RAJ KUMAR versus UNION OF INDIA & ORS.

RAJ.KUMAR

UNION OF. INDIA & ORS. March 19, 1975

[A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]

Central Civil Services (Temporary Service) Rules 1965-Proviso to rule 5(1) -Retrospectil'e Amendment-Effect ·w.

The services of the appellant, who was a: Government servant, were terminated forthwith and he was ordered to be.paid month's pay and aliowances calculated at the same rate at which he was drawing them immediately before the date on which the order of termination was served on him or, as the case may be. tendered to him. Having failed in departmental representations, the appellant filed writ petition in the High Court. When the petition was before the High Court it was not brought to the notice of that court that the proviso to sub~r. (1) of.r. 5 of the Central Civil Services (Temporary Services) Rules 1965 wa~ amended with retrospective effect from May 1, 1965. The High Court dismissed the petition in limine and granted certificat@ relying on the decision of this Court tn R.M.S. v. K. V. Gopinath which was not brought to its notice when the petitioner was dismissed.

The amendment provided that the services of any Government servant may be terminated forthwith and on such termination he shaU be entitled to claim sum equivalent ·to the amount of his pay plus a11owances for the period of the notice at the same rates at which he waos drawing them immediately before the termination of the services or as the case may· be for the period by which such notice falls short of one month.

Dismissing the appeal,

· HELD : (I) The effect of the amendment is that on· and from May 1, 1965 as also Cin the date of the dismissal of the a:ppellant_it was not obfigatory to pay to him sum equivalent to the amount of his pay and allowances for the period of notice at the rate at which he was drawing them immediately before the termi-nation of the services or as tl)e caS:.e. may be· for the period by which such notice falls short. The Government servant is only ~ntitled to claim the amount. The ·effect of the amendment !s that the dedsion in Gopinatlz's case no longer holds good. [965 B-C]

( 2) There is no doubt that the rule is valid rule becal!lse it is now well established that rules made under the proviso to Art. 309 of the Constitution are legislative in character and, therefore, can' be given effect to retrospectively. [965 CJ

(3) Once law is given retrospective effect as from particular date all actions taken under that law even before the amendment was made would be deemed to have b~en taken under the law as amended and there could be really no question of having to validate any action al.ready taken provided it is subse-quent to the date from which the amendment was given retrospective effect. The question of the particular form of the validation would always depend on the circumstances of case and no general formula can be devised for all circumstances. [965 H; 966 AJ

In the in:;tant case the action taken. against the appellant was on date subsequent to the date on which the amended rule took effect and, therefore, that action being in accordance with the amended rule, is legally valid action and there is no need to have validating provision. [966 BJ

Pritlzvi Mills v. Broach Municipality [1970J 1 S.C.R. 388, held inapplkable.

( 4) ·When action is taken against government servant under the relcv~nt rules, which enable the authorities concerned to terminate his temporary services without assigning any reason, the Court would not go into the reasons which led to the services being terminated. [966 DJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1730 of 1972.

From the judgment and order dated the December 6, 1971 of the Delhi High Court in Civil Writ Petition No. 1261 of 1971.

M. C. Bhandare, Govind Das, C. P. Lal, Kapil Sibal and A. N. Goyal, for the appellant.

F. S. Nariman, Additional Solicitor General for India and S. P. Nayar, for the respondent.

The Judgment of the Court was delivered by

ALAGIRISW,AM:r, J.--The appellant was appointed as Airport Tick<:t Clerk in the Civil Aviation Department of the Government of India on 14.8.1967. On 15.6.1971 his services were terminated 'forthwith' and it was directed that he shall be paid sum equivalent to the amount of pay and allowances for period of one month (in lieu of the period of notice) calculated at the same rate at which he was drawing them immediately before the date on which the order was served on or, as the case may be, tendered to him. But the pay and allowances were not paid to him at the same time as the service of the order of termi· nation of his services. His appeal against the termination as well as representations having failed he filed writ petition out of which this appeal arises. The High Court of Delhi dismissed the writ petition in limine ruid this appeal has been filed in pursuance of certificate granted by the High Court because of the decision of this Court in R.M.S. v. K. V. Gopinath([1]) of which that Court was not aware when it dismissed the petitioner's petition.

It was not brought to the notice of the High Court that the proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules 1965 had been amended with retrospective effect from 1st May, 1965. The rule as now amended reads: ·

"<:. Termination of temporary service--

(1) (a) The services of temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the . appointing authority to. the Government i.ervant;

(b) The period of such notice shall be one month; Provided that the services of any such Government servant may be terminated forthwith and on such termination the Government servant shall. . be entitled to claim sum equivaleiat to the amount of his pay plus allowances for the period of the notice .at the same rates at which he was drawing them

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immediately before the termination of the services or as the case may be for the period by which such notice falls shor_t of one month." ·

The effe1.:t of this amendment is that on 1st May 1965 as also on 15.6.1971, the date on ·which the appellant's services were terminated forthwith it was not obligatory to pay to him sum equivalent to the amount of his pay aiad allow'ances for the period of the notice at the rate at which he was drawing them immediately before the termi-nation of the services or as the case may be for the.. period by which such notice falls short. The Government servant concerned is. only entitled to claim the sums hereinbefore mentioned. Its effect iS that the decision of this Court in Gopinath's case (supra) is no ldager good law. There is no doubt that this rule is valid rule because it it now well established that rules made under the proviso to Article 309 of the Constitution are legislative in character and therefore can be given effect to retrospectively. It follows that the decisions of the Delhi High Court dismissing the appellant's writ petition is correct and this appeal will have to be dismissed.

But it was argued by Mr. Bhandare appearing on behalf of the appellant that there is no validating provision in the rule· as now amen-ded and therefore the intention "of the Government in making the amendment canti.10t be validly given effect to. For this purpose he relied upon the decision of this Court in Prithvi Mills v. Broach Munic. (1) and in particular the following observations therein:

"Sometiines this is done by re-enacting retrospectively valid and legal taxing provision and the'a by fiction making the tax already collected to .stnnd under the re-enacted law. Sometimes the legislature gives its own meaning and interpre-tati1>n of the law under which the tax was collected and by legislative fiat makes the new meaning bindi',1g upon c0urts. The legislature may follow any one method or all of them and while it does so it/may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must. be within the competence of the legislature and legal and adequate to attuin the object or validation. If the legisla-ture has the power over the subject-matter and competence to make valid law, it ca'D. at any time make such valid law, and make it retrospectively so as to bind even past transactions."

This argument proceeds upon 11; rn!scom.prehension of the . a~ove observation and the effect of validatmg statute. Once law isl given retrospective effect as from 11 particular date all actions taken undeI.. the Act eve~1 before the amendment was made would be deemed. to have been taken under the Act as amended and there could be really no question of having to validate any action alr~ady taken provided

it is subsequent to the date from which the amendment is given retros-pective effect. The question of the particular form of the validation would always depend "" the circumsta•aces of case and no general formula can be devised 10r all circumstances. It is enough to .say that · in the present case the action taken against the appellant was on date subsequent to the date on which the amended rule takes effect and therefore that action being in accordance with the amended rule is iegally valid <icti'Jn and there is no need to have validating provision in res. pect thereof.

It was then argued by Mr. Bha:ndare that the matter has been dis-posed of in li111ii.e by the High Court and there are certain other a~pccts which may have to be considered, and therefore the appeal shouU ~10t 1:ie dismissed but that the writ petition should be directed to be disposed of afresh by the Delhi High Court after considering the other questions raised ii; the w:-it petition. There are only two ques-tions raised by the petitioner in his. writ petition. · One is that certain persons junior to him have been continued in service while his services have been termhrntcd and that it offends Article 14. The termination of the appellant's services was not on the ground of retrenchment. The question of offending Article 14 does not therefore arise. When action is taken against him under the relevant rules which enable the authorities concerned to terminate his temporary servi;e without assig-ning any reason the Court would not go into the reasons which led to the appellant's services being terminated. The other point raised. in the writ petition is that action terminating the appellant's services was mala fide. · We 5ee no substance in this contention. The action is said to be mala fide because after the appellant's services were ter-minated certain other persons have been appointed. It is not alleged ·that those persons exercised their influence and had the petitioner's services terminated in oroer to provide them with posts. Naturally when vacancy ari$CoS by the termination of services of an employee oth;:r persons would have to be appointed to take his place. This would nnt show any ma/a fides.

The apprnl i~ therefore dismissed but in the circumstances there will be no order as to costs.

Appeal dismissed.