Tag Archives: Rules

Statutory Instrument – Issued under a Repealed Enactment

Section 24 of the U.P. General Clauses Act, 1904 clearly provides that a statutory instrument issued under a repealed enactment shall continue in force and be deemed to have been made or issued under the re-enacted provisions unless:

  • The re-enacted provision expressly provides otherwise; or
  • It is superseded by a statutory instrument made under the re-enacted provision.

The section further provides that the extent to which the statutory instrument under the repealed enactment shall continue is “so far as it is not inconsistent with the re-enacted provisions.”

In Chief Inspector of Mines v. Karam Chand Thapar, (1962) 1 SCR 9, the question that fell for consideration was whether or not the regulations framed under the Mines Act, 1923 continued in force after its repeal by the Mines Act, 1952. The accused was prosecuted for the violation of the regulations framed under the 1923 Act. The appellants applied for the quashing of the criminal proceedings on the ground that they were prosecuted for the breach of the regulations that had ceased to exist by the repeal of the Mines Act, 1923. The regulations were “as if enacted in this Act”, and therefore, repealed alongwith the 1923 Act. Harkesh Chand v. Krishan Gopal Mehta, (2017) 4 SCC 537.

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Filed under Statutory Instrument, Uncategorized

Employee has an interest to seniority and a right to be considered for promotion

Chances of promotion are not conditions of service, but negation of even the chance of promotion certainly amounts to variation in the conditions of service attracting infraction of Articles 14 and 16 of the Constitution of India. No employee has a right to particular position in the seniority list but all employees have a right to seniority since the same forms the basis of promotion.
An employee has always an interest to seniority and a right to be considered for promotion. If after integration, only the chances of promotion are affected, it would have been only a case of heartburn of an individual or a few individuals which is only to be ignored, as held by the Hon’ble Apex Court in T.N. Education Department Ministerial and General Subordinate Services Association v. State of Tamil Nadu, (1980) 3 SCC 97.
In S.S. Bola v. B.D. Sardana, (1997) 8 SCC 522, it was held as under:
“A distinction between the right to be considered for promotion and an interest to be considered for promotion has always been maintained. Seniority is a facet of interest. The rules prescribe the method of recruitment/selection. Seniority is governed by the rules existing as on the date of consideration for promotion. Seniority is required to be worked out according to the existing rules. No one has a vested right to promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority should be taken away only by operation of valid law. Right to be considered for promotion is a rule prescribed by conditions of service. A rule which affects chances of promotion of a person relates to conditions of service. The rule/provision in an Act merely affecting the chances of promotion “would not be” regarded as varying the conditions of service. The chances of promotion are not conditions of service. A rule which merely affects the chances of promotion does not amount to change in the conditions of service. However, once a declaration of law, on the basis of existing rules, is made by a constitutional court and a mandamus is issued or direction given for its enforcement by preparing the seniority list, operation of the declaration of law and the mandamus and directions issued by the court is the result of the declaration of law but not the operation of the rules per se.” Panchraj Tiwari v. Madhya Pradesh State Electricity Board, (2014) 5 SCC 101.

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Filed under Employment Law, Promotion

Substantive Law, Procedural Law and Declaratory Law

A statute creating vested rights is a substantive statute. The Suprme Court, in Dhenkanal Minor Irrigation Division v. N.C. Budharaj, (2001) 2 SCC 721, opined:
“‘Substantive law’, is that part of the law which creates, defines and regulates rights in contrast to what is called adjective or remedial law which provides the method of enforcing rights. Decisions, including the one in Jena case, (1988) 1 SCC 418, while adverting to the question of substantive law has chosen to indicate by way of illustration laws such as Sale of Goods Act, 1930 [Section 61(2)], Negotiable Instruments Act, 1881 (Section 80), etc. The provisions of the Interest Act, 1839, which prescribe the general law of interest and become applicable in the absence of any contractual or other statutory provisions specially dealing with the subject, would also answer the description of substantive law.”
In Thirumalai Chemicals Ltd. v. Union of India, (2011) 6 SCC 739 the Supreme Court comparing substantial law with procedural law, stated:

“Substantive law refers to a body of rules that creates, defines and regulates rights and liabilities. Right conferred on a party to prefer an appeal against an order is a substantive right conferred by a statute which remains unaffected by subsequent changes in law, unless modified expressly or by necessary implication. Procedural law establishes a mechanism for determining those rights and liabilities and a machinery for enforcing them. Right of appeal being a substantive right always acts prospectively. It is trite law that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation.
Right of appeal may be a substantive right but the procedure for filing the appeal including the period of limitation cannot be called a substantive right, and an aggrieved person cannot claim any vested right claiming that he should be governed by the old provision pertaining to period of limitation. Procedural law is retrospective meaning thereby that it will apply even to acts or transactions under the repealed Act.”
In Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24, a Constitution Bench of the Supreme Court discussing the scope and ambit of a declaratory law has observed:
“Lastly, it was contended on behalf of the appellants that the amending Act whereby new Section 15 of the Act has been substituted is declaratory and, therefore, has retroactive operation. Ordinarily when an enactment declares the previous law, it requires to be given retroactive effect. The function of a declaratory statute is to supply an omission or to explain a previous statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed, invariably it has been held to be retrospective. Mere absence of use of the word ‘declaration’ in an Act explaining what was the law before may not appear to be a declaratory Act but if the court finds an Act as declaratory or explanatory, it has to be construed as retrospective. Conversely where a statute uses the word ‘declaratory’, the words so used may not be sufficient to hold that the statute is a declaratory Act as words may be used in order to bring into effect new law.”
In Katikara Chintamani Dora v. Guntreddi Annamanaidu, (1974) 1 SCC 567 it was held:
“It is well settled that ordinarily, when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was begun unless the new statute shows a clear intention to vary such rights (Maxwell on Interpretation of Statutes, 12th Edn. 220). That is to say, ‘in the absence of anything in the Act, to say that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed’.” Purbanchal Cables & Conductors (P) Ltd. v. Assam SEB, (2012) 7 SCC 462.

Substantive law refers to a body of rules that creates, defines and regulates rights and liabilities. Right conferred on a party to prefer an appeal against and order is a substantive right conferred by a statute which remains unaffected by subsequent changes in law, unless modified expressly or by necessary implication. Procedural law establishes a mechanism for determining those rights and liabilities and a machinery for enforcing them. Right of appeal being a substantive right always acts prospectively. It is trite law that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation.

Right of appeal may be a substantive right but the procedure for filing the appeal including the period of limitation cannot be called a substantive right and an aggrieved person cannot claim any vested right claiming that he should be governed by the old provision pertaining to period of limitation. Procedural law is retrospective, meaning thereby that it will apply even to acts or transactions under the repealed Act. M.P. Steel Corporation v. Commissioner of Central Excise, (2015) 7 SCC 58.

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Filed under Civil Law, Criminal Law