ravi sir

Retrospective Effect Given by Delegated Legislation Legislature may enact laws with retrospective effect but a delegate cannot exercise a similar power and give retrospectivity to the rules made by it unless the parent statute gives it a power to do so either expressly or by necessary implication. In other words we can say that a  general power to make laws for the purpose of carrying out the purposes of the act, does not entitle the government to make rules. 1 Moreover in the  Ashok Lanka case , it was held that ordinarily, a subordinate legislation cannot be given retrospective effect but a clarificatory notification can be given retrospective effect. 2 The main intention lying behind the preposition is that retrospective rule may  prejudicially effect vested rights and so it is proper that only the Legislature, Legislature, and not its delegate, makes retrospective rules. And in accordance to this, the courts declare retrospective rules invalid unless the authority making them has power to do so under the  parent statute. statute.

i)

In Hukam Chand 3 case the court said that “The government cannot amend the rules with retrospective effect if no such power has been specifically given by the  parent statute. statute.

ii)

In Gurucharan Singh v. State 4 , a legislative order having been held invald, a fresh order was issued. A clause in the new order stated that anything done or action taken under the old order should be deemed to have been taken under the new order. The court declared the clause invalid on the ground of retrospectivity.

The supreme court as clearly mentioned in most of the cases that; 1

 Hukam chand v. union of india AIR 1972 SC 2427

2

 Ashok Lanka v. Rishi Dikshit, 2006 9 SCC 90

3

 Ibid

4

 AIR 1974 SC 385

“the rules operate prospectively. Retrospective statute permits framing of rules with retrospective effect, the exercise of power must not operate discriminately or in violation of any constitutional rights so as to affect vested rights.” 

It is worthwhile to make a mention that the courts have relaxed the rule against retrospectivity of rules, mainly because it was against the interest of the affected person.

For example in Mathra Pd. & sons v. State of Punjab 5  , when the Government issued a notification exempting a commodity from sales tax in the middle of the financial year, but  failed to specify the date from which the notification was to be operative, the Supreme Court ruled that it would be operative from the beginning of the financial year. The reason given in this context by the Supreme Court was that the sales tax was a yearly tax under the law and it was made payable on the annual taxable turnover of a dealer. Hence the exemption from tax must operate for the whole year in the absence of any clear indication to the contrary. This interpretation obviously confers a benefit on the taxpayers.

Retrospective Rules under Art. 309 of the Constitution Under Art. 309 of the constitution, Government can make service rules for Government servants. The rulemaking power conferred by Art. 309 has been held to be broad enough to  permit making of rules with retrospective effect. Thus, service rules can be made under Art. 309 with retrospective effect. A constitution bench of Supreme Court in  B.S. Vadera v. Union of India6 held that rules made under proviso to article 309 of the constitution of India are legislative in character and therefore could be made with retrospective effect. The same  principle was reiterated in many other decisions But retrospective rules made under Art. 309 cannot contravene Art. 14, 16 or 31 of the Constitution. Such rules cannot affect vested rights of an employee.

5

 (1962) 13 STC 180 (SC)

6

 AIR 1969 SC 118

 A retrospective rule can be challenged under Art. 14 and 16 of the constitution if it adversely affects vested rights and is discriminatory.

 Art. 309 envisages legislation by the legislature as regards service mattes, Government’s rule making power is transient in nature. But it is surprising that even though over fifteen years have passed by since the Constitution became operative, service mtters continue to be governed by rules. The reason is that no Government wants to give up its large leverage over its employees.  Art. 148(5) of the constitution also gives rule-making pwer to prescribe conditions of service of persons serving in the Audit and Account Department. Subject to any law made by Parliament, service rules can be made by the president in consultation with the Compeller and  Auditor-General. Because of the phraseology of Art. 148(5) being different from Art. 309, Art 148(5) has been interpreted as not authorizing making of retrospective rules.