

the Heads of Telecom Circles  on the basis of administrative instructions  

dated 28.4.1994.   Thus, they were never regular appointees and hence had  

no  vested  rights  for  promotion  to  the  post  of  Hindi  Officer  under  the  

Recruitment Rules of 2002, which, in fact, were never in operation at any  

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point of time.   Besides this, when the revised Recruitment Rules 2005  were  

formulated, 120 posts were classified as Executive, and for the Executive  

cadre posts, the mode of recruitment was changed and it was now to be filled  

up  by  a  Limited  Internal  Competitive  Examination.  It  cannot  now  be  

allowed to be filled up by promotion of persons working on officiating basis.  

In our opinion   there was nothing illegal in this change of policy.  

12. Rules  under Article 309 can be changed even during the subsistence  

of the old Rules.  As held in Raj Kumar  vs.  Union of India, AIR 1975 SC  

1116 (vide para 7),  “Rules made under the proviso to Article 309 of the  

Constitution are legislative in character, and therefore can be given effect to  

retrospectively.”   Thus,  rules  under  the  proviso  to  Article  309  are  

Constitutional rules,  not  like rules  under a statute.   Hence they have the  

same force as a Statute, though made by the executive.

13. It is well settled that the legislature can legislate retrospectively vide  

M.P.V. Sundararamier & Co.  vs.  State of Andhra Pradesh, AIR 1958  

SC 468, J.K. Jute Mills  vs.  State of Uttar Pradesh, AIR 1961 SC 1534,  

Jadao  Bahuji  vs.   Municipal  Committee,  AIR  1961  SC  1486,  

Government of Andhra Pradesh  vs.  Hindustan Machine Tools Ltd.,  

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AIR 1975 SC 2037 (para 8),  Nandumal Girdharilal  vs.  State of Uttar  

Pradesh, AIR 1992 SC 2084, etc.  

14. Hence, the approach of the High Court, in our opinion, was totally  

incorrect.    In State of Punjab and others vs. Arun Aggarwal and others  

(2007) 10 SCC 402, it was observed (in para 30):

“There is no quarrel over the proposition of law that the  normal rule is that the vacancy prior to the new Rules  would  be  governed  by the  old  Rules  and not  the  new  Rules.   However,  in the present  case,  we have already  held that the Government has taken a conscious decision  not to fill the vacancy under the old Rules and that such  decision has been validly taken keeping in view the facts  and circumstances of the case”.         

15. In the present case, a conscious decision was taken in 2005 providing  

that  all  the  posts  in  question  should  be  filled  up  by  Limited  Internal  

Competitive Examination.  This was a policy decision and we cannot see  

how the High Court could have found fault with it.  It is well settled that the  

Court cannot ordinarily interfere with policy decisions.

16. No doubt in some decisions it was held that a vested right cannot be  

taken away by amendment of the rules.  But what does this really mean?  

Since a rule under the proviso to Article 309 is legislative in character vide  

Raj Kumar  vs.  Union of India (supra) the rule can be amended, even with  

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retrospective effect, just as a legislation can be amended with retrospective  

effect.

17. In our opinion the expression ‘vested right’ could only mean a vested  

Constitutional right,  since a Constitutional right cannot be taken away by  

amendment of the rules.

18. This is evident from the Constitution Bench decision of this Court in  

Chairman, Railway Board  vs.  C.R. Rangadhamaiah (1997) 6 SCC 623.  

It was held therein that pension is no longer treated as a bounty but was a  

valuable  Constitutional  right  under  Articles  19(1)(f)  and  31(1)  of  the  

Constitution, which were available on 1.1.1973 and 1.4.1974 (that is before  

the 44th Constitution Amendment).  Since this was a Constitutional right it  

could not be taken away by amendment of the rules.  The Constitution is the  

supreme law of the land, and hence a Constitutional right can only be taken  

away by amending the Constitution, not by amending the rules or even by  

amending the statute.

19. Hence in view of the aforesaid Constitution Bench decision the other  

decisions of this Court of smaller benches must be understood to mean that a  

vested Constitutional right cannot be taken away by amendment of the rules.  

It follows that if the vested right is not a Constitutional right it can be taken  

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away by retrospective amendment of the rules.  A legislative act can destroy  

existing  rights,  (unless  it  is  a  Constitutional  right).   Thus,  even a  taxing  

statute can be made retrospectively, and this usually affects existing rights  

vide Union of India  vs.  Madangopal, AIR 1954 SC 158, Jawaharlal  vs.  

State of Rajasthan, AIR 1966 SC 764(770),  Tata Iron & Steel Co. Ltd.  

vs.  State of Bihar, AIR 1958 SC 452,  D.G. Gouse & Co.  vs.  State of  

Kerala, AIR 1980 SC 271 (para 16), Shetkari Sahkari Sakhar Karkhana  

Ltd.  vs.  Collector, AIR 1979 SC 1972 (para 6-7), etc.

20. A  rule  made  under  the  proviso  to  Article  309  is  a  legislative  act  

(though made by the executive).  It is not a piece of delegated legislation like  

a rule made under a statute.  Hence it can be amended retrospectively.     

21. In  para  8  &  9  of  the  impugned  judgment,  the  High  Court  has  

observed:

“The main and the central contention from the side of the  petitioners is that since the Old Rules specifically stated  that  since  these  Rules  will  remain  effective  for  three  years, it was not for the respondent No. 3 to change these  Rules  before  three  years,  and to  formulate  new set  of  rules,  changing  the  basic  structure  of  promotion,  as  petitioners who were already working on the post of AD  (OL) as far back as since 10.7.1995 on local officiating  basis.   

We agree with the contention of the learned counsel for  the  petitioner,  because,  Law  and  Equity  as  well  as  

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Honesty  and  Fair  Play  jointly  provide  support  of  the  petitioners’ contention, that once it has been laid down in  the old Rules (Rule 10(iv) that they will not be changed  for  three  years,  respondent  No.  3  BSNL,  who  is  a  Government of India enterprise, cannot change the Rules  before  expiry  of  three  recruitment  years,  and  cannot  formulate a new set of Rules detrimental to the interests  of  the  petitioners.   This  undertaking  given  by  the  respondent No. 3 in the earlier Rules, is sacrosanct, and  the respondent No. 3 is bound to honour the same.  They  cannot  and  should  not  be  allowed  to  say,  a  good-bye  from the  same.   If  they  wanted  to  retain  the  right  to  change  the  Rules,  they  should  not  have  given  an  undertaking  by framing sub-rule(iv)  of  Rule  10  of  the  Old Rules.  But once they have given this assurance in  the  Rules,  they  respondents  cannot  and  should  not  be  allowed to turn around and resile from the same”.     

22. We are of the opinion that the above observations are not sustainable.  

When  Rules  are  framed  under  Article  309  of  the  Constitution,  no  

undertaking need be given to anybody and the Rules can be changed at any  

time.   For instance,  if  the  retirement age is  fixed by rules  framed under  

Article 309, that can be changed subsequently by an amendment  even in  

respect of employees appointed before the amendment.  Hence, we cannot  

accept the view taken by the High Court.  There is no question of equity in  

this case because it is well settled that law prevails over equity if there is a  

conflict.  Equity can only supplement the law, and not supplant it.  As the  

Latin maxim states “Dura lex sed lex”’ which means “The law is hard, but it  

is the law”.

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23. For the aforementioned reasons, the appeal is allowed.  The impugned  

judgment and order of the High Court is set aside.  There shall be no order as  

to costs.

Civil Appeal No. 427 of 2008

24. In view of the decision in Civil Appeal No. 1405 of 2007, this appeal  

is  allowed.   The impugned judgment  and order  of  the High Court  is  set  

aside.  No costs.  

……………………………J. (Markandey Katju)

……………………………J. (Gyan Sudha Misra)

New Delhi; April 15,  2011

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