judgement:
tition Nos. 501, 643 44, 645, 649 and 1866 of 1981.
(Under article 32 of the Constitution of India) R. K. Garg, V.J. Francis, Sunil Kumar Jain and D. K. Garg for the Petitioners in WP.
501/81.
M. K Ramamurthi, J. Ramamurthi and Miss R. Vagai for the Petitioners in WPs.
643 44/81.
Vimal Dave and Miss Kailash Mehta for the Petitioners in WP.
No. 645/81.
A.K. Goel for the Petitioners in WP.
649/81.
Dalveer Bhandari and H. M. Singh for the Petitioners in WP.
1866/81.
L. N. Sinha, Attorney General, M. K Banerjee, Soliciter General, Miss A. Subhashini and R P. Singh for Respondent No. 1 in all the matters.
L. N. Sinha, Attorney General, O.C. Mathur and Sri Narain, for Respondent No. 2 in all the matters.
P. H. Parekh for the Intervener in WP.
501/81.
Somnath Chaterjee, J. Ramamurthi and Miss R. Vaigai for the Intervener Ajoy Kumar Banerjee in WPs.
643 44/81.
The following Judgments were delivered GUPTA, J.
The validity of the provisions of the Life Insurance Corporation (Amendment) Act, 1981 and the Life Insurance Corporation (Amendment) ordinance, 1981 which preceded it is challenged in this batch of writ petitions.
The writ petitions have a history behind them which can be conveniently divided into three chapters.
However, it will be easier to follow this history if we referred to some of the provisions of the Life Insurance Corporation Act, 1955 first.
The Life Insurance Corporation was constituted under the to provide for the nationalisation of life insurance business in India 'by transferring all 252 such business to the Life Insurance Corporation of India.
Under section 11(1) of the Act the services of the employees of insurers whose business has vested in the Corporation are transferred to the Corporation.
Sub section (2) of section 11 provides: "Where the Central Government is satisfied that for the purpose of securing uniformity in the scales of remuneration and the other terms and conditions of service applicable to employees of insurers whose controlled business has been transferred to, and vested in, the Corporation, it is necessary so to do, or that, in the interests of the Corporation and its policy holders, a reduction in the remuneration payable, or a revision of the other terms and conditions of service applicable, to employees or any class of them is called for, the Central Government may, not withstanding anything contained in sub section (1), or in the , or in any other law for the time being in force, or in any award, settlement or agreement for the time being in force, alter (whether by way of reduction or otherwise) the remuneration and the other terms and conditions of service to such extent and in such manner as it thinks fit; and if the alteration is not acceptable to any employee, the Corporation may terminate his employment by giving him compensation equivalent to three months ' remuneration unless the contract of service with such employee provides for a shorter notice of termination.
" There is an explanation to this sub section which is not relevant for the present purpose.
Section 48 of the Act empowers the Central Government to make rules to carry out the purposes of the Act.
Sub section (2) of section 48 in clauses (a) to (m) specifies some of the matters that the rules may provide for.
Sub section (3) of section 48 states: "Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive session, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses 253 agree that the rule should not be made, the rule shall A thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule." Section 49(1) empowers the Life Insurance Corporation of India to make regulations to provide for all matters for which provision is expedient for the purpose of giving effect to the provisions of the Act.
Clauses (a) to (m) of sub section (2) of section 40 specify some of the matters the regulations may provide for.
The matter referred to in clause (b) of sub section (2) is "the method of recruitment of employees and agents of the Corporation and the terms and conditions of service of such employees or agents.
" Clause (bb) speaks of the terms and conditions of service of persons who have become employees of the Corporation under sub section (1) of section 11.
Turning now to the history of the litigation, the first chapter begins with two settlements reached on January 24, 1974 and February 6, 1974 between the Life Insurance Corporation and its class III and class IV employees.
These were settlements under section 18 read with section 2(p) of the .
The settlements were identical in terms; four of the five unions of workmen subscribed to the first settlement while the remaining union was a signatory to the second.
The settlements cover a large ground including the claim for bonus.
Clause 8 of each of the settlements was as follows: "BONUS: (i) No profit sharing bonus shall be paid.
However, the Corporation may, subject to such directions as the Central Government may issue from time to time, grant any other kind of bonus to its Class III and IV employees.
(ii) An annual cash bonus will be paid to all Class III and Class IV employees at the rate of 15% of the annual salary (i.e. basic pay inclusive of special pay, if any, and dearness allowance and additional dearness allow 254 ance) actually drawn by an employee in respect of the financial year to which the bonus relates.
(iii) Save as provided herein all other terms and conditions attached to the admissibility and payment of bonus shall be as laid down in the settlement on bonus dated the 26th June, 1972.
" Clause 12 of the settlements inter alia provides: "This settlement shall be effective from 1st April, 1973 and shall be for a period of four years.
i.e. from 1st April 1973 to 31st March 1977.
" In 1975 an ordinance was promulgated called the Payment of Bonus (Amendment) ordinance which was subsequently replaced by the Payment of Bonus (Amendment) Act, 1976.
The reference to this ordinance and the Act would not have been relevant because section 32 (i) of the original made the said Act not applicable to the employees of the Life Insurance Corporation, but the Central Government appears to have decided also that the employees of establishments not covered by the would not be eligible to get bonus and ex gratia cash payment in lieu of bonus would be made.
Accordingly payment of bonus for the year 1975 76 to the employees of the Corporation was stopped under instructions from the Central Government.
On a writ petition filed by the employees of the Corporation in the Calcutta High Court, a single Judge of that court issued a writ of mandamus directing the Corporation to act in accordance with the terms of the settlement.
Thereafter the Life Insurance Corporation (Modification of Settlement) Act, 1976 was passed.
Some of the employees of Corporation challenged the constitutional validity of the Act by filing writ petition in this Court.
In Madan Mohan Pathak vs Union of India and Ors.(1) this Court held that the 1976 Act offended Article 31(2) of the Constitution and was as such void and issued a writ of mandamus directing the Union of India and the Life Insurance Corporation to forebear from implementing or enforcing the provisions of the 1976 Act and to pay annual cash bonus for the , years 1st April, 1975 to 31st March, 1976 and 1st April, 1976 to 31st March, 1977 to Class Ill and Class IV employees in accordance with the terms of the settlements.
The second chapter began on March 31, 1978 when the Corporation issued a notice under section 19(2) of the Industrial Dis 255 putes Act declaring its intention to terminate the settlements on the expiry of the period of two months from the date the notice was served.
On the same day another notice was issued by the Corporation under section 9A of the stating that it proposed to effect a change in the conditions of service applicable to the workmen.
The change proposed was set out in the annexure to the notice which reads: "AND WHEREAS for economic and other reasons it would not be possible for the Life Insurance Corporation of India to continue to pay bonus on the aforesaid basis; Now, therefore, it is our intention to pay bonus to the employees of the Corporation in terms reproduced hereunder: "No employee of the Corporation shall be entitled to profit sharing bonus.
However, the Corporation may, having regard to the financial condition of the Corporation in respect of any year and subject to the previous approval of the Central Government, grant non profit sharing bonus to its employees in respect of that year at such rate as the Corporation may think fit and on such terms and conditions as it may specify as regards the eligibility of such bonus.
" These notices were followed by a notification issued by the Corporation under section 49 of the on May 26, 1978 substituting a new regulation for the existing regulation No. 58 of the Staff Regulations.
Simultaneously the Life Insurance Corporation (Alteration of Remuneration and other terms and Conditions of Service of Employees) order, 1957, called the Standardisation order, made by the Central Government in exercise of the powers conferred on it by section 11(2) of the was amended with effect from June 1, 1978 substituting a new clause (9) for The original clause concerning bonus.
Clause (9) of the Standardisation order and Regulation 58 of the Staff Regulations after amendment read as follows: "No employee of the Corporation shall be entitled to profit sharing bonus.
However, the Corporation may, having regard to the financial condition of the Corporation in respect of any year and subject to the previous approval 256 of the Central Government, grant non profit sharing bonus to its employees in respect of that year at such rate as the Corporation may think fit and on such terms and conditions as it may specify as regards the eligibility for such bonus. " The validity of the said two notices and the notification issued for the purpose of nullifying any further claim of the workmen to annual cash bonus in terms of the Settlements of 1974 was challenged by the workmen by filing a writ petition in the Allahabad High Court.
The High Court allowed the writ petition and the Corporation preferred an appeal to this Court.
Another writ petition which had been filed in the Calcutta High Court challenging the said notices and the notification was transferred to this court, and the appeal and this writ petition were heard and disposed of by a common judgment.
The two cases were Civil Appeal No. 2275 of 1978, (The Life Insurance Corporation of India vs D.J. Bahadur and others)(1) and Transfer case No. I of 1979 (Chandrashekhar Bose and others vs Union of India and Ors.)(2).
By a majority the appeal preferred by the Corporation was dismissed and the transfer petition was allowed and a writ was issued by this Court to the Life Insurance Corporation directing it "to give effect to the terms of the settlements of 1974 relating to bonus until superseded by a fresh settlement, an industrial award or relevant legislation.
" The second chapter closed with this decision.
The third chapter begins with the promulgation of the Life Insurance Corporation (Amendment) ordinance, 1981 on January 31, 1981.
The following changes made in the principal Act by the ordinance are material.
In sub section (2) of section 48 of the principal Act a new sub clause (cc) was inserted with retrospective effect from June 20, 1979.
Clause (cc) relates to "the terms and conditions of service of the employees and agents of the Corporation, including those who became employees and agents of the Corporation on the appointed day under this Act.
" Three new sub sections (2A), (2B) and (2C) were added to section 48.
Sub section (2A) says that the regulations and other provisions as in force immediately before the commencement of the ordinance with respect to the terms and conditions of service of the employees and agents of the Corporation shall be deemed to be rules made under clause (cc) of 257 sub section (2).
Sub section (2B) provides that the power to make rules under clause (cc) of sub section (2) shall include (i) the power to give retrospective effect to such rules, and (ii) the power to amend by way of addition, variation or repeal the regulations and other provisions referred to in sub section (2A) with retrospective effect, but not from a date earlier than June 2(), 1979.
Sub section (2C) reads as follows: "The provisions of clause (cc) of sub section (2) and sub section (2B) and any rules made under the said clause (cc) shall have effect, and any such rule made with retrospective effect from any date shall also be deemed to have had effect from that date, notwithstanding any judgment, decree or order of any court, tribunal or other authority and notwithstanding anything contained in the or any other law or any agreement, settlement, award or other instrument for the time being in force.
" Certain consequential changes were also made in section 49 of the Act.
In clause (b) of section 49(2) which has been quoted above, the words "and the terms and conditions of service of such employees or agents" were omitted.
This was necessary because the terms and conditions of service of the employees and the agents with regard to which the Corporation was empowered to make regulations by section 49(1) of the principal Act is now a matter included in clause (cc) of section 48(2) as one of the matters covered by the rule making authority of the Central Government under section 48(1) of the Act.
The ordinance also omits clause (bb) from section 49(2).
Clause (bb) also quoted earlier included the terms and conditions of the service of the persons who had become employees of the Corporation under section 11(1) of The Act.
The terms and conditions of service of such persons are now included in the new clause (cc) of section 48(2).
By notification dated February 2, 1981 the Central Government in exercise of the powers conferred by section 48 of the made the rules called the Life Insurance Corporation of India Class III and IV employees (Bonus and Dearness Allowance) Rules, 1981.
The relevant rule is rule 3 : which has been given retrospective operation from July 1, 1979.
Sub rule (1) of rule 3 provides; "No Class III or Class IV employee 258 of the Corporation shall be entitled to the payment of any profit sharing bonus or any other kind of cash bonus.
" Sub rule (2) of rule 3 states that notwithstanding what sub rule (1) provides every Class III and Class IV employee shall be entitled to a payment in lieu of bonus (a) for the period commencing from July 1, 1979 and ending on March 31, 1980 at the rate of 15 per cent of his salary; and (b) thereafter for every year commencing on the 1st April and ending on the 31st day of March of the following year, at such rate and subject to such conditions as the Central Government may determine having regard to the wage level, the financial circumstances and other relevant factors.
There is a proviso to this sub rule which says that (i) no payment in lieu of bonus shall be made to any employee drawing a salary exceeding Rs. 1600 per month; and (ii) where the salary of an employee exceeds Rs. 750 per month but does not exceed Rs. 1600 per month, the maximum payment to him in lieu of bonus shall be calculated as if his salary were Rs. 750 per month.
For the purposes of this sub rule, "salary" was explained as meaning basic pay, special pay, if any, and dearness allowance.
Sub rule (3) of rule 3 rescinds regulation 58 of the Staff Regulations and all other provisions relating to the payment of bonus to the employee to the extent they are inconsistent with rule 3 Writ petition No. 501 of 1981 under Article 32 of the Constitution was filed in this Court on February 5, 1981 by Shri A.V. Nachane and the All India Life Insurance Corporation Employees Federation.
Bombay, challenging the validity of the ordinance and the aforesaid rules.
Similar writ petitions by other associations of the employees of the Corporation followed In the meantime the ordinance was repealed and replaced on March 17, 1981 by the Life Insurance Corporation (Amendment) Act, 1981 which received the assent of the President of India on the same day.
The writ petitions were suitably amended after the Amendment Act came into force.
The provisions of the Act are similar to those of the ordinance except that the Amendment Act adds a new sub section, sub section (3).
to section 49 of the principal Act.
The new sub section (3) which provides that the regulations made under section 49 shall be laid before each House of Parliament are similar in terms to sub section (3) OF section 48 requiring the rules made by the Central Government under the Act to be laid before each House of Parliament.
Section 4 of the Amendment Act repeals the ordinance but provides that "notwithstanding such repeal, anything done or any action taken under the principal Act as amended by the said 259 Ordinance shall be deemed to have been done or taken under the principal Act as amended by this Act The validity of the Amendment Act and the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981 have been challenged on several grounds.
It was argued that the Act and the rules were violative of Article 14, 19(1) (g) and 21 of the Constitution.
It was further contended that the said Act was invalid on the ground of excessive delegation of legislative functions.
Another contention raised was that in any event sub section (2C) of section 48 was invalid to the extent it permitted retrospective operation to rule 3 to override the order of this Court disposing of D. J. Bahadur 's case.
The challenge based on Article 19(1)(g) and Article 21 does not appear to have any substance.
Apart from anything else, a claim based on the 1974 settlements is certainly not a fundamental right that could be enforced through this Court.
As regards Article 21, the first premise of the argument that the word 'life ' in that Article includes livelihood was considered and rejected in In re: Sant Ram.
The contention that Article 14 is infringed arises on the provision of sub section (2C) of section 48 that any rule made under clause (cc) of sub section (2) of that section touching the terms and conditions of service of the employees of the Corporation shall have effect notwithstanding anything contained in the .
It is true that after rules are made regarding the terms and conditions of service, the right to raise an industrial dispute in respect of matters dealt with by the rules will be taken away and to that extent the provisions of the will cease to be applicable.
It was argued that there was no basis on which the employees of the Corporation could be said to form a separate class for denying to them the protection of the .
The reply on behalf of the Union of India and the Life Insurance Corporation was that the remuneration that was being paid to class III and class IV employees of the Corporation was far in excess of what was paid to similarly situated employees in other establishments in the public sector.
Some material was also furnished to support this claim though they were certainly not conclusive.
The need for amending the as appearing from the preamble of the Amendment Act and the ordinance is as follows: ". for securing the interests of the Life Insurance Corporation of India and its policy holders and 260 to control the cost of administration, it is necessary that revision of the terms and conditions of service applicable to the employees and agents of the Corporation should be undertaken expeditiously.
" Referring to the preamble of the Act the Attorney General appearing for the Union of India and the Corporation submitted that the problem of mounting cost of administration led to the making of in the impugned law.
He added that it was felt that no improvement in the situation was possible by the process of adjudication and a policy decision was taken that in the circumstances the proper course was legislation and that is why the Amendment Act was passed and the impugned rules were framed.
The learned Attorney General submitted that it was for Parliament to decide whether the situation was remediable by adjudication or required legislation.
According to him the as amended and the rules made after amendment placed the Corporation in the same position as other undertakings, that the advantages being enjoyed by the employees of the Corporation which were not available to similarly situated employees of other undertakings have been taken away removing what he described as discrimination in favour of the employees of the Life Insurance Corporation.
We have already said that the material produced on behalf of the Union of India and the Corporation to show that the terms and conditions of service of the employees in several other undertakings in the public sector compared unfavourably to those of the Corporation employees was not conclusive.
But the burden of establishing hostile discrimination was on the petitioners who challenged the Amendment Act and the rules.
It was for them to show that the employees of the Life Insurance Corporation and the employees of the other establishment to whom the provisions of the were applicable were similarly circumstanced to justify the contention that by excluding the employees of the Corporation from the purview of the they had been discriminated against.
There is no material before us on the basis of which we can hold that the Amendment Act of 1981 and the rules made on February 2, 1981 infringe Article 14.
We do not think that on the facts of this Case Express Newspapers (Private) Limited and another vs Union of India,(1) Moti Ram Deka etc.
vs General Manager N.E.F. Railways, Maligaon, Pandu etc.,(2) relied on by the petitioners, have any application.
261 It was contended that sub section (2C) added to section 48 of the by the Amendment Act of 1981 was invalid because of excessive delegation of legislative functions and that if sub section (2C) which is an integral part of the Amendment Act was ultra vires, the entire Amendment Act would be unconstitutional The Amendment Act introduced clause (cc) in section 48(2) authorising the Central Government to make rules in respect of the terms and conditions of service of the employees and agents of the Corporation.
Sub section (2C) of section 48 provides inter alia that rules made under clause (cc) shall have effect notwithstanding anything contained in the or any other law for the time being in force.
The argument is that the rules made under section 48(2) (cc) can virtually repeal the and other laws to the extent they are inconsistent with these rules.
Repealing a law, it was submitted on the authority of In re Delhi Laws Act,(l) was an essential legislative function which had been delegated to the Central Government and that the delegation was therefore excessive.
It is now well settled that it is competent for the legislature to delegate to other authorities the power to frame rules to carry out the purposes of the law made by it (see In re the Delhi Laws Act,(l) Raj Narain Singh vs The Chairman, Patna Administration Committee, Patna and another,(2) and D.S. Garewal vs State of Punjab and another(3) but the essential legislative functions cannot be delegated.
What is essential legislative function has been explained by Mukerjee., J. in the Delhi Laws case as follows: "The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of con duct.
It is open to the legislature to formulate the policy as broadly and with as little or as much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the framework of that policy." In Raj Narain Singh vs The Chairman, Patna Administration Committee, Patna, and another(2) a bench of five Judges of this Court held 262 that an executive authority can be empowered by a statute to modify either existing or future laws but not in any essential feature.
In the instant case section 48(2C) read with section 48(2) (cc) authorises the Central Government to make rules to carry out the purposes of the Act notwithstanding the or any other law.
This means that in respect of the matters covered by the rules the provisions of the or any other law will not be operative.
The argument is that sub section (2C) or any other provision introduced in the principal Act by the Amendment Act does not lay down any legislative policy nor supply any guidelines as to the extent to which the rule making authority would be competent to override the provisions of the or other laws.
Reference was made to Municipal Corporation af Delhi vs Birla Cotton Spinning and Weaving Mills, Delhi and another,(l) Gwalior Rayon Silk Manufacturing (Weaving) Company Limited vs Assistant Commissioner of Sales tax and others,(2) for the proposition that unlimited right of delegation is not inherent in the legislative power itself.
The question therefore is, does the Amendment Act of 1981 lay down no legislative policy or furnish no guidance to indicate the nature and extent of the modifications that the rules will be permitted to make in the existing laws to carry out the purposes of the as amended in 1981 ? Learned Attorney General relied on the decision of this Court in Harishankar Bagla and another vs State of Madhya Pradesh (3) This was a case under the Essential Supplies (Temporary Powers) Act, 1946.
Section 3(1) of that Act says that the Central Government for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
Sub section (2) of section 3 states that without prejudice to the generality of the powers conferred by sub section (1), such an order may provide inter alia for regulating by licences or permits or otherwise the production or manufacture and transport, distribution, disposal, acquisition; use or consumption of any essential commodity.
Section 6 of that Act provides inter alia that any order made under section 3 shall have effect notwithstanding any 263 thing inconsistent therewith contained in any enactment other than A that Act.
In exercise of the powers conferred by section 3 of that Act the Central Government made the Cotton Textiles (Control of Movement) order, 1948.
Clause 3 of the said order requires a person to take a permit from the Textile Commissioner to enable him to transport cotton textiles.
One of the question that arose in Harishankar Bagla 's case was whether section 6 of the Essential Supplies (Temporary Powers) Act permitted rules to be made by the Central Government repealing by implication an existing law, which was an essential legislative function and could not validly be delegated.
Mahajan C.J., speaking for the court said: "Section 6 does not either expressly or by implication repeal any of the provisions of pre existing laws, neither does not abrogate them.
Those laws remain untouched and unaffected so far as the statute book is concerned.
The repeal of a statute means as if the repealed statute was never on the statute book.
It is wiped out from the statute book.
The effect of section 6 certainly is not to repeal any one of those laws or abrogate them.
Its object is simply to by pass them where they are inconsistent with the pro visions of the Essential Supplies (Temporary Powers) Act, 1946, or the orders made thereunder.
In other words, the orders made under section 3 would be operative in regard to the essential commodity covered by the Textile Control order wherever there is repugnancy in this order with the existing laws and to that extent the existing laws with regard to those commodities will not operate.
By passing a certain law does not necessarily amount to repeal or abrogation of that law.
That law remains unrepealed but during the continuance of the order made under section 3 it does not operate in that field for the time being.
" We think the Attorney General was right in his submission that what has been said of section 6 of the Essential Supplies (Temporary Powers) Act should hold good for sub section (2C) of section 48 of the which is similar in terms in so far as it authorises the Central Government to make rules bypassing the existing laws.
Mahajan C.J., also holds that assuming that the rules framed under the Act had the effect of repealing the l l existing laws, the power to repeal is exercised not by the delegate but by the Act itself.
This is what he says on this point: 264 "Conceding, however, for the sake of argument that to the extent of a repugnancy between an order made under section 3 and the provisions of an existing law, to the extent of the repugnancy, the existing law stands repealed by implication, it seems to us that the repeal is not by any Act of the delegate, but the repeal is by the legislative Act of the Parliament itself.
By enacting section 6 Parliament itself has declared that an order made under section 3 shall have effect notwithstanding any inconsistency in this order with any enactment other than this Act.
This is not a declaration made by the delegate but the Legislature itself has declared its will that way in section 6.
The abrogation or the implied repeal is by force of the legislative declaration contained in section 6 and is not by force of the order made by the delegate under section 3.
The power of the delegate is only to make an order under section 3.
Once the delegate has made that order its power is exhausted.
Section 6 then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this Act.
Parliament being supreme, it certainly could make a law abrogating or repealing by implication provisions of any pre existing law and no exception could be taken on the ground of excessive delegation to the Act of the Parliament itself.
" The Attorney General relied strongly on these observations in submitting that it is not really the rules framed by the Central Government in exercise of the delegated authority that override the or any other existing law but the power of abrogating the existing laws is in sub section (2C) of section 48 enacted by Parliament itself.
The observations quoted above from Harishankar Bagla 's case which was decided by a bench of five Judges appear to support the Attorney General 's contention.
The question however remains to be answered, does the as amended in 1981 state any policy to guide the rule making authority ? We have earlier referred to the observations of Mukerjea J., in the Delhi Laws case that the legislature can formulate a policy as broadly and with as little or as much details as it thinks proper and may delegate the rest of the Iegislative work to a subordinate authority who will work out the details within the framework of the policy.
In Harishanker Bagla 's 265 case one of the questions for decision was whether section 3 of the A Essential Supplies (Temporary Powers) Act, 1946 amounts to delegation of legislative power outside the permissible limits.
It was held that legislature had laid down a legislative principle which was "maintaining or increasing supplies of any essential commodity," and "securing their equitable distribution and availability at fair prices.
" That statement was held as offering sufficient guidance to the Central Government in exercising its powers under section 3.
In the instant case the policy as stated in the preamble of the Amendment Act is that "for securing the interests of the Life Insurance Corporation of India and its policy holders and to control the cost of administration, it is necessary that revision of the terms and conditions of service applicable to the employees and agents of the Corporation should be undertaken expeditiously".
The policy stated here is at least as clear as the one held in Harishanker Bagla 's case offering sufficient guidance to the Central Government in exercising its powers under that Acts We have referred to section 48(3) of the which requires that every rule made by the Central Government under this Act shall be laid before each House of Parliament and that if both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be.
This Court in D.S. Grewal vs State of Punjab and another(supra) observed as follows in respect of a similar provision requiring the rules made by the delegated authority to be laid on the table of Parliament and making the rules subject to modification, whether by way of repeal or amendment on a motion made by Parliament: "This makes it perfectly clear that Parliament has in no way abdicated its authority, but is keeping strict vigilance and control over its delegate.
" In view of what has been held in Harishanker Bagla and D. section Grewal, both of which were decided by a larger bench, we do not find it possible to accept the contention that the Act is invalid on the ground of excessive delegation of legislative functions.
It was contended on behalf of the petitioners that in any event the provisions of the Amendment Act of 1981 could not nullify the effect of the writ issued by this Court in D. J. Bahadur 's case.
In our opinion this contention has substance.
Clause (cc) of section 48(2) empowers the Central Government to make rules with regard 266 to the terms and conditions of service of the employees and agents of the Corporation.
Sub section (2A) of section 48 provides that the regulations made under section 49 of the Act and "other provisions ' as in force before the commencement of the Amendment Act with respect to the said terms and conditions are to be deemed as rules made under clause (cc) of section 48(2).
Sub section (2B) of section 48 says that the power to make rules conferred by clause (cc) of sub section (2) shall include the power to add, vary or repeal the regulations and "other provisions" referred to in sub section (2A) with retrospective effect from a date not earlier than June 20, 1979.
Clearly a writ issued by this Court is not a regulation nor can it be described as 'other provision ' which expression possibly includes circulars and administrative directions.
Sub section (2C) of section 48 however provides inter alia that any rules made under clause (cc) with retrospective effect from any date shall be deemed to have had effect from that date notwithstanding any judgment, decree or order of any court, tribunal or other authority.
The order disposing of D. J. Bahadur 's case, made on November 10, 1980 reads: "In view of the opinion expressed by the majority, the appeal is dismissed with costs to the first, second and third respondents, and the Transfer Petition No. 1 of 1979 stands allowed insofar that a writ will issue to the Life Insurance Corporation directing it to give effect to the terms of the settlements of 1974 relating to bonus until superseded by a fresh settlement, an industrial award or relevant legislation.
Costs in respect of the Transfer Petition will be paid to the petitioners by the second respondent.
" The Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981 were made by the Central Government on February 2, 1981 in exercise of the powers conferred by section 48 of the as amended by the Life Insurance Corporation (Amendment) ordinance, 1981.
Rule 3 of these rules relates to the subject of bonus concerning class III and class IV employees of the Corporation.
The substance of this rule has been set out earlier in this judgment.
Clearly rule 3 seeks to supersede the terms of the 1974 settlements relating to bonus.
By virtue of rule 1(2), rule 3 'shall be deemed to have come into force on the Ist day of July, 1979".
The question is, can rule 3 read with rule ](2) nullify the effect of the writ issued by this Court on November 10, 1980 in D.J.Bahadur 's case ? In seems to us rule 3 cannot make the writ 267 issued by this Court nugatory in view of the decision of the majority in Madan Mohan pathak vs Union of India & ors.
etc.(supra) to which reference has been made earlier.
In Madan Mohan Pathak 's case it was contended that since the Calcutta High Court had by its judgment dated May 21, 1976 issued a writ of mandamus directing the Life Insurance Corporation to pay annual cash bonus to class III and class IV employees for the year April 1, 1975 to March 31, 1976 as provided by the 1974 settlements and this judgment had become final, the Life Insurance Corporation was bound to obey the writ of mandamus and pay as ordered by the High Court.
The court was dealing with the Life Insurance Corporation ( Modification of Settlement) Act, 1976 in that case.
Section 3 of that Act provided that the terms of the settlements in so far as they related to the payment of annual cash bonus to class III and class IV employees would not have any force or effect and be deemed not to have had any force or effect from April 1, 1975 Bhagwati J., speaking also for Iyer and Desai., JJ.
Observed: "Here, the judgment given by the Calcutta High Court, which is relied upon by the petitioners, is not a mere declaratory judgment holding an impost or tax to be invalid.
so that a validation statute can remove the defect pointed out by the judgment amending the law with retrospective effect and validate such impost or tax.
But it is a judgment giving effect to the right of the petitioners to annual cash bonus under the Settlement by issuing a writ of Mandamus directing the Life Insurance Corporation to pay the amount of such bonus.
If by reason of retrospective alteration of the factual or legal situation, the judgment is rendered erroneous, the remedy may be by way of appeal or review, but so long as the judgment stands, it cannot be disregarded or ignored and it must be obeyed by the Life Insurance Corporation.
We are, therefore, of the view that in any event! irrespective of whether the impugned Act is constitutionally valid or not, the Life Insurance Corporation is bound to obey the writ of Mandamus issued by the Calcutta High Court .
" Beg.
C.J. who delivered a separate but concurring judgment, after pointing out the "hurdle in the way" of the petitioner 's claim based on Article 19(1)(f) of the Constitution, which was that the Act Life Insurance Corporation (Modification of Settlement) Act, 1976) was 268 passed during the emergency, observed: "The object of the Act was, in effect, to take away the force of the judgment of the Calcutta High Court recognising the settlements in favour of Class III and Class IV employees of the Corporation.
Rights under that judgement could be said to arise independently of Article 19 of the Constitution.
I find myself in complete agreement with my learned brother Bhagwati that to give effect to the judgement of the Calcutta High Court is not the same thing as enforcing a right under Article 19 of the Constitution.
It may be that a right under Article 19 of the Constitution becomes linked up with the enforceability of the judgment.
Nevertheless, the two could be viewed as separable sets of rights.
If the right conferred by the judgment independently is sought to be set aside, section 3 of the Act, would in my opinion, be invalid for trenching upon the judicial power.
I may, however, observe that even though the real object of the Act may be to set aside the result of the mandamus issued by the Calcutta High Court, yet, the section does not mention this object at all Probably this was so because the jurisdiction of a High Court and the effectiveness of its orders derived their force from Article 226 of the Constitution itself.
These could not be touched by an ordinary act of Parliament.
Even if section 3 of the Act seeks to take away the basis of the judgment of the Calcutta High Court, without mentioning it, by enacting what may appear to be a law, yet, I think that where the rights of the citizen against the State are concerned, we should adopt an interpretation which upholds those rights.
Therefore, according to the interpretation r prefer to adopt the rights which had passed into those embodied in a judgment and became the basis of a Mandamus from the High Court could not be taken away in this indirect fashion. ' The Attorney General referred to a number of earlier decisions of this Court wanting us to infer that the observations quoted above from the judgment in Madan Mohan Pathak 's case did not state the correct law hl view of the said decisions.
But these observations expressed the majority view of a bench of seven judges bearing 269 directly on the point that arises for decision in the instant case and A are binding on us.
We therefore hold that rule 3 operating retrospectively cannot nullify the effect of the writ issued in D. J. Bahadur 's case which directed the Life Insurance Corporation to give effect to the terms of the 1974 settlements relating to bonus until superseded by a fresh settlement, an industrial award or relevant legislation.
The Life insurance Corporation (Amendment) Act, 1981 and the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981 are relevant legislation.
However in view of the decision in Madan Mohan Pathak 's case, these rules, in so far as they seek to abrogate the terms of the 1974 settlements relating to bonus, can operate only prospectively, that is, from February 2, 1981, the date of publication of the rules.
The petitions are allowed to this extent only.
In the circumstances of the case we make no order as to costs.
CHINNAPPA REDDY, J.
I have had the advantage of perusing the opinion of my brother Gupta J., I agree with his conclusion that the Life Insurance Corporation (Amendment) Act I of 1981 can operate but prospectively in so far as it seeks to nullify the terms of the 1974 settlements in regard to the payment of bonus.
On some of the other questions I have certain reservations.
I do not, however, desire to express any opinion on those questions as my brother Pathak J., has indicated that he is inclined to agree with Gupta J., on those questions.
Perhaps I will do well to add a few words of my own on the question of retrospectivity.
I am spared the necessity of stating the facts as those that are necessary have been stated by my brother Gupta J.
The 1974 settlements provided, among various other matters, for the payment of annual cash bonus (not a profit sharing bonus) to their Class Ill and Class IV employees at the rate of 15 per cent of the annual salary.
The settlements were to be operative from 1st April 1973 to 31st March 1977.
That the settlements were to be operative from 1st April 1973 to 31st March 1977 did not mean that the settlements would cease to be effective peremptorily from 1 4 1977 and, therefore, the annual cash bonus stipulated under the settlements would cease to be payable from that date onwards.
The settlements would continue to be binding even after 31 3.1977 and would not be liable to be terminated by the issuance of a unilateral notice by the employer purporting to terminate the settlements.
The settlements would cease to be effective only when they were replaced 270 by 'a fresh settlement, an industrial award or relevant legislation '.
This is the law and this was what the law was pronounced to be in Life Insurance Corporation of India vs D. J Bahadur(1) on a consideration of the relevant provisions and precedents.
The attempt made to supersede the settlements, in so far as they related to the payment of bonus, by enacting the Life Insurance Corporation (Modification of Settlement) Act 1976 failed, firstly because the Act was held to violate the provisions of Article 31(2) of the Constitution and secondly because the Act could not have retrospective effect so as to absolve the Life Insurance Corporation from obeying the writ of mandamus issued by the Calcutta High Court, which had become final and binding on the parties.
This was the decision of this Court in Madan Mohan Pathak vs Union of India(a), all the seven judges who constituted the Bench agreeing that the Act violated the provisions of Article 31(21 and four out of the seven judges, namely, Beg C. J., Bhagwati, Krishna Iyer and Desai JJ., taking the view that the Act did not have the effect of nullifying the writ of mandamus issued by the Calcutta High Court and the other three Judges, Chandrachud, Fazal Ali and Shinghal JJ, preferring not to express any view on that question.
The second attempt to nullify the 1974 settlements in regard to payment of bonus, by issuing notices under section 19(2) and Section 9 A of the and by amending the Standardization order and the Staff Regulations, was frustrated by the judgment of this Court in Life Insurance Corporation of India vs D.A. Bandar, the Court taking the view that the two settlements could only be superseded by 'a fresh settlement, an industrial award or relevant legislation '.
In this case, the Court issued a writ to the Life Insurance Corporation "to give effect to the terms of the settlements of 1974 relating to bonus until superseded by a fresh settlement, an industrial award or relevant legislation".
The effect of the two judgments in Madan Mohan Pathak 's case and D. J, Bahadhur 's case was clear: the settlements of 1974, in so far as they related to bonus could only be superseded by a fresh settlement.
an industrial award or relevant legislation.
But any such supersession could only have future effect, but not retrospective effect so as to dissentient the Class III and Class IV employees of the Life Insurance Corporation from receiving the cash bonus which had been earned by them, day by 271 day and which the Life Insurance Corporation of India was under an obligation to pay in terms of the writ issued in D. J. Bahadur 's case.
The present attempt made by the 1981 amending Act and the rules thereunder to scuttle the payment of bonus with effect from a date anterior to the date of the enactment must, therefore, fail.
The employees are entitled to be paid the bonus earned by them before the date of publication of the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 19 81.
N.V.K. Petitions partly allowed.

summary:
The Life Insurance Corporation was constituted under the , to provide for the nationalisation of life insurance business in India by transferring all such business to the Life Insurance Corporation of India.
Under Section 11(1) of the Act the services of the employees of the insurers whose business had vested in the Corporation were transferred to the Corporation.
Section 49(1 ) empowered the Life Insurance Corporation of India to make regulations for the purpose of giving effect to the provisions of the Act.
Two settlements were reached on January 24, 1974 and February 6, 1974 between the Life Insurance Corporation and its Class III and Class IV employees.
These settlements covered a large ground including the claim for bonus.
These were settlements under section 18 read with section 2(p) of the .
Under clause 12 of the settlements, the settlements were to be effective from 1st April, 1973 for a period of four years that is, from 1st April, 1973 to 31st March, 1977.
In 1975, the Payment of Bonus (Amendment) ordinance was promulgated which was subsequently replaced by the Payment of Bonus (Amendment) Act 1976.
The Central Government decided that the employees of establishments not covered by the Payment of Bonus Act would not be liable 247 to get bonus and ex gratia payment in lieu of bonus.
Payment of Bonus for the A year 1975 1976 to the employees of the Corporation was stopped under instructions from the Central Government.
A writ petition filed by the employees of the Corporation in the Calcutta High Court was allowed, and the Corporation was directed to act in accordance with the terms of the settlement.
In Madan Mohan Pathak vs Union of India and Ors.
; , the Supreme Court held that the 1976 Act offended Article 31(2) of the Constitution and was void, and directed the Union of India and the Life Insurance Corporation to forbear from implementing or enforcing the provisions of the 1976 Act and to pay annual cash bonus for the years 1st April, 1975 to 31st March, 1976 and 1st April 1976 to 31st March, 1977, to Class III and Class IV employees in accordance with the settlements.
On March 31, 1978, the Corporation issued a notice under section 19(2) of the declaring its intention to terminate the settlements on the expiry of two months from the date of notice.
On the same day another notice was also issued by the Corporation under section 9A of the stating that it proposed to effect a change in the conditions of service applicable to the workmen.
These notices were followed by a notification issued by the Corporation under section 49 of the on May 26, 1978 substituting 2 new regulation for the existing regulation No. 58 of the Staff Regulations.
Simultaneously the Life Insurance Corporation (Alteration of Remuneration and other Terms and Conditions of Service of Employees) order, 1957, was amended by the Central Government, substituting a new clause (9) for the original clause concerning bonus, to take effect from June 1, 1978, to provide that the employees of the Corporation shall not be entitled to profit sharing bonus.
The validity of the aforesaid two notices and the notification issued for the purpose of nullifying any further claim to annual cash bonus was challenged by the workmen in a writ petition in the Allahabad High Court.
The High Court allowed the writ petition.
In the appeal by the Corporation to this Court the Life Insurance Corporation of India vs D.J. Bahadur ; and the writ petition filed in the Calcutta High Court transferred to this Court, Chandrasekher Bose and others vs Union of India and Ors.
; , a writ was issued to the Corporation directing it "to give effect to the terms of the settlements of 1974 relating to bonus until superseded by a fresh settlement, an industrial award or relevant legislation".
On January 31, 1981, the Life Insurance Corporation (Amendment) ordinance, 1981 was promulgated.
A new sub clause(c) was inserted with retrospective effect from June 20, 1979 in sub section (2) of section 48 of the Principal Act.
Three new sub sections (2A), (2B) and (2C) were also added to section 48.
Sub section (2A) provided that the regulations and other provisions with respect to the terms and conditions of service of the employees and agents of the Corporation at The commencement of the ordinance shall be deemed to be rules made under clause (cc) of sub section (2) .
Sub section ! (2B) provided that the power to make rules under clause (cc) of sub section (2) shall include (i) the power to give retrospective effect to such rules, and (ii) the power to amend by way of addition, variation or repeal the regulations and other provisions referred to in sub section (2A) with retrospective effect, but not from a date earlier than 248 June 20. 1979.
Sub section (2C) provided that provisions of clause (cc) of sub section (2) and sub section (2B) and any rule made under clause (cc) shall have effect, notwithstanding any judgment, decree, or order of any court, tribunal or other authority, the , any agreement, settlement, award or other instrument.
The Central Government by a notification dated February 2, 1981 made the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules 1981.
Rule 3 which had been given retrospective operation with effect from July 1, 1979 provided by sub rule (1) that: "No Class Ill or Class IV employee of the Corporation shall be entitled to the payment of any profit sharing bonus or any other kind of cash bonus", and sub rule(2) of rule 3 provided that notwithstanding sub rule (1), every Class 111 and Class IV employee shall be entitled to a payment in lieu of bonus (a) for the period commencing from July 1, 1979 and ending on March 31, 1980 at the rate of IS per cent of his salary, and (b) thereafter for every year commencing from 1st April and ending on the 31st day of the March of the following year at such rate and subject to conditions which the Central Government may determine.
Sub rule (3) of rule 3 rescinded regulation 58 of the Staff Regulations and all other provisions relating to the payment of bonus to the extent they were inconsistent with rule 3.
The petitioners in their writ petitions to this Court challenged the validity of the Life Insurance Corporation (Amendment) ordinance, 1981, the Life Insurance Corporation (Amendment) Act, 1981 and the Life Insurance Corporation of India.
Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981 contending that: (1) the Act and the Rules were violative of Articles 14, 19(1)(g) and 21(2) of the Constitution: (2) the Act was invalid on the ground of excessive delegation of legislative functions; (3) sub section (2C) of section 48 was invalid to the extent it permitted retrospective operation to rule 3 to over ride the order of this Court in D.J. Bahadur 's case; (4) Article 14 was infringed because the provisions of sub section (2C) of section 48 provided that any rule under Clause (cc) of sub section (2) of that section touching the terms and conditions of service of the employees of the Corporation shall have effect notwithstanding anything contained in the ; (S) sub section (2C) added to section 48 of the by the Amendment Act of 1981 was invalid because of excessive delegation of legislative functions and if sub section (2C) which was an integral part of the Amendment Act was ultra vires, the entire Amendment Act would be unconstitutional.
and (6) the provisions of the Amendment Act of 1981 could not nullify the effect of the writ issued by this Court in D.J. Bahadur 's case.
The writ petitions were contested on behalf of the Union of India and the Lire Insurance Corporation by contending that remuneration that was being paid to Class III and Class IV employees of the Corporation was far in excess of what was paid tn similarly situated employees in other establishments in the public sector, and that the problem of the mounting cost of administration led to the making of the ordinance and the Amendment Act As no improvement in the situation was possible by the process of adjudication, a policy decision was taken that in the circumstances the proper course was legislation and that was why the Amendment Act was passed and the Rules framed.
The as amended and the Rules made after amendment placed the Corporation 249 in the same position as other undertakings, that the advantages being enjoyed by the employees of the Corporation which were not available to similarly situated employees of other undertakings had been taken away removing the discrimination in favour of the employees of the Life Insurance Corporation.
Repealing a law was an essential legislative function which had been delegated to the Central Government and the delegation was not excessive.
It is not the Rules framed by the Central Government in exercise of the delegated authority that over ride the or any other existing law, but the power of abrogating the existing law is in sub section (2C) of section 48 which was enacted by Parliament itself.
Allowing the writ petitions in part ^ HELD: [By the Court] The Life Insurance Corporation (Amendment) Act 1981 can operate but prospectively in so far as it seeks to nullify the terms of the 1974 settlements in regard to payment of bonus.
[269 A C, 271 A B] [Per Gupta & Pathak, JJ] 1.
(i) Rule 3 operating retrospectively cannot nullify the effect of the writ issued in D. J. Bahadur 's case which directed the Life Insurance Corporation to give effect to the terms of the 1974 settlements relating to bonus until superseded by a fresh settlement, an Industrial award or relevant legislation.
[269 A] (ii) The Life Insurance Corporation (Amendment) Act 1981 and the Life Insurance Corporation of India Class 111 and Class IV employees (Bonus and Dearness Allowance) Rules, 1981 are relevant legislation.
In view of the decision in Madan Mohan Pathak 's case these rules in so far as they seek to abrogate the terms of 1974 settlements relating to bonus, can operate only prospectively, that is.
from February 2, 1981 the date of publication of the Rules.
[269 B C] (iii) A claim based on the 1974 settlements is not a fundamental right that could be enforced through this Court.
[259 C] 2.
The burden of establishing hostile discrimination was on the petitioners who challenged the Amendment Act and the rules.
It was for them to show that the employees of the Life Insurance Corporation and the employees of the other establishments to whom the provisions of the were applicable were similarly circumstanced to justify the contention that by excluding the employees of the Corporation from the purview of the they had been discriminated against.
There is no material on the basis of which it can be held that the Amendment Act of 1981 and the rules made on February 2, 1981 infringe Article 14.
[260 F G] Express Newspapers (Private) Limited and another vs Union of India, and Moti Ram Deka etc.
vs General Manager, N.E.F. Railways, Maligaon.
Pandu etc.
; , held inapplicable.
In the instant case section 48(2C) read with section 48(2) (cc) authorises the Central Government to make rules to carry out the purposes of the Act notwithstanding the or any other law.
This means that in 250 respect of the matters covered by the rules, the provisions of the or any other law will not be operative.
[262 A B] 3.
The policy as stated in the preamble of the Amendment Act is that "for securing the interest of the Life Insurance Corporation of India and policyholders and to control the cost of administration, it is necessary that revision of the terms and conditions of service applicable to the employees and the agents 13 of the Corporation should be undertaken expeditiously.
" The policy offers sufficient guidance to the Central Government in exercising its powers under that Act.
[265 B C] 4 Clause (cc) of section 48(2) empowers the Central Government to make rules with regard to the terms and conditions of service of the employees and agents of the Corporation.
Sub section 2(B) of section 48 says that the power to make rules conferred by clause (cc) of sub section (2) shall include the power to add, vary or repeal the regulations and other "provisions" referred to in subsection (2A) with retrospective effect from a date not earlier than June 20, 1979.
A writ issued by this Court is not a regulation nor can it be described as 'other provisions ' which expression includes circulars and administrative directions.
Sub section (2C) of section 48 however provided that any rule made in clause (CC) with retrospective effect from any date shall be deemed to have had effect from that date notwithstanding any judgment, decree or order of any Court, Tribunal or other authority.
Rule 3 of the rules relating to the subject of bonus cannot make the writ issued by this Court nugatory in view of the decision of this Court in Madan Mohan Pathak vs Union of India.
[265 H 266; 267 A] 5.
It is not really the rules framed by the Central Government that over ride the or any other existing law, but the power of abrogating the existing laws is in sub section (2C) of section 48 enacted by Parliament itself.
[264 F] Hari Shankar Bagla and another vs State of Madhya Pradesh, , referred to.
[Per Chinnappa Reddy J.] The effect of the two judgments in Madan Mohan Pathak 's case and D. J. Bahadur 's case was clear: the settlements of 1974, in so far as they related to bonus, could only be superseded by a fresh settlement, an industrial award or relevant legislation.
But any such supersession could only have future effect, but not retrospective effect so as to disentitle the Class III and Class IV employees of Life Insurance Corporation from receiving the cash bonus which had been earned by them, day by day, and which the Life Insurance Corporation of India was under an obligation to pay in terms of the writ issued in D. J. Bahadur 's case.
The present attempt made by the 1981 amending Act and the rules thereunder to scuttle the payment of bonus with effect from a date anterior to the date of the enactment must, therefore, fail.
The employees are entitled to be paid the bonus earned by them before the date of publication of the Life Insurance Corporation of India Class III and Class IV employees (Bonus and Dearness Allowance) Rules, 1981.
[270H 271 B] 251


judgement:
ition No. 1337 of 1979.
(Under article 32 of the Constitution of India).
V.M. Tarkunde, P.H. Parekh and Hemant Sharma for the Petitioner.
Abdul Khader, Girish Chandra and Miss A. Subhashini for the Respondents.
The Order of the Court was delivered by KOSHAL, J. The short question which falls for determination in this petition under article 32 of the Constitution of India praying for the issuance of appropriate writs quashing the letter dated 16th of March, 1979, by which the representation made by the petitioner against the seniority assigned to him in the cadre of Income tax Officers, Class I was rejected and he was informed that the seniority list forming an appendix to Annexure 'l ' had been correctly framed in accordance with the rules then in force.
The answer to the question posed by the petition has to be answered with reference to Rules 4, 6 and 8 of the Released Emergency Commissioned Officers & Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1971 (hereinafter called the Rules).
The relevant part of Rule 4(1) reads thus: 4(1) Twenty percent of the vacancies in the Indian Foreign Service, and 25 percent of the vacancies in all the Central Civil Services and posts, Class I, to which these rules apply. . . . 40 shall be reserved for being filled by the Emergency Commissioned Officers and the Short Service Commissioned Officers of the Armed Forces of the Union who were commissioned after the 1st November, 1962 but before the 10th January, 1968, and who (i) . . . . . . . . (ii) in the case of Short Service Commissioned Officers are released on the expiry of the tenure of their service; or (iii) . . . . . . . .
Rule 6 in so far as it is relevant for our purpose provides: 6(1) . . . . . . . . . (2) Seniority inter se of candidates who are appointed against the vacancies reserved under sub rule (1) of rule 4 and allotted to a particular year shall be determined according to the merit list prepared by the Commission on the basis of the results of their performance at the examination or test or interview.
(3) All candidates who have been appointed against the vacancies reserved under sub rule (1) of rule 4 shall rank below the candidates who were appointed against unreserved vacancies in the services of posts through the competitive examination or test or interview conducted by the Commission corresponding to the year to which the former candidates are allotted.
It is not disputed that the petitioner is an officer who is entitled to the benefit of reservation under the above abstracted portion of Rule 4(1) and to have his seniority accordance with sub rule (3) of Rule 6.
As we read the sub rule last mentioned we do not find it to be ambiguous in any manner whatsoever.
It lays down in clear terms that the officers appointed against vacancies reserved under sub rule (1) of Rule 4 shall rank below candidates who were appointed against unreserved vacancies in the services concerned through a competitive examination, etc.
Respondents Nos. 2 to 14 who have been placed in the impugned seniority list above the petitioner were appointed to the cadre of Income tax Officers, Class I through a competitive examination or test as envisaged by sub rule(3) of Rule 6.
Now if they were appointed against unreserved vacancies, they are entitled to rank above the petitioner but not otherwise.
41 It is conceded before us that respondents Nos. 2 to 14 have been appointed against vacancies reserved for Scheduled Castes and Scheduled Tribes.
Clearly, therefore, they must rank below the petitioner inasmuch as it cannot be said with any plausibility that they were appointed against unreserved vacancies.
Mr. Abdul Khader appearing for the Union of India has contested the interpretation just above placed by us on sub rule (3) of Rule 6.
According to him that interpretation makes the sub rule retrospective in operation, which it is not.
We agree that the sub rule is intended to be prospective only and that the above interpretation would be operative only after the date on which the sub rule was promulgated and not before that.
But then that means that every seniority list prepared after the date of the promulgation of the sub rule would be governed by it.
Similarly, every promotion made and every question relating to seniority cropping up after the date of the promulgation of the sub rule (which is 28th August, 1971) shall be determined according to that sub rule.
No question of retrospectivity of the sub rule is thus involved.
Of course, the inter se seniority of officers of the cadre prevailing upto 28th August, 1971 had to be determined under the rules as they existed before that date and any promotions made earlier to that date would continue to be good if made in accordance with those rules.
However, the position changed with the promulgation of the Rules and any promotion made thereafter has to conform to them.
Faced with the above situation Mr. Abdul Khader argued that the word, 'unreserved ' in sub rule (3) of Rule 6 would embrace the vacancies reserved for candidates belonging to the Scheduled Castes and Scheduled Tribes who had joined the cadre through open competition, etc., because the sub rule meant to take within its ambit all such persons who had been recruited in that manner.
The logic of the argument is not clear to us because it makes the whole sub rule meaningless.
If the argument were to be accepted, the use of the word 'unreserved ' would be wholly uncalled for and we just cannot hold that the word is redundant, forms part as it does of subordinate legislation.
The word 'unreserved ' can obviously not be equated with its antonym, that is, 'reserved ', and has to be applied only to vacancies which do not fall within the reserved categories.
Mr. Abdul Khader took another point and that was to the effect that the rules of the service in question had been amended 42 earlier to 1971 so as to place candidates covered by Rule 4(1) below those who had been appointed to reserved vacancies through a competitive examination.
That may well have been so but then that makes no difference to the interpretation which is given above to sub rule (3) of Rule 6.
Rule 8 of the Rules declares in no uncertain terms that all rules regulating the recruitment of persons to Central Civil Services and Posts, Class I, to which the Rules apply, shall be deemed to have been amended to the extent provided for in the Rules.
If the rules regulating the seniority of the petitioner and respondents Nos. 2 to 14 were so amended earlier to 1971 as to assign to the petitioner seniority below respondents Nos. 2 to 14, the situation would be wholly irrelevant to the present dispute because after the amendment brought about Rule 8 of the Rules, the members of the service to which the contested parties belong, have to be governed by the amendment of which sub rule (3) of Rule 6 forms a part.
This is the inescapable consequence flowing from Rule 8 of the Rules.
We may take note here of the only other argument raised by Mr. Abdul Khader and that is that Rule 8 regulates only the recruitment of persons to Central Civil Services and Posts, Class I, and not to their conditions of service.
We do not find any substance in this argument either.
The word 'recruitment ' is comprehensive enough to embrace the content of all the rules preceding Rule 8 including the fitment of candidates recruited to the service vis a vis each other.
In the result, we accept the petition, quash the seniority list abovementioned as well as the letter by which the representation there against made by the petitioner was rejected and direct respondent No. 1 to re frame the seniority list assigning the petitioner seniority in accordance with law as explained above.
There will be no order as to costs.
N. K. A. Petition allowed.

dataset_name: IN-Abs

summary:
Respondents Nos. 2 to 14 were appointed to the cadre of Income tax Officers, Class I, against vacancies reserved for Scheduled Caste and Schedules Tribes, as a result of a competitive examination or test as envisaged by sub rule (3) of Rule 6.
The Petitioner was similarly appointed to the same cadre but against a vacancy reserved under sub rule (1) of Rule 4 for certain officers of the Armed Forces of the Union.
He was placed in the impugned seniority list below respondents Nos. 2 to 14.
He made a representation against the seniority assigned to him on the ground that under sub rule (3) of Rule 6 he was entitled to rank immediately below candidates appointed against unreserved vacancies.
The representation was rejected by a letter dated 16th March, 1979.
The petitioner filed a petition under article 32 of the Constitution of India seeking the issuance of a writ quashing that letter.
At the hearing it was not disputed that the petitioner was entitled to the benefit of reservation sub rule (1) of Rule 4 and to have his seniority determined in accordance with sub rule (3) of Rule 6.
However, it was contended on behalf of the respondents Nos. 2 to 14, inter alia, that the rules of the service had been amended earlier to 1971, so as to place candidates covered by sub rule (1) of Rule 4 below those who had been appointed against reserved vacancies through a competitive examination.
Accepting the petition, it was ^ HELD: (1) Sub rule (3) of Rule 6 is not ambiguous in any manner whatsoever and lays down in clear terms that the officers appointed against vacancies reserved under sub rule (1) of Rule 4 shall rank below candidates who were appointed against unreserved vacancies in the Services concerned through a competitive examination, etc.
[40 F G] 2.
Respondents Nos. 2 to 14 have been appointed against vacancies reserved for Scheduled Castes and Schedule Tribes.
Clearly therefore, they must rank below the petitioner inasmuch as it cannot be said with any plausibility that they were appointed against unreserved vacancies.
[41 A B] 3.
The argument that the rules of the service in question had been amended to 1971, so as to place candidates governed by Rule 4(1) below those who had been appointed to reserved vacancies through a competitive examination has no substance and makes no difference to the interpretation which is given above to 39 sub rule (3) of Rule 6, Rule 8 of the Rules declares in no uncertain terms that all rules regulating the recruitment of persons to Central Civil Services and Posts, Class I, to which the Rules apply, shall be deemed to have been amended to the extent provided for in the Rules.
Although the rules regulating the seniority of the petitioners and respondents Nos. 2 to 14 were so amended earlier to 1971 as to assign to the petitioner seniority below respondents Nos 2 to 14, the situation is wholly irrelevant to the present dispute because after the amendment brought about by Rule 8 of the Rules, the members of the service to which the contenting parties belong, have to be governed by the later amendment, of which sub rule (3) of Rule 6 forms a part.
This is the inescapable consequence flowing from Rule 8 of the Rules.
[41 G H, 42 A D] 4.
The word 'recruitment ' is comprehensive enough to embrace the content of all the rules proceeding Rule 8 including the fitment of candidates recruited to the service vis a vis each other.
[42 D E]


judgement:
Criminal Appeal No. 5 of 1951.
Appeal from the Judgment and Order dated 18th August, '1950, of the High Court of Judicature for Rajasthan at Jaipur (Nawal Kishore C.J. and Dave J.) in Criminal Reference No. 229 of Sambat 2005.
H. J. Umrigar for the appellant.
G. C. Mathur for the respondent.
111 1951.
September 24.
The Judgment of the Court was delivered by Bose J.
The appellant was convicted under section 7 of the Jaipur Opium Act and fined Rs. 50.
The case as such is trivial but the High Court of Rajasthan in Jaipur granted special leave to appeal as an important point touching the vires of the Act arises.
We will state the facts chronolog ically.
It is conceded that the Rulers of Jaipur had full powers of government including those of legislation.
On the 7th of September, 1922, the late Maharaja died and at the time of his death his successor, the present Maharaja, was a minor.
Accordingly, the Crown Representative appointed a Council of Ministers to look after the government and administration of the State during the Maharaja 's minority On the 11th of December, 1923, this Council passed a Resolution which purported to enact the Jaipur Opium Act, and the only question is whether the mere passing of the Resolution without promulgation or publication in the Ga zette, or other means to make the Act known to the public, was sufficient to make it law.
We are of opinion that it was not.
But before giving our reasons for so holding, we will refer to some further facts.
About the same time (that is to say, in the year 1923 we have not been given the exact date) the same Council enacted the Jaipur Laws Act, 1923.
Section 3(b) of this Act provided as follows : "3.
Subject to the prerogative of the Ruler the law to be administered by the Court of Jaipur State shall be as follows: (b) All the regulations now in force within the said territories, and the enactments and regulations that may hereafter be passed from time to time by the State and published in the Official Gazette.
" This law came into force on the 1st of November, 1924.
It is admitted that the Jaipur Opium Act was never published in the Gazette either before or after the 1st of November, 1924.
But it is contended that was 112 not necessary because it was a "regulation" already in force on that date.
The only other fact of consequence is that on the 19th of May, 1938, section 1 of the Jaipur Opium Act was amended by the addition of sub section (c) which ran as follows: "(c) It shall come into force from the 1st of September, 1924.
" The offence for which the appellant was convicted took place on the 8th of October, 1948.
Dealing first with the last of these Acts, namely the one of the 19th of May, 1938, we can put that on one side at once because, unless the Opium Act was valid when made, the mere addition of a clause fourteen years later stating that it shall come into force at a date fourteen years earlier would be useless.
In the year 1938 there was a law which required all enactments after the 1st of November, 1924, to be published in the Gazette.
Therefore, if the Opium Act was not a valid Act at that date, it could not be validated by the publication of only one section of it in the Gazette fourteen years later.
The Jaipur Laws Act of 1923 required the whole of the enactment to be published; therefore publi cation of only one section would not validate it if it was not already valid.
We need not consider whether a law could be made retroactive so as to take effect from 1924 by publi cation in 1938, though that point was argued.
That throws us back to the position in 1923 and raises the question whether a law could be brought into operation by a mere resolution of the Jaipur Council.
We do not know what laws were operative in Jaipur re garding the coming into force of an enactment in that State.
We were not shown any, nor was our attention drawn to any custom which could be said to govern the matter.
In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge.
Natural justice requires that 113 before a law can become operative it must be promulgated or published.
It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence.
The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man.
It shocks his conscience.
In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way.
Promulgation or publica tion of some reasonable sort is essential.
In England the rule is that Acts of Parliament become law from the first moment of the day on which they receive the Royal assent, but Royal Proclamations only when actually published in the official Gazette.
See footnote (a) to paragraph 776.
page 601, of Halsbury 's Laws of England (Hailsham edition), Volume VI and 32 Halsbury 's Laws of England (Hailsham edition), page 150 note (r).
But even there it was necessary to enact a special Act of Parliament to enable such proclamations to become law by publication in the Gazette though a Royal Proclamation is the highest kind of law, other than an Act of Parliament, known to the Brit ish Constitution; and even the publication in the London Gazette will not make the proclamation valid in Scotland nor will publication in the Edinburgh Gazette make it valid for England.
It is clear therefore that the mere enacting or signing of a Royal Proclamation is not enough.
There must be publication before it can become law, and in England the nature of the publication has to be prescribed by an Act of Parliament.
The Act of Parliament regulating this matter is the Crown Office Act of 1877 ' (40 and 41 Victoria Ch. 41).
That Act, in addition to making provision for publication in certain official Gazettes, also provides for the 114 making of rules by Order in Council for the best means of making Proclamations known to the public.
The British Par liament has therefore insisted in the Crown Office Act that not only must there be publication in the Gazette but in addition there must be other modes of publication,if an Order in Council so directs, so that the people at large may know what these special laws are.
The Crown Office Act directs His Majesty in Council carefully to consider the best mode of making these laws known to the public and empowers that body to draw up rules for the same and embody them in an Order in Council.
We take it that if these Proc lamations are not published strictly in accordance with the rules so drawn up, they will not be valid law.
The principle underlying this question has been judi cially considered in England.
For example, on a somewhat lower plane, it was held in Johnson vs Sargant (1) that an Order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917 does not become operative until it is made known to the public, and the difference between an Order of that kind and an Act of the British Parliament is Stressed.
The difference is obvious.
Acts of the British Parliament are publicly enacted.
The debates are open to the public and the Acts are passed by the accredited representa tives of the people who in theory can be trusted to see that their constituents know what has been done.
They also re ceive wide publicity in papers and, now, over the wireless.
Not so Royal Proclamations and Orders of a Food Controller and so forth.
There must therefore be promulgation and publication in their cases.
The mode of publication can vary; what is a good method in one country may not neces sarily be the best in another.
But reasonable publication of some sort there must be.
Nor is the principle peculiar to England.
It was ap plied to France by the Code Napoleon, the first Article of which states that the laws are executory "by virtue of the promulgation thereof" and that they shall come into effect "from the moment at which their (1) ; 115 promulgation can have been known." So also it has been applied in India in, for instance, matters arising under Rule 119 of the Defence of India Rules.
See, for example, Crown vs Manghumal Tekuml(1), Shakoor vs King Emperor (2) and Babulal vs King Emperor (3).
It is true none of these cases is analogous to the one before us but they are only particular applications of a deeper rule which is rounded on natural justice.
The Council of Ministers which passed the Jaipur Opium Act was not a sovereign body nor did it function of its own right.
It was brought into being by the Crown Representa tive, and the Jaipur Gazette Notification dated the 11th August, 1923, defined and limited its powers.
We are enti tled therefore to import into this matter consideration of the principles and notions of natural justice which underlie the British Constitution, for it is inconceivable that a representative of His Britannic Majesty could have contem plated the creation of a body which could wield powers so abhorrent to the fundamental principles of natural justice which all freedom loving peoples share.
We hold that, in the absence of some specific law or custom to the contrary, a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation would not be sufficient to make a law operative.
It is necessary to consider another point.
It was urged that section 3(b) of the Jaipur Laws Act of 1923 saved all regulations then in force from the necessity of publication in the Gazette.
That may be so, but the Act only saved laws which were valid at the time and not resolutions which had never acquired the force of law.
The appeal succeeds.
The conviction and sentence are set aside.
The fine, if paid, will be refunded.
Appeal allowed.
Agent for the re spondent: P.A. Mehta.
(1) I.L.R. 1944 Karachi Nag. 762.

summary:
Natural justice requires that before a law can become operative it must be promulgated or published.
It must be broadcast in some recognisable way so that all men may know what it is; or at least there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence.
The Council of Ministers appointed by the Crown Repre sentative for the government and administration of the Jaipur State passed a Resolution in 1923 purporting to enact a law called the Jaipur Opium Act, but this law was neither promulgated or published in the Gazette nor made known to the public.
The Jaipur Laws Act, 1923, which was also passed by the Council and which came into force on the 1st November, 1924, provided by section 3 (b) that the law to be administered by the court of the Jaipur State shall be. " (b) all the regulations now in force within the said terri tories and the enactments and regulations that may hereafter be passed from time to.
time by the State and published in the Official Gazette.
" In 1938 the Jaipur Opium Act was amended by adding a clause to the effect that "it shall come into force from the 1st of September, 1924.
" Held, that the mere passing of the Resolution of the Council without further publication or promulgation of the law was not sufficient to make the law operative and the Jaipur Opium Act was not therefore a valid law.
Held fur ther, that the said Act was not saved by section 3 (b) of the Jaipur Laws Act, 1923, as it was not a valid law in force on the 1st November, 1924, and the mere addition of a clause in 1938 that it shall come into force in 1924 was of no use.