SHARMA, J. - (1.) CORE question that arises for consideration in all these writ petitions is whether a rule can be framed under the proviso to Article 309 of the Constitution of India to whittle down the employee's vested right which has become crystallized?
(2.) ALL the petitions have common cause of action since they are aggrieved by the issuance of Notification dated June 8, 2001 and August 7, 1998 whereby their existing pay scale of Rs. 6500-10500 has been reduced to Rs. 5500-9000 w. e. f. July 1, 1998. The petitioners indisputably have been given from time to time the benefit of revision of pay scale, selection scale as per circular dated January 25, 1992 and under the Rajasthan Civil Services (Revised Pay Scale) Rules, 1998 (For Short `1998 Rules') Notification No. F. 16 (5) FD (Rules) 1998 dated August 7, 1998 was issued under 1998 Rules in exercise of powers conferred by the proviso to Article 309 of the Constitution. By the said Notification the concept of Entry Scale, Senior Scale and Selection Scale was introduced. The Notification indicated that so far as the case of Senior Teachers is concerned, their Entry Scale as revised after September 1, 1996, would be Rs. 5500-9000. It was further indicated that benefit of Senior Scale was to be conferred only after completion of 10 years of service in the pay scale of Rs. 6500-10500. The benefit of Selection Scale was to be given after completion of 8 years of service in Senior Scale in the pay scale of Rs. 7500-12000. Notification No. F. 16 (5) FD (Rules)/98 dated June 8, 2001 reads as under:- " In exercise of the powers conferred by the proviso to article 309 of the Constitution of India, the Governor of Rajasthan is pleased to make the following rules to amend further the Rajasthan Civil Services (Revised Pay Scales) Rules, 1998 namely:- 1. The rules may be called the Rajasthan Civil Services (Revised Pay Scales) ( Third Amendment) Rules, 2001. 2. They shall be deemed to have come into force with effect from 1. 7. 1998. 3. In the Rajasthan Civil Services (Revised Pay Scales), Rules, 1998 in Schedules V-the existing General Note 8 Shall be re-numbered as 8 (1) and following new clause (ii) and (iii) there under shall be inserted, namely:- (ii) The teacher earstwhile Teacher Grade III/drawing pay, in the second selection grade of 6500-10500 and promoted as senior prior to 1. 7. 1989 shall draw pay in the scale of 6500- 10500 as senior scale of Senior Teacher. Those Senior Teachers who have not competed nine years service as Senior Teacher on 1. 7. 1998, their pay on 1. 7. 1998. (iii) As a result of re-fixation of pay in accordance with the provisions contained in the clause (ii) above, the recovery of over payment, if any, shall stand waived for the period from 1. 7. 1998 to the date of issue of this Notification. By order of the Governor OSD (M. D. Kaurani), Principal Secretary/finance. " It is averred in the writ petitions that the petitioners have already availed the benefit of sections grade of Rs. 6500- 10500 but they have been deprived of the rightful claim to continue in the said scale and the act of the State Government in reducing pay scale No. 12 (Rs. 6500-10500) to pay scale No. 11 (Rs. 5500-9000) is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution. On February 26, 2004 Mr. Mohd. Rafiq learned Additional Advocate General submitted that reply on behalf of the respondents be been filed tin Gopal Lal Sharma vs. State of Rajasthan (1), and the same may be treated as reply in all the connected writ petitions. Rejoinder to the reply was also submitted on behalf of the petitioners.
(3.) I have heard the rival submissions and carefully scanned the impugned Notifications. Laying down the condition of service is primarily the function of the Legislature, the proviso to Article 309 is a transitional provision empowering the Executive to make rules having the force of law. The proviso merely enable the Governor to make rules to regulate the `recruitment and condition of service' of the parsons mentioned therein and is not co-extensive with the power of the Legislature under item 70 of List I or 41 of List II. The question relating to power to make rules with retrospective effect was considered by a Constitution Bench of the Hon'ble Supreme Court in State of Gujrat vs. Raman Lal Keshav Lal Soni It was indicted "that the law must satisfy the requirements of the constitution today taking into account the accrued cr. acquired rights of the parties today. The law can not say, 20 years ago the parties had no right, therefore the requirement of the Constitution will be satisfied if the law is dated back by 20 years. We are concerned with today's rights and not yesterday's. A legislature can not legislate today with reference to a situation that obtained 20 years ago and ignore the march of events and the constitutional rights accrued in the course of 20 years. That would be most arbitrary, unreasonable and a negation of history. " In K. C. Arora vs. State of Haryana (3), their lordships of the Supreme Court observed that the State Government can not take away accrued right of an employee by making amendment of the rules with retrospective effect. ;