REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   3299    OF 2011 (Arising out of SLP (C) NO. 16427 OF 2009)

J.S. Yadav                               …Appellant

Versus   State of U.P. & Anr.                 …Respondents

J U D G M E N T   

Dr. B. S. CHAUHAN, J.

1. Leave granted.   

2. This appeal is focused animadverting upon the judgment and  

order  dated  21.4.2009  passed  by  the  High Court  of  Judicature  at  

Allahabad in Civil Misc. Writ Petition No. 27315 of 2008, by which  

the  High Court  dismissed  the  writ  petition  filed  by the  appellant,  

challenging the Notification dated 28.5.2008, by which on the date of  

reconstitution  of  the  U.P.  State  Human  Rights  Commission  

(hereinafter referred to as `Commission’), the appellant was declared

to  have  ceased  to  hold  the  office  as  a  Member  of  the   said  

Commission.  

3. Compendiously and concisely, the relevant facts necessary and  

germane to the disposal of this appeal run as under:  

          (A) Appellant entered the U.P. Judicial Services as Munsiff  

in the year 1972 and was promoted to the post of Additional District  

Judge in the year 1985 and further promoted to the post of District  

Judge w.e.f. 14.1.2003.   

           (B) The appellant  while  working  as  a  Principal  Secretary  

and Legal Remembrancer, Government of U.P., was appointed as a  

Member of the Commission on 29.6.2006 for a period of five years  

i.e. till 30.6.2011.  The appellant joined on the said post on 1.7.2006.  

           (C)  Sections 21, 23, 25 and 26 of The Protection of Human  

Rights Act, 1993 (hereinafter called `the Act 1993’), stood amended  

vide  The  Protection  of  Human  Rights  (Amendment)  Act,  2006  

(hereinafter  referred  to  ‘Amendment  Act  2006’).  The  said  

amendment came into force on 23.11.2006.  

            (D)  After completion of the tenure by the then Chairperson  

of  the  Commission  and  other  Members  in  October  2007,  the  

appellant  remained the lone working Member  of the Commission.  

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The State of U.P. issued Notification dated 28.5.2008  to the effect  

that  appellant  ceased  to  hold   the  office  as  a  Member  of  the  

Commission.  

            (E) The  appellant  challenged  the  said  Notification   dated  

28.5.2008 by filing Writ Petition No. 27315 of 2008, mainly on the  

grounds that he had been appointed for a tenure of five years and that  

period could not be curtailed. The amendment Act 2006 could not  

take  away  the  accrued  rights  of  the  appellant  as  he  had  been  

appointed prior to the said amendment.   

  (F)  The appellant did not implead anyone except the State of  

U.P. and its Principal Home Secretary as respondents in the said writ  

petition.  However, the vacancies on the post of the Chairperson as  

well  as  of  the  Members  of  the  Commission  were  filled  up  on  

6.6.2008 and, in view thereof, no interim order could be passed by  

the High Court.  

 (G)  The  High  Court  dismissed  the  writ  petition  vide  

impugned judgment and order dated 21.4.2009.  Hence, this appeal.  

4. Shri  V.  Shekhar,  learned  senior  counsel  with  Ms.  Shilpa  

Singh, appearing for the appellant, has submitted that as the appellant  

was holding the tenure post for a period of five years, he was entitled  

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to continue till  30.6.2011; the Amendment Act 2006 could not be  

applied  retrospectively  and  it  could  not  curtail  the  tenure  of  the  

persons  who  had  been  appointed  and  continuing  as  a  

Chairperson/Member of the Commission prior to the commencement  

of the amended provisions in force.  Appointments  subsequent to  

22.11.2006,  could be made  as per the provisions of the Amendment  

Act 2006.  Even otherwise, the appellant fulfilled the eligibility of  

having seven years experience as a District Judge required under the  

Amendment  Act  2006,  in  view  of  the  fact  that  the  U.P.  Higher  

Judicial  Service  Rules,  1975 (hereinafter  referred to as  `the Rules  

1975’),  clearly  provided  that  there  would  be  a  single  cadre  

comprising the posts of District and Sessions Judges and Additional  

District  and  Sessions  Judges.   More  so,  Article  236(a)  of  the  

Constitution of India clearly stipulates that District  Judge includes  

the Additional District Judge and Assistant District Judge.  Thus, the  

appellant  was fully  eligible/qualified   to  be appointed  afresh as  a  

member of the Commission even as per the Amendment Act 2006.  

The  appellant  did  not  incur  any  disability  during  the  period  of  

holding the post as a Member of the Commission, thus, could not be  

removed from the service, except in the manner set out under Section  

23  of  the  Act  1993.   More  so,  it  was  not  a  case  where  the  

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Commission  itself  stood dissolved/disbanded  as  a  whole  and new  

Commission has been constituted under the amended provisions of  

law.  Thus, the impugned judgment and order is liable to be set aside.  

The  appeal deserves to be allowed.  

5. Per  contra,  Shri  Pramod  Swarup,  learned  senior  counsel  

appearing  on  behalf  of  the  respondents,  has  opposed  the  appeal  

vehemently contending that High Court could not have entertained  

the  writ  petition  on merit   as  no relief   could  be granted to  the  

appellant  for  the  reason  that  fresh  appointments  on  the  posts  of  

Member  of  the  Commission  had  been  made  on  6.6.2008  itself.  

During the pendency of the writ petition, the appellant did not amend  

his  petition  impleading  the  newly  appointed  member(s),  thus,  

petition was liable to be dismissed only on the ground of non-joinder  

of necessary parties.  Even this Court cannot grant pecuniary benefits  

to the appellant for the reason that the public exchequer of the State  

of U.P. cannot be fastened with liability of the payment of salary to  

two persons  on one post.  The appellant  suffered the  disability  by  

virtue of operation of the amended law and ceased to be competent to  

hold the post in view of the Amendment Act 2006.  Thus, he has  

rightly been declared to have ceased to hold the post as a Member of  

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the Commission. The Legislature is  competent to alter the service  

conditions  of  an  employee  unilaterally,  and  that  too,  with  a  

retrospective effect.   The appellant  has submitted before the High  

Court that he did not want any relief  so as to dislodge the newly  

appointed Member(s)  of  the  Commission  and was seeking only a  

declaration that he had unlawfully been discontinued, so as to avoid  

to  further  exercise  the  power  so  vested  in  the  State  Government.  

Thus, the matter remained purely academic before the High Court.  

Peculiar  facts  of  the  case  do  not  warrant  deciding  the  appeal  on  

merit.  Even  otherwise,  the  appeal  lacks  merit  and is  liable  to  be  

dismissed.  

6. We have considered  the  rival  submissions  made  by learned  

counsel for the parties and perused the records.

7. Relevant provisions of the Act 1993 and provisions inserted by  

Amendment Act 2006 read as under:

UNDER ACT NO.  1  OF 1994  (AS IT STOOD ON THE DATE  OF  APPOINTMENT  OF  THE  APPELLANT)

Under the Amendment Act 2006 (w.e.f. 23.11.2006)

SECTION 21: (2)  The State Commission shall  consist of  

(2)  The  State  Commission  shall,  with effect from such date as the  

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(a) ………………. (b) one member  who is,  or  has  been,  a Judge of a High Court.  (c)  one member who is, or  has  been,  a  district  Judge in  that  State.  SECTION  23:

23.   Removal  of  a  Member  of  the  State  Commission  –  (1)  Subject to the provisions of Sub- section  (2),  the  Chairperson  or,  any  other  member  of  the  State  Commission  shall  only  be  removed from his office by order  of the President on the ground of  proved  mis-behaviour  or  incapacity  after  the  Supreme  Court,  on  a  reference  being  made to it by the President, has,  on  inquiry  held  in  accordance  with the procedure prescribed in  that  behalf  by  the  Supreme  Court,  reported  that  the  Chairperson  or  such  other  Member,  as  the  case  may  be  ought on any such ground to be  removed.  

…………………… SECTION 26:

26.   Terms  and  conditions  of  service of Members of the State  

State  Government  may  by  Notification  specify,  consist  of:-  (a)  …………………………  (b)   one member who is, or has  been a Judge of  a High Court or  District Judge in the State  with a  minimum  of  seven  years  experience as District Judge;  

23. [Resignation and Removal of  Chairperson  or  a  Member  of  the  State Commission]  [(1) The Chairperson or a Member  of  a  State  Commission  may,  by  notice  in  writing  under  his  hand  addressed to the Governor, resign  his office.  (1A)  Subject to the provisions of  Sub-section  (2),  the  Chairperson  or, any other member of the State  Commission  shall  only  be  removed from his office by order  of the President on the ground of  proved  mis-behaviour  or  incapacity  after  the  Supreme  Court, on a reference being made  to  it  by  the  President,  has,  on  inquiry  held  in  accordance  with  the  procedure  prescribed  in  that  behalf  by  the  Supreme  Court,  reported  that  the  Chairperson  or  such  other  Member,  as  the  case  may be ought on any such ground  to be removed.  

……………………….

26.  [Terms  and  conditions  of  service  of  Chairperson  and  

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Commission  – The salaries  and  allowances payable to, and other  terms  and conditions  of  service  of, the Members shall be such as  may be prescribed  by the  State  Government.  

Provided that  neither  the  salary  and  allowances  nor  the  other  terms and conditions of service  of a Member shall be varied to  his  disadvantage  after  his  appointment.

Members  of  the  State  Commission- The  salaries  and  allowances  payable  to,  and  other  terms  and  conditions  of  service  of,  the  Chairperson and Members shall be  such as may be prescribed by the  State Government.  

Provided  that  neither  the  salary  and  allowances  nor  the  other  terms and conditions of  service  of  the  Chairperson  or  a  Members shall  be varied to his  disadvantage  after  his  appointment.                     (Emphasis added)

8. The  other  legal  provisions  which  may  be  relevant  for  

consideration of the Court are as under:  

(i) Article 236(a) of the Constitution of India reads as under:

“(a) the expression “district judge” includes judge of a  city civil court,  additional district judge, joint district  judge,  assistant  district  judge,  chief  judge of  a small  cause  court,  chief  presidency  magistrate,  additional  chief presidency magistrate, sessions judge, additional  sessions judge and assistant sessions judge”.  

(ii) Section 3(17) of the General Clauses Act,  1897 (hereinafter  

referred to as `the Act 1897’), provides that “District Judge” means:

“(17) “District Judge” shall  mean the Judge of a  principal  Civil  Court  of  original  jurisdiction,  but  shall not include a High Court in the exercise of its  

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ordinary  or  extraordinary  original  civil  jurisdiction.”

  Section 6: Effect of repeal- Where this Act or any Central  

Act or Regulation made after the commencement of this Act, repeals  

any enactment hitherto made or hereafter to be made, then, unless a  

different intention appears, the repeal shall not -

(a) ………………………

(b) affect the previous operation of any enactment  so repealed or anything duly done or suffered  thereunder; or

(c) affect  any  right,  privilege,  obligation  or  liability  acquired,  accrued  or  incurred  under  any enactment so repealed; or  

(d) ………………….. (e) …………………..

(iii) Rule 4 of the Rules, 1975 reads:   

Strength of  the Service: (1)  The service shall  consist  of  a  

single cadre comprising the posts of –

(a) District and Sessions Judges, and  

(b) Additional District and Sessions Judges.  (Emphasis added)

9. Against the aforesaid backdrops and in view of the aforesaid  

statutory provisions, it has been canvassed on behalf of the appellant  

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that as the experience of Additional District Judge can also be taken  

into consideration as that of a District Judge, the appellant possessed  

the eligibility even under the amended provisions and thus, was not  

liable to be dislodged   

The High Court dealt with the issue elaborately and came to  

the  conclusion  that  ordinary  and  natural  meaning  is  not  to  be  

controlled by supposed intention of the Legislature. A court cannot  

stretch the language of a statutory provision to bring it in accord with  

the supposed legislative  intent  underlying it,  unless  the  words are  

susceptible  of  carrying  out  that  intention.  Thus,  considering  the  

object  and  purpose  of  the  amendment,  it  cannot  be  held  that  

experience of the appellant as Additional District Judge could also be  

taken into consideration as that of a District Judge.  Much reliance  

has  been  placed  by  Shri  Shekhar,  learned  senior  counsel  for  the  

appellant on the language of Rule 4 of the Rules 1975 that there is a  

single cadre comprising the posts of District and Sessions Judges and  

Additional  District  and  Sessions  Judges.  Thus,  there  is  no  basic  

difference between the said two posts.  

10. The aforesaid submission seems to be very attractive but has  

no substance for the reason that a cadre generally denotes a strength  

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of a service or a part of service sanctioned as a separate unit. It also  

includes sanctioned strength with reference to grades in a particular  

service.  Cadre  may  also  include  temporary,  supernumerary  and  

shadow posts  created  in  different  grades.  The  expression “cadre”,  

“posts”  and  “service”  cannot  be  equated  with  each  other.  (See:  

Union of India v. Pushpa Rani & Ors.,  (2008) 9 SCC 242; and  

State of Karnataka & Ors. v. K. Govindappa & Anr., AIR 2009  

SC 618). There is no prohibition in law to have two or more separate  

grades  in  the  same  cadre  based  on  an  intelligent  differential.  

Admittedly, the post of District Judge and Additional District Judge  

in the State of U.P. is neither inter-changeable nor inter-transferable.  

The aforesaid Rules merely provide for an integrated cadre for the  

aforesaid posts. Thus, the submission is liable to be rejected being  

preposterous.

11. Same remains the position so far as the provisions of Article  

236(a) of the Constitution of India are concerned. The said Article  

relates to the procedure of appointment on the post of the District  

Judge and other Civil Judicial posts inferior to the post of District  

Judge. The definition in Article 236 covers the higher section of the  

State Judicial Service both in the civil and criminal sides. (See:  All  

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India Judges’ Association v. Union of India & Ors., AIR 1992 SC  

165).  

12. In such a fact-situation, we do not see any cogent reason to  

take  a  view contrary  to  the  same  for  the  reason  that  in  case  the  

Legislature in its wisdom has prescribed a minimum experience of  

seven  years  as  District  Judge  knowing  it  fully  well  the  existing  

statutory  and  constitutional  provisions,  it  does  not  require  to  be  

interpreted ignoring the legislative intent. We cannot proceed with an  

assumption that Legislature had committed any mistake enacting  the  

said  provision. Clear statutory provision in such a case is required to  

be literally construed by considering the legislative policy. Thus,  no  

fault  can  be found with  the  impugned judgment and order  of  the  

High Court on this count.  

13. The question does arise as to whether the State could issue the  

Notification making a declaration that the appellant ceased to be the  

member of the Commission and whether the said Notification could  

take away the accrued rights of the appellant?

14. The appellant had joined as a member of the Commission vide  

order  dated 29.6.2006 under  the  Act  1993.  Section 26 of  the  Act  

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1993 specifically provided that neither the salary and allowances nor  

other terms and conditions of service of a member shall be varied to  

his dis-advantage after his appointment. The submission so made on  

behalf of the appellant in this regard has not been considered by the  

High Court taking into consideration the provisions of Section 26 at  

all.   As  the  appellant  was  fully  eligible  and  competent  to  be  

appointed under the Act 1993 and he had duly been appointed and  

worked  for  about  2  years  including  the  period  after  the  

commencement of the Amendment Act 2006, the declaration that he  

ceased  to  hold  the  post  as  a  Member  of  the  Commission,  is  in  

flagrant violation of the statutory provisions contained in Section 26  

of the Act 1993 itself.  

        15.  Needless to say that “the expression `terms of service’ clearly  

includes  tenure  of  service”.  (Vide:  Dr.  D.C.  Saxena  v.  State  of  

Haryana & Ors., AIR 1987 SC 1463).  

         16. The view taken by the High Court  in this  respect  is  not  in  

consonance  with  the  statutory  provisions.  The  amendment  would  

apply  prospectively,  particularly  in  view  of  the  fact  that  the  

Amendment Act 2006 does not expressly or by necessary implication  

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suggest that such a drastic  step is permissible giving retrospective  

effect to the Amendment Act 2006.    

17. An employee appointed for a fixed period under the Statute is  

entitled to continue till the expiry of the tenure and in such a case  

there can be no occasion to pass the order of superannuation for the  

reason that the tenure comes to an end automatically by afflux of  

time. (Vide: Dr. L.P. Agarwal v. Union of India & Ors., AIR 1992  

SC 1872; and State of U.P. & Anr. v. Dr. S.K. Sinha & Ors., AIR  

1995 SC 768).

18. In  P. Venugopal  v.  Union of  India,  (2008)  5  SCC 1,  this  

Court considered the case wherein the Director of All India Institute  

of Medical Sciences, New Delhi, having been duly appointed for a  

period of five years had been removed prior to completion of the said  

period. The court observed as under:

“Service conditions make the post of Director a tenure   post  and as  such  the  question  of  superannuating  or  prematurely  retiring  the  incumbent  of  the  said  post   does  not  arise  at  all…..  The  appointment  is  for  a  tenure to which the principle of superannuation does   not apply.   ‘Tenure’ means a term during which the   office is held.  It is a condition of holding the office.   Once  a  person  is  appointed  to  a  tenure  post,  his  appointment to the said post begins when he joins  and   when it comes to an end on the completion of tenure   unless curtailed on justifiable grounds.  Such a person  

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does  not  superannuate.   He  only  comes  out  of  the   office  on  completion  of  his  tenure.”  (Emphasis added)

19. Justifiable grounds, as referred to hereinabove by this Court  

in  P.  Venugopal  (supra),  means  the  grounds  of  incurring  any  

disqualification while holding the post i.e. the grounds incorporated  

in Section 23 of the Act 1993.  If we give the dictionary meanings to  

the said expression, it means: “done on adequate reasons sufficiently  

supported  by  credible  evidence,  when  weighed  by  unprejudiced  

mind,  guided by common sense and by correct  rules  of  law. The  

showing in court that one had sufficient reason for doing that which  

he is  called to answer;  the ground for such a plea.  Lexically,  the  

sense is clear. An act is “justified by law” if it is warranted, validated  

and made blameless by law”.  (Vide: Raj Kapoor v. Laxman, AIR  

1980 SC 605).

20.    “The word 'vested' is defined in Black's Law Dictionary (6th  

Edition) at  page 1563, as vested; fixed; accrued; settled; absolute;  

complete.  Having  the  character  or  given  the  rights  of  absolute  

ownership; not contingent; not subject to be defeated by a condition  

precedent.'  Rights are 'vested'  when right to enjoyment, present or  

prospective,  has  become  property  of  some  particular  person  or  

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persons as present  interest;  mere expectancy of future benefits,  or  

contingent interest in property founded on anticipated continuance of  

existing  laws,  does  not  constitute  vested  rights.  In  Webster’s  

Comprehensive  Dictionary  (International  Edition)  at  page  1397,  

'vested' is defined as (law held by a tenure subject to no contingency;  

complete; established by law as a permanent right; vested interest.”  

(See: Mosammat Bibi Sayeeda & Ors. etc.  v. State of Bihar & Ors. etc.,  

AIR 1996 SC 1936).   

   21.   The word “vest” is normally used where an immediate fixed  

right  in  present  or  future  enjoyment  in  respect  of  a  property  is  

created. With the long usage the said word “vest” has also acquired a  

meaning as “an absolute or indefeasible right”. It had a “legitimate”  

or  “settled  expectation”  to  obtain  right  to  enjoy  the  property  etc.  

Such “settled expectation” can be rendered impossible of fulfilment  

due to change in law by the Legislature. Besides this, such a “settled  

expectation” or the so-called “vested right” cannot be countenanced  

against  public  interest  and  convenience  which  are  sought  to  be  

served by amendment of the law. (Vide: Howrah Municipal Corpn.  

& Ors. v. Ganges Rope Co. Ltd. & Ors., (2004) 1 SCC 663).

   22. Thus, “vested right” is a right independent of any contingency.  

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Such a right can arise from a contract, statute or by operation of law.  

A vested right can be taken away only if the law specifically or by  

necessary implication provide for such a course.  

        23.   The appellant had been appointed under the provisions of the  

Act 1993 which did not require seven years’ experience as a District  

Judge.  In the instant case, the Amendment Act 2006 came into force  

on  23.11.2006.   The  State  of  U.P.  did  not  take  any  step  for  

discontinuation of the appellant upto May 2008 on the ground that he  

did not possess the eligibility as per the Amendment Act 2006.  

24. The Legislature is competent to unilaterally alter the service  

conditions of the employee and that can be done with retrospective  

effect also, but the intention of the Legislature to apply the amended  

provisions  with  retrospective  effect  must  be  evident  from  the  

Amendment Act itself expressly or by necessary implication.  The  

aforesaid power of  the  Legislature  is  qualified further  that  such a  

unilateral  alteration  of  service  conditions  should  be in  conformity  

with legal and constitutional provisions. (Vide: Roshan Lal Tandon  

v. Union of India & Ors., AIR 1967 SC 1889; State of Mysore v.  

Krishna Murthy & Ors., AIR 1973 SC 1146; Raj Kumar v. Union  

of India & Ors., AIR 1975 SC 1116; Ex-Capt. K.C. Arora & Anr.  

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v.  State  of  Haryana  &  Ors.,  (1984)  3  SCC  281;  and  State  of  

Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors., AIR 1984  

SC 161).

25. In  Union of India & Ors. V. Tushar Ranjan Mohanty &  

Ors.,  (1994) 5 SCC 450, this Court declared the amendment with  

retrospective  operation  as  ultra  vires  as  it  takes  away  the  vested  

rights of the petitioners therein and thus, was unreasonable, arbitrary  

and  violative  of  Articles  14  and  16  of  the  Constitution.   While  

deciding the said case, this Court placed very heavy reliance on the  

judgment in  P.D. Aggarwal & Ors. v. State of U.P. & Ors., AIR  

1987 SC 1676,  wherein this Court has held as under:

“…the Government has power to make retrospective   amendments to the Rules but if  the Rules purport to   take away the vested rights and are arbitrary and not   reasonable  then  such  retrospective  amendments  are   subject  to  judicial  scrutiny  if  they  have  infringed   Articles 14 and 16 of the Constitution.”   

26. In  the  instant  case,  the  Amendment  Act  2006 is  not  under  

challenge.  However, the issue agitated by the appellant has been that  

the Legislature never intended to apply the amended provisions with  

retrospective  effect  and  therefore,  the  appellant  could  not  be  

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discontinued  from  the  post.  His  rights  stood  protected  by  the  

provisions of Section 6 of the Act 1897.  

The  issue  of  applicability  of  the  said  provision  has  been  

considered by this Court in State of Punjab v. Mohar Singh Pratap  

Singh, AIR 1955 SC 84; M.S. Shivananda v. The Karnataka State  

Road Transport Corpn. & Ors., AIR 1980 SC 77; Commissioner  

of Income Tax U.P. v. M/s.  Shah Sadiq & Sons,  AIR 1987 SC  

1217; and Vishwant Kumar v. Madan Lal Sharma & Anr., AIR  

2004 SC 1887, wherein it has been held that the rights accrued under  

the  Act/Ordinance  which  stood  repealed  would  continue  to  exist  

unless  it  has  specifically  or  by  necessary  implication  been  taken  

away by the repealing Act.

27. This Court in  State of Punjab & Ors.  v. Bhajan Kaur &  

Ors.,  AIR  2008  SC  2276,  while  dealing  with  the  provisions  of  

Section 6 of the Act 1897 held as under:  

“A statute is presumed to be prospective unless   held  to  be  retrospective,  either  expressly  or  by  necessary implication. A substantive law is presumed  to be prospective. It is one of the facets of the rule of   law…..Where a right is created by an enactment, in the   absence of a clear provision in the statute, it is not to   be applied retrospectively.”   

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28. In  Sangam  Spinners  v.  Regional  Provident  Fund  

Commissioner I,  AIR 2008 SC 739, this court held as under:  

“It is a cardinal principle of construction that every   statute is prima facie prospective unless it is expressly   or by necessary implication made to have retrospective   operation.  The absence of  a  saving clause in  a  new  enactment preserving the rights  and liabilities  under   the repealed law is neither material nor decisive of the   question.  In  terms  of  Section  6(c)  of  the  General   Clauses Act 1897 unless a different intention appears   the  repeal  shall  not  affect  any  right,  privilege  or   liability  acquired,  accrued  or  incurred  under  the  enactment repealed.”

29. A Constitution Bench of  this  Court  in  Chairman, Railway  

Board & Ors. v. C.R.Rangadhamaiah & Ors., AIR 1997 SC 3828,  

dealt with the case where the pension admissible under the Rules in  

force at the time of retirement was reduced with retrospective effect.  

This Court held such an action to be unreasonable and arbitrary being  

violative of Articles  14 and 16 of the Constitution of  India.   The  

Court observed as under:

“It  can,  therefore,  be  said  that  a  rule  which  operates in futuro so as to govern future rights of   those already in service cannot be assailed on the   ground  of  retroactivity  as  being  violative  of   Articles 14 and 16 of the Constitution, but a rule  which  seeks  to  reverse  from an  anterior  date  a   benefit which has been granted or availed of, e.g.,   promotion or pay scale, can be assailed as being  violative of Articles 14 and 16 of the Constitution   to the extent it operates retrospectively……………

In  many  of  these  decisions  the  expressions   “vested  rights”  or  “accrued  rights”  have  been  

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used while striking down the impugned provisions   which had been given retrospective operation so  as  to  have  an  adverse  effect  in  the  matter  of   promotion,  seniority,  substantive  appointment,   etc., of the employees. The said expressions have   been used in the context of a right flowing under   the relevant rule which was sought to be altered   with  effect  from  an  anterior  date  and  thereby   taking away the benefits available under the rule   in force at that time. It has been held that such an   amendment having retrospective operation which  has  the  effect  of  taking  away  a  benefit  already  available to the employee under the existing rule is   arbitrary,  discriminatory  and  violative  of  the   rights guaranteed under Articles 14 and 16 of the   Constitution.”

Thus, from the above, it is evident that accrued rights cannot be  

taken away by repealing the statutory provisions arbitrarily. More so,  

the repealing law must provide for taking away such rights, expressly  

or by necessary implication.

30.     There  is  no specific  word in  the Amendment  Act  2006 to  

suggest its retrospective applicability. Rather the positive provisions  

of Section 1 suggests to the contrary as it reads:-  

Short Title and Commencement-

 (1)…………………………………. “(2  )It  shall  come  into  force  on  such  date  as  the   Central  Government  may,  by  notification  in  the  Official Gazette, appoint”.

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Undoubtedly,  the  amended  provisions  came  into  force  on  

23.11.2006 vide S.O. 2002 (E), dated 23.11.2006, published in the  

Gazette of India, Extra Pt.II, Section 3(ii) dated 23.11.2006. In fact,  

date  23.11.2006 is the pointer and put the matter beyond doubt.   

31.   Thus, in view of the above, we do not have any hesitation to  

declare that the Notification dated 28.5.2008 is patently illegal.

32. No order can be passed behind the back of a person adversely  

affecting him and such an order  if  passed,  is  liable  to be ignored  

being not binding on such a party as the same has been passed in  

violation  of  the  principles  of  natural  justice.   The  principles  

enshrined in  the  proviso to  Order  I  Rule  9,  of  the  Code of  Civil  

Procedure, 1908 provide that impleadment of a necessary party  is  

mandatory  and  in  case  of  non-joinder  of  necessary  party,  the  

plaintiff/petitioner may not be entitled for the relief sought by him.  

The litigant has to ensure that the necessary party is before the Court,  

be it a plaintiff or a defendant, otherwise the proceedings will have to  

fail. In Service Jurisprudence if an unsuccessful candidate challenges  

the selection process,  he is bound to implead at least some of the  

successful candidates in representative capacity.  In case the services  

of a person is terminated and another person is appointed at his place,  

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in  order  to  get  relief,  the  person  appointed  at  his  place  is  the  

necessary  party  for  the  reason  that  even  if  the  plaintiff/petitioner  

succeeds, it may not be possible for the Court to issue direction to  

accommodate the petitioner without removing the person who filled  

up the post manned by plaintiff/petitioner.  (Vide: Prabodh Verma  

& Ors. etc. etc. v. State of U.P. & Ors. etc.,  AIR 1985 SC 167;  

Ishwar Singh & Ors. v. Kuldip Singh & Ors., 1995 (supp) 1 SCC  

179;  Tridip Kumar Dingal & Ors.  v. State of  West Bengal &  

Ors., (2009) 1 SCC 768; State of Assam v Union of India & Ors.,  

(2010) 10 SCC 408; and Public Service Commission, Uttaranchal  

v. Mamta Bisht & Ors., AIR 2010 SC 2613).     

More so, the public exchequer cannot be burdened with the  

liability to pay the salary of two persons against one sanctioned post.

33. The  appellant  did  not  implead  any  person  who  had  been  

appointed in his place as a Member of the Commission.  More so, he  

made  it  clear  before  the  High  Court  that  his  cause  would  be  

vindicated if the Court made a declaration that he had illegally been  

dislodged/restrained to continue as a Member of the Commission.  In  

view of the above, he cannot be entitled for any other relief except  

the declaration in his favour which had been made hereinabove that  

the impugned Notification dated 28.5.2008 is illegal.  

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34. In  view  of  above,  the  appeal  is  allowed  to  the  extent  as  

explained  hereinabove.  However,  in  the  peculiar  facts  and  

circumstances of the case, the appellant is entitled for cost to the tune  

of Rs. 1 lakh which the respondents must pay within a period of two  

months from today.  

……………………………J. (P. SATHASIVAM)

                                                                              New Delhi, ……………………………J. April 18, 2011 (Dr. B.S. CHAUHAN)

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