Judgment:
ORDER
V. Dhanapalan, J.
1. This Writ Petition has been filed, praying for issuance of a writ of certiorari, to call for the records of second respondent pertaining to B.P. No. 36/2004, Personnel and Administration (R&A;) Department, dated 05.01.2005, quash the same and consequently direct second and third respondents to implement explanation 4 of Regulation 5 of the Chennai Metropolitan Water Supply and Sewerage Board Employees (Discipline and Appeal) Regulations,1978, by counting previous service in the higher grade.
2. The case of the petitioners is as under:
2.1. The first petitioner is registered under Societies Registration Act. The engineers working in the second respondent Board are members of the first petitioner association. Therefore, the association is espousing the cause of the engineers working in the second respondent Board. The second petitioner joined the services of the second respondent as Assistant Engineer on 29.10.1979 and he was promoted to the post of Assistant Executive Engineer on 19.08.1986. Thereafter, he was promoted as Executive Engineer on 07.10.2002.
2.2. Under the service regulations of the second respondent Board, there is no power for the Board to withhold promotion on the ground that an employee is undergoing punishment or facing disciplinary proceedings. However, the second respondent had been passing off the names of the employees who were undergoing punishment at the time of consideration of promotion or who were facing disciplinary proceedings. After passing off, the second respondent was promoting the employees after currency of the punishment or disciplinary proceedings and restoring seniority in the promoted post. In such process, the employees were losing their monetary benefit alone and their status and seniority in the promoted post were restored, by invoking explanation 4 to regulation 5 of the CMWSSB (Discipline and Appeal) Regulations (in short, the Regulations).
2.3. While so, the second respondent passed the impugned Board Proceedings No. 36/2004, dated 05.01.2005, whereby explanation 4 to regulation is amended, by deleting the same. Consequently, the restoration of seniority, on being promoted after undergoing penalty or facing disciplinary proceedings, is taken away. In the said process, several members of the petitioner association are affected in general and the second petitioner in particular. Therefore, the deletion of explanation 4 of regulation 5 of the Regulations is illegal, arbitrary and in violation of the Chennai Metropolitan Water Supply & Sewerage Act,1978.
3. Respondents 2 and 3 have filed a counter, stating as follows:
3.1. In exercise of the powers conferred by Clause (c) of Sub-section (2) of Section 81 of Chennai Metropolitan Water Supply and Sewerage Act,1978, the Board has framed the Regulations for the employees of the Board. Regulation 5 deals with the penalties that are to be imposed upon employees of the Board. The second petitioner was framed with charges under Regulation 10 (2) of the Regulations for certain allegations of misconduct and irregularities and awarded with a punishment of stoppage of increment for six months without cumulative effect while he was working as Assistant Executive Engineer. Due to pendency of charges framed against him, his name was not considered and was passed over from the panel for the year 1999-2000 for promotion to the post of Executive Engineer. Subsequently, he was promoted as Executive Engineer during the year 2002. The second petitioner, after getting promotion as Executive Engineer two years later than his juniors due to pendency of charges, represented to restore his original seniority in the cadre of Executive Engineer on par with his seniority in the feeder category viz., Assistant Executive Engineer.
3.2. The Board is also following the rules applicable to Government servants and the Government has clarified in its letter dated 26.07.2004 that the names of the individuals whose cases were passed over in view of the currency of punishment may be considered for inclusion in the subsequent panel, if they are otherwise found qualified, and that the seniority of the individuals cannot be restored in the higher posts after completion of punishment.
4. Learned Counsel for the petitioners has cited the following authorities:
(i) Confederation of Ex-Servicemen Assns. v. Union of India 2006 SCC (L&S;) 2002 :
22. We have given anxious and thoughtful consideration to the rival contentions raised by the parties. So far as the preliminary objection regarding maintainability of the petition is concerned, it may be stated that the petitioner has asserted in the petition that it is a confederation of five ex-servicemen associations formed in furtherance of a common cause. The aims and objects of the Confederation have also been annexed as set out in the MoU (Annexure P-1). In the affidavit-in-reply filed by the Under-Secretary working with the Ministry of Defence, it was stated that he is 'not aware' of the existence of the petitioner organisation. He, however, stated that the organisation 'does not seem' to be a registered body to represent the cause of ex-servicemen. The rejoinder-affidavit unequivocally states that the objection raised by the Union of India is incorrect. The Confederation was registered under the Societies Registration Act, 1860. Likewise, all associations which constitute the Confederation are similarly registered individually. It is further stated that the Air Force Association and the Indian Ex-Services League are even recognised by the Ministry of Defence, Union of India. It, therefore, cannot be said that the petitioner Confederation is not registered and the petition filed is not maintainable. In view of the fact that some of the associations have been recognised even by the Ministry of Defence, the deponent ought not to have raised the objection regarding maintainability of the petition without ascertaining full facts and particulars. We leave the matter there holding the petition maintainable.(ii) P. Ganeshwar Rao v. State of A.P. 1989 SCC (L&S;) 123 :
8. In Eramma v. Verrupanna, the words 'the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter' in Section 8 of the Hindu Succession Act, 1956 came up for consideration. In that case this Court held that the words 'the property of a male Hindu dying intestate shall devolve' occurring in Section 8 made it very clear that the property whose devolution was provided for by that section must be the property of a person who had died after the commencement of the Hindu Succession Act and it could not be the property which belonged to a Hindu male who had died before the said Act came into force. The effect of the use of the word 'arising' in the Special Rules qualifying the word 'vacancies' is also the same. The clause which was introduced in the Special Rules by the amendment made on April 28, 1980 cannot, therefore, be interpreted as having any effect on the vacancies which had arisen prior to the date of the amendment. We do not find any indication in the amendment that was made on April 28, 1980 that it would be applicable to the vacancies which had arisen prior to the date of the amendment even by necessary implication. In the instant case the State Government had taken the decision even before the amendment came into force to fill up the vacancies by direct recruitment according to the law prevailing then. Had it been the intention of the State Government, while promulgating the amendment that the amendment should be applicable to the vacancies which had arisen prior to the date of the amendment simultaneously the State Government would have addressed a letter to the Public Service Commission to make recruitment in accordance with the Special Rules as amended on April 28, 1980. No such action was taken by the State Government in this case.(iii) N.T. Devin Katti v. Karnataka Public Service Commission : (1990)IILLJ456SC :
11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and government orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection is accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature.(iv) P. Mahendran v. State of Karnataka 1990 SCC (L&S;) 163:
4. ...In view of these facts, the sole question for consideration is as to whether the amendment made in the Rules on May 14, 1987 rendered the selection illegal. Admittedly, the amending Rules do not contain any provision enforcing the amended Rules with retrospective effect. In the absence of any express provision contained in the amending Rules it must be held to be prospective in nature. The Rules which are prospective in nature cannot take away or impair the right of candidates holding Diploma in Mechanical Engineering as on the date of making appointment as well as on the date of scrutiny by the Commission they were qualified for selection and appointment. In fact the entire selection in the normal course would have been finalised much before the amendment of Rules, but for the interim orders of the High Court. If there had been no interim orders, the selected candidates would have been appointed much before the amendment of Rules. Since the process of selection had commenced and it could not be completed on account of the interim orders of the High Court, the appellants right to selection and appointment could not be defeated by subsequent amendment of Rules.
5. 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. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. Since the amending Rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.
(v) Mohd. Habibul Haque v. Union of India 1995 SCC (L&S;) 777:
4. It is seen that in the decision taken by the Department on 6-6-1968 reorganising the preventive officers cadre and sanction of the posts, it was specifically stated that the creation of the usual scale of pay of the allowances of 245 earmarked posts of Preventive Officers Grade I and consequent abolition of 245 posts of Preventive Officers Grade II would indicate that the officers holding the posts of Preventive Officers Grade II as on that date are entitled to be considered for fitment as and when the vacancies would arise. But for the removal of the appellant from service, he would have been entitled to be considered for fitment in the grade of Preventive Officers, Grade I, when his juniormost officer, namely, Sarup Kumar Ghosh was considered and promoted w.e.f. 29-2-1968. The High Court fell in error in considering that there was a punishment imposed upon the appellant in the order dated 9-8-1973. It is seen that the punishment imposed was only reduction of scale of pay for one year with cumulative effect. That does not have the effect of reducing his seniority nor would it be a punishment of reduction of seniority of any placement which the appellant would be entitled to hold in the order of seniority. Under those circumstances, we are of the view that the appellant is entitled to be adjusted in the cadre of Preventive Officers, Grade I, w.e.f. 29-2-1968, the date on which his immediate junior was considered and was given fitment as Preventive Officer, Grade I.(vi) B.L. Gupta v. M.C.D. 1998 SCC (L&S;) 532:
9. When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been held to be prospective by the High Court and in our opinion this was the correct conclusion. This being so, the question which arises is whether the vacancies which had arisen earlier than 1995 can be filled as per the 1995 Rules. Our attention has been drawn by Mr Mehta to a decision of this Court in the case of N.T. Devin Katti v. Karnataka Public Service Commission. In that case after referring to the earlier decisions in the cases of Y.V. Rangaiah v. J. Sreenivasa Rao, P. Ganeshwar Rao v. State of A.P. and A.A. Calton v. Director of Education it was held by this Court that the vacancies which had occurred prior to the amendment of the Rules would be governed by the old Rules and not by the amended Rules. Though the High Court has referred to these judgments, but for the reasons which are not easily decipherable its applicability was only restricted to 79 and not 171 vacancies, which admittedly existed. This being the correct legal position, the High Court ought to have directed the respondent to declare the results for 171 posts of Assistant Accountants and not 79 which it had done.(vii) V. Rangaiah and Ors. v. J. Sreenivasa Rao and Ors. : (1983)IILLJ23SC :9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules, a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event, the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and therefore, there was no question of challenging the new rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.
5. On the other hand, learned Counsel for the respondents has relied upon the following decisions:
(i) Lakshmi Shankar Mills (P) Ltd. v. The Authorised Officer/Chief Manager, Indian Bank 2008 (2) CTC 529:
13. ...It is a recognized rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they harmonized with the object of the statute and which effectuate the object of the legislature...(ii) An unreported decision of this Court in W.P. No. 25209/2007, dated 03.10.2007:
11. The Government instructions in the matter of preparation of the panel for appointment by promotion/recruitment by transfer, in G.O.Ms. No. 248/P & AR (S) Department, dated 20.10.1997, and further instructions issued in Govt. letter No. 25165/S/98-1, dated 10.06.1998, regarding the effect of punishment of inclusion of the panel for further promotion, are as follows.
12. The Government in G.O. Ms. No. 368, Personnel and Administrative Reforms (S) Department, dated 18.10.1993, directed the Heads of Departments/Departments of Secretariat to follow certain norms for preparing the panels for appointment by promotion/recruitment by transfer for State and Subordinate Services. Subsequently, the Government in their letter in Ms. No. 248/P & AR (S) Department, dated 20.10.1997, directed that the norms contained in the said letter should be read along with the existing guidelines issued in the above Government Order, uniformly in all cases, without giving any room for difference in norms from one Department to another. Clause 4-II of the above letter is extracted hereunder:
II.EFFECT OF PUNISHMENTS ON INCLUSION IN THE PANEL:
1. As warning or service warning is not a statutory punishment and since there is no provision or appeal, it need not be held against the officer, whether it was awarded after framing of charges under Rule 17 (e) or 17 (b) of the Tamil Nadu Civil Services (D & A) Rules.
2. Any punishment, other than 'Censure', imposed on an Officer within a period of five years prior to the crucial date and a punishment of 'Censure' within a period of one year prior to the crucial dated should be held against the Officer. In such a case the Officer's name should be passed over.
Provided that if the Officer was imposed with any of the punishments within the check period as mentioned above for irregularities/delinquencies which occurred five years prior to the date of punishment, such punishment need not be held against him.
Provided that an Officer, passed over once, need not be passed over for the second time on account of the same punishment at the time of subsequent consideration for the next panel.
3. Currency of punishment:
Whenever an officer is undergoing a punishment and there is currency of punishment on the crucial date the name should be passed over at the time of first consideration irrespective of the time of occurrence of irregularity. If the currency of that punishment continues at the time of subsequent consideration for the next panel then the name may be included in the panel, on the basis that a name should not be passed over for the second time on account of the same punishment.
4. It is further clarified that charges framed under Rule 17 (b) of the Tamil Nadu Civil Services (D&A;) Rules and any of the punishments awarded after the crucial date and till the date of issue of the panel, shall also be taken into consideration for assessing the availability of the Officer for inclusion in the panel.
Subsequently, the Government in letter No. 25165/S/98-1, dated 10.06.1998, amended Clause 4-II (3) of the above Government letter and substituted as follows:
The punishment of censure has no currency. Whenever an officer is undergoing any punishment, other than censure, on the crucial date or on the ate of consideration, then irrespective of the time of occurrence of the irregularity, his name should be passed over for that panel. If the currency of punishment continues at the time of subsequent consideration for the next panel (s), he should still be passed over on the grounds that an officer should not be considered for promotion or promoted during the currency of any punishment. After the completion of its currency, no punishment should be held, once again, against an official even it falls within the check period of any panel, if it has already been held against the official on any earlier occasion.13. The Board in their resolution in Res. No. 114/2000, dated 06.03.2000, adopted to follow the above said norms and instructions issued by the Government and issued Board Proceedings in B.P. No. 12 of 2000, P&A; (R&A;) Department, dated 13.03.2000. In the light of the above said instructions, al the departments have to scrupulously follow the consolidated instructions issued by the Government in the matter of preparation of panel and CMWSSB is no exception to the same.
6. On the basis of the above pleadings, I have heard the learned Counsel for the parties and also gone through the records.
7. At the outset, it is to be stated that during the pendency of this Writ Petition, the second respondent Board, vide its proceedings No. P&A;/STF/RA1/47434/2006, dated 26.04.2007, restored the seniority of the second petitioner in the cadre of Assistant Executive Engineer, as per the provision in the explanation 4 of Regulation 5, which existed at the time of his representation, and as was done in the case of Thiru D.Chandrahasa, Assistant Executive Engineer, during the year 1999 and also as directed by the Government in their letter No. 30903/MW/2004-3/MA&WS; Department, dated 07.04.2005. So, the Writ Petition has become infructuous, as far as the second petitioner is concerned.
8. Adverting to the prayer for quashing the impugned proceedings in B.P. No. 36/2004 (Personnel and Administration (R&A;) Department, dated 05.01.2005, let me first extract explanation 4 of Regulation 5 of the Regulations, which was deleted:
An employee on whom the penalty of withholding of increments or promotion is imposed will on re-promotion count his previous service in the higher grade unless the order of punishment or the orders passed on appeal directs otherwise.
9. Under Section 81(2)(c) of the Chennai Metropolitan Water Supply and Sewerage Act,1978, the Board had framed the Regulations, for the employees of the Board. Under the said provision, Regulation 5 deals with penalties that are to be imposed upon the employees of the Board. Since the existence of explanation 4 had led to a lot of confusion and misinterpretation, whereby leading to certain invalid claims to restore the original seniority of those whose names had been passed over from the panel for promotion to the next cadre due to the punishment imposed on them, it was decided to delete the provision from the Regulations.
10. Initially, the above proposal was placed before the Management Committee for discussion and recommendation to the Board. The Management Committee, in its meeting held on 02.12.2003, decided to recommend the proposal to the Board for annulment of explanation 4 of Regulation 5 in the Regulations. The Committee also directed that before placing it to the Board, clarification from the Government be obtained. Accordingly, the Government clarified in its letter No. 36368/MW2003-4, Municipal Administration and Water Supply Department, dated 15.10.2004 as follows:
There is no such provision in the rules applicable to Government Employees to restore seniority of a person already overlooked in a panel due to currency of punishment as in explanation-4 of the Regulation-5 of CMWSS Board Employees (D&A;) Regulations 1978. Since CMWSS Board is following Government Rules, the decision of the Management Committee of the Board for annulment of explanation-4 of the Regulation-5 of the CMWSSB (D&A;) Regulations 1978 is reasonable.
The Government also requested to send necessary proposal for amendment to the Regulation-5 of the CMWSS Board Employees (D&A;) Regulations 1978 after getting clearance in the Board.
11. Accordingly, as resolved by the Management Committee and the clarification obtained from the Government, the proposal for deleting the provision in Explanation-4 under Regulation 5 of the Regulations was placed before the Board for approval. The Board, in its Resolution No. 239/2004, dated 22.12.2004, accorded approval for deleting the provision in Explanation-4 under Regulation 5 of the Regulations.
12. It is true, the Board has a right to make regulations for governing the service conditions of its employees. But, when the employees acquire a right to get restoration of seniority, the same cannot be taken away by the subsequent amendments retrospectively, which means, the employees, who suffered punishment and consequential pass over prior to amendment/deletion, should be given the benefit of explanation 4, restoring the seniority in the promoted post, and the deletion will have only prospective effect, unless the order of punishment or the orders passed on appeal direct otherwise.
13. It is a settled law that every statute or statutory rule is prospective, unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect the existing rights, the rule must be held to be prospective. Even if a rule is expressed in the language which is of either interpretation, it ought to be construed as prospective only.
14. In the case on hand, the impugned order makes it clear that the amendment to regulation takes effect from the date of approval i.e., 22.12.2004 and it does not contain any provision, enforcing the amendment with retrospective effect. In the absence of any express provision contained in the order impugned, it must be held to be prospective in nature. The regulation, which is prospective in nature, cannot take away or impair the right of employees, which right has accrued prior to the amendment coming into force.
15. Writ Petition is disposed of accordingly. No costs. Consequently, the connected W.P.M.P. No. 2343 of 2005 and W.V.M.P. No. 1206 of 2005 are closed.