New Delhi, October 21: The Supreme Court has held that though THE government has got the power to amend a rule with retrospective effect, the same cannot take away the existing rights and benefits conferred on the employees.
Article 309 of the Constitution empowers the government to frame rules for regulating service conditions of employees.
“It is no doubt true that Rules under Article 309 can be made so as to operate with retrospective effect. But it is well settled that rights and benefits which have already been earned or acquired under the existing rules cannot be taken away by amending the rules with retrospective effect,” a bench of Justices R V Raveendran and B Sudershan Reddy ruled.
The apex court passed the ruling in a judgment dismissing the appeal of Madhya Pradesh government which contended that it has absolute power in the rule-making process under Article 309.
In the present case, the State Administrative Tribunal had directed the government to pay non-practising allowance to government doctors working in Employees State Insurance Corporation at the originally fixed 25 percent of the basic pay.
However, the state amended Madhya Pradesh Employees State Insurance Service (Gazetted) Rules 1981 (by notification dated 20.3.2003) and substituted the words “non practicing allowance” at such rate as may be fixed by state government from time to time by orders issued in this behalf” in place of the words “non praticising allowance at 25 percent of pay”.
The amendement was given retrospective effect from 14.10.1982. The notification was quashed by the Tribunal as illegal since the original rules stipulated 25 percent of basic as non praticising allowance and Madhya Pradesh High Court dismissed the state government’s appeal, after which it appealed in the apex court.
The government argued even if the original statutory rules stipulated payment of 25 percent of the basic as non praticising allowance, the same can be modified by an executive order with retrospective effect as the government is vested with such powers under Article 309 of the Constitution.
Rejecting the argument, the apex court said “when there is conflict between the statutory rules and executive orders, the statutory rules will prevail.”
As the original statutory rules vested the doctors with the right to 25 percent of the basic as non praticising allowance, the same cannot be taken by an administrative order sought to be invoked with retrospective effect, the bench said.
“Therefore, it has to be held that while the amendment, even if it is to be considered as otherwise valid, cannot affect the rights and benefits which had accrued to the employees under the unamended rules.
–Agencies