Holding

Sections 2 and 3(a) and (e) of the Act, insofar as they retrospectively deprive vested rights, are unconstitutional and must be read down to prospective operation.

Summary

The appellants, untrained graduate teachers appointed in Science, Mathematics and Humanities, had been granted pay parity with trained teachers by various Government orders, High Court judgments and Administrative Tribunal awards. To alleviate the financial burden, the State enacted the Andhra Pradesh Educational Service Untrained Teachers (Regulation of Service and Fixation of Pay) Act, 1991, which retrospectively withdrew those accrued benefits and sought recovery of amounts paid, particularly through Sections 2 and 3. The teachers challenged these provisions as violative of Articles 14, 16 and 311 of the Constitution because they destroyed vested rights. The Supreme Court held that a law cannot retrospectively deprive vested rights and that Sections 2 and 3(a) and (e) of the Act are unconstitutional; they must be read down to prospective operation. The Court also clarified that service rendered in a higher post does not automatically confer benefits under the automatic advancement scheme unless statutory conditions are met. The appeals were partly allowed, granting monetary relief to the teachers but not a substantive appointment as school assistants.

Issues considered

Whether Sections 2 and 3 of the Andhra Pradesh Educational Service Untrained Teachers (Regulation of Service and Fixation of Pay) Act, 1991, when applied retrospectively, violate Articles 14 and 16 of the Constitution by taking away vested rights.
Whether the State can retrospectively cancel benefits granted by judicial orders and recover amounts already paid.
Whether the provisions relating to supernumerary posts and the automatic advancement scheme are constitutionally valid.
Whether the impugned provisions can be saved by reading them down to prospective operation.

Legislation cited

Administrative Tribunals Act, 1985

Subjects

service lawretrospective legislationvested rightsconstitutional validityArticles 14Articles 16educational serviceuntrained teachersautomatic advancement schemeprospective operationread downsupernumerary posts

Judgment

A P. TULSI DAS AND ORS.
v.
GOVERNMENT OF A.P. AND ORS.

OCTOBER 24, 2002

B [DORAISWAMY RAJU AND H.K. SEMA, JJ.]

Service Law:

C Andhra Pradesh Educational Service Untrained Teachers (Regulation
of Services and Fixation of Pay) Act, 1991 (Act No. 14 of 1991); Sections 2
and 3-Retrospective Operation-Depriving the benefits already accrued and
acquired by certain categories of teachers-Constitutional validity of-Held,
Orders passed by the Government to meet exigencies and in public interest
provides sufficient legal basis for acquisition of rights/benefits accrued by
D teachers-Legislature could not have validly denied these rights
retrospectively-However, it could haw prospective operation-Constitution
of India-Articles 14, 16, 162 and 309-Andhra Pradesh Educational Rules,
1966.

Automatic advancement Scheme-Scope and ambit of-An incumbent
E before ascertaining a claim for the benefits under the Scheme will have to
strictly comply with the conditions stipulated therefor in the Scheme-Such
benefits cannot be claimed by virtue of service rendered on a post pursuant
to the concession in appointment to that post.

Andhra Pradesh Educational Rules, 1966 were framed by the State
F
Government. Under these rules, Schools were classified into different
categories along with pay scale to trained Teachers (SGBT Teachers). ·-
However, in Telangana area pay scales of trained Teachers were lower,
but scale' of pay for Graduate B.Ed. School Assistant was on the higher
side. Subsequently, there was upward revision in the pay scales of both
G SGBT Teachers and School Assistants. In the meanwhile, due to non-
availability of trained Graduate Teachers in Science and Mathematics,
State Government passed orders whereby untrained Graduate Teachers
could be appointed in the scale of pay of trained Graduate Teachers for a
period of 2 years. However, untrained Graduate teachers in Humanities
H were continuously paid in the lower scale of pay, and they filed writ
306
P. TULSI DAS v. GOVT. OF A.P. 307
petitions before the High Court which granted them scale of pay at par A
with untrained graduate teachers in Science and Mathematics. The
decision of High Court was not challenged by the State Government.
Thereafter, SGBT Teachers and School Assistants teaching in Humanities
in other Schools also filed writ petition for grant of same scale of pay, the
petition was transferred to Administrative Tribunal constituted in the B
State; the Tribunal allowed the Petition.

State G?vernments created supernumerary posts of teachers to
comply with the directions/orders issued by Tribunal/High Courts. Due
to such financial commitment, State Government became heavily burdened
and promulgated the Andhra Pradesh Educational Service Untrained C
Teachers (Regulation of Service and Fixation of Pay) Ordinance, 1991. It
was replaced by the Act and was made effective retrospectively. The Act
purports to withdraw benefits already accrued and acquired by untrained
graduate teachers. Sections 2 and 3 of the Act were unsuccessfully
challenged by the aggrieved teachers before the State Administrative
Tribunal. Hence these appeals. D
It was contended for the appellants that provisions of the enactment
which was brought into force with retrospective effect took away their
vested rights, suffers the vice of hostile discrimination, a·rbitrariness and
expropriation of vested rights, and liable to be struck down as violative
of Articles 14 and 16 of the Constitution of India. E
On behalf of the State, it was submitted that the Act purported to
deny and discontinue ill-gotton rights and benefits which was undeservably
obtained by the teachers.

Partly allowing the appeals, the Court F

HELD: I. I. It is well settled that in the absence of Rules under Article
309 of the Constitution in respect of a particular area, aspect or subject,
it was permissible for the State to make provisions in exercise of its
executive powers under Article 162 which is co-extensive with its G
Legislative powers laying conditions of service and rights accrued to or
acquired by a citizen would be as much rights acquired under law and
protected to that extent. The orders passed by the Government, from time
to time and at any rate upto the passing of the Andhra Pradesh
Educational Services Untrained Teachers (Regulation of Service and
Fixation of Pay) Act, to meet the administrative exigencies and cater to H
308 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A the needs of public interest really and effectively provided sufficient legal
basis for the acquisition of rights during the period when they were in
full force and effect. The orders of the High Court as well as the Tribunal
also recognized and upheld such rights and those orders attained finality
without being further challenged by the Government, in the manner known
B to law. Such rights, benefits and perquisities acquired by the Teachers
concerned cannot be said to be rights acquired otherwise than in
accordance with law or brushed aside and trampled at the sweet will and
pleasure of the Government, with impunity. Legislature could not have
validly denied those rights acquired by the appellants retrospectively not
only depriving them of such rights but also enact a provision to repay and
C restore the amounts paid to them to the State. The provisions of the Act,
though can be valid in its operation 'in futuro' can not be held valid in so
far as it purports to restore status quo ante for the past period taking away
the benefits already available, accrued and acquired by them.
(319-E, F, G, H; 320-Al

D State of Gujarat and Anr. v. Raman la! Keshav Lal Soni and Ors., (19831
2 SCC 33 and Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah
and Ors., [1997) SCC 623, followed.

Ex.-Capt. K.C. Arora and Anr. v. State of Haryana and Ors., (1984) 3
sec 281, relied on.
E
1.2. No exception could be taken to the prospective exercise of powers
thereunder without infringing the rights already acquired by the
appellants and the category of the persons similarly situated whether
approached courts or not seeking relief individually. The provisions
F contained in Section 2 have to be read down so as to make it only
prospective. (320-B-C)

. 1.3. The provisions contained in Section 3 also justify only
prospective application and accordingly read down, as in the case of
Section 2 of the Act. (321-A)
G
2.1. It is well settled that a person holding a lesser grade of post can
be made to be in charge of a higher post and be paid also the scales of pay
permissible for the higher grade or category of post but that will not make
the said person entitled to claim to be a regular member or incumbent of
the post to claim consequential benefits for any advanced career or
H promotion as if he is a regular incumbent to the said post. Even any one
P. TULSI DAS v. GOVT. OF A.P. 309
of the appellant or the class of persons similarly situated when assert a A
claim for the benefits of the automatic advanced scheme they will have to
strictly comply with the requirement of the conditions stipulated therefor
in the scheme and cannot by virtue of the services rendered in a post
pursuant to the concession shown to appoint them in the higher category
of posts with a limited purpose and object as the aim automatically become B
entitled to count such service for claiming the benefits under the special
scheme. [320-E-F-G)

2.2. In view of the conclusions arrived at on the eligibility or
otherwise to claim the benefit of the automatic advancement scheme there
is no need or warrant to interfere with the stipulations contained in Section C
3 (c) and (d). Section 3(e) also cannot have any such force and effect to
deprive the rights accrued to and acquired by the appellants and persons
similarly placed. It is also made clear that the claim of the respondents is
sustained only to the extent of availing the monetary benefits and not for
any substantive appointment to these posts, as such. [321-B; 322-A[
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2652-2654
of 1995.

From the Judgment and Order dated I 0.10.1994 of the Andhra Pradesh
Administrative Tribunal at Hyderabad in 0.A. Nos. 271, 272, 306/94 and
O.A.S.R. No. 5613 with M.A. Nos. 1712 and 1713 of 1993. E
WITH

C.A. Nos. 2655, 4680, 5318-5319, 5208/2000, 6963-6974. 7023 and
6975-7022 of 2002.
F
L. Nageshwar Rao and Mrs. K. Amareshwri, Anil Kumar, R. Santhana
Krishna, Mrs. K. Sarada Devi, Manoj Saxena, D. Ramakrishna Reddy for
Mrs. D. Bharathi Reddy, G. Prabhakar and Ms. T. Anamika, for the appearing
•, parties.
G
The Judgment of the Court was delivered

Leave granted in special leave petition (C) Nos. 3699-3 710, 7808
and 21533-21580 of 1995.

The above appeals have been filed against the common order of the H
310 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A Larger Bench of the Andhra Pradesh Administrative Tribunal at Hyderabad
dated 27th April, 1994 in O.A. Nos. 50430-50441of1991 etc., whereunder
by a majority, with the dissenting opinion recorded by the Chairman, the
challenge to the constitutional validity of Sections 2 and 3 of the Andhra
Pradesh Educational Service Untrained Teachers (Regulation of Services
and Fixation of Pay) Act, 1991 (Act No. 14 of 1991) (hereinafter referred
B to as 'the Act') came to be rejected.

The facts which lead to the passing of the said enactment, resulting
in the order under challenge may briefly be stated for a proper appreciatio:l
of the contentions of the parties on either side. After the formation of the
C State of Andhra Pradesh the State Government framed a composite set of
rules called Andhra Pradesh Educational Rules, 1966 in exercise of the
executive powers available for the State. The Schools in the State for the
purpose of those Rules were classified into three categories: Elementary
Schools for classes 1st to 5th; Upper-Primary Schools for classes 6th and
7th and Secondary Schools for classes 8th, 9th and 10th. In sever~[ schools
D there were combined classes from elementary stage to secondary stage
also, though in some schools classes upto upper-primary alone were conducted.
For SSLC trained teachers (in short SGBT Teacher) the scale of pay at the
time of introduction of 1966 Rules was Rs. 80-150. In the Telangana area
earlier the scales were lower and classification was also said to be different.
E The scale of pay for a Graduate B.Ed. known as School Assistant was Rs.
130-250. In addition to the other academic qualification, the teachers'
training certificate or B.Ed. degree, was also an eligibility criteria for
appointment as SGBT teacher or School Assistant, as the case may be,
respectively.

F In G.O.M.S. No. 910,' Education dated 27th April, 1970, Statutory
Rules were said to have been framed revising the scale of pay with effect
from. 19-3-1969 and the scale of pay of SGBT teacher were said to have
been revised to Rs. 96-200. Likewise the scale of pay of a School Assistant
was also revised to Rs. 150-300. But during the relevant point of time in
G the year 1967, the scale of pay of SGBT with Matriculation and Teachers "
Training Certificate was Rs. 80-150 and of the School Assistant with
Graduation and B.Ed. degree was Rs. l 50-250. Due to dearth of trained
graduates in Science and Mathematics with Mulki qualification for appointment
as teachers in Telangana area the Government in G.O. No 257 Education
dated I 0-2-1967 accepting the proposals of the Director of Schools, Education,
H passed orders that untrained graduates in those subjects may also be appointed
P. TULSI DAS v. GOVT. OF A.P. 311

in the minimum pay of Rs. 130 in the scale of pay of Rs. 130-250 with A
usual allowances admissible for a trained graduate teacher for a period of
two years from the date of the said order. Keeping in view the fact that
previously and at the time of issuance of the said Government Order such
untrained graduates, untrained intermediates and matriculates who were
being appointed only on a pay of Rs. JOO in the scale of pay of Rs. 80-
. 150, the Government issued G.O. 2069 Education dated 9-10-1967 that B
untrained teachers in any part of the State may be appointed at the minimum
of the scale applicable and they will not be eligible to draw any increments
in the scale till they acquire the necessary qualification prescribed for the
post. Since the Government Order dated 10-2-1967 was with reference to
the appointment of untrained graduates at the minimum scale of pay of C
Rs. 13 0-250 with usual allowances in respect of Science and Mathematics
subjects only the untrained graduates appointed to teach the subject of
Humanity were not paid at the same scale but were being paid at Rs. 100
which was being paid to such untrained teachers prior to 10-2-1967. After
the Revision of scales of pay in the year 1970, noticed (supra) some of
the untrained graduates appointed as School Assistants to teach subjects D
in Humanities filed W.P. No. 2295 of 1973 before the High Court of
Andhra Pradesh and by a judgment dated 23rd June, 1975 the High Court
held that the untrained graduate teachers in Humanities were also entitled
to get minimum scale of pay of Rs. 130 in the time scale of Rs. 130-250
as in the case of untrained graduates appointed to teach Science and E
Mathematics. This decision was not challenged further by the authorities
of the State Government. By the time the High Court rendered the judgment
the scale of pay then in force at Rs. 130-250 was further said to have been
revised as Rs. 150-300 w .e.f. 19-3-1970 and the High Court, therefore
sustained the claim for the revised scale of pay.
F
While matters stood thus a group of teachers belonging to both
SGBT and School Assistant categories teaching the subject in Humanities
working in Zilla Praja Parishad Schools in Nalagonda approached the
High Court with a grievance that they were being denied the benefit on
the ground that they were not graduates in Science and Mathematics, by G
filing W.P. No. 6387 of 1976. With the constitution of the erstwhile
Administrative Tribunal in the State in exercise of the powers under Article
3 71-D of the Constitution of India, the said writ petition stood transferred
to the Tribunal as Tr. W.P. No. 1361 of 1976. When the matters came up
before the Tribunal for hearing it was disposed of by an order dated 15-
9-1977 stating that it was not disputed that the facts of that case and those H
312 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A earlier decided by the High Court were identical and that the learned
Government Pleader appearing also conceded the position that the case
w~s covered by the earlier decision of the High Court. Consequently, the
Tribunal directed that even the untrained graduates in Humanities appointed
in the Secondary Grade posts in the scale of pay of Rs. 80-150 shou Id be "
allowed the minimum of Rs. 130 in the scale of pay of Rs. 130-250,
B admissible to trained graduates appointed as B.Ed. School Assistants posts
with effect from I0-2-1967 as a result said to have been not intended by
the Government. Subsequently, several other judgments came to be rendered
following the said decision, as and when claims were made before the
Tribunal. Consequential benefits including the fixation of seniority on the
C said position was also granted. The Government without challenging such
orders took up the matter for consideration in the light of the decision of
the Tribunal and by orders dated 12-1-1982 and 20-2-1984 resolved to
implement the judgment of the Tribunal individually and to facilitate the
same also created supernumerary posts of B.Ed. Assistants with retrospective
effect to· carry out the directions issued by the Tribunal. Even during
D January 1976, thousands of posts of B.Ed. Assistants and SGBT teachers
were created. The resultant position was that even SGBT Teachers who
were appointed in the scale of pay of Rs. 80-150 became entitled to the
scale of pay attached to the post of School Assistants on the plea raised
that they have also possessed the same qualification prescribed for the
E post of School Assistant. Subsequent to this several other judgments also
seems to have been rendered following the order dated 15-9-1977 in Tr.
W.P. No. 1361 of 1976 .and all those petitioners also were able to get
payments in the scale of pay attached to the post of School Assistants
inspite of the fact that some of them were appointed against the post of
SGBT Teachers only. It appears that all orders were not expeditiously or
F effectively implemented and thought in the large majority of the cases
they were implemented, some such orders remained unimplemented also.

The decision rendered in Tr. W.P. No. 1361 of 1976 has become
final in the sense that no challenge was pursued thereafter to the said
judgment as also to the other judgments rendered subsequently following
G this judgment. With the constitution of the State Administrative Tribunal
under the provisions and the Administrative Tribunals Act. 1985 w.e.f. 1-
11-1989, not only some of the cases pending on the file of the earstwhile
Tribunal stood transferred to the new Tribunal, but several cases were
also seem to have been filed afresh. It was at this stage that the Government
H suddenly became alive, though in a belated manner to the possible heavy
P. TULSI DAS v. GOVT. OF A.P. 313
financial commitments and serious implications flowing from the various A
judgments considered to be detrimental to the public interest and promulgated
the Andhra Pradesh Educational Service Untrained Teachers (Regulation
of Services and Fixation of Pay) Ordinance, 1991 subsequently replaced
·' by the Act under challenge. The Preamble to the Act set out in detail the
development of relevant events, from time to time and the passing of the
various Orders by the Government as well as by the Court and the Tribunals, B
and reasons which necessitated the promulgation of the Ordinance as well
as the enactment of the law in question.

The Ordinance as well as the Act referred to above was brought into
force w.e.f. 10-2-1967. Sections 2 and 3 which are relevant for our C
consideration reads as under:

2. Notwithstanding anything contained in any rule or order of the
Government or any judgment of any Court, Tribunal or other authority,
the untrained graduate teachers in the subjects of Science and
Mathematics appointed in pursuance of G.O. Ms. No. 257 Education D
Department, dated the 10th February, 1967 and the untrained graduate
teachers in the subjects of Humanities appointed in pursuance of
orders of Tribunal in Transferred writ petition No. 1361/76 dated the
15th September, 1977 who actually handled eight, ninth and tenth
clas~es in the Secondary Schools of Government Zilla Praja Parishads
or as the case may be, aided managements in the Telangana area of E
the State of Andhra Pradesh shall be entitled to the minimum of
Rs. 130 in the time scale of Rs. 130-250 admissible to trained graduate
teachers if they are appointed to posts carrying that scale with effect
from the 10th February, 1967 to 31st December, 1973 and thereafter,
their pay shall be regulated as per their eligibility as untrained graduate F
teachers in accordance with the rules and orders in forces.

3. Notwithstanding any Government order, judgment, decree or order
of any court, Tribunal or other authority, the supernumerary posts
created in the B.Ed., scale of Rs. 130-250 in accordance with the
orders issued by the Government in Memos, No. 1630/H-1181-3, dated G
the 12th January, 1982 and also on the 20th February, 1984 in plase.-- -- - ·
of the Secondary Grade posts of teachers in the time scale--tJfRs:-80-
150 shall and shall be deemed always to h_<1Y-e-ba"ri--s;;;ondary grade
posts in the time scale of Rs. 80-1 ~O-with subsequent increases due
to revision of pay scales from tirlle to time and accordingly;
H
314 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A (a) ·at excess amount already sanctioned and paid to the incumbents
by creating supernumerary posts as aforesaid shall be recovered in
such manner and in such number of instalments as the Director of
School Education may, by order, direct;

(b) the teachers working in such supernumerary posts shall not be
B entitled for counting their service in the B.Ed., scale for the automatic
advancement scheme formulated in G.O.Ms. No. 164, Finance dated,
the !st June, 1982;

(c) any benefit given to the teachers referred to in clause (b) in
accordance with the said Government order shall stand cancelled
c from the date of extending such benefit and any among drawn in ,
pursuance of such benefit shall be recoverable in the manner specified ,
in clause (a);

(d) no suit or other proceedings shall be maintained or continued in
any Court, Tribunal or other authority against the Government or any
D
person or the authority whatsoever for creation of supernumerary
posts for the teachers referred to in clause (b) and also such pending
proceedings shall abate forthwith and

(e) no court shall enforce any decree or other directing the pay fixation
E on par with the posts of teachers created for the subjects of
Mathematics and Science in accordance with G.0.Ms. No. 257
Education Department, dated the 10th February, 1967 ."

Since the provisions of the Act not only purported to disturb the state
of affairs prevailing as on the date of the Act but proceeded to deprive the
F benefits already accrued and acquired by the class of petitioners by giving
retrospective effect to the Act w.e.f. l 0-2-1967 and further by providing also
for the recovery of the amounts already paid otherwise than in terms of the
Act and in the manner specified therein. Hence, the petitioners approached
the Tribunal seeking for striking down the provisions contained in Sections
·'
G 2 and 3 of the Act. As noticed earlier the Chairman of the Tribunal who was
in the minority sustained the challenge made by the appellants to provisions
contained in Section 2, Section 3(a) and (e). Though Section 3(b) was held
to be val id, in view of Sections 2 and 3 held to be bad, sub-section (b) to (d)
was considered not capable of surviving in isolation. Section 3(b) related to
the grant of benefit of automatic advancement. scheme, in special grade
H Posts. So far as the remaining two Members who constituted the Bench are
P. TULSI DAS v. GOVT. OF A.P. 315
concerned, they rendered separate opinions upholding the validity of the Act A
One Member while dissenting from the view expressed by the Chairman was
of the view that discriminatory and offending part of the enactment can be
set right if the words "the Telangana Area of" occurring in Section 2 of the
Act is alone struck down to make it applicable uniformly to the entire State.
The other Member who also expressed his dissent with the opinion of the B
Chairman but purported to agree with the Member who upheld the validity
subject to the modification in Section 2 noticed above, assigned further reasons
high-lighting certain anomalies, lapses and mistakes which according to him
crept into the matter resulting in the passing of indiscriminatory orders not
really justified on the facts of the cases which were brought before the Tribunal
from time to time. Hence these appeals. C
Mr. L. Nageshwar Rao, learned senior counsel for the appellants urged
that the enactments in question brought into force with retrospective effect
from I 0-2-1967 takes away the vested rights of the appellants and consequently
suffers the vice of hostile discrimination, arbitrariness and expropriation of
vested rights and, therefore, are liable to be struck down as violative of D
Articles 14 and 16 of the Constitution of India. It was also urged by the
learned senior counsel that insofar as the Act purports to destroy the rights
acquired under the orders of the High Court as also the judicial orders passed
by the statutory Tribunals, it tends to encroach into the judicial sphere and
consequently is liable to be struck down. A new point, not raised before the E
Tribunal based on alleged violation of Articles 202 and 203 of the Constitution,
though was sought to be urged, was not permitted to be raised at this stage,
Per contra Mrs. K. Amareshwari, learned senior counsel appearing for the
respondent-State with equal vehemence tried to justify the decision of the
majority view of the Tribunal below and urged that the indisputable factual
details indicated in the Preamble to the Act and noticed by the Tribunals also F
warranted the interference of the Legislature to set right the anomalies said
to have resulted in the matter. According to the learned senior counsel serious
mistakes, lapses and errors have been committed having grave consequences
both in the matter of enforcement of law as also the effective administration
and control of the schools resulting in serious financial problems and, therefore, G
no exception could be taken to the provisions of the Act which were meant
to set right the whole matter. In substance the submission was that there was
no deprivation of any of the legally acquired or vested rights, but the Act
purported to really deny and discontinue ill-gotton rights and benefits
undeservably obtained.
H

r
316 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A We have carefully considered the submissions on behalf of both parties.

In State of Gujarat and Anr. v. Raman Lal Keshav Lal Soni and Ors.,
[ 1983] 2 SCC 33 a Constitution Bench of this Court had an occasion to deal
with the situation arising out of a retrospective legislation by the Gujarat
State enacting Gujarat Panchayats (Third Amendment) Act, 1978 depriving
B the Secretaries, officers and servants of old village Panchayats the status as
members of the State service. It was observed therein, while sustaining the
challenge to the constitutionality of the Act on the ground of unjust deprivation
of vested or acquired rights as follows:

"48. From the summary of the provisions of the Amending Act that
c has been set out above it requires no perception to· recognise the
principal target of the amending legislation as the category of 'ex-
municipal employees', who are, so to say, pushed out of the panchayat
service and are to be denied the status of government servants and
the consequential benefits. The ex-municipal employees are virtually
D the "poor relations", the castle, the panchayat service, is not for them
>-
·nor the attendant advantages, privileges and perquisites, which are all >
for the "pedigree descendants" only. For them, only the outhouses.
As a result of the amendments they cease to be government servants
with retrospective effect. Their earlier allocation to the panchayat
service is cancelled with retrospective effect. They become servants
E of Gram and Nagar Panchayats with retrospective effect. They are
treated differently from those working in Taluqa and District
Panchayats as well as from the Talatis and Kotwals working in Gram
and Nagar Panchayats. Their conditions of service are to be prescribed
by Panchayats, by resolution, whereas the conditions of service of
F other are to be prescribed by the Government. Their promotional
· prospects are completely wiped out and all advantages which they
would derive as a result of the judgments of the courts are taken
away.

51. Now, in 1978 before the Amending Act was passed, thanks to the
G provisions of the principal Act of 1961, the ex-municipal employees
who had been allocated to the Pachayats service as Secretaries, Officers
and servants of Gram and Nagar Panchayats, had achieved the status
of government servants. Their status as government servants could
~
not be extinguished, so long as the posts were not abolished and their
services were not terminated in accordance with the provisions of
H
P. TULSI DAS v. GOVT. OF A.P. 317
Article 311 of the Constitution. Nor was it permissible to single them A
out for differential treatment. That would offend Article 14 of the
Constitution. An attempt was made to justify the purported
differentiation on the basis of history and ancestry, as it were. It was
said that Talatis and Kotwals who became Secretaries, Officers and
servants of Gram and Nagar Panchayats were government servants,
even to start with, while municipal employees who became such B
Secretaries, Officers and servants of Gram and Nagar Panchayats
-. were not. Each carried the mark or the 'brand' of his origin and a
classification on the basis of the source from which they came into
the service, it was claimed; was permissible. We are clear that it is
not. Once they had joined the common stream of service to perform C
the same duties, it is clearly not permissible to make any classification
on the basis of their origin. Such a classification would be unreasonable
and entirely irrelevant to the object sought to be achieved. It is to
navigate around these two obstacles of Article 311 and Article 14
that the Amending Act is sought to be made retrospective, to bring
about an artificial situation as if the erstwhile municipal employees D
never became members of a service under the State. Can a law be
made to destroy today's accrued constitutional rights by artificially
reverting to a situation which existed I 7 years ago? No.

52. The legislation is pure and simple, self-deceptive, if we may use E
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 urider a written Constitution, and
have to conform to the dos and don;ts of the Constitution, neither
prospective nor retrospective laws can~be made so as to contravene F
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, 20 years ago the parties had
no rights, therefore, the requirements of the constitution will be
satisfied if the law is dated back by 20 years. We are concerned with G
today's rights and not yesterday's. A legislature cannot 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
the 20 years. That would be most arbitrary, unreasonable and a
negation of history. It was pointed out by a Constitution Bench of
this Court in B.S. Yadav v. State of Haryana, Chandrachud, CJ, H
318 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A speaking for the Court held: (SCC head-note)

Since the Governor exercises the legislative power under the
proviso to Article 309 of the.Constitution, it is open to him to give
retrospective operation to the rules made under that provision. But
the date from which the rules are made to operate must be shown to
B bear either from the face of the rules or by extrinsic evidence,
reasonable nexus with the provisions contained in the rules, esp.ecially
when the retrospective effect extends over a long period as in this
case.

Today's equals cannot be made unequal by saying that they were
c unequal 20 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 ifmade today would be plainly
invalid as offending constitutional provisions in the context of the
D 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 Gujarat Panchayats (Thirrl Amendment) Act,
1978 is unconstitutional, as it offends Articles 311 and 14 and is
arbitrary and unreasonable. We have considered the question whether
E any provision of the Gujarat Panchayats (Third Amendment) Act,
1978 might be salvaged. We are afraid that the provisions are so
intertwined with one another that it is well nigh impossible to consider
any life-saving surgery. The whole of the Third Amendment Act
must go ....... "

F In Ex-Capt. KC. Arora and Anr. v. State of Haryana and Ors., [1984]
3 SCC 281 the principles laid down by the above Constitution Bench were
followed, while striking down an amendment to the Punjab Government
National Emergency (Concession) Rules taking away acquired or accrued
fundamental rights with retrospective effect, as offending Article 14 and 16
G of the Constitution of India. The retrospective amendment of the Rules in the
said case had the effect of depriving the benefit of military service beyond
a particular date with retrospective effect thereby taking away the vested
rights which accrued to the petitioner and this was declared to be ultra vires
the Constitution and struck down.

H In Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah and
P. TULSI DAS v. GOVT. OF A.P. 319
Ors., [I 997) 6 SCC 623 yet another Constitution Bench of this Court had an A
occasion to deal with the validity of a retrospective amendment to the service
rules adversely affecting the pension of the employees who already· stood
retired on the date of the notification issued by way of an amendment, on the
view that the pension admissible was under the Rules in force at the time of
retirement, and that reduction of the pension as admissible with retrospective B
effect was held to be arbitrary and unreasonable, after an exhaustive review
of case law of the subject.

On a careful consideration of the principles laid down in the above
decisions in the light of the fact situation in these appeals we are of the view
that they squarely apply on all fours to the cases on hand in favour of the C
appellants. The submissions on behalf of the respondent-State that the rights
derived and claimed by the appellants must be under any statutory enactment
or rules made under Article 309 of the Constitution of India and that in other
respects there could not be any acquisition of rights validly, so as to disentitle
the State to enact the law of the nature under challenge to set right serious D
anomalies which crept in and deserved to undone, does not merit our
acceptance. It is by now well settled that in the absence of Rules under
Article 309 of the Constitution in respect of a particular area, aspect or
subject, it was permissible for the State to make provisions in exercise of its
executive powers under Article I 62 which is co-extensive with its Legislative
powers laying conditions of service and rights accrued to or acquired by a E
citizen would be as much rights acquired under law and protected to that
extent. The orders passed by the Government, from time to. time beginning
from February 1967 till 1985 and at any rate upto the passing of the Act, to
meet the administrative exigencies and cater to the needs of public interest
really and effectively provided sufficient legal basis for the acquisition of F
rights during the period when they were in full force and effect. The orders
of the High Court as well as the Tribunal also recognised and upheld such
rights and those orders attained finality without being further challenged by
the Government, in the manner known to law. Such rights, benefits and
perquisites acquired by the Teachers concerned cannot be said to be rights G
acquired otherwise than in accordance with law or brushed aside and trampled
at the sweet will and pleasure of the Government, with impunity. Consequently
we are unable to agree that the Legislature could have validly denied those
rights acquired by the appellants retrospectively, not only depriving them of
such rights but also enact a provision to repay and restore the amounts paid
to them to State. The provisions of the Act, though can be valid in its operation H
320 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A 'in future' can not be held valid in so far as it purports to restore status quo
ante for the past period taking away the benefits already available, accrued
and acquired by them. For all the reasons stated above the reasons assigned
by the majority opinion of the Tribunal could not be approved in our hands.
The provisions of Section 2 and 3(a) insofar as they purport to take away the
B rights from 10-2-1967 and obligates those who had them to repay or restore
it back tc the State is hereby struck down as arbitrary, unreasonable and
expropriatory and as such is violative of Articles 14 and 16 of the Constitution
of India. No exception could be taken, in our view, to the prospective exercise
of powers thereunder without infringing the rights already acquired by the
appellants and the category of the persons similarly situated whether
C approached courts or not seeking relief individually. The provisions contained
in Section 2 have to be read down so as to make it only prospective, to save
the same from the unconstitutionality arising out of its retrospective application.

So far as the claim of benefits under the automatic advancement scheme
D formulated in GOMS No. 164, Finance and Planning Department, dated lst
June, 1982 is concerned we are unable to agree with the stand taken for the
appellants that any service rendered could entitle the appellants or the class
of persons similarly placed, to claim the benefit of the automatic advancement
scheme, It is well settled that a person holding a lesser grade of post can be
made to be incharge of a higher post and be paid also the scales of pay
E permissible for the higher grade or category of post but that will not make
the said person entitled to claim to be a regular member or incumbent of the
post to claim consequential benefits for any advanced career or promotion as
if he is a regular incumbent to the said post. Even any one of the appellant
or the class of persons similarly situated when assert a claim for the benefits
F of the said scheme they will have to strictly comply with the requirement of
the conditions stipulated therefor in the scheme and cannot by virtue of the
services rendered in a post pursuant to the concession shown to appoint them
in the higher category of posts with a limited purpose and object as the aim
automatically become entitled to count such service for claiming the benefits
G under the special scheme.
The provisions contained in Section 3 mandates that the supernumerary
posts created in the B.Ed. Grade of Rs. 130-250 pursuant to the orders noticed
therein shall be deemed always to have been Secondary Grade Posts of
teachers in the time scale of Rs. 80-150 with subsequent increases. due,.to
H revision of pay scales from time to time, accordingly. The reasons assigned,
P. TULSI DAS v. GOVT. OF A.P. 321
supra would apply with equal force to invalidate this retrospective A
reclassification by a fiction to nullify the lawful rights acquired during the
past period anC: justify only prospective application and accordingly read
down, as in the case of Section 2 of the Act. In view of the conclusions
arrived at on the eligibility or otherwise to claim the benefit of the automatic
advancemont scheme there is no need or warrant to interfere with the B
stipulations contained in Section 3(c) and (d). In the light'ofand to the extent
of relief granted to the appellants in this Judgment, Section 3(e) also cannot
have any such force and effect to deprive the rights accrued to and acquired
by the appellants and persons similarly placed.

The appeals are partly allowed, accordingly. c
In the light of the above orders passed granting relief to all persons
similarly placed as the appellants no further orders are necessary on the
application for impleadment.

C.A. No. 5208 of 2000 D
The above appeal has been filed against the judgment of a Division
Bench of the Andhra Pradesh High Court dated 9th September, 1997 in Writ
Appeal No. 931 of 1997 whereunder the Court while allowing the appeal of
the respondent directed the appellants to give the benefits of due scale of pay E
of Rs. 320-580 as revised from time to time with effect from due date. By
a separate judgment in C.A. Nos. 2652-2654 of 1995 etc., we have dealt with
the constitutional validity of the Andhra Pradesh Education Service Untrained
Teachers (Regulation of Services and Fixation of Pay) Act, 1991 (A.P. Act
No. 14 of 1991) and upheld the rights of teachers who were appointed as
SGBT Teachers to be entitled to the pay scales of School Assistants for the F
period prior to the said Act. The Teacher/concerned in this appeal also would
be entitled to the benefits, to the extent such benefits have been allowed in
favour of the appellants in the other appeals, and nothing more. If the order
of the High Court purports to give anything more than what was held
pennissible in respect of others, the order in W.A. No. 931 of 1997 shall
stand modified to bring it in confonnity with our decision in the connected G
appeals.

Consequently the appellants shall work out the monetary benefits as are
du.e to the respondent in this appeal in the light of the Judgment rendered by
us in the connected appeal i.e. CA Nos. 2652-54 of 1995 etc., it is also made H
322 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A clear that the claim of the respondents is sustained only to the extent of
availing the monetary benefits and not for any substantive appointment to the
posi of schoo1 Assistants, as such. With this clarification of the correct position
of law and modification in the light of the other judgment rendered by us,
this appeal shall stand finally disposed of.

B S.K.S. Appeals partly allowed.

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