Gujarat High Court
Gujarat vs State on 19 January, 2011
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
Print
SCA/7812/2010 36/ 36 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7812 of 2010
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ? Yes
2
To be
referred to the Reporter or not ? Yes
3
Whether
their Lordships wish to see the fair copy of the judgment ? No
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No
5
Whether
it is to be circulated to the civil judge ? No
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GUJARAT
STATE JUDICIAL DEPARTMENT (CLASS III) EMPLOYEE'S FEDERATION & 1 -
Petitioners
Versus
STATE
OF GUJARAT & 3 - Respondents
=========================================================
Appearance
:
MR
VK JOSHI for
Petitioners
MR PK JANI, GOVERNMENT PLEADER for Respondents: 1 -
3.
MR JB PARDIWALA for Respondent:
4
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CORAM:
HON'BLE
SMT.JUSTICE ABHILASHA KUMARI
Date:
19/01/2011
CAV
JUDGMENT
The challenge in this petition, filed under Article 226 of the Constitution of India, is to communication dated 28.01.2010, issued by the Deputy Secretary, Legal Department, addressed to the District Judges of all District Courts in the State of Gujarat, and to communication dated 04.12.2010, addressed by the Under Secretary, Legal Department, to the petitioners, whereby the decision to pay honorarium at the rate of 25% of their pre-revised basic-pay, has been confirmed.
In order to elucidate the issues arising for consideration in the petition, a brief recapitulation of the factual matrix in which these issues have arisen, would be necessary. Petitioner No.1 is the Gujarat State Judicial Department (Class-III) Employees' Federation and petitioner No.2 is the Gujarat State Judicial Department Stenographer/ P.S. Association, who have filed the present petition through their respective Presidents.
A Joint Conference of Chief Ministers and Chief Justices was held at New Delhi, on 18.09.2004. At the said conference, all Chief Ministers of States and Chief Justices of the High Courts were requested by Hon'ble the Chief Justice of India, to take appropriate steps for the speedy disposal of cases pending in the courts. As per Notification dated 02.11.2006, whereby the Evening Courts Rules, 2006, were framed, the Chief Minister of Gujarat suggested that a Scheme for Evening Courts be introduced for the speedy disposal of petty cases, with a view to reducing the hardships of litigants belonging to the working class, in the State of Gujarat. With the above objective in mind, and in exercise of powers conferred by the proviso to Article 309, read with Articles 227 and 235 and other enabling provisions of the Constitution of India, His Excellency, the Governor of Gujarat, in consultation with the High Court of Gujarat, framed the Evening Courts Rules, 2006 ("the Rules"
for short). As per sub-rule (2) of Rule 1, the said Rules came into force on the date of their publication in the Official Gazette, and were to remain in force upto 31.03.2007, or for such further period as may be extended by the State Government, in consultation with the High Court, by publication of a Notification in the Official Gazette. It is not disputed that the Rules are in force, as of today. Upon implementation of the Rules, Evening Courts came to be established, and are functioning in various places in the State of Gujarat, wherein petty cases are being disposed of from 6:15 pm to 8:15 pm, on all working days.
The controversy that has arisen in the petition relates to Rule 7, which provides for honorarium to be paid to Judicial Officers and members of the staff working in the Evening Courts, at the rate of 25% of their basic-pay, without the merged Dearness Allowance or any other allowances, perks or perquisites. At the time of coming into force of the Rules, Judicial Officers and members of the staff working in the Evening Courts were receiving 25% of their basic pay as honorarium in the pre-revised basic-pay, as per the recommendations of the 5th Pay Commission, which was in force at the relevant period of time. Upon implementation of the recommendations of the 6th Pay Commission by the State of Gujarat, with effect from 01.01.2006, the pay-scales of Judicial Officers and other members of the staff working in the Evening Courts have been revised and their basic pay is being paid as per recommendations of the 6th Pay Commission. By the impugned communications dated 28.01.2010 and 04.12.2010, the State Government has taken a decision to the effect that, the honorarium to be paid to Judicial Officers and staff members working in the Evening Courts, shall be paid at the rate of 25% of their pre-revised basic-pay on the basis of Government Resolution dated 27.05.2009. This Resolution states that, apart from the Dearness Allowance (DA), House Rent Allowance (HRA), Compensatory Local Allowance (CLA), other allowances payable to Government employees under the 6th Pay Commission shall be paid as per the pre-revised pay-scales. It is the case of the petitioners that as provided in Rule 7, Judicial Officers and other members of the staff working in the Evening Courts are entitled to receive honorarium at 25% of their basic-pay, as revised upon implementation of the recommendations of the 6th Pay Commission in the State of Gujarat, which they are currently receiving. Aggrieved by the impugned decisions, the petitioners have approached this Court by filing the present petition.
On behalf of the State Government, an affidavit-in-reply has been filed by Shri P.B.Darji, Deputy Secretary, Finance Department, affirmed on 15.09.2010, wherein, it is merely stated that the Legal Department will have to modify the relevant provisions of the Rules, in accordance with the prior decision of the Finance Department, taken on the file of the Legal Department. A second and more detailed affidavit-in-reply has been filed on behalf of the State Government by Shri Hitendra D.Sailor, Deputy Secretary, Finance Department, affirmed on 16.12.2010, wherein, interalia, a stand has been taken that the word 'honorarium' is generally meant to be a fixed amount and as the pre-revised scales of pay were in vogue at the time when Notification dated 02.11.2006, framing the Rules was issued; it means that the net basic-pay as was prevalent at that point of time (the pre-revised scales) would be the basic pay and honorarium at the rate of 25% of the pre-revised basic pay is to be paid as this was the intention of the Government while framing the Rules. It is also stated in the said affidavit, that as there is no definition of "basic-pay" in the Rules, the Government is competent to make and pass an appropriate order to fill in the lacunae in the statutory Rules.
The High Court of Gujarat, through the Registrar General, was permitted to be added as party-respondent No.4, by order dated 06.12.2010 of this Court. In the affidavit-in-reply filed on behalf of respondent No.4 by Shri A.S.Raghupathy, Deputy Registrar, High Court of Gujarat, affirmed on 15.12.2010, it is stated that in view of Rule 7 of the Rules, Judicial Officers and members of the staff working in the Evening Courts are entitled to receive honorarium at the rate of 25% of their basic-pay, as revised, upon implementation of the recommendations of the 6th Pay Commission, and that there is nothing in Rule 7 to suggest that even upon revision of the basic-pay of Judicial Officers and members of the staff working in Evening courts, they would continue to receive honorarium at the rate of 25% of their pre-revised basic-pay. It is further stated that the Rules have been framed under Article 309 of the Constitution of India and thus, have statutory force; therefore, they cannot be amended by issuance of executive instructions, as has been done by the State Government. It is stated that the High Court has not been consulted by the State Government before taking the impugned decision not to pay honorarium at the revised rate of basic-pay, communicated by letter dated 28.1.2010, to all District Judges in the State of Gujarat.
On behalf of the petitioners, Mr.V.K.Joshi, learned advocate, has made the following submissions:
(I) That reliance upon the Government Resolution dated 27.05.2009 issued by the Finance Department, while taking the impugned decision, is misplaced, as the said Resolution pertains to increase in Dearness Allowance (DA), House Rent Allowance (HRA), Compensatory Local Allowance (CLA), but it does not, in any manner, relate to grant of honorarium of 25% of the basic-pay, as provided in Rule 7. DA, HRA and CLA are altogether different to honorarium and have no connection with the payment of the same. Honorarium is paid to Judicial Officers and members of the staff for rendering their services till late night, in the Evening Courts. The Judicial Officers and staff members working in the Evening Courts are being paid basic-pay as per the recommendations of the 6th Pay Commission, therefore, they are entitled to honorarium of 25% of the basic-pay as is being received by them currently, as per Rule 7, and not at the rate of 25% of their pre-revised basic-pay.
(II) That the recommendations of the 6th Pay Commission have come into force with effect from 01.01.2006 and it is nowhere stated in Rule 7, that after revision of the pay-scales, the honorarium of 25% would remain stagnant at the pre-revised basic-pay for all times to come.
(III)That honorarium is a remuneration for extra work and it cannot be taken to be a fixed amount, as is being construed by the State Government, which interpretation does not flow from the plain language of the Rules.
(IV) That when the statutory Rules are in force, their effect cannot be nullified or whittled down by issuing executive instructions contrary to the Rules, as has been done by the State Government. Therefore, the impugned communications dated 28.01.2010 and 04.12.2010 being contrary to the letter and spirit of the Rules, deserve to be quashed and set aside.
On behalf of the State Government, Mr.P.K.Jani, learned Government Pleader, has advanced the following submissions:
(i) That, at the time of coming into force of the Rules on 02.11.2006, Judicial Officers and other staff members rendering services in the Evening Courts were entitled to get 25% of their basic-pay as honorarium, in the pay-scale that they were actually drawing at the relevant point of time, which was the pre-revised pay-scale. Rule 7 stipulates that Judicial Officers and members of the staff shall receive 25% of their basic-pay as honorarium without the merged DA or any other allowances, perks or perquisites. It is nowhere stated in the said Rules that the basic-pay would mean the basic pay, "as revised from time to time", as is being canvassed by the petitioners.
Such an interpretation cannot be given to the said Rule in the absence of specific words to this effect, and honorarium at the rate of 25% of the basic-pay in the revised scale is, therefore, not payable to the members of the petitioner-Associations.
(ii) That the Rules have been framed for achieving a particular objective, namely, the speedy disposal of petty cases. Considering the nature of the work, nature of activity and hours of work, it cannot be said that the working of the Evening Courts is like the usual working of regular Courts, or that the nature of duties and type of work is the same.
(iii) That the State Government is not changing the provisions of Rule 7 by issuance of executive instructions, as alleged by the petitioners, but is following the said Rule in letter and spirit. In the absence of specific words such as "revised from time to time", the basic-pay which was being drawn by Judicial Officers and members of the staff in the Evening Courts when the Rules came into force, would be considered for payment of honorarium at the rate of 25%. The pay-scale that was being drawn on the coming into force of the Rules, that is, the basic-pay in the pre-revised scale, will be applicable as it is not mentioned in Rule 7 that the scale as revised from time to time would be applicable.
(iv) Referring to Black's Law Dictionary, the learned Government Pleader has submitted that the word 'honorarium' has been defined therein as "a voluntary reward for which no remuneration could be collected by law", and it also means "payment of money or anything of value made to a person for services rendered for which fees cannot legally or are not traditionally made". That as honorarium is just a free gift or gracious payment for services provided by some person, it is a fixed amount and the word 'honorarium' in the Rules should be read in this context, therefore, the word 'honorarium' mentioned in the aforesaid Rules is a fixed amount and is not required to be revised from time to time.
(v) That though the Rules have been framed in consultation with the High Court, as the State Government is implementing the Rules in their true and literal sense, it was not considered necessary to consult the High Court, before issuing the impugned communication dated 28.01.2010, which may not be taken as a sign of disrespect, as none was meant.
On the basis of the above submissions, the learned Government Pleader has reiterated that the impugned decisions whereby honorarium has been decided to be paid at the rate of 25% of the pre-revised basic-pay, are in consonance with Rule 7 of the Rules, therefore, the petition may be rejected.
On the other hand, Mr.J.B.Pardiwala, learned counsel for respondent No.4, High Court of Gujarat, has fully supported the case of the petitioners. The submissions made by him are briefly summarized as below:
(a) That there is nothing in Rule 7 to even remotely suggest that upon a revision of the basic-pay of Judicial Officers and members of the staff working in the Evening Courts, they would still continue to receive honorarium at the rate of 25% of their pre-revised basic-pay, for all times to come. Referring to the definition of 'pay' in the Gujarat Civil Services (Pension) Rules, 2002, the Gujarat Civil Services (General Conditions of Service) Rules, 2002 and the Gujarat Civil Service (Pay) Rules, 2002, which is identical, it is submitted that 'pay' means the basic-pay in the revised scales, as and when they are revised, and the interpretation being given by the learned Government Pleader that basic-pay would mean the basic-pay in the pre-revised scale is totally contrary to Rule 7.
(b) That the definition of 'honorarium' in the the Gujarat Civil Services (Pension) Rules, 2002, the Gujarat Civil Services (General Conditions of Service) Rules, 2002 and the Gujarat Civil Service (Pay) Rules, 2002, is that it is a recurring or non-recurring payment sanctioned to a Government employee as remuneration for special work of an occasional character. As Rule 7 prescribes honorarium to be paid at the rate of 25% of the basic-pay, which would mean the basic-pay in the revised pay-scale, for work done by Judicial Officers and ministerial staff in the Evening Courts, the definition as being put forth by the learned Government Pleader, to the effect that honorarium means a fixed amount, is not in consonance with the Rules, besides being out of context to the letter and spirit of the Rules.
(c) That the Rules have been framed under the proviso to Article 309 of the Constitution of India and thus, have statutory force. The said Rules have been framed in consultation with the High Court. As these are statutory rules, they cannot be amended or their effect whittled by issuance of executive instructions, as per the settled principles of law.
(d) Though it is not specifically provided in the Rules that the High Court should be consulted before taking any decision, however, as the Rules have been framed in consultation with the High Court, it would have been in the fitness of things had the High Court been consulted by the State Government before unilaterally taking the impugned decision.
(e) That it is a settled position of law that where there is a conflict of Rules between statutory Rules and executive orders, the statutory Rules will prevail and executive orders cannot be made or given effect to, in violation of the mandate of the Rules, especially in a manner that takes away the rights and benefits that have been earned and acquired under the existing Rules.
(f) That though an intention has been expressed in the first affidavit-in-reply filed by the State Government that it is contemplating an amendment in the Rules, however, no such amendment has taken place as of date and the Rules are very much in force. Even if such an amendment is made retrospectively, it cannot take away the legal rights that have come into existence by virtue of Rule 7.
In support of the above submissions, Mr.Pardiwala has placed reliance upon the following judgments:
(1) K.Kuppusamy v. State of Tamil Nadu - (1998)8 SCC 469 (2) Virender Singh Hooda and others v. State of Haryana and another - AIR 2005 SC 137 (3) Amrutbhai G.Desai v. (The) State of Gujarat and Ors. - 2008(3) GLH 461 (4) T.R.Kapur v. State of Haryana - AIR 1987 SC 415 (5) B.S.Yadav and others; Pritpal Singh and others v. State of Haryana and others;
State of Punjab and others - AIR 1981 SC 561 (6) State of Madhya Pradesh v. Yogendra Shrivastava - JT 2009(13) SC 448,
(g) Referring to the ratio of the judgment of the Apex Court in State of Madhya Pradesh v. Yogendra Shrivastava (supra), it is submitted by Mr.Pardiwala that this judgment squarely applies to the facts of the present case, as the facts of that case are somewhat similar, wherein the question of payment of Non Practising Allowance (NPA) was considered and the Supreme Court has upheld the decision of the Tribunal and the High Court, by holding that 25% of the pay as NPA would mean 25% of the basic pay inclusive of the benefit of increments in the pay-scale or revision of the pay-scales.
On the strength of the above submissions, the learned counsel for respondent No.4 has supported the case of the petitioners by emphasizing that Judicial Officers and other members of the staff working in the Evening Courts are entitled to receive honorarium at the rate of 25% of their basic-pay in the revised pay-scale, that they are actually drawing, as stipulated in Rule 7 of the Rules.
This Court has heard the learned counsel for the respective parties and considered the submissions made by them as well as the judgments cited at the Bar.
The Gujarat Evening Courts Rules, 2006, have come into force with effect from 02.11.2006. The object and intent in framing these Rules, as stated in Notification dated 02.11.2006, is for speedy disposal of petty cases pending in the Courts, in order to reduce the hardships of litigants belonging to the working class in the State of Gujarat. The Rules have been made in exercise of powers conferred by the proviso to Article 309 read with Articles 227, 235 and other enabling provisions of the Constitution of India, by the Governor of Gujarat, in consultation with the High Court of Gujarat.
The definition of "Judicial Officer" is given in Rule 2(7) of the Rules, and reads as under:
"Judicial Officer" means a member of the Gujarat State Judicial Service and shall include Presiding Officer or Member or Judge of Industrial Tribunal or Court and Labour Court"
The "Members of Staff" have been defined in Rule 2(g) as "any persons or employees working in the courts". Rule 4 provides that the High Court, in consultation with the Government, may notify the courts to be the Evening Courts under the Rules. Rule 5 provides for the working hours of the Evening Courts, which are stipulated as 6:15 pm to 8:15 pm, on all working days. As per Rule 6, the norms for disposal of cases assigned to the Evening Courts shall be 25% of the norms. Rule 7 is relevant for the purpose of adjudicating upon the issues involved in the petition. The said Rule is reproduced hereinbelow:
"7. Honorarium:-
The Judicial Officers and the members of the staff receive 25% of their basic pay, as honorarium without the merged Dearness Allowance or any other allowances, perks or perquisites whatsoever."
Rule 8 provides for supervision and monitoring of the functioning of the Evening Courts, whereas Rule 9 relates to the service conditions.
As stipulated in Rule 7, reproduced hereinabove, Judicial Officers and the members of the staff shall receive 25% of their basic-pay as honorarium without merged DA or any other allowances, perks or perquisites. The question that is posed for consideration of this Court is, whether the Judicial Officers and the members of the staff are entitled to receive honorarium at the rate of 25% of the revised basic-pay that they are actually receiving, or the pre-revised basic-pay which they were receiving on 02.11.2006, when the Rules came into force. The term 'Pay' or "Basic Pay" has not been defined in the Rules. However, the definition of 'Pay' as per Rule 9(53) of the Gujarat Civil Services (Pension) Rules, 2002, is as below:
"9(53) "Pay" means the basic pay in the revised scales of pay prescribed under the Gujarat Civil Services (Revision of Pay) Rules, 1998 and includes stagnation increments."
The definition of 'Pay', as given in Rule 9(53) of the Gujarat Civil Services (Pay) Rules, 2002, and Rule 9(53) of the Gujarat Civil Services (General Conditions of Services) Rules, 2002, is the same as provided in the the Gujarat Civil Services (Pension) Rules, 2002.
The term 'honorarium' has also not been defined in the Rules. However, the definition of 'honorarium', as given in Rule 9(38) of the Gujarat Civil Services (Pension) Rules, 2002, the Gujarat Civil Services (Pay) Rules, 2002, and the Gujarat Civil Services (General Conditions of Services) Rules, 2002, is as under:
"9(38) "Honorarium"
means a recurring or non-recurring payment sanctioned to a Government employee from the Consolidated Fund of India or the Consolidated Fund of the State or of a Union Territory as remuneration for special work of an occasional character"
A perusal of Rule 7 makes it clear that Judicial Officers and members of the Staff are entitled to receive 25% of their basic-pay as honorarium without merged allowances, perks or perquisites. It is contended on behalf of the petitioners that 25% of the basic pay would mean the basic-pay that they are drawing as of today, whereas, the learned Government Pleader has submitted that the basic-pay would mean the pay that they were drawing at the time when the Rules came into force. It has also been contended by the learned Government Pleader that if the Court interprets the relevant Rule to mean that Judicial Officers and members of the staff are to receive honorarium at the rate of 25% of their basic-pay in the revised scale, it would amount to adding the words "as revised from time to time" in Rule 7, which was not the intention of the State Government while framing the Rules. It has further been contended by the learned Government Pleader that honorarium is a fixed amount which would remain stagnant, at the rate of 25% of the pre-revised basic pay, for all times to come.
Though the word 'honorarium' has not been defined in the Rules, from a bare perusal thereof, it is clear that Judicial Officers and members of the staff working in the Evening Courts are to receive 25% of their basic-pay as honorarium for performing extra duties in the Evening Courts, after their regular working hours, from 6:15 pm to 8:15 pm, on all working days. Rule 7 is couched in precise, clear and unambiguous language and makes it clear that Judicial Officers and members of the staff are entitled to receive 25% of their basic pay as honorarium. Basic pay would obviously mean the basic pay that they are actually receiving and not what they were receiving in the past. Had it been the intention of the State Government, while framing the Rules, that honorarium is to be paid at 25% of the pre-revised basic-pay, as was being received on coming into force of the Rules, there was nothing to prevent it from clearly stating so. The clear language of the Rules leaves no manner of doubt that honorarium shall be paid at the rate of 25% of the basic-pay, which is actually being received by Judicial Officers and members of the staff performing duties in the Evening courts. This is absolutely clear, apparent and obvious upon a plain reading of the Rules, and there is no question of adding the words "as revised from time to time", as contended by the learned Government Pleader. If an interpretation, as suggested by the learned Government Pleader is adopted, it would mean that the honorarium would be frozen at 25% of the pre-revised basic-pay forever, irrespective of any pay revision that comes into force in the future. Had that been the intention of the State Government, it would have been so stated in the Rules. There is no question of reading any words into the Rule which is, in itself, clear and unambiguous, stating that honorarium at the rate of 25% of the basic-pay is to be paid; which would lead any reasonable and rational person to understand that it would be paid at the rate of 25% of the basic-pay being actually received by Judicial Officers and members of the staff performing duties in the Evening Courts. As the honorarium is to be paid at the rate of 25% of the basic-pay, being currently received by the Judicial Officers and members of the staff, the contention of the learned Government Pleader that it is a fixed amount which would remain stagnant for all times to come cannot be accepted. Such an interpretation does not flow from a plain reading of the Rules. The Rules, as they stand today, do not provide for such a restriction or embargo, and no such intention is either stated, or reflected, upon a plain reading thereof. Moreover, if the said Rule is interpreted in this manner, it could have a deleterious effect upon the very functioning of the Evening Courts, which would lead to a serious erosion of the objectives in framing the Rules; namely speedy disposal of petty cases so as to alleviate the hardships of working public in the State of Gujarat. If the honorarium is frozen at a fixed amount for all times to time, irrespective of future revisions in the pay structure, it would be difficult to implement the Rules and run the Evening Courts, looking to the workload on Judicial Officers and other members of the staff, who are performing duties in the Evening courts after their regular working hours on all working days. Lack of incentive and remuneration for extra work performed would not be in the interest of the litigating public, nor would achieve the objectives for framing the Rules.
The intention of the State Government in framing the Rules is for speedy disposal of petty cases, in order to mitigate the hardships of the litigating public. Honorarium is paid as an incentive and remuneration for extra work done by Judicial Officers and members of the staff working in the Evening Courts after performing their onerous duties during the working hours of the regular Courts. As such, honorarium paid to them is akin to remuneration for special work performed. As it is linked to their basic pay, it cannot be a fixed or stagnant amount as basic pay is subject to revision from time to time. 'Pay' would mean the basic-pay in the revised scales of pay and there is nothing in the Rules to lead this Court to a different interpretation. Had it been the intention of the Legislature to restrict the meaning of pay to the pre-revised pay-scale, it would have been provided for in the Rules as the State Government is aware that revisions in the pay-structure do occur from time to time. The basic-pay being received by Judicial Officers and members of the staff working in the Evening Courts is as per the recommendations of the 6th Pay Commission, which have been implemented by the State Government with effect from 01.01.2006, therefore, they are entitled to honorarium at the rate of 25% of the basic-pay being received by them as per the recommendations of the 6th Pay Commission.
As regards Government Resolution dated 27.05.2009 of the Finance Department, which has been relied upon while taking the impugned decision, the same relates to increase in payment of DA, HRA and CLA, after the recommendations of the 6th Pay Commission, while stating that other allowances shall be paid at the pre-revised rate. The said Resolution does not relate to honorarium at all. Besides this, honorarium cannot be considered to be an 'allowance', therefore, it cannot have any effect upon the payment of honorarium at 25% of the basic-pay as provided for in Rule 7. The reliance of the respondent-State upon this Resolution in the present case is totally ill-founded.
In State of Madhya Pradesh v. Yogendra Shrivastava (supra), the Supreme Court has dealt with a similar issue. In that case, the Madhya Pradesh Employees' State Insurance Service (Gazetted) Recruitment Rules, 1981, specified that Medical Officers of certain categories were entitled to Non Practicing Allowance (NPA) linked to their pay, i.e. 25% of their basic-pay. However, the letters of appointment issued to them specified that NPA payable to them would be a fixed lump sum, approximately equal to 25% of the initial (minimum) pay in the pay-scale applicable to them. As a result, whenever there were increases in pay on account of annual increments, NPA was not correspondingly increased so as to make it at 25% of the basic pay, but continued to be paid at the fixed lump sum rate. The Tribunal accepted the contention of the respondent in the said case by allowing the application, which decision was upheld by the High Court. The State of Madhya Pradesh, therefore, challenged the order of the High Court. The relevant Rules were also amended by the State of Madhya Pradesh with retrospective effect. In this background, the Supreme Court framed the following three questions:
"(i) Whether the rates of NPA specified in the letters of appointment and the orders of the department, can prevail over the provisions relating to NPA in the Rules?
(ii) Whether the retrospective amendment of the Rules by notification dated 20.5.2003, can deny the benefit which had accrued under the unamended Rules?
(iii)Even if the respondents are held to be entitled to higher NPA as contended by them and as found by the Tribunal and the High Court, whether the financial benefit could be extended to them beyond three years prior to filing of the original applications before the Tribunal."
Adjudicating thereupon, it was held that:
"Re : Question (i)
8. The appellants contend that the Rules do not contain any specific provision for payment of non practicing allowance. They point out that schedule I to the Rules merely refers to "plus NPA @ 25% of the pay" in the column relating to the pay scale, without defining the term 'pay'. It is submitted that when the term 'pay' is not defined, it can refer to the minimum or initial pay in the pay-scale, or to each stage in the pay-scale commencing from the initial pay and ending with the maximum pay in the pay-scale. It is contended that the State Government had proceeded on the basis that "25% of the pay" referred to the '25% of initial pay' and had fixed the NPA keeping the said figure in view, by means of executive orders. It is submitted that fixing of a lump sum as NPA, approximately equal to 25% of the initial pay in the applicable pay-scale, by executive orders issued by the Government from time to time, was therefore in consonance with the Rules. Alternatively, it was contended that incidental matters relating to number of posts, pay scales and NPA referred to the Schedule to the Rules, were subject to periodical revision/changes and it was common practice to make such revisions/changes, by executive orders instead of adopting the process of amending the rules every time, and that such executive orders were binding on the employees and were never challenged.
9. The Rules made under Article 309 of the Constitution clearly provided that the concerned employees (medical officers) were entitled to NPA @ 25% of pay, in addition to the pay in the pay scale. In fact, it formed part of the pay scale. Consequently, whatever was the basic pay, 25% thereof had to be paid as NPA. Whenever the benefit of increments in the pay scale, or revision in pay scale were extended, NPA also got correspondingly increased so that NPA always remained as one fourth of the basic pay. This is the interpretation that has been put forth by the Tribunal and upheld by the High Court and we find no reason to interfere with the same.
10. The contention that the executive orders issued from time to time or the appointment letters issued in accordance with such executive orders will prevail over the Rules cannot be accepted. When there is conflict between the Statutory Rules and executive orders, the statutory Rules will prevail (See : K. Dayananda Lal vs. State of Kerala - 1996 (9) SCC 728, T. N. Housing Board vs. N. Balasubramaniun - 2004 (6) SCC 85, State of Karnataka vs. K.G.S.D. Canteen Employees Welfare Association - 2006 (1) SCC 567 and Punjab National Bank vs. Astamija Dash - 2008 (14) SCC
370). Executive orders cannot be made or given effect in violation of what is mandated by the Rules. If appointment letters provides for payment of NPA which is not in consonance with Rules, they can be corrected or set right by Tribunals/courts.
Re : Question No.(ii)
11. The Rules were retrospectively amended on 20.5.2003 substituting the words "NPA at such rates as may be fixed by the state government from time to time by order issued in this behalf" in place of "NPA @ 25% of pay" in the Rules. It was contended that as the Rules were amended in the year 2003 with retrospective effect from 14.10.1982, it should be deemed that the NPA payable was as notified by the government from time to time and not '25% of the pay'.
12. It is no doubt true that Rules under Article 309 can be made so as to operate with retrospective effect. But it is well settled that rights and benefits which 9 have already been earned or acquired under the existing rules cannot be taken away by amending the rules with retrospective effect. [See : N.C. Singhal vs. Director General, Armed Forces Medical Services - 1972 (4) SCC 765; K. C. Arora vs. State of Haryana - 1984 (3) SCC 281; and T.R. Kapoor vs. State of Haryana - 1986 Supp. SCC 584]. Therefore, it has to be held that while the amendment, even if it is to be considered as otherwise valid, cannot affect the rights and benefits which had accrued to the employees under the unamended rules. The right to NPA @ 25% of the pay, having accrued to the respondents under the unamended Rules, it follows that respondents-employees will be entitled to Non-Practising Allowance @ 25% of their pay upto 20.5.2003."
Though the issue involved in the above-mentioned case related to NPA, the factual scenario is similar to the one obtaining in the case in hand. In the present case, the Rules have been framed under Article 309 and other provisions of the Constitution. Rule 7 clearly provides that Judicial Officers and members of the staff are entitled to honorarium at the rate of 25% of their basic-pay, which, in the absence of anything to the contrary, would mean the basic-pay actually being received by them and not the basic-pay in the pre-revised scales, as was being received by them earlier, as is sought to be canvassed on behalf of the State Government. The ratio of this judgment would be applicable to the present case.
There is no doubt that the impugned letters dated 28.01.2010 and 04.12.2010 are in the nature of executive instructions. Though the State Government does have power to amend the Rules, such a course has not been taken so far. The Rules, as they stand, cannot be eroded or rendered nugatory by issuing executive instructions, as per the settled position of law.
In K.Kuppusamy v. State of Tamil Nadu (supra), relied upon by the learned advocate for respondent No.4, it has been held as under:
"3. The short point on which these appeals must succeed is that the tribunal fell into an error in taking the view that since the government had indicated its intention to amend the relevant rules, its action in proceeding on the assumption of such amendment could not be said to be irrational or arbitrary and, therefore, the consequential orders passed have to be upheld. We are afraid this line of approach cannot be countenanced. The relevant rules, it is admitted, were framed under the proviso to Art.309 of the Constitution. They are statutory rules. Statutory rules cannot be overridden by executive orders or executive practice. Merely because the government had taken a decision to amend the rules does not mean that the rule stood obliterated. Till the rule is amended, the rule applies. Even today the amendment has not been effected. As and when it is effected ordinarily it would be prospective in nature unless expressly or by necessary implication found to be retrospective. The tribunal was, therefore, wrong in ignoring the rule.
4. For the above reason, we set aside the order of the tribunal and remit the matter to the tribunal for disposal in accordance with law and in the light of what we have said above. The appeals will stand allowed accordingly with no order as to costs."
It is an equally settled position of law that if executive instructions are contrary to statutory Rules, the Rule will prevail and not the executive instructions [See: Virender Singh Hooda and others v. State of Haryana and another (supra)], therefore, the impugned communications, being contrary to the Rule in question, cannot stand the scrutiny of law.
The submission of the learned Government Pleader, to the effect that the State Government, by issuing the executive instructions, is implementing the Rules in letter and spirit cannot be countenanced in view of the clear and unambiguous provisions of the Rules which are to the contrary. On the face of it, the impugned communications are not only contrary to the letter and spirit of the Rules, but they are also an attempt to negate the effect of the Rules, and are in conflict with their very letter and spirit.
The Rules have been framed by the State Government, in consultation with the High Court of Gujarat. As per Rule 4, the Evening Courts have been notified by the High Court, in consultation with the State Government. The underlying spirit of the Rules envisages an active and meaningful consultation between the State Government and the High Court. Undoubtedly, before issuing the impugned communications, the High Court has not been consulted by the State Government. Though it is not mandatory for the State Government to do so, however, in the considered view of this Court, looking to the objectives behind framing the Rules, it would have been eminently appropriate, and in the fitness of things, had such a course been adopted by the State Government before taking the impugned decision. The Rules have been framed conjointly, and had any issue arisen regarding their interpretation or implementation, it could have been resolved and cleared after such consultation, instead of a unilateral decision being taken. Such a course of action would have ensured smoother implementation of the Rules, as, no doubt, the functioning of the Evening Courts is subject to the overall control of the High Court, through the concerned Principal Judicial Officer. Further, the possibility of divergent stands being taken, which is neither conducive for the working of the Evening Courts, nor helpful in achieving the intentions and objective behind framing the Rules, namely to mitigate the hardships of the litigating public by speedy disposal of petty cases, can be avoided, as both the High Court and State Government are committed to the achievement of the above objectives.
The crux of the above discussion is that in the considered view of this Court, as per Rule 7, Judicial Officers and members of the staff working in Evening Courts are entitled to receive honorarium at the rate of 25% of their basic-pay in the revised pay-scale, as is currently being received by them. The impugned decision of the respondent - State that honorarium shall be paid at the rate of 25% of the basic pay in the pre-revised scale, is contrary to the letter and spirit of Rule 7 of the Rules. As the impugned communications, are in the nature of executive instructions, they cannot be permitted to have the effect of either amending Rule 7 or rendering its provisions nugatory.
Resultantly, the petition is allowed. The impugned communications dated 28.01.2010 and 04.12.2010 are quashed and set aside.
Rule is made absolute. There shall be no orders as to costs.
(Smt.Abhilasha Kumari, J.) The learned Government Pleader has prayed that this judgment be stayed for a period of two weeks in order to enable him to approach the higher forum. For the reasons stated in the judgment, the request cannot be acceded to.
(Smt.Abhilasha Kumari, J.) (sunil) Top