CMD/CHAIRMAN, B.S.N.L. AND ORS.versusMISHRI LAL AND ORS.

                     [2011) 3 S.C.R. 317


           GMO/CHAIRMAN, B.S.N.L. AND ORS.                       A
                              v.
                   MISHRI LAL AND ORS.
              (Civil Appeal No. 1405 of 2007)
                       APRIL 15, 2011
                                                                  B
[MARKANDEY KATJU AND GYAN SUD HA MISRA, JJ.]

      Raj Bhasha Adhikari Recruitment Rules 2005 -
Quashing of- Challenge to -High Court quashing 2005 Rules
as a/so the letters whereby the petitioners were told to appear C
in the Limited Internal Competitive.Examination for promotion
to the post of Raj Bhasha Adhikari AD(OL) - Held: The
approach of the High Court was totally incorrect - High Court
had quashed 2005 Rules without service of any notice of the
writ petition on the appellants, that too at the preliminary stage D
of admission - Respondents were never regularly promoted
as Hindi Officer at any point of time nor had been regular
appointees - They were appointed purely on local officiating
basis under delegated powers on the basis of administrative
instructions - Thus, they had no vested rights for promotion E
to the post of Hindi Officer under the Recruitment Rules of
2002, which, in fact were never in operation at any point of
 time - Moreover, a conscious decision was taken by
 formulating 2005 Rules which provided that al/ the posts
 should be filled up by a Limited Internal Competitive F
 Examination - This was a policy decision and the High Court
 could not have found fault with it - When Rules are framed
 under Article 309 of the Constitution, no undertaking need be
 given to anybody and the Rules can be changed at any time
- Thus, the order of the High Court is set aside - Constitution G
 of India, 1950 - Article 309 - Administrative Law.

     Practice and Procedure: Writ Petition seeking quashing
of Rules - Summary disposal of, without calling for counter
affidavit and examining the matter in detail - Held: Was totally
                             317                                 H
    318      SUPREME COURT REPORTS                 [2011) 5 S.C.R.


A against any established procedure of law.
          Equity - When available - Held: Law prevails over equity
    if there is a conflict - Equity can only supplement the law, and
    not supplant it - Maxim - Dura lex sed lex.
B     The respondents 1 to 9 filed a writ petition before the
  High Court praying for quashing of the Raj Bhasha
  Adhikari'Recruitment Rules 2005 as well as the letters by
  which they were told to appear in the Limited Internal
  Competitive Examination for promotion to the post of Raj
C Bhasha Adhikari AD(OL) which was to be held under the
  supervision of the CGMT UP(East), Circle , Lucknow as
  well as issuing a writ of mandamus restraining the
  appellants from interfering in the working of the
  respondents as AD(OL) on their respective posts and to
D continue to pay them their salaries. The writ petition was
  allowed. Therefore, the appellants filed the instant
  appeals.
          Allowing the appeals, the Court
E      HELD: 1. When Rules are challenged it is necessary
  to have the matter gone into in depth by inviting a counter
  affidavit and examining the matter in detail. A summary
  disposal of a writ petition by allowing it without even
  calling for a counter affidavit and quashing the Rules, is
F totally against any established procedure of law. The
  submission that the Raj Bhasha Adhikari Recruitment
  Rules 2005 were quashed by the High Court without
  service of any notice of the writ petition on the appellants-
  respondents 3 to 6 in the writ petition and that too at the
G preliminary stage of admission on the basis of an alleged
  submission of a counsel who did not have any authority
  and Vaklatnama in his favour by the appellants and who
  had not been given any instruction to appear on their
  behalf, is accepted. [Paras 4 and 5] [322-H; 323-A-B]
H
GMO/CHAIRMAN, B.S.N.L. AND ORS. v. MISHRI LAL 319
                 AND ORS.
     2.1 Rules under Article 309 of the Constitution can be A
changed even during the subsistence of the old Rules.
A Rule made under the proviso to Article 309 is a
legislative act (though made by the executive). It is not a
piece of delegated legislation like a Rule made under a
statute. Thus, it can be amended retrospectively. Thus, B
Rules under the proviso to Article 309 are Constitutional
Rules, not like Rules under a statute. Thus, they have the
same force as a Statute, though made by the executive.
The legislature can legislate retrospectively. Thus, the
approach of the High Court was totally incorrect. [Paras C
12, 13, 14 and 20] [325-C-G; 327-0]
     Raj Kumar vs. Union of India AIR 1975 SC 1116; M.P. V.
Sundararamier and Co. vs. State of Andhra Pradesh AIR
1958 SC 468; J.K. Jute Mills vs. State of Uttar Pradesh AIR
                                                             0
1961 SC 1534; Jadao Bahuji vs. Municipal Committee AIR
1961 SC 1486; Government of Andhra Pradesh vs. Hindustan
Machine Tools Ltd. AIR 1975 SC 2037; Nandumal Girdharilal
vs. State of Uttar Pradesh AIR 1992 SC 2084; State of Punjab
and Ors. vs. Arun Aggarwal and Ors. (2007) 10 SCC 402 - E
relied on.              ·
     2.2 The expression 'vested right' could only mean a
vested Constitutional right, since a Constitutional right
cannot be taken away by amendment of the Rules. Thus,
a vested Constitutional right cannot be taken away by F
amendment of the Rules. It follows that if the vested right
is not a Constitutional right it can be taken away by
retrospective amendment of the Rules. A legislative act
can destroy existing rights, (unless it is a Constitutional
right). Thus, even a taxing statute can be made G
retrospectively, and this usually affects existing rights.
[Paras 15, 17, 19] (326-8-C, E, H; 327-A-B]
    Chairman, Railway Board vs. C.R. Rangadhamaiah
(1997) 6sec 623 - followed.                                 H
    320    SUPREME COURT REPORTS               [2011] 5 S.C.R.


A       Union of India vs. Madangopal AIR 1954 SC 158;
    Jawaharlaf vs. State of Rajasthan AIR 1966 SC 764; Tata Iron
    and Steel Co. Ltd. vs. State of Bihar AIR 1958 SC 452; D.G.
    Gouse and Co. vs. State of Kera/a AIR 1980 SC 271; Shetkari
    Sahkari Sakhar Karkhana Ltd. vs. Collector AIR 1979 SC
B   1972 - relied on.
         2.3 The respondents were never regularly promoted
    as Hindi Officer at any point of time either under the 1984
    Rules or Recruitment Rules, 2002. They had never been
C   appointed on the basis of the recommendation of the
    Departmental Promotion Committee duly approved by
    the Union Public Service Commission. In fact, they were
    appointed purely on a local officiating basis under the
    powers delegated to the Heads of Telecom Circles on the
    basis of administrative instructions dated 28.4.1994. Thus,
0
    they were never regular appointees and thus, had no
    vested rights for promotion to the post of Hindi Officer
    under the Recruitment Rules of 2002, which, in fact, were
    never in operation at any point of time. Besides this, when
E   the revised Recruitment Rules 2005 were formulated, 120
    posts were classified as Executive, and for the Executive
    cadre posts, the mode of recruitment was changed and
    it was now to be filled up by a Limited Internal Competitive
    Examination. It cannot now be allowed to be filled up by
    promotion of persons working on officiating basis. There
F
    was nothing illegal in this change of policy. This was a
    policy decision and the High Court could not have found
    fault with it. The court cannot ordinarily interfere with
    policy decisions. Thus, the approach of the High Court
G   was totally incorrect. [Paras 11and15] [324-G-H; 325-A-
    C; 326-B-C]
        2.4 The observations by the High Court are not
    sustainable. When Rules are framed under Article 309 of
    the Constitution, no undertaking need be given to
H   anybody and the Rules can be changed at any time.
 GMO/CHAIRMAN, B.S.N.L. AND ORS. v. MISHRI LAL 321
                  AND ORS.
Thus, the view taken by the High Court cannot be A
accepted. There is no question of equity in the instant
case because the law prevails over equity if there is a
conflict. Equity can only supplement the law, and not
supplant it. As the Latin maxim states "Dura lex sed lex"'
which means "thus, the law is hard, but it is the law". The B
impugned judgment and order of the High Court is set
aside. [Paras 22, 23) [328-D-F]
                       Case Caw Reference:
     AIR 1975 SC 1116         Relied on              Para 12, 16      c
     AIR 1958 SC 468          Relied on              Para 13
     AIR 1961 SC 1534         Relied on              Para 13
     AIR 1961 SC 1486         Relied on              Para 13          D
     AIR 1975 SC 2037         Relied on              Para 13
     AIR 1992 SC 2084         Relied on              Para 13
     (2007) 1o sec 402        Relied on              Para 14
                                                                      E
     (1997) 6 sec 623         Followed               Para 18
     AIR 1954 SC 158          Relied on              Para 19
     AIR 1966 SC 764          Relied on              Para 19
     AIR 1958 SC 452          Relied on              Para 19          F

     AIR 1980 SC 271          Relied on              Para 19
     AIR 1979 SC 1972         Relied on              Para 19
    CIVIL APPELLATE JURISDICTION : Civil Appeal No: G
1405 of 2007.

    From the Judgment & Order dated 16.12.2005 of the High·
Court of Judicature at Allahabad in Civil Misc .. Writ Petition No.
73843 of 2005.
                                                                      H
    322      SUPREME COURT REPORTS                    [2011] 5 S.C.R.


A                                    WITH

    C.A. No. 427 of 2008

          K.C. Kaushik, Rahul Kaushik for the Appellants.

B       · C. Mukund, Pankaj Jain, Ashok Jain, Amit Keseri, Raja,
    Bijoy Kumar Jain for the Respondents.



c
          The Judgment of the Court was delivered by

          MARKANDEY KATJU, J.
                                                                           -
                                                                           ,....
                                                                           I




    ~ivil Appeal No. 1405 of 2007

         1. This appeal has been filed against the impugned
    judgment and order dated 16.12.2005 in Civil Misc. Writ
o   Petition No. 73843 of 2005 of the Division Bench of the
    Allahabad High Court.

        2. Heard learned counsel for the parties and perused the
    record.

E         3. The respondents 1 to 9 herein; filed a writ petition before
    the High Court praying for quashing of the Recruitment Rules
    2005 as. well as the letters by which the writ petitioners were
    told to appear in the Limited Internal Competitive Examination
    for promotion to the post of Raj Bhasha Adhikari AD(OL) which
F   was to be held under the supervision of the CGMT UP(East),
    Circle , Lucknow as well as issuing a writ of mandamus
    restraining the appellants herein from interfering in the working
    of the respondents as AD(OL) on their respective posts and
    to continue to pay them their salaries. The aforesaid writ petition
G   was allowed by the impugned judgment and hence this appeal.

         4. It was pointed out by learned counsel for the appellants
    that the impugned Raj Bhasha Adhikari Recruitment Rules
    2005 were quashed by the High Court without service of any
    notice of the writ petition on the appellants (respondents 3 to 6
H   in the writ petition) and that too at the preliminary stage of
GMO/CHAIRMAN, B.S.N.L. AND ORS. v. MISHRI LAL 323
      AND ORS. [MARKANDEY KATJU, J.]
admission on the basis of an alleged submission of a counsel           A
who did not have any authority and Vaklatnama in his favour
by the appellants and who had not been given any instruction
to appear on their behalf. We agree with this submission.

      5. When rules are challenged it is necessary to have the
                                                                       8
matter gone into in depth by inviting a counter affidavit and
examining the matter in detail. A summary disposal of a writ
petition by allowing it without even calling for a counter affidavit
and quashing the rules, in our opinion, is totally against any
established procedure of law.
                                                                       c
     6. Apart from the above, on merits also we are of the
opinion that the writ petition deserved to be dismissed and was
wrongly allowed.

     7. Article 343(1) of the Constitution of India, states that the 0
official language of the Union of India shall be Hindi in
Devnagari script. To fulfill the mandate of this provision the
Government of India, Ministry of Communications, decided to
have a Hindi Cell in each Central Government department and
Central Government instrumentality with the object of promoting E
progressive use of Hindi in the official notings and
communications. Accordingly, it framed Rules in 1983 under
Article 309 of the Constitution. In 1983, there were 43 posts of
Hindi Officers in the department and it was provided that 50%
of the posts will be filled up by direct recruitment, 30% by
promotion and 20% by transfer on deputation. The essential F
qualification for holding the post was Masters Degree in the
concerned subject and 5 years' experience of teaching,
research, writing or journalism in Hindi. As far as promotions
were concerned, it was stipulated that Hindi Translator Grade-
l with 3 years' regular service in the grade could be selected G
by a Departmental Promotion Committee in consultation with
the Union Public Service Commission.

     8. In April 1994, the Department of Telecommunications
decided that since the subordinate units (Telecom Circles) were        H
    324     SUPREME COURT REPORTS                   [2011] 5 S.C.R.


A   facing difficulties in filling up the posts as per the existing
    provisions, the posts of Hindi Officers may be filled up amongst
    the cadre of Hindi Translator Grade-I/Grade-II/Grade-Ill with 3,
    5 or 8 years' service respectively in the Circle/District
    concerned, failing which the posts may be filled up from
B   amongst the Group 'C' cadres based on length of service
    possessing the qualifications in the Recruitment Rules.

         9. On 1.10.2000, the Department of Telecommunications
    was reorganized with the formation of Bharat Sanchar Nigam
C   Limited (in short 'BSNL') as a Government Company to take
    charge of the operations and maintenance of telecom and
    telegraph network of the entire country. The respondents herein
    after formation of BSNL were given option for absorption in the
    Corporation in the level of Junior Hindi Translators, which option
    they exercised and they were absorbed accordingly.
D
          10. There were some objections to the Recruitment Rules
    of 2002 which had been circulated departmentally, but allegedly
    these Rules were never in operation at any point of time.
    Accordingly, the revised Recruitment Rules 2005 were
E   formulated and issued on 5.8.2005 whereby 120 posts were
    classified as Executive with the nomenclature of Raj Bhasha
    Adhikari. While the educational qualifications remained the
    same as before, the mode of recruitment was totally changed
    in the Recruitment Rules of 2005. The entire cadre was to be
F   filled up by a Limited Internal Competitive Examination. It is
    these Rules which have been struck down by the High Court.

         11. It may be mentioned that the respondents herein were
    never regularly promoted as Hindi Officer at any point of time
    either under the 1984 Rules or Recruitment Rules, 2002. They
G   had never been appointed on the basis of the recommendation
    of the Departmental Promotion Committee duly approved by
    the Union Public Service Commission. In fact, they were
    appointed purely on a local officiating basis under the powers
    delegated to the Heads of Telecom Circles on the basis of
H   administrative instructions dated 28.4.1994. Thus, they were
CMD/CHAIRMAN, B.S.N.L. AND ORS. v. MISHRI LAL 325
      AND ORS. [MARKANDEY KATJU, J.]
never regular appointees and hence had no vested rights for          A
promotion to the post of Hindi Officer under the Recruitment
Rules of 2002, which, in fact, were never in operation at any
point of time. Besides this, when the revised Recruitment Rules
2005 were formulated, 120 posts were classified as Executive,
and for the Executive cadre posts, the mode otrec(uitment was        B
changed and it was now to be filled up by a Limited Internal
Competitive Examination. It cannot now be allowed to be filled
up by promotion of persons working on officiating basis. In our
opinion there was nothing illegal in this change of policy.

     12. Rules under Article 309 can be changed even d~ring          C
the subsistence of the old Rules. As held in Raj Kumar vs.
Union of India, AIR 1975 ·sc 1116 (vide para 7), "Rules made
under the proviso to Article 309 of the Constitution are
legislative in character, and therefore can be given effect to
retrospectively." Thus, rules under the proviso to Article 309 are   D
Constitutional rules, not like rules under a statute. Hence they
have the same force as a Statute, though made by the
executive.

     13. It is well settled that the legislature can legislate       E
retrospectively vide M.P. V. Sundararamier & Co. vs. State of
Andhra Pradesh, AIR 1958 SC 468, J.K. Jute Mills vs. State
of Uttar Pradesh, AIR 1961SC1534, Jadao Bahuji vs.
Municipal Committee, AIR 1961 SC 1486, Government of
Andhra Pradesh vs. Hindustan Machine Tools Ltd., AIR 1975            F
SC 2037 (para 8), Nandumal Girdharilal vs. State of Uttar
Pradesh, AIR 1992 SC 2084, etc.

    14. Hence, the approach of the High Court, in our opinion,
was totally incorrect. In State of Punjab and others vs. Arun
Aggarwal and others (2007) 1O sec 402, it was observed (in           G
para 30):

    "There is no quarrel over the proposition of law that the
    normal rule is that the vacancy prior to the new Rules would
    be governed by the old Rules and not the new Rules.              H
    326       SUPREME COURT REPORTS                [2011] 5 S.C.R.


A         However, in the present case, we have already held that
          the Government has taken a conscious decision not to fill
          the vacancy under the old Rules and that such decision has
          been validly taken keeping in view the facts and
          circumstances of the case".
B
       15. In the present case, a conscious decision was taken
  in 2005 providing that all the posts in question should be filled
  up by Limited Internal Competitive Examination. This was a
  policy decision and we cannot see how the High Court could
C have found fault with it. It is well settled that the Court cannot
  ordinarily interfere with policy decisions.

        16. No doubt in some decisions it was held that a vested
  right cannot be taken away by amendment of the rules. But what
  does this really mean? Since a rule under the proviso to Article
D 309 is legislative in character vide Raj Kumar vs. Union of India
  (supra) the rule can be amended, even with retrospective effect,
  just as a legislation can be amended with retrospective effect.

      17. In our opinion the expression 'vested right' could only
E mean a vested Constitutional right, since a Constitutional right
  cannot be taken away by amendment of the rules.

        18. This is evident from the Constitution Bench decision
  of this. Court in Chairman, Railway Board vs. C.R.
  Rangadhamaiah (1997) 6 SCC 623. It was held therein that
F pension is no longer treated as a bounty but was a valuable
  Constitutional right under Articles 19(1 )(f) and 31 (1) of the
  Constitution, which were available on 1.1.1973 and 1.4.1974
  (that is before the 44th Constitution Amendment). Since this was
  a Constitutional right it could not be taken away by amendment
G of the rules. The Constitution is the supreme law of the land,
  and hence a Constitutional right can only be taken away by
  amending the Constitution, not by amending the rules or even
  by amending the statute.

          19. Hence in view of the aforesaid Constitution Bench
H
GMO/CHAIRMAN, B.S.N.L. AND ORS. v. MISHRI LAL 327
      AND ORS. [MARKANDEY KATJU, J.]
decision the other decisions of this Court of smaller benches A
must be understood to mean that a vested Constitutional right
cannot be taken away by amendment of the rules. It follows that
if the vested right is not a Const~tutional right it can be taken
away by retrospective amendment of the rules.- A legislative act
can destroy existing rights, (unless it is a Constitutional right). 8
Thus, even a taxing statute can be made retrospectively, and
this usually affects existing rights vide Union of India vs.
Madangopal, AIR 1954 SC 158, Jawaharlal vs. State of
Rajasthan, Al R 1966 SC 764(770), Tata Iron & Steel Co. Ltd.
vs. State of Bihar, AIR 1958 SC 452, D.G. Gouse & Co. vs. C
State of Kera/a, AIR 1980 SC 271 (para 16), Shetkari Sahkari
Sakhar Karkhana Ltd. vs. Collector, AIR· 1979 SC 1972 (para
6-7), etc.

     20. A rule made under the proviso to Article 309 is a
legislative act (though made by the executive). It is not a piece   D
of delegated legislation like a rule made under a statute. Hence
it can be amended retrospectively ..

    21. In para 8 & 9 of the impugned judgment, the High Court
has observed:                                                       E
    "The main and the central contention from the side of the
    petitioners is that since the Old Rules specifically stated
    that since these Rules will remain effective for three years,
    it was not for the respondent No. 3 to change these Rules
    before three years, and to formulate new set of rules,          F
    changing the basic structure of pro,·;1otion, as petitioners
    who were already working on the post of AD (OL) as far
    back as since 10.7.1995 on local officiating basis.

    We agree with the contention of the learned counsel for the G
    petitioner, because, Law and Equity as well as Honesty and I
    Fair Play jointly provide support of the petitioners'
    contention, that once it has been laid down in the old Rules
    (Rule 10(iv) that they will not be changed for three years,
    respondent No. 3 BSNL, who is a Government of India H
    328       SUPREME COURT REPORTS                   (2011) 5 S.C.R.


A          enterprise, cannot change the Rules before expiry of three
           recruitment years, and cannot formulate a new set oPRules
           detrimental to the interests of the petitioners. This
           undertaking given by the respondent No. 3 in the earlier
           Rules, is sacrosanct, and the respondent No. 3 is bound
B          to honour the same. They cannot and should not be
           allowed to say, a good-bye from the same. If they wanted
           to retain the right to change the Rules, they should not have
           given an undertaking by framing sub-rule(iv) of Rule 10 of
           the Old Rules. But once they have given this assurance in
           the Rules, they respondents cannot and should not be
c          allowed to turn around and resile from the same".

          22. We are of the opinion that the above observations are
    not sustainable. When Rules are framed under Article 309 of
    the Constitution, no undertaking need be given to anybody and
D the Rules can be changed at any time. For instance, if the
    retirement age is fixed by rules framed under Article 309, that
    can be changed subsequently by an amendment even in
    respect of employees appointed before the amendment.
    Hence, we cannot accept the view taken by the High Court.
E There is no question of equity in this case because it is well
 •· settled that law prevails over equity if there is a conflict. Equity
    can only supplement the law, and not supplant it. As the Latin
    maxim states "Dura lex sed lex'" which means "The law is hard,
    but it is the law".
F
         23. For the aforementioned reasons, the appeal is
    allowed. The impugned judgment and order of the High Court
    is set aside. There shall be no order as to costs.

    Civil Appeal No. 427 ·of 2008
G
        24. In view of the decision in Civil Appeal No. 1405 of
    2007, this appeal is allowed. The impugned judgment and
    order of the High Court is set aside. No costs.

    N.J.                                            Appeals allowed.
H