of Haryana & Ors Vs. M.P. Mohla  Insc
773 (10 November 2006)
Sinha & Dalveer Bhandari
out of SLP (C) No. 12389 of 2004) S.B. SINHA, J.
was appointed as veterinary surgeon in the cadre of Haryana Veterinary Service
(Grade I) on or about 5.8.1965. He was promoted to the post of Assistant
Director cum 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
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
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.
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
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 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:
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.
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:
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
said contention indisputably was raised by Appellants in the special leave
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:
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.
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.
said review application has been dismissed by reason of the impugned order.
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:
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
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/-.
Writ Petition has been disposed of and 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:
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 II of the Haryana Civil
Services (Revised Pay) Rules, 1998 issued vide Finance Department notification
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 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.
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.
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 17250 at the Directorate level and
in that view of the matter Appellants cannot be permitted to resile from the
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
State of Karnataka and Others v. C. Lalitha [(2006) 2
SCC 747], this Court observed:
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:
Gajraj Singh v. State of U.P.6 this Court held:
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.
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.
J.S. Parihar v. Ganpat Duggar and Others [(1996) 6 SCC 291], this Court held:
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.
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" [See also State of Orissa & Anr. v. Aswini
Kumar Baliarsingh, 2006 (7) SCALE 610] 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
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.
review petition filed by Appellants herein was not maintainable.
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.
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.
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.
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:
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
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.
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.
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
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.
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.
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