Allahabad High Court
Shri Shiv Charan Lal Kushwaha & Another vs State Of U.P. & Others on 8 October, 2010
Bench: Ashok Bhushan, Ram Autar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved On 27.8.2010
Delivered on 8.10.2010
Case :- SPECIAL APPEAL No. - 9 of 1998
Petitioner :- Shri Shiv Charan Lal Kushwaha & Another
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Dinesh Dwivedi,A.K. Bhatt,G.K. Singh,R.N. Singh,V.K. Singh
Respondent Counsel :- S.C.,R.P.Misra,Ravi Kant,S.M.A. Kazmi,Y.S. Bohra
With
Case :- SPECIAL APPEAL No. - 13 of 1998
Petitioner :- Smt. Shobha Sharma & Another
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Dinesh Dwivedi
Respondent Counsel :- S.C.
____________
Hon'ble Ashok Bhushan,J.
Hon'ble Ram Autar Singh,J.
(DELIVERED BY HON'BLE ASHOK BHUSHAN, J.) These two appeals have been filed against the same judgment of learned Single Judge dated 1.12.1997 passed in writ petition No. 12882 of 1995 and two other connected writ petitions. The appellant Shiv Charan Lal Kushwaha filed writ petition No. 12882 of 1995 and appellant Smt. Shobha Sharma filed writ petition no. 17788 of 1995 which were connected and decided by common judgment, allowing the writ petitions partly.
We have heard Sri G.K. Singh, learned Counsel for the appellant in appeal No. 9 of 1998 and Sri S.D. Kautilya, learned counsel appearing for the appellant in appeal no. 13 of 1998. Sri Zafar Naiyer, learned Additional Advocate General assisted by Sri Y.S. Bohara, learned Standing Counsel have been heard for the State.
The facts leading to filing of the above mentioned writ petitions have been noted in detail by Hon'ble Single Judge, which need no repetition except noticing few facts that are necessary for deciding these appeals. It is sufficient to refer the facts of special appeal No. 9 of 1998 for deciding these appeals. The Health Department of State of U.P. had two categories of the staffs to implement National Malaria Eradication Programme namely; (a) House Visitor pay scale of 80-140 (b) Surveillance Inspectors and Malaria Inspectors pay scale Rs. 120-220. Vide order dated 22.7.1965, the Government took a decision to implement the integrated malaria maintenance and Family Planning Programme in which House Visitors were designated as Basic Health Workers and Surveillance Inspectors and Malaria Inspectors were retrenched and re-appointed on a newly created posts of Family Planning Health Assistants. In Health Department, there was another category of employee known as Social Workers with graduate qualification in social science in the payscale of 120-220. Social Workers were designated as Family Planning Health Assistants, payscale 160-320. With effect from 23.7.1981 multipurpose workers scheme sponsored by the Central Government was launched in which the Basic Heath Workers and other remaining categories of workers were integrated and were named as Health Workers. The categories in the Scheme were as follows:
"1. Health Workers (Male);
(a) Basic Health Workers, pay scale Rs. 185-265.
(b) House Visitors, pay scale Rs. 185-265.
(c) Vaccinators, pay scale Rs. 170-225.
(d) Family Planning Health Assistants, lower scale Rs. 230-385.
(e)Trachoma, pay scale Rs. 230-385.
2. Health Workers (Female);
A.N.M./Family Welfare Workers, Pay Scale Rs. 185-265.
3. Health Supervisors (Male);
(a) Family Planning Health Assistants (higher scale) Rs. 300-500.
(b) Health Inspectors, Pay Scale Rs. 280-460.
(c) Senior Malaria Inspectors, Pay Scale Rs. 300-500.
(d) Malaria Inspectors, pay scale Rs. 230-385.
(e) Small Pox Inspectors, pay scale Rs. 230-385.
(f) Surveillance Inspectors, Pay Scale Rs. 250-425. "
The writ petition No. 15904 of 1983 Shiv Charan Lal Kushwaha and others Vs. State of U.P. and others was filed by the category of basic health workers and other two categories namely; House Visitors and A.N.M. praying for same pay scale as was being given to Family Planning Health Assistants (Lower Scale). During the pendency of the aforesaid writ petition, another writ petition No. 4281 of 1984 was filed by the Family Planning Health Assistants (Lower Scale) claiming equal pay to Family Planning Health Assistants (Higher Scale). On 2.4.1985, the writ petition No. 4281 of 1984 was allowed, accepting the claim of family Planning Health Assistants (lower scale) to be given the pay scale of Family Planning Health Assistants (higher scale). In writ petition No. 15904 of 1983, an Amendment application claiming the pay scale of Family Planning Health Assistants (higher scale) Rs. 470-735, which amendment was allowed on 4.3.1986. The writ petition No. 15904 of 1983 was allowed by the Division Bench of this Court on 11.3.1988, directing the respondents to pay the same salary to the petitioners as was being paid to Family Planning Health Assistants. Review applications were filed to review the judgment dated 11.3.1988 one by the State Government and another by the Family Planning Health Assistants (higher scale) which review applications were rejected on 24.2.1989. In pursuance of the judgment dated 11.3.1988, the Government order dated 26.4.1991 was issued granting pay scale. Government order dated 1.10.1991 and 25.3.1994 were further issued for implementation of the judgment. An Ordinance namely U.P. Health Workers and Health Supervisors (Regulation of Pay) Ordinance 1985 was promulgated on 1.5.1985 providing for scale and categories of health workers (Male) and Health Workers (Female) w.e.f. 23.7.1981. Subsequently an enactment namely; U.P. Health Workers and Health Supervisors (Regulation of Pay) Act, 1996 was enacted being President Act No. 2 of 1996 providing for definition of Health workers, Health Supervisors, different pay scales. Sections 2 and 3 of the Act were enforced w.e.f. 23.7.1981 and Sections 4 to 7 from 1.5.1995 and the remaining provisions was made effective at once. The writ petition No. 12882 of 1995 Shiv Charan Lal Vs. State of U.P. and others and two other writ petitions being writ petition No. 13432 of 1995, P.B. Shukla and another Vs. State of U.P. and others and writ petition No. 13788 of 1995, Smt. Shobha and another Vs. State of U.P. & others were filed challenging the Ordinance No. 35 of 1995 and Act No. 2 of 1996. All the three writ petitions were partly allowed by the Hon'ble Single Judge vide its judgment dated 1.12.1997. The validity of the Act of 1996 was upheld by the Hon'ble Single Judge however, with the rider that the Act will be enforced prospectively from the date it has been enacted. It was held that till the date of enactment of the validating Act, the petitioner shall be entitled to the same pay scale as was being paid to the Family Planning Health Assistants (Lower Scale) and thereafter from the date of enactment in the pay scale fixed by the validating Act. Hon'ble Single Judge, while clarifying the Division Bench judgment dated 11.3.1988 held that the direction by the Division Bench has to be interpreted to mean that this Court directed payment of salary in the pay scale of Family Planning Health Assistants (Lower Scale) and not Family Planning Health Assistants (Higher Scale). Hon'ble Single Judge further directed that any salary paid to the petitioners in the pay scale of Family Planning Health Assistants (higher Scale) up to the date of enactment be recovered. These two appeals have been filed challenging the judgment of Hon'ble Single Judge upholding the validity of the Act and further direction to recover the salary paid to the petitioners of the Family Planning Health Assistants (Higher Scale) up to the date of enactment. The State of U.P. had also filed a Special Appeal No. 53 of 1998 challenging the judgment of Hon'ble Single Judge on 1.12.1997 in so far as the writ petition was partly allowed by Hon'ble Single Judge. Special Appeal No. 53 of 1998 was dismissed by the Division Bench of this Court on 18.2.2008 by following order:
"This Special Appeal has been filed against the impugned judgment and order of the Hon'ble Single Judge dated 1st December, 1997 by which the writ petition filed by the respondents- petitioners have been partly allowed by holding that the amount paid to the employee in terms of the Division Bench judgment of this Court rendered earlier, duly affirmed by the Hon'ble Supreme Court by a reasoned order, cannot be recovered.
After hearing Sri Ravi Kant, Senior Advocate on behalf of the State of U.P., we are satisfied that there is no illegality or infirmity in the judgment and order of the Hon'ble Single Judge to the extent the relief has been granted to the petitioner.
Special Appeal lacks merit and is, accordingly, dismissed."
State of U.P. filed Special Leave to Appeal (Civil) No. 2 challenging the Division Bench judgment dated 18.2.2008, dismissing the special appeal. The apex Court dismissed the special leave to Appeal . However, the apex Court observed that dismissal of the Special leave petition shall not prevent the petitioners from raising points/questions of law in other similar appeals pending in the High Court.
From the aforesaid, it is clear that the writ petitions in so far as it were partly allowed by Hon'ble Single Judge vide judgment dated 1.2.1997 has been upheld in Special Appeal No. 53 of 1998 as well as by the apex Court. Thus, the challenge on behalf of the State in so far as the writ petition was partly allowed, had been negatived. Thus, the scope of this appeal is confined only to that part of the order of the Hon'ble Single Judge by which the claim of the writ petitioner was not partly accepted i.e. the judgment of Hon'ble Single Judge in sofar as it upholds the validity of the Act and secondly in so far as it directs for recovery of the salary from the petitioners, if paid in the pay scale of Family Planning Health Assistants (Higher Scale) up to the date of enactment i.e. 1.5.1995.
Learned Counsel for the appellant submitted that by Act No. 2 of 1996 the Legislature has in essence overruled the Division Bench judgment dated 11.3.1988 and entrenched upon the field which is reserved for the judiciary. It is submitted that the mandamus issued by the Division Bench to make payments of the salary in the pay scale of Family Planning Health Assistants (Lower Scale) could not have been effected by the legislative device. It is submitted that the basis of the Division Bench judgment could not be changed by the Legislature by enacting the Act by keeping the Family Planning Health Supervisors in different categories retrospectively. It is submitted that the Division Bench by its judgment issued mandamus on the bais of the rights of the petitioner guaranteed under Articles 14 and 16 of the Constitution of India to get the equal pay scale on the finding that they were performing the same duties, which mandamus could not have been made ineffective by the enactment and the basis of the judgment could not have been removed. Learned counsel for the petitioner further submitted that the writ petition No. 4281 of 1984 filed by the Family Planning Health Assistants (Lower Scale) was allowed directing them to be paid salary of the Family Planning Health Assistants (Higher Scale) vide judgment dated 2.4.1985. It is submitted that after the judgment dated 2.4.1985, the writ petition No. 15904 of 1983 was amended by making a prayer for grant of salary in the pay scale of Rs. 470-735 of Family Planning Health Assistants ( Higher Scale) which amendment was allowed on 4.3.1986 and the mandamus issued by the Division Bench was to the effect that the petitioners were entitled for salary in the higher pay scale and there was no question for directing the recovery of the said salary which were paid in compliance of the various Government orders issued in compliance of the judgment. Learned counsel for the petitioner has relied on 1993 Supp (1)SCC 96 In the matter of: Cauvery Water Disputes Tribunal, 2006 (1) UPLBEC 268, Aligarh Muslim University Vs. Malay Shukla and others. Reliance has also been placed on the apex Court judgment in the case of Madan Mohan Pathak & others Vs. Union of India and others AIR 1978 S.C. 803.
Learned Additional Advocate General appearing for the respondents refuting the submissions of Learned Counsel for the appellant contended that the Act of 1996 was a validating Act and by the said enactment, the basis of the judgment given by the Division Bench dated 11.3.1988 was removed. The enactment had not overruled the judgment rather changed the basis of the judgment due to which the judgment became ineffective. There is no question of overruling the Division Bench judgment by the enactment. The Legislature was fully competent to enact the Ordinance and the Act and the legislation was not actuated by any malafide or fraud. The Act does not seek to override the decision of the High Court which granted equal pay to the petitioners and the Family Planning Health Assistants, but the Act purports to redefine the cadre. The Hon'ble Court has not issued any mandamus regarding the cadre but had only ordered the same pay to be given to the aforesaid two cadres. There was a basic difference between the three categories in their qualifications, work and pay and discrimination has been made on the basis of past history of difference. It is always open to the legislature to discriminate in the light of past history. It was open to the legislature to create a fiction and give full effect to the same, which cannot be assailed except on the ground of unreasonableness. It did not contrarvene to the fundamental rights to the petitioners and it was open to the Legislature to remove the lacuna and fill up the loopholes. Reliance has been placed on judgment of the apex Court in AIR 1975 S.C. 2035 Government of Andhra Pradesh vs. Hindustan Machine Tools., J.T. 1996(2) S.C. 85, Indian Aluminium Company Vs. State of Kerala and others, AIR 2005 S.C. 137, Virendra Singh Hooda and others Vs. State of Haryana and others. Learned Additional Advocate General submitted that the petitioners were never performing any supervisory duty nor in their writ petition No. 15904 of 1983 they claim parity with Family Planning Health Assistants (Higher Scale) rather they have claimed parity with Family Planning Health Assistants (Lower Scale). Hence, the payment made till the enactment in the higher pay scale to the petitioners, has rightly been directed to be recovered. It is submitted that the enactment does not suffer from any infirmity and the judgment of the Hon'ble Single Judge upholding validity of the enactment is in accordance with law and as per the ratio laid down by the apex Court.
We have considered the submissions of learned counsel for the parties and have perused the record.
The first submission which has been pressed by Learned Counsel for the appellant is that the enactment directly overrules the judgment of the Division Bench dated 11.3.1988 which is impermissible. The mandamus was issued on the basis of the rights guaranteed to the petitioners under Articles 14 and 16 of the Constitution of India. Per contra learned Additional Advocate General submits that enactment was within the legislative competence of the Legislature and it has removed the basis of the judgment making the judgment ineffective which is in accordance with the ratio of the apex Court.
Our Federal Court in Mt. Atria Begum and Anr. v. United Provinces A.I.R. 1941 F.C. 70, held that the power of validation must be taken to be ancillary or subsidiary to the power to deal with the particular subjects specified in the Lists. The list referred in the said judgments were the list of the Government of India Act 1935. There are numerous incidences of passing a validating statutes to cure invalidity or illegality found by a judicial decision in taxing statutes and other statutes. The Constitution Bench of the Apex Court has considered the validity of the validating statute in AIR 1970 S.C. 190 Sri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality and Ors. In the said case the Validation Act, namely, Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963 was passed to remove the basis of the judgment of the Apex Court in Patel Goredhands Hargovindas v. Municipal Commissioner, Ahmedabad (1964) 2 S.C.R. 608. The Apex Court in the Patel Goredhandas' case (supra) had held that the word 'rate' has acquired a special meaning in English Legislative history and practice and also in Indian Legislation and it meant a Tax for local purposes imposed by local authorities. The basis of such tax was the annual value of the lands or buildings. After the judgment of the Apex Court the Validation Act, 1963 was passed and in that context considering the provisions of Section 3 of the Validation Act the principles were laid down in paragraph-4 of the judgment. Paragraph 4 of the said judgment is quoted below:
4. Before we examine Section 3 to find out whether it is effective in its purpose or not we may say a few words about validating statutes in general. When a Legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the Legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which tax was collected and by legislative fiat makes the new meaning binding upon courts. The Legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a Validating Law, therefore, depends upon whether the Legislature possesses the competence which it claims over the subject- matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the Validating Law for a valid imposition of the tax."
In AIR 1975 SC 20 Government of Andhra Pradesh Vs. Hindustan Machine Tools, the apex Court had occasion to consider the provisions of Andhra Pradesh Gram Panchayats Act, 1964. It was held that the Legislature has the power to pass a law prospectively as well as retrospectively. In Re; Cavery Water Dispute Tribunals's case (supra) , the apex Court had occasion to consider the legislative device by which the basis of the judgment was removed to make the judgment ineffective. Following was laid down in paragraph 74:
" In this connection, we may refer to a decision of this Court in Municipal Corporation of the City of Ahmedabad etc.v. New Shorock Spg. & Wvg. Co., Ltd. etc., [1971] 1 SCR 288.The facts in this case were that the High Court as well as this Court had held that property tax collected for certain years by the Ahmedabad Municipal Corporation was illegal. In order to nullify the effect of the decision, the State Government introduced Section 152A by amendment to the Bombay Provincial Municipal Corporation Act the effect of which was to command the Municipal Corporation to refuse to refund the amount illegally collected despite the orders of this Court and the High Court. This Court held that the said provision makes a direct in road into the judicial powers of the State. The legislatures under the Constitution have, within the prescribed limits, power to make laws prospectively as well as retrospectively. By exercise of those powers a legislature can remove the basis of a decision rendered by a competent court thereby rendering the decision ineffective. But no legislature in the country has power to ask the instrumentalities of the State to disobey or disregard the decisions given by the courts. Consequently, the provisions of sub-section (3) of section 152A were held repugnant to the Constitution and were struck down. To the same effect is another decision of this court in Madan Mohan Pathak v. Union of India & Ors. etc., [1978] 3 SCR 334. In this case a settlement arrived at between the Life Insurance Corporation and its employees had become the basis of a decision of the High Court of Calcutta. This settlement was sought to be scuttled by the Corporation on the ground that they had received instructions from the Central Government that no payment of bonus should be made by the Corporation to its employees without getting the same cleared by the Government. The employees, therefore, moved the High Court, and the High Court allowed the petition. Against that, a Letters Patent Appeal was filed and while it was pending, the Parliament passed the Life Insurance Corporation (Modification of Settlement) Act, 1976 the effect of which was to deprive the employees of bonus payable to them in accordance with the terms of the settlement and the decision of the Single Judge of the High Court. On this amendment of the Act, the Corporation withdrew its appeal and refused to pay the bonus. The employees having approached this Court challenging the constitutional validity of the said legislation, the Court held that it would be unfair to adopt legislative procedure to undo a settlement which had become the basis of a decision of the High Court. Even if legislation can remove the basis of a decision, it has to do it by alteration of general rights of class but not by simply excluding the specific settlement which had been held to be valid and enforceable by a High Court. The object of the Act was in effect to take away the force of the judgment of the High Court. The rights under the judgment would be said to arise independently of Article 19 of the Constitution."
In Indian Aluminium Company Vs. State of Kerala and others (supra), the apex Court reviewed earlier judgments on the subject of validation of statutes and laid down the tests in paragraph 36 on the basis of which the validity of a validating Act has to be judged, which are to the following effect:
"(i) whether legislature enacting the Validating Act has competence over the subject- matter;
(ii) whether by validation, the legislature has removed the defect which the court had found in the previous law; and
(iii) whether the validating law is inconsistent (sic consistent) with the provisions of Chapter III of the Constitution."
The apex Court after review of all earlier important judgments, laid down its conclusions in paragraph 56, which are to the following effect:
"56. From a resume of the above decisions the following principles would emerge:
(1) The adjudication of the rights of the parties is the essential judicial function. Legislature has to lay down the norms of conduct or rules which will govern the parties and the transactions and require the court to give effect to them;
(2) The Constitution delineated delicate balance in the exercise of the sovereign power by the legislature, executive and judiciary;
(3) In a democracy governed by rule of law, the legislature exercise the power under Articles 245 and 246 and other companion articles read with the entries in the respective lists in the Seventh Schedule to make the law which includes power to amend the law.
(4) Courts in their concern and endeavour to preserve judicial power equally must be guarded to maintain the delicate balance devised by the Constitution between the three sovereign functionaries. In order that rule of law permeates to fulfil constitutional objectives of establishing an egalitarian social order, the respective sovereign functionaries need free play in their joints so that the march of social progress and order remains unimpeded. The smooth balance built with delicacy must always be maintained;
(5) In its anxiety to safeguard judicial power, it is unnecessary to be overzealous and conjure up incursion into the judicial preserve invalidating the valid law competently made;
(6) The court, therefore, needs to carefully scan the law to find out; (a) whether the vice pointed out by the court and invalidity suffered by previous law is cured complying with the legal and constitutional requirements; (b) whether the legislature has competence to validate the law; (c) whether such validation is consistent with the rights guaranteed in Part- III of the Constitution.
(7) The court does not have the power to validate an invalid law or to legalise impost of tax illegally made and collected or to remove the norm of invalidation or provide a remedy. These are not judicial functions but the exclusive province of the legislature. Therefore, they are not encroachment on judicial power.
(8) In exercising legislative power, the legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. The legislature can change the character of the tax or duty from impermissible to permissible tax but the tax or levy should answer such character and the legislature is competent to recover the invalid tax validating such a tax on removing the invalid base for recovery from the subject or render the recovery from the State ineffectual. It is competent for the legislature to enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the court or the direction given for recovery thereof.
(9) The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the legislature must have competence to do the same."
The Division Bench of this Court in 2006 (1) UPLBEC 268, The Aligarh Muslim University Through Its Vice-Chancellor vs Malay Shukla, of which Bench one of us (Justice Ashok Bhushan) was a Member, had occasion to consider the provisions of Aligarh Muslim University (Amendment Act 1981) and it was laid down that curative and validating power of the legislature can be utilised only when the basis is capable of being removed. The Division Bench had considered the judgment of Madan Mohan Pathak and Ors. v. Union of India (supra) and following was laid down in paragraphs 114 and 115:
" 114. From the propositions as laid down by above cases of the Apex Court, it is clear that curative and validating power of the legislature can be utilised only when the basis is capable of being removed. There is no such principal of law that basis of a judicial decision is always capable of being removed. If such a broad proposition is accepted then every judicial decision is liable to be overturned by legislature. In Madan Mohan Pathak and Ors. v. Union of India 1978(2) S.C.C. 50 the seven Judge Bench of the Apex Court did not accept the broad submission that whenever any factual or legal situation is altered by the legislation the judicial decision rendered by the Court on the basis of such factual or legal situation prior to the alteration would straight away without more cease to be effective and binding on the parties. Following is extracted from paragraph 9 of the said judgment:
"9. ...We do not think this decision lays down any such wide proposition as is contended for on behalf of the Life Insurance Corporation. It does not say that whenever any factual or legal situation is altered by retrospective legislation, a judicial decision rendered by a Court on the basis of such factual or legal situation prior to the alteration, would straight away, without more, cease to be effective and binding on the parties...."
115. In Madan Mohan Pathak's case (supra) a settlement had taken place between the L.I.C. and its associates on 24^th January, 1974 relating to terms and conditions of service including bonus payable to them. The L.I.C. by circular dated 25^th September, 1975 informed all its offices that since the question of payment of bonus was being reviewed in the light of the Bonus Ordinance dated 25^th September, 1975, no bonus should be paid to the employees. The All- India Insurance Employees' Association filed a writ petition in Calcutta High Court. A learned single Judge allowed the writ petition and issued mandamus to make payment of bonus and other directions were also issued. An Act was passed, namely, Life Insurance Corporation (Modification of Settlement) Act, 1976 providing for modification of the settlement dated 24^th January, 1974. The Act did not set at bought the entire settlement but merely rendered without force and affect the provisions of the settlement in so far as they related to payment of annual cash bonus to Class-III and Class-IV employees. In the said judgment Apex Court observed following in paragraph-9:
" 9. ...Here the judgment given by-the Calcutta High Court, which is relied upon by the petitioners, is not a mere declaratory judgment holding an impost or tax to be invalid, so that a validation statute can remove the defect pointed out by the judgment amending the law with retrospective effect and validate such impost or tax...."
The same principles were laid down in Virendra Singh Hooda and others Vs. State of Haryana and others (supra). The validity of the Act has to be considered in the light of the ratio as laid down in the above mentioned cases. The President Act No. 2 of 1996 contains the reasons for enactment which in chronological order mentions the details regarding category and nomenclature of health workers since 1965 including their pay scales and details of both the writ petitions filed in this Court, and allowed being writ petition No. 15904 of 1983 and 4281 of 1984. The Act with retrospective effect has categorised the health workers and health supervisor with their pay scales applicable w.e.f. 3.7.1981. Section 3 which provides for definition of different workers and pay scale are as follows:
3. Pay of Health Workers and Health Supervisors.- (1) The scales of pay admissible to Health Worker (Male), Health Worker (Female), Health Supervisor (Male) and Health Supervisor (Female), under the Multipurpose Workers Scheme shall be as follows:-
(i) With effect from July 23,1981-
(a) Health Worker (male) and Health Worker (Female) Rs. 400-10-450-12-474-EB-12-
570E-15-615
(b) Health Supervisor (male) and Health Supervisor (female) Rs. 470-15-575-EB-15-650-17- 701-EB-17-735
(ii) With effect from January 1, 1986-
(a) Health Worker (male) and Health Worker (female) Rs. 975-25-1150-EB-30-1660
(b) Health Supervisor (male) and Health supervisor (female) Rs. 1350-30-1440-40-1800-EB-50- 2200 By section 4 all the Government orders issued in obedience of the Division Bench judgment dated 11.3.1988 have been rescinded and section 5 gave an overriding effect to that. Section 5 is as follows:
"5. Overriding effect.- The provisions of this Act shall have effect notwithstanding anything contained in any judgment, decree or order of any court or in the orders of the State Government and the scales of pay specified in Section 3 shall be deemed to be and always to have been admissible to Health Worker (male). Health Worker (female), Health Supervisor (male) and Health Supervisor (female) as if the provisions of this Act were in force at all material times."
Before we proceed to consider the provisions of the Act, it is relevant to refer to one judgment of the apex Court which is very relevant for the present case i.e. Ravindranath Pai and another vs. State of Karnataka and another reported in J.T. 1995(2) S.C. 520, wherein retrospective amendment with regard to bifurcation of cadre and pay scale was in issue. The facts of the said case need to be noted in detail.
In State of Karnataka's Public Works Department appointments were made of diploma holders in engineering as Supervisors and degree holders as Junior Engineers. The appellants in the said case were appointed as Supervisors. In 1969 both the cadres of Junior Engineer and Supervisor were merged into one cadre as Junior Engineer. This was followed by an order issued in 1971 extending identical pay scales with retrospective effect from 1.1.1957. By an order dated 9.1.1974 the State of Karnataka sought to bifurcate the service into two cadres, namely, Junior Engineer (Division-I) and Junior Engineer (Division-II). The former cadre was to comprise of degree holders and the later of diploma holders. This bifurcation of cadres was sought to be given retrospective effect from 3.7.1969, which was sought to be supported by an Act, namely, Karnataka State Civil Services (Classification and Scale of Pay of Non-graduate Junior Engineers of the Public Works Department) Act, 1975. The Act provided for classification and scale of pay admissible to non-graduate Junior Engineers. By Section 2 of the said Act the posts of non-graduate Junior Engineers were declared to have existed with retrospective effect from 1st November, 1956. The aforesaid bifurcation was challenged in the Karnataka High Court in Writ Petition No.3182 of 1973 during pendency of which writ petition the aforesaid Act was enforced. The High Court vide its judgment dated 1st September, 1981 took the view that bifurcation of the combined cadre of Junior Engineers which was holding the field from 1969 to 1974 could be operative from 9.1.1974 for the purpose of separate pay scales of graduate and non-graduate Junior Engineers. Paragraph 3 of the judgment of the apex Court noticed the aforesaid facts, which is quoted below:-
"3. The aforesaid bifurcation of cadres was brought in challenge in Karnataka High Court by writ petition no. 3182 of 1973. During the pendency of the writ petition Karnataka Act 9 of 1975 came into force. The High Court by its decision dated 1.9.1981 took the, view that bifurcation of the combined cadre of Junior Engineers which was holding the field from 1969 to 1974 could be operative from 9.1.1974 for the purpose of separate pay scales of graduate and non- graduate Junior Engineers. In so far as the Act sought to give retrospective effect to its operation for a period prior to 9.1.1974, it was regarded as invalid. Accordingly, a writ of mandamus was issued restraining the respondents from recovering any part of the salary received by the non- graduate Junior Engineers petitioners for any period prior to 9.1.1974 and a further mandamus was issued to pay the salary which accrued to them upto 9.1.1974, which had not been paid. The writ petitions were accordingly partly allowed."
Subsequently the writ petition was filed by the appellants in the Karnataka High Court praying for direction to treat the appellants as Junior Engineers (Division-I) in the light of their existing qualification of graduation. The appellant No.1 had acquired degree of graduation in 1969 and appellant No.2 had acquired in 1970. The writ petition was transferred to the Administrative Tribunal. The Tribunal dismissed the writ petition taking the view that the decision of the High Court dated 1.9.1981 was with reference to the retrospective revision of pay scales only and the Division Bench judgment of the High Court had struck down the retrospective effect of the Karnataka Act only on the aspect of fixing separate pay scales for Junior Engineers graduates and non-graduates from any date prior to 9.1.1974 but the retrospective bifurcation of the cadre of Junior Engineers into Junior Engineers graduates (Division-I) and non-graduates (Division-II) was not touched by the High Court. The Apex Court disapproving the judgment of the Tribunal, laid down following in paragraphs 12 and 15:-
"12. With respect, the Tribunal has not appreciated this legal position. It is now well settled that even though the Legislature has power to retrospectively amend a statute, it should not be done in a manner which would violate fundamental rights under Articles 14 read with 16(1). On the day on which the Karnataka Act came into force, the graduates and non-graduates Engineers belonged to a common cadre of Junior Engineers and were drawing same pay scales. There could be no discrimination between graduate incumbents and nongraduate incumbents of a common cadre in so far as common pay scales was concerned, as held by the High Court. If that is so the Act by its retrospective sweep could not destroy the fundamental rights of all these incumbents of a common cadre to be treated alike for all other available service benefits flowing from the common cadre."
15. In view of the settled legal position, therefore, it must be held that the Act in so far as it sought to introduce by Section 2(1) (i), retrospective bifurcation of the common cadre of Junior Engineers into two cadres of Junior Engineers (Division-I for graduates and Junior Engineers (Division-II) for non-graduates from 1. 11. 1956 is inoperative at law. It must be held, on a parity reasoning which appealed to the High Court when it held in writ petition no.3182 of 1973 and connected matters, that Section 2(1)(ii) could not operate retrospectively to destroy common pay scales available to both the Junior Engineers graduates and non-graduates. Section 2(1)(i) also could not operate retrospectively to bifurcate the said common cadre with effect from 1.11.1956. It will also have only prospective effect. Consequently, the bifurcation of pay scales as well as of the common cadre of Junior Engineers would legally become effective at the highest from 9.1.1974 when the Government order of even dated introducing such a scheme saw the light of the day. It could also not have any retrospective effect."
The Apex Court in the aforesaid case laid down that retrospective bifurcation of the common cadre into two cadres is inoperative at law. The Apex Court laid down that when Section 2(1)(i) could not operate retrospectively to destroy the common pay scales available to both the Junior Engineers graduates and non-graduates. Section 1(1)(i) also could not operate retrospectively to bifurcate the said common cadre with effect from 1.1.1956. The above case has also een relied by the learned Single Judge while taking the view that the 1996 Act shall operate prospectively. We are in full agreement with the view taken by the learned Single Judge that the 1996 Act shall operate prospectively.
At this juncture it is to be noted that against the very judgment of the learned Single Judge dated 1st December, 1997 an appeal was filed by the State of U.P. challenging part of the judgment, which was against the State and the said special appeal has been dismissed and the special leave petition has also been dismissed.
Another judgment which is relevant in the present case is the case of State of Gujarat and another vs Raman Lal Keshav Lal Soni and others reported in (1983)2 S.C.C. 33. The amendments made in Gujarat Panchayats Act, 1961 in the year 1978 was under challenge in the said case. A retrospective amendment of the enactment creating differential classification in relation to the original position of the employees of Panchayats and depriving the ex-municipal employees of their present status as Government servant and consequential benefit was held to be violative of Article 14 of the Constitution of India. The Apex Court laid down following in paragraphs 51 and 52:-
"51. Now, in 1978 before the Amending Act was passed, thanks to the provisions of the Principal Act of 1961, the ex- municipal employees who had been allocated to the Panchayat Service as Secretaries, officers and servants of Gram and Nagar Panchayats, had achieved the status of government servants. Their status as Government servants could not be extinguished, so long as the posts were not abolished and their services were not terminated in accordance with the provisions of Art. 311 of the Constitution. Nor was it permissible to single them out for differential treatment. That would offend Art. 14 of the Constitution. An attempt was made to justify the purported differentiation on the basis of history and ancestry, as it were. It was said that Talatis and Kotwals who became Secretaries, officers and servants, of Gram and Nagar Panchayats were Government servants, even to start with, while municipal employees who became such secretaries, officers and servants of Gram and Nagar Panchayats were not. Each carried the mark or the 'brand' of his origin and a classification on the basis of the source from which they came into the service, it was claimed, was permissible. We are clear that it is not. Once they had joined the common stream of service to perform the same duties, it is clearly not permissible to make any classification on the basis of their origin. Such a clarification would be unreasonable and entirely irrelevant to the object sought to be achieved. It is to navigate around these two obstacles of Art. 311 and Art. 14 that the Amending Act is sought to be made retrospective, to bring about an artificial situation as if the erstwhile municipal employees never became members of a service under the State. Can a law be made to be destroy today's accrued constitutional rights by artificially reverting to a situation which existed seventeen years ago? No.
52. 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 dos 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 onto 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 rights 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. That would be most arbitrary, unreasonable and a negation of history. It was pointed out by a Constitution Bench of this Court in BS. Yadav and others etc. v. State of Haryana and others etc.(1) Chandrachud CJ., speaking for the Court held:
"Since the Governor exercises the legislative power under the proviso to Art. 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 of the 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 law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation 3 cannot become valid by being made retrospective. Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws. We are, therefore, firmly of the view that the Gujarat Panchayats third Amendment) Act, 1978 is unconstitutional, as it offends Arts. 311 and 14 and is arbitrary and unreasonable. We have considered the question whether any provision of the Gujarat Panchayats (Third Amendment) Act, 1978 might be salvaged. We are afraid that the provisions are so intertwined with one another that it is well-nigh impossible to consider any life saving surgery. The whole of the Third Amendment Act must go. In the result the Writ Petition Nos 4266-70 are allowed with costs quantified at Rs. 15,000. The directions given by the High Court, which we have confirmed, should be complied with before June 30, 1983. In the meanwhile, the employees of the Panchayats covered by the appeal and the Writ Petitions will receive a sum of Rs. 200 per month over and above the emoluments they were receiving before February 1, 1978. This order will be effective from February 1, 1983 The interim order made on February 20, 1978 will be effective upto January 31, 1983. The amounts paid are to be adjusted later."
Applying the ratio as laid down in the above noted case, we fully endorse the view taken by the Hon'ble Single Judge that Act of 1996 was a valid enactment. The Legislature could have change the basis of the judgment by bifurcating the cadres defining the various categories of health workers and prescribing their pay scales. The view of the Hon'ble Single Judge that the said enactment operate prospectively is fully justified in view of the ratio of the above noted judgments. As observed above, the appeal filed by the State against the judgment partly allowing the writ petition i.e. making the Act to operate prospectively has already been dismissed by this Court and the Apex Court. The said question is already settled.
The Hon'ble Single Judge has also placed reliance on Ravindranath Pai and another vs. State of Karnataka and another (supra) it was held by Hon'ble Single Judge that it was open to the Legislature to amend the definition bifurcating and restructuring the cadre and re-fix the scale. It is useful to refer to relevant findings recorded by the Hon'ble Single Judge in the impugned judgment:
" Having considered the respectful submission of learned counsel for the parties and having perused the decisions stated above, I find force in the submission made by learned counsel for the petitioners. The power of the legislature to enact a validating law is no longer respondent integra. It is also well settled that by means of the validating Act the legislature could remove the defects, fill up lacuna and even validate the illegality pointed out in the judgment. It also can not be doubted that the legislature can resort to legislate by deeming a fiction. However, the same has not only to be reasonable but also conforming to the requirement of the Constitution. It cannot be denied that when this Court had held that the work being performed by the petitioners and the Family Planning Health Assistants (lower grade) were same in nature and, therefore, they were entitled to the same pay scale and as the same had also been granted by the Government, a vested right had accrued in favour of the petitioners and as has been observed in the aforesaid cases the said right and the relief obtained could not be made negatory by enacting a retrospective legislation. I am, therefore, of the view that so far as the validity of the validating Act is concerned, it is upheld so far as its prospectivity is concerned, however, the retrospective part cannot be held to be valid. For the same reason I am of the view that the salary already drawn by the petitioners till the date of enforcement of the validating Act cannot be recovered from the petitioners. However, with effect from the date the validating Act has been enacted, the pay scales fixed in the validating Act with respect to the petitioners and the cadres restructured by the validating Act can be enforced."
We are in complete agreement with the view taken by Hon'ble Single Judge with regard to validity of the Act and and it's prospective operation. Hon'ble Single Judge however, after holding the aforesaid, proceeded to make a clarification with regard to entitlement of the petitioners of pay scale in writ petition No. 15904 of 1983. Hon'ble Single Judge took the view that operative portion of the order dated 11.3.1988 passed by the Division Bench in writ petition No. 15904 of 1983 has to mean that the Court equated the petitioners with Family Planning Health Assistants (Lower scale). Hon'ble Single Judge observed that Division Bench had not made any discussions with regard to Family Planning Health Assistants (higher scale) and although the amendment application was allowed but the said amendments were not carried out and there was no direction for payment of higher grade in the operative portion hence, the petitioners were only entitled for the scale of Family Planning Health Assistants (Lower Grade) and any payments made in the higher grade till the date of enactment be recovered. With the aforesaid view of the Hon'ble Single Judge, we do not find ourselves in agreement. The operative portion of the judgment of the Division Bench in writ petition was to the following effect:
"In the result this petition succeeds and is allowed, a direction is issued to opposite parties to pay the same salary to the petitioners as is being paid to the Family Planning Health Assistants. There shall be no order as to costs."
As noted earlier, this writ petition was filed in the year 1983, which was decided on 11.3.1988. But during the pendency of the writ petition another writ petition No. 4281 of 1984 connected with writ petition No. 3088 of 1984 was filed by U.P. Parivar Kalyan Swasthya Sahakari Sangh and others, which writ petition was filed by Family Planning Health Assistants (Lower scale), praying for a writ of mandamus directing the respondents to pay the salary as Health Supervisor i.e. Family Planning Health Assistants (Higher scale). The said writ petition was allowed by the Division Bench on 22.4.1985 , the operation portion of the order is as follows:
"In the result, the writ petitions are allowed. The letter dated 23.7.1981 (Annexure 3 to the writ petition) appointing the petitioners in the category of Health Workers and Annexure-4 to the petition, fixing the pay scale of the petitioners at Rs. 400-615 being violative of Articles 14 and 16 of the Constitution of India, are quashed. Respondent No. 1 is directed by means of a writ of mandamus to designate the members of the petitioners Association, and the individual petitioner Khushiyal Ram, as Health Supervisor under the Multipurpose Scheme and pay the salary and allowances to them as are permissible to the Health Supervisors, from the date of appointment of the said petitioners in the rank of Health Worker. The Association and the individual petitioner shall be entitled to Rs. 200/- each as costs."
Thus writ petition No. 15904 of 1983 when it was decided on 11.3.1988, the Family Planning Health Assistants (Lower scale) has already obtained a Division Bench order on 2.4.1985 for being paid salary in the Health Supervisor i.e. Family Planning Health Assistants (Higher scale). The operative portion of the judgment dated 11.3.1988 did not specifically mention the Family Planning Health Assistants (Lower scale) or Family Planning Health Assistants (Higher scale) but it directed to pay the same salary to the petitioners as was being paid to the Family Planning Health Assistants. The order of the Division Bench has to mean that whatever salary was being paid to the Family Planning Health Assistants should be paid to the petitioners of the writ petition. Family Planning Health Assistants (Lower scale) were getting the salary of Family Planning Health Assistants (Higher scale) by virtue of the Division Bench judgment dated 2.4.1985. Further amendments in writ petition No. 15904 of 1983 had already been allowed. On the basis of the Division Bench judgment dated 2.4.1985, the petitioners of writ petition No. 15904 of 1983 prayed for salary of Family Planning Health Assistants (Higher scale). The mere fact that amendments were not carried out cannot operate to the detriment of the petitioners for getting the salary which was being paid to the Family Planning Health Assistants on the date of the judgment dated 11.3.1988. Thus, we are of the view that the petitioners were entitled for salary of Family Planning Health Assistants (Higher scale) in view of the judgment dated 11.3.1988. The State subsequently has implemented the judgments by giving salary to the writ petitioner of the Family Planning Health Assistants (Higher scale) which has been directed to be recovered by the Hon'ble Single Judge by the impugned judgment. As the Hon'ble Single Judge having taken the view that the enactment shall operate prospectively, the salary which was already paid to the petitioners prior to the enactment ought not to have been directed to be recovered. Thus, the part of the judgment by which the Hon'ble Single Judge directed for recovery of salary paid to the petitioners till the date of enactment in the Family Planning Health Assistants (Higher scale), deserves to be set aside and is hereby set aside. The rest of the judgement of Hon'ble Single Judge is affirmed. From the operative portion of the judgment following portion is deleted:
"In case the petitioners and other persons in the category to which the petitioners belong have been paid any amount in the past till the date of enactment of the validation Act in the pay scale being paid to the Family Planning Health Assistants in the higher grade, they will be liable to refund the difference to the respondents or the same can be adjusted from their future salary in easy instalments to be fixed by the respondents. Similarly such persons in the category of the petitioners who have attained the age of superannuation during this period but had been paid in the pay scale being paid to the Family Planning Health Assistants in the Higher grade, will be liable to refund the difference to the respondents and the same shall be deducted from the amount of their provident Fund and Gratuity. ' Both the appeals are partly allowed to the extent as indicated above. The parties shall bear their own costs.
Order Date :- 8.10.2010 LA/-
Civil Misc. Application No. 52503 of 2006 in Special Appeal No. 9 of 1998 The applicant Ram Chandra Yadav filed writ petition No. 9992 of 2006 praying for a writ of mandamus commanding the respondent no. 2 to release the arrears of salary amounting to Rs. 54,910/-. When the said writ petition was taken, the Hon'ble Single Judge converted the aforesaid writ petition as an application in special Appeal No. 9 of 1998 by following order dated 17.2.2006:
"Counsel for the petitioner has stated that since the special appeal, which has already been filed by the State against the order of the Hon'ble Single Judge, is pending consideration, it would be appropriate that this petition, which is for consequential relief being granted in terms of the judgment of the Hon'ble Single Judge (subject matter of special appeal), may be treated as a fresh application in the pending special appeal. It is directed accordingly.
Let this petition be converted into an application in special Appeal No. 9 of 1998 and may be placed before appropriate Bench along with previous papers on 7th March, 2006"
From the facts as stated in the application (writ petition), it is clear that the applicant retired from the post of Basic Health Worker on 31.12.1996. The petitioner was getting the pay scale of Rs. 470-735 w.e.f. 23.7.1981. From the retirel benefit of the petitioner, an amount of Rs. 54910/- was deducted as excess payment to the petitioners which is apparent from the materials brought on record. i.e. pension payment order dated 31.10.1998. The applicant has referred to the judgment dated 1.12.1997 of the Hon'ble Single Judge. In Special appeal No. 9 of 1998 decided by separate order of the date, we have held that the payment of salary to the petitioners (one of the petitioners being basic health workers), in the Family Planning Health Assistants (Higher scale) till the date of enactment i.e. 1.5.1995 could not have been recovered. The petitioner has retired on 31.12.1996 i.e. after the enforcement of the enactment. In the application there are no detail as to for which period recovery of Rs. 54910/- has been made. The applicant is clearly entitled for release of the deducted amount which relates to the period prior to the enforcement of the Act i.e. 1.5.1995 and the excess amount paid after 1.5.1995 can only be recovered.
In the facts of the present case, liberty is given to the petitioner to file detail representation before the Finance Controller Chikitsa Evam Medical and Health Services U.P. Lucknow praying for issuance of necessary orders with regard to the release of the deducted amounts from his retirel benefits for the period before 1.5.1995. The petitioner may along with application submit a copy of this order as well as copy of the order of the date in Special Appeal No. 9 of 1998 to the Finance Controller, who may pass appropriate orders with regard to release of the deducted amount from the retirel benefit of the petitioner to which he may be entitled in view of the judgment of the Special Appeal No. 9 of 1998. The Finance Controller shall take the decision expeditiously preferably within a period of two months from the date of production of a certified copy of this order before him.
The application is disposed of accordingly.
Dated: 8.10.2010 L.A./-