Bal Raj Tuli, J.:— The petitioners, eight in number, were recruited to the Indian Administrative Service (hereinafter referred to as I.A.S) as a result of open competition and are direct recruits. Respondents 3 to 7 were members of the State Civil Service and were promoted to the I.A.S in the quota fixed for them. Petitioner No. 1 appeared in the competitive examination held in 1955 and was appointed to the Service in 1956. He was, thus, assigned 1956 as the year of allotment under rule 3(3)(a) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954. Petitioners 2 and 3 were assigned 1957 as the year of allotment, and the other petitioners were assigned 1957, 1958, 1959, 1960 and 1961 as the years of allotment in accordance with the year. In which they passed the competitive examination Respondent 3 was included in the select list for the first time on January 1, 1960, and since then he was on the select list till the re-organisation of the State of Punjab with effect from November 1, 1966 After the re-organisation the select list for the State of Punjab was prepared in February, 1968, in which the name of respondent 3 was included and he was appointed to the I.A.S on February 22, 1968. Respondents 4, 5 and 6 were brought on the select list with effect from April 1, 1960, and continued to be on that list till the re-organisation. Their names were also included in the select list prepared in February, 1968, for the State of Punjab and were appointed to the I.A.S on February 22, 1968. Respondent 7 was brought on the select list on April 1, 1961, and remained on that list till the re-organisation of the State of Punjab. His name was also included in the select list prepared for the State of Punjab after re-organisation in February, 1968, and he was appointed to the I.A.S on February 25, 1968. By letter dated May 20, 1969, the Government of India assigned 1954 as the year of allotment to respondent 3 and fixed his seniority below Shri P.L Sondhi and above Shri K.D Vasudeva, petitioner No. 1. Respondent 4 was assigned 1957 as the year of allotment and his seniority was fixed below Shri R.C Kapila and above Shri R.P Ojha. Respondent 5 was assigned 1961 as the year of allotment and his seniority was fixed below Shri Sada Nand and above Shri A.S Pooni. Respondent 6 was assigned 1961 as the year of allotment and his seniority was fixed below Shri K.K Mukerjee, respondent No. 5, and above Shri A.S Pooni. Respondent 7 was assigned 1962 as the year of allotment and his seniority was fixed below Shri Hari Ram and above Shri V.K Khanna. It appears that respondents 4 to 7 represented against the fixation of their seniority on the ground that their continuous officiation in a cadre post or a post equivalent thereto, as declared by the State Government, should have been taken into consideration while fixing their seniority. A reference was made by the Punjab Government to the Government of India and in its letter dated June 30, 1969, the Punjab Government was advised by the Government of India Ministry of Home Affairs, that it would be possible to ante-date the appointment of Sarvshri Parmar, Dalip Singh, Sunder Singn K.K Mukherjee and J.D Khanna to the I.A.S from 1966 and once that was done, seniority of those officers would be determined in accordance with the seniority rules then in force, which would enable them to get the benefit of officiation on both cadre and ex-cadre post for purposes of seniority in the I.A.S The Punjab Government was advised to send proposal for ante-dating the appointments of the said officers. The petitioners objected to the assignment of 1954 as the year of allotment to respondent 3 and to the antedating of the dates of appointments of respondents 3 to 7. They filed the writ petition before the actual orders were issued ante-dating the appointments of respondents 3 to 7 to November 1, 1966, on the ground that a decision had been taken to that effect by the Government of India, which was going to be put into effect. No decision or order of the Government of India has been brought on the record, although it has been admitted in the returns filed by respondents 1 and 2 that a decision had been taken to ante-date the dates of appointments of respondents 3 to 7 to November 1, 1966, although they were appointed to the I.A.S in February, 1968. It has, therefore, to be determined whether the Government of India has the jurisdiction to ante-date the dates of respondents 3 to 7 from February, 1968, to November 1, 1966.

2. It has been contended by the learned counsel for the petitioners that the select list, which was. In force up to October 31, 1966, in the erstwhile State of Punjab, lapsed on November 1, 1966, when that State ceased to exist. This position is accepted by the Union of India but not by the Punjab Government according to which the select list in force immediately before November 1, 1966, continued to be the select list for the successor State of Punjab. After due consideration, I am of the opinion that the position taken up by the petitioners and the Union of India is correct. The select list as in force prior to November 1, 1966, was for the whole State of Punjab as existed prior thereto and could not be said to be the select list for the successor State of Punjab, as some of the officers, whose names were in that list, were allocated to the State of Haryana. There was, thus, no select list for the State of Punjab from November 1, 1966, to February 22, 1968, when the first select list for this State was prepared in accordance with the Indian Administrative Service (Appointment by Promotion) Regulations, 1955. The names of respondents 3 to 7 were included in that list and, therefore, they were appointed to the IAS in February, 1968. Earlier than the issuance of the select list, they could not be appointed to the IAS nor could they claim any right to be so appointed for the simple reason that there was no select list. The members of the State Civil Service can be appointed to the IAS only if their names appear in the select list. Merely because vacancies existed in the quota allotted to the promotees (members of the State Civil Service) did not entitle them to be appointed to the I.A.S from the date the vacancies became available even if there was no select list and their names were not borne on any such list. The right to be appointed to the IAS accrued to respondents 3 to 7 on February 22, 1968, when the select list for the State of Punjab was finalised and their names appeared therein. The dates of their appointments cannot, therefore, be ante-dated from February 22, 1968 to November 1, 1966, on the ground that the vacancies existed from that date. An administrative order cannot be passed with retrospective effect if it affects the rights of any other person. In the present case, if the dates of appointment of respondents 3 to 7 are changed from February 22, 1968 to November 1, 1966, the rights of the petitioners as to seniority are bound to be affected. It is well-known that retrospective legislation can be made only by the sovereign legislature, that is, by Parliament for the whole country in respect of the field of its legislation, and by the State legislature in respect of the subjects within its jurisdiction for the State. Service rules having retrospective effect can also be made by the President of India and the Governor of a State in exercise of the powers under the proviso to Article 309 of the Constitution, which is a legislative power, but no subordinate or delegated authority can frame rules or regulations having retrospective effect. Unless there is power in any statute or statutory rules entitling the Executive Government or any of its agencies to pass orders with retrospective effect, it is not open to those authorities to pass such an order. The position taken up by respondents 1 and 2 is that unless there is a prohibition in the statute, the Government can exercise such powers and that since there is no such prohibition in the various rules and regulations framed under the All India Services Act, 1951, debarring the Government from passing orders of appointment having effect from a date earlier than the date on which they are actually passed, the decision made by the Government of India to appoint respondents 3 to 7 from November 1, 1966, is legal and not contrary to any rules. In my opinion, the position taken up by the said respondents is not correct. It was held by their Lordships of the Privy Council in Eshugbayi Eleko v. Officer Administring the Government of Nigeria, AIR 1931 Privy Council 248:—

“The executive can only act in pursuance of the powers given to it by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice.”

3. It has also been stated in Volume 7 of Halsbury's Laws of England, Third Edition, para 416, at page 195, as under:—

“Liberty of the Subject:—

The so-called liberties of the subject are really implications drawn from the two principles that the subject may say or do what he pleases, provided he does not transgress the substantive law, or infringe the legal rights of others, whereas public authorities (including the Crown) may do nothing but what they are authorised to do, by some rule of common law or statute. Where public authorities are not authorised to interfere with the subject, he has liberties. It follows that, apart from the general provisions ensuring the peaceful enjoyment of rights of property and the freedom of the subject from illegal detention, duress, punishment, or taxation, contained in the four great charters of statutes which regulate the relations between the Crown and the People, the liberties of the subject are not expressly defined in any law or code. Further, since Parliament is sovereign, the subject cannot possess guarnteed rights such as are guarnteed to the citizen by many foreign constitutions. It is well understood that certain liberties are highly prized by the people, and that in consequence Parliament is unlikely, except in emergencies, to pass legislation constituting a serious interference with them.”

4. Parliament enacted All India Services Act, 1951, and conferred the power on the Central Government to make rules for the regulation of recruitment and conditions of service of persons appointed to an All-India Service. These rules have to be framed after consultation with the Governments of the States concerned and are to be laid before Parliament, which has the power to modify, repeal or amend the rules so framed. In none of these rules and the regulations framed under the rules, has any power been given to the Government of India to make appointments of officers from the select list from a date earlier than the actual date of passing the orders, nor can such a power be gathered by implication. All that the learned counsel for the respondents have been able to argue is that under rule 8(3) of the Indian Administrative Service (Recruitment) Rules, 1954, the Government has the power to fill a vacancy whenever it occurs in the State cadre, which is to be filled by promotion of the members of the State Civil Service. It is, therefore, submitted that the date of appointment of an officer from the select list can be made retroactively from the date a vacancy occurred. I regret, I cannot accept this submission. Rule 8, reliance on which has been placed, is in these terms:—

“recruitment by promotion or selection for appointment to State and Joint Cadre:—

(1) The Central Government may, on the recommendation of the State Government concerned and in consultation with the Commission and in accordance with such regulations as the Central Government may, after consultation with the State Government and the Commission, from time to time, make, recruit to the Service persons by promotion from amongst the members of a State Civil Service

(2) The Central Government may, in special circumstances and on the recommendation of the State Government concerned and in consultation with the Commission and in accordance with such regulations as the Central Government may, after consultation with the State Governments and the Commission, from time to time, make recruit to the Service any person of outstanding ability and merit serving in connection with the affairs of the State who is not a member of the State Civil Service of that State but who bolds a gazetted post in a substantive capacity.

(3)(a) Where a vacancy occurs in a State Cadre which is to be filled under the provisions of this rule, the vacancy shall be filled by promotion of a member of the State Civil Service or, as the case may be, by selection of any other officer serving in connection with the affairs of that State.

(b) Where a vacancy occours in a Joint Cadre which is to be filled under the provisions of this rule, the vacancy shall, subject to any agreement in this behalf, be filled by promotion of a member the State Civil Service of any of the States constituting the group or as the case may be, by selection of any other officer serving in connection with the affairs of any such State”.

5. All that this rule lays down is that any vacancy which occurs in the State Cadre should be filled by promotion of a member of the State Civil Service and the method of recruitment by promotion from amongst the substantive members of the State Civil Service is provided in the Indian Administrative Service (Appointment by promotion) Regulations, 1955. It is under these regulations that the select list is prepared. It is open to the Government to fill up the vacancy as soon as it occurs, but if it does not to do so at that time and fills up the vacancy later on from amongst the officers of that category, that appointment will take effect from the date on which it is made and cannot be ante-dated to the date when the vacancy occurred. If that were the intention, it could have been expressed in clear terms by the rule making authority. It has been recently held by their Lordships of the Supreme Court in The Income-tax officer, Alleppey v. I.M.C Ponnoose, (1969) 2 SCC 351 : AIR 1970 SC 385: —

“Now it is open to a sovereign legislature to enact laws which have retrospective operation. Even when the Parliament enacts retrospective laws, such laws-are in the words of Willes, J. In Phillips v. Eyre, (1870) 40 LJ QB 28 at page 37 no doubt prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.’ The Courts will not, therefore, ascribe retrospectively to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. The Parliament 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: (See Subba Rao, J., in Dr. Indrammani Pyarelal Gupta v. W.R Nathu, (1963) 1 SCR 721 : (AIR 1963 SC 274) the—majority not having expressed any different opinion on the point, Modi Food Products Ltd. v. Commissioner of Sales Tax, V.P, AIR 1956 All 35; India Sugar Refineries Ltd. v. State of Mysore, AIR 1960 Mysore 326 and General S. Shivdev Singh v. State of Punjab, (1959) 61 Punjab L.R 514 : (AIR 1959 Punjab 453) (FB). It can hardly be said that the impugned notification promulgates any rule, regulation or bye-law, all of which have a definite signification. The exercise of the power under sub-clause (ii) of Clause (44) of section 2 of the Act is more of an executive than a legislative act. It becomes, therefore, all the more necessary to consider how such an act which has retrospective operation can be valid in the absence of any power conferred by the aforesaid provision to so perform it as to give it retrospective operation. In Strawboard Manufacturing Co. Ltd. v. Gutta Mill Workers' Union, 1953 SCR 439 : (AIR 1953 SC 95), an industrial dispute had been referred by the Governor to the Labour Commissioner or a person nominated by him with the direction that the award should be submitted not later than April 5, 1950. The award, however, was made on April 13, 1950. On April 26, 1950, the Governor issued a notification extending the time up to April 30. It was held that in the absence of a provision authorising the State Government to extend from time to time the period within which the Tribunal or the adjudicator could pronounce the decision, the State Government had no authority to extend the time and the award was, therefore, one made without jurisdiction and a nullity. This decision is quite apposite and it is difficult to hold in the present case that the Taluka Tahsildar could be authorised by the impugned notification to exercise powers of a Tax Recovery Officer with effect from a date prior to the date of the notification.

It may next be considered whether by saying that the new definition of ‘Tax Recovery Officer’ substituted by section 4 of the Finance Act 1963 ‘shall be and shall be deemed always to have been substituted’, it could be said that by necessary implication or intendment the State Government had been authorised to invest the officers mentioned in the notification with the powers of a Tax Recovery Officer with retrospective effect. The only effect of the substitution made by the Finance Act was to make the new definition a part of the Act from the date it was enacted. The legal fiction could not be extended beyond its legitimate field and the aforesaid words occurring in section 4 of the Finance Act 1963 could not be construed to embody conferment of a power for a retrospective authorisation by the State in the absence of any express provision in section 2(44) of the Act itself. It may be noticed that in recent decision of the Constitution Bench of this Court in B.S Vadera v. Union of India, AIR 1969 SC 18, it has been observed with reference to rules framed under the proviso to Article 309 of the Constitution that these rules can be made with retrospective operation. This view was, however, expressed owing to the language employed in the proviso to Article 309 that ‘any rules so made shall have effect subject to the provisions of any such Act.’ As has been pointed out the, the clear and unambiguous expressions, used in the Constitution, must be given their full and unrestricted meaning unless hedged in by any limitations. Moreover when the language employed in the main part of Article 309 is compared with that of the proviso, it becomes clear that the powers given to the legislature for laying down the conditions is identical with the power given to the President or the Governor as the case may be, in the matter of regulating the recruitment of Government servants and their conditions of service. The lagislature, however, can regulate the recruitment and conditions of service for all times whereas the President and the Governor can do so only till a provision in that behalf is made by or under an Act of the appropriate legislature. As the legislature can legislate prospectively as well as retrospectively, there can be hardly any justification for saying that the President or the Governor should not be able to make rules in the same manner so as to give them prospective as well as retrospective operation. For these reasons the ambit and content of the rule-making power under Article 309 can furnish no analogy or parallel to the present case. The High Court was consequently light in coming to the conclusion that the action taken by the Tahsildar in attaching the shares was unsustainable.”

6. Respondents 3 to 7 have already been appointed to the I.A.S from a date in February, 1968, and now to amend that date so as to make it November 1, 1966, is not within the jurisdiction of the Government of India as it is bound to affect the rights of other members of the Service. Moreover, there having been no select list for the period from Nov. 1, 1966 to February 22, 1968, no appointment could be made between those two dates even if a vacancy existed as the appointment could be made only from amongst the officers whose names were borne on the select list. If respondents 3 to 7 could not be appointed to I.A.S on that ground between November 1, 1966, and February 22, 1968, their appointment made on the later date cannot be made retroactive from the former date. Learned counsel for respondents 3 to 7 has, however, referred to the provision added to Explanation 1 to rule 3(3) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, by a notification dated March 18, 1969, which reads as under:—

“Provided that where the name of a State Civil Officer was included in the Select List in force immediately before the re-organisation of a State and is also included in the first Select List prepared subsequent to the date of such re-organisation, the name of such officer shall be deemed to have been continuously in the Select List with effect from the date of inclusion in the first mentioned Select List.”

7. The deemed Inclusion in the select list provided for in this proviso is only for the purpose of determining the year of allotment of a promoted officer and not to enable the Government to make an appointment of an officer from the select list made in February, 1968, effective from an earlier date when the vacancy occurred. This proviso, therefore, does not help the respondents. The learned counsel for the respondents have also relied on a judgment of a Special Bench of three Judges of the Patna High Court in S.A.F Abbas v. State of Bihar, A.I.R 1970 Patna 397. The contest in that case was also between the direct recruits and the promotees as in the present case. The principal point for determination in that case was whether the declaration made by the State Government of a post as equivalent in rank and responsibility to the cadre posts under rule 2(g) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, in 1955, could be made the basis for determining that the promoted officers had held an equivalent post in order to entitle them to the benefit of continuous officiation on these posts for the purpose of seniority and the assignment of the year of allotment. It was submitted in that case that the declaration made in 1955 could not be taken into consideration for earlier years and this submission was not accepted. It was held that the declaration only meant recognition of equivalent posts and could be taken info consideration in order to determine whether the promoted officers had officiated continuously in a senior post from the dates they occupied them. There was no case of giving retrospective effect to the declaration made because there was no time-limit prescribed by the Government to make such a declaration. Another fact taken into consideration was that the continuous officiation of the members of the State Civil Service had been approved by the Government of India in consultation with the Union Public Service Commission, which meant that those officers had held continuously senior posts which entitled them to take the period of their continuous officiation on cadre or ex-cadre posts later on declared equivalent for the purposes fixing their seniority. In my opinion, that judgment cannot be pressed into service to clothe the Government of India with the power to make appointments of select list officers to the I.A.S from a date earlier than the date of their actual appointment.

8. Learned counsel for the respondents has contended vehemently that grave injustice has been done to respondents 3 to 7 by the amendment of rule 2(g) of the Indian Administrative Service (Regulation of Seniority) Rules; 1954, with effect from April 22, 1967, and the Government of India has decided to appoint these respondents with effect from November 1, 1966, in order to get out of the amended definition of ‘senior post’ in rule 2(g) ibid because in accordance with the unamended definition of ‘senior post’ in rule 2(g) prior to April 22, 1967, the posts in which the said respondents continued to serve prior to their appointment to the I.A.S were senior posts and the assignment of the year of allotment to them should have been made on the footing that they had started officiation and continued to officiate continuously in a senior post even if the posts held by them are not now Included under item 1 of the cadre of each State in the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955, if those posts had been declared equivalent to cadre posts by the State Government. rule 2(g) prior to amendment read as under:—

“‘Senior post’ means a post included under Item 1 of each Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955, framed under sub-rule (1) of Rule 4 of the Indian Administrative Service (Cadre) Rules, 1954, or any post declared equivalent there-to by the State Government concerned.”

9. The words ‘or any post declared equivalent thereto by the State Government concerned’ have now been deleted by the said amendment and the senior post means only a post included in and specified under Item 1 of the cadre of each State in the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955. Since continuous officiation in a senior post is required for the purposes of determining seniority and the year of allotment, the service rendered by the petitioners in posts, which were equivalent to the cadre posts, has to be excluded under the amended definition of ‘senior post’ in rule 2(g) ibid. The purpose of making the appointments of respondents 3 to 7 retroactive from November 1, 1966, is to get out of the rigours of the amended definition of ‘senior post’ in rule 2(g) and to apply the unamended definition of the ‘senior post’ as it existed prior to April 22, 1967, on the faith of which the petitioners had worked in ex-cadre posts, which were declared equivalent to the cadre posts. There is no doubt that the object of the Government of India is praise-worthy and has to be respected particularly because it was no fault of the said respondents that they rendered service in ex-cadre posts when they were considered as equivalent to the senior posts and now to tell them that their service in those posts was of no avail will work a great hardship to them for which they are not responsible, but there is a method provided in the All India Services (Conditions of Service-Residuary Matters) Rules, 1950, to remedy such hardships and injustices. Rule 3 of the said Rules reads as under:—

“Power to relax rules and regulations in certain cases.—

Where the Central Government is satisfied that the operation of—

(i) any rule made or deemed to have been made under the All India Services Act, 1951 (61 of 1951), or

(ii) any regulation made under any such rule,

regulating the conditions of service of persons appointed to an All Indian Service causes undue hardship in any particular case, it may, by order, dispense with or relax the requirements of that rule or regulation, as the case may be, to such extent and subject to such exceptions and conditions, as it may consider necessary for dealing with the case in a just and equitable manner.”

10. It has been stated in the return filed by respondents 1 and 2—

“Even otherwise, this is a case in which undue hardship would be caused to the officer if the period of his officiation in the ex-cadre post is not taken into account for fixing his seniority in the I.A.S Rule 3 of the A.I.S (Conditions of Service-Residuary Matters) Rules, 1960, empowers the Central Government to dispense with or relax the requirements of a particular rule to such extent and subject to such exceptions and conditions, as it may consider necessary for dealing with a case, in which the Central Government is satisfied that the operation of a rule regulating the conditions of service causes undue hardship, in a just and equitable manner. The Central Government considers this a fit case for invoking the provisions of this rule so as to relax the seniority rules, if considered necessary.”

11. It is, thus, apparent that the Central Government is quite aware of its powers under rule 3 ibid and that is the proper course for it to adopt instead of ante-dating the appointments of respondents 3 to 7. Since there is no rule prescribing the date of appointment of an officer to the I.A.S, the appointment is always to take effect from the date of the order and not from any earlier date. Rule 3 ibid comes into force after a person is appointed to an All India Service and the Government of India has come to the conclusion, after taking into consideration the facts of each case, that undue hardship in any particular case will be caused if the rigouns of any rule or regulation are not relaxed or dispensed with. It is not open to the Central Government under this rule to change the date of appointment of respondents 3 to 7 but it is certainly open to it to relax the definition of ‘senior post’ under rule 2(g) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, so as to assign the year of allotment to respondents 3 to 7 on the basis of the definition of ‘senior post’ which existed prior to April 22, 1967. The Government of India has, however, to state reasons in support of its conclusions that undue hardship would be caused to respondents 3 to 7 if any of the rules or regulations applicable to the members of the I.A.S is not relaxed or dispensed with and thereafter it can make a decision in the manner it considers just and equitable. It has also been contended on behalf of the respondents that the definition of ‘senior post’ in rule 2(g) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, as amended, cannot be given retrospective effect from a date earlier than April 22, 1967, when the amendment became operative and for this reason the continuous officiation of respondents 3 to 7 in ex-cadre posts, which were declared equivelent to the cadre posts has to be taken into consideration while determining their seniority and the year of allotment under rule 3(3) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954. There is no substance in this submission. The said respondents were appointed to the IAS in February, 1968, and they are to be governed by the rules of the Service which were in operation then. A different definition of ‘senior post’, in rule 2(g) ibid in earlier years did not vest any right in them that their continuous officiation in ex-cadre posts, declared equivalent to the cadre posts, would always be taken into consideration while determining their seniority or the year of allotment. No member on the select list can claim the right to be appointed to the IAS. He has the chance of appointment as long as his name remains on the said list and before he is appointed to the Service, he has no right in the rules governing that Service, nor can he claim that those rules should not be amended for the simple reason that before such appointment he was not governed by those rules. Moreover, it has been held by their Lordships of the Supreme Court in Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889:—

“It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of Contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emoluments of the Government servant and his terms of service are governed by statute or statutory rules, which may be unilaterally altered by the Government without the consent of the employee.”

12. From these observations, it is clear that even if respondents 3 to 7 were members of the IAS or were governed by the rules of that Service, those rules can be changed unilaterally by the Government without their consent. The said respondents, therefore, cannot claim, as a matter of right, that the definition of ‘senior post’ as it existed prior to April 22, 1967, must be taken as governing them and if prior to that date they worked in any ex-cadre post, that service must be taken into consideration for the purpose of assignment of the year of allotment to them under rule 3(3) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954. It is because no such right inheres in respondents 3 to 7 that the Government of India can act under rule 3 of the All India Services (Condititions of Service-Residuary Matters) Rules, 1960.

13. The learned counsel for the petitioners has vehemently argued that undue hardship will be caused to them if the seniority respondents 3 to 7 is not determined in accordance with the rules in force on the dates of their appointments as their continuous officiation in a senior post started much earlier than that of respondents 3 to 7 and their chances of further promotion in the Service will be retarded by according seniority to respondents 3 to 7 above them. This is a matter for the Government of India to decide while determining whether to relax or dispense with any rules or regulations governing the conditions of service of the members of the IAS in the case of respondents 3 to 7.

14. It has been submitted by the learned counsel for the petitioners that their seniority already fixed cannot be disturbed without giving them an opportunity of hearing. Reliance is placed on the judgment of their Lordships of the Supreme Court in State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269, in which the following observation occurs:—

“We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice… …”

15. It was held by Narula, J., in M.L Chopra… v. Union Of India…., 1967 SLR 588, as under. —

“Suffice to say that once a certain protection or benefit had been afforded to the petitioner, they were certainly entitled to be heared and entitled to be given sufficient and adequate opportunity to show cause against their being deprived of the same benefit particularly with retrospective effect. This is necessary in order to sonform to the principles of natural justice, which were enshrined in the guarantee of rule of law contained in Article 14 of the Constitution.”

16. A Division Bench of the Patna High Court held in Ram Kripalu Mishra v. University of Bihar, AIR 1964 Patna 41 (as per head note 1):—

“That although section 4 of Bihar Act XIII of 1962 did not expressly say that notice must be given to the teacher who is to be affected prejudicially by the order of the Chancellor, it is well established as a matter of law that in such a case notice is necessary. As a matter of necessary legal implication the Chancellor was bound to act in accordance with natural justice before exercise of the statutory power conferred by section 4 of the statute. Therefore, even on the assumption that section 4 of the Bihar Act 13 of 1962 is intra vires (point not decided) the order of the Chancellor dated the 20th June, 1962, without notice to the petitioner was ultra vires and illegal as it violated the principles of natural justice and was liable to be quashed by a writ of certiorari under Article 226.”

17. Very recently, their Lordships of the Supreme Court laid down in A.K Kralpak v. Union of India, (1969) 2 SCC 262 : A.I.R 1970 S.C 150—

“The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power, one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the frame-work of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. In a welfare State like India, which is regulated and controlled by the rule of law, it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The retirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power.”

18. In Union of India v. P.K Roy, 1968 S.L.R 104, their Lordships of the Supreme Court held—

“But the extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case.”

19. It was also held that where no opportunity to make a representation is afforded to the persons affected, the order is ultra vires and illegal and has to be quashed. This matter was also considered by me in Madan Lal v. The State of Punjab, (C.W No. 513 of 1967.decided on September 27, 1968), and Ajeeb Singh Bakshi v. State of Haryana, 1969 S.L.R 400. After examining various judgments, I held in Ajeeb Singh Bakshi' case (supra)—

“Whether a notice should be given in a particular case, where the order is administrative, will depend on the particular facts of that case. If an administrative order in due course and in the interest of admistration is passed, possibly there may be no question of giving the police to the person affected thereby but where civil consequences are involved, the notice must be given.”

20. In Madan Lal's case (supra), I held—

“It is thus evident that whether the order is administrative or quasi-judicial, the authority passing the order must observe the rules of natural justice of giving notice and opportunity of hearing to the affected person before passing an order to his detriment.”

21. It can hardly be disputed that an order which disturbs the previously fixed seniority of the members of a service is a quasi-judicial order and has to be passed after observing the principles of natural justice, that is, after giving notice to the affected persons and after affording them an opportunity of hearing. Sandhawalia, J. held in S.N Tandon v. The State of Haryana (C.W 3274 of 1969 decided on October 23, 1970)—

“It is too late. In the day to contend that the valuable right of the civil servant to hold his seniority interse in a department can be taken away arbitrarily without any notice to him whatsoever. It is settled law that a prejudicial down grading of seniority involves civil consequences which would automatically attract the principles of natural justice and a right to be heard before such an order is passed.”

22. In the light of the above judgments, it will be advisable for the Government to act in a quasi-judicial manner while passing an order under rule 3 of the All India Services (Conditions of Service-Residuary Matters) Rules, 1960, and to pass a speaking order, after affording an opportunity to the petitioners, dealing with their objections as they have contended that no hardship will be caused to respondents 3 to 7 if their seniority, as already fixed, is maintained, whereas the petitioners will suffer undue hardship if their seniority is depressed by making respondents 3 to 7 senior to them. It will be noted that respondent 3 is already senior to the petitioners in the seniority list as in force today and it is the petitioners' case that respondent 3 his been assigned a wrong year of allotment. As I have said above in an earlier part of the judgment, the decision made by the Central Government appointing respondents 3 to 7 to the Indian Administrative Service from November 1, 1986, has not been brought on the record. That decision, undoubtedly, has not yet been given effect to. Therefore, there is nothing for me to quash. All that I hold is that it is not within the jurisdiction of the Government of India to change the dates of appointments of respondents 3 to 7 from February 22 and 25, 1968 to November 1, 1966, as has been discussed above. It is open to the Government to act under the provisions of rule 3 of the All India Services (Conditions of Service-Residuary Matters) Rules, 1960, to relieve respondents 3 to 7 of any hardship and to deal with their cases in a just and equitable manner after observing the principles of natural justice, keeping in view the observations made above. The petition is accordingly decided but without any order as to costs.

23. Civil Miscellaneous Application No. 884 of 1971 was submitted by the petitioners for summoning some documents from respondent 2. No reference to this record was made at the time of hearing. This application is, therefore, dismissed as infructuous with no order as to costs.

24. Another Civil Miscellaneous Application No. 3799 of 1969 was filed by the petitioners along with the writ petition praying for certain ad interim reliefs. That matter was also decided by the Motion Bench and in subsequent orders and no further order is necessary on that application. In fact, with the writ petition all the miscellaneous applications get decided.

25. Writ Petition dismissed.