Holding

The Haryana Government's retrospective amendment of Rule 6(b) is ultra vires and void, and the petitioners retain their right to promotion under the unamended rule.

Summary

The petitioners, diploma‑holding engineers appointed in the erstwhile Punjab Service, were promoted to Sub‑Divisional Officer in Class II and were eligible for promotion to Executive Engineer in Class I under the unamended Rule 6(b) of the Punjab Service of Engineers (Class I) Rules, 1964. The Haryana Government issued a notification on 22 June 1984 amending Rule 6(b) retrospectively to make a degree in engineering a prerequisite for such promotion, thereby disqualifying the petitioners. The Court held that the amendment was ultra vires because the Punjab Reorganisation Act, 1966 (s. 82(6)) bars any alteration of service conditions to the detriment of persons without prior Central Government approval, a requirement the State ignored. The amendment also violated Articles 14 and 16(1) of the Constitution as it removed a vested right without justification. Consequently, the notification was struck down and the petitioners were entitled to promotion under the original rule.

Issues considered

The amendment of Rule 6(b) by the Haryana Government with retrospective effect violates the proviso to s. 82(6) of the Punjab Reorganisation Act, 1966.
Whether a retrospective amendment that makes a degree in engineering a condition for promotion of Class II officers infringes Articles 14 and 16(1) of the Constitution.
Whether the unamended Rule 6(b) conferred a vested right of promotion on the petitioners that cannot be taken away by retrospective amendment.
Whether prior approval of the Central Government is required under the proviso to Art. 309 of the Constitution for such amendment.

Legislation cited

Constitution of Indias. Article 14, s. Article 16(1), s. Article 309
Punjab Reorganisation Act, 1966s. Section 82(6)
States Reorganisation Act, 1956s. Section 115(7)

Subjects

service rulesretrospective amendmentPunjab Reorganisation ActArticle 309Article 14Article 16vested rightspromotionultra virescivil serviceconstitutional law

Judgment

A T.R. KAPUR & ORS.
v.
STATE OF HARYANA & ORS.

DECEMBER 17, 1~86

B [A.P. SEN ANDS. NATARAJAN,JJ.].

Punjab Service of Engineers, Class I, Public Works Department -t
(Irrigation Branch) Rules, 1964: Rule 6(b)-Haryana State amendment
with retrospective effect declared ultra vires.

C Punjab Reorganisation Aci, I966: s.82(6), provis~Service co~-
ditions of persons serving in composite State of Punjab-Alteration •
of-Approval of Cent;al Government mandatory.
-
Civil Services.

D Benefits acquired under existing service rules cannot be taken
away by amendment of rules with retrospective effect.

Constitution of India, Article 309, proviso-Service Rules-
Amendment of with retrospective effect-Must sacisfy cests of Articles 14
and 16(1).
E
The proviso to sub-s.(6) of s.82 of the Punjab Reorganisation Act, -~
1966 mandates that the conditions of service applicable to any person
referred to in sub-s.(l) or sub-s.(2) shall not be varied to his dis-
advantage except with the previous approval of the Central Govern-
ment. Rule 6(b) of the Punjab Service of Engineers, Class I, Public
F Works Department .(Irrigation Branch) Rules, 1964, as it stood at the
relevant time, provided that in case of appointment by promotion from
-
Class II Service no person shall be appointed unless he has compleied in
'
that Class of Service for a period of ten years from the commencement --?'!·
of these ·Rules, six ,rears service and after that period eight years '
service. The Governor of Haryana by a notification dated 22nd June,
G 1984 amended the above Rules by inserting the words 'in addition to the
qualifications prescribed in clause (a)' after the words "eight years
service" in cl(b) of r.6 with retrospective effect from July IO, 1964
thereby making a degree in Engineering essential for promotion to the
.post of Executive Engineer in Class I service.

H Rule 3(c) of the Punjab Service of Engineers, Class II P.W.D.

58~

,..
T.R. KAPUR v. STATE OF HARYANA 585

~ (Irrigation Branch) Rules, 1941 had enjoined that no person shall he A
appointed to the service unless he possessed one of the University de-
grees or other qualifications prescrihed. The proviso to r.5 however,
laid down that that rule may be relaxed by Government on the recom-
mendations of the Chief Engineers in order to admit the promotion of a
member of the Overseers Engineering Service of outstanding merit who
~- may not possess the qualifications specified in rule 3. B

The petitioners, who are Engineering Diploma holders, -xere
appointed to Class III Overseers Engineering Service (Irrigation '

- Branch) in the erstwhile State of Punjab in the year 1953, 1949 and 1952
~ reSpectively. In due course they were promoted as Sub-Divisional Officers
•' in Class II service and were eligible for promotion to the post of Execu-
c
tive Engineer in Class I ·service. under the uname!tded rule 6(h) having
..._ more than eight years' service in Class II service. In A.S. Parmar v.
Stlite of Haryana, [1984] 2 SCR 476 this Court interpreting the
unamended rule 6(b) had held that a degree in Engineering was not an
essential qualification for promotion of Class II Officers to the cadre of
Executive Engineer in Class I service. But just before they were ahout D
to be promoted the State of Haryana issued the impugned notification
rendering them inelligible •. ·

Aggrieved by the said notification they filed these' writ petitions
~ . under Art.32 of the Constitution. It was contended for ihem that the
impugned notification purporting to amend r.6(b) of Class I Rules with E
retrospective effect was ultra vires the State Government being contrary
to the proviso to s.82(6) of the Punjab Reorganisation Act, 1966, that

- the unamended r.6(b) had conferred a vested right of promotion on
them which could not be taken away by retrospective amendment under
the proviso to Art. 309 of the Constitution, that a retrospective amend-
ment taking away eligibility for promotion from a back date ranging F
-- ••( over 20 years and thereby rendering invalid the promotions already
1, made was constitutionally impermissible, and that the action of the
Government in making such retrospective amendment to. nullify the
decision in Parmar's case was wholly arbitrary, irratii>nal and ma/a fide
and thus violative of Arts. 14 and 16(1) of the Constitution.
G
For the respondents it was contended that the proviso to s. 82(6)
was not attracted to the facts of the case since on the appointed day, that
is, November 1, 1966 the petitioners were not members of Class II
Service. They ·were then Supervisors belonging to Class iII Service, 'and,
therefore, were not governed by the unamended r.li(b). It was further
contended that under r.3(c) oftbe Punjab Service of Engineers, Class II H
586 SUPREME COURT REPORTS [1987] 1 S.C.R.
I

P.W .D. (Irrigation Branch) Rules, 1941 a degree in Engineering was
....
A essential till the 1970 Rules brought about a change. Inasmuch as none
of the petitioners had the requisite qualifications, they could not become
members of Class II Service. It was strenuously contended that the deci-
sion in A.S. Parmar v. State of Haryana was incorrect.

B Allowing the writ petitions, the Court,

HELD: I. I The impugned notification dated June 22, 1984
issued by the State Government of Haryana purporting to amend r .6(b)
of the Punjab Service of Engineers, Class I, Public Works Department
(Irrigation Branch) Rules 1964, with retrospective effect from July 10,
1964 is declared ultra vires the State Government being contrary to
C s.82(6) of the Punjab Reorganisation Act, 1966. [602EF, 597CD]

1.2 The proviso to s.82(6) of the Punjab Reorganisation Act is in
the nature of a fetter on the power of the Governor under the proviso to
Art. 309 of the Constitution not to alter the conditions of service appli-
D cable to members of civil services affected by the reorganisation of the
State to their disadvantage without the previous approval of Ike Central
Government. [S93E, S97B]

In the Instant case, the State Government never moved the Cen-
tral Government seeking its prior approval to the proposed amendment
E of r.6(b) of the said Class I Rules. There was no Chief Secretaries
Conference as was held prior to the reorganisation of the States under
the States Reorganisation Act, 1956. Nor was there any communication
issued by the Central Government conveying its previous approval of
the changes in the service conditions which the States of Punjab and
Haryana might make in terms of the proviso to s.82(6) of the Punjab
F Reorganisation Act, !966. The amendment, therefore, must be struck
down. [596E,G, 597C]

Mohammad Bhakar v. Y. Krishan Reddy, [1970] SLR 768;
Mohammad Shujat Ali & Ors. v. Union of India & Ors., (1975] I SCR
449 and A.S. Parmarv. State of Haryana, [1984] 2 SCR476, referred to.
G
2.1 The decision in Parmar's case is not open to question. What
was of the essence for purposes of promotion of Sub-Divisional Officers :~
who were members of Class II Service to the post of Executive Engineer
under r.6(b) of the Class I Rules was not a degree in Engineering, but
eight years' experience in Class II Service. [597G, S98CD]
H
T.R. KAPURv. FATEOFHARYANA 587
~- ~
2.2 The petitioners like other members of Class II Service who A
are diploma-holders and satisfy the eligibility test of eight years'
service in that Class were, therefore, eligible for being considered for
promotion to the post of Executive Engineer in Class I service without
having a degree in Engineering. [594B]

A.S. Parmar v. State of Haryana, [1984] 2 SCR 476, referred to. B

3. The requirement of a degree in Engineering which was an
essential educational qualification for purposes of direct recruitment of
- Assistant Executive Engineers in Class I Service under r.6(a) of the
Class I Rules could not be projected for promotion of Sub-Divisional
Officers belonging to Class II Service to the posts of Executive c
Engineers in Class J. Service under r.6(b) as they form two distinct
sources from which appointments to the posts of Executive Engineers
could be made. [598B]

4. The proviso to r.5 of the 1941 Rules conferred power on the
State Government to relax the requirement of (.3(c) on the recommen- D
dation of the Chief Engineer in order to admit the promotion of a
member of the Overseers Engineering Service (Irrigation Branch),
IPunjab if he was an officer of outstanding merit although he did not
possess the qualification prescribed in r.3(c), i.e. a degree in Engineer-
ing. Presumably, the petitioners were officers of outstanding merit as
they were promoted as OIJg •. Sub-Divisional Officers in Class II Service E
iin January 1964, July 1966 and November 1969. [597H-598A, 596A]

5. It cannot be said that on the appointed Clay i.e. on November,
I, I 966 the petitioners were Overseers belonging to the Class Ill Service
and were therefore not governed by unamended r.6(b). Two of them
had already been promoted as Offg. Sob-Divisional Officers prior to the F
--L I appointed day, i.e. in January 1964 and July 1966 and were, therefore,
governed by the unamended r.6(b). The third petitioner was also pro-
moted to that post subsequently in November 1969. Upon such promo-
tion to the post of Offg. Sub-Divisional Officers they had not only the
legitimate expectation that they would in due course be considered for
confirmation but alSo had the right on such confirmation to be con- G
sidered for promotion. It is" also not quite accurate to say that the
petitioners were not shown as belonging to the Class II Service. A bare
look at the notification da~ed October 27, 1985 would show that the
petitioners figure at Sr. Nos. 246, 254 and 369. [596B-D]

6. The po"!"er to frame rules to regulate the conditions of service
H
588 SUPREME COURT REPORTS · [1987] l S.C.R.

'
A under the proviso to Art. 309 of the Constitution carries with it the
power to amend or alter the rules with a retrospective effect. This rule
is, however, subject to a well-recognised principle that the benefits
acquired under the existing rules cannot be taken away by an amend-
ment with retrospective effect. Therefore, unless it is specifically pro-
vided in the rules, the employees who were already promoted before the
B amendment of the rules, cannot be reverted and their promotioos can-
not be recalled. In other words, such rules laying down qualifications
for promotion made with retrospective effect must necessarily satisfy
the tests of Arts. 14 and 16(1) of the Constitution. They do not, in the
instant case.[5998-F]
-
C B.S. Vadherav. Union of India, [1968]3SCR515,RajKumary.
Union of India, [1975] 3 SCR 963; K. Nagaraj & Ors. v. State of A.P. -t·
& Anr., [1985] I SCC 523; State of J & K v. Triloki Nath Khosla &
Ors., [1974] 1 SCR 771; State of Mysore v. M.N. Krishna Murty &
Ors., [1973] 2 SCR 575; B.S. Yadav & Ors., v. State of Haryana &
Ors., [198°1] I SCR 1024; State of Gujarat & Anr. v; Raman/al Keshav-
D /al Soni & Ors., [1983] 2 SCR 287 and Ex-Captain K.C. Arora & Anr.
v. State of Haryana & Ors., [19&4] 3 SCR 623, referred to.

ORIGINAL JURISDICTION: Writ Petitions Nos. 630-32 of 1984

Under Article 32 of the Constitution of India.
E
M.K. Ramamurthy, Shanti Bhushan, U.R. Lalit, M.R. Sharma,
S.K. Mehta, B.R. Agarwala, N.D. Garg, E.M.S. Anam, P.O.
Sharma, C.V. Sobba Rao, I.S. Goel, Dr. K.S. Tiwari, P.H. Parekh,
Sohail Dutt, Uma Datta and V.P. Goel for the appearing parties. ·

F The Judgment of the Court was delivered by
J.--'
SEN, J. These petitions upder Art. 32 of the Constitution assail
the constitutional validity of a notification issued by the State Govern-
ment of Haryana in the Public Works Department (Irrigation Branch)
dated June 22, 1984 purporting to amend r.6(b) of the Punjab Service
G of Engineers, Class I, P11blic Works Department (Irrigation Branch)
Rules, 1964 (for short 'the Class I Rules') with retrospective_ eff_ect
from July 10, 1964 as violative of Arts. 14 and 16(1) of the ConsMut10n .,>---'
and also ultra vires the State Government by reason of the proviso to
s.82(6) of the Punjab Reorganisation Act, 1966. The purport and
·effect of the impugned notification is to n11llify the decision of this
Ii Court in A.S. Parmar v. State of Haryana, [1984] 2 SCR 476, holding
T.R.·KAPUR v. STATEOFHARYANA(SEN,J.l 589

r that a degree in Engineering was not essential for such promotion. By A
the impugned notification,. a degree in Engineering is made an essen-
tial qualification for promotion of Assistant Engineers in the Irrigation
Branch, a Class II service under r.6(b) of the Class I Rules and thereby
the petitioners have been rendered ineligible for promotion to the post •
of Executive Engineer in Class I service.
B
The circumstances which led to the issuance of the impugned
·notification are these. A cqntroversy had arisen on the Construction of
r. 6 of the Class I Rules as to whether a degree in Engineering was
- necessary when the post of Executive Engineer, which is a post in
Class I service, was to be filled by promotion by members of Class II
service· and this was settled by the decision of this Court in A.S. c
Parmar's case, supra. The _Court on a consideration of the relevant
rules came to the conclusion that a niember of Class II service, namely,
Assistant Engineer or Sub-Divisional Officer did not require to have a
l!niversity degree for promotion to the post of Executive Engineer in
Class I service. On February' 24, 1984, the Additional Solicitor
General gave an undertaking on behalf of the State Government that it D
would consider the cases of all eligible persons including the petition-
ers for regular appointment to the Class I service in accordance with
the rules and complete the process within four months from that day.
The Court, accordingly, in Civil Appeal No. 149 of 1981 (As/wk Gulati
& Ors. v. State of Haryana) and the connected matters as also in these
petitions under Art. 32 of the Constitution passed an order to the E
effect: .

- "Mr. K.G. Bhagat, learned Additional Solicitor General
says that the State Government will consider the cases of
all the eligible persons including the appellants/petitioners
\
and respondents for regular appointments to Class I F
-j- Service in accordance with the law and complete the pro-
cess of appointm_ents within 4 months from today. The Govern-
ment is permitted to do so. But all appointments made
pursuant to this order will ·be subject to the final result of
these cases. ·
G
In the meanwhile the appellants will continue in the
posts held by them.

These matters will stand adjourned for a period of 6
months from today."
H
590 SUPREME COURT REPORTS [1987] 1 S.C.R.

A Just two days before the expiry of the period within which promotion
J.
of eligible persons including the petitioners was to be completed, the·
State Government purported to effect an amendment of r.6(b)
retrospectively w .e.f. July 10, 1964. The impugned notification wa• in
these terms:

B "HARYANA GOVERNMENT
PUBLIC WORKS DEPARTMENT (IRRIGATION)
-+ '
NOTIFICATION
The 22nd June, 1984.

No. G.S.R. 47/Cons./Art. 309/Amend. (1)-84-ln exercise
~
-
of the powers conferred by the proviso to Article 309 of the
c Constitution of India and all other powers enabling him in
this behalf, the Governor of Haryana, hereby makes the
.t
following rules further to amend the Punjab Service of
Engineers, Class I, P.W.D. (Irrigation Branch) Rules,
1964, namely:-
D
!. (!) These rules may be called the Punjab Service of
Engineers, Class I, P.W.D. (Irrigation Branch),
Haryana, (Second Amendment) Rules, 1984.
~
(2) These rules shall be deemed to have come into force
E with effect from the 10th July, 1964. ·

2. In the Punjab Service of Engineers, Class I, P.W.D.
(Irrigation Branch) Rules, 1964, in rule 6, In clause (b), ·-
after the words "eight years service", the words, "in addi-
tion to the qualifications prescribed in clause (a)': shall be
F inserted."
-~
Presumably, the State Government adopted this unfortunate
course of action taking cue of the observations made by this Court in
the concluding part of the judgment in A. S. Parmar's case saying that
if the Government wish to appoint only persons having a degree in
G Engineering to Class I service, it was free to do so by promulgating
appropriate rules and that the power to frame such a rule was beyond
question. But the· Court never laid down that such a rule may be ~_,

framed under Art. 309 of the Constitution with retrospective effect so
as to render ineligible Class II officers like the petitioners who were
Diploma-holders for further promotion as Executive Engineers in
H Class I service. In view of the clear formulation of law interpretin.g
T.R. KAPUR v. STATEOFHARYANAISEN,J.) 591

r .6(b) of the Class I Rules holding that a degree in Engineering was not A
an essential qualification for promotion of Class II Officers to the
cadre of Exe.cutive Engineers in Class I service, there was no occasion
for the State Government to issue the impugned notification unless it
was with the object of nullifying the decision of this Court in A. S.
Parmar's case.
B
In order to appreciate the points involved, it is necessary to state
a few facts. The three petitioners T.R. Kapur, Mohinder Singh and
V. D. Grover who are Diploma-holders hold the posts of Sub-
- Divisional Officers, Public Works Department (Irrigation Branch),
Haryana, a Class II service, governed by the Haryana Service of
Engineers, Class II P.W.p. (Irrigation Branch) Rules, 1970. They C
joined Class III service as Overseers in the Irrigation Branch on
September, 18, 1953, October 6, 1949 and November 8, 1952 respec-
tively in the erstwhile State of Punjab. At the time when they were
appointed to the Overseers Engineering Service, Punjab, r.3(c) of the
Punjab Service of Engineers, Class II P.W.D. (Irrigation Branch)
Rules, 1941 enjoined that no person shall be appointed to the service D
unless he possessed one of the University degrees or other qualifica-
tions prescribed in Appendix 'A' to the Rules. Note beneath cl.(c),
however, provided that the requirements of cl.(c) could be waived in
the case of members of the Overseers Engineering .Service (Irrigation
Branch) Punjab to be promoted in the service under the proviso to r.5
of the Rules. The term 'service' was defined in r.1(2)(g) to mean the E
Punjab Service of Engineers, Class II (Irrigation Branch), Proviso to
r. 5 of Part II-Appointments Rules, reads as follows:

"Provided that this rule may be relaxed by Government on
the recommendations of the Chief Engineers in order to
admit the promotion of a member of an Overseer Engi-' F
neering Service (Irrigation Branch), Punjab of outstanding
merit who may not possess the qualifications specified in
r.3."

In due course, the petitioners were promoted as Offg. Sub-Divisional
Officers in the qass II service in November 1969, July 1966 and G
January 1964 respectively. Subsequently, by notification dated
October 27, 1985, the petitioners were appointed as Sub-Divisional
Officers on a regular basis w.e.f. December 25, 1970. Under the un-
amended r.6(b) of the Class I Rules, the petitioners were eligible for
promotion as Executive Engineers in Class I service despite the fact
that they did not possess a degree in Engineering. Rule 6 of Class I H
592 SUPREME COURT REPORTS (1987] l S.C.R.

A Rules insofar as relevant may be reproduced: i.
"6. Qualifications: No person shall be appointed to the
service unless he-

(a) possesses one of the University Degrees or other quali-
B fications prescribed in Appendix B of these rules;

Provided that Government may waive this qualifica-
tion in the case of a particular officer belonging to the Class
II Service.

(b) In case of appointment by promotion from Class II
-
c Service, has completed in that Class-0f Service for a period
of ten years from the commencement of these rules, six
years service and after that period eight years service.''

Shri Shanti Bhushan, learned counsel for the petitioners has put
D forward a three-fold contention. First of these submissions is that the •
impugned notification which purported to amend r.6(b) of the Class I
Rules with retrospective effect from July IO, 1964 making a degree in
Engineering essential for promotion to the post of Executive Engineer
in Class I service constitutes a variation in the conditions of service
applicable:; to officers belonging to Class II service who are diploma-
E holders like the petitioners prior to the appointed day i.e. November
1, 1966 to their disadvantage as it renders them ineligible for prom-0-
tion to the post of Executive Engineer in Class I service and was ultra vires
the State Government having been made without the previous
approval of the Central Government as en joined by the proviso to
s.82(6) of the Punjab Reorganisation Act, 1966. It is urged that any
F rule which affects the promotion of a person relates to his ~nditions of
service, although mere chancc;s of promotion may not be. The conten-
tion, in our opinion, must prevail. The second is that it was not permis-
sible for the State Government to amend r.6(b) of the Class I Rules
with retrospective effect under the proviso to 'Art. 309 of the Constitu-
tion so as to render ineligible for promotion to the post. of Executive
G Engineer in Class I service, the members of Class II service who are
diploma-holders although they satisfy the condition of eligibility of
eight years' experience in that class of service. It is said that the un-
amended r.6(b) conferred a vested right on persons like the petitioners
which could not be taken away by retrospective amendment of r.6(b ).
The third and the last submission is that the action of the State
H Government in issuing the impugned notification making retrospective
T.R. KAPUR v. STA1EOFHARYANA [SEN,J.] 593
... amendment of r.6(b) of the Class I Rules was wholly arbitrary, irra-
tional and ma/a fide and thus violative of Arts. 14 and 16(1) of the A
Constitution. It is submitted that the impugned notification was
calculated to circumvent the direction given by this Court in its order
dated February 24, 1984 on the basis of the undertaking given by the
learned Additional Solicitor General that the State Government
would consider the cases of all eligible officers belonging to Class II B
service for promotion to the Class I service.

Sub-s.(6), of s.82 of the Punjab Reorganisation Act, 1966
provides:

"82(6). Nothing in this section shall be deemed to affect on
or after the appointed day the operation of the provisions c
of Chapter I of Part XIV of the Constitution in relation to
the determination of the conditions of service of persons
serving in connection with the affairs of the Union or any
State:
D
Provided that the· conditions of service applicable
immediately before the apj>ointed da.y to. the case of any
person referred to in sub•section (1) or sub-section (2) shall
not be varied to his disadvantage except with·the previous
~-·· approval of the Central Government."
E
It is quite clear that the proviso to s. 82( 6) of the Pun jab
....
(
Reorganisation Act, 1966 is in the nature of a fetter on the power of
the Governor under the proviso to Art. 309 .of the Constitution to alter
the conditions of service applicable to all persons serving in connection
with the affairs of the State. It interdicts that the conditions of service
' applicable to persons referred to in sub-s. (1) or sub-s. (2) thereof i.e: p
j members of civil services affected by the reorganisation of the, State.
The conditions of service of any persons who immediately before the
appointed day were serving in connection with the affairs of the exist-
ing State of Punjab and are as from that date allocated for service in
connection with the affairs of the successor State i.e. allocated
Government servants can not be varied to their disadvantage. G
•
·--<:
1
There is a long line of decisions starting from Mohammad
Bhakar v. Y. Krishan Reddy, [i970] SLR 768 down to Mohammad
Shujat Ali & Ors. v. Union of India & Ors., [1975] 1 SCR 449 while
construing the analogous provision contained in the proviso to s.115(7)
of the States Reorganisation .Act, 1956 laying down that any rule made H
594 SUPREME COURT REPORTS [ 1987] 1 S. C.R.

under the proviso to Art. 309 of the Constitution which seeks to vary ·-~'
A
or alter the conditions of service without the previous approval of the
Central Government would be void and inoperative being in violation
of the proviso to sub-s.(7) of s. 115 of the Act. It is a trite proposition
that any rule which affects the right of a person to be considered for
promotion is a condition of service, although mere chances of promo-
B tion may not.be. As laid down by this Court in A.S. Parmar's case, the
petitioners like other members of Class II service who are dipioma-
+
holders and satisfy the eligibility test of eight years' service in that
class, were eligible for being considered for promotion to the 'post of
Executive Engineer in Class I service without having a degree in
Engineering. Admittedly, the impugned notification which seeks to
C amend r.6(b) with retrospective effect from July 10, 1964 clearly
operates to their disadvantage as its purports to make them ineligible
for promotion being diploma-holders. ·

In Mohammad Bhakar's case, the Court speaking through
Mitter, J. said: "A rule which affects the promotion of a person relates
D to his conditions of service". It was held that a rule which made the
passing of certain departmental examinations a pre-requisite for
promotion having been made without the previous approval of the
Central Government was void by reason of sub-s. (7) of s.115. In
Mohammad Shujat Ali's case, a Constitution Bench of this Court
speaking through Bhagwati, J. observed: -+-
E
"A rule which confers a right of actual promotion or a right
to be considered for promotion is a rule prescribing a
condition of service."

Under the Class I Rules as they existed immediately prior to the
-
F appointed day i.e. before November I, 1966, a niember of the Over- ..
seers Engineering Service in the Irrigation Branch, Punjab having a
diploma was eligible for being promoted as Sub-Divisional Officer in the
Class II Service and then in due course to the post of Executive
Engineer in the Class I service within the quota prescribed for them
without having a degree in Engineering. It was not necessary to pos-
G sess a degree in Engineering as held by this Court in A.S. Parmar's
case for purposes of promotion under the unamended r.6(b) of the
Class I Rules, as in the case of promotion to the post of Executive
Engineer in Class I service under r.6(b) what was essential was eight
years' service in that class and not a degree in Engineering. The
impugned notification which purports to amend r.6(b) with retrospec-
H tive effect, however, renders members of the Class II service like the
T.R. KAPUR v. STATEOFHARYANA(SEN,J.] 595

~ · petitioners who are diploma-holders ineligible for promotion by A
making a degree in Engineering an essential qualification for such
promotion which amounts to alteration of the conditions of service
applicable to them to their disadvantage without the previous
approval of the Central Government and is thus void by reason of the
proviso to sub-s.(6) ofs.82 of the Punjab Reorganisation Act, 1966.
B
+ Faced with the difficulty, learned counsel for the respondents
strenuously contends that the proviso to s.82(6) of the Act is not
attracted in the present case. It is argued that on the appointed day i.e.
November 1, 1966 the petitioners were not members of Class II
service. It is said that the petitioners on the appointed day being
Supervisors belonged to the Class Ill service and therefore were not C
governed by the unamended r.6(b ). Reliance is placed on the notifica-
tion issued by the State Government dated October.
27, 1985 constitut- I
ing the Class II service w.e.f. December 25, 1970 and it is said that the
petitioners are not shown as belonging to Class II service. It was then
contended that under r.3(c) of the Punjab Service !!f Engineers, Class
I II P.W.D. (Irrigation Branch) Rules, 1941, a degree in Engineering D
was essential till the Punjab Service of Engineers, Class II, P.W.D.
(Irrigation Branch) ·Rules, 1970 brought about a change. Inasmuch as
none of the petitioners had the requisite qualifications, they could not
become members of the Class II service. We are unable to accept this
line of reasoning.
E
Undoubtedly, at the time when the petitioners were recruited as
Supervisors in the Irrigation Branch, a Class HI service, r.3(c) of the
Punjab Service of Engineers, Class II, P.W.D. (Irrigation Branch)
Rules, 194 i laid down that no person shall be appointed to the service
unless he possessed one of the •university degrees or other qualifica-
tions prescribed in Appendix 'A' to the Rules. Note beneath r.3(c) F
however provided that the requirements of cl.(c) could be waived in
the case of members of the Overseers Engineering Service, Irrigation
Branch, Punjab for promotion to the service under the proviso io r.5
of the Rules. The term 'service' as defined in r.1(2)(g) meant' the
Punjab Service of Engineers, Class II (Irrigation Branch). Proviso to
r.5 of the Rules, hbwever, empowered the State Government to relax G
the condition. It is clear from the terms of the proviso to r.5 quoted
A.--( above that the State Government could relax the requirements of
. ,. r.3(~) on the recommendation of the Chief Engineer in order to admit
the promotion of a member of the Overseers Engineering Service,
Irrigation Branch, Punjab if he was an officer of outstanding merit
although he did not'possess the qualifications specified in r.3(c) i.e." a H
596 SUPREME COURT REPORTS [1987] l S.C.R.

A degree in Engineering. Presumably, the petitioners were officers of
outstanding merit and they were promoted as Offg. Sub-Divisional
Officers in Class II service in January 1964, July 1966 and November
1969. Eventually, the State Government by notification dated October
27, 1985 appointed them on a regular basis in that post w.e.f.
December 25, 1970. Further, it is wrong to suggest that on the
B appointed day i.e. on November l, 1966 they were all Overseers
belonging to the Class III service and were therefore not governed by -+
the unamended rj\(b). Two of them V.D. Grover and Mohinder Singh
had already been· promoted as Offg. Sub-Divisional Officers prior to
the appointed day i.e. in January 1964 and July 1966 and were there-
fore governed by the unamended r.6(b) of the Class I Rules and the
C third petitioner i. R. Kapur was also promoted to that post subse-
). -
quently in November 1969. Upon such promotion to the post of Offg.
Sub-Divisional Officers they had not only the legitimate expectation
that they would in due course be considered for confirmation but also
had the right on ~uch confirmation to be considered for promotion. It
is also not quite accurate to say that the petitioners were not shown as
D .belonging to the Class II servi~. A bare look at lhe notification dated
October 27, 1985 would show that the petitioners figure at Sr. Nos.
246, 254 and 369.

It is not suggested that the State Government ever moved the
Central Government seeking its prior approval to the proposed ~·
E amendment of r.6(b) of the Class I Rules. In that connection, it is
necessary to recall that prior to the reorganisation of the States under
the Stat~s Reorganisation Act, 1956, a conference of the Chief Sec-
retaries 'of the States that were to be affected was held at Delhi on May
18 and 19, 1956 for the purpose of formulation of the principles upon
which integration of services was to be effected. The Government of
F India by its circular dated May 11, 1957 to all the State Governments
stated inter alia that it agreed with the views expressed bn behalf of the ~
States' representatives that it wo'!ld not be appropriate to provide any .
protection in the matter of departmental promotion. This circular has
been interpreted as a prior approval of the Central Government in
terms of the proviso to sub-s. (7) of s.115 of the Act in the matter of
G change of the conditions of service relating to departmental promo-
tions: These considerations however do not arise in the present case.
Admittedly, there was no Chief Secretaries Conferenci as was held )-A
prior to the reorganisation of the States under the State~ Reorganisa-
tion Act, 1956. Nor was there any communication issued by the
Central Government conveying its previous approval of the changes in
H the service conditions which the States of Punjab and Haryana might
T.R. KAPUR v. STATE OF HARYANA [SEN, J.] .597

make in terms of the proviso to s.82( 6) of the Pun jab Reorganisation /
Act, 1966. Under the States Reorganisation Act, 1956 so also under
the Punjab Reorganisation Act, 1966, the power of the Gove"!or to
make rules under the proviso to Art.309 of the Constitution had been
controlled by the proviso to s.115(7) of the former Act and s.82(6) of

+ the latter. It follows that the . conditions of service applicable
immediately before the appointed day to the case of any person refer-
red to in sub-s.(l) or (2) of s.82 of the Act could not be varied to his
disadvantage except with the previous approval of the Central
Government. That being so, the impugned notification issued by the
State Government purporting to amend r. 6(b) of the Class I Rules
)_ w.e.f. July IO, 1964 which rendered members of Class II Service who
are diploma-holders like ihe petitioners ineligible for promotion to the 1
..,._ post of Executive Engineer in Class I Service making a degree in
Engineering essential for such promotion, although they satisfied the
condition of eligibility of 8 years' experience in that class of service,
must be struck down as ultra vires the State Government being con-
trary to s.82(6).ofthe Punjab Reorganisation Act, 1966.

On the view that we take, there is no need for .us to deal in detail
with the other points raised. We shall only touch upon_them.

One should have thought that the controversy whether a degree
in Engineering was an essential qualification for promotion of Sub-
Divisional Officers in Class II Service to the post of Executive En-
gineer in Class I Service under r. 6(b) of the Class I Rules had ended
with the decision of this Cou'rt in A.S. Parinar's case. Curiously e-n-
. ough, learned counsel for the respondents strenuously contends that
the decision of this Court in A.S. Parmar's case was incorrect. He
)resses into service for our acceptance the decision of the High Court
in 0. P. Bhatia v. State of Punjab, ILR 1980 P & H 470 taking a vie.w to
the contrary. It is urged that in the erstwhile State of Pun jab a degree
in Engineering was essential for recruitment of Assistant Engineers in
Class II Service under r. 3(c) of the 1941 Rules as held by the High
Court in 0. P. Bhatia's case and that view was in consonance with the
departmental instructions of the relevant ruies in the State of l'unjab
· and the State of Haryana as also in the erstwhile State of Punjab that
r.6(b) required the promotees to liave the essential qualification of a
degree in Engineering. We do not think that it is open to question the
correctness of the decision in A. S. Parmar's case which expressly over·
rules the view taken by the High Court in 0.P. Bhatia's case. That
apart, the proviso to r.5 of the 1941 Rules conferred power on the
State Government to relax the requirement of r.3(c) on the recom-
598 SUPREME COURT REPORTS [ 1987] l S.C.R.

A mendation of the Chief Engineer in order to admit the promotion of a
member of the Overseers Engineering Service (Irrigation Branch),
Punjab if he was an officer of outstanding merit although he did not
possess the qualification prescribed in r.3(c) i.e. the educational quali-
fication of a degree. in Engineering. The requirement of a degree in
Eniline·ering for recruitment to the Class II Service was done away with
B in the 1970 Rules. The contention also fails to take note of the fact that --t
the requirement of a degree in Engineering which was an essential
educational qualification for purposes of direct recruitment of
Assistant Executive Engineers in Class I Service under r. 6(a) of the
Class I Rules could not be projected for promotion of Sub-Divisional
Officers belonging to Class II Service to the posts of Executive _)..
C Engineers in Class I Service under r. 6(b) as they form two distinct
sources from which the appointments to the posts of Executive ..,.
Engineers could be made. As laid down in A.S. Parmar's case, what
was of the essence for purposes of promotion of Sub-Divisional Offi-
cers who were members of Class II Service to the post of Executive
Engineer under r.6 (b) of the Class I Rules was not a degree in
0 Engineering, but 8 years' experience in that class of service i.e. Class II
Service.

More fundamental is the contention that the impugned notifica-
tion issued by the .State Government purporting to amend r.6(b) with
retrospective effect from July 10, 1964 which rendered members of
E Class II Service who are diploma-holders like the petitioners. ineligible
for promotion to the post of Executive Engineer although they
satisfied the condition of eligibility of 8 years' experience in that class
of serviCe was unreasonable, arbitrary and irrational and thus offended
against Arts. 14 and 16(1) of the Constitution. It is urged that they
were eligible for promotion under the unamended r.6(b) of the Class I

.•..
F Rules and had a right to be considered for promotion to the posf of ) ,
Executive Engineer, and a retrospective amendment of r.6(b) seeking '
to render them ineligible was constitutionally impermissible. It is said
that the reason for this was obvious inasmuch as immediately prior to
the reorganisation of the State of Punjab i.e. prior to Noveml:-er l,
1966 even a member of the Overseers Engineering Service, a Class III
G Service, having only a diploma was eligible for being promoted as
Executive Engineer in Class I Service in due course since in the matter
of promotion under the unamended r.6(b) it was not necessary to
possess a degree in Engineering as held by this Court in A.S. Parmar's
case. It follows therefore that every member of the Overseers
Engineering Service was eligible for promotion first as Assistant
H Engineer or Sub-Divisional Officer in Class II Service and thereafter,
T.R. KAPURv. STATEOFHARYANA(SEN,J.) ' 599

in due course, to the post of Executive Engineer jn Class I Service even 'A
without the educational qualification of a degree in Engineering. In
substance, the submission is that a retrospective amendment of r.6(b)
by the impugned notification which seeks to take away the eligibility of
members of Class II Service who are diploma-holders for purposes of
promotion to the posts of Executive Engineers in Class I Service from
a back date ranging over 20 years and thereby renders invalid the promo- B
lions already made is constitutionally impermissible.

It is well-settled that the power to frame rules to regulate the
conditions of service under the proviso to Art. 309 of the Constitution
carries with it the power to amend ~r alter the rules with a retrospec-
tive effect: B.S. Vadhera v. Union of India, [1968] 3 SCR 575, Raj C
Kumar v. Union of India, [1975] 3 SCR 963, K. Nf!garaj & Ors.. v. Sate
of A.P. & Anr., [1985] 1 SCC 523 and State of J & K v. Tri/oki Nath
Khosla & Ors., [1974] 1 SCR 771. It is equally well-settled that any
rule which affects the right of a person to ·be considered for promotion
is a condition of service although mere· chances of promotion may not
be. It may further be stated that an authority competent to lay down D
qualifications for promotion, is also competent to change the qualifica-
tions. The rules defining qualifications and suitability for promotion
are conditions of service and they can be changed retrospectively. This
rule is however subject to a ..yell-recognised principle that the benefits
acquired under the existing rules cannot be taken away by an amend-
ment with retrospective effect, that is to say, there is no power to make E
such a rule under the proviso to Art. 309 which affects or impairs
vested rights. Therefore, unless it is specifically provided in the rules,
the employees who are already promoted before the amendment of
the rules, cannot be reverted and their promotions cannot be recalled.
In other words, such rules laying down qualifications for promotipn
.-~ made with retrospective effect must necessary satisfy the tests of F
Arts.14 and 16(1) of the Constitution: State of Mysore v. M.N. Krishna
Murty·& Ors., [1973] 2 SCR 575 B.S. Yadav & Ors. v. State of
Haryana & Ors., [1981] I SCR 1024 State of Gujarat & Anr. v.
Raman/a/ Keshav/al Soni & Ors., [1983] 2 SCR 287 and Ex-Captain
K.C. Arora & Anr:v. State of Haryana & Ors., [1984) 3 SCR 623.
G
A Constitution Bench of this Court in State of Gujarat & Anr. v.
Raman/al Keshavlal Soni & Ors. (supra) had to consider the constitu-
tional validity of the proviso to s. 102( l)(a) of the Gujarat Panchayat.
Act, 1961 as introduced by the Gujarat Panchyayat (Third Amend-
ment) Act, 1978 with retrospective effect and sought to extinguish the
status of secretaries, officers and servants of the Gram and Nagar H
600 SUPREME COURT REPORTS

Panchayats who became members of a service under the State on being
A allocated to the panchayat service. The Court speaking through Chin-
nappa Reddy, J. observed:

"Now, in 1978 before the Amending Act was passed,
thanks to the provisions of the Principal Act of 1961, the
B ex-municipal employees who had been allocated to the
Panchayat Service as Secretaries, Officers and Servants of
Gram and Nagar Panchayats, had achieved the status of
government servants. Their status as Government servants
could nol be extinguished; so long as the posts were not
abolished and their services were not terminated in accord-
ance with the provisions of Art.311 of the Constitution.
c Nor was it permissible to single them out for differential
treatment. That would offend Art. 14 of the Constitution."

The learned Judge observed that the Amending Act was sought to be
given retrospective effect to get over the constitutional safeguards of
D Arts. 311 and 14 by reverting to a situation that existed some 17 years
ago. He said that there was no power to do so and observed:

"The legislation is pure and simple, self-deceptive, if we
may use such an expression with reference to a legislature-
made law. The legislature is undoubtedly competent to
E legislate with retrospective effect to take away or impair
any vested right acquired under existing laws but since the
laws are made under a written Constitution, and have to
conform to the do's and don'ts of the Constitution neither
prospective nor retrospective laws can be made so a to
contravene Fundamental Rights. The law must satisfy the
F requirements of the Constitution today taking into account ".
the accrued or acquired rights of the parties today. The law
cannot say, twenty years ago the parties had no rights,
therefore, the requirements of \he Sonstitution will be
satisfied if the law Is dated back by twenty years. We are
c<incerned with today's rights and not yesterday's. A legisla-
G ture cannot legislate today with reference to a situation that
obtained twenty years ago and ignore the march of events ~-""
and the constitutional rights accrued in the course of the
twenty years. That would be most arbitrary, unreasonable
and a negation of history." ·

H The learned Judge relied with approval on the following observations
T.R. KAPUR v. STATEOFHARYANAlSEN,J.] 601

of Chandrachud, CJ. speaking for a Constitution Bench in B.S. Yadav A
& Ors. v. State ofHaryana· & Ors. (supra):

"Since the Governor exercises the legislative· power under
the proviso to Art. 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 B
--r·. operate, must !Je shown to bear either from the face of the
rules or by extrinsic evidence, reasonable nexus. with the
provisions contained in the rules, especially when the re-
trospective effect extends over a long period as in this
9ase."

and summed up:
' c

"Today's equals cannot be made unequal by saying that
they were unequal twenty years ago and we will restore that
· position by making a law today and making it retrospec-
tive. Constitutional rights, constitutional obligations and . D
constitutional consequences cannot be tempered with that
· way. A law which if made today would be plainly invalid as
offending constitutional provisions in the context of the .
existing situation cannot· become valid by being made re-
trospective. Past virtue (constitutional) cannot be made to
wipe out present.vice (constitutional) by making retrospec- E
live laws. We are, therefore, firmly of the view that the
Gujarat Panchayats (Third Amendment) Act, 1978 is un-
constitutional, as it offends Arts. 311 .and .14 and is
arbitrary and unreasonable."

·Follwing the view the Court in K. C. Arora's case referred with F
~pprnval to the observations of the Punjab & Haryana High Court in
Ha.'rbhajan Singh v. State of Punjab, [1977] 2 SCR 180 to the effect:

,I "Now the rule-making authority must have been aware
I
that a competitive examination for appointment to the
service had been held under the old rules and appointments G
were yet in the offing. Surely, the rule-making authority
did not intend to exclude from appointment candidates
who were eiigible under the old rules but became ineligible
by reason of an amendment of the rules made after the
process of selection had almost reached a final stage."
H
602 SUPREME COURT REPORTS [1987] l S.C.R.

A And then queried:

"Are they to be penalised "by barring their entry into the
Punjab Civil Service (Judicial Branch) because they accep-
ted employment at a time when acceptance of such employ-
ment was not a bar to appointment to the service? We do
B not think that we will be justified in attributing such an
unreasonable intention to the rule-making authority. In
our view, the only reasonable interpretation of the +
amended rule, consistent with the prevailing situation, is to
hold that only those persons who having joined the service

c
of the Union or the State or a post under the Union or the
State previously continued to hold the post on the date of
the coming into force of the rule, are excluded from ap-
-
pointment to the Punjab Civil Service (Judicial Branch),
The expression 'joined or joins' must be given a reasonable
interpretation in the context of the situation and we think
that our interpretation does not strain the language or attri-
D butes unreasonableness to the rule-making authority. In
that view, the petitioner cannot be said to be ineligible for
appointment."

The view expressed by the High Court has received the imprimatur of
the Court in K. C. Arora's case. That appears to be the present trend.
E
In the result, the petitions must succeed and are allowed with
costs. The impugned notification dated June 22, 1984 issued by the
State Government of Haryana purporting to amend r.6(b) of the
Punjab Service of Engineers, Class. I, Public Works Department
(Irrigation Branch) Rules; 1964 with retrospective effect from July JO,
F 1964 is de·ciared to be ultra vires the State Government.

P.S.S. Petitions allowed.

)-/
'