TaxTMI 
TaxTMI 
2011 (4) TMI 1464
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....ed to the post of Additional District Judge in the year 1985 and further promoted to the post of District Judge w.e.f. 14.1.2003. (B) The appellant while working as a Principal Secretary and Legal Remembrancer, Government of U.P., was appointed as a Member of the Commission on 29.6.2006 for a period of five years i.e. till 30.6.2011. The appellant joined on the said post on 1.7.2006. (C) Sections 21, 23, 25 and 26 of The Protection of Human Rights Act, 1993 (hereinafter called `the Act 1993'), stood amended vide The Protection of Human Rights (Amendment) Act, 2006 (hereinafter referred to 'Amendment Act 2006'). The said amendment came into force on 23.11.2006. (D) After completion of the tenure by the then Chairperson of the Commission and other Members in October 2007, the appellant remained the lone working Member of the Commission. The State of U.P. issued Notification dated 28.5.2008 to the effect that appellant ceased to hold the office as a Member of the Commission. (E) The appellant challenged the said Notification dated 28.5.2008 by filing Writ Petition No. 27315 of 2008, mainly on the grounds that he had been appointed for a tenure of fi....
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....be set aside. The appeal deserves to be allowed. 5. Per contra, Shri Pramod Swarup, learned senior counsel appearing on behalf of the respondents, has opposed the appeal vehemently contending that High Court could not have entertained the writ petition on merit as no relief could be granted to the appellant for the reason that fresh appointments on the posts of Member of the Commission had been made on 6.6.2008 itself. During the pendency of the writ petition, the appellant did not amend his petition impleading the newly appointed member(s), thus, petition was liable to be dismissed only on the ground of non-joinder of necessary parties. Even this Court cannot grant pecuniary benefits to the appellant for the reason that the public exchequer of the State of U.P. cannot be fastened with liability of the payment of salary to two persons on one post. The appellant suffered the disability by virtue of operation of the amended law and ceased to be competent to hold the post in view of the Amendment Act 2006. Thus, he has rightly been declared to have ceased to hold the post as a Member of the Commission. The Legislature is competent to alter the service conditions of an employee unil....
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....onsist of:- (a) .............................. (b) one member who is, or has been a Judge of a High Court or District Judge in the State with a minimum of seven years experience as District Judge; 23. [Resignation and Removal of Chairperson or a Member of the State Commission] [(1) The Chairperson or a Member of a State Commission may, by notice in writing under his hand addressed to the Governor, resign his office. (1A) Subject to the provisions of Sub-section (2), the Chairperson or, any other member of the State Commission shall only be removed from his office by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such other Member, as the case may be ought on any such ground to be removed. ............................ 26. [Terms and conditions of service of Chairperson and Members of the State Commission-The salaries and allowances payable to, and other terms and conditions of service of, the Chairp....
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....d thus, was not liable to be dislodged The High Court dealt with the issue elaborately and came to the conclusion that ordinary and natural meaning is not to be controlled by supposed intention of the Legislature. A court cannot stretch the language of a statutory provision to bring it in accord with the supposed legislative intent underlying it, unless the words are susceptible of carrying out that intention. Thus, considering the object and purpose of the amendment, it cannot be held that experience of the appellant as Additional District Judge could also be taken into consideration as that of a District Judge. Much reliance has been placed by Shri Shekhar, learned senior counsel for the appellant on the language of Rule 4 of the Rules 1975 that there is a single cadre comprising the posts of District and Sessions Judges and Additional District and Sessions Judges. Thus, there is no basic difference between the said two posts. 10. The aforesaid submission seems to be very attractive but has no substance for the reason that a cadre generally denotes a strength of a service or a part of service sanctioned as a separate unit. It also includes sanctioned strength with reference....
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.... other terms and conditions of service of a member shall be varied to his dis-advantage after his appointment. The submission so made on behalf of the appellant in this regard has not been considered by the High Court taking into consideration the provisions of Section 26 at all. As the appellant was fully eligible and competent to be appointed under the Act 1993 and he had duly been appointed and worked for about 2 years including the period after the commencement of the Amendment Act 2006, the declaration that he ceased to hold the post as a Member of the Commission, is in flagrant violation of the statutory provisions contained in Section 26 of the Act 1993 itself. 15. Needless to say that "the expression `terms of service' clearly includes tenure of service". (Vide: Dr. D.C. Saxena v. State of Haryana & Ors., AIR 1987 SC 1463). 16. The view taken by the High Court in this respect is not in consonance with the statutory provisions. The amendment would apply prospectively, particularly in view of the fact that the Amendment Act 2006 does not expressly or by necessary implication suggest that such a drastic step is permissible giving retrospective effect to the Amendment Act....
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....tingent; not subject to be defeated by a condition precedent.' Rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights. In Webster's Comprehensive Dictionary (International Edition) at page 1397, 'vested' is defined as (law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest." (See: Mosammat Bibi Sayeeda & Ors. etc. v. State of Bihar & Ors. etc., AIR 1996 SC 1936). 21. The word "vest" is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word "vest" has also acquired a meaning as "an absolute or indefeasible right". It had a "legitimate" or "settled expectation" to obtain right to enjoy the property etc. Such "settled expectation" can be rendered impossible of fulfilment due to change in law by the Legislature. Besides this, such a "settled expectation" or the so-call....
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....not reasonable then such retrospective amendments are subject to judicial scrutiny if they have infringed Articles 14 and 16 of the Constitution." 26. In the instant case, the Amendment Act 2006 is not under challenge. However, the issue agitated by the appellant has been that the Legislature never intended to apply the amended provisions with retrospective effect and therefore, the appellant could not be discontinued from the post. His rights stood protected by the provisions of Section 6 of the Act 1897. The issue of applicability of the said provision has been considered by this Court in State of Punjab v. Mohar Singh Pratap Singh, AIR 1955 SC 84; M.S. Shivananda v. The Karnataka State Road Transport Corpn. & Ors., AIR 1980 SC 77; Commissioner of Income Tax U.P. v. M/s. Shah Sadiq & Sons, AIR 1987 SC 1217; and Vishwant Kumar v. Madan Lal Sharma & Anr., AIR 2004 SC 1887, wherein it has been held that the rights accrued under the Act/Ordinance which stood repealed would continue to exist unless it has specifically or by necessary implication been taken away by the repealing Act. 27. This Court in State of Punjab & Ors. v. Bhajan Kaur & Ors., AIR 2008 SC 2276, while dealin....
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....ntext of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution." Thus, from the above, it is evident that accrued rights cannot be taken away by repealing the statutory provisions arbitrarily. More so, the repealing law must provide for taking away such rights, expressly or by necessary implication. 30. There is no specific word in the Amendment Act 2006 to suggest its retrospective applicability. Rather the positive provisions of Section 1 suggests to the contrary as it reads:- Short Title and Commencement- (1)........................................ "(2 )It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint". Undoubtedly, the amended provisions came into force on 23....