Allahabad High Court
Ompal Singh Irrigation Supervisor … vs State Of U.P. And 8 Others on 26 March, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:43670 Court No. - 49 Reserved A.F.R. Case :- WRIT - A No. - 5027 of 2021 Petitioner :- Ompal Singh Irrigation Supervisor (Sinch Paryavekshak) Respondent :- State of U.P. and others Counsel for Petitioner :- Atipriya Gautam,Gaurav Bishan,Lal Chandra Srivastava,Neeraj Srivastava,Vijay Gautam(Senior Adv.) Counsel for Respondent :- C.S.C. Hon'ble J.J. Munir,J.
1. This writ petition is directed against the order dated 28.01.2021 passed by the Superintending Engineer, Irrigation Works Division-I, Irrigation and Water Resources Department, Meerut, rejecting the petitioner’s claim to re-fix his pension, adding his services as a work charged employee to his regular service. The aforesaid claim is based on a mandamus of this Court issued in Writ-A No.14563 of 2018, decided on 14.02.2020. The basis to disregard the claim in enforcement of the mandamus is founded on the supervening promulgation of the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 (for short, ‘the Ordinance’), which the Superintending Engineer says, nullifies the mandamus inter partes. The Ordinance has subsequently been replaced by the Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021 (for short, ‘the Act of 2021’), which carry provisions that are almost a replication of the Ordinance.
2. The petitioner was an Irrigation Supervisor in the Department of Irrigation, Water Resources. He was last posted in the establishment of the Executive Engineer, Ganga Canal Division, Muzaffar Nagar. He retired from service on 31.07.2017 upon attaining the age of superannuation.
3. The petitioner was initially appointed as a Chowkidar on 21.04.1980 by the Executive Engineer, Central Ganga Canal Division-II, Aligarh in the work charged establishment. He was appointed as a Work Supervisor vide order dated 28.04.1983 passed by the Executive Engineer. The Chief Engineer, Central Ganga Canal Project, Aligarh promoted the petitioner to the position of an Irrigation Supervisor (Seench Paryavekshak) and posted him in the regular establishment. By an order of 20th January, 2004, passed by the Superintending Engineer, Barrage Construction Division, Agra, the petitioner’s services were regularized. He was placed in the pay-scale of Rs.4000-6000/-. The petitioner was posted at the Barrage Construction Division, Agra at this time. The petitioner’s salary was fixed by the Executive Engineer, Muzaffar Nagar Ganga Canal Division, Muzaffar Nagar vide order dated 31.01.2017 at a figure of Rs.38,100/-, adding to it the annual increment due on 01.07.2016. At the time of his retirement on 31.07.2017, the petitioner’s last drawn salary was in the sum of Rs.39,200/-.
4. Upon the petitioner’s retirement, his pension was wrongly fixed, as the petitioner says, reckoning only 13 years of service for him from the date of regularization, to wit, 20.01.2004 until his superannuation. The respondents did not take into account the 24 years service that the petitioner had rendered in the work charged establishment from the year 1980 to 2004.
5. Shorn of unnecessary details, suffice it to say that the petitioner’s gratuity, leave encashment, commutation of pension etc. were all reckoned on the length of service rendered post regularization. He was sanctioned a pension of Rs.10,187/- per month. The entire period of 24 years rendered in the work charged establishment was excluded for the purpose of computation of petitioner’s qualifying service relating to grant of pension. The petitioner, finding the aforesaid stand utterly illegal, instituted Writ-A No.14563 of 2018 before this Court, praying that a mandamus be issued commanding the respondents to take into consideration the period of services rendered by the petitioner in the work charged establishment for the purpose of computation of his qualifying service. It was prayed that his pension payment order be directed to be suitably modified and arrears on account of pension lawfully due be directed to be paid with interest. The aforesaid writ petition was heard by this Court and relying upon the authority of the Supreme Court in Prem Singh v. State of U.P., (2019) 7 SCC 354, vide order dated 14.02.2020, a mandamus was issued to the respondents in the following terms:
“For the reasons give above, the respondent no.4-Executive Engineer, Ganga Nahar Division, Muzaffarnagar is directed to refix the pension of the petitioner after adding the service of the petitioner from the date of his joining as work charge employee i.e. 21.04.1980 and necessary order for grant of pension after refixation shall be passed within a period of two months from the date of production of certified copy of this order.
The writ petition is, accordingly, allowed with no order as to costs.”
6. It is common ground between parties that the mandamus issued by this Court on 14.02.2020 in Writ-A No.14563 of 2018 became final inter partes and no appeal was carried from the said judgment. The petitioner made an application dated 05.03.2020 along with a copy of this Court’s judgment dated 14.02.2020, serving it upon the Superintending Engineer, Irrigation Works Division-I, Irrigation and Water Resources Department, Meerut, who was the competent authority to carry out the mandamus issued by this Court. The application did not elicit response. It was followed by another application on 13.08.2020, requesting compliance with the mandamus issued by this Court. The petitioner also made similar applications, as the one made to the Superintending Engineer, the Executive Engineer, Muzaffar Nagar Ganga Canal Division, Muzaffar Nagar and the Engineer-in-Chief, Civil Irrigation and Water Resources Department, U.P., Lucknow. The Executive Engineer, Muzaffar Nagar Ganga Canal Division, Muzaffar Nagar sought opinion of the learned Chief Standing Counsel, High Court and the learned District Government Counsel, Muzaffar Nagar vide letter dated 26.08.2020 (a copy whereof was marked to the petitioner), if he was obliged to add the work charged period of service to determine the petitioner’s entitlement to pension in terms of our judgment and order dated 14.02.2020.
7. It is the petitioner’s case, specifically pleaded, that on the basis of legal opinion received from the learned Chief Standing Counsel, High Court and the learned District Government Counsel, Muzaffar Nagar, the Executive Engineer, Muzaffar Nagar Ganga Canal Division, Muzaffar Nagar wrote a letter to the Superintending Engineer, Irrigation Works Division-I, Irrigation and Water Resources Department, Meerut, clearly saying that the petitioner was appointed on 02.04.1981 and worked since 02.04.1981 to 23.01.2004 in the work charged establishment continuously. It was also said that his services have been regularized on the post of an Irrigation Supervisor on 24.01.2004. The communication from the Executive Engineer further said that the petitioner had worked in the work charged establishment for a total period of 22 years 9 months and 21 days, and, thereafter, 13 years 6 months and 8 days in the regular establishment. The communication from the Executive Engineer unequivocally said that in view of the legal opinion of the learned Chief Standing Counsel, High Court and the learned District Government Counsel, Muzaffar Nagar dated 26.08.2020, the petitioner is entitled to re-fixation of his salary after including the services rendered in the work charged establishment. This communication was addressed by the Executive Engineer to the Superintending Engineer vide letter dated 13.10.2020, which too is on record. These facts have been pleaded in paragraph No.19 of the writ petition. Instead of complying with the mandamus issued by this Court on 14.02.2020 in Writ-A No.14563 of 2018, the Superintending Engineer proceeded to reject the petitioner’s claim, ignoring the period of his services in the work charged establishment for the purpose of computation of qualifying service for the determination of his entitlement to pension, falling back on the provisions of Sections 2 and 3 of the Ordinance. It is remarked in the impugned order, passed by the Superintending Engineer, that because services rendered in the work charged establishment under the Service Rules (reference to the U.P. Retirement Benefit Rules, 1961) are no longer to be treated as qualifying service by dint of Sections 2 and 3 of the Ordinance, the petitioner’s claim in terms of the mandamus issued by this Court vide judgment and order dated 14.02.2020 in Writ-A No.14563 of 2018, could not be accepted.
8. Aggrieved by this order, the present writ petition has been instituted.
9. This Court issued a notice of motion on 25.03.2021 in terms of the following order:
“Learned Standing Counsel has accepted notice on behalf of all the respondents. He prays for and is granted four weeks’ time to file counter affidavit. The petitioner will have one week thereafter to file rejoinder affidavit. List immediately thereafter.”
10. A counter affidavit was filed on behalf of the respondents on 09.05.2022. A separate short counter affidavit was filed on behalf of respondent No.1, that is to say, the State Government. This affidavit has been filed by one Vichitra Narain, an Under Secretary in the Department of Irrigation and Water Resources Department, Government of U.P. In paragraph No.3 of his affidavit filed on behalf of the State Government, it is averred:
“3. The Engineer-in-Chief, Irrigation & Water Resources Department, Uttar Pradesh, Lucknow (Respondent No.3), The Chief Engineer (Sharda Sahayak) Ganga Irrigation Building, Telibagh, Uttar Pradesh, Lucknow (Respondent No.4), The Chief Engineer, (Ganga) Irrigation & Water Resources Department, Meerut District Meerut (Respondent No.5), The Superintending Engineer, Irrigation work Division-I, Irrigation & Water Resources Department, Meerut District Meerut (Respondent No.6), Executive Engineer, Meerut Division, Ganga Canal, Meerut District Meerut (Respondent No.7), Executive Engineer Muzaffarnagar Division Ganga Canal, District Muzaffarnagar (Respondent No.8) and The Chief Treasury Officer, Baghpat, District Baghpat (Respondent No.9) are the only competent authorities to give reply to the issues as raised by the Petitioner. Executive Engineer Muzaffarnagar Division Ganga Canal, District Muzaffarnagar (Respondent No.8) has been directed to file proper reply/counter in the matter and to take all proper legal steps.”
11. It is, therefore, evident that the entire stand of the Government is expressed in the counter affidavit dated 09.05.2022, which is one on behalf of respondent Nos.2 to 9, the various officers of the Government, who have been declared competent to answer the petitioner’s claim in the writ petition. When this matter came up before this Court on 26.09.2024, the following order was passed:
“This matter was mentioned in the morning in the first hour with the most startling fact brought to the notice of this Court that the judgment and order passed by the Court in Writ-A No. 14563 of 2018 preferred by the petitioner allowing it on 14.02.2020 and directing his services in the work charged establishment to be added to his regular service has been held to be a nullity by the Superintending Engineer, First Division Irrigation, Meerut, by the impugned order dated 28.01.2021. It is pointed out by the learned counsel for the petitioner that the judgment of this Court dated 14.02.2020 passed in Writ-A No. 14563 of 2018 has not been appealed much less set aside modified or reviewed. It has become final inter partes. The impugned order nevertheless relying on the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 has held that the judgement of this Court has become a nullity in view of Section 3 of the Ordinance.
In view of the very extraordinary facts shown here, this matter was immediately taken up at the time of mention.
Mr. S.C. Upadhyay, learned Standing Counsel appearing for the State is granted 24 hours time to seek instructions.
Prima facie, the impugned order is a nullity and an act of brazen contempt since the judgement passed in Writ-A No. 14563 of 2018 has become final inter partes which cannot be held legislatively overruled as between the parties.
The Superintending Engineer, who has passed the impugned order will indicate by Monday, i.e. 30.09.2024 why apart from the petitioner being granted the necessary relief with the quashing of the order impugned, exemplary costs be not imposed recoverable from him personally besides directing a separate contempt case to be registered against him.
Put up on Monday i.e. 30.09.2024 at 10 am.
Let this order be communicated to the Superintending Engineer, Irrigation Work Division-I, Irrigation & Water Resource Department, Meerut through the Chief Judicial Magistrate, Meerut by the Registrar (Compliance) within 24 hours.”
12. In order to explain his position, the Superintending Engineer, Irrigation Works Division-I, Irrigation and Water Resources Department, Meerut addressed written instructions to the learned Chief Standing Counsel dated 28.09.2024, the relevant part whereof reads:
“प्रकरण के सम्बन्ध में अधिशासी अभियन्ता मु0नगर खण्ड गंगा नहर मुजफफरनगर (पैरोकार अधिकारी) ने अभिलेखो के आधार पर अपने पत्रांक 4758 / मुखगनमु / कोर्ट केस/दिनांक 28.09.2024 आख्या उपलब्ध करायी है। जिसके क्रम में अवगत कराना है कि वादी ने मा0 न्यायालय द्वारा पारित निर्णय दिनांक 14.02.2020 को संलग्न कर दिनांक 05.03.2020 को अधिशासी अभियन्ता मु0नगर खण्ड गंगा नहर मुजफफरनगर/अधीक्षण अभियन्ता प्रथम मण्डल सिंचाई कार्य मेरठ/प्रमुख अभियन्ता सिंचाई एवं जल संसाधन विभाग उ0प्र0 लखनऊ को प्रत्यावेदन दिया। पुनः दिनांक 13.08.2020 को वादी द्वारा अनुस्मारक प्रेषित किया गया दिनांक 28.08.2020 का अधिशासी अभियन्ता मु0नगर खण्ड गंगा नहर मुजफफरनगर द्वारा मुख्य स्थायी अधिवक्ता से विधिक राय मांगी गयी।
दिनांक 18.06.2020 को अधिशासी अभियन्ता मु0नगर खण्ड गंगा नहर मुजफफरनगर ने अधीक्षण अभियन्ता प्रथम मण्डल सिंचाई कार्य मेरठ को मार्गदर्शन हेतु पत्र लिखा दिनांक 13.10.2020 को अधिशासी अभियन्ता मु0नगर खण्ड गंगा नहर मुजफफरनगर पुनः अनुस्मारक भेजा, परन्तु उच्चाधिकारियों द्वारा कोई मार्गदर्शन देने से पूर्व ही 21.10.2020 (छायाप्रतिसंलग्न-2) को अध्यादेश जारी हो गया जिसकी धारा-3 किसी न्यायालय के किसी निर्णय, डिक्री या आदेश के होते हुए भी इस अध्यादेश के प्रारम्भ होने के पूर्व उ0प्र0 रिटायरमैन्ट बैनेफिट रूल्स 1961 के नियम-3 के उप नियम (8) के सम्बन्ध में या तद्धीन कृत या की गयी तात्पर्यित कोई कार्यवाही, इस अध्यादेश के उपबन्धों के अधीन किये जाने हेतु और सदैव से कृत या की गयी समझी जायेगी। और यह उतनी ही विधिमान्य होगी तथा सदैव से विधिमान्यकृत समझी जायेगी, मानों इस अध्यादेश के उपबन्ध दिनांक 01 अप्रैल 1961 से समस्त सरवान समयों पर प्रवत्त थे।”
अतः उच्चाधिकारी कार्यालय प्रमुख अभियन्ता (कार्यप्रभारित अधिष्ठान प्रकोष्ठ) गंगा सिंचाई भवन तेलीबाग सिंचाई विभाग उ0प्र0 लखनऊ के पत्रांक 1508 / कप्रअप्र / दिनांक 26.11.2020 (छायाप्रति संलग्न-3) में दिये गये निर्देशानुसार कि पुरानी पेंशन योजना से अच्छादित याचियों के प्रत्यावेदन का निस्तारण उ0प्र0 शासन विधायी अनुभाग-01 के अधिसूचना संख्या 1877/79-वी0-1-2020-2 (क)20-2020 दिनांक 20.10.2020 द्वारा निर्गत उ0प्र0 पेंशन हेतु अर्हकारी सेवा तथा विधिमान्यकरण अध्यादेश 2020 में निहित प्राविधानो के अनुसार नियुक्ति अधिकारी/सक्षम अधिकारी द्वारा प्रत्यावेदन को निस्तारित करने के आदेश है जो उचित माध्यम से कार्यालय को प्राप्त है। इसके अनुक्रम में दिनांक 28.01.2021 को श्री अमिताभ कुमार तत्कालीन अधीक्षण अभियन्ता प्रथम मण्डल सिंचाई कार्य मेरठ द्वारा वादी का प्रत्यावेदन आदेश पारित कर निरस्त किया गया। उक्त अध्यादेश विभिन्न वादो में Under Challenge है जिसके कारण वादी का क्लेम कन्सीडर नहीं किया जा सका। वादी के क्लेम को कन्सीडर करने के लिए और मा0 न्यायालय के आदेशो की अनुपालन हेतु शासन से व्यक्तिगत समन्वय स्थापित कर निर्देश लिये जा रहे है। सादर अवगत कराना है कि शासन द्वारा दिये गये निर्देशो का अनुपालन कर दिया जायेगा।”
(emphasis by Court)
13. On 30.09.2024, when the petition came up, the written instructions, above quoted, were placed before the Court by Mr. S.C. Upadhyay, learned Standing Counsel. Parties having exchanged affidavits, the petition was admitted to hearing, which proceeded forthwith. Judgment was reserved.
14. Heard Mr. Lal Chandra Srivastava, learned Counsel for the petitioner and Mr. S.C. Upadhyay, learned Standing Counsel appearing on behalf of the State.
15. We have carefully heard learned Counsel for both sides, perused the record as also the impugned order.
16. It is a proposition far too well settled to brook doubt that, once a judgment of a Court, particularly a Constitutional Court, rendered inter partes, becomes final and, in the exercise of powers of judicial review under Article 226 of the Constitution, a mandamus is issued by the High Court ordering authorities, who were parties to the lis, to do something or forbear from doing it, a subsequent amendment to the law by the legislature cannot undo the mandamus that has become final between parties. The state of the law, on the foot of which that mandamus has been issued, may be changed, no doubt by the legislature by an amendment to the statute, but that would be a change that would govern future transactions between parties. May be on the same facts and a similar cause of action, that has led to the issue of a mandamus between two parties by the High Court, after amendment to the statute, it may not be granted on the terms of the altered law. This, however, would not mean that a mandamus issued by this Court, through a judgment inter partes, would be rendered nugatory because under the amended statute, if the cause were heard, that mandamus might not have been granted. Differently said, a judgment that has become final inter partes and led to a mandamus, cannot be undone, or, so to speak, virtually set aside, as if it were, by the supervening amendment to the law. The mandamus that was issued in Writ-A No.14563 of 2018 on 14.02.2020 by a judgment inter partes, obliged the Executive Engineer, Muzaffar Nagar Ganga Canal Division, Muzaffar Nagar to re-fix the petitioner’s pension after adding his services from the date he joined the work charged establishment i.e. 21.04.1980 and pass necessary orders for grant of pension, with re-fixation done in the said manner, within two months of production of a certified copy of this Court’s judgment.
17. The Ordinance came into force on 20.10.2020 and if we were to accept the reasoning carried in the impugned order, it would abnegate the judicial power of the State exercised through Courts under the Constitution and subject it to an unknown authority ultra vires the Constitution. If by a subsequently promulgated Ordinance or an enactment of the competent legislature, a judgment of a Constitutional Court, that has become final inter partes, were held to be nullified as the impugned order seeks to do, we would be accepting the principle of a legislative review of judgments of Court that have become final between parties. There is no such principle known to the Constitution. A judgment that has become final between parties on a given state of the law, can only be set aside at the instance of the party aggrieved by carrying an appeal, invoking higher judicial powers as may be available under the law. It is true that, in some cases, if an appeal is carried from a final judgment, even of a Constitutional Court to a Higher Court, and, pending the appeal, the legislature retrospectively amends the law, then, subject to known exceptions against retrospective legislation, the rights of parties may be judged by the amended law, with an event in appeal that may be different from what it would have been if the law were not amended. This is not a case of the kind where pending an appeal from the judgment of this Court in Writ-A No.14563 of 2018, the basis of the law on which the judgment proceeded, has been retrospectively amended. The judgment in Writ-A No.14563 of 2018 admittedly became final between parties with no invocation of appellate procedures by the respondents.
18. The mere fact, therefore, that the law has now been amended, would not affect the mandamus granted by this Court in Writ-A No.14563 of 2018, that has become final between parties. It has to be carried out without reference to the Ordinance or the Act of 2021, that has succeeded it. The impugned order, which treats the mandamus issued by this Court on 14.02.2020 in Writ-A No.14563 of 2018, nullified by Section 3 of the Ordinance, has to be regarded as non est. This is so because any order of an Administrative Authority, or an executive order of the Government, or even a legislation, insofar as it has the effect of nullifying a judgment of a Constitutional Court, rendered inter partes, is non est and void. Section 3 of the Ordinance reads:
“3. Validation.- Notwithstanding any Judgement, decree or order of any Court, anything done or purporting to have been done and may action taken or purporting to have been taken under or in relation to sub-rule (8) of rule 3 of the Uttar Pradesh Retirement Benefit Rules, 1961 before the commencement of this Ordinance, shall be deemed to be and always to have been done or taken under the provisions of this Ordinance and to be and always to have been valid as if the provisions of this Ordinance were in force at all material times with effect from April 1, 1961.”
19. The retrospective amendment that it brings about a change to Rule 3(8) of the U.P. Retirement Benefit Rules, 1961 (for short, ‘the Rules of 1961’) may arguably be regarded as something that affects the law laid down by the Supreme Court in Prem Singh (supra). The decision in Prem Singh proceeds on the basis of Rule 3(8) of the Rules of 1961 as it stood before the amendment by the Ordinance and the Act of 2021. Therefore, a cause brought or heard after coming into force of the Ordinance and then the Act of 2021, if sought to be supported by the law laid down by the Supreme Court in Prem Singh, may have to be judged with reference to the provisions of the Ordinance and the Act of 2021. It is in this sense that the words notwithstanding any judgment, decree or order of any Court have been employed in Section 3 of the Ordinance and also the Act of 2021. This is not to say in any manner that Section 3 of the Ordinance or the Act of 2021 has the endorsement of this Court as a constitutionally valid exercise of power. We cannot and need not say anything about it within the frame of this writ petition. The only thing we may say is that in a challenge to the vires of Section 3 of the Ordinance or the corresponding provision in the Act of 2021, what would be judged, perhaps is a case of brazen legislative overruling of a judgment of a Constitutional Court. As already said, that is not our concern here as that question does not arise. Here is a concluded judgment and a mandamus issued by this Court on 14.02.2020 in Writ-A No.14563 of 2018, between the petitioner and the respondents, which the respondents have never appealed. They say that the mandamus is a nullity because Section 3 of the Ordinance nullifies the mandamus. No mandamus, that has become final inter partes, can ever be nullified by legislation as that would constitute usurpation of the judicial power of the State by the legislature, entrusted to the Courts under the Constitution. The Superintending Engineer has gone completely wrong in thinking that a mandamus of this Court, final inter partes, would ipso facto be nullified upon promulgation of the Ordinance.
20. The principle that legislative power cannot be exercised to undo a judgment under which rights of parties have crystallized and embodied in a mandamus issued by the High Court, has endorsement of the Constitution Bench of the Supreme Court in Madan Mohan Pathak and another v. Union of India and others, (1978) 2 SCC 50. In Madan Mohan Pathak (supra), it was held:
“27. The statement of objects and reasons discloses that the purpose of the impugned Act was to undo settlements which had been arrived at between the Corporation and Class III and Class IV employees on January 24 and February 6, 1974, and actually recognised by the order of the Calcutta High Court. The question could well arise whether this was really the exercise of a legislative power or of a power comparable to that of an Appellate Authority considering the merits of what had passed into a right to property recognised by the courts. This Court has decided in Shrimati Indira Gandhi v. Raj Narain [1975 Supp SCC 1 : AIR 1975 SC 2299 : (1976) 2 SCR 347] that even a constitutional amendment cannot authorise the assumption of a judicial power by Parliament. One of the tests laid down there was whether the decision is of a kind which requires hearing to be given to the parties, or, in other words, involves at least a quasi-judicial procedure, which the Parliament does not, in exercise of its legislative power, follow. A decision reached by the Central Government, under Section 11(2) of the Act, is the result of a satisfaction on matters stated there and would imply quasi-judicial procedure where the terms of a settlement had to be reviewed or revised. But, the legislative procedure, followed here, does not require that to be done. It would, in any event, be unfair to adopt legislative procedure to undo such a settlement which had become the basis of a decision of a High Court. Even if legislation can remove the basis of a decision it has to do it by an alteration of general rights of a class but not by simply excluding two specific settlements between the Corporation and its employees from the purview of Section 18 of the Industrial Disputes Act, 1947, which had been held to be valid and enforceable by a High Court. Such selective exclusion could also offend Article 14.
31. 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 judgment 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 judgment 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.
32. 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 I 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.”
21. The principle is succinctly laid down by a later Constitution Bench of their Lordships of the Supreme Court in Cauvery Water Disputes Tribunal, Re, 1993 Supp (1) SCC 96 (2). In Cauvery Water Disputes Tribunal (supra), the principle was stated thus:
“76. The principle which emerges from these authorities is that the legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter partes and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or tribunal.”
22. The point fell for consideration before a Three-Judge Bench of the Supreme Court in S.R. Bhagwat and others v. State of Mysore, (1995) 6 SCC 16. In S.R. Bhagwat (supra), elucidating the principle, their Lordships held:
“12. It is now well settled by a catena of decisions of this Court that a binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power by enacting a provision which in substance overrules such judgment and is not in the realm of a legislative enactment which displaces the basis or foundation of the judgment and uniformly applies to a class of persons concerned with the entire subject sought to be covered by such an enactment having retrospective effect. We may only refer to two of these judgments.
13. A Constitution Bench of this Court in the case of Cauvery Water Disputes Tribunal, Re [1993 Supp (1) SCC 96 (2) : 1991 Supp (2) SCR 497] had to pronounce on the validity of Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 by which an interim order passed by a statutory tribunal supported by the decision of this Court dated 26-4-1991 which had ruled that the Tribunal had power to consider the question of granting interim relief since it was specifically referred to it, was sought to be displaced. Sawant, J., speaking for the Constitution Bench held that the said provisions were unconstitutional and ultra vires. In paragraph 76 of the Report the following observations were made: (SCC p. 142)
“The principle which emerges from these authorities is that the legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter partes and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or tribunal.”
In the case of G.C. Kanungo v. State of Orissa [(1995) 5 SCC 96 : JT (1995) 4 SC 589] a Division Bench of this Court speaking through Venkatachala, J., had to consider the validity of Arbitration (Orissa Second Amendment) Act, 1991 which sought to nullify the awards made by the Special Arbitration Tribunals constituted under the 1984 Amendment Act, in exercise of the power conferred upon them by the Act itself. Striking down the provisions as ultra vires and illegal Venkatachala, J., made the following observations in paragraph 28 of the Report: (SCC p. 114)
“Thus, the impugned 1991 Amendment Act seeks to nullify the awards made by the Special Arbitration Tribunals constituted under the 1984 Amendment Act, in exercise of the power conferred upon them by that Act itself. When the awards made under the 1984 Amendment Act by the Special Arbitration Tribunals in exercise of the State’s judicial power conferred upon them which cannot be regarded as those merged in Rules of Court or judgments and decrees of courts, are sought to be nullified by the 1991 Amendment Act, it admits of no doubt that legislative power of the State Legislature is used by enacting impugned 1991 Amendment Act to nullify or abrogate the awards of the Special Arbitration Tribunals by arrogating to itself, a judicial power. (See Cauvery Water Disputes Tribunal, Re [1993 Supp (1) SCC 96 (2) : 1991 Supp (2) SCR 497] .) From this, it follows that the State Legislature by enacting the 1991 Amendment Act has encroached upon the judicial power entrusted to judicial authority resulting in infringement of a basic feature of the Constitution — the Rule of Law. Thus, when the 1991 Amendment Act nullifies the awards of the Special Arbitration Tribunals, made in exercise of the judicial power conferred upon them under the 1984 Amendment Act, by encroaching upon the judicial power of the State, we have no option but to declare it as unconstitutional having regard to the well-settled and undisputed legal position that a legislature has no legislative power to render ineffective the earlier judicial decisions by making a law which simply declares the earlier judicial decisions as invalid and not binding, for such powers, if exercised, would not be legislative power exercised by it, but judicial power exercised by it encroaching upon the judicial power of the State vested in a judicial tribunal as the Special Arbitration Tribunal under the 1984 Amendment Act. Moreover, where the arbitral awards sought to be nullified under the 1991 Amendment Act are those made by Special Arbitration Tribunals constituted by the State itself under the 1984 Amendment Act to decide arbitral disputes to which State was a party, it cannot be permitted to undo such arbitral awards which have gone against it, by having recourse to its legislative power for grant of such permission as could result in allowing the State, if nothing else, abuse of its power of legislation.”
15. We may note at the very outset that in the present case the High Court had not struck down any legislation which was sought to be re-enacted after removing any defect retrospectively by the impugned provisions. This is a case where on interpretation of existing law, the High Court had given certain benefits to the petitioners. That order of mandamus was sought to be nullified by the enactment of the impugned provisions in a new statute. This in our view would be clearly impermissible legislative exercise.
17. We may recapitulate at this stage that the petitioners have mounted a limited attack on the impugned provisions of the Act insofar as they deprive them of the monetary benefits flowing from the deemed promotion to be given to them pursuant to the orders of the Division Bench of the High Court which have become final between the parties. We have extracted the aforesaid section with its relevant sub-sections wherein the impugned provisions of the clauses concerned have been indicated by underlining them. Petitioners contend that underlined portions of sub-sections (2), (3) and (8) of Section 4 clearly fall within the teeth of binding decision of the Division Bench of the High Court and they are in clear conflict with the said binding decision. As we are not concerned with other provisions of the Act except Section 11(2) we may straightaway turn to Section 11. The said provision deals with overriding effect of the Act. It reads as under:
“Overriding effect.– (1) The provisions of this Act or of any order made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any law or order having the force of law or rules made under the proviso to Article 309 of the Constitution of India for the time being in force or any provision regulating the conditions of service of any allottee or in any order made by virtue of any such law, rules or provisions.
(2) Notwithstanding anything contained in any judgment, decree or order of any court or other competent authority the rights to which a civil servant is entitled to in respect of matters to which the provisions of this Act are applicable, shall be determined in accordance with the provisions of this Act, and accordingly, any judgment, decree or order directing promotion or consideration for promotion of civil servants and payment of salaries and allowances consequent upon such promotion shall be reviewed and orders made in accordance with the provisions of this Act.”
18. A mere look at sub-section (2) of Section 11 shows that the respondent State of Karnataka, which was a party to the decision of the Division Bench of the High Court against it had tried to get out of the binding effect of the decision by resorting to its legislative power. The judgments, decrees and orders of any court or the competent authority which had become final against the State were sought to be done away with by enacting the impugned provisions of sub-section (2) of Section 11. Such an attempt cannot be said to be a permissible legislative exercise. Section 11(2), therefore, must be held to be an attempt on the part of the State Legislature to legislatively overrule binding decisions of competent courts against the State. It is no doubt true that if any decision was rendered against the State of Karnataka which was pending in appeal and had not become final it could rely upon the relevant provisions of the Act which were given retrospective effect by sub-section (2) of Section 1 of the Act for whatever such reliance was worth. But when such a decision had become final as in the present case when the High Court clearly directed respondent-State to give to the petitioners concerned deemed dates of promotions if they were otherwise found fit and in that eventuality to give all benefits consequential thereon including financial benefits, the State could not invoke its legislative power to displace such a judgment. Once this decision had become final and the State of Karnataka had not thought it fit to challenge it before this Court presumably because in other identical matters this Court had upheld other decisions of the Karnataka High Court taking the same view, it passes one’s comprehension how the legislative power can be pressed in service to undo the binding effects of such mandamus. It is also pertinent to note that not only sub-section (2) of Section 11 seeks to bypass and override the binding effect of the judgments but also seeks to empower the State to review such judgments and orders and pass fresh orders in accordance with provisions of the impugned Act. The respondent-State in the present case by enacting sub-section (2) of Section 11 of the impugned Act has clearly sought to nullify or abrogate the binding decision of the High Court and has encroached upon the judicial power entrusted to the various authorities functioning under the relevant statutes and the Constitution. Such an exercise of legislative power cannot be countenanced.”
23. It may be remarked here that S.R. Bhagwat was a case where the vires of Section 11(2) and sub-Sections (2), (3) and (8) of Section 4 of the Karnataka State Civil Services (Regulation of Promotion, Pay and Pension) Act, 1973 was under challenge. The above principles were laid down in the context of a challenge to the vires of the Karnataka Promotion, Pay and Pension Act. Nevertheless, the principle enumerated in the said decision about the impermissibility of undoing a mandamus that has become final between parties by an executive order or even legislation, has been clearly endorsed.
24. The same principles were laid down again in Medical Council of India v. State of Kerala and others, (2019) 13 SCC 185 in the context of challenge to the vires of a legislation that attempted to overrule a judgment of the Court that had become final.
25. The principles were summarized in Madras Bar Association v. Union of India and others, (2022) 12 SCC 455, where it was held by L. Nageswara Rao, J.:
“50. The permissibility of legislative override in this country should be in accordance with the principles laid down by this Court in the aforementioned as well as other judgments, which have been culled out as under:
50.1. The effect of the judgments of the Court can be nullified by a legislative act removing the basis of the judgment. Such law can be retrospective. Retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution. [Lohia Machines Ltd. v. Union of India, (1985) 2 SCC 197 : 1985 SCC (Tax) 245]
50.2. The test for determining the validity of a validating legislation is that the judgment pointing out the defect would not have been passed, if the altered position as sought to be brought in by the validating statute existed before the Court at the time of rendering its judgment. In other words, the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed.
50.3. Nullification of mandamus by an enactment would be impermissible legislative exercise (see : S.R. Bhagwat [S.R. Bhagwat v. State of Mysore, (1995) 6 SCC 16 : 1995 SCC (L&S) 1334] ). Even interim directions cannot be reversed by a legislative veto (see : Cauvery Water Disputes Tribunal [Cauvery Water Disputes Tribunal, In re, 1993 Supp (1) SCC 96 (2)] and Medical Council of India v. State of Kerala [Medical Council of India v. State of Kerala, (2019) 13 SCC 185]).
50.4. Transgression of constitutional limitations and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the rule of law and of Article 14 of the Constitution of India.”
(emphasis by Court)
26. In Dr. Jaya Thakur v. Union of India and others, (2023) 10 SCC 276, the principle in Madras Bar Association (supra) and, otherwise also, the settled law in regard to the impermissibility of overriding a mandamus by legislation has been unequivocally approved. In Dr. Jaya Thakur (supra), it has been held:
“114. It could, thus, clearly be seen that this Court has held that the effect of the judgments of this Court can be nullified by a legislative Act removing the basis of the judgment. It has further been held that such law can be retrospective. It has, however, been held that retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution. It has been held that the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed. This Court has, however, clearly held that nullification of mandamus by an enactment would be impermissible legislative exercise. This Court has further held that transgression of constitutional limitations and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the rule of law and of Article 14 of the Constitution of India.
116. As already discussed hereinabove, this Court has specifically issued a mandamus that no further extension shall be granted to the second respondent. The Union of India and Respondent 2 were both parties in the proceedings before this Court in Writ Petition (Civil) No. 1374 of 2020 [Common Cause (2021) [Common Cause v. Union of India, (2023) 10 SCC 321] ]. The mandamus issued to be parties was binding on them. We, therefore, find that Respondent 1 could not have issued Orders dated 17-11-2021 and 17-11-2022 in breach of the mandamus issued by this Court vide its judgment dated 8-9-2021 in Common Cause (2021) [Common Cause v. Union of India, (2023) 10 SCC 321] .”
27. The impugned order passed by the Superintending Engineer, Irrigation Works Division-I, Irrigation and Water Resources Department, Meerut does all what the consistent position of the law forbids. The Superintending Engineer in passing the order impugned has held the mandamus issued by this Court on 14.02.2020 in Writ-A No.14563 of 2018 ipso facto nullified upon promulgation of the Ordinance vide Section 3. This obviously could never have been the effect of the Ordinance and the mandamus, that had become final inter partes, continues to oblige the respondents, including the Superintending Engineer. He has passed the order impugned on so manifestly illegal a view that it cannot be lightly brushed aside. He has trifled with a mandamus of this Court by saying that he is free of the command because of the supervening promulgation of the Ordinance, a position absolutely contrary to what the law is.
28. We apprised the Superintending Engineer by our order dated 26.09.2024 that the order impugned, that he had made, was so illegal that it invited imposition af exemplary costs and he may show cause against it. We also said that it might expose him to action by way of contempt through a case to be separately registered for violating a mandamus final between parties by an order in writing that he had made, to wit, the impugned order. In the written instructions dated 28.09.2024, which the Superintending Engineer furnished to the learned Chief Standing Counsel, that were placed before us, he did not at all clarify why he made an order so illegal that made him fall foul of the mandamus issued by this Court in Writ-A No.14563 of 2018. He also did not explain his position why he may be relieved of his liability to suffer costs.
29. In the circumstances, the impugned order is held manifestly illegal and fit to be quashed and the petitioner entitled to a mandamus, ordering the respondents to reckon his services in the work charged establishment together with his regular services for the purpose of computation of his pension and other post retiral benefits.
30. In the result, this petition succeeds and is allowed with costs which we quantify in the sum of Rs.50,000/-. The impugned order dated 28.01.2021, passed by the Superintending Engineer, Irrigation Works Division-I, Irrigation and Water Resources Department, Meerut, is hereby quashed. A mandamus is issued to each of respondent Nos.1 to 9 to ensure amongst themselves that the petitioner’s services, in the work charged establishment from 1980 to 2004, are reckoned for the purpose of computing his qualifying service for the grant of pension and other post retiral benefits. The petitioner’s entitlement to revised pension and post retiral benefits in the above terms shall be determined by the respondents within a period of eight weeks of the communication of this order and all arrears on account of revision of his pension and post retiral benefits paid to the petitioner within the said period of time. The petitioner will be entitled to a revised monthly pension at the end of eight weeks of the date of communication of this order to the respondents. The costs shall be payable by the State to the petitioner within the time period of eight weeks indicated hereinabove and it shall be open to the State to recover the costs from the Officer, who passed the impugned order dated 28.01.2021, if they so elect.
31. Let this judgment be communicated to the Additional Chief Secretary, Irrigation & Water Resources Department, Government of U.P., Lucknow, the Additional Chief Secretary, Finance, Government of U.P., Lucknow, the Engineer-in-Chief, Irrigation & Water Resources Department, U.P., Lucknow and the Chief Engineer (Sharda Sahayak) Ganga Irrigation Building, Telibagh, U.P., Lucknow through the Civil Judge (Senior Division), Lucknow, the Chief Engineer (Ganga), Irrigation & Water Resources Department, Meerut, the Superintending Engineer, Irrigation Work Division-I, Irrigation & Water Resources Department, Meerut, and the Executive Engineer, Meerut Division, Ganga Canal, Meerut through the Civil Judge (Senior Division), Meerut, the Executive Engineer, Muzaffar Nagar Division, Ganga Canal, District Muzaffar Nagar through the Civil Judge (Senior Division), Muzaffar Nagar and the Chief Treasury Officer, Baghpat, District Baghpat through the Civil Judge (Senior Division), Baghpat by the Registrar (Compliance).
Order Date :- 26.3.2025
Anoop
(J.J. Munir)
Judge
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