FAROOQ HASAN, J. - (1.) K. C. Goyal (Petitioner), a Diploma Holder in Mechanical Engineer (Year 1965) & then, A. M. I. E. passed on 8th August, 1976, assails, through this writ petition under Article 226 of the Constitution of India, the constitutional validity of. the amendments in the Rajasthan Service of Engineerings (Public Health Branch) Rules, 1968, (for short, 'the Principal Service Rules' and the Rajasthan Engineering Subordinate Service (Public Health Branch) Rules, 1967, (for brevity, 'the Subordinate Engineering Service Rules' ) made vide notifications dated 30th May, 1977 (Ann. 7), 28th July, 1978 (Ann. 8), 22nd June, 1976 (Ann. 5) and 18th June, 1977 (Ann. 6) as violative of & ultra vires Arts. i4 and 16 (1) of the Constitution of India.
(2.) THE facts, simple enough as they are, have copiously been averred by the petitioner. Shorn of all unnecessary detail, a broad brush factual backdrop will help delineate the controversy. Initially, vide order dated 2nd July, 1965, the petitioner, on his having found suitable by a selection committee, was temporarily appointed as Engineer-ing Subordinate (Mechanical) ; then, on the recommendation of the Rajasthan Public Service Commission to which, the petitioner had applied for appointment, he was appointed & posted as Temporary Engineering Subordinate vide order dated 16 5. 1967 (Ann. 1), and was confirmed on that post vide order dated 8. 12. 1970 (Ann. 2 ). Thereafter, on 8th August 1976 the petitioner passed A. M. I B. and he was posted as a Junior Engineer, (Mechanical) w. e. f. 8. 8. 1976 vide Chief Engineer's (PHED) order dated 30th October, 1976 (Ann. 3 ). In the final seniority list issued on 21st May, 1979, the petitioner's name was shown at serial No. 38 and in the said list (Ann. 4) his date of con-firmation according to the alleged screening was shown as 1st November, 1968- At the very out set, we would like to epitomize the primitive features of the relevant service rules. The recruitment to and the conditions of service of the persons appointed to the Subordinate Service in the Public Health Engineering Department are governed by the provisions contained in the Subordinate Engineering Service Rules, 1967, which were promulgated by notification of 6th September, 1967 whereas such conditions of service of persons appointed to the State Service are governed by the provisions contained in the principal service Rules, 1968 which were promulgated by notification of 1lth July, 1968. These Service Rules, 1968 were amended firstly by notific-ation of 22nd June, 1976 (Ann. 5) by which, definition clause in rule 2, rule 6, Rr, 24 & 29 apart from the schedule were amended. Thereby, it was provided that the post of Assistant Engineer (Mechanical) or (Electrical) will be filled in. 50% by direct recruitment and then 50% by promotion which was further subdivided in equal ratio of 25% & 25% to be filled from amongst Junior Engineers (Mechanical or Electrical) and Sub-Engineers (Mechanical or Electrical ). Then, by another notification of 18th June, 1977 (Ann. 6) the amendment made by notification of 22nd June, 1976 was given retrospective effect from 1st April, 1975. The Subordinate Service Rules, 1967 for the first time came to be amended vide notification of 30th May, 1977 (Ann, 7) and new proviso 4 to rule 6 was inserted entitling a Sub Engineer to be appointed as Junior Engineer by transfer on attaining the qualification required for it viz. Degree in Engineer-ing or equivalent qualifications. This amendment notification of 30th May, 1977 (Ann. 7) was subsequently given retrospective effect from 1st April, 1975 by another notification of 28th July, 1978 (Ann. 8 ). Which led the petitioner to file this writ petition praying therein that the aforesaid notification be declared ultravires to the Constitution of India and be quashed; and further praying that the seniority list dated 21st May, 1979 declaring it illegal be quashed restraining the respondents from acting upon the list for future promotion on the posts of Assistant Engineers (Mechanical), and if any promotions are accorded during the pendente of writ petition it was prayed to be quashed.
(3.) FIRST and foremost grievance of the petitioner is that the amendment made in the Subordinate Service Rules, 1967 & the State Service Rules, 1968 could not be given retrospective effect. For the first time, the amendment was made in the Subordinate Service Rules, 1967 on 30. 5. 1977 making separation effective only with these rules whereas the amendment in the State Service Rules, 1968 was wholly ineffective till the bifurcation was made in the Subordinate Service Rules, 1967. According to the petitioner, if the bifurcation is made on May 30, 1977 in the Subordinate Service Rules, 1967, a separate seniority list would be prepared as on May 30, 1977; and accordingly as on that day the petitioner having already done in Aug. 1976, his A. M. I. B. equivalent to a Degree, he would be categorised as Junior Engineer in the bifurcated cadre and would accordingly be entitled to be placed with Junior Engineers on 30 5. 1977. For the petitioner, learned counsel added that by making the amendment retrospective from 1st April, 1975, the petitioner's right, in sub-cadre of Junior Engineers is being taken away. Thus, the learned counsel resolutely contended that the amendment made in Subordinate & State Services Rules cannot be given retrospective effect resulting in violation of the petitioner's right of seniority in the cadre of Junior Engineer and promotion from amongst Junior Engineers. To fortify his contention, learned counsel for the petitioner placed reliance upon the decision of the Apex Court in Ex. Capt. K. C. Arora Vs. State of Haryana (1) wherein in view of the authoritative pronouncement in State of Gujrat Vs. Raman La! Keshav Lal Soni (2), the court observed that the law appears to be well settled and the Haryana Government cannot take away the accrued rights of petitioners and the appellants by making amendment of the rules with retrospective effect. In State of Gujrat Vs. Ramanlal Keshavlal Soni (Supra), a constitution Bench of the Apex Court had to consider the constitutional validity of the provison to S. 102 (1) (a) of the Gujrat Panchayat Act, 1961, as introduced by the Gujrat Panchayat (Third Amendment) Act, 1978, with retrospective effect. Their lordships observed that the Amending Act was sought to be given retrospective effect to get over the constitutional safeguards of Arts. 31 1 and 14 by reverting to a situation that existed some years ago, and then said that there was no power to do so and observed: "the legislation is pure and simple, self deceptive, if we may use such an expression with reference to a legislature made law: The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the do's and don't of the Constitution neither prospective nor retrospective laws can be made so as to contravene fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account, the accrued or acquired rights of the parties today. The law cannot say, twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years We are concerned with today's rights and not yesterday's. A legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history. " The aforesaid observations were followed in T. R Kapur Vs. State of Haryana (3), referring to the observations of Chandrachud C. J. (as he then was) speaking for a Constitution Bench in B. S. Yadav Vs. State of Punjab (4) which read as under: "today's equals cannot be made unequal by saying that they were unequal twenty years ago and we will restore that position by making a law today and making it retrospective. Constitutional rights, constitutional obligations and constitutional consequences cannot be tampered with that way. A law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation cannot become valid by being made retrospective Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws. We are therefore, firmly of the view that the Gujrat Panchayat (Third amendment) Act, 1978 is unconstitutional, as it offends Arts. 311 and 14 and is arbitrary and unreasonable. " ;