The Judgment of the Court was delivered by

P. Subramonian Poti, J. (On Behalf Of Full Bench):— This is an appeal against the judgment of our learned brother Bhaskaran, J. holding that Ext. P-2 notification issued by the Government of Kerala in exercise of the powers conferred by sub-s. (1) of Section 2 of the Kerala Public Services Act, 1968 had retrospective operation only from 23-6-1965 though the notification purported to be retrospective from 25-9-1962. The appeal is by the State of Kerala and the Board of Revenue of the State who were the respondents in the original petition.

2. Government, by Ext. P-2 order dated 25-5-1974 issued special rules for the Kerala Revenue Service. This was in exercise of the powers conferred by sub-s. (1) of Section 2 of the Kerala Public Services Act read with S. 3 thereof. Kerala Revenue Service consists of Tahsildars in the Revenue Department. The rules which were issued in supersession of the rules issued in Notification, No. G.O(P) 481 dated 23-6-1965 provided that the rules shall be deemed to have come into force on the 25th Sept., 1962.

3. The petitioners who were Tahsildars were promoted to that post on 14-6-1962 and 21-5-1962 respectively. They were reverted later, but they were continuously holding that post from 25-6-1966 and 1-4-1965 respectively. They seek to quash a provisional seniority list prepared by the Board of Revenue said to be without advertence to R. 27 of the Kerala State and Subordinate Services Rules. They also seek the issue of a writ of mandamus directing the respondents not to post officers to the post of Deputy Collectors without reference to the seniority of the petitioners considered on the basis of their date of first appointment to the post of Tahsildars on 14-6-1962 and 21-5-1962 respectively. They also seek to quash Ext. P-2 special rules to the extent they purport to be retrospective from 25-9-1962. Under Government Order dated 23-6-1965 the State of Kerala was treated as in 3 Zones and the recruitment by transfer and promotions were treated on a Zonal basis. Under Ext. P-2 this was altered and that order contemplated the preparation of a combined seniority list of Tahsildars treating the State as one unit for that purpose with retrospective effect from 25-9-1962. In that event the fact that petitioners had been appointed even in 1962 as Tahsildars may not give them the benefit of seniority which they seek. They apprehend that in the matter of selection of candidates for promotion to the cadre of Deputy Collectors they would not get due consideration since their dates of first appointment to the cadre of Tahsildars cannot be taken into account in view of the State being treated as one unit retrospectively from 25-9-1962. They have succeeded in their plea since the learned Single Judge has found that the rules would be retrospective only from 23-6-1965 prior to which date they had been appointed as Tahsildars.

4. The Kerala Public Services Act, 1968 came into force on 17-9-1968. It was enacted to provide for rules of recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State of Kerala. It is a short enactment of three sections. Section 2 thereof empowered the Government to make rules to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State of Kerala and also laid down the procedure concerning the framing of the rules. Section 3 validated rules made under the Proviso to Article 309 of the Constitution of India before the commencement of the Act. Sections 2 and 3 of the Act read as follows:

“2. Regulation of recruitment and conditions of service—

(1) The Government may make rules (either prospectively or retrospectively) to regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State of Kerala.

(2) Every rule made under this section shall be laid as soon as may be after it is made before the Legislative Assembly while it is in session for a total period of 14 days which may be comprised in one session or in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly agrees that the rule should be either modified or annulled, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

3. Continuance of existing rules.- All rules made under the Proviso to Article 309 of the Constitution of India, regulating the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State of Kerala and in force immediately before the commencement of this Act, shall be deemed to have been made under this Act as if this Act had been in force on the date on which such rules were made and shall continue to be in force unless and until they are superseded by any rules made under this Act.”

5. The words “either prospectively or retrospectively” were inserted in Section 2 of the Act by amendment Act 5 of 1970.

6. Section 2 evidently enables rules to be made by the Government with prospective or retrospective operation. Section 3 is intended to serve another purpose. Prior to the commencement of the Kerala Public Services Act the conditions of service of civil servants were governed by rules made by the Governor under Article 309 of the Constitution of India. Section 3 provided that such rules as were in force immediately before the commencement of the Kerala Public Services Act were to be deemed as made under the Public Services Act. The Kerala Public Services Act was not in operation on the dates of coming into force of such rules but S. 3 provided that the deeming provision would operate as if the Act was in force on the date on which such rules were made. Such rules were to be in force unless and until they were superseded by the rules made under the Kerala Public Services Act. Ext. P-2 purported to be rules made in supersession of the rules issued in G.O.P 481 dated 23-6-1965. Rule 1 of the rules provided that the rules shall be deemed to have come into force on the 25th Sept., 1962. The case of the petitioners is that in so far as the rules in Ext. P-2 purport to be substitute for the rules which they sought to supersede the rules cannot be retrospective beyond 23-6-1965, the date on which such superseded rules had come into force. It was said that the power to frame rules retrospectively conferred by Section 2(1) of the Kerla Public Services Act cannot enable the framing of rules so as to operate retrospectively beyond the date on which the corresponding rules under S. 3 had come into force. Evidently this plea appealed to the learned Single Judge.

7. Two questions that arise for decision in this case are (1) Has the legislature power to confer on the Government authority to make rules with retrospectivity extending to a period when the Act itself was not in operation? (2) Assuming the answer is yes whether Section 2(1) of the Kerala Public Services Act confers power to make rules to operate prior to the commencement of the said Act.

8. That the legislative power cannot be fettered except by express words of the Constitution and that retrospectivity is ancillary or subsidiary to the legislative power are propositions well settled. Hence we need not particularly refer to the decisionns on the question cited by the learned Advocate-General. Rules under an enactment could be made from time to time and in respect of such rules if they are to be operative from earlier dates the power of retrospectivity has to be conferred. The Supreme Court in I.T Officer, Alleppy v. M.C Ponnose, (1969) 2 SCC 351 : AIR 1970 SC 385 said at page 387 thus:

“The Parliment can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the Courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect.”

9. We shall now consider the second of the two questions posed. To understand the scope of Section 2(1) of the Act it is necessary to refer to the scheme of the Act and in particular to Section 3 of the Act. Prior to the commencement of the Kerala Public Services Act the conditions of services of persons appointed to public services and posts in connection with the affairs of the State of Kerala were regulated by rules made by the Governor under the Proviso to Article 309 of the Constitution. These rules were deemed under Section 3 of the Act to have been made under the Act and to enable such deeming to be made the Section provided “as if this Act had been in force on the date on which such rules were made……” The rules so deemed to be made under the Act though not actually made under the Act are to continue in force until they are superseded by rules made under Section 2(1) of the Act. When rules are made under S. 2(1) to supersede the rules made earlier under Article 309 of the Constitution it is not as if the earlier rules are thereby amended. They are superseded in accordance with S. 3 by rules which get their validity because of S. 2(1) of the Act. The rules under the Proviso to Article 309 of the Constitution are deemed to be made under the Public Services Act by projecting the Act back to the dates on which such rules were made. Consequence would be that even though the rules were made by the Governor in exercise of the power under the Proviso to Article 309 of the Constitution, by reason of S. 3 those rules are deemed to be made under the Kerala Public Services Act. Though the Act actually commenced its operation only on 17-9-1968 the Act is deemed to have been in existence on earlier dates, dates on which the rules under Article 309 of the Constitution came into force and thereby such rules get validity from the Kerala Public Services Act. Hence even in the case of valid rules made under Article 309 the device envisaged is one of deeming them as made under the Kerala Public Services Act by projecting back the Act to the respective dates on which the rules were so made. If this be the scheme, without anything more, the retrospectivity for rule making contemplated in S. 2 cannot be extended to a period when the Act had not commenced operation. The language of the rule also does not complement (contemplate such ?) a construction. Rules are always not made as soon as the Act comes into force. They may be made from time to time and unless power of retrospectivity is conferred on the rule making authority whenever it makes such rules they could operate only prospectively and not from the date of commencement of the Act itself. Hence the need for conferring retrospective rule making power. Retrospectivity conceived in Section 2(1) of the Act is on its plain language, retrospectivity enabling operation from the date of commencement of the Act and not from a date prior to its commencement. If retrospectivity of the rules so as to operate prior to the commencement of the Act was contemplated under the Act there was no need to provide in Section 3 of the Act “as if this Act had been in force on the date on which such rules were made.” In the circumstances we hold, on a construction of Section 2(1) of the Act that the authority conferred on the Government under that sub-section is to make rules prospectively as also retrospectively but such retrospectivity does not extend to any period prior to the commencement of the Act. In this view it may not be necessary to pronounce in this case on the larger question whether rules could be made to operate prior to the commencement of the enactment.

10. In the case before us Ext. P2 rules do not purport to amend the rules of 1965 made under Article 309. Ext. P2 purports to be in supersession of the rules of 1965. The rules which so superseded the existing rules are therefore those made under Section 2(1) of the Kerala Public Services Act. They retrospectively operate from the date of the commencement of the Act, namely 17-9-1968. Since the view expressed by the learned single Judge that the rules are valid from 23-6-1962 has not been challenged and the case of the State being that it should be further pushed back to 25-9-1962 we are not called upon to alter the decision reached by the learned single Judge.

11. In the circumstances we find that the state cannot succeed in its plea that the rules must be held to be retrospective from 25-9-1962. The appeal fails. It is dismissed. No costs.

12. V.P GOPALAN NAMBIYAR, C.J :— In view of the important and novel question raised, I add a few words of my own to the judgment delivered on behalf of the Full Bench by my learned brother Poti J., which I have myself signed.

13. Section 2 clause (1) of the Public Services Act confers on the Government the power to make Rules prospectively or retrospectively. This power of rule-making is conterminous with the power of legislation by a statute. But whereas a statutory provision can operate on its own, a subordinate legislation (like a statutory rule) requires the supporting cast of a statute to rest and to sustain it. It appears just and logical that if the supporting cast is not available the Rule or the subordinate legislation lacks foundation, and must, for that reason, fail.

14. Therefore it appears that just, as a rule cannot survive the death of the Act (except in respect of actions taken under it, rights or privileges accrued under it etc.), it cannot perhaps project back prior to its birth. As stated in the judgment on behalf of the Bench, a pronouncement on this vexed question is unnecessary, as, on the scope and content of Ex. P2 Rules, they purport to be fresh Rules under S. 2(1) of the Act. In that view Ext P. 2 rules should have validity only from 17-9-1968 But the learned Judge's view pushing back its validity to 23-6-1965 has not been challenged; the only complaint in the appeal being that it should have been pushed back still further to 25-9-1962. Interference with the learned Judge's view is therefore foreclosed, although in the light of the view expressed by us, the learned Judge's conclusion is unsustainable.

15. Appeal dismissed.