Full Judgment Text
2024 INSC 29
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5933 OF 2023
Dr. Balbir Singh Bhandari … Appellant
Versus
The State of Uttarakhand & Ors. … Respondents
With
Civil Appeal No. 5935 of 2023
Civil Appeal No. 5937 of 2023
Civil Appeal No. 5938 of 2023
Civil Appeal No. 5934 of 2023
Civil Appeal No. 5936 of 2023
Civil Appeal No. 5941 of 2023
and
Civil Appeal Nos. 5939-5940 of 2023
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The benefit of a personal/promotional pay scale was
granted to the appellants by the State of Uttarakhand. The said
benefit was withdrawn under a subsequent decision of the
Signature Not Verified
Digitally signed by
ASHISH KONDLE
State of Uttarakhand. The narrow question is whether the
Date: 2024.01.10
16:45:59 IST
Reason:
C.A. 5933 OF 2023 etc. Page 1 of 11
benefits can be recovered from the appellants who have
superannuated.
2. Few factual aspects need consideration. The undivided
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Government of Uttar Pradesh issued an order dated 16 June
1988 by which the appellants were appointed on an ad hoc
basis in the State Ayurvedic and Unani Medical Service Cadre.
The appointments were expressly made for a period of one year
or till the State Public Service Commission provides the duly
selected candidates. A decision dated 5th February 1998 of the
Government of Uttar Pradesh provided that any medical officer
working on an ad hoc basis shall be considered for
regularisation upon completing continuous and satisfactory
service of 8 years. However, it was clarified that the benefit of
personal payment should be approved only after their
regularisation in service. It was specifically made clear that if
any medical officer has completed 8 years of continuous service
but has not been regularised, the benefit of the personal pay
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band will be admissible only after he is regularised. On 2
December 2000, a decision was made by the government that
officers/employees who completed continuous and satisfactory
service of 8 years in the same post on or after 1st January 1996
shall be provided a salary increment in the revised pay band.
It was also decided that the officers who have been granted the
aforesaid benefit and who have completed continuous and
satisfactory service of 6 years from the date of getting the
benefit of selection grade to a total of 14 years of continuous
and satisfactory service shall be approved on the next pay-band
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or promotional post on a personal basis. It was clarified that
the benefit be available to those who have been regularised on
the concerned post.
3. The first respondent, by an office memorandum dated
27th January 2006, regularised the appellants' employment.
The appellants filed writ petitions before the High Court. The
grievance was regarding the non-grant of the promotional pay
scale. The writ petitions were disposed of by the order dated
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3 January 2011, directing the State Government to consider
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their claim for the grant of a promotional pay scale. On 8
March 2011, the first respondent – the State Government,
granted approval for applying a new ACP (Assured Career
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Progression Scheme) in the revised pay structure from 1
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January 2006 for the State Government employees. On 4
August 2011, the Chief Secretary of the State Government
issued a communication to the Director General of Ayurvedic
and Unani Services, which reads thus:
“ In the light of G.O. No.2178/71-2-2010-
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519/2005 Dt. 18 June, 2010 of Govt. of
U.P, Medical Education Section-2, I have
been directed to say that with regard to G.O.
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No. 7468/71-2- 5/92 Dt. 5 February,
1998, the benefit of personal/promotional
pay-scale (i.e. 08/14 years) shall be
admissible to Ayurvedic and Unani Medical
Officers and Medical Officers (Community
Health) only after their regularization. It
means that whenever concerned medical
officer shall be regularized at that time
while considering his entire satisfactory
service on ad hoc basis to be regular,
individual/promotional pay-scale shall be
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admissible upon completion of 08/14
years of service.”
(emphasis added)
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4. On 27 September 2011, in terms of the directions issued
by the Chief Secretary, the Director of the Ayurvedic and Unani
Services of the first respondent granted a time-bound pay band
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to the appellants in terms of the order dated 4 August 2011.
As some of the appellants were not given the benefit of the order
dated 4th August 2011, they filed a writ petition before the High
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Court. By the order dated 7 May 2013, the High Court
directed the State Government to consider granting the next
higher pay scale or pay to the appellants on completion of 14
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years of service in terms of the Government decision dated 4
August 2011 not later than three months.
5. The State Government made an application for recall of
the said order dated 7th May 2013 on the ground that the order
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dated 4 August 2011 issued by the Principal Secretary was
not consistent with the orders issued by the Finance
Department. A submission was made that though the said
order was issued by Shri Rajiv Gupta, the Principal Secretary,
after the approval of the Hon’ble Chief Minister, the relevant
orders may not have been noticed by the Hon’ble Chief
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Minister. By the order dated 4 March 2014, the application
for recall made by the State Government was rejected by a
Division Bench of the High Court. It was held that the decision
taken by the Hon’ble Chief Minister remains valid unless the
Cabinet of the Government expressly withdraws the decision.
While rejecting the application, a direction was issued to
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implement the order dated 4 August 2011. By a decision
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dated 29 May 2014, the State Government cancelled the order
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dated 4 August 2011 on the ground that it was contrary to
the Government orders of the Finance Department.
6. It appears that the State Government made one more
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application before the High Court based on the order dated 29
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May 2014. By the order dated 28 August 2014, the High
Court observed that the Government was at liberty to act in
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accordance with the order dated 29 May 2014. It was also
observed that if any parties were aggrieved by the said Order,
they could always approach a proper forum. Notwithstanding
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the said Order of the High Court, by the order dated 9 October
2014, the State Government granted higher pay to those
Ayurvedic Medical Officers who had completed 16 years and 26
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years of continuous service. By the order dated 27 October
2014, the Principal Secretary of the Government ordered
recovery from the appellants on the basis of the cancellation of
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the order dated 4 August 2011. This action of recovery, as
well as the order dated 29th May 2014, were challenged by the
appellants by filing writ petitions, which have been dismissed
by the impugned judgment and order.
SUBMISSIONS
7. The learned senior counsel for the appellants submitted
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that the Government order dated 5 February 1998 issued by
the erstwhile State of Uttar Pradesh was binding on the first
respondent in view of Section 86 of the Uttar Pradesh
Reorganisation Act, 2000. He submitted that the Government
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order dated 4th August 2011 merely reiterates the Government
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order dated 5 February 1998. He submitted that in the earlier
writ petition, the High Court had held that the decision dated
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4 August 2011 was a decision of the State Government. He
submitted that the order of recovery was passed without giving
an opportunity of being heard to the appellants. He submitted
that the benefits were granted to the appellants based on the
valid orders, which have been recalled for no fault on their part.
He submitted that, in any event, the order of recovery needs
interference, especially when the appellants have
superannuated. The learned counsel for the first respondent
justified the impugned order.
OUR VIEW
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8. We have perused the Government Order dated 5
February 1998, which records that the service rendered by the
Medical Officers on an ad hoc basis shall be taken into account
for computing 8 years of continuous satisfactory service.
However, it also provides that they should be given the benefit
of personal pay only after the regularisation of their service.
The order issued by the Principal Secretary, Department of
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Ayush, the Government of Uttarakhand, on 4 August 2011
provided that after the regularisation, the ad-hoc services
rendered by the Ayurvedic Medical Officers shall be taken into
consideration for the grant of personal/promotional pay scale,
which is payable on completing 8/14 years of service. It is
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true that the order dated 7 May 2013 passed by the High
Court records the statement of standing counsel for the State
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of Uttarakhand that the order dated 4 August 2011 conveys
the decision of the State Government. In view of this decision,
a direction was given by the High Court to consider the cases
of the appellants for grant of the next higher scale of pay upon
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completion of 14 years of service. By the order dated 4 March
2014, while deciding the recall application filed by the State
Government, the High Court observed that the decision dated
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4 August 2011 was taken by the Hon’ble Chief Minister of the
State and therefore, unless the Cabinet expressly withdraws
the same, it will continue to operate.
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9. Thereafter, on 22 August 2014, the State Cabinet came
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to the conclusion that the order dated 4 August 2011 was
contrary to the Government Order issued by the Finance
Department and accordingly, the order dated 29th May 2014
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was passed, recalling the order dated 4 August 2011.
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10. We have carefully perused the order dated 29 May 2014.
It is noted in the said order that the Government order dated
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8 March 2011 issued by the Finance Department, applicable
to all service cadres of the State, directed that three financial
upgradations be given to all personnel of the State under
certain conditions on the post of direct recruitment after
completion of continuous satisfactory service of 10, 18 and 26
years respectively from the first appointment. The order dated
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29 May 2014 notes that, however, under the order dated 4th
August 2011, the personal/promotional pay scale was made
admissible after 8 and 14 years of service only to the Ayurvedic
and Unani Medical Officers. Therefore, it was observed that a
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special class of Ayurvedic and Unani Medical Officers was
created who have been given a different treatment. It is
observed that though the Finance Department had objected to
issuing the order dated 4th August 2011, the opinion of the
Finance Department was overruled, and the same was issued
without the approval of the Cabinet. That is how the Cabinet,
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on 22nd May 2018, decided to cancel the order dated 4
August 2011. We find no error in the view taken by the State
Government as there was no valid reason to grant a higher pay
scale only to the Ayurvedic and Unani Medical Officers after
continuous satisfactory service of 8 years, whereas, for all other
Government servants, satisfactory continuous service of 10
years was required.
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11. What is relevant is the order dated 28 August 2014
passed by the Division Bench of the High Court. The said order
reads thus:
“ We are afraid, order passed by this Court
dated 07.05.2013 as well as order passed on
the Recall Application dated 04.03.2014,
cannot be reviewed, merely, because
subsequent to the passing of the orders
under review order dated 04.08.2011 has
been recalled. However, we find that it was
specifically made clear by this Court in the
order dated 04.03.2014 that till decision
is taken by the Cabinet on the order dated
04.08.2011, it has to be implemented.
Since, order dated 04.08.2011 has already
been revoked/cancelled, therefore,
Government is at liberty to act upon in
accordance with Government Order dated
29.05.2014. Petitioner, if so aggrieved the
order 29.05.2014, may approach the
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appropriate forum assailing the Government
order dated 29.05.2014.”
(emphasis added)
12. Notwithstanding the liberty granted under the order
described above to the State Government to act upon the order
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dated 29 May 2014, by the order dated 9 October 2014,
higher pay scales were granted to the appellants based on the
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order dated 4 August 2011. Thereafter, the Government
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passed the order dated 27 October 2014 ordering recovery of
the amounts paid to the appellants according to the Order
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dated 4 August 2011. However, it was mentioned therein that
earlier orders granting personal/promotional pay with effect
from the date of regularisation, i.e. 27th January 2006, are
revived. The order also accepts that the Medical Officers will
be entitled to ACP benefits made available under the orders
th st
dated 8 March 2011 and 1 July 2013. The order of recovery
reads thus:
“The recoverable amount first be adjusted
from the arrears payable on the basis of the
ACP benefit made admissible to the
concerned Medical Officers under the finance
department's govt. order no. 872 dated
08/03/2011 and govt. order no. 589 dated
01/07/2013 and even after that some
amount still remains to be recovered, a
maximum of 1/3 of the total of pay and
dearness allowance of the concerned Medical
Officers be fixed as an installment per month
and recovery of the remaining amount be
ensured to be made.”
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13. As held earlier, under the order dated 4 August 2011,
the benefit of personal/promotional pay scale was granted only
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on Ayurvedic Medical Officers upon completing 8 and 14 years
of service. The said order was contrary to the order of the
Finance Department and, therefore, was rightly withdrawn as
we have held earlier. We may note here that by the order dated
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8 November 2006, the personal time-bound pay scale was
granted to the appellants, subject to the condition that if the
Government takes any decision to the contrary, the amount
will be recovered from the salary of the concerned medical
officers.
14. While dealing with the refund issue, the High Court has
held that the appellants, being Ayurvedic Medical Officers, do
not belong to a weaker section of the society and, therefore,
recovery will not be inequitable . Moreover, even after the grant
of monetary benefits in terms of the Government Order dated
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4 August 2011, the designation of the appellants, their duties
and responsibilities remained the same. Therefore, the High
Court was right in not setting aside the order of recovery.
15. Learned senior counsel appearing for the appellants
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relied upon the judgment and order dated 26 August 2022
passed by this Court in Civil Appeal No. 5527 of 2022 (M.P.
Medical Officers Association vs. The State of Madhya Pradesh
and Ors.), which granted relief to the employees against
recovery. From paragraph 5 of the said decision, it is evident
that the same has been rendered in peculiar facts and
circumstances of the case. This Order was passed after holding
that the law laid down by this Court in the case of State of
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1
Punjab v. Rafiq Masih may not be applicable. Therefore, the
said decision rendered in the peculiar facts of the case will have
no application. In the facts of the case in hand, what stares at
the face is that the benefits granted only to the Ayurvedic and
Unani Medical Officers under the Order dated 4th August 2011
were not extended to any other category of the State
Government employees. No material was brought on record to
show how and why favourable treatment was given to the
appellants.
16. Therefore, we are unable to interfere with the view taken
by the High Court. The appeals are, accordingly, dismissed.
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As observed in the order dated 27 October 2014 passed by
the State Government, the appellants will be entitled to ACP
benefits made available under the orders dated 8th March 2011
and 1st July 2013. Therefore, if any consequential benefits
accrue based on the said two orders with time, the appellants
will be entitled to the same. Needless to add, the recovery shall
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be made, as specified under the order dated 27 October 2014.
….…………………….J.
(Abhay S. Oka)
…..…………………...J.
(Pankaj Mithal)
New Delhi;
January 10, 2024.
1
(2015) 4 SCC 334
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