IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28th DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOs.53476-477 OF 2016 (GM-RES) BETWEEN:
1. COL. NITTEGUTHU SHARATH BHANDARY S/O LATE K.A. BHANDARY AGED ABOUT 75 YEARS RESIDING AT NO.303 HAT HILL PALMS CASMIR MATHIAS I CROSS BEJAI-KAVOOR ROAD MANGALURU-575004.
2. SRI SANATH KUMAR BALLAL S/O LATE P SHESHAPPA ARIGA AGED ABOUT 69 YEARS RESIDING AT NO.MARUDEVI MANSION KRISHNA NAGAR, PUTTUR-574 203 D.K. DISTRICT.
.… PETITIONERS (By Mr. NARAYANA BHAT M, ADV.) AND:
1. UNION OF INDIA REP. BY ITS SECRETARY MINISTRY OF LAW AND JUSTICE 4TH FLOOR A WING SHASTRI BHAWAN RAJENDRA PRASAD ROAD NEW DELHI-110 001.
2. KARNATAKA STATE LEGAL SERVICES AUTHORITY REP. BY ITS MEMBER SECRETARY "NYAYADEGULA" H SIDDAIAH ROAD BENGALURU-560 027.
3. NATIONAL LEGAL SERVICES AUTHORITY REP BY ITS MEMBER-SECRETARY NO.22/11, JAM NAGAR HOUSE SHAHJAHAN ROAD NEW DELHI-110 011.
… RESPONDENTS (By Mr. C. SHASHIKANTHA, CGC FOR R1 (ABSENT) Mr. M. NAGAPRASANNA, SR. COUNSEL FOR R2 & R3) - - -
These Writ Petitions are filed under Article 226 of the Constitution of India, praying to call for records pertaining to the case of the petitioners. Hold that the clarifications issued by the R-3 by its mail dated 28.7.2016 at Annex-L is ultra vires of the provisions of the legal services authority act 1987 and the rules framed there under and etc.
These Writ Petitions coming on for preliminary hearing in ‘B’ group this day, the Court made the following:-
ORDER Sri.Narayana Bhat M., learned counsel for the petitioners.
Sri.M.Nagaprasanna, learned Senior counsel for the respondent Nos.2 and 3.
2. The petitions are admitted for hearing. With consent of the learned counsel for the parties, the same are heard finally.
3. In these petitions, the petitioners inter alia seek a writ of mandamus to direct the respondents to permit them to continue as members of the Karnataka Lok Adalath for a period of five years. The petitioners have also sought the relief of quashment of clarification dated 28.07.2016 on the ground that the same is ultra vires to the provisions of the Legal Services Authority Act, 1987 (hereinafter referred to as ‘the Act’ for short).
4. Facts giving rise to the filing of the writ petitions briefly stated are that the petitioner No.1 retired as a Colonel from the Indian Army after putting up nearly 30 years of service. The respondent No.2 retired as an Executive Engineer from the Department of Public Works, Government of Karnataka. The petitioners were appointed as Members of the permanent Lok Adalaths on 04.02.2013 for a period of five years. Their tenure was scheduled to come to an end on 03.02.2018. However, on 22.06.2016, the Permanent Lok Adalath (Other Terms and Conditions of Appointment of Chairman and Other Persons) Rules, 2003, were amended and sub-rule (2) of Rule 4 was substituted by providing that the Chairman and other persons shall hold office for a period of five years or till the age of sixty five years, whichever is earlier. In view of the aforesaid amendment in the Rules, since the petitioners had already attained the age of 65 years, they were relieved on 16.08.2016. In the aforesaid background, the petitioners have approached this Court.
5. Learned counsel for the petitioners, while inviting the attention of this Court to Section 27 of the Act, submits that Section 27 does not empower the Central Government to frame the Rules with retrospective effect. Therefore, the amended Rules could not have been invoked to relieve the petitioners. However, he fairly submitted that since the term of the petitioners has already come to an end, the writ petitions be disposed of holding that the action of the respondents in relieving the petitioners was incorrect.
On the other hand, learned Senior counsel for the respondent No.2 submitted that the amendment of the Rules was by way of substitution which is always retrospective in nature and therefore, the amended provisions of Rules were rightly invoked while relieving the petitioners.
6. I have considered the submissions made by the learned counsel for the parties and perused the record. From perusal of Section 27 of the Act it is exhaumatic that the aforesaid Act does not confer any power on the Central Government to frame the Rules with retrospective effect. It is well settled principle of law that a power to frame subordinate legislation with retrospective effect has to be conferred by the parent Act expressly. In the absence of any express stipulation from the parent Act, such a power cannot be exercised by the subordinate legislation. Reference may be made to the decision of the Hon’ble Supreme Court in the case of ‘VICE-CHANCELLOR, M.D.UNIVERSITY, ROHTAK Vs. JAHAN SINGH’ (2007) 5 SCC 77.
7. In view of aforesaid enunciation of law, it is evident that the 2003 Rules which were amended from 22.06.2016 could not apply to the appointment of the petitioners which was made on 04.02.2013. Therefore, the action of the respondents in relieving the petitioners with effect from 16.08.2016 cannot be held to be justified.
Accordingly, the petitions are disposed of.
Sd/- JUDGE RV