1. All the Contempt Cases can be disposed of by a common judgment.
2. Various writ petitions were filed by the teaching staff in private educational institutions. Their claim was for grant of the benefits under automatic advancement/ career advancement scheme namely appointment to the Special Promotion Post, Special Ad-hoc Promotion etc. Government have issued G.O. Ms. No.117 PRC-1, dated 25-5-1981 creating promotion avenues to the employees working in the State Government. The said G.O., was made applicable to the teachers working under the private managements including the private aided managements by G.O. Ms. No. 164, dated 1-6-1982. The benefits were released to number of teachers duly granting special promotion posts etc., duly taking into account unaided service also for the purpose of computation of total service to enable the staff to avail the benefit under the scheme. While so, the Government of Andhra Pradesh issued Memo dated 6-1-1987 cancelling the benefits of the promotional schemes and directed recovery of the amounts already paid. The Director of School Education also issued consequential orders dated 28-1-1987. At that point of time, the writ petitions were filed in some cases challenging the action of the Government in recovering the amounts and also to release the promotions under the automatic advancement scheme by taking into consideration the unaided service. The learned single Judge of this Court considered the matter in WP No.13662/1998 (sic) reported in N. Hanumantha Rao v. Government of Andhra Pradesh 1994 (2) SLR 590 and held, that the service rendered by the teaching staff in the post prior to admission to aided post will have to be taken into account for the computation of 10 years of service for the purpose of their eligibility to Special Grade Post and that the order seeking to recovery the financial benefits were set aside. Against the said order, writ appeal was filed and the writ appeal was also dismissed. Consequent on the decision of the learned single Judge, all the writ petitions were filed seeking benefit of automatic advancement scheme on the basis of the orders passed by the learned single Judge referred to above. All the writ petitions were disposed of in terms of the directions of the learned single Judge and these contempt petitions were filed alleging violation of the orders passed in the writ petitions.
3. The present contempt cases were filed alleging that the respondents have not implemented the automatic advancement scheme even though they are eligible under the rules and that it is a gross violation of the orders of this Court and they prayed for punishing the respondents for contempt of the orders of this Court.
4. The Government had taken number of adjournments and at some point of time they also gave an undertaking that they are going to implement the orders shortly. This Court granted adjournments on the premise that the order would be implemented. But, however, the learned Government Pleader submitted before this Court that the Government have issued clarification in G.O. Ms. No.4l, dated 11-2-1998 stating that for purpose of computing the service to avail the career advancement scheme, the services rendered prior to the post being admitted to the aid will not be taken into account and that the said G.O. was challenged by the teaching staff. Hence, they sought for adjournment of the matter, till the decision of the Division Bench is delivered. On this ground, the matters were adjourned for considerable period. Thereafter, it was represented that the G.O. was struck down by the Division Bench of this Court. After this event, the learned Government Pleader again sought for some more time. But, no positive response was forthcoming. Ultimately, the Government filed counters in some of the cases stating that the Ordinance was promulgated on 27-6-1999 by the Government and the same was published in the A.P. Gazette dated 27-6-1999. The said Ordinance was called A.P. Private Aided Educational Staff (Regulation of Pay) Ordinance, 1999 which was given retrospective effect from 10-1-1980. u/s 3 of the said Ordinance, no employee of a private educational aided institution can claim to count the service rendered prior to the date of approval of his appointment in the post duly admitted to grant-in-aid for the purpose of automatic advancement scheme, career advancement scheme and pension notwithstanding anything contained in any rule, order, or decree or any judgment of another Court etc. Thus, it is submitted that by virtue of the Ordinance which was given retrospective effect from 10-1-1980, the petitioners are not entitled for the benefit of career advancement scheme by taking into consideration the unaided service.
5. The learned Counsel for the petitioners submits that it is highly inappropriate for the Government to bring out such an Ordinance denying the benefit of career advancement scheme, the Ordinance itself is mala fide and aimed at nullifying the judgment rendered by this Court and such an Ordinance cannot be sustained. They relied on the decision of the Division Bench of this Court reported in Government of Andhra Pradeshs G.V.K. Girls High School, Tadikonda 1996 (3) ALD 1098 (DB). On the other hand, the learned Additional Advocate-General appearing for the State submits that it is always permissible for the Government to bring out a retrospective enactment to remove a defect in the earlier Government Order. He relied on the judgment of the Supreme Court reported in
6. The question that arises for consideration is whether the contempt cases could be proceeded with in the wake of Ordinance dated 27-6-1999 and whether the respondents have deliberately violated the orders of this Court?
7. The respondents are taking shelter under Ordinance referred to above and submit that in view of the Ordinance, no proceedings can take place and further, it may be open for the teaching and non-teaching staff to challenge the Ordinance if they are so aggrieved. But, in the contempt proceedings, they cannot assail the Ordinance as invalid or ineffective.
8. The sequence of events are not in dispute that this Court had already held that unaided service also should be taken into consideration for the purpose of computing the years of service for conferring the benefits under the automatic advancement/ career advancement scheme. The Government have issued orders regarding the automatic advancement scheme in G.O. Ms. No.117 and as modified in G.O. (P) No.290 dated 22-7-1993, the said schemes were also made applicable to the teaching staff or non-teaching staff working in the private educational institutions, both school education and higher education. It is the contention of the Government that the period of service required for grant of benefit under the automatic advancement scheme should be reckoned only from the date the post or the institution was admitted to grant-in-aid and unaided service rendered by the incumbent cannot be taken into consideration for the purpose of computing the years of service. This was negatived by the learned single Judge taking into consideration the memo issued by the Government on 10-1-1980 and also Rule 159 of A.P. Educational Rules which provided that the teaching and non-teaching staff should be paid regular increments as per the scales prescribed by the Government. To overcome this memo dated 10-1-1980 and in the purported process of curing the defect, the present Ordinance has been issued. In Indian Aluminium''s case (supra), it was a case where Kerala State Electricity Board consequent on amendment made to the Central Excise and Salt Act, Section 36 of Finance Act imposing Central Excise on Kerala Electricity become liable to pay excise duty. To replenish the additional financial burden, the Government in exercise of the power u/s 3 of Essential Commodities Act, issued an order seeking to collect sur-charge @ 2 ps. per unit of electricity energy. However, on 1-10-1984, the Government of India had withdrawn the levy of excise duty. The Government of Kerala issued an order called ''State Electricity Supply (Kerala State Electricity Board and Licensees Area) Surcharge Order, 1984 effective from 1-10-1984 continuing to collect surcharge @ 2.5 ps. per unit, even though the duty was discontinued by the Central Government The consumers filed writ petition challenging 1984 Order. Pending the petitions on 1-8-1988, the State Government discontinued the levy of surcharge. The Division Bench of Kerala High Court held that levy of surcharge was in substance of a compulsory exaction intended to enrich the coffers of the State and in effect partakes the character of a tax on electricity. Accordingly, writs were allowed and the directions were issued to refund the surcharge collected from the petitioners. The Surcharge Order, 1984 was declared as ultra vires of the powers of the State Government subsequently, the Government issued an Ordinance Kerala Electricity Surcharge Levy and Collection Ordinance, 1989 which later became an enactment under which the consumers are liable to pay 2.5 ps. per unit of the electricity supplied. The said enactment was challenged unsuccessfully and therefore the matter was brought before the Supreme Court. The Supreme Court held that the Act was validly enacted. But, however, the challenge was made to the constitutionality of the validation provision namely Section 11 of Kerala Electricity Surcharge (Levy and Collection) Act, 1989. The Supreme Court observed as follows:
"The validity of the Validating Act is to be judged by the following tests:
(i) whether the Legislature enacting the Validating Act has competence over the subject-matter, (ii) whether by validation, the Legislature has removed the defect which the Court had found in the previous law, (iii) whether the validating law is inconsistent (sic consistent) with the provisions of Chapter III of the Constitution. If these tests are satisfied, the Act can confer jurisdiction upon the Court with retrospective effect and validate the past transactions which were declared to be unconstitutional. The Legislature cannot assume power of adjudicating a case by virtue of its enactment of the law without leaving it to the judiciary to decide it with reference to the law in force. The Legislature also is incompetent to overrule the decision of a Court without properly removed the base on which the judgment is founded."
After surveying number of judgments of the Supreme Court, the following principles were deduced:
(1) The adjudication of the rights of the parties is the essential judicial function. Legislature has to lay down the norms of conduct or rules which will govern the parties and the transactions and require the Court to give effect to them;
(2) The Constitution delineated delicate balance in the exercise of the sovereign power by the Legislature, executive and judiciary;
(3) In a democracy governed by rule of law, the Legislature exercises the power under Articles 245 and 246 and other companion articles read with the entries in the respective lists in the Seventh Schedule to make the law which includes power to amend the law.
(4) Courts in their concern and endeavour to preserve judicial power equally must be guarded to maintain the delicate balance devised by the Constitution between the three sovereign functionaries. '' In order that rule of law permeates to fulfill constitutional objectives of establishing an egalitarian social order, the respective sovereign functionaries need free play in their joints so that the march of social progress and order remains unimpeded. The smooth balance built with delicacy must always be maintained;
(5) In its anxiety to safeguard judicial power, it is unnecessary to be overzealous and conjure up incursion into the judicial preserve invalidating the valid law competently made;
(6) The Court, therefore, needs to carefully scan the law to findout: (a) whether the vice pointed out by the Court and invalidity suffered by previous law is cured complying with the legal and constitutional requirements; (b) whether the Legislature has competence to validate the law; (c) whether such validation is consistent with the rights guaranteed in Part III of the Constitution.
(7) The Court does not have the power to validate an invalid law or to legalise impost of tax illegally made and collected or to remove the norm of invalidation or provide a remedy. These are not judicial functions but the exclusive province of the Legislature. Therefore, they are not encroachment on judicial power.
(8) In exercising legislative power, the Legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the Court, if those conditions had existed at the time of declaring the law is invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. The Legislature can change the character of the tax or duty from impermissible to permissible tax but the tax or levy should answer such character and the Legislature is competent to recover the invalid tax validating such a tax on removing the invalid base for recovery from the subject or render the recovery from the State ineffectual. It is competent for the Legislature to enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the Court or the direction given for recovery thereof.
(9) The consistent thread that runs through all the decisions of this Court is that the Legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the Legislature must have competence to do the same."
9. Under principle No.9, the Supreme Court held that the Legislature cannot directly overrule the decision of the Court or make a direction as not binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, if the said decision is consistent with the law of the Constitution and that the Legislature must have competence to do the same.
10. In Ramanlal Keshavlal Soni''s case (supra), the Supreme Court observed that the Legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under the existing laws, but since the laws are made under a written Constitution and have to conform to the dos and dont''s of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. The law must be satisfied with the requirement of the Constitution today taking into account the accrued or acquired rights of the parties today. The Government of Gujarat brought an amendment to Gujarat Panchayats Act, 1978 by which the Secretaries, Officers and servants of Gram and Nagar Panchayats who were allocated to the Panchayat service from the ranks of the ex-municipal employees are sought to be meted out differential treatment from the other members of the Panchayat service, more particularly the Secretaries, Officers and servants of Gram and Nagar Panchayats who were drawn from the ranks of Secretaries, Officers and servants of old Village Panchayats, that is the Talatis and Kotwals, who were Government servants. They have been deprived of their status as members of a service under the State without giving any option. Retrospectivity was sought to be given to the Amending Act so as to nullify their claims as Government servants.
11. The amendment was held to be unconstitutional, arbitrary and unreasonable offending Articles 311 and 14 of the Constitution of India.
12. In Shri Prithvi Cotton Mills, case (supra), the Supreme Court derived the prerequisites of a retrospective enactment. It observed thus:
"When a Legislature sets out to validate a tax declared by a Court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course is that the Legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A Court''s decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a Court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon Courts. The Legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the Court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the Legislature and legal and adequate to attain the object of validation. If the Legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a validating law, therefore, depends upon whether the Legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the Courts had found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax."
13. It is beyond pale of controversy that the Legislature has power to enact the law retrospectively provided it has competence over the subject-matter. It can also remove the defect pointed out by the Court in the previous law by bringing appropriate changes in law provided it is not inconsistent with the provisions of the Chapter HI of the Constitution.
14. The learned Counsel for the petitioners submit that the Ordinance was invalid and it has the nullifying effect of the judgment of this Court. The Division Bench of this Court considered in similar identical situation in G.V.K. Girls High School''s case (supra) and after referring to the catena of decisions, the Division Bench observed as follows:
"When we look to the amendment Act with the above principle in mind, we have no hesitation in holding that the enactment has in no way attempted to remove the defect in the earlier Government Orders or the enactment which has rendered its executive action invalid and the Court has found fault on that score. It is out and out a legislation to nullify the instant judgment or any judgment, decree or order of any Court or Authority by a declaration in the shape of a decree of the Legislature. The same, in our view, cannot be sustained and has to be held to be invalid and beyond the competence of the State Legislature. Learned Advocate-General has addressed us at length on the desirability of the Court entering into the financial aspect of the grant and determining the issue of entitlement of Grant-in-Aid by the petitioner-respondent. We, however, do not find anything of substance in what is contended against the finding recorded by the learned single Judge. The law on the subject is well settled that Grants-in-Aid cannot be denied on ground of paucity of funds (see
15. The learned Additional Advocate-General submits that it became necessary for the Government to remove the defect pointed out by the learned single Judge in Hanumantha Rao''s case (supra) and therefore the legislative power was invoked to cure the defect retrospectively with effect from 10-1-1980. This contention appears to be without any factual foundation. In the statement of objects of the Ordinance there is no reference at all to the defects purported to have been pointed out by this Court in the case referred to above. In fact the Court did not point out any defect or lacuna. More over, I am not inclined to go into the validity or otherwise of the Ordinance since the challenge was not made to the Ordinance. I am only deciding the contempt cases and it would not be appropriate to consider the Constitutional validity of the Ordinance. But this Court is certainly entitled to find out whether the Ordinance is applicable to the facts on hand.
16. As already observed the Ordinance was promulgated on 27th June, 1999 giving retrospective effect from 10-1-1980.
17. Sections 2 and 3 of the Ordinance read thus:
"Section 2: Every employee of a private aided educational institution shall, from the date of approval of his appointment in a post duly admitted to grant-in-aid, be eligible to count his service rendered after such date of approval for fixation of his pay and also his pension under the schemes formulated made applicable or extended to the employees of private aided educational institutions from time to time.
Section 3(1) Notwithstanding anything contained in any rule, order, decree or any judgment of any Court, Tribunal or other authority, no employee of a private aided educational institution shall claim to count the service rendered, or as the case may be, the increments drawn in the respective post prior to the dale of approval of his appointment in the post duly admitted to the grant-in-aid for the purpose of Automatic Advancement Scheme, Career Advancement Scheme and Pension.
(2) No suit or oilier proceedings shall be maintained or continued in any Court against the Government or any person or authority whatsoever for extending the benefit of Automatic Advancement Scheme, Career Advancement Scheme and Pension by reckoning the service rendered by any employee of a private aided educational institution prior to the date of approval of appointment in a post duly admitted to grant-in-aid.
(3) No Court shall enforce any decree or order directing to count the service rendered in an unaided or aided post prior to the date of approval of his appointment in a post duly admitted to grant-in-aid for the purpose of the Automatic Advancement Scheme, Career Advancement Scheme and Pension."
18. Section 2 is a qualifying and enacting section. It only stipulate that service from the date of the approval of the appointment in a post admitted to grant-in-aid shall be counted, for the purpose of fixation of his pay and also the pension under the schemes formulated. So, Section 2 applies to fixation of pay and also the pension under the schemes formulated, but it did not refer to the automatic advancement/career advancement scheme. To validate the eligibility criteria retrospectively, and to over ride the benefits already released or to make ineffective the judgments and decrees of the Courts or administrative orders non-obstinate clause was enacted in Section 3.
19. It is well settled rule of construction right from Sussex Peerage case (1844) 11 Cl : Fin. 85 146 : 8 ER 1034 1058), that if the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words do alone in such cases best declare the intent of the lawgiver. In the words of Gajendragadakar, J, "If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act." (See :
20. Section 2 is enacting provision bringing the criteria for entitlement to pension and pay fixation retrospectively. The non-obstante clause is enacted in Section 3. There is always close proximation between enacting section and non-obstinate clause. If the enacting statute is clear and unambiguous, its scope cannot be cut down or enlarged by resort to non-obstinate clause (See:
21. The expression in Section 2 is very clear and admits of no ambiguity that it applies to the pension under the schemes and also pay fixation.
22. When once Section 2 did not cover the automatic advancement scheme/career advancement scheme, the criteria u/s 2 cannot be made applicable. Consequently, Section 3 cannot embrace the automatic advancement scheme and it shall be deemed that the Ordinance was confined only to pay fixation and pension. Even though Section 3 refers to the automatic advancement scheme it has to be ignored as Section 2, the principal criteria laying section did not include these schemes. As already observed the scope of enacting section cannot be curtailed or widened by the non-obstinate clause, what was not added in the enacting section, cannot be provided by the non-obstinate clause. Therefore, it has to be necessarily held that Ordinance is not applicable to the automatic advancement scheme. When once the Ordinance is not applicable to the case on hand, the judgment of this Court has to be implemented and the shelter under the penumbra of the Ordinance is no more available.
23. Under these circumstances, the Contempt Cases are disposed of with a direction that the respondents shall implement the orders of this Court in the aforesaid writ petitions within a period of three months from the date of receipt of a copy of this order.
