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C.K. Madhavan Nair Vs. Registrar, High Court of Kerala, Ernakulam and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 890 of 1964
Judge
Reported inAIR1968Ker17; (1968)IILLJ259Ker
ActsConstitution of India - Article 309; Madras Judicial Ministerial Service Rules, 1955 - Rule 39
AppellantC.K. Madhavan Nair
RespondentRegistrar, High Court of Kerala, Ernakulam and ors.
Appellant Advocate V.R. Krishna Iyer and; K.C. Sankaran, Advs.
Respondent Advocate Govt. Pleader and; V. Bhaskaran Nambiar, Advs.
DispositionPetition dismissed
Cases ReferredRam Autar Pandey v. State of Uttar Pradesh
Excerpt:
- - 4. it follows, therefore, that the petition has to fail......of government servants and second, that the said power of the governor does not extend to making rules with retrospective effect.2. the first contention was dismissed at unsustainable by p. b. mukharji. j. in anil nath de v collector of central excise, calcutta, air 1968 cal. 407 at p. 410 in the following words:--'a part of the obligations of a government servant, as i understand under these rules, is that he takes the risk of the amendments made in these rules from time to time. so long as these rules or their amendments do not violate any provisions of the constitution or of any relevant statute, mutability of these rules forms part of the contract and conditions of service, and are to be deemed as engrafted therein as and when they or their amendments are made, unless.....
Judgment:

Velu Pillai, J.

1. There can be no doubt, that if Ext. P-8, the amendment dated 5th June, 1964, of Rule 39 of the Madras Judicial Ministerial Service Rules of 1956 made with retrospective effect from the 1st October, 1903, by the Governor in the exercise of his powers under the proviso to Article 309 of the Constitution is valid, the petitioner cannot successfully challenge the legality of the appointment of the second respondent as the Sheristadar of the District Palghat. Two contentions were advanced against its validity, first, that conditions of service by their very nature cannot be altered retrospectively to the detriment of Government servants and second, that the said power of the Governor does not extend to making rules with retrospective effect.

2. The first contention was dismissed at unsustainable by P. B. Mukharji. J. in Anil Nath De v Collector of Central Excise, Calcutta, AIR 1968 Cal. 407 at p. 410 in the following words:--

'A part of the obligations of a Government servant, as I understand under these rules, is that he takes the risk of the amendments made in these Rules from time to time. So long as these rules or their amendments do not violate any provisions of the Constitution or of any relevant Statute, mutability of these Rules forms part of the Contract and conditions of service, and are to be deemed as engrafted therein as and when they or their amendments are made, unless expressly or by necessary implication, they say otherwise.'

and the second contention was likewise dismissed by a Full Bench of the Allahabad High Court in Ram Autar Pandey v. State of Uttar Pradesh, AIR 1962 All 328 at p 336 in the following words

'The rule-making power conferred by Article 309 on the Governor or his nominee is, therefore, not confined to prospective rule-making and appears to be wide enough to include the making of rules with retrospective effect. In fact, if rules regulating conditions of service can be made only with prospective effect and cannot be made applicable to persons already in Government employment administration may sometimes heroine impossible.

A comparison of the language used in the main part of Article 309 with that used in the proviso will show that the power given to the Legislature for regulating the recruitment and conditions of service of persons is identical with the power given to the Governor or such person as he may direct in regulating the recruitment or conditions of service employed in services and posts in connection with the affairs of the State The only difference is that the Legislature can make the regulation for all times and the Government can do soonly till the Act of the Legislature under the main part of the Article is passed.'

We are in entire agreement with the observations extracted above and hold that Ext. P-3 is valid

3. It was also stated, that the amendment has been made with a view to benefit the 2nd respondent alone and is for that reason invalid There is nothing in the amendment to warrant this statement. It has to be noted, that the amendment as made, besides being retrospective is also prospective, in constituting 'the jurisdictions of the District Judges of Kozhikode and Palghat' as one unit for the purposes stated.

4. It follows, therefore, that the petition has to fail. It is accordingly dismissed: no costs.


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