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PETITIONER:

S.R. BHAGWAT & ORS.

Vs.

RESPONDENT:

THE STATE OF MYSORE

DATE OF JUDGMENT12/09/1995

BENCH:

MAJMUDAR S.B. (J)

BENCH:

MAJMUDAR S.B. (J)

BHARUCHA S.P. (J)

FAIZAN UDDIN (J)

CITATION:

1996 AIR 188 1995 SCC (6) 16

JT 1995 (6) 444 1995 SCALE (5)270

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

S.B. Majmudar, J.

William Macpeace Thakare in his lectures on "English

Humorists of 18th Century" spoke of Jonathan Swift working

in the household of Sir William Temple in the following

terms : "His servility was so boisterous that it looked like

independence". As will be highlighted in this judgment the

servility of judgment-debtor, State of Mysore, the precursor

of the State of Karnataka was eqally boisterous when it

tried to cast off its judgment debtor's role by resorting to

legislative independence, which as will be demonstrated, has

remained a legally futile attempt.

This is a petition under Article 32 of the Constitution

of India. The petitioners have brought in challenge the

provisions of the Mysore Ordinance 1 of 1973, namely, The

Mysore State Civil Services (Regulation of Promotion, Pay

and Pension) Ordinance No. 1 of 1973. By an amendment to the

petition they have also brought in challenge the provisions

of the Karnataka State Civil Services (Regulation of

Promotion, Pay and Pension) Act, 1973 (hereinafter referred

to as `the impugned Act') which replaced the State

Ordinance. At the stage of arguments learned counsel for the

petitioners concentrated his attack on the provisions of

Sub-sections (2), (3), (4), (5), (6), and (8) of Section 4

as well as Section 11 Sub-section (2) of the Act in so far

as they conflicted with the order of the High Court, which

had become final between the parties. It is not necessary to

refer hereinafter to the provisions of the erstwhile

Ordinance which has been replaced by the Act, the provisions

of which are brought on the anvil of scrutiny in this

petition.

Background Facts

In order to highlight the grievance of the petitioners

against the impugned provisions of the Act it is necessary

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to note at the outset the facts leading to this petition.

Petitioners Nos. 1 to 5 were civil servants of the erstwhile

State of Hyderabad and Bombay. Their services stood allotted

to the new State of Mysore under Section 115 of the States

Reorganisation Act, 1956 (hereinafter referred to as the

`Reorganisation Act'). The new State of Mysore was formed

with effect from 1.11.1956 under the provisions of the

Reorganisation Act, enacted by the Parliament in exercise of

its powers under Articles 3 and 4 of the Constitution of

India. Section 115 of the Reorganisation Act provided for

allotment of civil servants of the erstwhile States

territories of which were transferred to the successor State

by the provisions of Part II of the Act and accordingly the

petitioners' services stood statutorily allotted to the new

State of Mysore. In this context the Parliament conferred

the power of integration of services on the Central

Government under Section 115(5) of Reorganisation Act.

Accordingly integration of services took effect from

1.11.1956.

After the reorganisation of the States the Central

Government for purposes of effecting integration of services

laid down the principles relating to equation of posts and

the preparation of seniority lists. The Central Government

also directed the State Government to decide provisionally

the equation of posts and also to fix seniority and to call

for representations from the aggrieved officials, to send

the same for final decision by the Government of India. In

pursuance of the directions of the Central Government, the

State Government took its own time to prepare provisional

Inter-State Seniority Lists and to call for objections. The

State Government also directed the appointing authorities of

the new State of Mysore to make provisional promotions on

the basis of the provisional inter-State Seniority Lists

subject to the clear condition that promotion should be

revised in accordance with the ranking in the Final

Seniority Lists to be effective from 1.11.1956 as decided by

the Government of India in exercise of its powers under

Section 115(5) of the Reorganisation Act. Sub-section (7) of

Section 115 of the Reorganisation Act laid down that,

`nothing in this section shall be deemed to affect after the

appointed day the operation of the provisions of Chapter I

of Part XIV of the Constitution in relation to the

determination of the conditions of service of persons

serving in connection with the affairs of the Union or any

State, provided that the conditions of service applicable

immediately before the appointed day to the case of any

person referred to in sub-section (1) or sub-section (2)

shall not be varied to his disadvantage except with the

previous approval of the Central Government.'

On account of aforesaid integration of services of

employees of States which got reorganised as aforesaid, till

the inter-se seniority of the concerned allotted employees

of such States was finally determined by the Central

Government as required by Sub-section (5) of Section 115 of

Reorganisation Act, the reorganised States like the State of

Mysore were permitted to act on the basis of provisional

seniority list of such employees and to effect promotions on

that basis so that the administration of the reorganised

States might not suffer. But that was subject to the rider

that the said provisional list was subject to alterations

when final list was prepared and once that happened the

concerned State Government had to give effect to the final

list. The said principle was laid down by this Court in the

case of G.S. Ramaswamy etc. etc. v. The Inspector General of

Police, Mysore State, Bangalore AIR 1966 SC 175 at page 180

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as under :

"The next point that has been urged is

that in any case till final integration

of service was made, the State

Government was not entitled to take into

account the provisional list of sub-

inspectors and could only proceed to

give promotions and to make transfers

region-wise according to the eligibility

lists of former States from which the

territories came to the new State and if

that was done the petitioners being

senior in their region could not be

reverted............ We can see nothing

in law which prevents the State

Government from proceeding according to

the provisional list after such list was

prepared. We are of opinion that the

view taken by the Mysore High Court in

the earlier writ petitions after the

framing of the provisional seniority

list is correct and the State Government

would be entitled to act on that list

subject of course to this that if the

provisional list is in any way altered

when the final list is prepared, the

State Government would give effect to

the final list."

Petitioners Nos.1, 2 and 4 had joined service in the

former State of Bombay and were on 31.10.1956 in the

category of Deputy Conservator of Forests. Petitioner No.3

was also a Deputy Conservator of Forests in the former

Hyderabad State. In the year 1957 the State Government made

provisional equation. The posts of Senior Conservator of

Forests and Assistant Conservator of Forests, were equated

with the post of Deputy Conservator of Forests coming from

Hyderabad and Bombay. This was objected to by the

petitioners and others. The State Government again published

a list in 1960 with slight modification. However, the

Central Advisory Committee to whom the representations were

forwarded as per the provisions of Sub-section (5) of

Section 115 of the Reorganisation Act, accepted the

petitioners' contentions. As a result in category III only

the officials, namely, Deputy Conservator of Forests of

Hyderabad and Bombay and Senior Assistant Conservator of

Forests from Mysore were included. The Government of India

accepted the said equation and communicated it to the State

Government on 7.11.1962.

Thereafter several writ petitions were presented before

the Mysore High Court being Writ Petition No.2186 of 1963

and others. They were disposed of by the High Court. The

main judgment was rendered in Shankariah v. Union of India

1965(2) Mysore Law Journal 40. The correctness of this

decision was challenged before this Court. But the appeals

were dismissed. Even thereafter in accordance with the

directions of the Central Advisory Committee the Union

Government again considered the matter and fresh

notifications were issued in May 1969. These notifications

were on the same line as the earlier notifications. A fresh

batch of writ petitions was filed before the High Court of

Mysore which dismissed them by order dated 21.9.1971.

Special Leave Petitions against this decision were also

dismissed by this Court on 22.12.1972. Thus final

adjudication was made regarding the claim of petitioners and

others similarly situated for equation and seniority.

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In the background of the aforesaid settled legal

position the petitioners claimed that though they were

senior in the final seniority lists to many others, their

juniors had got promoted in the meantime on the basis of

higher ranking in the provisional seniority list which was

earlier operative till it got superseded by the final

seniority list as aforesaid. As their claim for being

granted deemed dates of promotions with all consequential

benefits was not accepted by the State of Mysore, the

petitioners filed writ petitions before the High Court of

Karnataka being Writ Petitions Nos. 2598 of 1970 and others.

All these five writ petitions filed by the petitioners came

to be allowed by a Division Bench of the High Court of

Mysore at Bangalore by an order dated 21.9.1971. The State

of Mysore was the first respondent in those petitions and

which is the main respondent in the present writ petition.

While allowing these writ petitions the Division Bench of

the High Court granted relief to the petitioners in the

following terms :

"We, therefore, make a common order in

all these writ petitions that the case

of each of these petitioners be

considered for promotion to the post

next above the cadre of the post he was

holding on 1.11.1956 as on the date on

which any one of his juniors according

to the final inter State Seniority List

was for the first time so promoted and

that if he is found fit and promoted he

be given all including consideration for

promotion to higher cadres and financial

benefits. Time three months."

It is not in dispute between the parties that pursuant

to the aforesaid direction issued by the Division Bench of

the High Court the respondent-State has considered the cases

of all the petitioners for being granted deemed dates of

promotions and they have been given such deemed dates of

promotions. The aforesaid decision of the Division Bench has

become final between the parties. As consequential monetary

benefits on the grant of deemed promotions to the

petitioners as directed by the aforesaid decision were not

made available to the petitioners they filed contempt

petitions in the High Court. These contempt petitions were

got adjourned from time to time before the High Court by the

respondent-State. In the meantime the respondent-State

resorted to its legislative powers and issued the impugned

Ordinance which ultimately culminated into the impugned Act.

By the impugned provisions of the Ordinance and the Act the

actual financial benefits directed to be made available to

the petitioners pursuant to the orders of the Division Bench

of the High Court which had become final are sought to be

taken away as can be seen from the scrutiny of the Act. It

is under these circumstances that the petitioners filed this

petition under Article 32 for getting a declaration that the

impugned provisions in so far as they tried to confiscate

the financial benefits made available to them by the writs

of mandamus issued by the High Court are null and void as

they amount to legislative over-ruling of binding judicial

decisions and seek to deprive them of their fundamental

rights guaranteed under the Constitution.

Rival Contentions

Learned counsel for the petitioners in support of his

submission has relied upon a number of decisions of this

Court with a view to submitting that the impugned provisions

clearly seek to nullify final binding dicisions of the High

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Court against the State and in favour of the petitioners. It

is an admitted position that common decision of the Division

Bench of the High Court, has not been challenged higher up

by the respondent-State. Learned senior counsel for the

respondent Shri Madhava Reddy on the other hand fairly

submitted that he could not support provisions which

attempted to bypass the High Court's directions. His

principal submission, however, was that consequential

financial benefits directed by the High Court did not cover

monetary benefits flowing from deemed promotions. He also in

passing submitted that the foundation of the High Court

judgment was displaced by the impugned Act but ultimately

did not pursue the point any further. Hence we need not

dilate on that additional aspect any further.

Conclusion and Reasons for the same

Having given our anxious consideration to rival

contentions we have reached the conclusion that the impugned

provision of the Act, namely, Section 11 Sub-section (2) is

clearly ultra vires the powers of the State Legislature as

it encroaches upon the judicial field and tries to over-rule

the judicial decision binding between the parties and

consequently the relevant sub-sections of Section 4 which

are also in challenge will have to be read down as indicated

hereinafter in this judgment. Before we advert to the

relevant provisions of the impugned Karnataka Act it will be

appropriate to keep in view the settled legal position

governing the present controversy.

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

over-rules 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.

A Constitution Bench of this Court in the case of

Cauvery Water Disputes Tribunal (1993 Supp. (1) SCC 96(II)

had to pronounce on the validity of Karnataka Kauvery Basin

Irrigation Protection Ordinance, 1991 by which an interim

order passed by a statutory Tribunal supported by the

decision of this Court dated 26th April 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 :

"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 (JT 1995

(4) SC 589) a Division Bench of this Court speaking through

Venkatachala, J., had to consider the validity of

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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 :

"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 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

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 Re:

Cauvery Water Disputes Tribunal (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 encoaching upon the judicial power of

the State Vested in a judicial Tribunal

as the Special Arbitration Tribunals

under 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 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

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its legislative power for grant of such

permission as could result in allowing

the State, if nothing else, abuse of its

power of legislation."

In view of the aforesaid settled legal position let us

see how far the impugned provisions of the Act bear

scrutiny.

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.

As already mentioned earlier the petitioners have

attacked the impugned provisions only to the extent they

seek to deprive consequential financial benefits to them on

the basis of deemed promotion given to them by the State in

compliance with the decision of the Division Bench

aforesaid. Consequently we will examine the challenge only

from this limited angle. But before we do so it would be

appropriate to refer to the statutory settings in which the

impugned provisions saw the light of the day. The impugned

Karnataka Act 11 of 1974 is headed by very instructive

Preamble. It will be profitable to glance at the provisions

of the Preamble to the impugned Act :

"An Act to provide for the

prospective promotions of civil

servants, and to regulate the pay,

seniority, pension and other conditions

of service of civil servants in the

State of Karnataka including those that

are allotted or deemed to be allotted to

serve in connection with the affairs of

the State of Karnataka under or in

pursuance of section 115 of the States

Reorganisation Act, 1956:

Whereas on the basis of the ranking

of civil servants in the several inter-

State seniority lists prepared in

pursuance of sub-section (5) of section

115 of the States Reorganisation Act,

1956 (Central Act 37 of 1956), courts

have directed the making of

retrospective promotions to statutory

and other offices;

And whereas as held by the Supreme

Court in Ajit Singh Vs. State of Punjab,

reported in All India Reporter 1967,

Supreme Court 856 and in Income-Tax

Officer, Alleppy Vs. N.C. Ponnoose,

reported in All India Reporter 1970,

Supreme Court 385 appointments of civil

servants to offices in which statutory

functions are exerciseable cannot be

made with retrospective effect;

And whereas retrospective

promotions involve payment of sums of

money to persons who have not worked in

the promotional posts of officers

concerned, to the detriment of the

finances of the State, besides involving

retrospective reversions rendering

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invalid the statutory functions

discharged by the persons reverted;

And whereas retrospective

promotions preclude the determination of

the suitability of the civil servants to

hold the promotional posts or offices

and will enable them to continue in such

posts or offices only on the ground of

their eligibility to promotions,

resulting in the continuance of even

unsuitable civil servants in promotional

posts or offices to the detriment of

public interest;

And whereas it is necessary and

expedient to provide against the said

consequences:

And whereas the Central Government

has given previous approval under the

proviso to sub-section (7) of section

115 of the States Reorganisation Act,

1956 (Central Act 37 of 1956)

communicated in letter No. 5/5/73-SR (S)

dated 22nd February 1973 of the

Government of India, Cabinet

Secretariat, Department of Personnel and

Administrative Reforms;"

A mere look at the third and fourth paragraphs of this

preamble shows the legislative intent to bypass the final

directions contained in the Division Bench judgment of the

High Court or any other same final judgment in favour of

concerned parties that they may be given retrospective

promotions and all monetary benefits pursuant thereto.

Keeping in view the aforesaid key to the passing of the Act,

we will turn now to the relevant provisions of the Act. As

per sub-section (2) of Section 1 of the Act, Section 1 as

well as Sections 2 to 10 and 12 shall be deemed to have come

into force on the first day of November 1956. It is to be

noted that 1st November 1956, was the date on which the

States Reorganisation Act, 1956 was brought into force and

which date under the Reorganisation Act was treated as the

appointed day. Section 2 Clause (a) defines an `allottee' to

mean, `a Government servant allotted or deemed to have been

allotted to serve in connection with the affairs of the

State of Karnataka under or in pursuance of Section 115 of

the States Reorganisation Act, 1956 (Central Act 37 of

1956)'. It is necessary to note that State of Mysore

subsequently got re-designated as State of Karnataka. As per

clause (c) of Section 2 `final seniority list' means, `an

inter-State seniority list of allottees prepared in

accordance with the decisions of Central Government under

the provisions of sub-section (5) of Section 115 of the

States Reorganisation Act, 1956 (Central Act 37 of 1956)'.

Clause (d) of Section 2 defines `inter-State seniority list'

to mean, `an inter-State seniority list prepared from time

to time, on the basis of the seniority in which the

eligibility of an allottee to promotion to higher post or

posts is considered. As the petitioners are allottees within

the meaning of the said term as defined by Section 2(a) we

may straightaway turn to Section 4 of the Act which deals

with such allottees. As some parts of sub-sections of

Section 4 are brought in challenge in these proceedings it

will be profitable to reproduce entire Section 4 with its

sub-sections at this stage :

"4. Promotions, etc., of allottees -(1)

Where the seniority of an allottee as

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specified in the provisional inter-State

seniority list in any class of post or

office has been altered in the final

seniority list relating to that class,

every promotion made on any date after

the first day of November 1956, on the

basis of seniority-cum-merit, shall be

reviewed with reference to the

qualifications and other conditions laid

down in the rules of recruitment

applicable at the relevant time for such

promotion and the ranking in the final

seniority list assigned to the allottees

in that class of post or office. If any

person senior in rank than the person

promoted is held to be suitable for

promotion on such date (hereinafter in

this section referred to as the date of

eligibility), an order shall, subject to

section 9, be made promoting the said

person to officiate in the said post or

office with effect from a prospective

date to be specified in the order.

(2) As soon as may be, after the person

promoted under sub-section (1) is

declared to have satisfactorily

completed the period of officiation in

the promoted post or office an order

shall, subject to section 9, be made

directing that he shall be entitled to

initial pay on the date of actual

promotion to the post or office as if he

was holding the said post or office from

the date of eligibility and drawn the

pay and allowances accordingly, but such

person shall not be entitled to payment

of any arrears for the period prior to

the date of his actual promotion. His

rank in the seniority list of persons in

the class or grade of service to which

he is promoted shall be fixed as if he

had been promoted to that class or grade

of service on the date of eligibility.

(3) Where consequent upon the review of

promotions made under sub-section (1),

it is found that an allottee, who,

before the coming into force of sections

3, 11 and 13 had been promoted to a

higher class or grade of service found

eligible for promotion to that higher

class or grade of service from a date

prior to the date of actual promotion

and subject to section 9, is declared to

have satisfactorily completed the period

of officiation in the promoted post or

office, an order shall be made directing

that he shall be entitled to initial pay

on the date of actual promotion to the

post or office as if he was holding the

said post or office from the date on

which he is found eligible for promotion

and drawn the pay and allowances

accordingly, but he shall not be

entitled to payment of any arrears for

the period prior to the date of the

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actual promotion. [Where, on such review

he is found eligible for promotion to a

higher class or grade of service from a

date subsequent to the date of his

actual promotion to such class or grade

of service, his pay on the date of

eligibility shall be refixed as if he

had been promoted on such date but he

shall not be liable to refund the excess

pay and allowances drawn by him up to

the date of issue of the order fixing

the date of eligibility]. His rank in

the seniority list of persons in the

class or grade of service to which he is

promoted shall be fixed as if he had

been promoted to that class or grade of

service on the date on which he is found

eligible for promotion.

(4) Where an order is made in respect

of any allottee under sub-section (2)

or, as the case may be, under sub-

section (3), and the ranking in the

seniority list of persons in the

promoted class or grade of service, as

fixed by such order, stands revised, the

promotions made from that class or grade

of service to the next higher class or

grade of service shall be reviewed in

accordance with and subject to the

provisions of sub-section (1) as if

reference therein to the final seniority

list were references to the aforesaid

revised seniority list and the

provisions of sub-section (2) shall,

mutatis mutandis, be applicable to every

promotion so made.

(5) The provisions of sub-section (4),

mutatis mutandis, be applicable in

respect of promotions of allottees to

the next higher classes or grades of the

same service.

(6) The provisions of sub-section (3)

shall, mutatis mutandis, be applicable

in respect of review of promotions of

allottees made under sub-sections (4)

and (5).

(7) Where in respect of promotions on

the basis of seniority-cum-merit from

any class or grade of service to the

next higher class or grade of service,

the rules of recruitment require service

for a minimum period in the former class

or grade to become eligible for

promotion, the said period shall in its

application to an allottee eligible for

promotion under this section, be deemed

to be the period during which he

satisfactorily completes the period of

officiation in the post or office of

that class or grade of service and no

such minimum service shall be necessary

in the case of an allottee whose record

of service was satisfactory on the

relevant dates of eligibility or the

relevant dates on which he is found

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eligible for promotion.

(8) In respect of promotions from any

class or grade of service by selection

to the next higher class or grade of

service, where an allottee would have

been eligible for consideration if he

had been promoted to the former class or

grade of service on the basis of his

seniority in the final seniority list,

such allottee, shall, subject to section

9, be considered for selection to the

next higher class or grade of service,

immediately after he satisfactorily

completes the period of officiation in

the said former class or grade of

service. If he is selected and promoted

to the higher class or grade of service

and satisfactorily completes his period

of officiation in the said class or

grade, he shall be entitled to initial

pay on the date of actual promotion to

the said class or grade as if he was

holding the said post or office from the

date on which his immediate junior in

the lower class or grade was promoted to

the said class or grade of service, but

he shall not be entitled to payment of

any arrears for the period prior to the

date of his actual promotion. His rank

in the seniority list of the persons in

the said class or grade shall be fixed

as if he had been promoted on the date

immediately preceding the date on which

his immediate junior in the lower class

or grade was promoted to the selection

class or grade of service.

(9) An order under sub-section (2) in

respect of an allottee who had been

reduced to a lower stage in a time scale

and whose increment had been withheld

shall be subject to such modification as

the State Government may, by order

direct.

(10) No promotions of allottees made on

the basis of any provisional inter-State

seniority list, shall be reviewed except

after the publication of the final

seniority list and in the manner

provided in this section.

Explanation :- For purposes of this sub-

section provisional inter-State list

includes every inter-State seniority

list used as the basis for carrying on

the day-to-day administration whether

prepared by the State Government or

declared by court as operative until the

publication of the final seniority

list."

We may recapitulate at this stage that the petitioners

have mounted a limited attack on the impugned provisions of

the Act in so far 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-

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sections wherein the impugned provisions of the concerned

clauses 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 over-riding effect of the Act.

It reads as under :-

"Over-riding 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."

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 over-rule 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 concerned petitioners 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

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because in identical other 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 over-ride

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.

It was contended by Shri Madhava Reddy that even

assuming that the Division Bench judgment remained binding

on the State despite the provisions of the impugned Act, all

that the Division Bench has directed the State is to

consider the case of the petitioners for deemed promotions

on the basis of the final seniority list. That has already

been done and the petitioners have no grievance for the

same. So far as the consequential financial benefits are

concerned they would not cover the monetary benefits flowing

from such deemed promotions. Even this submission cannot be

countenanced. We have already extracted earlier the

operative portion of the judgment of the Division Bench. It

has been in terms directed that if petitioner is found fit

and promoted he may be given all the benefits consequential

thereto including the financial benefits. It is, therefore,

obvious that once the deemed date of promotion is given to

the concerned petitioners it cannot be merely notional

promotion re-fixing his pay in the promotional cadre with

increments etc. but also would bring in its wake all

consequential financial benefits, namely, the salaries that

have accrued to them on account of such deemed promotions.

Whether such deemed promotions can also entail actual

monetary benefits when the concerned employees had not

worked on the promotional posts, is a question which could

have been agitated by the respondent-State, if so advised,

by challenging the order of the Division Bench before this

Court. That was not done. Instead it resorted to its

legislative power for undoing the said directions of the

Division Bench by arming itself with the power to review

that judgment by resort to its legislative function. That

was clearly not permissible as it was an act of encroachment

on the judicial pronouncement of the High Court which had

remained binding on the respondent-State. The ratio of the

decisions of this Court as discussed earlier clearly get

attracted on the facts of the present case and on the same

grounds on which this Court invalidated the relevant

provisions of Arbitration (Orissa Second Amendment) Act,

1991 in G.C. Kanungo (supra). Section 11 sub-section (2) of

the impugned Act also has to be declared ultra vires and

invalid.

We, therefore, strike down Section 11 sub-section (2)

as unconstitutional, illegal and void. So far as the

underlined impugned portions of Section 4 sub-sections (2),

(3) and (8) are concerned, they clearly conflict with the

binding direction issued by the Division Bench of the High

Court against the respondent-State and in favour of the

petitioners. Once respondent-State had suffered the mandamus

to give consequential financial benefits to the allottees

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like the petitioners on the basis of the deemed promotions

such binding direction about payment of consequential

monetary benefits cannot be nullified by the impugned

provisions of Section 4. Therefore, the underlined portions

of sub-sections (2), (3) and (8) of Section 4 will have to

be read down in the light of orders of the court which have

become final against the respondent-State and in so far as

these provisions are inconsistent with these final orders

containing such directions of judicial authorities and

competent courts, these impugned provisions of Section 4

have to give way and to the extent of such inconsistency

must be treated to be inoperative and ineffective.

Accordingly the aforesaid provisions are read down by

observing that the statutory provisions contained in sub-

sections (2), (3) and (8) of Section 4 providing that such

persons who have been given deemed promotions shall not be

entitled to any arrears for the period prior to the date of

their actual promotion, shall not apply in cases where

directions to the contrary of competent courts against the

respondent-State have become final.

In the result, this writ petition succeeds. Section 11

sub-section (2) is struck down as ultra vires the

legislative powers of the State. Sub-sections (2), (3) and

(8) of Section 4 are read down as aforesaid. The respondent-

State shall comply with the directions contained in the

binding decision of the High Court of Karnataka dated

21.9.1971 in Writ Petition Nos. 2598, 3302-3304 and 4586 of

1970 and shall make available all consequential financial

benefits to the concerned petitioners as directed by the

High Court within a period of eight weeks from the receipt

of the orders of this Court at its end. Rule issued in the

Writ Petition is accordingly made absolute with costs.