P. Jagan Mohan Reddy, C.J.
1. The petitioner is an Adi Andhra belonging to a scheduled caste. He is in the service of the Government of Andhra Pradesh, having entered it as a Lower Division clerk in the Revenue Department of East Godavari District on 15-4-1940. He was subsequently promoted as an Upper Division Clerk in 1950 and thereafter transferred to the Development Department in the Secretariat Service in a similar post in 1954. On 31-12-1955. he was promoted as a Section Officer. It is the petitioner's case that the Government of Andhra Pradesh. in preparing panel of names from among the Section Officers of the Secretariat for appointment to the Posts of Assistant Secretaries for the year 1964-65 in the year 1964. did not include the petitioner's name, though he is the senior most among the Scheduled Caste employees eligible for appointment to the 9th 16th and 22nd vacancies in a cycle of 25 vacancies of the posts of Assistant Secretaries, in accordance with Rule 8 of the Special Rules for Andhra General Service Class IX, (hereinafter referred to as the 'Special Rules') read with Rule 22 of the General Rules for the State and Subordinate Services Rules (hereinafter referred to as the 'General Rules').
Even when the Government mad e temporary appointments pending selection by the Andhra Pradesh Public Service Commission, it made appointments in contravention of the statutory rules and executive instructions contained in their Memoranda Nos. 2273/62-8 (General Administration (Services -D) Department dated 19-7-1963 and No. 3743/63-1 General Administration (Services -D) Department dated 13-9-1963 in the last of which, it stated that the rules of reservation must be followed when making appointments even on temporary basis in spite of several representations, no notice was taken of the claim of the petitioner, and the Government gave an endorsement to the petitioner stating that this case for selection to the post of an Assistant Secretary would be considered in due course, and ignoring his rights, a panel was finally approved and appointments were made in pursuance thereof on 1-3-1965. It is therefore prayed that a direction be given to the Government to follow Rule 8 of the Special Rules read with Rule 22 of the General Rules in preparing a panel for appointment of Assistant Secretaries from among the Section Officers for the year 1964-65 by including the petitioner's name for selection by the Andhra Pradesh Public Service Commission to a post in the 9th vacancy in the cycle of 25 vacancies and that pending disposal of the writ petition, to direct the Government not to make further appointments to the posts of Assistant Secretary.
2. According to the petitioner in his reply affidavit to the counter of the 1st respondent, Government of Andhra Pradesh, his writ petition having been admitted, two weeks time was taken by the Government of filing a counter, and in the meanwhile the Government deleted Rule 8 of the Special Rules by G. O. Ms. No. 2066 General Administration (Services-B) Department dated 15-11-1965 with retrospective effect to come into force on 1-1-1961.
3. The Government's attitude was that there were only two Section Officers belonging to the scheduled castes in the Departments other than Law and Finance Departments other than Law and Finance viz., (1) the petitioner and (2) K. Lakshmana Rao, that their ranking was 183 and 212 respectively in the common seniority list of all the Departments except Law and Finance, that in view of the heavy responsibilities attached to the post of Assistant Secretary to the Government, a policy decision was taken by the Government not to apply the rule of special representation for purposes of appointment to the category of Assistant Secretaries to Government, even though the Special Rules provide for the same. IN furtherance of that policy, Rule 8 of the Special Rules was deleted from 1-1-1961. It was stated that the name of the petitioner was included in the list of eligible Section Officers, i.e., those who have put in more than 5 years service as Section Officers, and that the same was sent to the Andhra Pradesh Public Service Commission, that the Public Services Commission was also informed of the Government's decision not to apply the rule of special representation in respect of appointments to the category of Assistant Secretaries to Government and that necessary action will be taken to amend the Special Rules suitably, that eligibility by itself does not entitle the Section Officers automatically to the appointment, and that the Public Service Commission will have to consider the suitability of the candidates from a list of eligible candidates.
4. We give below Rule 22 of the General Rules and Rule 8 of the Special Rules:
Rule 22: Where the Special Rules lay down that the principle of reservation of appointment shall apply to any service class or category, appointments thereto shall be made on the following basis.
(a) The unit of appointment for the purposes of this rule shall be hundred of which fourteen shall be reserved for the Scheduled Castes, three shall be reserved for Scheduled Tribes and the remaining eighty-three shall be filled on the basis of merit.
(b) The claims of members of the Scheduled Castes and the Scheduled Tribes shall also be considered for the eighty-three appointments which shall be filled on the basis of merit and where a candidate belonging to a scheduled Caste, or Scheduled Tribe is selected on the basis of merit, the number of posts reserved for Scheduled Castes or Scheduled Tribes as the case may be, shall, in no way be affected.
(c) Appointments under this rule shall be made in the order of rotation specified below in every circle of twenty-five vacancies:-
1. Open Competition. 2. Scheduled Tribes.
3. to 8 Open Competition.
9. Scheduled Castes.
10 to 15 Open Competition.
16 Scheduled Castes.
17 to 21 Open Competition.
22 Scheduled Castes.
23 to 25 Open Competition.
(d) If a qualified and suitable candidate belonging to any of the Scheduled Castes or the Scheduled Tribes is not available for appointment in the turn allotted for them in the cycle, the turn will lapse and the vacancy shall be filled by a candidate of the next turn in the order of rotation. No account shall be taken on any lapsed turns of the Scheduled Castes or of the Schedules Tribes.'
Rule 8: 'The rule of reservation of appointments (General Rule 22) shall apply separately to recruitment by transfer or promotion, as the case may be, to each of the following two categories namely;-
(1) Deputy Secretaries to Government, not borne on the Indian Administrative Service Cadre, and
(2) Assistant Secretaries to Government in all the Departments of the Secretariat taken together as one unit other than Law and Finance Departments where the rule shall apply separately to each of the above two categories, each of the said two Departments taken as a separate unit.'
5. It will be observed that the claims of the candidates belonging to the Scheduled Castes and Scheduled Tribes, though reserved in accordance with Rule 22, would be considered in a unit of 100 in every cycle of 25 vacancies in accordance with Rule (c): nonetheless, under clause (b) of Rule 222, for the remaining 83 appointments, i.e., after deducting the reservations for the Scheduled Castes and Scheduled Tribes from 100, if a candidate belonging to the Scheduled Caste or Scheduled Tribe is selected on the basis of merit, they have to be appointed without in any way affecting the reservation for the Scheduled Castes or Scheduled Tribes. In so far as appointments to the reserved posts are concerned candidates qualified and suitable will be appointed. Under Cl. (d) of R.22, if qualified and suitable candidates are not available for promotion in the turn allotted for them in the cycle, their turn will lapse and the vacancy will be filled by candidates in the next turn in order of rotation.
6. The question now for consideration is whether a Scheduled Caste candidate can be said to be available for appointment, only if he is in the first 100 qualified candidates, or whether any person qualified irrespective of what his seniority is can be considered as being suitable for the reserved post. We do not think it was seriously contended that the persons to be considered for reserved posts should fall within any particular unit, because when the rule specified a unit of 100, it only refers to the unit of appointment and not to the availability of the candidates. The 25 appointments or the 100 appointments can be made from any number of candidates who are qualified, depending upon their suitability for filling posts whether by open competition or by virtue of the reservation . IN this view, under Rule 22 of the General Rules read with Rule 8 of the Special Rules, the petitioner would be qualified for being considered by the Public Service Commission. which would have to determine whether he is suitable for appointment.
7. But it may be stated that the Government had taken a policy decision even earlier, i.e. from December 1962, not to enforce the reservation, and were giving effect to it each year by executive instructions. When the selection of the panel was made by the Public Service Commission, the Chief Secretary to Government, while sending a panel of names and indicating his own inclination did not send a separate panel of Scheduled Castes candidates qualified for being considered by the Public Service Commission because, as he said in his letter No. 3390/63 dated 13-7-1964 it has been decided by the Government not to apply the rule of special representation while making appointments to the category of Assistant Secretaries to Government and that necessary amendments to the Special Rules for the Andhra General Service Cl. IX will be issued separately,' and 'the present panel may therefore be prepared without following the rule of reservation as was done previously.' In view of this categorical direction by the Chief Secretary on behalf of the Government the Public Service Commission could not have considered and in fact we are certain that it did not consider, case of the petitioner or any other Scheduled Castes candidate for 9th or 16th vacancy.
8. If this was the only point to be considered in this writ petition, we would have had no difficulty but it is contended on behalf of the Government that since the rule has been amended with retrospective effect, the petitioner has no right to be considered for a reserved post. Mr. Narasaraju, on the other hand submits firstly, that at the time when the Public Service Commission was considering the panel, the rule was in existence and it was bound to consider the suitability of the petitioner for being included in the panel, and since it has not done so, the panel as now approved is bad secondly, that the Governor has no power to delete the rule with retrospective effect. In other words, the question which we are called upon to consider is whether the Governor or any person nominated by him has power to make rules with retrospective effect under Article 309 of the Constitution. It is contended by the learned Advocate General, keeping in view the decision of a Bench of this Court in a batch of Writ Appeals Nos. 29 of 1965 etc. D/- 6-4-1967 (AP), Sriharinaidu etc. v. Government of Andhra Pradesh, that the power of the Governor as the executive head and a delegate or donee under a statute of the legislature of a State is different from the power of the Governor as a direct recipient of the power to make rules, under the Constitution. According to the learned Advocate-General, the power of Governor or any other person whom he may direct, to make rules, is coeval, co-extensive and similar to the power of the legislature to make a law and, therefore he contends that the rules made by the Governor with retrospective effect are valid.
Sri Narasaraju, however, submits that the very language of the Article 309 shows that the Rule is not treated as on par with the Act of a Legislature and the Governor or any person directed by him is therefore, not conferred with a power to give retrospective effect to the rules made by him. IN the unreported judgment, to which reference has already been made the question that fell for consideration was whether the executive can withdraw a notification giving exemption from tax retrospectively. The learned Advocate General had contended in that case that a rule or notification made in exercise of the powers conferred by a statute when made, has the force of law and is as if enacted by the Legislature as part of the Statute. On that premise, he contended that the power conferred by the legislature on the subordinate or delegated authorities to make a rule or notification to carry out the purposes of the Act. can be exercised to give retrospective operation to the rule or notification, just in the same way as a Legislature could, in exercise of its sovereign legislative power enact legislation retrospectively. He had submitted that if there is no express prohibition the executive will have power to issue a retrospective notification.
In that batch of Writ Appeals, Mr. Narasaraju had intervened, because any decision rendered on this question was likely to affect the instant case. He contended that under the scheme of separation of powers. the power to make a law is vested in the legislature alone. The executive has no power to make a law. AS such the grant of a power to the executive by the legislature to make a rule or notification is governed by the terms of the delegation. It cannot, therefore, be said that when the legislature delegates its power, it abdicates its power, which includes the power to enact a retroactive law, and which is an incident of a sovereign legislature. It was therefore contended that because the executive derives the power to make a rule or notification from the legislature, the extent of the delegation is the deciding factor: it determines the scope and ambit of that power. In the circumstances, the power conferred by a legislature on an executive authority, does not by itself imply that the executive authority has power to exercise it retrospectively, unless that power is specifically conferred. After considering the several contentions in that case and the decisions referred to the Bench, to which one of us (the Chief Justice) was a party, observed as follows:
'It appears to us that while a legislature, unless it is prohibited by the Constitution, in exercise of its sovereignty, has the power to legislate retrospectively, any power delegated by such legislature to an executive authority cannot, unless the power to exercise it retrospectively is either expressly or by necessary implication, granted to it, exercise it retrospectively. The extent of the powers of the legislature and of the delegate of an authority delegated to it are not co-extensive or similar. In construing the rules made or notifications issued in exercise of the powers vested in an executive authority, the ordinary rule of construction is that effect must be given to them from the date of their promulgation. The executive authority has no power to give effect to them retrospectively, unless the terms of the grant of the power by the legislature empower the delegate to exercise it retrospectively. ...........
'It appears to us that the preponderance of the view is that unless a power to give effect retrospectively is conferred for making a Rule or issuing a notification, it is not permissible to the delegate to exercise that power retrospectively. Their Lordships of the Supreme Court also have quite categorically, as has been seen, stated that the power must be exercised within the ambit of the delegation. IN our view, if the power to act retrospectively is not delegated whether you come to this conclusion on a consideration of the policy, intendment or implication of the legislation under which the power is conferred or by adopting a rule that unless express delegation, retrospective effect cannot be given, there is no warrant for the broad proposition that every delegation carries with it the power to exercise it retrospectively.
9. The learned Advocate General submits that the contention now raised before us, namely that as the Governor is a direct recipient of the power under Article 309 of the Constitution, just in the same way as the Legislature is a recipient of that power, he can, likewise, make a law giving it retrospective effect was not decided in the case. It was further contended that we had pointed out in that judgment that in B. N. Nagarajan v. State of Mysore, 0043/1966 : (1967)ILLJ698SC it was sought to be executive cannot frame rules retrospectively unless the Act specifically empowers, it to do so and that the position is the same under the proviso to Article 309 of the Constitution, but Sikri, J., delivering the judgment of their Lordships of the Supreme Court had observed that it was not necessary to decide that point in the cases before them because they were of the view that the appeal could be disposed of on another ground. In this view the argument of the Advocate-General in this case is a new one as such it is necessary to consider this question and in doing so to examine the language of Article 309 of the Constitution, which we give below:-
'Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have made effect subject to the provisions of any such Act.'
10. It is contended by the learned Advocate-General firstly, that a rule, by reference to the definition of 'law' in Article 13(3) and of 'existing law' in Article 366(10) of the Constitution, would mean a law, and if a rule is a law, the Governor or a person directed by him is a law-making authority secondly, that the power to legislate is conferred on the legislature of a State under Entry 41 of List II, and, therefore, when the Governor is called upon to make a rule, he is not, under the proviso, exercising the executive power, but is exercising a similar plenary or full power which is conferred on the Legislature.
11. Before we consider these contentions, it is necessary to examine the basis of the power to enact retrospective laws or legislation. The proposition that all law is prospective unless it is given retrospective effect by an authority vested with a power to give retrospective force, admits of no doubt. The power to enact retrospective legislation is inherent in a sovereign legislature acting within the ambit of its legislative power. In England the Parliament, which is not the creature of a written constitution, has unfettered jurisdiction over the entire field of legislation, unlike under a written constitution where the legislative function is subject to the power conferred on the legislature and must, therefore, conform to the limits of that power conferred on the legislature and must, therefore, conform to the limits of that power. Even so, there is no difference between the Parliament and such legislatures within the ambit of the legislative powers conferred on them. In that they are supreme legislative bodies and can pass any law whatsoever subject to what we have stated. They cannot, by their previous Acts, bind their successors or limit their power inlike manner as they are not bound by the Acts of their predecessors. As observed by Wade and Philips in Constitutional Law. 5 Edn. page 39: ' Parliament alone possesses the power to legalize past illegality.' or in the words of Lord Ashbourne in Smith v. Callender, 1951 AC 297: Of course, it is obviously competent for the Legislature, if it pleases, in its wisdom to make the provisions of an Act of Parliament retrospective.'
Inasmuch as the power to enact retrospective laws is inherent in the supremacy of the legislature, can it be said that the power conferred on the Governor or any person directed by him under the proviso to Article 309 is of a similar nature as that conferred upon the legislature of a State or on the Parliament? We may here point out that it is not every authority that has power to make a law, or a delegate under an Act of Parliament or the legislature of a State which has the power to make a law in the sense that once rules are framed they are part of that law, that is vested with the supremacy of a sovereign legislative body to enact retroactive laws. The Constitution in Part XI dealing with the relations between the Union and the States, deals with legislative relations and distribution of Legislative powers. Article 245 confers on the Parliament power to make laws for the whole or any part of the territory of India. and on the Legislature of a State for the Whole or any part of the State. That this power is subject to the provisions of the Constitution. it is argued by the learned Advocate General, would imply that there are other authorities upon which the Constitution has conferred similar legislative power. while Mr. Subbarao on behalf of Sri Narasaraju in reply submits that these words are words limiting the power of the Parliament or the legislature respectively to make laws within their respective spheres and within the powers conferred by the Legislative lists as provided under Article 246.
12. It appears to us that the power conferred on the Governor or his nominee under the proviso to Article 309 is not a sovereign legislative power, though it may be a power to make a law, if a rule made by him has that effect. That this power is not co-extensive with or coeval or similar to, the power conferred on the legislature is evident from the language of the Article. The Article confers on the legislature subject to the provisions of the Constitution, power to regulate the recruitment and conditions of services and posts and the Parliament in the case of Central Services and the Legislature of a State in respect of State services may enact laws under the powers respectively vested in them either by List 1 or List II. The power conferred by that Article on the President or the Governor to make rules is limited and the rules so made will have force until provision in that behalf is made by or under an Act of the appropriate legislature under that Article and where such Legislatures have enacted laws regulating the recruitment and conditions of service the rules made by the President or the Governor as the case may be, will be subject to those legislative measures. If, as the learned Advocate General contended, these powers of the President or the Governor are co-extensive or coeval with parliament or legislature of a State, then the subsequent statutes enacted by those legislatures should co-exist and not have superior efficacy. It is a matter of history that neither under the Government of India Act, 1935, nor under the previous Government of India Act, 1919, nor under the present Constitution have the legislatures by their Acts regulated the recruitment and conditions of services of persons appointed in connection with the affairs of the Center or of the States, even though there were similar powers contained to Section 241(2) in the Government of India Act, 1935.
13. In State of U. P. v. Babu Ram : 1961CriLJ773 Subbarao, J. (as he then was) speaking for the majority, - Gajendragadkar, and Wanchoo, JJ. (as they then were) contra-referred to the Governor acting under Article 309 as the 'executive' At page 759 he observed:
'Learned Counsel seeks to confine the operation of the opening words in Article 309 to the provisions of the Constitution which empower other authorities to make rules relating to the conditions of service of certain classes of public servants, namely, Arts 146(2). 148(5) and 229(2). That may be so, but there is no reason why Article 310 should be excluded therefrom. It follows that while Article 310 provides for a tenure at pleasure of the President or the Governor Art. 309 enables the Legislature or the executive as the case may be, to make any law or rule in regard, inter alia to conditions of service without impinging upon the overriding power recognised under Article 310.'
13A. It is apparent from the passage extracted above that the power to make rules is a power conferred on the executive namely, the President or the Governor in whom the executive power of the Union or the State is vested either under Article 53 or 154. as the case may be. This power is similar to a power conferred by a statute upon the Governor to make rules, and in just the same way the Constitution also has conferred that power. Both , in our view, are direct recipients from sovereign authorities, and we cannot really discern any difference: nor can any distinction be made between the rule-making power under a statute of a legislature describing it as a power conferred on a delegate and a power conferred directly by the Constitution. The proviso to Article 309 itself has made a distinction between the powers to be exercised by a sovereign authority i.e., the legislature, and that to be exercised by the Governor or his nominee, as the rules made by the Governor or his nominee are subject to any enactments that may be made by the legislature. This clearly evinces an intention not to confer sovereign legislative powers on the Governor. It may be noticed that when the framers of the Constitution wanted to confer sovereign legislative powers upon the President or the Governor they did so by express language.
The Constitution has under Arts. 123 and 213 respectively conferred power on them to enact an ordinance, subject to certain conditions and limitations, which when promulgated could ensure only for the duration of 6 months, unless Parliament or the Legislature enacts before the expiration of the six months a law replacing it. The ordinance so made is placed on a par with the Act of Legislature. This power to promulgate Ordinances is described by the Constitution as a Legislative function of the President or the Governor as the case may be. The limits imposed upon the power of the executive to make Ordinances itself show the anxiety of the Constitution -makers to safeguard against any temptation on the part of the executive to exercise arbitrary power to govern indefinitely by Ordinances. and abrogate sovereign legislatures. In those circumstances, the Constitution makers could not have intended to confer an unfettered legislative power on the President or the Governor under the proviso to Art 309 similar to that conferred on the Parliament or the Legislature of a State. They have particularly taken care to use the word 'Act' with reference to the legislature while they used 'rule' with reference to the Governor or his nominee, and this is further emphasised under the proviso to Art. 309 by the fact that the rules made by the Governor or his nominee are to have effect only subject to the provisions of any Act of the appropriate Legislature. The circumstance that the power to make a rule is conferred not only on the President or the Governor but on any nominee of his is a strong indication that the power was not intended to be co-extensive with or of the same nature as the legislative power of sovereign legislatures.
14. The power to enact retroactive legislation itself has been considered to be a matter of questionable policy, because it is contrary to sound principles of legislation, since citizens whose acts and rights are regulated by laws, should not be mulcted or affected for acting and conducting themselves in consonance with their existing law by enacting retrospective legislation - See Philips v. Eyre. (1870) 40 LJQB. 28. It is for this reason that unless that sovereign legislative body or the paramount instrument i.e. the Constitution has conferred a power to give retrospective effect, to rules or orders, effect cannot be given for their retroactive operation.
15. The learned Advocate General has referred us to State of Punjab v. Ram Prashad, , where a Bench consisting of Tek Chand and Sharma JJ., had observed that the President and the Governors in their spheres powers to make rules regulating the recruitment and the conditions of service of persons appointed to the posts enumerated in Art. 309, and that they were not precluded from exercising these powers in cases where rules regulating the recruitment and the conditions of service were incorporated in any Act before the coming into force of the Constitution. IN that case, the Ruler of Patiala, in exercise of his sovereign power, had made certain orders on 8-4-1947, which had the force of law, After the merger of the Patiala State in the Statute of Pepsu, the President assumed its Rule under Art 356 of the Constitution. But before the President's rule was terminated on 7-3-1954, the Bank of Patiala Regulation and Management Order, 1954, was made on 27-2-1954, though published in the Official Gazette on 14-3-1954. The President had, under that regulation, delegated the power to frame rules regulating the conditions of service of the employees of the Patiala Bank, to the Board of Directors, which framed the Bank of Patiala Staff Rules, 1954. It was contended that the Bank of Patiala Regulation and Management Order 1954 stood spent up on the date the President's Rule came to an end. The Bench repelled this contention.
The learned Advocate General wants us to conclude that this decision establishes that the President in making rules under Art. 309 had the power to abrogate or amend or supersede laws enacted by sovereign legislative authority, and that, as the rules so made have the force of law by virtue of Art. 372, he must be deemed to have been vested with powers of sovereign legislative authority. In our view, this is begging the question, because if that were so, the President or the Governor could even abrogate Acts of the Parliament or the Legislature regulating the recruitment and conditions of service, after the Constitution came into force. But that power is specifically negatived. The farmers of the Constitution took note of the fact that under the previous Government of India Acts, the legislature did not enact any laws regulating the recruitment and conditions of service and consequently, the powers of the President or the Governor which the Governor-General or Governor exercised previously, with certain changes were preserved.
Transitional provisions were made under Art. 313 under which it is provided that until other provision is made in that behalf under the Constitution, all the laws in force immediately before the commencement of the Constitution and applicable to any public service or any post which continues to exist after the commencement of the Constitution, as an all-India Service or as service or post under the Union or a State, shall continue in force so far as consistent with the provisions of the Constitution. This provision preserves all laws in force immediately before the commencement of the Constitution which would also include the rules framed under the previous Government of India Acts. The phrase, 'until other provision is made in this behalf' under this Constitution in Art. 313 would seem to empower the President or the Governor to make rules in respect of any public services or any posts which continue to exist notwithstanding the existing law in that behalf. All that the above decision lays down is that by reason of Art. 313 the President acting under Art. 309 can make rules to replace the existing law which continued to exist only until other provision is made under the Constitution.
16. If , however, it is contended that this decision implies that the President or the Governor has plenary or sovereign powers similar to that of a Legislature, we must, with great respect, dissent from such a construction.
17. In Dr. Pratap Singh v. State of Punjab, another Bench of the Punjab High Court consisting of Mehar Singh J. (as he then was) and Capoor J., was considering a similar question. That was a case where the rules made in 1941 under the Government of India Act, 1935 were sought to be amended under the power conferred under Art. 309. It was contended by the appellant that he was a Government servant prior to the inauguration of the Constitution and that rules made under Art. 309 would not apply to him. It was held that he when a Government servant is employed under the rules. the employment is on the terms and conditions that he will be governed by the rules made from time to time, and since Article 313 provides that until other provision is made under the Constitution the previous rules or law governing the public services would continue to be in force and that those rules could be amended. At page 306 Mehar Singh J. said:
'It is clear from Article 313 that until other provision is made, all laws in force immediately before the Constitution and applicable to any public service or any post continue but only with regard to any public service or any post which continue to exist after the commencement of the Constitution so that any service that has continued after the Constitution has continued under the provisions of the Constitution and in the case of a State in connection with the affairs of that State.'
18. Again the observations of Desai, C. J., in A. J. Patel v. State of Gujarat, AIR 1965 Gujarat 23 (FB) at P. 42 were cited by the learned Advocate General, in support of the proposition that the power conferred on the President or the Governor is co-extensive and coeval with that of Parliament or legislature, Desai, C. J. had observed:
'The power of the Governor of a State under Article 309 to make rules regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of a State cannot be treated indifferently from the power of the legislature to do so by an Act under the proviso to Article 309 would be statutory rules and would have force and affect as such and would confer rights which could be enforced in a Court of law so long as they did not impinge the provisions contained in Article 310 and did not deal with the tenure of office of such persons which, as provided by Article 310, was liable to be held during the pleasure of the Governor.'
It is obvious form this passage that what the learned Chief Justice was dealing with was the effect of the rules and not the nature of the power conferred on the President or the Governor. Rules made in exercise of the powers conferred under Art. 309 certainly have statutory force, just in the same way as rules made in exercise of the powers conferred under any statute. But it is far from saying that sovereign powers to legislate have been conferred on the President or the Governor. To the same effect are the observations of the Supreme Court in Raghavendra Rao v. Deputy Commissioner, South Kanara, : 7SCR549 where their Lordships have held that Art. 309 gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. When the Supreme Court refers to 'full powers' being conferred on the State Government under Art. 309 which however does not speak of the State Government but of the Governor, it is conscious that the power is conferred on the executive, because after all the Governor represents the executive, Sikri, J. speaking for the Court further observed at page 138 as follows:
'It has to be remembered that Article 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. The proviso to S. 115(7) (of the States Reorganisation Act) limits that power, but that limitation is removable by the Central Government by giving its previous approval.'
In these circumstances, can it be said that the powers of sovereign legislature is vested in the President or the Governor when acting under Article 309 of the Constitution. We think not nor could the Supreme Court have intended to recognise such power as being vested in the President or the Governor.
19. IN Ram Autar v. State of U. P., : (1962)ILLJ148All (FB) no question of a rule having retrospective operation had arisen. The notification reducing the superannuation age from 58 years to 55 on 25-5-1961, to which it had been raised in 1957, was not applied with retrospective effect to the petitioner who reached the superannuation age on 3-5-1961. The petitioner in that case however was given extension of service till 31-12-1961. An argument seems to have been addressed no doubt, with respect to the power of the Governor of a State to make retrospective rules, Oak, J. (as he then was) did not deal with this matter. Srivastava and Dwivedi JJ., however in their separate judgments assumed that the powers of the Governor under the proviso to Article 309 being identical with that of the Governor under the proviso to Article 309 being identical with that of the legislation under the main Article the Governor can make rules with similar effect. At page 341, Dwivedi, J., said:
At page 342, he further observed:
'The State Legislature, I venture to think, is not a sovereign Legislature, for it does not possess unlimited powers, and its acts are not uncontrollable. Its powers are conditioned both affirmatively and negatively, by the Constitution its acts may be set at naught by courts if they are found by them to be inconsistent with the Constitution. The true fountain of its power is thus the Constitution.'
While no one can deny that the true fountain of the power derived by the Parliament or the State Legislature is the Constitution, it will, with greatest respect, be incorrect to say that within the spheres prescribed by the Constitution, each of the Legislatures is not supreme and sovereign. To hold otherwise would be to deny the legislatures also the power to enact retroactive laws, which power is an attribute of sovereignty. The assumption that the State Legislature or Parliament has power to make retroactive laws without their being sovereign and therefore the powers conferred on the Governor, who is not also not a sovereign legislative body, are also similar in nature, cuts across the very foundation of the juristic principle upon which the power to make retroactive laws are based. At any rate, the learned Judge assumes that the Governor of the President has no sovereign power vested in them. We cannot, with greatest respect, accept the basic postulates upon which the observations are founded. Of course this Full Bench decision was followed by N. U. Beg J. (as he then was) in Vidya Sagar v. Board of Revenue. : AIR1964All356 because he was bound by it.
20. In Govindaraju v. State of Mysore AIR 1963 Mys 265 Narayana Pai J. speaking for the Bench dealt exhaustively with all these aspects and came to conclusions similar to which we have arrived. At page 277. it was observed:
'We hold therefore that the Governor acting under the proviso to Art. 309 of the Constitution does not have the power to make a rule which takes away from Government servants a right already acquired by them under the pr-existing rules or previous transactions as from a date anterior to the promulgation of that rule or to make a rule validating what was invalid in its inception.'
We respectfully agree with these conclusions. This decision was followed by another Division Bench of the Mysore High Court in Siddappa v. Venkatesh, AIR 1965 Mys 65.
21. No doubt the Supreme Court, as we have said earlier left this question open in 0043/1966 : (1967)ILLJ698SC and relied upon the application of Art. 162 in allowing the appeal and reversing the judgment of the Mysore High Court. It was argued by Mr. Setalvad in that case that the Government is not acting as a delegate of any legislature while exercising powers under the proviso to Art. 309 it is exercising a power conferred by the Constitution directly on the executive and the Constitution has not prescribed any guiding principles to be followed by the State Government while it is exercising powers under the proviso to Art. 309, because the Constitution treats is as having the same powers as the legislature, and that even if it be the law that the executive when acting as a delegate under an Act of Parliament or an Act of State Legislature, cannot make rules retrospectively, this principle does not apply to the exercise of powers under the proviso to Art. 309 of the Constitution. Sikri, J. delivering the judgment of their Lordships said at page 1948:
'In our opinion, it is not necessary to decide this point in these cases because we are of the view that appeal can be disposed of on another ground. Assuming for the sake of argument that Mr. Nambiar is right that the Mysore State Government could not make rules are thus retrospectively and that the rules are thus void. so far as they operate retrospectively. we must ignore these rules and see whether the appointments made on October 31, 1961 can be upheld. We have come to the conclusion that these appointments can be considered to have been validly made in exercise of the executive power of the State under Article 162 of the Constitution.'
22. Having regard to what we have stated. it is our considered view that the Constitution did not intend to confer upon the executive authority, namely, the President or his nominee, or the Governor or his nominee, sovereign legislative power and particularly having regard to the power the President or the Governor could confer on their respective nominees, it cannot be so presumed. IN these circumstances, the Governor has no power to make ex post facto or retrospective rules.
23. The result is that this writ petition is allowed, with a direction that the State Government should refer the names of the Section Officers belonging to the Scheduled Castes and the Scheduled Tribes if any, who are eligible for appointment as Assistant Secretaries to Government to the Andhra Pradesh Public Service Commission to consider the suitability or otherwise of the petitioner for including his name in the panel for the places reserved In the cycle of 25 vacancies. If the petitioner is found suitable and appointed, his seniority to the 9th post should be fixed vis-a-vis the others as if his name was included in the panel when originally approved by the Public Service Commission. The respondent will pay the costs of the petitioner. Advocate's fee RS. 100.
24. Petition allowed.