Defend Equality : Protect human rights of down trodden communities in India
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No reply has been received from the Principal Secretary, Irrigation Department on behalf of the State of Haryana in the case of Sh.G.S.Narwal w.r.t. the notice dated 17.8.2012 issued by the Commission. This shows that State has not much to say in this regard. The facts are reproduced from the record as following:
On 18.11.2008 Chief Minster Hooda, Chief Secretary Haryana and three Financial Commissioners of
Engineering departments, including Irrigation Department decide that the Seniority in Irrigation Department will not be separated. Chief Minister approves on 18.06.2010 that the Act with Common Seniority may be enacted in Irrigation Department. This record has been shown by Sh. Narwal in the Commission. Strangely, giving a complete twirl to the “considered decision” of the government the
Assembly passes the Irrigation Act of 2010 with separate seniority in Irrigation Department on 25.10.2010. The record pertaining to the formation of the Act of 2010 is surreptitiously missing now. Was it not the duty of the government to locate the missing record? Who are the forces behind this? Was this law required at all? Have the guilty behind the act been punished? It appears prime-facie that the Act of 2010 has been passed with motives. No doubt the Act of 2010 has been passed by the Legislature, which is competent to do so but we find serious perverseness in this law. Every law is made for justice and equality not to cause injustice. Hon’ble Supreme Court in P.Ravinder Nath Pai & Others vs Karnataka & ors have already decided on 20/2/1995 that “restrospectivity” must not affect the accrued rights of an individuals and the operative part is reproduced here as following:
“ In this connection, we may usefully refer to a decision of Constitution Bench of this Court in the case of State of Gujarat & Anr. v. Raman Lal Keshav Lai Soni & Ors (1983 (2) SCR 287).At pages 319 & 320 Chinnappa Reddy, J. speaking for the court has made following pertinent observations:
"The legislation is pure and simple, self- deceptive, if we may use such an expression with reference to a legislature-made law. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the do's and don'ts of the Constitution neither prospective nor retrospective laws can be made so as to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say twenty years ago the parties had no rights: therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today's right and not yesterday's. A legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. This would be most arbitrary, unreasonable and a negation of history. It was pointed out of a Constitution Bench of this Court in B.S. Yadav & Ors. etc. v. State of Haryana and & Ors. etc., Chandrachud CJ., speaking for the Court, "Since the Governor exercises the legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate, must be shown to bear either from the face to rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case." Today's equals cannot be made unequal by saying that they were unequal twenty years ago and we will restore that position by making a law today and making it retrospective. Constitutional rights, constitutional obligations and constitutional consequences cannot be tempered with that way. A law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation cannot become valid by being made retrospective. Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws."
Is it not an impropriety on the part of legislature and it would not be wrong to say that contempt of court has been made by this piece of law? The Commission is reasonably convinced that either the Legislature has been kept in dark or the authorities responsible to look into the legal aspect of the draft bill deliberately, with motives , hid the fact. How can the vested legal rights of a person working under the Constitution of India be taken with such impunity? From the facts and circumstances of the case there remains no doubt that the complainant has been targeted and victimized at the hands of State which otherwise must be known for justice and protecting the poorest of poor. Any law, whatsoever its intentions be must never be implemented if it causes inequality and injustice and the Act of 2010 is causing nothing but agony, inequality and injustice. Why the “considered” decision of the Executive dated 18.11.2008 and 18.06.2010 has been changed ? It is not hard to imagine for us. There has been an evil design to deprive Sh.Narwal of his legal, vested and constitutional rights in a malicious and partisan manner. What was the necessity to effect the law retrospectively? Is State really unaware that “retrospectivity” if at all has to there then it must be restricted in a manner that it does not effect the accrued rights of an individual ? Is Act of 2010 not a contempt of court to that extent when the State in its reply dated 12/11/2011 to CWP 13566/2011 filed by a similarly situated candidate , at serial no. 25 has undertaken that the vested, legal rights of petitioners will not be affected ? What law on earth shall justify that a senior officer is made to serve under his junior officer because an ill intentioned law has been enacted. When the department itself has identified 4 posts suitable for Mechanical Engineers vide notification dated 18/5/2012 then just to deprive Sh. Narwal from getting promoted , the cadre strength has been fixed at only 1 , in an arbitrary and ruthless manner. As a matter of fact it is this notification which has caused real blow even if, for a moment , the Act of 2010 is presumed to be correct. All this seems to have been done just to torment and deprive Sh. Narwal of his constitutional rights though larger questions remain to be answered. There remains no doubt in our minds that the Section 4 of the SC& ST Act of 1989 has been violated and the Commission orders that a judicial inquiry must be conducted in this case. This is a shameless act on the part of authorities as on one hand the Parliament is debating to provide reservations to the SC& ST who are in service , Haryana is setting an example of sort by depriving a meritorious candidate who has rightfully earned his place from his legal vested rights by way of such a legislation!
We also, therefore deem it appropriate to order that the Act of 2010 must be amended to the extent that it is made effective from “the date of publication” instead of 1.11.1966 and in the meantime the Cadre strength notification revised so that the vested , constitutional right of Sh. Narwal and all other officers who are suffering due to irrationality in fixing the cadre strength , are protected and their promotions to the post of Chief Engineer is done as per the seniority list effective on this date. An FIR must be registered against the persons behind changing the “considered” decision of the Executive dated 18.11.2008/ 18.06.2010 and initiate proceedings under Section 4 of the SC&ST Act 1989 with directions that Sh. Narwal is free to approach this Commission or Hon’ble High Court of respective jurisdiction if not satisfied with the necessary actions , as directed above, are not performed by the authorities concerned.
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