28 Jan 2022 7:38 AM GMT
A right once accrued cannot be wiped out by a prospective amendment and the benefits that were acquired under existing rules cannot be taken away by an amendment with retrospective effect, Telangana High Court has held. The observation was made while disposing of a batch of petitions challenging a government order amending the Telangana Police (Civil) Subordinate Services rules because...
A right once accrued cannot be wiped out by a prospective amendment and the benefits that were acquired under existing rules cannot be taken away by an amendment with retrospective effect, Telangana High Court has held.
The observation was made while disposing of a batch of petitions challenging a government order amending the Telangana Police (Civil) Subordinate Services rules because of which the petitioners were deprived of their accrued right for promotion.
A bench of Justice Satish Chandra Sharma and Justice N. Tukaramji observed,
"once a right which has accrued in favour of the petitioners, cannot be wiped out by the impugned amendment and the amendment is certainly not at all applicable with retrospective effect and thus, the question of depriving the petitioners through amendment does not arise."
The facts of the case are as follows:
The State of Telangana has three broad divisions: Special Police, Armed Reserve Police and Telangana State Police and recruitment of all three are done via a common examination conducted by Police Recruitment Board. The recruitment rules provide for the transfer from one division to another and promotions in all three divisions is subject to Recruitment Rules.
The State government in 1997 made three different set of rules to govern separate divisions. Petitioners were initially in Special Police battalions and they opted to transfer from the same to Armed Reserve Police as the recruitment rules provided for such transfer on completion of ten years in service as Constable under the Special Police.
The 1997 rules which became effective from 1999 provided for a 10% quota fixed for appointment by transfer for Constables belonging to Armed Reserve and Special Police and so the petitioners again applied for transfer under Andhra Pradesh Police (Civil Police) Subordinate Service Rules. The Constables were to be granted seniority from the date of initial appointment, irrespective of the division they were in. And the petitioners would have been promoted to the post of Constables if they had been in the Special Police Division and would not have had transferred.
However, while they were waiting for their promotion in the Civil Police organization, another amendment to the rules came in 2018 which introduced a weightage formula for recruitment in the Civil Police.
Counsel for petitioners submitted that a right already accrued before an amendment cannot be wiped out by the amendment and thus the petitioners were entitled to the promotion so desired and thus, such an amendment should be declared ultra vires.
Counsel of respondents argued that Seniority of Constables when transferred from one service to another was a disputed matter and several cases were filed regarding the same and a division bench of this High Court itself had delivered a judgment in 2013 to evolve a formula in respect of grant of weightage of service rendered by the persons who have come on transfer while considering cases for promotion, keeping in mind the interests of direct recruits.
The Court at the outset cleared that amendment nowhere reflected that it is operational with retrospective effect. On further reading of Rule 3 in rules providing the eligibility criteria for appointments on the posts of police constable (civil) and Rule 10(ii), it was cleared that "the police constables who have come on transfer from the armed reserve/special armed reserve are entitled to count their seniority from their appointment in their parent organization."
Since the petitioners were originally appointed as police constables in a different division and had completed almost 17 years of service in two different divisions, they were entitled to be promoted, the Court held.
It further looked at the apex court's judgments in State of Andhra Pradesh v. Ch. Gandhi and Union of India v. Tushar Ranjan Mohanty, A.A. Calton v. Director of Education, National Agricultural Cooperative Marketing Federation of India Limited v. Union of India, State of Madhya Pradesh v. Yogendra Shrivastava and B.S. Yadav v. the State of Haryana, among others, and held that pre-existing rights could not be taken away even by an amendment with retrospective effect and in the present case, the words, "Shall be substituted" have been used in the amendment which was clearly indicative of the fact that the applicability of the statute is not with retrospective effect and thus there is no question of making the rules applicable with retrospective effect.
The Court further clarified that the amendment in the Rules shall only be applicable to persons who have joined the Telangana Civil Police after the said amendment.
Thus, the court directed that all constables who have accrued their rights prior to 2018 are entitled to a grant of seniority and transfers made applicable after the said amendment shall be governed by Amended Recruitment Rules.
Writ petitions were accordingly disposed of and there was no order to costs.
Case Title: D. Swamy Joshua v. State of Telangana & Ors.
Case No: W.P Nos. 4636, 4816, 5181, 7083, 7430, 7513, 8009, 8947 & 22850 of 2018; 22835 of 2020
Citation- 2022 LiveLaw (Tel) 6
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