1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26th DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI WRIT PETITION NO.31490 OF 2016 (S-RES) BETWEEN:
SRI.B.S.DALAYATH AGED ABOUT 48 YEARS S/O.LATE SUBANSAHEB ASSISTANT EXECUTIVE ENGINEER NO.1, WATER SUPPLY AND SANITARY SUB DIVISION (NORTH) 17-18TH CROSS, MALLESHWARAM BANGALORE-560 003 (BY SRI.RAJGOPAL, SR. COUNSEL FOR SRI.NISHANTH A.V. (NOC), ADV.) AND:
1. BANGALORE WATER SUPPLY & SEWERAGE BOARD, 1ST FLOOR, CAUVERY BHAVAN, K.G.ROAD, BANGALORE-560 009 BY IT CHAIRMAN 2. STATE OF KARNATAKA BY ITS SECRETARY, URBAN DEVELOPMENT DEPARTMENT VIKAS SOUDHA BANGALORE-560 001 3. T.R.SRINIVASA S/O.LATE T.RAMAPPA AGED ABOUT 52 YEARS WORKING AS EXECUTIVE ENGINEER S.T.P (V & H) DIVISION BANGALORE WATER SUPPLY AND SEWERAGE BOARD NAYANDANDAHALLI … PETITIONER BANGALORE-560 039 (BY SRI.B.L.SANJEEV, ADV. FOR R1 & R2 SRI.M.S.BHAGWAT, ADV. FOR R3 & R4) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS PERTAINING TO NOTIFICATION DTD: 22.12.2015 AT ANNEXURE-L OF THE R-1 AND PERUSE THE SAME AND TO QUASH THE NOTIFICATION DTD:22.12.2015 AT ANNEXURE-L OF THE R-1 AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 09.07.2019 AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner has sought for the following relief:
a. Call for the records pertaining to Notification bearing No. Aa Ka/Mu Aa Aa – Ka/23-32-2014/3259/2015-15 dated 22/12/2015 at Annexure- L of the first Respondent and peruse the same;
b. Issue a writ of certiorari or any other appropriate order or direction, as the case may be, quashing the Notification bearing No.Aa Ka/Mu Aa Aa- Ka/23- 32-2014/3259/2015-15 dated 22/12/2015 at Annexure-L of the first Respondent.
c. As a consequence of quashing the impugned Notification at Annexure-L direct to the first Respondent to implement the Notification dated 13/5/2014 and Circular dated 1/9/2014 and to promote the petitioner to the post of Executive Engineer from 1/9/2014 by issue of writ of mandamus;
d. Grant such other suitable reliefs as this Hon’ble Court deems fit, in the circumstances of the case.
e. Direct the 1st respondent Board to treat the effective dated of promotion of the petitioner to the cadre of Executive Engineer as 10.08.2014 and grant all consequential benefits including arrears of salary, seniority and future promotion etc., 2. 1st respondent - Bengaluru Water Supply & Sewerage Board (for short ‘BWSSB’) was constituted under the Act called the Bangalore Water Supply and Sewerage Act, 1964 (for short ‘the Act’), while invoking Section 88 of the Act issued Regulation 1981 called Bangalore Water Supply and Sewerage Board, Bangalore Cadre, Recruitment and Promotion Regulations, 1981 (for short ‘Regulation 1981’). The post of Executive Engineer carries pay scale of Rs.1300-1900 and Assistant Executive Engineer Rs.750-1525 respectively. On 28.10.2005, Regulation 1981 was amended called the BWSSB Cadre, Recruitment and Promotion (Amendment) Regulations 2004. Pay scale of Executive Engineer and Assistant Executive Engineer are reserved to Rs.10350-16850, Rs.7500 - 15350 respectively. State Government issued an order called the Karnataka Public Employment (Reservation in appointment for Hyderabad - Karnataka Region) order 2013 on 6.11.2013. Order No.2(iv)(f) relates to local persons. Para No.6 relates to Domicile (local person). On 20.1.2014, The Karnataka Public Employment (Reservation and Appointment for Hyderabad-Karnataka Region) (Amendment) order 2013 was issued, while incorporating various amended provisions. Pursuant to the order 2013, by order dated 13.5.2014, 8% of posts was identified under Group – A - 7 categories. Among them, Item No.6 relates to Executive Engineer. Out of 39 Executive Engineer’s posts 4 posts identified for Hyderabad-Karnataka region. At this juncture, Board sought option from the eligible candidates on 21.5.2014. Pursuant to the same, on 01.09.2014, number of persons opted and four of them are Assistant Executive Engineers and they have been identified as local persons. Among them, petitioner is one of the person whose name is at Sl. No.2.
3. When things stood thus, writ petition Nos.4970-73/2015 were filed, wherein reservation of 8% in respect of identifying post of local persons were subject matter. Petitioner got impleaded himself as respondent No.4. In the said petition, both official as well as contesting respondents filed their objections. During the pendency of writ petition Nos.4970- 75/2015, Board intends to withdraw Notification and Circular dated 13.5.2014 and 1.9.2014 in terms of the Government clarification letter dated 8.6.2015 to the extent that posts of Executive Engineer filled up by method of reservation in promotion only during the period from 3.12.1990 to 2.12.1998. At this juncture, on the submission of the Board counsel to the extent that orders dated 13.5.2014 and 1.9.2014 would be withdrawn, writ petitions were disposed of on 6.11.2015. Consequently, Board withdrew the Notification & Circular on 22.12.2015. In the meanwhile, on 18.11.2014, Regulation 1981 was amended insofar classification. In this regard, a communication was made by the Government to the Board relating to amendment to sub Rule 3 of Rule 5 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 in terms of the Government notification dated 20.9.2013. Thereafter, Regulation 1981 was amended in the year 2014 on 28.11.2014. Clause (2) provides that amendment of 2014 would be effective from the date of Gazette notification, at the same time, amendment of 2014 is substituted, wherein under the category of Group – A is identified from the post of Assistant Executive Engineer to Engineer in chief. 1st respondent-Board made certain correspondence with the Government relating to Executive Engineer for which, Government has clarified on 8.6.2015 vide Annexure-T. With reference to Government order dated 19.6.1999 that reservation in promotion to the post of Executive Engineer was in vogue during the period from 3.12.1990 to 2.12.1998. From 3.12.1998 such reservation in promotion to the post of Executive Engineer is not available.
4. Learned counsel for the petitioner submitted that there is no amendment to the Regulation, 1981 insofar as identifying Executive Engineer as a lowest Group-A. It was also submitted as long as Regulation 1981 is not amended appropriately by issuing amended Regulation to Regulation 1981 in respect of identifying Executive Engineer as Group – A post and Schedule – 1 has not been amended even to this day. Therefore, the post of Executive Engineer is one of the lowest category under Group – A post. In view of these facts and circumstances, withdrawal of the Notification & Circular dated 13.5.2014 and 1.9.2014 is not in terms of Sections 88, 89 r/w Regulation 1981 and so also Regulation Amendment, 2014.
5. The petitioner relied on number of decisions.
One of the proposition is that scope of Government direction to amend the Regulation for justifying/clarification in respect of issue relating to treating Executive Engineer’s post in the BWSSB Board as Group-A.
6. The citations are; in the case of A. Manoharan and Others reported in (2008) 3 SCC 641. Para Nos.22 to 25 are in support of proposition that Administrative decision cannot over ride statute. The relevant para Nos.22 to 25 reads as under:
“22. The legal principle that an administrative act must yield to a statute is no longer res integra. Once a regulation has been framed, in terms of the provisions of the General Clauses Act, the same must be amended in accordance with the procedures laid down under the principal enactment. Even assuming that the Central Government had the jurisdiction to direct the authority to amend the Regulations, it was required to be carried out in accordance with law, and, thus all requisite procedures laid down therefor were required to be fulfilled. (See Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC 1910] , DDA v. Joginder S. Monga [(2004) 2 SCC 297] , Vasu Dev Singh v. Union of India [(2006) 12 SCC 753 : (2006) 11 Scale 108], Kerala Samsthana Chethu Thozhilali Union v. State of Kerala [(2006) 4 SCC 327 : 2006 SCC (L&S) 796] andState of Kerala v. Unni [(2007) 2 SCC 365] .) 23. Recently in Union of India v. Central Electrical & Mechanical Engg. Service (CE & MES) Group ‘A’ (Direct Recruits) Assn., CPWD this Court held: (SCC p. 358, para 10) “10. It is now a well-settled principle of law that an executive order must be passed in conformity with the rules. Power of the State Government to issue executive instructions is confined to filling up of the gaps or covering the area which otherwise has not been covered by the existing Rules. (See Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC 1910] and DDA v. Joginder S. Monga [(2004) 2 SCC 297] .) Such office orders must be subservient to the statutory rules.”
24. The power of the Central Government to issue directions as contained in Section 111 of the 1963 Act cannot be stretched to amend the Regulations. Power must be exercised by the Central Government only in regard to the administration of the Trust. Such a power to issue direction must be construed strictly. (See Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489 : AIR 1979 SC 1628] , Harjit Singh v. State of Punjab [(2007) 9 SCC 582 : (2007) 2 SCC (L&S) 997] ,Ashoka Smokeless Coal India (P) Ltd. v. Union of India [(2007) 2 SCC 640] and Poonam Verma v. DDA [(2007) 13 SCC 154 : (2007) 14 Scale 485] .) 25. Furthermore, the Regulations have been amended only with effect from 11-8- 2004. It would have a prospective effect. It cannot be applied retrospectively. Any vacancy which has arisen prior to coming into force of the said amended Regulations must be filled up in terms of the law as was existing prior thereto. (State of Rajasthan v.R.
Dayal [(1997) 10 SCC 419 : 1997 SCC (L&S) 1631] , SCC para 8.)”
Another decision in the case of A.M. Mani Vs Kerala State reported in 1967 SCC OnLine Ker 66 and the relevant para Nos.4 and 5 reads as under:
4. The main contention advanced before us is that the Government's directive Ext. P-13 is unwarranted by the provisions of the Act; and the Board's proceedings Ext. P-14, having been directed to or at least substantially influenced by the said directive, is also illegal. Section 78A of the Act introduced by the Amending Act 101 of 1956 reads as follows:
“78A(1) In the discharge of its functions, the Board shall be guided by such directions on questions of policy as may be given to it by the State Government.
(2) If any dispute arises between the Board and the State Government as to whether a question is or is not a question of policy, it shall be referred to the authority whose decision thereon shall be final.”
5. On the terms of the Section, the direction issued by the Government may appertain to the discharge of the Board's “functions”. Chapter IV of the Act provides for the Powers and Duties of the Board. After defining what we may call its primary and essential functions it winds up with section 27 stating that the Board shall have “such further powers and duties as are provided in this Act”. The primary functions of the Board are concerned with the generation distribution and utilization of electricity, the development of water power etc. Notwithstanding this indication in Section 27 that the enumeration of the functions of the Board in the preceding provisions is not exhaustive, and the further indication to that effect available from Section 79(k) of the Act that the framing of rules and regulations under section 79 of the Act is one of the functions of the Board, we are of the opinion that the amplitude of the power to issue directions under Section 78A must be a limited one.
7. In support of contention that lowest in Class-I or a group – A petitioner cited T.R. Rangahanumaiah Vs. The State of Karnataka by its Chief Secretary and Others reported in ILR 2007 KAR 2090 and the relevant para Nos.27 and 28 reads as under:
27. In the light of such rival submissions, the question that arises for consideration in these appeals is as to whether the Learned Single Judge is right in taking the view that the post of Development Officer in the services of the Board was not the lowest post in group-A cadre and further that there was no reservation provided for filling up the post of Development Officers by any competent notification issued by the Government in exercise of its law making power or by amending the Regulations of the Board themselves. If this is sustained, the further question is as to whether the writ petitioner is entitled for retrospective promotion with effect from 22-7-1995 with all consequential benefits.
28. Sri P.S. Rajagopal, Learned Counsel for the appellant in WA No. 4233 of 1999 and the fourth respondent in the connected Writ Appeal, has very ably demonstrated that not only the post of Development Officer is the lowest in Class-I or Group-A cadre posts available in the services of the Board, but also that reservation provided for to the post of Development Officer is well sustained by reference to various legislation and Government Notifications in this regard, particularly the Notification dated 27-4-
1978 providing for reservation in promotional posts also, and the further clarification by office memorandum dated 24-7-1978, clarifying that for the purpose of earlier notification dated 27-4-1978, lowest cadre means lowest class-I post in each service and or department and not the lowest class-I post in terms of the general classification of posts made in the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for short, CCA rules) and by reference to Rule 5, 5(c) and 5(3)(a) of the CCA Rules, having demonsrated that in the Board, on applying such parameters, post of Development Officers is the lowest in the cadre of Class-I or Group-A Officers and the subsequent office memorandum dated 3-12- 1990 providing for reservation to the post of executive engineer in Public Works Department, which was in turn extended to the Government owned companies, corporation and boards etc., in terms of subsequent notification dated 2-5-1991 and the Government Notification dated 3-12-1990 itself, having been periodically extended by periods of two years and what was being considered for backlog vacancy being subsequent to 20-5-1991 and when such reservation to the post of executive engineer the equivalent post in the Board is that of Development Officer, such being the position in terms of the Government Notification dated 8-6-1995, not only providing for reservation but also providing for filling up of backlog vacancies are both valid and tenable, particularly all these notifications/official memoranda having been issued by the Government in exercise of its power under Article 309 of the Constitution of India and also in exercise of its executive power under Article 162 of the Constitution. It is therefore submitted that the Learned Single Judge was clearly wrong in allowing the Writ Petition.
8. The aforesaid decision clarifies that there is a reservation in promotion up to and inclusive of lowest class – I or group – A. In the present case, Rules 1981 has been amended in the year 2014 while declaring Assistant Executive Engineer is a lowest in Class-I Group – A. Prior to 8.1.2015, post of Executive Engineer was the lowest in Class-I/Group-A.
9. In support of contention whether amendment Rules 2014 is a prospective or retrospective issue the following decisions were cited:
Dr. Rajinder Singh Vs. State of Punjab and others reported in (2001) 5 SCC 482 and the relevant para 7 reads as under:
7. The settled position of law is that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the Rules, Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a government order and ignoring the mandate of Article 309 of the Constitution.
10. The aforesaid cited decisions are relevant for the present case that BWSSB Board has not adopted reservation in promotion policy of the State Government dated 3.12.1990 (Annexure-R2 notification dated 30.7.2014). Unless and until BWSSB Board modified/amended the relevant Regulations of 1981 and Schedule to the Regulations clarification of the Government and issuance of Notification by the BWSSB Board to treat particular pay scale as a Group-A (Executive Engineer) is impermissible. Regulations has a over riding effect on the Executive Order/Notification. Therefore, the cited decision aptly applicable for the present case.
11. Another decision in the case of Govardhan M. V/s. State of Karnataka and Others reported in 2013(1) Kar. L.J. 437 (DB) and the relevant para 27 reads as under:
27. It is well-settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. The principle is also well settled that statutes should not be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force. When the legislature amends an existing provision in a statute by way of substitution, the effect is the substituted provision stands repealed and the amended provision is substituted in the place of earlier provision in the earlier Act, as if the substituted provision is there in the earlier act from the inception. By express provision or by implication if it is not made clear that it is prospective in nature the said amended provision comes into effect from the date of the earlier Act. But it is not an invariable Rule. If such an interpretation is given, if it leads to repugnancy, inconsistency or absurdity, then the said general rule is not followed. In certain situations, the court having regard to the purport and object sought to be achieved by the Legislature may construe the word "substitution" as an "amendment" having a prospective effect. If the amendment Act expressly states that the substituted provision shall come into force from the date the amendment comes into force, the said provision is prospective in nature. Then it is not open to the Court by way of interpretation to give retrospective effect to such provision. Ultimately to decide whether these provisions are prospective or retrospective, it is the intention of the legislature which is the sole guide. If the procedure adopted for amendment is substitution and in the Amended Act it is specifically stated that the substituted provisions come into effect from the date the amended Rules or Act came into force, the intention of the legislature is clear. On the pretext that it is the case of substitution, the effect cannot be given to that substituted provision from the date of the earlier statute. It has to be necessarily from the date the amended rules came into force.
12. The petitioner’s contention relating to prospectivity of amendment of Regulations, 2014 which has been gazetted on 8.1.2015 (Class-II) of the amendment provides that Amended Regulations 2014 would be in force from the date of gazette notification. In this regard, he has cited the following decisions:
(i) Vice Chancellor M.D. University, Rothak Vs.
Jahan Singh reported in (2007) 5 SCC 77 and the relevant para reads as under:
19. The Act does not confer any power on the Executive Council to make a regulation with retrospective effect. The purported regulations, thus, could not have been given retrospective effect or retroactive operation as it is now well settled that in absence of any provision contained in the legislative Act, a delegatee cannot make a delegated legislation with retrospective effect.
26. We have noticed hereinbefore that the retrospective operation purported to have been given by the Executive Council is ultra vires the Act.
(ii) Hukumchand etc., Vs. Union of India and Others reported in (1972) 2 SCC 601 and the relevant para reads as under:
8. Perusal of Section 40 shows that although the power of making rules to carry out the purposes of the Act has been conferred upon the Central Government, there is no provision in the section which may either expressly or by necessary implication show that the Central Government has been vested with power to make rules with retrospective effect. As it is Section 40 of the Act which empowers the Central Government to make rules, the rules would have to conform to that section. The extent and amplitude of the rule-making power would depend upon and be governed by the language of the section. If a particular rule were not to fall within the ambit and purview of the section, the Central Government in such an event would have no power to make that rule. Likewise, if there was nothing in the language of Section 40 to empower the Central Government either expressly or by necessary implication, to make a rule retroactively, the Central Government would be acting in excess of its power if it gave retrospective effect to any rule. The underlying principle is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that a subordinate law-making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled (see Craies on Statute Law, p. 297, Sixth Edn.).
13. The aforesaid decision is power of the Board to make a Regulations when retrospective effect is not available for the Government as is evident from Section 89 of the Act, 1964. Therefore, the aforesaid decisions assist the petitioner’s case.
14. Per contra, learned counsel for the respondents vehemently contended that Government clarification dated 8.6.2015 is relevant for the purpose of modifying or withdrawing the Notification and Circular dated 13.5.2014 and 1.9.2014 by the 1st respondent Board on 22.12.2015. It was also submitted that in the year 2014, Schedule– I classification of posts are not forthcoming in the absence of classification of posts like Group A and B. Board is required to follow, CCA Rules, 1957 Amendment which is cited in the notification dated 30.7.2014 (Annexure - R2). It was also submitted that amendment Regulations 2014 is substitution of Regulations of 1981 and such amendment and substitution to the Schedule - I to Regulation. Therefore, effect of amendment Regulation 2014 would relates back from the inception of Regulations 1981 i.e., from the date of issuance of Regulations 1981.
15. Learned counsel for the respondents cited the follows decisions:
1. Hardev Singh Vs. Union of India and Another reported in (2011) 10 SCC 236 (para No.8) 2. Zile Singh Vs. State of Haryana and others reported in (2004) 8 SCC 1 (para Nos.24 and 26) 3. State of Karnataka and others Vs. Smt. Akkamahadevamma C.B. and Others vide Judgment and Order dated 18.11.2010 passed in W.P. No.20914/2010 and connected matters (para NO.9) 4. Capt. G.R. Gopinath and Another Vs. Syndicate Bank , Industrial Finance Branch and Others reported in 2019(1) KLJ 349 (DB) Para Nos.19 and 20) 16. Learned counsel for the respondents contend that petitioner was promoted to the post of Assistant Engineer on 11.8.2010. One of the criteria for the post of Executive Engineer is that Assistant Executive Engineer should has rendered minimum four years. Petitioner would be completing four years of service on 10.8.2014. In view of his non-eligibility, petitioner has not made out a case in respect of interference of withdrawal of the Notification and Circular dated 13.5.2014 and 1.9.2014.
17. In reply, learned counsel for the petitioner submitted that Section 88 has not been invoked in order to appraise the clarifications issued by the Government dated 8.6.2015. It was also submitted that amended Regulations 2004 and 2014, there is no amendment to Schedule– I which relates to classification Group –A post. In support of the said contention, he has cited the decision reported in (2001) 5 SCC 482 (Rajender Singh Vs. State of Punjab) to the extent that circular or executive order cannot substitute Regulation/Rules. It was further contended ‘substitution’ word used in amendment Regulation 2014 has no effect in view of Clause – 2 relates to that amendment Regulation 2014 shall come into force from the date of publication in the official Gazette i.e. 8.1.2015. In this regard, he has pointed out from Section 88(c) of the Act, 1964, there is no power to give effect to the Rule or Regulation from retrospective date.
18. Learned counsel for the respondents in proposition of ‘no right to promotion’ relied on the following decisions:
Hardev Singh Vs. Union of India reported in (2011) 10 SCC 121 and the relevant para reads as under:
17. It cannot be disputed that no employee has a right to get promotion; so the appellant had no right to get promotion to the rank of Lieutenant-General but he had a right to be considered for promotion to the rank of Lieutenant-General and if as per the prevailing policy, he was eligible to be promoted to the said rank, he ought to have been considered. In the instant case, there is no dispute to the fact that the appellant's case was duly considered by the SSB for his promotion to the rank of Lieutenant-General.
19. No doubt, an employee has no right to promotion at the same time rights to consideration for promotion is available. Supreme Court in the Case of Ajith Singh and others II Vs. State of Punjab and others reported in (1999) 7 SCC 209 at para No.22 held that right to promotion is a fundamental right. Ultimately, if satisfies the promoting authority in accordance with the Regulations and other criteria. Hence, Hardev Singh’s case is not relevant for the present case.
20. Substitute of a provision has an effect from the date of inception of Rule/Statute, he has cited the decision in the case of Ramkanali Colliery of BCCL Vs. Workmen By Secy. Rashtriya Colliery Mazdoor Sangh and another reported in (2001) 4 SCC 236 and the relevant para No.8 reads as under:
8. The argument advanced now is that protection available under Section 14 is no longer available on the date when the award was made and, therefore, contended that the award is a nullity. The decision in Bhubaneshwar Singh v. Union of India [(1994) 6 SCC 77] is in the context of enactment of law reviewing the defect pointed out in a judgment and retrospectively enacting the law so as to render the judgment of the court ineffective thus enacting a validating provision was considered. What happened in that case was that courts took the view that the sale price of the stock of extracted coal lying at the commencement of the appointed date had to be taken into account for determining the profit and loss during the period of management of the mine by the Central Government. Thereafter, the Coal Mines Nationalisation Laws (Amendment) Ordinance and Act, 1986 was issued. Section 19(2) of the principal Act as introduced by the amending Act Act and Section 19 of the amending Act Act providing that the amount payable as compensation shall be deemed to include and deemed always to have included in the amount required to be paid to the owner in respect of all the coal in stock on the date immediately before the appointed date. The said amending Act Act was held to be valid as it altered the basis of the principal Act with retrospective effect as a result of which the court's judgment was rendered ineffective and, therefore, this Court upheld the said provision. That decision can have no application to the present case nor are we concerned with the validity of the provisions of the enactment in question. What we are concerned with in the present case is the effect of the expression “substituted” used in the context of deletion of sub-sections of Section 14, as was originally enacted. In Bhagat Ram Sharma v. Union of India [1988 Supp SCC 30 : 1988 SCC (L&S) 404 : (1988) 6 ATC 783] this Court stated that it is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new provision substituted. If there is both repeal and introduction of another provision in place thereof by a single exercise, the expression “substituted” is used. Such deletion has the effect of the repeal of the existing provision and also provides for introduction of a new provision. In our view there is thus no real distinction between repeal and amendment or substitution in such cases. If that aspect is borne in mind, we have to apply the usual principles of finding out the rights of the parties flowing from an amendment of a provision. If there is a vested right and that right is to be taken away, necessarily the law will have to be retrospective in effect and if such a law retrospectively takes away such a right, it can no longer be contended that the right should be enforced. However, that legal position, in the present case, does not affect the rights of the parties as such.
21. Zile Singh Vs. State of Haryana and others reported in (2004) 8 SCC 1 and the relevant para Nos.24 and 25 is extracted :
24. The substitution of one text for the other pre-existing text is one of the known and well- recognised practices employed in legislative drafting. “Substitution” has to be distinguished from “supersession” or a mere repeal of an existing provision.
25. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (see Principles of Statutory Interpretation, ibid., p. 565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. v. State of U.P. [(2002) 2 SCC 645] , State of Rajasthan v. Mangilal Pindwal [(1996) 5 SCC 60] , Koteswar Vittal Kamath v. K. Rangappa Baliga and Co.[(1969) 1 SCC 255] and A.L.V.R.S.T.
Veerappa Chettiar v. S. Michael [AIR 1963 SC 933] . In West U.P. Sugar Mills Assn. case [(2002) 2 SCC 645] a three-Judge Bench of this Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centring around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwal case[(1996) 5 SCC 60] this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswar case [(1969) 1 SCC 255] a three-Judge Bench of this Court emphasised the distinction between “supersession” of a rule and “substitution” of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place.
22. Substitution of a provision has effect from the date of inception of a Rule or a statute is required to be examined with reference to the factual aspects of the matter. In the present case, if amended Regulations, 2014 is given effect from the date of its inception i.e. on 30.4.1982. In such an event, rights accrued/crystalised of those Executive Engineer till 8.1.2015 their rights were required to be taken away. Time and again, Supreme Court and Courts have held that accrued rights cannot be taken away by means of introducing amended provision while giving retrospective effect. Therefore, the cited decisions have no assistance to the respondents.
23. In support of contention that amended Rule 2014 has a retrospective effect, he has cited the following decisions:
State of Karnataka V/s Smt. Akkamahadevamma in W.P. Nos.20914/2010 and 23434-452/2010 disposed of on 18.11.2010. Relevant Para No.9 reads as under:
“Therefore, in order to find out whether amended provision is retrospective or prospective, what we have to look at is the legislative intent. In the amended rule, the express words used are ‘shall be inserted’ which means it shall be inserted in the original section. Though this amendment Act came into force from the day the rule was amended i.e., 30.03.2010, Rule 9 as amended comes into effect from the date of its original law i.e., 23.11.2000. The legislative intent is clear and unambiguous. There is no scope for any interpretation. All that we have to do is to give effect to the letter and spirit of amended provision. The additional words introduced into the provision are to be read and construed as if the said words had been written in the original section before amendment, with pen and ink, from the day the said law was made. Therefore, the contention that it is prospective and not retrospective and therefore, respondents herein are not entitled to the benefit of such provision has no substance. In fact, this amendment was necessitated after the Tribunal struck down the provision as unconstitutional and upheld the claim of the respondents and suggested an amendment. Therefore, in the facts and circumstances of the case, it is clear that said amended provision is retrospective in operation and the amendment is carried out in terms of the order passed by the Tribunal and respondents should have the benefit of the amended provision”.
24. In the case of Capt. G.R. Gopinath and another Vs. Syndicate Bank, Industrial Finance Branch, Dickenson Road, Bangalore and others reported in 2019(1) Kar. L.J. 349 (DB). Relevant para Nos.19 and 20 reads as under:
19. Alternatively, for the sake of argument even if the Amendment Act 2016 that takes away the discretion of the DRAT to waive the condition of pre-deposit is assumed to be that of substantive law, the Amendment being by way of substitution, has to be construed as being of retrospective effect. Substitution of a provision of law or the words in a provision of law results in replacement by the new provision when new words are substituted in place of existing ones; therefore, the amended provision should be read as if it existed from the inception of the enactment. The Supreme Court in the case of Shamrao Vs. Parulekar & Others : AIR 1952 SC 324 has expounded on these principles as under:-
".....the Rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity), as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the Amending Act at all "
20. The question whether an amendment by way of substitution would have retrospective effect had fallen for consideration of the Full Bench of this Court in the case of The Hassan Co-operative Milk Producers Societies Union Ltd., and Others vs. State of Karnataka, Department of Co-operative Societies and Others: ILR 2014 KAR 4257. The Court, after considering a catena of decisions, has ruled that such amendments are retrospective in operation in the following:-
"21. We would also like to examine the effect of amendment by way of substitution and to find out whether amendment by Act No.3 of 2013, by way of substitution would have retrospective operation. It is true that substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. When the Legislature amends the old provision by way of substitution it intends to keep alive the old provision. The Supreme Court in ZILE SINGH (supra), while dealing with such situation W.P.No.13681/2017 & W.P.No.34948/2017 - 18 - c/w W.P.No.356/2017 observed that having regard to the totality of the circumstances centered around the issue the Court can hold that the substitution has the effect of just deleting the old provision and making the new provision operative. The Supreme Court in STATE OF RAJASTHAN vs. MANGILAL PINDWAL, upheld the legislative practice of an amendment by substitution being incorporated in the text of a statue which had ceased to exist and held the substitution would have the effect of a amending operation of law during the period in which it was in force. Similarly, in KOTESWAR VITTAL KAMATH vs.
K.RANGAPPA BALIGA, the three Judge Bench of the Supreme Court emphasized the distinction between supersession of rule and substitution of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. Thus, what emerges from the aforesaid judgments of the Supreme Court is that an amendment which has the effect of substitution of a provision has the effect of replacing the old provision by the substituted provision and in the absence of repugnancy, inconsistency and absurdity, must be construed as if it has been incorporated in the Act right from abinitio. In other words, an amendment by way of substitution has retrospective operation."
Therefore, the contention that the amendment in question is prospective in operation, is liable to be rejected.
25. The aforesaid decisions have no assistance to the respondents case for the reason that these two decisions are not relevant to the present matter on factual aspects like Regulations, 1981, whereas in the present case, relates to service matter, if retrospective effect is given to amended Regulations, 2014 accrued right to such of those Executive Engineers who were promoted in terms of reservation in promotion would be affected and rights will have to be taken away during the period from 1982 to 8.1.2015. It leads to Administrative chaos. Therefore, the cited decisions do not assist the respondents in any manner.
26. It was also contended that mere using the word of ‘substitution’ and its effect is required to be examined with reference to Supreme Court decision in case of Govardhan Reported in 2014(1) Ka LLJ 437 (para No.27) to the extent of effect of retrospectivity.
27. Learned counsel for the petitioner made his submission with reference to clarification issued by the Government dated 8.6.2015 that reservation in promotion to the post of Executive Engineer was in vogue i.e. on 3.12.1990 to 2.12.1998 and such reservation is not available from 3.12.1990. On this issue, learned counsel for the petitioner pointed out the power of Government under Section 15 is General duties of the Board. Further, Section 89 relates to Direction of the Government. It was submitted that unless and until relevant Regulations of 1981, 2004 and 2014 are appropriately amended, the clarification by the Government dated 8.6.2015 has no application. Further, respondent-BWSSB has not adopted the Government notification dated 19.6.1999 relating to reservation in promotion to the post of Executive Engineer in the State Government Departments during the period from 3.12.1990 to 2.12.1998.
28. In this regard, he has cited the decision of the Supreme Court in the case of T.R. Rangahanumaiah Vs. The State of Karnataka by its Chief Secretary and Others reported in ILR 2007 KAR 2090 wherein this Court has taken note of Government Official Memorandum dated 24.7.1978 and 27.4.1978 (para Nos.21, 23, 27 and 28). Further, he relied on Full Bench decision of Kerala High Court – 1967 SCC online Ker 66 (para Nos.4, 5 and 6). Another decision in the case of A. Manoharan and others Vs. Union of India and others reported in 2008 (3) SCC 641 (Para Nos.16, 18 and 19, 22 to 25).
29. In the case of M.S.Surendra Reddy reported in (2015) 8 SCC 410 para Nos. 26, 27 and 29 held as under:
“26. In the absence of any express or necessarily implied provision in the statue. Normally a statue affects the rights prospectively. A statutory provision is held to be retrospective either when it is so declared by express terms, or the intention to make retrospective clearly follows from the relevant words and the context in which they occur.
27. The Presidential Order, 1975 was issued in exercise of powers under Clauses (1) and (2) of Article 371-D of the Constitution empowering the State Government under sub- para (1) of para 3 of the said order to organize any class of posts in the civil services under the State into different local cadres in different parts of the State within 27 months from the commencement of the said Order. Under the proviso to sub-para (1) it is stated that notwithstanding the expiration of the said period, the President may by order, require the State Government whenever he considers it expedient to do so to organize any class of posts in civil services of and any class of civil posts under the State into different local cadres or different parts of the State. By the Presidential Order, 1975 the State Government has not been empowered to pass any order under sub-para (1) of Para 3 or Para 8 with retrospective effect. Apart from the fact that the State Government was not empowered by the Presidential Order, 1975 to pass any orders with retrospective date, in the absence of any terms or the intention to make it retrospective date, GOMs No.124 dated:7-3-2002 cannot be given effect from a retrospective date.
30. For the reasons aforesaid, we hold that GOMs No.124 dated 7-3-2002 is prospective and is not applicable to the process of selection started pursuant to Advertisement No.10 of 1999 including the 973 executive posts which were ordered to be filled up by the High Court pursuant to the advertisement. The Tribunal erred in directing APPSC to recast the merit list pursuant to GOMs No.124 dated: 7-3-2002. The High Court by the impugned judgment dated: 27-12-2004 rightly held that the order passed by the Court will not affect the appointments already made to the executive post between 2001-2002 but erred in holding that the selection is to be made in accordance with GOMs No.124 dated: 07.03.2002.”
31. In the case of T. Kaliamurthi and another Vs. Five Giro Thaikakal Wakf and Others reported in 2008 (9) SCC 306 para No.49 held as under:
“Section 107 provides that nothing in the Limitation Act, 1963 would apply to any suit for possession of immovable property, comprised in any wakf or for any interest in such property must be comprised in the wakf or the wakf must have some interest in such properties. If however, the right to property stands extinguished, then Section 107 cannot apply. In the present case, any right which the Wakf had over the property stood extinguished under the Limitation Act, 1908. A similar question came up for consideration of this Court in Yeshwantrao Laxmanrao Ghatge v. Baburao Bala Yadav wherein this Court in para 5 observed as under:
5. In our judgment, there is no substance in any of the points urged on behalf of the appellants. The possession of the purchasers was adverse in respect of all the properties at 1-A to 1-D and 1-F to 1-H from the very beginning. By such adverse possession those who had come in possession of these properties had acquired an indefeasible title under the Limitation Act, 1908. It is not necessary to decide in this case as to which of the articles in the First Schedule of the said Limitation Act applied to this case. Whether it was Articles 134, 134-A, 134-B, 142 or 144 the claim had become barred long, long before the year 1955. The effect of Section 28 of the Limitation Act was that right to the property was extinguished resulting in conferment of a title by adverse possession on the persons in possession of the properties concerned. It is well known that the effect of Section 28 of the Limitation Act is not only to bar the remedy but also extinguish the right. The right to the property itself was dead and gone. It could not be revived by a provision like the one contained in Section 52-A of the Act.”
32. Hitendra Vishnu Thakur and others Vs.
State of Maharashtra reported in 1994 SCC (Cri) 1087 para No.26 held as under:-
“The Designed Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the Court. From the law settle by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exist in procedural law.
(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.”
33. Learned counsel for the petitioner further pointed out from Annexure-P dated 10.6.2015 by which promotion have been effected while applying reservation in promotion with reference to Board decision, promotion dated were issued on 18.3.2015.
34. Learned counsel contesting respondents submitted in the absence of amendment to schedule – I in amended Regulation 2004 and 2014 Annexure-R2 holds good. Regulation need not be amended insofar as identifying the Scale of the post. Classification of post is required only with reference to Karnataka Civil Service (CCA) Rules, 1957. Hence, there is no infirmity in taking note of the Government clarification relating to identifying lowest group-A post. It was further contended that Annexure-N dated 28.11.2014 has not been questioned and it is intact to the extent on Schedule - I to Regulations 1981. Hence, it has a retrospective effect from the date of introduction of Regulations 1981. The State Government powers have not been decided in terms of Section 89. State Government has power to issue direction to the Board and Board has carried out in terms of the clarification issued by the Government dated 8.6.2015 in respect of reservation in promotion to the post of Executive Engineer.
35. At this stage, learned counsel for the petitioner pointed out that Regulation 2014 provides amendment of Schedule - II only. Therefore, Schedule – I which has not altered and it is existing in terms of Regulation 1981 holds good. Therefore, question of implementation of the Government clarification is impermissible.
36. Heard the learned counsel for the parties.
37. Question for consideration in the present petition is, “Whether withdrawal of notification and circular dated 13.05.2014 and 01.09.2014 (Annexures – ‘E’ and ‘F’) vide notification dated 22.12.2015 (Annexure ‘L’) by respondent No.1 – (BWSSB) is in order or not?”
38. The following provisions and the Executive Orders/communication are to be examined in the matter. Sections 15, 88, 89, 122 of the Act, 1964 15. General duties of the Board.—(1) The Board shall be charged with the general duty of providing a supply and improving the existing supply of water in the Bangalore Metropolitan Area and of making adequate provision for the sewerage and the disposal of the sewage in the Bangalore Metropolitan Area and for the efficient discharge of such duty the Board shall exercise such powers and perform such functions as are conferred or imposed by or under this Act.
(2) Without prejudice to the provisions of sub- section (1), it shall be the duty of the Board to take steps from time to time,— (a) for ascertaining the sufficiency and wholesomeness of water supplies within the Bangalore Metropolitan Area;
(b) for preparing and carrying out schemes 1 [x x x]1 for the supply of wholesome water for domestic purposes within the Bangalore Metropolitan Area; 1. Omitted by Act 6 of 1966 w.e.f. 17.3.1966.
(c) for preparing and carrying out schemes 1 [x x x]1 , for the proper sewerage of, and the disposal of the sewage of, the Bangalore Metropolitan Area. 1. Omitted by Act 6 of 1966 w.e.f. 17.3.1966. 1 [Provided that no scheme under clause (b) or (c) estimated to cost more than a crore of rupees shall be carried out by the Board except with the approval of the State Government.] (3) A scheme under clause (b) of sub-section (2) shall inter alia make provision,— (a) for a supply of wholesome water in pipes to every part of the Bangalore Metropolitan Area in which there are houses, for the domestic purposes of the occupants thereof, and for taking the pipes affording that supply to such point or points as will enable the houses to be connected thereto at a reasonable cost, so however, that this clause shall not require the Board to do anything which is not practicable at a reasonable cost or to provide such a supply to any part of the Bangalore Metropolitan Area where such a supply is already available at such point or points aforesaid;
(b) for a supply, as far as possible, of wholesome water otherwise than in pipes in every part of the Bangalore Metropolitan Area in which there are houses, for the domestic purposes of the occupants thereof, and to which it is not practicable to provide a supply in pipes at a reasonable cost, and in which danger to health arises from the insufficiency or unwholesomeness of the existing supply and a public supply is required and can be provided at a reasonable cost, and for securing that such supply is available within a reasonable distance of every house in that part.
(4) If any question arises under clause (a) of sub-section (3) as to whether anything is or is not practicable at a reasonable cost or as to the point or points to which pipes must be taken in order to enable houses to be connected to them at reasonable cost, or under clause (b) of the said sub-section, as to whether a public supply can be provided at a reasonable cost, the State Government shall determine that question and thereupon the Board shall give effect to that determination.
(5) Without prejudice to the provisions of sub- sections (1), (2) and (3), the Board shall, for the purposes of securing, as far as is reasonably practicable, that every house has a sufficient supply of wholesome water for domestic purposes, exercise its powers under this Act of requiring the owners of houses to provide a supply of water thereto.
88. Regulations.—(1) The Board may with the previous approval of the State Government make regulations not inconsistent with this Act and the rules made thereunder to provide for all or any of the following matters, namely:— (a) the administration of the funds and other property of the Board and the maintenance of its accounts;
(b) the summoning and holding of meetings of the Board and the times and places at which such meetings shall be held, and the conduct of business thereat and the number of members necessary to constitute a quorum;
(c) the duties of officers and servants of the Board, and their salaries, allowances and other conditions of service;
1 [(d) the fine which may be imposed for the breach of any bye-law, which may extend to one hundred rupees, and in case of continuing breach the additional fine which may extend to ten rupees for every day, during which the breach continues after receipt of a notice from the Board to discontinue the breach.] (e) the procedure to be followed by the Board in inviting, considering and accepting tenders;
(f) any other matter arising out of the Board’s functions under this Act in which it is necessary or expedient to make regulations.
(2) The power to make regulations under this Act is subject to the condition of previous publication.
89. Directions by the State Government.—.The State Government may, issue to the Board such directions as it may think necessary for the purpose of carrying out the functions under this Act and the Board shall comply with such directions.
122. Rules and regulations to be laid before State Legislature, etc.—(1) Every rule or regulation made under this Act and every order made under section 129 shall be laid, as soon as may be after it is made, before each House of the State Legislature while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if before the expiry of the said period, either House of the State Legislature makes any modification in any rule or regulation or order or directs that any rule or regulation or order shall not have effect, and if the modification or direction is agreed to by the other House, such rule or regulation or order shall thereafter have effect only in such modified form or be of no effect, as the case may be.
(2) A rule or regulation under this Act may be made with retrospective effect and when such a rule or regulation is made the reasons for making the rule or regulation shall be specified in a statement laid before both Houses of the State Legislature. Subject to any modification made under sub-section (1), every rule or regulation made under this Act shall have effect as if enacted in this Act.
39. BWSSB Cadre and Recruitment and Promotion Rules, 1981 notified on 30.04.1982.
Rule 3 relates to Classification of posts.
Rule 19 relates to appointments by promotion. Rule 21 relates to reserve powers.
Schedule - I relates to classifications of posts consists of group , Nomenclature and pay scale.
40. From Executive Engineer to Chief Engineer is a group A post and pay scale is Rs.1300-1900 and schedule – II relates to mode of appointment to various posts.
41. BWSSB Cadre, Recruitment and Promotion (amendment) Regulations, 2004 notified on 28.10.2005.
a) Amendment of Schedule – II of BWSSB cadre, recruitment and Regulations, 1981 (method of recruitment to certain posts) b) The Karnataka Public Employment (Reservation in appointment for Hyderabad-
Karnataka Region) Order, 2013 notified on 6.11.2013.
c) Under chapter – II (13) – State level Offices or Intuitions or Apex Intuitions – 8% of the posts in the following State Level Offices or State Level Institutions or Apex Institutions reflecting population percentage of the Region in total population of Karnataka in all departments, body or organization and at upto levels of Group A (Junior Scale) post shall be reserved for Local persons of the region.
(j) The Bangalore Development Authority/Bruhat Bangalore Mahanagara Palike /Similar Institutions serving the capital city of the state, Bangalore.
BWSSB is one of the Institutions serving the capital city of the Stage, Bengaluru.
42. The Karnataka Public Employment (Reservation in appointment for Hyderabad – Karnataka Region) (amendment) Order 2013 para No.13 of the order 2013 was amended and other provisions of order, 2013.
43. BWSSB notified four sanctioned posts of executive Engineer/Deputy Chief Engineer out of 39 posts to meet 8% of reservation vide order, 2013. BWSSB issued a circular on 1.9.2014 relating to exercising of option to Hyderabad - Karnataka Region from the Assistant Executive Engineer and various posts. Four Assistant Executive Engineer have exercised option in terms of order, 2013 and subsequent notification.
44. BWSSB cadre, Recruitment and promotion (Amendment) Regulations, 2014 notified on 28.11.2014.
1. Title and Commencement: These Regulations may be called the BWSSB Cadre, Recruitment and promotion (Amendment) Regulations – 2014.
2. It shall come into force from the date of publication in the official gazette.
Amendment of Schedule – I of BWSSB Cadre, Recruitment and Regulations, 1981.
Schedule – I to the BWSSB Cadre, Recruitment and Regulations – 1981 shall be and shall always be deemed to have been substituted by Schedule – I to these Regulations.
Amended Regulations 2014, Schedule – I reclassifies group A to D. Under the head of Group – A posts Assistant Executive Engineer to Engineer-in-Chief is treated as Group – A post.
45. Board sought clarification from Government in respect of Reservation in Promotion to the post of Executive Engineer on 10.3.2015.
46. Government clarification relates to reservation in Promotion to the post of Executive Engineer issued on 8.6.2015 stating that reservation in promotion to the post of Executive Engineer is during the period from 3.12.1990 to 2.12.1998 47. BWSSB issued a notification relating to adoption of amendment to the Karnataka Civil Service (Classification, Control and Appeal) Rules, 1957 while classifying Group-A post in the pay scale of Rs.16690 – 35690 (Annexure-R2) are identified as group – A post. This is pursuant to Government notification No. 73 2012 dated 20.09.2013 r/w Board decision dated 6.6.2014 and approval of proceedings by Chairman dated 18.7.2014.
48. Moot question for consideration are ‘post of Executive Engineer which was lowest scale of pay under group – A category has been modified to the extent that w.e.f. 28.11.2014 or date of gazette – 8.1.2015 or w.e.f. 30.04.1982 date of issuance of Rules, 1981 is required to be examined to the extent whether BWSSB Cadre, Recruitment and Promotion (Amendment) Rules, 2014 has a retrospective effect from the date of inception of Rules 1981 or not?
49. DPAR has issued order relating to Reservation in Promotion in the Government service on 27.4.1978 and 24.7.1978, wherein it is stated that reservation in promotion would be up to and inclusive of Junior class – I post.
50. Extract of Government Orders dated 27.4.1978 and 3.12.1990 are reproduced hereunder:
“38.2 Sub: Reservations for persons belonging to Scheduled Castes and Scheduled Tribes under Article 16 (4) of the Constitution in specified categories of promotional vacancies.
G.O. NO.DPAR 29 SBC 77, Dated: 27TH April 1978.
The question of making reservations under Article 16(4) of the Constitution in promotional vacancies has been engaging the attention of Government for sometime past. After considering all aspects of the matter. Government have decided to make reservations in favour of persons belonging to Scheduled Castes and Scheduled Tribes in promotional vacancies also, to the extent indicated in the succeeding paragraphs.
2. Government are accordingly pleased to direct that there shall be reservations for persona belonging to Scheduled Castes and Scheduled Tribes at 15 per cent and 3 percent respectively of vacancies to be filled by promotion in all the cadres upto and inclusive of the lowest category of Class I posts in which there is no element of direct recruitment and if there is an element of direct recruitment, such element of direct recruitment does not exceed 66 2/3 percent.
3. The reservations shall be made for each category of posts under each promoting authority according to the percentages indicated in para 2. For the purpose of calculating the vacancies to be reserved for persons belonging to Scheduled Castes and Scheduled Tribes, rotation of 33 vacancies shall be followed for each category of posts under each authority competent to order promotions.
5. In giving effect to these orders, against vacancies reserved for persons belonging to Scheduled Castes, the senior most qualified and suitable persons belonging to Scheduled Castes and against vacancies reserved for persons belonging to Scheduled Tribes, the senior most qualified and suitable persons belonging to Scheduled Tribes shall be promoted irrespective of their ranking in the overall seniority list of the cadre from which promotion has to be made.
6. If on any occasion of promotion, qualified and suitable Scheduled Castes or Scheduled Tribes candidates for whom vacancies are reserved are not available, such vacancies shall be filled by promotion of qualified and suitable persons from amongst others in accordance with the rules of recruitment. The vacancies lost to persons belonging to Scheduled Castes and Scheduled Tribes on account of such promotions shall not be carried forward and future vacancies shall be filled up according to rotation as indicated in the Annexe to this order.
7. Inter se seniority amongst persons promoted on any occasion shall be determined in accordance with Rule 4 or 4-A (as the case may be) of the Karnataka Government Servants (Seniority) Rules, 1957.
8. Government are also pleased to direct that all institutions received grants or aid from Government, other than the educational institutions established and administered by minorities based on religion or language, shall also be required to make reservations in employment under them in accordance with the provisions of this order.
9. Under Government Order No. GAD 6 SBC 75, dated: 3rd May, 1975 as amended, and G.O. No. DPAR 1 SBC 77, dated 4th March, 1977, the Secretaries to Government were requested to issue directives to Companies, Statutory Boards, Corporations, etc., under their administrative control whether fully owned or partly owned by Government to make reservations for persons belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes. The Secretaries to Government are requested to issue, in the same manner, additional directives to the Companies, Boards, etc., to follow the provisions of this order also. The draft of the directive which was forwarded to the Secretaries to Government under Government Order dated 3rd May, 1975 should be modified suitably to include, the provisions of this order.”
38.11 Sub: Reservation for persons belonging to Scheduled Castes/ Scheduled Tribes under Article 16 (4) of the Constitution of India in promotion to the post of Executive Engineers in the Public Works and Irrigation Department- Provision for reservation – Orders thereon.
Read: 1. G.O. No. DPAR 29 SBC 77, dated 27th April 1978.
2. O.M.No.DPAR 29 SBC 77, dated 1st June, 1978.
3. O.M.No.DPAR 29 SBC 77, dated 24th July, 1978 4. G.O. No. DPAR 22 SBC 79, dated 30th August 1979.
5. Circular No. DPAR 5 SBC 80, dated 19th January, 1980.
Preamble: In Government Order dated 27-4- 1978 and O.M. dated 24-7-1978 read at (1) and (3) above, provision has been made for reservation in promotion to the persons belonging to SCs/STs under Article 16 (4) of the Constitution of India at 15% and 3% respectively of vacancies in all cadres upto and inclusive of the lowest category of Class I (now Group ‘A’) post in the service or department in which there is no element of direct recruitment and if there is an element of direct recruitment, such element of direct recruitment does not exceed 66 2/3%. Roster annexed in G.O. dated 30-8-1979 read at (4) above. The manner in which these orders governing reservation in promotion are to be implemented have been elaborately made clear in other Government Orders, Official Memorandum and Circulars read above.
On a demand made by the employees belonging to SCs/STs in the Public Works and Irrigation Department to extend the policy of reservation in promotion upto the cadre of Executive Engineers, in the Public Works and Irrigation Department Government have examined the question in great detail and come to the conclusion that the representation of SCs/STs in the cadre of Executive Engineers is far short of the optimum level of 15% and 3% respectively. Government have, therefore, considered necessary to extend the benefits of reservation in promotion to the level of Executive Engineers as a temporary measures to bring it upto the required percentage.
G.O.No.DPAR 18 SBC 86, dated 3rd December, 1990 After careful consideration of all aspects of the case, Government are pleased to extend the benefit of reservation for persons belonging to Scheduled Castes and Scheduled Tribes in promotion to the extent of 15% and 3% respectively, to the cadre of Executive Engineers in the Public Works and Irrigation Department, for a period of two years, with immediate effect. This is subject to all other terms and conditions contained in the orders on the matter issued from time to time insofar as they are applicable to the cadre of Executive Engineers.
51. In the present case, in terms of Rules, 1981 notified on 30.4.1982 wherein, the post of Executive Engineer has been identified as Junior Class – I (lowest post under group A category) was up to 28.11.2014 or 8.1.2015 or w.e.f. 30.4.1982, since reclassification of lowest post Executive Engineer to that of Assistant Executive Engineer which has been substituted by BWSSB Cadre and Recruitment (Amendment) Rules, 2014.
52. In order to appreciate whether clarification dated 10.3.2015 and 8.6.2015 r/w Annexure - R2 – notification dated 30.7.2014 issued by the BWSSB for the purpose of identifying Executive Engineer post is no more Junior class (group – A) while incorporating Assistant Executive Engineer under Group – A. It is to be noted that no documentary evidence has been furnished by the respondents to the extent that reservation in promotion which was in vogue in the State Government during the period from 3.12.1990 to 2.12.1998 for the post of Executive Engineer have been adopted and amendment to Schedule – I of Regulation, 1981 has been carried out. Therefore, Schedule – I to the Rules, 1981 identified the Group – A wherein Executive Engineer is a lowest Group – A post is in vogue till the date of Gazettee notification dated 8.1.2015. Reservation in promotion to the post of Executive Engineer from time to time extended from 30.4.1982 till 8.1.2015 as is evident from record. Further, Annexure – R2 relating to adoption on amended Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. Insofar as classification of posts group - A to D is concerned merely passing a resolution, obtaining approval of the Board and Chairman has no effect unless and until necessary amendment is carried out under Regulation, 1981 notified on 30.4.1982. Therefore, one has to draw inference reservation in promotion to the cadre of Executive Engineer in the BWSSB is permitted up to 8.1.2015, the date on which notification dated 28.11.2014 was gazetted in respect of BWSSB cadre, Recruitment and Promotion (Amendment) Rules, 2014 (with reference to Rule 2) to the extent that (Amendment Rules, 2014) would be in vogue from the date of gazette notification w.e.f. 8.1.2015. It has no retrospectivity, so as to take away the rights of such of those Executive Engineers who were promoted in terms of reservation in promotion during the period from 30.4.1982 to 8.1.2015. If Regulation, 2014 is effected from 1982 reservation in promotion done from 1982 to 8.1.2015 would leads to undone of promotions, which would leads to administrative chao’s.
Distinction between repeal and amendment and/or substitution:
53. It is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new provision substituted. Such deletion has the effect of repeal of the existing provision. Such a law may also provide for the introduction of a new provision. There is no real distinction between ‘repeal’ and an ‘amendment’. In Sutherland’s Statutory Construction, the learned author makes the following statement of law:
“The distinction between repeal and amendment, as these terms are used by the Courts, is arbitrary. Naturally the use of these terms by the Court is based largely on how the Legislature have developed and applied these terms in labeling their enactments. When a section is being added to an Act or a provision added to a section, the Legislatures commonly entitled the Act as an amendment ……. When a provision is withdrawn from a section, the Legislatures call the Act an amendment particularly, when a provision is added to replace the one withdrawn. However, when an entire Act or section is abrogated and no new section is added to replace it, Legislatures label the Act accomplishing this result a repeal. Thus, as used by the Legislatures, amendment and repeal may differ in kind – addition as opposed to withdrawal or only in degree – abrogation of part of a section as opposed to abrogation of a whole section or Act; or ; more commonly, in both kid and degree – addition of a provision to a section to replace a provision being abrogated as opposed by abrogation of a whole section of an Act. This arbitrary distinction has been followed by the Courts, and they have developed separate rules of construction for each. However, they have recognized that frequently an Act purporting to be an amendment has the same qualitative effect as a repeal – the abrogation of an existing statutory provision – and have therefore applied the term ‘ implied repeal’ and the rules of construction applicable to repeals to such amendments”.
Repeal of Amending Act: -
It has been a practice in India to repeal (in due course) an enactment which virtually amends an earlier enactment. This is only a cleaning operation. As has been said about Repealing and Amending Acts periodically evaded, “Mostly they expurgate amending Acts, because, having imparted the amendment to the main Acts, those Acts (amending Acts) have served their purpose and have no further reason for their existence.
Illustration- In the Wireless (Telegraphy) Act, 1933, Section 6(1-A) was introduced by the Amending Act of 1949. The Act of 1949 was repealed by the Repealing and Amending Act of 1949. It was held that the textual amendment made in 1949 stood unaffected.
Substitution of a Provision:- In State of Maharashtra v Central Provinces Manganese Ore. Co. Ltd., the Supreme Court observed that the mere use of the word ‘substituted’ does not ipso facto or automatically repeal a provision until the provision which is to take its place is constitutionally permissible and legally effective. It relied upon the following principle of construction stated in Halsbury’s Laws of England:
“Where an Act passed after 1850 repeals wholly or partially and former enactment and substitutes provision for the enactment repealed, the repealed enactment remains in force until the substituted provisions come into operation.”
And it was further observed:
“We do not think that the word ‘substitution’ necessarily or always connotes two severable steps, that is to say, one of repeal and another of a fresh enactment even if it implies two steps. Indeed, the natural meaning of the word ‘substitution’ is to indicate that the process cannot be split up into two pieces like this. If the process described as substitution fails, it is totally ineffective so as to leave intact what was sought to be displaced. That seems to be us to be the ordinary and natural meaning of the words ‘shall be substituted’.
Amending Act – Amendments taking away substantive right – Applicability to pending proceedings:- The principles that have to be applied for interpretation of statutory amendments taking away substantive rights are well established. The first of these is that statutory provisions creating substantive rights or taking away substantive rights are ordinarily prospective; they are retrospective only if by express words or by necessary implication the Legislature has made them retrospective; and the retrospective operation will be limited only to the extent to which it has been so made by express words, or necessary implication. The second rule is that the intention of the Legislature has always to be gathered from the words used by it, giving to the words their plain, normal, grammatical meaning. The third rule is that if in any legislation, the general object of which is to benefit a particular class of persons, any provision is ambiguous so that it is capable of two meanings, one which would preserve the benefit and another which would take it away, the meaning which preserves it should be adopted. The fourth rule is that if the strict grammatical interpretation gives rise to an absurdity or inconsistency, such interpretation should be discarded and an interpretation which will give effect to the purpose the Legislature may reasonably be considered to have had will be put on the words, if necessary, even by modification of the language used.
54. Assuming that if there is any ambiguity in (Amendment) Regulation, 2014 dated 28.11.2014 dated 28.11.2014 (Annexure-N) in respect of Rule 1 and 2 viz., 1. Title & Commencement: These Regulations may be called the BWSSB Cadre, Recruitment and Promotion (Amendment) Regulations – 2014 2. It shall comes into force from the date of publication in the official gazettee.
Amendment of Schedule – I of BWSSB Cadre, Recruitment and Regulations – 1981.
Schedule – I to the BWSSB Cadre, Recruitment and Regulations – 1981 shall be and shall always be deemed to have been substituted by Schedule– I to these Regulations.
55. In such an event, sub Section 19 of Section 3 and Section 6 of the General Clauses Act, 1897 would spring into action. The provisions are reproduced herein:
3(19). “enactment” shall include a Regulation (as hereinafter defined) and any Regulation of the Bengal, Madras or Bombay Code, and shall also include any provision contained in any Act or in any such Regulation as aforesaid;
6 Effect of repeal: Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
56. The following decisions of the Supreme Court are aptly applicable:
G. Ekambarappa and others. Vs. Excess Profits Tax Officer, Bellary reported in AIR 1967 SC 1541 in Para No.4 reads as under:-
4. The present Bellary district was a part of the old Madras State which was a Part “A” State under the Constitution of India till its merger with the Mysore State on October 1, 1953 which was a Part “B” State. The Mysore State continued to be a Part “B” State till November 1, 1956. The Act extended, when first promulgated, to the territory of former British India. After the Constitution came into force, Section 1(2) of the Act was adapted so as to extend the operation of the Act “to the whole of India except Part ‘B’ States” by the Adaptation of Laws Order, 1950. After the formation of new States in pursuance of the States Reorganisation Act, 1956 (Act 37 of 1956), sub-section (2) of Section 1 of the Act was adapted by the President by Adaptation of Laws (No. 3) Order, 1956 dated December 31, 1956. Section 1(2) of the Act as adapted read as follows:
“It extends to the whole of India except the territories which immediately before the 1st November, 1956 were comprised in part ‘B’ state.”
The result of the adaptation was that all the provisions of the Act stood repealed so far as the district of Bellary was concerned with effect from December 31, 1956. It was contended on behalf of the appellants that it is not a case of repeal of the Act and so the provisions of Section 6 of the General Clauses Act could not be invoked to sustain the validity of the notices issued by the respondent under Section 15 of the Act. It was argued that so far as the Act was concerned, the Adaptation of the Laws Order, 1956 only modified the provisions of Section 1(2) of the Act and did not repeal the Act as such and the effect of the modification was that the provisions of the Act were no longer applicable to the Bellary district which was comprised in the territory of Part ‘B’ State of Mysore immediately before November 1, 1956. In our opinion there is no justification for the argument put forward on behalf of the appellants. The result of the Adaptation of Laws Order, 1956 so far as the Act was concerned, was that the provisions of that Act were no longer applicable or in force in Bellary district. To put it differently, the Act was repealed so far as the area of Bellary district was concerned. Repeal of an Act means revocation or abrogation of the Act and, in our opinion, Section 6 of the General Clauses Act applies even in the case of a partial repeal or repeal of part of an Act. Section 6 of the General Clauses Act states:
“Effect of repeal.— Where this Act or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not— (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or Section 3(19) of the General Clauses Act defines an “enactment” as including “a Regulation and also as including any provision contained in any Act or in any such Regulation as aforesaid”.
57. Gujarat Electricity Board vs. Shantilal R.Desai reported in AIR 1969 SC 239 in Para no. 15 reads as under:-
15. It was next contended on behalf of the respondent that by the time the licence period expired, Section 7 of the Act had been amended and Section 71 of the Electric (Supply) Act, 1948 repealed, no provision was made to preserve the rights already acquired under those provisions, hence the appellant is not entitled to purchase the undertaking. It is not the case of the respondent that either expressly or by necessary implication, the new law had taken away the right acquired earlier. That being so Section 6 of the General Clauses Act comes to the aid of the appellant. That section provides that where that Act or any Central Act or Regulation made after the commencement of that Act repeals an enactment hitherto made or hereafter to be made then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It also saves the previous operation of any enactment so repealed or anything duly done or suffered thereunder.
58. State of Rajasthan Vs. Mangilal Pindwal reported in (1996) 5 SCC 60 para no.12 reads as under:-
12. This means that as a result of repeal of a statute the statute as repealed ceases to exist with effect from the date of such repeal but the repeal does not affect the previous operation of the law which has been repealed during the period it was operative prior to the date of such repeal. The effect of the amendments that were introduced in sub-rule (2) of Rule 244 of the Rules vide notifications dated 2-9-1975 and 26-11-1975 whereby the said sub-rule was substituted with effect from 2-9-1975 is that sub-rule (2) which was introduced on 19-8-1972 ceased to exist with effect from 2-9-1975 but it was operative during the period from 19-8-1972 to 1-9-1975. It is settled law that a rule made in exercise of the power conferred by Article 309 of the Constitution can have retroactive operation. Since sub-rule (2) of Rule 244 of the Rules, as introduced in August 1972, was operative during the period from 19-8-1972 to 1-9-1975, it could be amended in exercise of the rule- making power under Article 309 of the Constitution so as to operate during the period from 19-8-1972 to 1-9-1975. The notification dated 11-3-1976, by substituting sub-rule (2) of Rule 244 of the Rules, repealed the said provision that was operative during the period from 19-8-1972 to 1-9-1975 and replaced it by another provision which was to be operative during the said period. The said notification cannot be held to be invalid on the basis that the said amendment sought to amend a provision which was not in existence. The Statement of Law in Sutherland on Statutory Construction, on which reliance was placed by the learned Judges of the High Court, that a repealed law cannot be amended has no application in the present case.
59. In view of the Principle laid down supra Gazettee Notification dated 8.1.2015 Annexure-N would be prospective effect and not retrospective.
ORDER (i) Writ petition stands allowed.
(ii) In the light of discussion on factual and legal aspects, impugned notification dated 22.12.2015 vide Annexure- L is set aside.
(ii) BWSSB- respondent is hereby directed to give effect to the Notification dated 13.5.2014 and Circular dated 1.9.2014 and consider the name of the petitioner for promotion to the cadre of Executive Engineer from the date he was eligible and to that effect pass orders. Such Exercise be undertaken within a period of two months from today.
(iii) Rule is made absolute on the aforesaid terms.
Costs made easy.
Sd/- JUDGE BS