Full Judgment Text
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CASE NO.:
Appeal (civil) 4772 of 2006
PETITIONER:
State of Haryana & Ors.
RESPONDENT:
M.P. Mohla
DATE OF JUDGMENT: 10/11/2006
BENCH:
S.B. Sinha & Dalveer Bhandari
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No. 12389 of 2004)
S.B. SINHA, J.
Leave granted.
Respondent was appointed as veterinary surgeon in the cadre of
Haryana Veterinary Service (Grade \026 I) on or about 5.8.1965. He was
promoted to the post of Assistant Director \026 cum \026 Sub-Divisional Officer
on 1.6.1980. In the year, 1986, he was granted a pay scale of Rs. 2375-
3600. The State, however, implemented grant of Selection Grade Scale in
the scale of Rs. 2000-3500 which was revised to Rs. 2200-4000 and
Selection Grade Scale of Rs. 4100-5300 to 20% of the posts of Veterinary
Surgeons who had completed 12 years of service. He was placed in the said
pay scale by an order dated 20th September, 1993 with retrospective effect
from 1.4.1992. In the meantime, however, an intermediary senior scale of
Rs. 3000-4500 was introduced which became applicable upon completion of
five years of regular service. He became entitled thereto. He was promoted
to the post of Deputy Director in the pay scale of Rs. 3000-4500. On
9.4.1996 he was drawing Rs. 4500/- and Rs. 100/- for personal pay.
Haryana Civil Services (Revised Pay) Rules, 1998 (for short "the
Revised Rules") came into force on 7.1.1998 in terms whereof the pay scales
were revised. In terms of the said Rules, the pay scales of the posts of
Deputy Director and Joint Director/ Project Director were said to have been
revised from Rs. 3000-4500 and Rs. 3000-5000 to Rs. 10000-13900 and Rs.
10000-15200 respectively.
Another rules known as Haryana Civil Services (Assured Career
Progression) Rules, 1998 (for short "the ACP Rules") came into force with
effect from 7.1.1998 in terms whereof the pay scales of Rs. 3000-4500 and
Rs. 4100-5300 were revised respectively to Rs. 10000-13900 and Rs. 12000-
375-16500 with effect from 1.1.1996. In terms of ACP Rules, the pay of
Respondent was fixed at Rs. 12000-16500. By a letter dated 15.4.1998,
Respondent asked for grant of a certificate of performance of higher
responsibility so as to enable him to claim the benefit of promotional
increments in the pay scale of Rs. 12000-16500. Therein, he also cited the
instances of other persons who had been granted similar benefit.
Pay of Respondent was fixed in the pay scale of Rs. 13500-17250 by
an order dated 12.10.1998. A certificate of higher responsibility was also
issued to him pursuant whereto he claimed promotional increment in the
revised scale of Rs. 13500-17250. The claim of Respondent was rejected by
an order dated 16.4.1999 stating:
"While inviting your attention on the subject cited
above, it is informed that you are already working
in the higher pay scale of Rs. 4100-5300 before
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your promotion. Your pay, therefore, has been
correctly fixed under Clause 2 of Note 7 of Rule
15 of A.C.P. Rules, 1998. The Govt. letter dated
7.3.88 is not applicable in respect of pay fixation
with effect from 1.1.1996."
A writ petition was filed by Respondent claiming inter alia the
following reliefs:
"(i) a writ in the nature of certiorari may kindly
be issued in favour of the petitioner and against the
respondents quashing the order dated 16.4.1999
(Annexure P/13) whereby claim of the petitioner
for fixation of his pay in the higher promotional
revised pay scale of Rs. 14300-400-18300 has
been rejected on a totally erroneous premise
ignoring the fact that the petitioner was already
drawing the Selection Grade of Rs. 4100-5300
with effect from 1.4.92 (Annexure P/2) and which
Selection Grade scale now has been revised to Rs.
13500-17250 with effect from 1.1.1996 and
consequently on his promotion to the next higher
post of Dy. Director w.e.f. 29.3.1996, the
petitioner is entitled to be placed in the next higher
revised pay scale i.e. of 14300-400-18300.
(ii) a writ in the nature of mandamus may kindly
be issued in favour of the petitioner and against the
respondents directing the respondents to fix the
pay of the petitioner in the revised pay scale of Rs.
14300-400-18300 from the date of his promotion
as Dy. Director, instead of fixing in the pay scale
of Rs. 13500-17250, i.e., the pay scale which the
petitioner would have continued to draw even
while working on the post of Assistant Director-
cum-Sub Divisional Officer and alternatively the
respondents may be further directed to fix the pay
of the petitioner on the promotional post of Deputy
Director w.e.f. 9.4.1996 on the next stage in the
existing pay scale of Rs. 13500-17250 in
accordance with Rule 4.4 (c)(i) of CSR Vol. I and
to grant all other consequential benefits."
By an order dated 4.12.2000, the said writ petition was allowed
directing:
"Accordingly we accept this writ petition and
quash the impugned order. It is directed that the
petitioner would be promoted in the present
corresponding scale of Rs. 4100-5300 and on
promotion will be given one increment. The
arrears should be paid within four months from
today. We deem it necessary to observe that the
State should take necessary steps and remove the
said anomaly that might arise in case of many
other officers."
A Special Leave Petition filed by Appellants thereagainst was
dismissed by this Court by an order dated 10.8.2001. In the meanwhile
Respondent filed a Contempt Petition claiming a higher scale of pay
corresponding to Rs. 14300-18300 wherein Appellants filed their reply
stating that the order of the High Court had been complied with. It is not in
dispute that the question as regards purported anomaly in the applicability of
the Revised Rules and the ACP Rules had not been determined by the court.
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The said contention indisputably was raised by Appellants in the
special leave petition stating:
"Because the Respondent is not entitled to be fixed
in the corresponding pay scale of Rs. 4100-5300 as
contained in First Schedule, Part II, of H.C.S.
(Revised Pay Rules), 1998 by way of rule 2(h) and
the ACP Rules are applicable as contained under
Sr. No. 6 in Schedule 1, part 1 of H.C.s (Assured
Career Progression) Rules, 1998. Therefore, the
order passed by High Court is in contravention of
H.C.S. (Revised Pay Rules), 1998 and also not in
accordance with H.C.s (A.C.P.) Rules 1968"
It is not in dispute that in its counter-affidavit an admission was made
by Appellants stating:
"That this para is wrong and misleading. The
Petitioner was working on the post of Deputy
Director in the pre-revised scale of Rs. 3000-4500
and selection grade of Rs. 4100-5300 and his pay
was protected in the scale of Rs. 4100-5300. His
pay was fixed in the pre-revised scale of Rs. 3000-
4500 and his pay was protected in the scale of Rs.
4100-5300. After granting new pay scales by the
govt. the pay of the Petitioner was re-fixed in the
scale of Rs. 13500-17250, for which he was
entitled. The pay fixed by the respondent
department is in accordance with the revised pay
scale which is correct."
A review application was filed before the High Court despite
dismissal of the special leave petition by this Court seeking purported
clarifications in the matter of the applicability of the Rules. It was
contended that the purported admission made was on a wrong reading of the
provisions of the Rules. It was further contended that Respondent is
governed by the ACP Rules and not the Revised Rules.
Respondent, on the other hand, contended that the ACP Rules has no
application as he had already been promoted twice prior to coming into force
thereof.
The said review application has been dismissed by reason of the
impugned order.
Before we embark upon the rival contentions of the parties, we may
notice that a Division Bench of the High Court passed the following order on
2.3.2004:
"The petitioner was in the scale of Rs. 4100-5300,
which was withdrawn vide order dated 4.12.2000,
the same was ordered to be restored, dispute arose
as to what is the corresponding scale to the said
scale in the light of 5th Pay Commission.
Learned Counsel for the parties are not clear
as to what corresponding scale was being applied
prior to its withdrawal. Stand of the Learned
Counsel for the state is that corresponding scale
should be Rs. 12000-16500/-, while according to
the petitioner corresponding scale should be Rs.
13500-17250/-.
Since Writ Petition has been disposed of and
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this issue was not adjudicated upon, strictly
speaking the controversy raised cannot be the
subject matter of the Review Petition. However,
this issue will be decided on the next date of
hearing."
We may at this juncture also take note of a letter issued by the
Financial Commissioner and Secretary to the Government of Haryana,
Finance Department which is in the following terms:
"I am directed to invite your attention on the
subject noted above and to say that it has come to
the notice of the Finance Department that the
various departments are not allowing replacement
pay scales of Selection Grade (Pre-revised) as
prescribed under Ist Schedule Part \026 II of the
Haryana Civil Services (Revised Pay) Rules, 1998
issued vide Finance Department notification dated
7.1.1998.
This matter has been examined by
Government in detail and have decided that
wherever Selection Grades were existing in the
pre-revised scales as a definite percentage of the
posts and after stipulated years of service, they
would carry the Selection Grade also in the revised
scales and the replacement of such Selection Grade
would be the replacement scale prescribed under
Ist Schedule Part \026 II of the Haryana Civil Services
(Revised Pay) Rules, 1998 if the same has not been
mentioned separately. This would hold good in
case of all the concerned Government employees
for whom specific ACP scales have not been
provided."
Contention of Mr. R. Srivastava, learned senior counsel appearing on
behalf of Appellants is that the High Court despite observing that the
question with regard to the applicability of the Rules as also the effect of the
purported admission made on behalf of application shall be examined,
failed to do so as would appear from the impugned order.
In the functioning of the Executive Government mistake can always
take place and if a wrong rule is made to apply by reason thereof, the same
ordinarily should not only be allowed to be perpetrated as the same may
have a huge financial repercussion. Ambiguity in the matter of applicability
of scale of pay, it was urged, should have been determined by the High
Court.
Mr. Prabhjit Jauhar, learned counsel appearing on behalf of
Respondent, on the other hand, submitted that the ACP Rules which were
issued in 1998 with retrospective effect from 1996 have no application in the
instant case. It was admitted that Respondent’s pay was fixed in the pay
scale of Rs. 13500 \026 17250 at the Directorate level and in that view of the
matter Appellants cannot be permitted to resile from the said admission.
A judgment as is well-known must be read in its entirety. The
judgment of a court must also be implemented. But what would be the
effect of a judgment must be considered from the reliefs claimed in the writ
petition as also the implications thereof which has to be deciphered from
reading the entire judgment. A judgment may also have to be read on the
touchstone of pleadings of the parties.
In State of Karnataka and Others v. C. Lalitha [(2006) 2 SCC 747],
this Court observed:
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"A judgment, as is well known, is not to be read as
a statute. But, it is also well known that the
judgment must be construed as if it had been
rendered in accordance with law."
It was noticed:
"In Gajraj Singh v. State of U.P.6 this Court held:
(SCC p. 768, para 8)
"A doubt arising from reading a judgment of
the Court can be resolved by assuming that
the judgment was delivered consistently
with the provisions of law and therefore a
course or procedure in departure from or not
in conformity with statutory provisions
cannot be said to have been intended or laid
down by the Court unless it has been so
stated specifically.""
We, as at present advised, do not intend to go into the question as to
whether the Revised Pay Rules or the ACP Rules will apply in the case of
Respondent. The dispute between the parties has to be decided in
accordance with law. What, however, cannot be denied or disputed that a
dispute between the parties once adjudicated must reach its logical
conclusion. If a specific question which was not raised and which had not
been decided by the High Court the same would not debar a party to agitate
the same at an appropriate stage, subject, of course, to the applicability of
principles of res judicata or constructive res judicata.
It is also trite that if a subsequent cause of action had arisen in the
matter of implementation of a judgment a fresh writ petition may be filed, as
a fresh cause of action has arisen.
In J.S. Parihar v. Ganpat Duggar and Others [(1996) 6 SCC 291], this
Court held:
"\005The question is whether seniority list is open to
review in the contempt proceedings to find out
whether it is in conformity with the directions
issued by the earlier Benches. It is seen that once
there is an order passed by the Government on the
basis of the directions issued by the court, there
arises a fresh cause of action to seek redressal in an
appropriate forum. The preparation of the seniority
list may be wrong or may be right or may or may
not be in conformity with the directions. But that
would be a fresh cause of action for the aggrieved
party to avail of the opportunity of judicial review.
But that cannot be considered to be the wilful
violation of the order. After re-exercising the
judicial review in contempt proceedings, a fresh
direction by the learned Single Judge cannot be
given to redraw the seniority list. In other words,
the learned Judge was exercising the jurisdiction to
consider the matter on merits in the contempt
proceedings. It would not be permissible under
Section 12 of the Act\005"
[See also State of Orissa & Anr. v. Aswini Kumar Baliarsingh, 2006
(7) SCALE 610]
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The law as regards the effect of an admission is also no longer res
integra. Whereas a party may not be permitted to resile from his admission
at a subsequent stage of the same proceedings, it is also trite that an
admission made contrary to law shall not be binding on the State.
Reliance has been placed on Sangramsinh P. Gaekwad and Others v.
Shantadevi P. Gaekwad (Dead) Through LRS. and Others [(2005) 11 SCC
314] but therein the court was considering the effect of an admission made
in the pleadings which was binding on the party proprio vigore in the
subsequent proceedings.
A review petition filed by Appellants herein was not maintainable.
There was no error apparent on the face of the record. The effect of a
judgment may have to be considered afresh in a separate proceeding having
regard to the subsequent cause of action which might have arisen but the
same by itself may not be a ground for filing an application for review.
Mr. Srivastava submitted that an application for review in effect and
substance was an application for clarification of the judgment of the High
Court. We do not think so. An application for clarification cannot be taken
recourse to to achieve the result of a review application. What cannot be
done directly, cannot be done indirectly. [Ram Chandra Singh v. Savitri
Devi and Others, (2004) 12 SCC 713]
If the ACP Rules were applicable in the case of Respondent, it was the
duty of Appellants to bring it to the notice of the High Court and ask for
adjudication on the said question. But the effective order passed as against it
could not have been sought to be nullified by raising a question which had
not been raised in the writ petition. There might not have been an
adjudication on a question which was relevant for determination of the issue
directly or indirectly but in a case of this nature such a contention could not
have been entertained in a review proceeding which would have the effect of
taking away the benefit granted by a court upon adjudication.
It may not also be open to a party to the lis to ask for a clarification
contrary to or inconsistent with its stand taken by it in the writ proceedings.
Our attention has been drawn to a decision of this Court in Board of Control
for Cricket in India and Another v. Netaji Cricket Club and Others [(2005) 4
SCC 741] wherein this Court opined:
"It is also not correct to contend that the Court
while exercising its review jurisdiction in any
situation whatsoever cannot take into consideration
a subsequent event. In a case of this nature when
the Court accepts its own mistake in understanding
the nature and purport of the undertaking given by
the learned Senior Counsel appearing on behalf of
the Board and its correlation with as to what
transpired in the AGM of the Board held on 29-9-
2004, the subsequent event may be taken into
consideration by the Court for the purpose of
rectifying its own mistake."
Therein a review proceeding was entertained as the court accepted its
own mistake in understanding the nature and purport of the undertaking
given by the learned senior counsel appearing on behalf of the Board. It was
in that context opined that the subsequent event may be taken into
consideration by the court for the purpose of rectifying its own mistake.
Subsequent event may have some relevance but the same must have a direct
nexus with the judgment sought to be reviewed. It has been noticed
hereinbefore that before us an endeavour has been made to urge that the
review application was in effect and substance an application for
clarification.
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In this case the purported subsequent event is the filing of the
contempt petition. Appellants’ specific stand in the contempt petition is that
the order of the court stood complied with. If the order of the court stood
complied with, there was no subsequent event which was necessary to be
taken into consideration. Filing of an application under the provisions of the
Contempt of Courts Act, 1971 itself cannot be a ground to deny the benefit
under a judgment. It is one thing to state that the judgment of the court has
been implemented, but it is another think that the effect of the judgment is
not that what was being contended by Respondent. It is in that sense, this
Court times without number has laid down the law that such subsequent
events may give rise to a fresh cause of action.
Reliance has also been placed on a decision of this Court in National
Housing Coop. Society Ltd. v. State of Rajasthan and Others [(2005) 12
SCC 149] wherein following Kunhayammed and Others v. State of Kerala
and Another [(2000) 6 SCC 359] a Division Bench of this Court opined that
when a special leave petition is dismissed by a non-speaking order, the High
Court could be moved for a writ for review.
Submission of Mr. Jauhar, however, is that if a review petition is
permitted to be filed and allowed, the same would nullify the order of this
Court dismissing the special leave petition filed by Appellants. This may be
so but we are of the opinion that keeping in view the facts and circumstances
of this case it is not necessary for us to make an endeavour to reopen a
binding precedent particularly when no such action arises therefor.
We, therefore, are of the opinion that this appeal has no merit and,
thus, must be dismissed accordingly. However, the question as regards
applicability of one or the other Rules if arises in future, the same has to be
determined on its own merit in accordance with law and having regard to the
fact situation obtaining in each case. In the facts and circumstances of this
case, there shall be no order as to costs.