Punjab-Haryana High Court
Union Of India And Others vs M.M. Vats And Others on 21 March, 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.W.P. No. 13743-CAT of 2004 (O&M)
Date of Decision: March 21, 2011
Union of India and others
...Petitioners
Versus
M.M. Vats and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE T.P.S. MANN
Present: Mr. Gurpreet Singh, Sr. Government Standing Counsel
for the petitioners.
Mr. A.K. Chopra, Senior Advocate with
Mr. N.D. Kalra, Advocate
for the respondents.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
M.M. KUMAR, J.
1. This petition under Article 226 of the Constitution is directed against the judgment dated 9.3.2004 rendered by the Chandigarh Bench of the Central Administrative Tribunal (for brevity, 'the Tribunal') holding that the original applicant- respondents have been rightly given the pay scale of ` 5500-9000 with effect from 1.1.1996.
2. The original applicant-respondents have been working on the posts of Investigator Grade-II in the Department of Labour Bureau. Their initial scale of pay was ` 2000-3300. it has remained undisputed that the cadre is to comprise of direct recruits through the Staff Selection Commission as well as by promotion from the C.W.P. No. 13743-CAT of 2004 (O&M) 2 feeder cadre of Computers. Likewise, appointments to the Investigator Grade-I are also made by direct recruitment through Union Public Service Commission and also by promotion from the cadre of the Investigator Grade-II like the original applicant- respondents. The view of the Tribunal is discernible from paras 9 and 10, which reads thus:-
" In this backdrop of the admitted facts, it can be safely said that notification granting upgraded pay scale of Rs.5,500-9,000 was issued under proviso to Article 309 of the Constitution of India and it could not be amended by the administrative order dated 30.4.2001, much less with retrospective effect. Law is well settled that rules framed under Article 309 can be amended only by an amendment under said Article and not by an administrative order. Reliance is placed on Nagarajan Vs. State of Mysore, AIR 1966 SC 43. What to talk of administrative orders, even the rules framed under proviso to Article 309 cannot be amended with retrospective effect so as to take away any vested right. It has been held in Bhatnagar Vs. Union of India and others : (1991) 1 SCC 544 that once the Union and the State Government frame rules, their action in respect of matters covered by rules should be regularised by those rules. Rules framed under Article 309 are the solemn rules, having a binding effect and Government should refrain from acting in a manner not contemplated by their own rules. Otherwise, such action would smack of arbitrariness.C.W.P. No. 13743-CAT of 2004 (O&M) 3
Undisputedly, in this case in the notification issued under Article 309 of the Constitution of India, the category of applicants has been given the pay scale of Rs.5,500-9,000, which cannot be taken away by passing an administrative order. Moreover, respondents have committed another illegality in making the impugned order applicable retrospectively. It has been settled in a number of decision including Chairman, Railway Board and others Vs. C.B. Rangadhmaiah and others: 1997(2) SCSLJ 368 (a decision by a Bench of five Hon'ble Judges) that an amendment which is retrospective in operation cannot be sustained when it is unreasonable, arbitrary and in violation of the articles guaranteed under Articles 14 and 16 of the Constitution of India. On the question of retrospective effect of an amendment, it has been held in Salabuddin Mohammed Yunus Vs. State of Andhra Pradesh, AIR 1984 SC 1905 that such notification is violative of Articles 14 and 16 of the Constitution of India and as such is liable to be quashed. Since vested rights had accrued in favour of the applicants by virtue of notification under Article 309 of the Constitution, those could not be taken away by passing an administrative order."
3. The argument of the petitioner-Union of India that the grant of pay scale of ` 5500-9000 was the result of a mistake, did not find favour with the Tribunal. The Tribunal has noticed in the penultimate para that the stand of the petitioner even through the earlier round of litigation was also the same, and rejected the C.W.P. No. 13743-CAT of 2004 (O&M) 4 aforesaid argument by holding that after acceptance of the recommendation of the Pay Commission in respect of specific category of employees their cadre cannot be put into common categories so as to grant them the pay scale on the basis of conversion table. The Tribunal further observed that the view taken by a Division Bench of this Court in the case of K.C. Kaushal and others v. Union of India (CWP No.7311 of 1999, decided on 7.8.2000) could not be ignored by the petitioner-Union of India. The aforesaid decision rendered in the case of Investigators Grade-II as well as employees belonging to Investigator Grade-I had taken notice of the fact that no reasons were forthcoming for discriminating the category of the Investigator Grade-II vis-a-vis Investigator Grade-I. The Tribunal has also supported its view by noticing that in a number of other departments the counterparts of the original applicant-respondents were granted upgraded scale and the petitioner-Union of India did not point out any distinguishing feature while restoring the upgraded scale to them. The view of the Tribunal is that the petitioner-Union of India cannot escape from the conclusion reached by this Court in K.C. Kaushal's case (supra) by passing a subsequent administrative order and undone the finding recorded by this Court. In support of its view the Tribunal has placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of State of Haryana and others v. Ashok Kumar and others, JT 2000 Supp.-I SC 294 and held that by an administrative order the petitioner-Union of India cannot overrule a judgment of the High Court.
4. Mr. Gurpreet Singh, learned counsel for the petitioner- Union of India has attacked the view taken by the Tribunal by C.W.P. No. 13743-CAT of 2004 (O&M) 5 arguing that there is only a mistake which is sought to be corrected by issuing a letter albeit notification dated 30.4.2001 (A-1). According to the learned counsel by way of the aforesaid letter the original notification dated 30.9.1997 could be deemed to have been amended and deserves to be read as such. He has emphasised that according to Item No. 2 under sub-heading Ministry of Labour, Director General of Employment and Training, the Junior Investigators are deemed to have been given the pay scale of ` 5000-8000 which is as per reference made in para 81.17 of the report of the Central Pay Commission.
5. Learned counsel has further argued that the reasoning of the Tribunal is devoid of any merit because the judgment dated 7.8.2000 rendered by this Court in K.C. Kaushal's case (supra) was taken to Hon'ble the Supreme Court where leave to appeal was granted. After the grant of leave to appeal, Hon'ble the Supreme Court took notice of letter dated 30.4.2001 modifying the original notification dated 30.9.1997. As per the notification dated 30.4.2001, the pay scale of the post of Investigator Grade-II in the Labour Bureau is revised at ` 5000-8000 and, therefore, Hon'ble the Supreme Court had observed that the controversy in the appeal did not survive. Hon'ble the Supreme Court had also granted permission to the original applicant-respondents to challenge the letter dated 30.4.2001 at an appropriate forum.
6. Elaborating his argument further Mr. Singh has stated that once Hon'ble the Supreme Court has granted leave to appeal and passed a detailed order holding that the controversy did not survive, the order of this Court passed in K.C. Kaushal's case (supra) would not remain alive. According to the learned counsel, the C.W.P. No. 13743-CAT of 2004 (O&M) 6 doctrine of merger would step in and the reasoning adopted by the Tribunal would be wholly unacceptable. In support of his submission, learned counsel has placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Kanhiya Ahmed v. State of Kerala, (2000) 6 SCC 551 and submitted that the doctrine of merger would come in play when the leave to appeal is granted and a detailed order has been passed. Therefore, the Tribunal has committed an error in law by placing reliance on the Division Bench judgment of this Court which is deemed to have merged in the order of Hon'ble the Supreme Court passed on 25.9.2001.
7. The last submission made by Mr. Gurpreet Singh is that another cadre of Subordinate Statistical Investigator Services was created where the pay scale of ` 5000-8000 was given to Statistical Investigator Grade-II. According to the learned counsel, once the Statistical Investigator Grade-II had been granted the pay scale of ` 5000-8000, which were earlier in the pay scale of ` 1400-2300 then by no stretch of imagination the original applicant-respondents could be granted the higher pay scale of ` 5500-9000. To buttress his stand, he has also made reference to the pay scale granted to the Economic Investigator Grade-II working in various departments of Government of India. The contention appears to be that once the pay scale of ` 1400-2300 has been upgraded to ` 5000-8000 by some rationale the original applicant-respondents could not say that they had been rightly given the pay scale of ` 5500-9000. According to learned counsel, the general recommendation for Investigator Grade-II in various departments is ` 5000-8000 and by mistake in the Labour Bureau it has been upgraded to ` 5500-9,000.
8. Mr. Chopra, learned senior counsel, on the other hand C.W.P. No. 13743-CAT of 2004 (O&M) 7 has argued that the letter dated 30.4.2001 does not qualify to be an amendment of the notification dated 30.9.1997 because the letter/notification was not issued in exercise of power conferred by proviso to Article 309 of the Constitution read with Clause 5 of Article 148 of the Constitution. According to learned senior counsel the letter dated 30.4.2001 (A-1) has been issued by an officer of the rank of Joint Secretary of the Government of India and it cannot even be accorded the status of instructions issued under Article 73 of the Constitution. Mr. Chopra has emphasised that superior legislation cannot be shelved at the instance of an officer of the rank of a Joint Secretary to Government of India and, therefore, the only way for amendment of the notification dated 30.9.1997 was to issue a similar amendment in exercise of power conferred by proviso to Article 309 of the Constitution. There is no such thing on record to infer that the pay scale of the Investigator Grade-II has been revised from ` 5500-9000 to ` 5000-8000. Mr. Chopra has placed reliance on a Division Bench judgment of the Delhi High Court rendered in the case of C.S.O Senior Investigator Association v. Union of India, (1999) Delhi Law Times 748 and argued that the recommendation of the Fifth Pay Commission in para 81.17 was simply for creation of Subordinate Statistical Services and the reason for the creation of post of junior and senior Statistical Investigators was that such work was spread over in different ministries and the offices of the Government of India. By placing reliance on para 38 of the judgment, learned senior counsel has submitted that no pre-condition of constitution of Indian Statistical Services could be attached for grant of the upgraded pay scale of `5500-9000 to the Junior Investigator Grade-II.
C.W.P. No. 13743-CAT of 2004 (O&M) 8
9. We have heard learned counsel for the parties at length and perused the paper book with their able assistance. The principal issue involved in the instant petition is whether the executive instructions could supplant the statutory rules. This issue is of fundamental importance especially when a society is governed by 'rule of law'. It is undisputed that in order to implement the report of the Fifth Central Pay Commission with effect from 1.1.1996, the Government of India issued a notification dated 30.9.1997 promulgating 'the Central Civil Services (Revised Pay) Rules, 1997' (for brevity, 'the Rules'), under proviso to Article 309 read with clause (5) of Article 148 of the Constitution. As per the recommendations of the Pay Commission, the Government of India has approved the pay scale of ` 5500-9000 in respect of the unrevised pay scale of ` 1400-2300. However, later on the petitioner-Union of India issued another notification dated 30.4.2001 (A-1) re-notifying the scales of pay of different categories of posts including the post of Investigator Grade-II in the Department of Labour Bureau. It would be profitable to read the notification dated 30.4.2001:
" In partial modification of this Department's Notification No. GSR 569(E) dated the 30th September, 1997, in so far as it relates to revised pay scales for the post of Junior Investigator in the Directorate General of Employment and Training and the post of Investigator Grade II in the Labour Bureau, under the Ministry of Labour, the President is pleased to notify that the revised pay scale for the aforesaid posts in conformity with the general recommendations of the Fifth Central Pay C.W.P. No. 13743-CAT of 2004 (O&M) 9 Commission in respect of Statistical Investigators shall be as under:-
S. Posts Present Revised Paragraph
No. Scale Scale No. of
Report
XIX MINISTRY OF LABOUR
2. Junior 1400-40- 5000- 81.17
Investigator 1800-EB- 150-
50-2300 8000
LABOUR BUREAU
5. Investigator 1400-40- 5000- 81.17
GrII 1800-EB- 150-
50-2300 8000
The above-mentioned revised scales of pay shall be deemed to have come into force on the 1st day of January, 1996."
10. A bare perusal of the notification dated 30.4.2001 would show that the same has no statutory flavour and could not be termed as an amendment in the statutory 'Rules'. Therefore, these are merely executive instructions. It is well settled principle of law that the executive instructions issued in the exercise of the executive power of the Government, cannot override rules framed under Article 309 of the Constitution. For the aforementioned view we may place reliance on the judgments of Hon'ble the Supreme Court rendered in the cases of B.N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507; State of Maharashtra v. Jagannath Achyut Karandikar, AIR 1989 SC 1133; V. Sreenivasa Reddy v. Government of A.P., 1995 Supp (1) SCC 572; Naseem Bano v. State of U.P., 1993 Supp (4) SCC 46; and Godrej and Boyce Manufacturing Company Ltd. v. State of Maharashtra, (2009) 5 SCC 24.
11. The plea taken by the petitioner-Union of India that the pay scale of ` 5500-9000 was granted due to mistake, has not C.W.P. No. 13743-CAT of 2004 (O&M) 10 impressed us. In order to satisfy ourselves, vide order dated 17.2.2011, learned counsel for the petitioner-Union of India was directed to produce the original record to substantiate the said plea. However, perusal of the record, which has been placed before us in the shape of office noting in File No. 50/1/97-IC, 74/3/2000-IC, shows that there is no such error discernible from the original file. Therefore, the argument that the pay scale of ` 5500-9000 has been given inadvertently, erroneously and against any rules or instructions is not sustainable and liable to be rejected out-rightly.
12. As a sequel to the above discussion, we find no legal infirmity in the view taken by the Tribunal in allowing the original application filed by the applicant-respondents. The instant petition is wholly without merit. Accordingly, the same fails and is hereby dismissed.
(M.M. KUMAR)
JUDGE
(T.P.S. MANN)
March 21, 2011 JUDGE
satish/Pkapoor