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Shri K.D Vasudeva, I... v. The Union Of India, ...

Punjab & Haryana High Court
Apr 2, 1971
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Structured Summary of the Opinion (Bal Raj Tuli, J.)

Factual and Procedural Background

The petitioners (eight in number) are direct recruits to the Indian Administrative Service (I.A.S.) by open competition. Respondents 3–7 were promotees from the State Civil Service, promoted to the I.A.S. in the quota fixed for them. Petitioner No.1 passed the competitive examination in 1955 and was allotted the year 1956; other petitioners were allotted years 1957, 1958, 1959, 1960 and 1961 in accordance with when they passed the competitive examination.

Respondent 3 had been on the select list from January 1, 1960 until the re-organisation of Punjab with effect from November 1, 1966. After re-organisation there was, according to the opinion, no select list for the successor State of Punjab until a select list was prepared in February 1968. The names of respondents 3–7 were included in that February 1968 select list and they were appointed to the I.A.S. on February 22 and 25, 1968.

By a letter dated May 20, 1969, the Government of India assigned years of allotment and fixed inter se seniority positions for respondents 3–7 (for example, respondent 3 was assigned 1954 as year of allotment and placed in seniority between named officers). The Punjab Government sought guidance and was advised by the Government of India in a letter dated June 30, 1969 that it would be possible to ante-date appointments of certain officers to November 1, 1966, and the Punjab Government was advised to send proposals for ante‑dating.

The petitioners objected to the assignment of 1954 to respondent 3 and to the proposed ante-dating of appointments of respondents 3–7 to November 1, 1966. They filed the writ petition before any final order ante-dating the appointments had been brought on the record. The returns admitted that a decision had been taken to ante-date those appointments, although no formal order had been produced. The principal question for determination was whether the Government of India had jurisdiction to ante-date the appointments of respondents 3–7 from February 1968 to November 1, 1966.

Legal Issues Presented

  1. Whether the select list in force prior to the re-organisation of the State of Punjab (prior to November 1, 1966) continued to operate for the successor State of Punjab or lapsed on re-organisation — and the consequences of that finding on the right to appointment before February 1968.
  2. Whether the Government of India has the jurisdiction or legal power to ante-date appointments of promotee officers (respondents 3–7) from their actual appointment dates in February 1968 to November 1, 1966.
  3. Whether any rule, regulation or administrative action (including reliance on rule 8(3) of the Indian Administrative Service (Recruitment) Rules, 1954, or Explanation 1 to rule 3(3) of the Regulation of Seniority Rules, 1954) authorises retrospective appointment dates.
  4. Whether the Government should, instead of ante-dating appointments, exercise its power under rule 3 of the All India Services (Conditions of Service—Residuary Matters) Rules, 1960, to relax requirements in appropriate cases and, if so, the procedural safeguards (natural justice) required when seniority is to be disturbed.

Arguments of the Parties

Petitioners' Arguments

  • The select list in force up to October 31, 1966, lapsed on November 1, 1966, when the State of Punjab was reorganised; consequently there was no select list for the successor State until February 1968 and no appointment could validly be made earlier.
  • An administrative order ante-dating appointments would affect the petitioners' rights to seniority and therefore cannot be given retrospective effect unless authorised by statute or by rule-making power expressly permitting retrospectivity.
  • The petitioners contended that their already-fixed seniority cannot be disturbed without giving them an opportunity of hearing (natural justice), relying on established case law to show that administrative acts with civil consequences require procedural fairness.

Union of India and Punjab Government

  • The Union of India accepted that the select list in force prior to re-organisation had lapsed; the Punjab Government contended the opposite (that the prior select list continued for the successor State).
  • Respondents 1 and 2 (representing Government) suggested that, in absence of an express statutory prohibition, the Government can pass appointments having effect from a date earlier than the date on which orders are actually passed.
  • The Punjab Government sought advice and was told by the Government of India that ante-dating to November 1, 1966 was possible and was advised to submit proposals for ante-dating.

Respondents 3–7 (Promotee Officers)

  • Argued that their continuous officiation in cadre or duly-declared equivalent posts should be taken into account when fixing seniority and that adjustments were warranted because of hardship caused by an amendment to the definition of “senior post” (rule 2(g)).
  • Relied on the proviso (Explanation 1) to rule 3(3) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954 (added by notification dated March 18, 1969) which deems continuous inclusion in select list where a name appeared in the list immediately before re-organisation and in the first list after re-organisation.
  • Contended that amendment of rule 2(g) (deleting recognition of State-declared equivalent posts) worked hardship and that retroactive application or ante-dating was needed to relieve that injustice.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court (as stated in the opinion)
Eshugbayi Eleko v. Officer Administering the Government of Nigeria, AIR 1931 Privy Council 248 The executive can act only in pursuance of powers given by law; executive cannot interfere with liberty or property without legal authority. Used to support the proposition that the Executive cannot retrospectively affect rights unless authorised by law.
The Income-tax Officer, Alleppey v. I.M.C. Ponnoose, (1969) 2 SCC 351; AIR 1970 SC 385 Subordinate authorities cannot make rules, regulations or executive acts operate retrospectively in the absence of express statutory power. Relied upon to show that appointments or administrative acts which have retrospective effect are invalid unless authorised by statute or clear rule-making power.
Phillips v. Eyre, (1870) 40 LJ QB 28 Retrospective laws are prima facie of questionable policy; courts will not ascribe retrospective operation unless express words or necessary implication exist. Invoked to reinforce the general reluctance to give retrospective effect to laws or administrative acts without express authority.
Dr. Indrammani Pyarelal Gupta v. W.R. Nathu, (1963) 1 SCR 721; AIR 1963 SC 274 (Subba Rao, J.) Subordinate rule-making authority cannot ordinarily make rules with retrospective operation absent express language. Cited as supporting authority that subordinate legislative or executive organs lack power to enact retroactive rules.
Modi Food Products Ltd. v. Commissioner of Sales Tax, V.P., AIR 1956 All 35 Support for limitation on retrospective operation of subordinate acts (as cited). Referenced among authorities confirming restrictions on retrospective executive action.
India Sugar Refineries Ltd. v. State of Mysore, AIR 1960 Mysore 326 Support for principle that subordinate acts/rules cannot be retrospective without express authority. Used as one of several supporting decisions on the point.
General S. Shivdev Singh v. State of Punjab, (1959) 61 Punjab L.R 514; AIR 1959 Punjab 453 (FB) Support for principle regarding limits on executive retrospective action. Cited among authorities to show established position that retrospective administrative powers are limited.
Strawboard Manufacturing Co. Ltd. v. Gutta Mill Workers' Union, 1953 SCR 439; AIR 1953 SC 95 Where no power exists to extend a statutory period, extension by executive is without jurisdiction and the consequent act is nullity. Analogised to the present case to show that absent statutory authority, retrospective conferment of powers is invalid.
B.S. Vadera v. Union of India, AIR 1969 SC 18 Rules framed under the proviso to Article 309 can be made with retrospective operation where language permits. Distinguished by the court: the proviso's clear language made retrospective rules possible there, but that analogy does not extend to the present case.
S.A.F. Abbas v. State of Bihar, A.I.R. 1970 Patna 397 Declaration of posts as equivalent by State Government can be considered to determine continuous officiation for seniority; no retrospectivity issue where declaration had no time-limit. Court held that S.A.F. Abbas cannot be used to justify ante-dating of appointments; that case did not support retrospective appointment dates.
Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889 Government servants' terms are statutory and the Government can unilaterally alter statutory rules; legal position of a government servant is one of status governed by public law. Applied to show respondents could not claim an immutable right to be governed by an earlier definition of "senior post".
State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 Administrative orders that involve civil consequences must be made consistently with the rules of natural justice. Invoked to support the need for notice and hearing before disturbing seniority.
M.L. Chopra v. Union of India, 1967 SLR 588 (Narula, J.) Once a protection or benefit has been afforded, it cannot be withdrawn without hearing; principles of natural justice require opportunity to show cause. Cited to bolster the proposition that affected persons must be heard before retrospective deprivation of benefits.
Ram Kripalu Mishra v. University of Bihar, AIR 1964 Patna 41 Notice is necessary by legal implication where a statutory power is to be exercised to affect a person adversely. Used to support the implication of natural justice requirements when rights are affected.
A.K. Kralpak v. Union of India, (1969) 2 SCC 262; AIR 1970 SC 150 The distinction between administrative and quasi-judicial power depends on nature of power, persons affected, consequences and framework; administrative bodies must act fairly. Applied to recommend that government act quasi-judicially when deciding to relax or dispense with rules affecting seniority.
Union of India v. P.K. Roy, 1968 S.L.R 104 The application of natural justice depends on the nature of jurisdiction, the rights affected, the statutory scheme and circumstances. Relied upon to show that giving opportunity to affected persons is required where rights and civil consequences are implicated.
Madan Lal v. The State of Punjab (C.W. No. 513 of 1967) and Ajeeb Singh Bakshi v. State of Haryana, 1969 S.L.R 400 Administrative orders that have civil consequences require notice and opportunity to be heard; whether notice is required depends on facts. Cited by the court to reinforce that seniority changes attract natural justice safeguards and notice should be given when civil consequences arise.
S.N. Tandon v. The State of Haryana (C.W. 3274 of 1969) Prejudicial downgrading of seniority involves civil consequences and requires the right to be heard. Quoted to emphasize that orders disturbing seniority are quasi-judicial and require hearing.

Court's Reasoning and Analysis

The court's reasoning proceeds in sequential steps grounded explicitly on the facts and legal materials before it:

  1. Select list and appointments: The court accepted the position that the select list in force for pre-reorganisation Punjab could not be treated as the select list for the successor State because the pre-reorganisation list covered a different territorial composition (some officers were allocated to Haryana). Consequently, there was no select list for the State of Punjab from November 1, 1966 to February 22, 1968. Because members of the State Civil Service can be appointed to the I.A.S. only if their names appear on a valid select list, appointments could not validly be made before the select list was prepared in February 1968. Therefore appointments in February 1968 could not be ante-dated to November 1, 1966 on the ground that vacancies existed earlier.
  2. Limits on retrospective executive action: The court emphasized the established principle that the executive can act only pursuant to powers granted by law and cannot legitimately interfere with the rights of individuals absent legal authority (citing Eshugbayi Eleko and other authorities). The court rejected the submission that the absence of an explicit prohibition in the Act or rules permits retroactive appointments; instead, retrospective administrative orders affecting rights require express statutory or rule-making authority.
  3. Interpretation of recruitment rules: The court examined rule 8 (especially rule 8(3)(a)) of the Indian Administrative Service (Recruitment) Rules, 1954, and concluded that it simply prescribes the method of filling vacancies (by promotion/selection) and does not authorise retroactive appointment dates. The court held that where a vacancy is filled later, the appointment takes effect from the date it is made, and that a court will not supply retrospective intent unless clearly expressed by the rule-making authority.
  4. Subordinate rule-making and retrospectivity: Drawing on Supreme Court authority (including Alleppey v. I.M.C. Ponnoose and related cases), the court observed that subordinate or delegated authorities cannot normally enact rules or take executive steps with retrospective effect unless the enabling provision contains language permitting such retrospectivity. The court rejected reliance on the proviso to Article 309 as an analogue (B.S. Vadera) because the linguistic and structural context differed.
  5. Effect of Explanation 1 to rule 3(3): The court considered the proviso (Explanation 1) added to rule 3(3) by notification dated March 18, 1969, which deems continuous inclusion in a select list for the purpose of determining the year of allotment where a name appeared before and after re-organisation. The court held this deemed inclusion operates only for the limited purpose of determining year of allotment and does not empower the Government to make an appointment effective from an earlier date when no appointment could have been made because there was no select list.
  6. Distinguishing other cases: The opinion examined S.A.F. Abbas (Patna High Court) and held that it dealt with recognition of equivalent posts and did not authorise retrospective appointments; thus it could not be pressed into service to justify ante-dating appointments here.
  7. Remedy by rule 3 (Residuary Matters): The court identified rule 3 of the All India Services (Conditions of Service–Residuary Matters) Rules, 1960 as the appropriate statutory channel to relieve hardship caused by change in seniority rules. That rule permits the Central Government to dispense with or relax requirements of rules or regulations where the Government is satisfied that operation of a rule causes undue hardship in a particular case. The court explicitly stated that the Central Government is aware of this power (as admitted in returns) and that that is the proper course instead of ante-dating appointment dates.
  8. Requirement of natural justice: The court analysed authorities on natural justice and quasi‑judicial action (Binapani Dei, A.K. Kralpak, P.K. Roy, and others) and concluded that an order which disturbs previously fixed seniority is quasi-judicial in nature and must be made after giving notice and an opportunity of hearing to affected persons. The court directed that if the Government acts under rule 3 it should do so in a quasi-judicial manner, pass a speaking order, and afford the petitioners an opportunity to be heard.

Holding and Implications

Holding:

The writ petition is dismissed.

The court's core legal determinations (expressed as practical consequences) were:

  • The select list in force prior to November 1, 1966 did not continue for the successor State of Punjab; therefore no valid appointments to the I.A.S. could be made for the successor State between November 1, 1966 and February 22, 1968 when the new select list was finalised.
  • It is not within the jurisdiction of the Government of India to change the dates of appointment of respondents 3–7 from February 22 and 25, 1968 to November 1, 1966 by administrative fiat, because such retrospective alteration would affect the rights and seniority of other members of the Service and there is no express statutory power authorising such retrospective appointment dates.
  • Instead of ante-dating appointment dates, the Government of India may, if it is satisfied that operation of a rule causes undue hardship in particular cases, act under rule 3 of the All India Services (Conditions of Service–Residuary Matters) Rules, 1960 to relax or dispense with the requirements of a rule. In doing so, the Government must state reasons, act in a quasi-judicial manner, pass a speaking order, and afford affected persons (including the petitioners) an opportunity of hearing and an opportunity to make representations.

Immediate practical consequences stated by the court:

  • There is nothing before the court to quash as the alleged decision to ante-date had not been brought on the record and had not been given effect to.
  • The Government cannot, by the route of administrative orders without statutory backing, ante-date appointments to affect the petitioners' seniority; any relief to respondents 3–7 should be achieved lawfully under rule 3 with procedural safeguards.
  • The writ petition is dismissed and this dismissal is without any order as to costs.
  • Civil Miscellaneous Application No. 884 of 1971 (for summoning documents) dismissed as infructuous; other miscellaneous applications were dealt with earlier and require no further order.

Note: The opinion provides detailed legal analysis and guidance about retrospective administrative action and the need for natural justice, but it does not purport to announce the creation of any novel rule of law beyond applying and distinguishing existing authorities. The direct effect on the parties is the dismissal of the writ petition and the preservation of the appointment dates effective in February 1968 pending any lawful exercise of discretion under rule 3 after affording hearing.

Show all summary ...

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.