Supreme Court of India
J.S. YADAVversusSTATE OF U.P. & ANR.
- Citation
- 2011 INSC 311
- Decided
- 18 April 2011
- Disposal
- Case Partly allowed
- Bench
- P SATHASIVAM
Holding
A member appointed for a fixed tenure under the Protection of Human Rights Act, 1993 is entitled to serve the full term and cannot be removed by a prospective amendment that does not expressly apply retrospectively, and the State's notification was illegal under Section 26 of the Act.
Summary
J.S. Yadav, a District Judge, was appointed a Member of the Uttar Pradesh State Human Rights Commission for a five‑year term in 2006 under the Protection of Human Rights Act, 1993. After the 2006 amendment to the Act introduced a seven‑year experience requirement for District Judges, the State Government issued a notification in May 2008 declaring that Yadav had ceased to hold the post, arguing he no longer met the eligibility criteria. Yadav challenged the notification, contending that his appointment was for a fixed tenure, that the amendment was prospective, and that Section 26 of the 1993 Act protected his accrued rights. The Supreme Court held that a tenure appointment cannot be curtailed without justifiable grounds, that the amendment did not have retrospective effect, and that the notification violated Section 26, rendering it illegal. However, because Yadav had not impleaded the newly appointed members as necessary parties, the Court limited relief to a declaration of illegality and awarded him costs of Rs. 1 lakh.
Issues considered
- The amendment to the Protection of Human Rights Act, 2006, whether it applies retrospectively to appointments made before its commencement.
- Whether a member appointed for a fixed tenure under the 1993 Act can be removed before the expiry of that tenure without justifiable grounds.
- Whether Section 26 of the Protection of Human Rights Act, 1993, bars variation of terms and conditions of service to the disadvantage of a member after appointment.
- Whether the State could validly issue a notification discharging the appellant without impleading the newly appointed members as necessary parties.
Legislation cited
- Code of Civil Procedure, 1908s. Order I Rule 9
- General Clauses Act, 1897s. 3, s. 6
- Protection of Human Rights Act, 1993s. 21, s. 23, s. 25, s. 26
- Protection of Human Rights (Amendment) Act, 2006
- U.P. Higher Judicial Service Rules, 1975s. 4
Subjects
tenure appointmentaccrued rightsprospective legislationHuman Rights Commissionservice lawnatural justiceimpleadmentvested rightstatutory interpretationretrospective amendment
Judgment
[2011] 5 S.C.R. 460
A J.S. YADAV
v.
STATE OF U.P. & ANR.
(Civil Appeal No. 3299 of 2011)
APRIL 18, 2011
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Protection of Human Rights Act, 1993: ss.21, 23, 25, 26
- Protection of Human Rights (Amendment) Act, 2006 -
C Appellant, District Judge appointed as Member of the State
Human Rights Commission in 2006 for a period of 5 years
under the provisions of the Act of 1993 - After coming into
force of Amendment Act of 2006, the eligibility criteria for
appointment of Member was changed and it required
o experience of seven years as District Judge - State
Government issued Notification declaring that appellant did
not fulfill the criteria of the Amendment Act and, therefore,
incurred disability to hold the office as a Member of the
Commission - Validity of Notification challenged - Held: An
E employee appointed for a fixed period under a statute is
entitled to continue till the expiry of the tenure - Moreover,
s. 26 specifically provided that neither the salary and
allowances nor other terms and conditions of service of a
Member shall be varied to his disadvantage after his
F appointment - As the appellant was fully eligible and
competent to be appointed under the Act of 1993 and he was
duly appointed and worked for about 2 years including the
period after the commencement of the Amendment Act 2006,
the declaration that he ceased to hold the post as a Member
G of the Commission, was in flagrant violation of the statutory
provisions contained in s.26 of the Act of 1993 itself - The
Notification was, thus, patently illegal - However, the
vacancies of the Members were already filled - Appellant had
also not impleaded any person who had been appointed in
H 460
J.S. YADAV v. STATE OF U.P. & ANR. 461
his place as a Member of the Commission - In the light of A
that the public exchequer cannot be burdened with the liability
to pay the salary of two persons against one sanctioned post
- Therefore, appellant is not granted any other relief except
the declaration in his favour that the impugned Notification
is illegal - However, in the peculiar facts and circumstances B
of the case, the appellant is awarded cost to the tune of Rs. 1
lakh - Constitution of India, 1950 - Article 236(a) - Costs.
Protection of Human Rights (Amendment) Act, 2006: The
amendment would apply prospectively, particularly in view of C
the fact that the Amendment Act 2006 does not expressly or
by necessary implication gives retrospective effect to the
Amendment Act - Prospective effect.
UP. Higher Judicial Service Rules 1975: r.4 - Post of
District Judge and Additional District Judge in the State of D
UP. is neither inter-changeable nor inter-transferable.
Service law: Appointment - Tenure appointment - Held:
An employee appointed for a fixed period under the Statute
is entitled to continue till the expiry of the tenure and in such E
a case there can be no occasion to pass the order of
superannuation for the reason that the tenure comes to an
end automatically by afflux of time.
Repeal: Accrued rights cannot be taken away by
repealing the statutory provisions arbitrarily. F
Party: Necessary party - lmpleadment of - Held: No
order can be passed behind the back of a person adversely
affecting him and such an order if passed, is liable to be
ignored being not binding on such a party as the same has G
been passed in violation of the principles of natural justice -
The principles enshrined in the proviso to Order I Rule 9, CPC
provide that impleadment of a necessary parly is mandatory
and in case of non-joinder of necessary parly, the plaintiff/
H
462 SUPREME COURT REPORTS [2011] 5 S.C.R.
A petitioner may not be entitled for the relief sought by him - In
service jurisprudence, if an unsuccessful candidate
challenges the selection process, he is bound to implead at
least some of the successful candidates in representative
capacity - In case the services of a person is terminated and
s another person is appointed at his place, in order to get relief,
the person appointed at his place is the necessary party for
the reason that even if the plaintiff/petitioner succeeds, it may
not be possible for the Court to issue direction to
accommodate the petitioner without removing the person who
c filled up the post manned by plaintiff/petitioner - Service law
- Code of Civil Procedure, 1908 - 0. 1 r. 9.
Words and phrases: cadre, 'Tenure', 'Justifiable grounds',
'vest' - Meaning of
D The appellant entered the U.P. Judicial Service as
Munsif in the year 1972 and was promoted to the post of
Additional District Judge in the year 1985 and further
promoted to the post of District Judge w.e.f. 14.·1,2003.
While working as a Principal Secretary and Legal
E Remembrancer, Government of U.P., he was appointed
as a Member of the U.P. State Human Rights Commission
on 29.6.2006 for a period of five years i.e. till 30.6.2011.
He joined on the said post on 1.7.2006. Sections 21, 23,
25 and 26 of the Protection of Human Rights Act, 1993
F were amended by the Protection of Human Rights
(Amendment) Act, 2006. The said amendment came into
force on 23.11.2006. After completion of the tenure by the
then Chairperson of the Commission and other Members
in October 2007, the appellant remained the lone working
Member of the Commission. The State of U.P. issued
G Notification to the effect that the appellant ceased to hold
the office as a Member of the Commission. The appellant
challenged the said Notification dated 28.5.2008 by filing
writ petition mainly on the grounds that he had been
appointed for a tenure of five years and that period could
H
J.S. YADAV v. STATE OF U.P. & ANR. 463
not be curtailed and the Amendment Act 2006 could not A
take away the accrued rights of the appellant as he had
been appointed prior to the said amendment. In the writ
petition, the appellant did not implead anyone except the
State of U.P. and its Principal Home Secretary as
respondents. However, the vacancies on the post of the B
Chairperson as well as of the Members of the
Commission were filled up on 6.6.2008 and, in view
thereof, no interim order was passed by the High Court.
The High Court dismissed the writ petition.
In the instant appeal, it was contended for the C
appellant that the experience of Additional District Judge
can also be taken into consideration as that of a District
Judge and, therefore, the appellant possessed the
eligibility even under the amended provisions and thus,
was not liable to be dislodged and that in view of the D
language of Rule 4 of the U.P. Higher Judicial Service
Rules 1975, there was a single cadre comprising the
posts of District and Sessions Judges and Additional
District and Sessions Judges and there was no basic
difference between the said two posts and the State E
could not issue the Notification making a declaration that
the appellant ceased to be the member of the
Commission and take away the accrued rights of the
appellant.
F
Partly allowing the appeal, the Court
HELD: 1. A cadre generally denotes a strength of a
service or a part of service sanctioned as a separate unit.
It also includes sanctioned strength with reference to
grades in a particular service. Cadre may also include G
temporary, supernumerary and shadow posts created in
different grades. The expression :•cadre", "posts" and
"service" cannot be equated with each other. There is no
prohibition in law to have two or more separate grades
H
464 SUPREME COURT REPORTS [2011] 5 S.C.R.
A in the same cadre based on an intelligible differentia.
Admittedly, the post of District Judge and Additional
District Judge in the State of U.P. is neither inter-
changeable nor inter-transferable. Rule 4 of the U.P.
Higher Judicial Service Rules 1975 merely provided for
B an integrated cadre for the said posts. Same is the
position so far as the provisions of Article 236(a) of the
Constitution of India are concerned. The said Article
relates to the procedure of appointment on the post of
the District Judge and other Civil Judicial posts inferior
c to the post of District Judge. The definition in Article 236
covers the higher section of the State Judicial Service
both in the civil and criminal sides. In such a fact-
situation, there is no cogent reason to take a view
contrary to the same for the reason that in case the
Legislature in its wisdom has prescribed a minimum
0
experience of seven years as District Judge knowing it
fully well the existing statutory and constitutional
provisions, it does not require to be interpreted ignoring
the legislative intent. Clear statutory provision in such a
case is required to be literally construed by considering
E the legislative policy. Thus, no fault can be found with the
impugned judgment and order of the High Court on this
count. [Paras 10, 11, 12] [478-H; 479-A-G]
Union of India v. Push pa Rani & Ors., 2008 (11)
F SCR 440: (2008) 9 SCC 242; State of Kamataka & Ors. v.
K. Govindappa & Anr. 2008 (16) SCR 457: AIR 2009 SC
618; All India Judges' Association v. Union of India & Ors.
1991 (2) Suppl. SCR 206: AIR 1992 SC 165 - relied on.
2.1. The appellant had joined as a member of the
G Commission on 29.6.2006 under the Act 1993. Section 26
of the Protection of Human Rights Act, 1993 specifically
provided that neither the salary and allowances nor other
terms and conditions of service of a member shall be
varied to his dis-advantage after his appointment. As the
H
J.S. YADAV v. STATE OF U.P. & ANR. 465
appellant was fully eligible and competent to be A
appointed under the Act 1993 and he had duly been
appointed and worked for about 2 years including the
period after the commencement of the Amendment Act
2006, the declaration that he ceased to hold the post as
a Member of the Commission, was in flagrant violation of B
the statutory provisions contained in Section 26 of the_Act
1993 itself. [Para 14] [480-B-D] -- -
Dr. D.C. Saxena v. State of Haryana & Ors. 1987 (3)
SCR 346:AIR1987 SC 1463 - relied on.
c
2.2. An employee appointed for a fixed period under
the Statute is entitled to continue till the expiry of the
tenure and in such a case there can be no occasion to
pass the order of superannuation for the reason that the
tenure comes to an end automatically by afflux of time. D
'Tenure' means a term during which the office is held. It
is a condition of holding the office. Once a person is
appointed to a tenure post, his appointment to the said
post begins when he joins and when it comes to an end
on the completion of tenure unless curtailed on E
justifiable grounds. Such a person does not
superannuate. He only comes out of the office on
completion of his tenure. Justifiable grounds means
grounds of incurring any disqualification while holding
the post i.e. the grounds incorporated in Section 23 of the F
Act 1993. The dictionary meaning to the said expression
would be "done on adequate reasons sufficiently
supported by credible evidence, when weighed by
unprejudiced mind, guided by common· sense and by
correct rules of law. [Paras 17 to 19] [480-G-H; 481-A-G] G
Dr. L.P. Agarwal v. Union of India & Ors. 1992 (3) SCR
567: AIR 1992 SC 1872; State of U.P. & Anr. v. Dr. S.K. Sinha
& Ors. 1994 (6) Suppl. SCR 283: AIR 1995 SC 768; P.
Venugopal v. Union of India 2008 (8) SCR 1: (2008) 5 SCC
H
466 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 1; Raj Kapoor v. Laxman 1980 (2) SCR 512: AIR 1980 SC
605 - relied on.
3.1. The word -~'vest" is normally used where an
immediate fixed right in present or future enjoyment in
respect of a property is created. With the long usage the
8
·said word "vest" has also acquired a meaning as "an
absolute or indefeasible right". It had a "legitimate" or
"settled expectation" to obtain right to enjoy the property
etc. Such "settled expectation" can be rendered
impossible of fulfilment due to change in law by the
C Legislature. Besides this, such a "settled expectation" or
the so-called "vested right" cannot be countenanced
against public interest and convenience which are
sought to be served by amendment of the law. Thus,
"vested right" is a right independent of any contingency.
D Such a right can arise from a contract, statute or by
operation of law. Thus, "vested right" is a right
independent of any contingency. Such a right can arise
from a contract, statute or by operation of law. A vested
right can be taken away only if the law specifically or by
E necessary implication provide for such a course. (Paras
20, 21, 22] (481-H; 482-D-G]
Howrah Municipal Corpn. & Ors. v. Ganges Rope Co. Ltd.
& Ors. (2004) 1 SCC 663; Mosammat Bibi Sayeeda & Ors.
F etc. v. State of Bihar & Ors. etc. 1996 (1) Suppl.
SCR 799: AIR 1996 SC 1936 - relied on.
Black's Law Dictionary (6th Edition); Webster's
ComprehensiveDictionary (International Edition) - referred
to.
G
3.2. The appellant was appointed under the
provisions of the Act 1993 which did not require seven
years' experience as a District Judge. In the instant case,
the Amendment Act 2006 came into force on 23.11.2006.
H
J.S. YADAV v. STATE OF U.P. & ANR. 467
The State of U.P. did not take any step for discontinuation A
of the appellant upto May 2008 on the ground that he did
not possess the eligibility as per the Amendment Act
2006. The Legislature is competent to unilaterally alter the
service conditions of the employee and that can be done
with retrospective effect also, but the intention of the B
Legislature to apply the amended provisions with
retrospective effect must be evident from the Amendment
Act itself expressly or by necessary implication. The said
power of the Legislature is qualified further that such a
unilateral alteration of service conditions should be in c
conformity with legal and constitutional provisions. In the
instant case, the Amendment Act 2006 is not under
challenge. However, the issue agitated by the appellant
was that the Legislature never intended to apply the
amended provisions with retrospective effect and
0
therefore, the appellant could not be discontinued from
the post [Paras 23, 24, 26) [482-H; 483-A-C-H; 484-A]
3.3. Accrued rights cannot be taken away by
repeating the statutory provisions arbitrarily. More so, the
repeating law must provide for taking away such rights, E
expressly or by necessary implication. [Para 29) [486-A]
Roshan Lal Tandon v. Union of India & Ors. AIR 1967
SC 1889: 1968 SCR 185; State of Mysore v. Krishna Murthy
& Ors. AIR 1973 SC 1146: 1973 (2) SCR 575; Raj Kumar F
v. Union of India & Ors. AIR 1975 SC 1116: 1975 (3) SCR
963; Ex-Capt. K.C. Arora & Anr. v. State of Haryana & Ors.
(1984) 3 SCC 281: 1984 (3) SCR 623 ; State of Gujarat &
Anr. v. Raman Lal Keshav Lal Soni & Ors. AIR 1984 SC 161:
1983 ( 2 ) SCR 287 ; Union of India & Ors. v. Tushar Ranjan G
Mohanty & Ors. (1994)· 5 SCC 450: 1994 (1) Suppl. SCR
651; P;O. Aggarwal & Ors. v. State of U.P. & Ors. AIR 1987
SC 1676: 1987 (3) SCR 427; State of Punjab v. Mohar Singh
Pratap Singh AIR 1955 SC 84: 1955 SCR 893; M.S.
Shivananda v. The Karnataka State Road Transport Corpn.
H
468 SUPREME COURT REPORTS [2011] 5 S.C.R.
A & Ors. AIR 1980 SC 77: 1980 (1) SCR 684; Commissioner
of Income Tax UP. v. Mis. Shah Sadiq & Sons AIR 1987 SC
1217: 1987 (2) SCR 942; Vishwant Kumar v. Madan Lal
Sharma & Anr. AIR 2004. SC 1887: 2007 (13) SCR 804; State
of Punjab & Ors. v. Bhajan Kaur & Ors. AIR 2008 SC 2276;
B Sangam Spinners v. Regional Provident Fund
Commissioner I AIR 2008 SC 739: 2007 (12) SCR 883;
Chairman, Railway Board & Ors. v. C.R.Rangadhamaiah &
Ors. AIR 1997 SC 3828: 1997 (3) Suppl. SCR 63 - relied
on.
c 3.4. There is no specific word in the Amendment Act
2006 to suggest its retrospective applicability. Rather the
positive provisions of Section 1 suggests to the contrary.
Undoubtedly, the amended provisions came into force on
23.11.2006 by S.O. 2002 (E), dated 23.11.2006, published
D in the Gazette of India, Extra Pt.II, Section 3(ii) dated
23.11.2006. In fact, date 23.11.2006 is the pointer and put
the matter beyond doubt. Thus, in view of that the
Notification dated 28.5.2008 is patently illegal. [Paras 30,
31] [486-8-E]
E
4. No order can be passed behind the back of a
person adversely affecting him and such an order if
passed, is liable to be ignored being not binding on such
a party as the same has been passed in violation of the
F principles of natural justice. The principles enshrined in
the proviso to Order I Rule 9, of the Code of Civil
Procedure, 1908 provide that impleadment of a necessary
party is mandatory and in case of non-joinder of
necessary party, the plaintiff/petitioner may not be entitled
G for the relief sought by him. The litigant has to ensure that
the necessary party is before the Court, be it a plaintiff
or a defendant, otherwise the proceedings will have to
fail. In Service Jurisprudence if an unsuccessful
candidate challenges the selection process, he is bound
H to implead at least some of the successful candidates in
J.S. YADAV v. STATE OF U.P. & ANR. 469
representative capacity. In case the services of a person A
is terminated and another person is appointed at his
place, in order to get relief, the person appointed at his
place is the necessary party for the reason that even if
the plaintiff/petitioner succeeds, it may not be possible for
the Court to issue direction to accommodate the B
petitioner without removing the .person who filled up the
post manned by plaintiff/petitioner. More so, the public
exchequer cannot be burdened with the ,liability to pay
the salary of two persons against one sanctioned post.
The appellant did not implead any person who had been c
appointed in his place as a Member of the Commission.
More so, he made it clear before the High Court that his
cause would be vindicated if the Court made a declaration
that he had illegally been dislodged/restrained to
continue as a Member of the Commission. In view of the
0
above, he cannot be entitled for any other relief except
the declaration in his favour which had been made
hereinabove that the impugned Notification dated
28.5.2008 is illegal. However, in the peculiar facts and
circumstances of the case, the appellant is entitled for E
cost to the tune of Rs. 1 lakh which the respondents must
pay within a period of two months: from today. [Paras 32,
33 and 34] [486-F-H; 487-A-G]
Prabodh Verma & Ors. etc. etc. v. State of U.P. & Ors.
etc. AIR 1985 SC 167: 2003 (6) Suppl. SCR 1212; /shwar F
Singh & Ors. v. Ku/dip Singh & Ors. 1995 (supp) 1 SCC 179;
Tridip Kumar Dingal & Ors. v. State of West Bengal & Ors.
(2009) 1 SCC 768: 2008 (15) SCR 194; State of Assam v
Union of India & Ors. (2010) 10 SCC 408: 2010 (12) SCR 413
; Public Service Commission, Uttaranchal v. Mamta Bisht & G
Ors. AIR 2010 SC 2613: 2010 (7) SCR 289 - relied on.
Case Law Reference:
(2008) 11 SCR 440 relied on Para .10
H
470 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 2008 16 SCR 457 relied on Para 10
1991 2 Suppl. SCR 206 relied on Para 11
1987 3 SCR 346 relied on Para 15
B
1992 3 SCR 567 relied on Para 17
1994 6 Suppl. SCR 283 relied on Para 17
(2008) 8 SCR 1 relied on Para 18
1980 2 SCR 512 relied on Para 19
c
AIR 1996 SC 1936 relied on Para 20
c2004) 1 sec 663 relied on Para 21
1968 SCR 185 relied on Para 24
D 1973 (2) SCR 575 relied on Para 24
1975 (3) SCR 963 relied on Para 24
1984 (3) SCR 623 relied on Para 24
E 1983 (2) SCR 287 relied on Para 24
1994 (1) Suppl. SCR 651 relied on Para 25
1987 (3) SCR 427 relied on Para 25
1955 SCR 893 relied on Para 26
F
1980 (1) SCR 684 relied on Para 26
1987 (2) SCR 942 relied on Para 26
2007 (13) SCR 804 relied on Para 26
G
2007 (12) SCR 883 relied on Para 27
1997 (3) Suppl. SCR 63 relied on Para 28
1997 (3) Suppl. SCR 63 relied on Para 29
H
J.S. YADAV v. STATE OF U.P. & ANR. 471
2003 (6) Suppl. SCR 1212 relied on Para 32 A
1995 (supp) 1 sec 179 relied on Para 32
2008 (15) SCR 194 relied on Para 32
2010 (12) SCR413 relied on Para 32
B
2010 (7) SCR 289 relied on Para 32
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3299 of 2011.
From the Judgment and Order dated 21.04.2009 of the C
High Court of Judicature at Allahabad in CMWP No. 27315 of
2008.
V. Shekhar, Jatin Rajput, Vinamra and Shilpa Singh for the
Appellant. D
Pramod Swarup, Ameet Singh, S.K. Dwivedi, Manoj Kr.
Dwivedi, Pareena Swarup and Gunnam Venkateswara Rao for
the Respondents.
The Judgment of the Court was delivered by E
DR. B.S. CHAUHAN, J. 1. Leave granted.
2. This appeal is focused animadverting upon the
judgment and order dated 21.4.2009 passed by the High Court
of Judicature at Allahabad in Civil Misc. Writ Petition No. 27315 F
of 2008, by which the High Court dismissed the writ petition
filed by the appellant, challenging the Notification dated
28.5.2008, by which on the date of reconstitution of the U.P.
State Human Rights Commission (hereinafter referred to as
'Commission'), the appellant was declared to have ceased to G
hold the office as a Member of the said Commission.
3. Compendiously' and concisely, the relevant facts
necessary and germane to the disposal of this appeal run as
under: H
472 SUPREME COURT REPORTS [2011) 5 S.C.R.
A (A) Appellant entered the U.P. Judicial Services as Munsiff
in the year 1972 and was promoted to the post of Additional
District Judge in the year 1985 and further promoted to the post
of District Judge w.e.f. 14.1.2003.
(B) The appellant while working as a Principal Secretary
8
and Legal Remembrancer, Government of U.P., was appointed
as a Member of the Commission on 29.6.2006 for a period of
five years i.e. till 30.6.2011. The appellant joined on the said
post on 1.7.2006.
C (C) Sections 21, 23, 25 and 26 of The Protection of Human
Rights Act, 1993 (hereinafter called 'the Act 1993'), stood
amended vide The Protection of Human Rights (Amendment)
Act, 2006 (hereinafter referred to 'Amendment Act 2006'). The
said amendment came into force on 23.11.2006.
D
(D) After completion of the tenure by the then Chairperson
of the Commission and other Members in October 2007, the
appellant remained the lone working Member of the
Commission. The State of U.P. issued Notification dated
E 28.5.2008 to the effect that appellant ceased to hold the office
as a Member of the Commission.
(E) The appellant challenged the said Notification dated
28.5.2008 by filing Writ Petition No. 27315 of 2008, mainly on
the grounds that he had been appointed for a tenure of five
F years and that period could not be curtailed. The amendment
Act 2006 could not take away the accrued rights of the appellant
as he had been appointed prior to the said amendment.
(F) The appellant did not implead anyone except the State
G of U .P. and its Principal Home Secretary as respondents in the
said writ petition. However, the vacancies on the post of the
Chairperson as well as of the Members of the Commission
were filled up on 6.6.2008 and, in view thereof, no interim order
could be passed by the High Court.
H
J.S. YADAV v. STATE OF U.P. & ANR. 473
[DR. B.S. CHAUHAN, J.]
(G) The High Court dismissed the writ petition vide A
impugned judgment and order dated 21.4.2009. Hence, this
appeal.
4. Shri V. Shekhar, learned senior counsel with Ms. Shilpa
Singh, appearing for the appellant, has submitted that as the 8
appellant was holding the tenure post for a period of five years,
he was entitled to continue till 30.6.2011; the Amendment Act
2006 could not be applied retrospectively and it could not curtail
the tenure of the persons who had been appointed and
continuing as a Chairperson/Member of the Commission prior C
to the commencement of the amended provisions in force.
Appointments subsequent to 22.11.2006, could be made as
per the provisions of the Amendment Act 2006. Even otherwise,
the appellant fulfilled the eligibility of having seven years
experience as a District Judge required under the Amendment
Act 2006, in view of the fact that the U.P. Higher Judicial D
Service Rules, 1975 (hereinafter referred to as 'the Rules
1975'), clearly provided that there would be a single cadre
comprising the posts of District and Sessions Judges and
Additional District and Sessions Judges. M<?re so, Article
236(a) of the Constitution of India clearly stipulates that District E
Judge includes the Additional District Judge and Assistant
District Judge. Thus, the appellant was fully eligible/qualified to
be appointed afresh as a member of the Commission even as
per the Amendment Act 2006. The appellant did not incur any
disability during the period of holding the post as a Member of F
the Commission, thus, could not be removed from the service,
except in the manner set out under Section 23 of the Act 1993.
More so, it was not a case where the Commission itself stood
dissolved/disbanded as a whole and new Commission has
been constituted under the amended provisions of law. Thus, G
the impugned judgment and order is liable to be set aside. The
appeal deserves to be allowed.
5. Per contra, Shri Pramod Swarup, learned senior
H
474 SUPREME COURT REPORTS [2011] 5 S.C.R.
A counsel appearing on behalf of the respondents, has opposed
the appeal vehemently contending that High Court could not
have entertained the writ petition on merit as no relief could be
granted to the appellant for the reason that fresh appointments
on the posts of Member of the Commission had been made
s on 6.6.2008 itself. During the pendency of the writ petition, the
appellant did not amend his petition impleading the newly
appointed member(s), thus, petition was liable to be dismissed
only on the ground of non-joinder of necessary parties. Even
this Court cannot grant pecuniary benefits to the appellant for
c the reason that the public exchequer of the State of U.P. cannot
be fastened with liability of the payment of salary to two persons
on one post. The appellant suffered the disability by virtue of
operation of the amended law and ceased to be competent to
hold the post in view of the Amendment Act 2006. Thus, he has
rightly been declared to have ceased to hold the post as a
0
Member of the Commission. The Legislature is competent to
alter the service conditions of an employee unilaterally, and that
too, with a retrospective effect. The appellant has submitted
before the High' Court that he did not want any relief so as to
dislodge the newly appointed Member(s} of the Commission
E and was seeking only a declaration that he had unlawfully been
discontinued, so as to avoid to further exercise the power so
vested in the State Government. Thus, the matter remained
purely academic before the High Court. Peculiar facts of the
case do not warrant deciding the appeal on merit. Even
F otherwise, the appeal lacks merit and is liable to be dismissed.
6. We have considered the rival submissions made by
learned counsel for the parties and perused the records.
G 7. Relevant provisions of the Act 1993 and provisions
inserted by Amendment Act 2006 read as under:
H
J.S. YADAV v. STATE OF U.P. & ANR. 475
[DR. S.S. CHAUHAN, J.)
Under Act No. 1 of 1994 (as UNDER THE AMENDMENT A
it stood on the date of ACT 2006
appointment of the appellant) (W.E.F. 23.11.2006)
SECTION 21: (2) The State Commission
(2) The State Commission shall, with effect from such date B
shall consist of as the State Government may
by Notification specify, consist
of:-
(a) ...... . : . ......... . (a) ............................. . c
(b) one member who is, or (b) one member who is, or has
has been, a Judge of a High been a Judge of a High Court
Court. or District Judge in the State
(c) one member who is, or with a minimum of seven
has been, a district Judge years experience as District D
in that State. Judge;
SECTION 23:
23. Removal of a Member of 23. [Resignatiol') and Removal
the State Commission - (1) of Chairperson or a Member
Subject to the provisions of of the State Commission) E
Sub-section (2), the [(1) The Chairperson or a
Chairperson or, any other Member of a State
member of the State Commission may, by notice in
Commission shall only be writing under his hand
removed from his office by addressed to the Governor, F
order of the President on the resign his office.
ground of proved mis- (1A) Subject to the provisions
behaviour or incapacity after of Sub-section (2), the
the Supreme Court, on a Chairperson or, any other
reference being made to it by member of the State G
the President, has, on inquiry Commission shall only be
held in accordance with the removed from his office by
procedure prescribed in that order of the President on the
behalf by the Supreme Court, ground of proved mis-
reported that the Chairperson behaviour or incapacity after
H
476 SUPREME COURT REPORTS [2011] 5 S.C.R.
A or such other Member, as the the Supreme Court, on a
case may be ought on any reference being made to it by
such ground to be removed. the President, has, on inquiry
held in accordance with the
procedure prescribed in that
B behalf by the Supreme Court,
reported that the Chairperson
or such other Member, as the
case may be ought on any
such ground to be removed.
c
SECTION 26:
26. Terms and conditions of 26. [Terms and conditions of
service of Members of the service of Chairperson and
State Commission - The Members of the State
D salaries and allowances Commission-
payable to, and other terms The salaries and allowances
and conditions of service of, payable to, and other terms
the Members shall be such and conditions of service of,
as may be prescribed by the the Chairperson and Members
E State Government. shall be such as may be
prescribed by the State
Government.
Provided that neither the Provided that neither the salary
salary and allowances nor and allowances nor the other
F the other terms and terms and conditions of
conditions of service of a service of the Chairperson
Member shall be varied to or a Members shall be
his disadvantage after his varied to his disadvantage
appointment. after his appointment.
G (Emphasis added)
H
J.S. YADAV v. STATE OF U.P. & ANR. 477
[DR. B.S. CHAUHAN, J.]
8. The other legal provisions which may be relevant for A
consideration of the Court are as under:
(i) Article 236(a) of the Constitution of India reads as
under:
"(a) the expression "district judge" includes judge of 8
a city civil court, additional district judge, joint
district judge, assistant district judge, chief judge of
a small cause court, chief presidency magistrate,
additional chief presidency magistrate, sessions
judge, additional sessions judge and·as.ststant C
sessions judge". ~ =- - ·-:..
(ii) Section 3(17) of the General Clauses Act 1897
(hereinafter referred to as 'the Act 1897'), provides
that "District Judge" means: o
"(17) "District Judge" shall mean the Judge of a
principal Civil Court of original jurisdiction, but shall
not include a High Court in the exercise of its
ordinary or extraordinary original civil jurisdiction."
E
Section 6: Effect of repeal- Where this Act or any
Central Act or Regulation made after the commencement
of this Act, repeals any enactment hitherto made or
hereafter to be made, then, unless a different intention
appears, the repeal shall not - F
(a) .......................... .
(b) affect the previous operation of any enactment so
repealed or anything duly done or suffered thereunder; or
G
(c) affect any right, privilege, obligation or liability acquired,
accrued or incurred under any enactment so repealed; or
(d) ...................... .
H
478 SUPREME COURT REPORTS [2011] 5 S.C.R.
A (e) ..................... ..
(iii) Rule 4 of the Rules, 1975 reads:
Strength of the Service: (1) The service shall
consist of a single cadre comprising the posts of
B
(a) District and Sessions Judges, and
(b) Additional District and Sessions Judges.
c (Emphasis added)
9. Against the aforesaid backdrops and in view of the
aforesaid statutory provisions, it has been canvassed on behalf
of the appellant that as the experience of Additional District
Judge can also be taken into consideration as that of a District
D Judge, the appellant possessed the eligibility even under the
an:!ended provisions and thus, was not liable to be dislodged
The High Court dealt with the issue elaborately and came
to the conclusion that ordinary and natural meaning is not to be
E controlled by supposed intention of the Legislature. A court
cannot stretch the language of a statutory provision to bring it
in accord with the supposed legislative intent underlying it,
unless the words are susceptible of carrying out that intention.
Thus, considering the object and purpose of the amendment,
F it cannot be held that experience of the appellant as Additional
District Judge could also be taken into consideration as that
of a District Judge. Much reliance has been placed by Shri
Shekhar, learned senior counsel for the appellant on the
language of Rule 4 of the Rules 1975 that there is a single
cadre comprising the posts of District and Sessions Judges
G and Additional District and Sessions Judges. Thus, there is no
basic difference between the said two posts.
10. The aforesaid submission seems to be very attractive
but has no substance for the reason that a cadre generally
H denotes a strength of a service or a part of service sanctioned
J.S. YADAV v. STATE OF U.P. & ANR. 479
[DR. B.S. CHAUHAN, J.]
as a separate unit. It also includes sanctioned strength with A
reference to grades in a particular service. Cadre may also
include temporary, supernumerary and shadow posts created
in different grades. The expression "cadre", "posts" and
"service" cannot be equated with each other. (See: Union of
India v. Pushpa Rani & Ors., (2008) 9 SCC 242; and State of B
Kamataka & Ors. v. K. Govindappa & Anr., AIR 2009 SC 618).
· There is no prohibition in law to have two or more separate
grades in the same cadre based on an intelligent differential.
Admittedly, the post of District Judge and Additional District
Judge in the State of U.P. is neither inter-changeable nor inter- c
transferable. The aforesaid Rules merely provide for an
integrated cadre for the aforesaid posts. Thus, the submission
is liable to be rejected being preposterous.
11. Same remains the position so far as the provisions of
Article 236(a) of the Constitution of India are concerned. The D
said Article relates to the procedure of appointment on the post
of the District Judge and other Civil Judicial posts inferior to
the post of District Judge. The definition in Article 236 covers
the higher section of the State Judicial Service both in the civil
and criminal sides. (See: All India Judges' Association v. Union E
oflndia & Ors., AIR 1992 SC 165).
12. In such a fact-situation, we do not see any cogent
reason to take a view contrary to the same for the reason that
in case the Legislature in its wisdom has prescribed a F
minimum experience of seven years as District Judge knowing
it fully well the existing statutory and constitutional provisions, it
does not require to be interpreted ignoring the legislative intent.
We cannot proceed with an assumption that Legislature had
committed any mistake enacting the said provision, Clear G
statutory provision in such a case is required to be literally
construed by considering the legislative policy. Thus, no fault
can be found with the impugned judgment and order of the High
Court on this count. #
13. The question does arise as to whether the State could H
480 SUPREME COURT REPORTS [2011] 5 S.C.R.
A issue the Notification making a declaration that the appellant
ceased to be the member of the Commission and whether the
said Notification could take away the accrued rights of the
appellant?
14. The appellant had joined as a member of the
8
Commission vide order dated 29.6.2006 under the Act 1993.
Section 26 of the Act 1993 specifically provided that neither
the salary and allowances nor other terms and conditions of
service of a member shall be varied to his dis-advantage after
his appointment. The submission so made on behalf of the
C appellant in this regard has not been considered by the High
Court taking into consideration the provisions of Section 26 at
all. As the appellant was fully eligible and competent to be
appointed under the Act 1993 and he had duly been appointed
and worked for about 2 years including the period after the
D commencement of the Amendment Act 2006, the declaration
that he ceased to hold the post as a Member of the
Commission, is in flagrant violation of the statutory provisions
contained in Section 26 of the Act 1993 itself.
E 15. Needless to say that "the expression 'terms of service'
clearly includes tenure of service". (Vide: Dr. D.C. Saxena v.
State of Haryana & Ors., AIR 1987 SC 1463).
16. The view taken by the High Court in this respect is not
in consonance with the statutory provisions. The amendment
F would apply prospectively, particularly in view of the fact that
the Amendment Act 2006 does not expressly or by necessary
implication suggest that such a drastic step is permissible
giving retrospective effect to the Amendment Act 2006.
G 17. An employee appointed for a fixed period under the
Statute is entitled to continue till the expiry of the tenure and in
such a case there can be no occasion to pass the order of
superannuation for the reason that the tenure comes to an end
automatically by afflux of time. (Vide: Dr. L.P. Agarwal v. Union
H
-
J.S. YADAV v. STATE OF U.P. & ANR. 481
[DR. B.S. CHAUHAN, J.]
of India & Ors., AIR 1992 SC 1872; and State of U.P. & Anr. A
v. Dr. S.K. Sinha & Ors., AIR 1995 SC 768).
18. In P. Venugopal v. Union of India, (2008) 5 SCC 1,
this Court considered the case wherein the Director of All India
Institute of Medical Sciences, New Delhi, having been duly 8
appointed for a period of five years had been removed prior
to completion of the said period. The court observed as under:
"Service conditions make the post of Director a tenure post
and as such the question of superannuating or prematurely
retiring the incumbent of the said post does not arise~at C
all ..... The appointment is for a tenure to Which the principle
of superannuation does not apply. 'Tenure''hleans a term
during which the office is held. It is a condition of holding
the office. Once a person is appointed to a tenure post,
his appointment to the said post begins when he joins and D
when it comes to an end on the completion of tenure unless
curtailed on justifiable grounds. Such a person does not
superannuate. He only comes out of the office on
completion of his tenure." (Emphasis added)
'E
19. Justifiable grounds, as referred to hereinabbve by this
Court in P. Venugopal (supra), means the grouncfa of incurring
any disqualification while holding the post i.e. the grounds
incorporated in Section 23 of the Act 1993. if we give the
dictionary meanings to the said expression, it means: "done·•on 'F
adequate reasons sufficiently supported by credible evidence,
when weighed by unprejudiced mind, guided by common sense
and by correct rules of law. The showing in .court that one had
sufficient reason for doing that which he is called to.answer;
the ground for such a plea. Lexically, the sense is clear. An act
is "justified by law" if it is warranted, validated and made G
blameless by law". (Vide: Raj Kapoor v. Laxman,-AIR 1980
SC 605).
20. "The word 'vested' is defined in Bla'ck's Law Dictionary
(6th Edition) at page 1563, as vested;-fixed; accrued; settled; H
482 SUPREME COURT REPORTS [2011] 5 S.C.R.
A absolute; complete. Having the character or given the rights of
absolute ownership; not contingent; not subject to be defeated
by a condition precedent.' Rights are 'vested' when right to
enjoyment, present or prospective, has become property of
some particular person or persons as present interest; mere
B expectancy of future benefits, or contingent interest in property
founded on anticipated continuance of existing laws, does not
constitute vested rights. In Webster's Comprehensive
Dictionary (International Edition) at page 1397, 'vested' is
defined as (law held by a tenure subject to no contingency;
c complete; established by law as a permanent right; vested
interest." (See: Mosammat Bibi Sayeeda & Ors. etc. v. State
of Bihar & Ors. etc., AIR 1996 SC 1936).
21. The word "vest" is normally used where an immediate
fixed right in present or future enjoyment in respect of a property
D is created. With the long usage the said word "vest" has also
acquired a meaning as "an absolute or indefeasible right". It
had a "legitimate" or "settled expectation" to obt~in right to enjoy
the property etc. Such "settled expectation" can be rendered
impossible of fulfilment due to change in law by the Legislature.
E Besides this, such a "settled expectation" or the so-called
"vested right" cannot be countenanced against public interest
and convenience which are sought to be served by amendment
of the law. (Vide: Howrah Municipal Corpn. & Ors. v. Ganges
Rope Co. Ltd. & Ors., (2004) 1 SCC 663).
F
22. Thus, "vested right" is a right independent of any
contingency. Such a right can arise from a contract, statute or
by operation of law. A vested right can be taken away only if
the law specifically or by necessary implication provide for such
G a course.
23. The appellant had been appointed under the
provisions of the Act 1993 which did not require seven years'
experience as a District Judge. In the instant case, the
Amendment Act 2006 came into force on 23.11.2006. The State
H of U.P. did nm take any step for discontinuation of the appellant
J.S. YADAV v. STATE OF U.P. & ANR. 483
[DR. S.S. CHAUHAN, J.]
upto May 2008 on the ground that he did not possess the A
eligibility as per the Amendment Act 2006.
24. The Legislature is competent to unilaterally alter the
service conditions of the employee and that can be done with
retrospective effect also, but the intention of the Legislature to ,
8
apply the amended provisions with retrospective effect must be
evident from the Amendment Act itself expressly or by
necessary implication. The aforesaid power of the Legislature
is qualified further that such a unilateral alteration of service
conditions should be in conformity with legal and constitutional
provisions. (Vide: Roshan Lal Tandon v. Union of India & Ors., C
AIR 1967 SC 1889; State of Mysore v. Krishna Murthy & Ors.,
AIR 1973 SC 1146; Raj Kumar v. Union of India & Ors., AIR
1975 SC 1116; Ex-Capt. K. C. Arora & Anr. v. State of Haryana
& Ors., (1984) 3 SCC 281; and State of Gujarat & Anr. v.
Raman Lal Keshav Lal Soni & Ors., AIR 1984 SC 161). D
25. In Union of India & Ors. V. Tushar Ranjan Mohanty
& Ors., (1994) 5 SCC 450, this Court declared the amendment
with retrospective operation as ultra vires as it takes away the
vested rights of the petitioners therein and thus, was E
unreasonable, arbitrary and violative of Articles 14 and 16 of
the Constitution. While deciding the said case, this Court
placed very heavy reliance on the judgment in P.D~ Aggarwal
& Ors. v. State of U.P. & Ors., AIR 1987 SC 1676, wherein
this Court has held as under:
F
" ... the Government has power to make retrospective
amendments to the Rules but if the Rules purport to take
away the vested rights and are arbitrary and not
reasonable then such retrospective amendments are
subject to judicial scrutiny if they have infringed Articles 14 G
and 16 of the Constitution."
26. In the instant case, the Amendment Act 2006 is not
under challenge. However, the issue agitated by the appellant
has been that the Legislature never intended to apply the H 1
I
484 SUPREME COURT REPORTS [2011] 5 S.C.R.
A amended provisions with retrospective effect and therefore, the
appellant could not be discontinued from the post. His rights
stood protected by the provisions of Section 6 of the Act 1897.
The issue of applicability of the said provision has been
considered by this Court in State of Punjab v. Mohar Singh
6
Pratap Singh, AIR 1955 SC 84; M. S. Shivananda v. The
Kamataka State Road Transport Corpn. & Ors., AIR 1980 SC
77; Commissioner of Income Tax U.P. v. Mis. Shah Sadiq &
Sons, AIR 1987 SC 1217; and Vishwant Kumar v. Madan Lal
Sharma & Anr., AIR 2004 SC 1887, wherein it has been held
C that the rights accrued under the Act/Ordinance which stood
repealed would continue to exist unless it has specifically or by
necessary implication been taken away by the repealing Act.
27. This Court in State of Punjab & Ors. v. Bhajan Kaur
D & Ors., AIR 2008 SC 2276, while dealing with the provisions
of Section 6 of the Act 1897 held as under:
"A statute is presumed to be prospective unless held to
be retrospective, either expressly or by necessary
implication. A substantive law is presumed to be
E
prospective. It is one of the facets of the rule of
law..... Where a right is created by an enactment, in the
absence of a clear provision in the statute, it is not to be
applied retrospectively."
F 28. In Sangam Spinners v. Regional Provident Fund
Commissioner I, AIR 2008 SC 739, this court held as under:
"It is a cardinal principle of construction that every statute
is prima facie prospective unless it is expressly or by
necessary implication made to have retrospective
G
operation. The absence of a saving clause in a new
enactment preserving the rights and liabilities under the
repealed law is neither material nor decisive of the
question. In terms of Section 6(c) of the General Clauses
Act 1897 unless a different intention appears the repeal
H
J.S. YADAV v. STATE OF U.P. & ANR. 485
[DR. B.S. CHAUHAN, J.]
· shall not affect any right, privilege or liability acquired, A
accrued or incurred under the enactment repealed."
29. A Constitution Bench :of this Court in Chairman,
Railway Board & Ors. v. C.R.Rangadhamaiah & Ors., AIR
1997 SC 3828, dealt with .the case. where the pension B
admissible under the Rules in force at the time of retirement
was reduced with retrospective effect. This Court held such an
action to be unreasonable and arbitrary being violative gf
Articles 14 and 16 of the co·nstitution of India. The Court
observed as under:
c
"It can, therefore, be said that a rule which operates
in futuro so as to govern future rights of those already in
service cannot be assailed on the ground of retroactivity
as being violative of Articles 14 and 16 of the Constitution,
but a rule which seeks to reverse from an anterior date a D
benefit which has been granted or avaiied of, e.g.,
promotion or pay scale, can be assailed as being violative
of Articles 14 and 16 of the Constitution to the extent it
operates retrospectively .............. .
E
In many of these decisions the expressions "vested rights" .
or "accrued rights" have been used while striking down the
impugned provisions which had been given retrospective
operation so as to have an adverse effect in the matter of
promotion, seniority, substantive appointment, etc., of the F
employees. The said expressions have been used in the ·
context of a right flowing under the relevant rule which was
sought to be altered with effect from an anterior date and
thereby taking away the benefits available under the rule
in force at that time. It has been held ·that such an
amendment having retrospective operation which has the G
effect of taking away a benefit already available to the
employee under the existing rule· is arbitrary, discriminatory
and violative of the rights guaranteed under Articles 14 and
16 of the Constitution."
H
486 SUPREME COURT REPORTS (2011] 5 S.C.R.
A Thus, from the above, it is evident that accrued rights
cannot be taken away by repealing the statutory provisions
arbitrarily. More so, the repealing law must provide for taking
away such rights, expressly or by necessary implication.
8 30. There is no specific word in the Amendment Act 2006
to suggest its retrospective applicability. Rather the positive
provisions of Section 1 suggests to the contrary as it reads:-
Short Title and Commencement-
c (1 ) ....................................... .
"(2 )It shall come into force on such date as the Central
Government may, by notification in the Official Gazette,
appoint".
D Undoubtedly, the amended provisions came into force on
23.11.2006 vide S.O. 2002 (E), dated 23.11.2006, published
in the Gazette of India, Extra Pt.II, Section 3(ii) dated
23.11.2006. In fact, date 23.11.2006 is the pointer and put the
matter beyond doubt.
E
31. Thus, in view of the above, we do not have any
hesitation to declare that the Notification dated 28.5.2008 is
patently illegal.
32. No order can be passed behind the back of a person
F adversely affecting him and such an order if passed, is liable
to be ignored being not binding on such a party as the same
has been passed in violation of the principles of natural justice.
The principles enshrined in the proviso to Order I Rule 9, of the
Code of Civil Procedure, 1908 provide that impleadment of a
G necessary party is mandatory and in case of non-joinder of
necessary party, the plaintiff/petitioner may not be entitled for
the relief sought by him. The litigant has to ensure that the
necessary party is before the Court, be it a plaintiff or a
defendant, otherwise the proceedings will have to fail. In Service
H Jurisprudence if an unsuccessful candidate challenges the
J.S. YADAV v.' STATE OF U.P. & ANR. 487
[DR. B.S. CHAUHAN, J.]
selection process, he is bound to implead at least some of the A
successful candidates in representative capacity. In case the
services of a person is terminated and another person is
appointed at his place, in order to get relief, the person
appointed at his place is the necessary party for the reason that
even if the plaintiff/petitioner succeeds, it may not be possible B
for the Court to issue direction to accommodate the petitioner
without removing the person who filled up the post manned by
plaintiff/petitioner. (Vide: Prabodh Verma & Ors. etc. etc. v.
State of U.P. & Ors. etc., AIR 1985 SC 167; lshwar Singh &
Ors. v. Ku/dip Singh & Ors., 1995 (supp) 1 SCC 179; Tridip c
Kumar Dinga/ & Ors. v. State of West Bengal & Ors., (2009)
1 SCC 7'68; State of Assam v Union of India & Ors., (2010)
10 SCC 408; and Public Service Commission, Uttaranchal
v. Mamta Bisht & Ors., AIR 2010 SC 2613).
More so, the public exchequer cannot be burdened with D
the liability to pay -the salary of two persons against one
sanctioned post.
33. The appellant did not implead any person who had
been appointed in his place as a Member of the Commission. E
More so, he made it clear before the High Court that his cause
would be vindicated if the Court made a declaration that he had
illegally been dislodged/restrained to continue as a Member of
the Commission. In view of the above, he cannot be entitled
for any other relief except the declaration in his favour which F
had been made hereinabove that the impugned Notification
dated 28.5.2008 is illegal.
34. In view of above, the appeal is allowed to the extent
as explained hereinabove. However, in the peculiar facts and
circumstances of the case, the appellant is entitled for cost to G
the tune of Rs. 1 lakh which the respondents must pay within a
period of two months from today.
D.G. Appeal partly allowed.
H
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