Bal Raj Tuli, J. - (1.) 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 tothe 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 1957as 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 was Included in the select list for the first time on Jan. 1,1960, and since then he was on the select list till the re-organisation of the State of Punjab with effect from Nov. 1, 1966 After there-organisation the select list for the State of Punjab was prepared in Feb., 1968, in which the name of respondent 3 was Included and he was appointed to the I. A. S. on Feb. 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 Feb. 22, 1968. Respondent 7 was brought on the select list on April 1, 1961, and remained on that list till the reorganisation of the State of Punjab. His name was also included in the select list prepared for the State of Punjab after reorganisation in February,1968, and he was appointed to the I. A. S. on Feb. 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. I.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 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 Singh 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 1 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 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 antedating the appointments of respondents 3 to 7 to Nov. 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 Nov. 1, 1966, although they were appointed to the I. A. S. In Feb., 1968. It has, therefore,to be determined whether the Government of India has the jurisdictionto ante-date the dates of respondents 3 to 7 from Feb., 1968, to Nov. 1, 1966.
(2.) It has been contended by the learned counsel for the petitioners that the select list, which was in force up to Oct. 31, 1966, in the erstwhile State of Punjab, lapsed on Nov. 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 Nov. 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 Nov. 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 Nov. 1, 1966, to Feb. 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 Feb., 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 promoted (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 Feb. 22, 1968, when the select list tor the State of Punjab was finalised and their names appeared therein. The dates of their appointments cannot, therefore, be antedated from Feb. 22, 1968 to Nov. 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 Feb. 22, 1968 to Nov. 1, 1966, the rights of the petitioners as to seniority are hound 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 provision to Art. 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 Nov. 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 Vs. Officer Administering the Government of Nigeria and another,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." 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 properly and the freedom of the subject from illegal detention, duress, punishment, or taxation, contained in the four great chatters of statutes which regulate the relations between the Crown and the People, the liberties of the subject are not expresslydefined in any law or code. Further, since Parliament is sovereign,the subject cannot possess guaranteed rights such as are guaranteedto the citizen by many foreign constitution. It is well understoodthat certain liberties are highly prised by the people, and that inconsequence Parliament is unlikely, except in emergencies, to passlegislation constituting a serious interference with them."
(3.) Parliament enacted All India Services Act, 1951, and conferredthe 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 respondent shave 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 Sate 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 Government sand 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 holds 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 occurs 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".;