Delhi High Court
Indian Council Of Agricultural ... vs Bidesh Singh And Ors. on 19 September, 2007
Equivalent citations: 2008(1)SLJ559(DELHI)
Author: Mukul Mudgal
Bench: Mukul Mudgal, Aruna Suresh
JUDGMENT Mukul Mudgal, J.
1. This writ petition has been filed against the Judgment dated 5th May, 2004 passed in OA No. 4/2002 by the Central Administrative Tribunal (hereinafter referred to as 'CAT'), Principal Bench, New Delhi by which the CAT held that the decision of the Hon'ble Supreme Court in Director General of Posts and Ors. v. B. Ravindran and Ors. , was a binding precedent. It also held that the applicants are similarly circumstanced with the applicants in OA Nos. 33 and 34 of 1994. The objection with respect to the territorial jurisdiction was overruled as part of the cause of action had arisen within the jurisdiction of the Principal Bench, CAT. The petitioners were directed to extend to the applicants, the benefits accorded in OA No. 33/1994 and OA No. 34 /1994 and to refix their pay by grant of one increment for each year of service rendered by them in defense with all consequential benefits.
2. The brief facts of the case are as follows:
a) Fifty two employees who are ex-servicemen were appointed by the Indian Council for Agricultural Research (hereinafter referred as ICAR) in response to the application invited by the Indian Veterinary Research Institute, a division of ICAR. The vacancies were meant for ex-servicemen and they were to be employed on various posts in Group C and D.
b) All the employed persons were ex-servicemen who had retired before attaining the age of 55 years from the defense service and all of them had been re-employed in Civil Service with ICAR on a lower pay than the last pay drawn by them in defense services.
c) The appointed employees made representations to the ICAR for grant of advance increments in terms of the judgment of the CAT dated 15th October, 1997 in OA Nos. 33 and 34 of 1994 in the case of Mahavir Singh and Ors. v. ICAR, wherein similarly placed persons who were ex-servicemen and working as security persons in Central Avian Research Institute, a division of ICAR, were given advance increments for each year of service rendered by them before joining the Civil Service as well as their pay has been accordingly fixed.
d) Aggrieved by the conduct of ICAR in not giving the said employees benefit of the judgment in OA Nos. 33 and 34 of 1994, OA No. 04/2002 was filed by the appointed persons before the Central Administrative Tribunal (hereinafter referred to as the "CAT") with a prayer for direction to extend the benefit of the judgment dated 15th October, 1997 in OA No. 33/1994 and 34 /1994 and as per the position of law laid down by the order of the Hon'ble Supreme Court dated 8th November, 1996 in the case of B. Ravindran (supra).
e) The employer ICAR by the impugned judgment dated 5th of May, 2004 of the CAT was directed to extend to the appointed persons, the benefits accorded in OA 33/1994 and OA 34 /1994 and to refix their pay by grant of one increment for each year of service rendered by them in defense with all consequential benefits within 3 months.
f) It is against this judgment dated 5th May, 2004 of the CAT that the present writ petition has been filed before this Court.
3. The learned Counsel for the petitioner submitted as under:
a) The CAT overlooked the fact that the respondents herein are governed by the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Orders 1986 (hereinafter referred to as the 'CCS Orders, 1986') issued vide O.M. No. 3/1/85-Estt. (P-II) dated 31st July, 1986 according to which the pay of the re-employed pensioner appointed on or after 1st July, 1986 is to be fixed as per the provisions of the CCS Order 1986 which were issued in supercession of all the previous orders of fixation of pay and other benefits on reemployment of ex-servicemen as well as civilian pensioners. Therefore, the learned Tribunal has erred in holding that the respondents herein are similarly situated as those applicants in OA No. 33 and 34 of 1994 and are entitled to one increment for each year of service rendered in the department of defense. The impugned judgment of the CAT was based on the judgment of the Hon'ble Supreme Court in B. Ravindran's case (supra). However, in B. Ravindran's case CCS Orders, 1986 were not in dispute and there was no finding about it. In the said case only the Government of India O.M. dated 25th November, 1958, 16th November, 1964, 10th July, 1978 and 8th February, 1983 relating to the refixation and reemployment were considered by the CAT and the Hon'ble Supreme Court. The judgment dated 15th October, 1997 in OA No. 33 and 34 of 1994 were implemented by the petitioners and few applicants who were appointed on or after 1st July, 1986 also got the benefit wrongly along with the other applicants, who were re-employed before 1st July, 1986. Orders wrongly implemented do not give right to the others for the same relief. Therefore, the CAT Principal Bench at Delhi has exceeded its jurisdiction by the impugned judgment when granting one increment for each year of service rendered in defense services on the basis of the judgment in B. Ravindran's case (supra).
b) The CAT failed to follow the decision of the Coordinate Bench dated 4th June, 2002 in OA No. 975-CH-2000, passed by the Chandigarh Bench of the CAT in which it was held that the instructions of OM dated 31st July, 1986 superceded all the previous orders on fixation of pay of re-employed pensioners. In view of the order of the Coordinate Bench of the CAT dated 4th June 2002, the impugned order dated 5th May 2004 could not pronounce a judgment contrary to the declaration of law made by another Coordinate Bench. It can only be referred to a Larger Bench if such Bench disagrees with the earlier pronouncement. In S.I. Rooplal v. Lt. Governor , also the following position of law was laid down:
12. At the outset, we must express our serious dissatisfaction in regard to the manner in which a coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the Tribunal was of the opinion that the earlier view taken by the coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedent which enunciate rules of law from the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bounded by the enunciation of law made by the superior courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This court in the case of Tribhbvandas Purshottamdas Thakur v. Ratilal Motilal Patel while dealing with a case in which the Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same court observed thus:
The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J., in Pinjare Karimbhai's case and of Macleod, C.J., in Hardas's case did not lay down the correct Law or rule of Practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar, C.J., observed in Lala Shri Bhagwan and Anr. v. Shri Ram Chand and Anr.
It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety.
c) The CAT has wrongly come to the conclusion that the decision of the Hon'ble Supreme Court in the case of Director General, ESI Corporation, New Delhi and Anr. v. Sh. M.P John and Ors. contrary to B. Ravindran's case (supra) is per in curiam and cannot be treated as a binding precedent.
4. The learned Counsel for the respondents submitted as under:
a) The impugned judgment of the CAT dated 5th May 2004 has been challenged by the petitioners after a gap of about 10 months and thus is hit by laches and should be dismissed on this ground.
b) The question whether an ex-serviceman while getting re-employed in civilian jobs should or should not be given increments in their pay-scale for each year of service in the Armed Forces has been well settled by the Hon'ble Supreme Court in B. Ravindran's case (supra).
In the case of B. Ravindran, the Full Bench of the Tribunal had given the following directions:
(a) We hold that for the purpose of granting advance increments over and above the minimum of the pay scale of the re-employed post in accordance with the 1958 instructions (Annexure IV in OA 3/89), the whole or part of the military pension of ex-servicemen which are to be ignored for the purpose of pay fixation in accordance with the instructions issued in 1964, 1978 and 1983 (Annexure V, V-a and VI respectively) cannot be taken into account to reckon whether the minimum of the pay scale of the re-employed post plus pension is more or less than the last military pay drawn by the re-employed ex-servicemen.
(b) The orders issued by the respondents in 1985 or 1987 is contrary to the Administrative Instructions of 1964, 1978 and 1983, cannot be given retrospective effect to adversely affect the initial pay of ex-servicemen who were re-employed prior to the issue to these instructions.
This decision of the Tribunal was assailed before the Apex Court in UOI v. B. Ravindran (supra) wherein the Apex Court has observed as under:
The Tribunal was, therefore, right in holding the said instructions in so far as it directed to take into consideration the ignorable part of the pension also while considering hardship invalid and without any authority of law.
Paras (b) and (c) of the 1958 instructions which are relevant in the present context, read as under:
(b) The initial pay, on re-employment should be fixed at the minimum stage of the scale of pay prescribed for the post in which an individual is re-employed.
In case where it is felt that the fixation of initial pay of the re-employed officer at the minimum of the prescribed pay scale will cause undue hardship, the pay may be fixed at a higher stage by allowing one increment for each year of service which the officer has rendered before retirement in a post not lower than in which he is re-employed.
(c) In addition (b) above, the Government servant may be permitted to draw separately any pension sanctioned to him and to retain any other form of retirement benefit for which he is eligible, e.g., Government contribution to a Contributory Provident Fund, gratuity, commuted value of pension, etc., provided that the total amount of initial pay as at (b) above, plus the gross amount of pension and/or the pension equivalent of other forms of retirement benefit, does not exceed:
(i) The pay he drew before his retirement (pre-retirement pay), or Rs. 3,000/- whichever is less.
Therefore, in B. Ravindran's case (supra) the Hon'ble Supreme Court held that the CAT was right in so far as it directed to take into consideration the ignorable part of the pension also while considering the hardship invalid and without any authority of law. The petitioner's case is not that the decision in B. Ravindran's case is not applicable to the present case but that the decision in B. Ravindran's case no longer holds the field in view of M.P. John's case.
5. In the case of MP. John and Ors. (supra), the Hon'ble Supreme Court was dealing with one particular case of Ex-serviceman and was considering the question of the hardship based upon the facts and circumstances of his case. The Court in that matter held that there was no conflict between the OM dated 25th November, 1958 and OM dated 8th February 1983 as the latter one governs the pay which an ex-serviceman draws in the ordinary course of re-employment. It also prescribed that in addition he will receive the pension which has to be ignored for pay fixation. Departure from this norm of granting minimum pay scale is permissible only in the case of hardship and that too, to the extent permitted. Thus, the aforesaid decision was based on the facts of that case where hardship on facts was not found and does not affect the applicability of B. Ravindran's case (supra) to the facts of the present case.
6. The decision by the Tribunal (Ernakulam Bench) of the CAT in OA No. 1839/1991 and OA No. 1841/1991 dated 1st July 1992 and 20th July 1992 relates to the case of similarly situated persons and having parity with the respondents herein. In this case ex-servicemen employed in Civil Services sought extension of the benefits which were granted by the petitioner ICAR and the same judgment was implemented as well.
7. In this judgment we have only dealt with those pleas which were urged before us in the hearing though the written submissions contain pleas not urged before us during the hearing of the writ petition. In so far as plea of Coordinate Bench of CAT, Chandigarh Bench is concerned, that has no binding force in so far as this Court is concerned and since this Court is deciding the issue on merits we are not deciding this question. We have also noticed the fact that the impugned judgment of the CAT dated 5th May 2004 was challenged after about 10 months of its being passed. However, by the impugned judgment the arrears were directed to be restricted only to one year prior to the date of filing of the OA while directing the refixing of the pay by grant of one increment for each year of service rendered by the respondents with all consequential benefits. The judgment was required to be complied within a period of three months from the date of receipt of the copy of the judgment. The judgment dated 5th May 2004 was challenged for the first time in this Court only on 18th March 2005. The impugned judgment of the Tribunal was not stayed in this Court by any order and even then up-to-date the petitioner has not implemented the said judgment.
8. In our view, this conduct of the petitioner in first not obeying the mandate of the Tribunal's judgment to comply with it within the period of three months and approaching this Court after about 10 months and thereafter not implementing the judgment even up-to-date without any interim order would have been sufficient to dis-entitle the petitioner to seek the discretionary relief under Article 226 of the Constitution of India. The impugned judgment directed the extension of the benefit accorded in OA No. 33/94 and 34 /94 to the respondents herein also.
9. However, even otherwise on merits we find no cause for interference. The crux of the case of the petitioner is that the relief available in the judgment of B. Ravindran's case (supra) was no longer available in light of the subsequent order of M.P. John (supra). In our view, this plea of the petitioner cannot be accepted. The principles laid down by the judgment of the Hon'ble Supreme Court in the B. Ravindran's case (supra) are as follows:
However, it was submitted by the learned Counsel for the appellants that the orders which were issued in 1963, 1964, 1978 and 1983 did not deal with the aspect of hardship and were not intended to replace or change the basic policy contained in the 1958 instructions. They were intended as relaxations and, therefore, they cannot be said to have the effect of altering or modifying the 1958 policy. When the entire pension was made ignorable in the case of personnel below Commissioned Officer's rank the position substantially changed and, therefore, the Government was obliged to clarify that as contemplated by the 1958 instruction hardship is to be seen from the point whether pay plus pension plus pension equivalent of gratuity (whether ignorable or not) was less than the last pay drawn at the time of retirement. What the Government thereby did was to reiterate that if there was no hardship no advance increment should be granted. What is overlooked by the learned Counsel is that the intention behind the orders issued in 1963, 1964, 1978 and 1983 was to give some more benefit to the re-employed pensioners/ex-servicemen. The effect of the benefit was to be given at a stage prior to the consideration of hardship. The ignorable part of the pension was to be ignored while totalling up that initial pay plus the pension in order to find out whether the retired pensioners thereby was likely to get more or less than what he was getting at the time of his retirement. To that extent the 1958 policy stood altered or modified. Though the said four orders did not directly deal with the aspect of hardship they did by widening the gap between the initial pay plus the non-ignorable part of the pension and the pay he drew before his retirement and thereby further necessitated giving of advance increments to alleviate hardship. It is, therefore, not correct to say that those orders had no concern with the aspect of hardship. What the contention raised on behalf of the appellants further overlooks is that pursuant to the orders issued in 1963 and 1964 corresponding amendments were made in Articles 521 and 526 of the Civil Service Regulations. The said Regulations were made sometime prior to 1914 and had acquired statutory authority under Section 96-B(4) of the Government of India Act, 1919 and have been continued in force by virtue of Article 313 of the Constitution. They are, therefore, statutory in nature. After its amendment in 1964 it read as under:
526 (a) - (b)
(c) In case of service personnel who retire from the Forces before attaining the age of 55 and are re-employed in civil posts on or after 16-1-1964 the pension shown below shall be ignored in fixing their pay on -re-employment -
(i) in the case of pensions not exceeding Rs. 50 per mensem, the actual pension;
(ii) in other cases the first Rs. 50 of the pension.
16. The subsequent orders issued in 1978 and 1983 were supplementary in nature and did have a binding force. Under these circumstances, the Government could not have, under the guise of a clarificatory order, taken away the right which had accrued to such re-employed pensioners with retrospective effect by declaring that while considering hardship the last pay drawn at the time of retirement was to be compared with the initial pay plus pension whether ignorable or not. The 1985 clarificatory instructions were not only inconsistent with the relevant provisions of the Civil Service Regulations and the 1978 and 1983 orders but its effect was to supersede the said provision and the orders. The Tribunal was, therefore, right in holding the said instructions insofar as they directed to take into consideration the ignorable part of the pension also while considering hardship invalid and without any authority of law. These appeals are, therefore, dismissed with no order as to costs.
10. In M.P. John's order of the Hon'ble Supreme Court the earlier judgment of the Hon'ble Supreme Court in B. Ravindran's case was not even referred to as apparently it was not brought to the notice of the later Bench of the Hon'ble Supreme Court. In our view, we are bound by the earlier judgment of the Hon'ble Supreme Court in B. Ravindran's case and accordingly no warrant for interference with the judgment of the Tribunal which applies the judgment in B. Ravindran's case. The relevant part of the said judgment in M. P. John's case (supra) reads as follows:
6. Office Memorandum of 25.11.58 is for a very different purpose G.O. of 25.11.58 enables the employer to give certain increments in the prescribed pay scale to a re-employed ex-serviceman at the time of his joining in a case of hardship. This hardship is defined as arising if his pay on re-employment together with his pension fall short of his last drawn pay while in military service. Office Memorandum quite clearly refers to pension "whether ignorable or not". Therefore, pension which is ignored for the purpose of determining the pay, may be considered under G.O. of 25.11.58 for the purpose of deciding if there is any financial hardship to the ex-serviceman. This cannot be considered as in any way in conflict with the G.O. of 8.2.83 prescribing the grant of pay at the minimum of the scale on re-employment. The latter governs the pay which an ex serviceman will draw in the ordinary course on re-employment. It is also prescribes that in addition, he will get pension which has to be ignored for pay fixation. A departure from this norm of granting minimum in the pay scale is permissible only in the case of hardship and that too, to the extent permitted. There is no hardship as contemplated under G.O. of 25.11.58, in the case of the respondent. Hence his pay fixation under the G.O. of 8.2.83 is proper.
Even the perusal of the above order in M. P. John's case shows that it was found on facts that there was no hardship as contemplated in the case of the respondent. Furthermore, the contents of the order of the Hon'ble Supreme Court in M.P. John's case clearly show that it was largely based on the facts of the case and the detailed principles of law are laid down in B. Ravindran's judgment. Besides, if M.P. John's order had noticed the judgment in B. Ravindran's case and explained its effect, then of course this Court and indeed all courts in India would have been bound to follow the said order. In the present case the earlier judgment in B. Ravindran's was not brought to the notice of the Hon'ble Judges who passed the order in M. P. John's case.
11. The judgment of the B. Ravindran's case not having been noticed by the order of the later Bench of the Hon'ble Supreme Court, in our view, we are bound by the law laid down in the judgment of B. Ravindran's case by the Hon'ble Supreme Court which fully covers the present case. The Constitution Bench of the Hon'ble Supreme Court in the case of Sub-committee of Judicial Accountability v. Union of India and Ors. , held as follows:
Indeed, no co-ordinate bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matte before another co-ordinate bench.
However, we are of the view that it is not a healthy precedent for a CAT or any other court other than the Hon'ble Supreme Court to hold that a judgment of the Hon'ble Supreme Court is per incuriam and we hold that the law laid down by the CAT in its judgment dated 15th October, 1997 in O.A. No. 33/94 and O.A. No. 34 /94 on the issue of M.P. John's order of the Hon'ble Supreme Court being per incuriam does not lay down the correct position of law. The principle of per incuriam can at best be invoked only by a Court of Coordinate jurisdiction and not by a court subordinate.
12. Besides, the respondents are ex-servicemen and have been fighting the battle for seeking benefits of the 1958 order and parity with similarly situated employees by making representations since 2000. We cannot help noticing the fact that the already similarly situated persons who are covered by the judgment of the CAT dated 15th October, 1997 delivered in OA Nos. 33/94 and 34 /94 have been granted the benefits by implementing the judgment of the CAT dated 15th October, 1997. This is an additional reason why no interference is warranted under Article 226 of the Constitution of India as the petitioner is an authority falling under Article 12 of the Constitution and thus cannot differentiate between two similarly situated employees.
13. Accordingly, the writ petition stands dismissed.