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Monday, October 7, 2013

power of state govt. in varying salary of constitutional appointee ; Binding nature of judgment = G.L. BATRA Vs. STATE OF HARYANA & ORS. judis.nic.in/supremecourt/filename=40864

 State Govt. is not competent to vary the remuneration fixed to the constitutional appointee ; Earlier judgment of same bench is binding on the later bench of same quorum;

 The earlier  judgment
      may seem to be not correct yet it will have the binding effect on  the
      latter bench of coordinate jurisdiction. =

  In State of Bihar v. Kalika Kuer @ Kalika Singh and  others  AIR
      2003 SC 2443 
this Court held that when an earlier decision  may  seems
      to be incorrect to a Bench of a  coordinate  jurisdiction  considering
      the question later, on the  ground  that  a  possible  aspect  of  the
      matter was not considered or not  raised  before  the  Court  or  more
      aspects should have been gone into by the Court  deciding  the  matter
      earlier but it would not be a reason to  say  that  the  decision  was
      rendered per incuriam and liable to be ignored.  
The earlier  judgment
      may seem to be not correct yet it will have the binding effect on  the
      latter bench of coordinate jurisdiction. 
 The  Court  held  that  easy
      course of saying that earlier decision was rendered  per  incuriam  is
      not permissible and the matter will have to be resolved  only  in  two
      ways – either to follow the earlier decision or refer the matter to  a
      larger Bench to examine the issue, in case it  is  felt  that  earlier
      decision is not correct on merits. 
whether  the State Government is competent to vary  the  remuneration  fixed  to  a constitutional appointee to his disadvantage, after his appointment. =

We find that after the appellant was appointed as Chairman    of
      the Haryana PSC, the Government passed an order on 18.03.1996 relaxing
      the provision contained in Regulation 6 and re-fixed the  remuneration
      of the appellant as Chairman of the  Haryana  PSC  as  Rs.7500/-  p.m.
      w.e.f. 06.07.1994  as  a  “personal  measure  to  him.”   We  find  it
      difficult to appreciate the stand of the State Government  as  to  how
      they could withdraw that benefit vide  notification  dated  29.11.1996
      and then re-fix the same vide order dated 15.04.1997 as Rs.4135/- p.m.
       The Government after having recognized the status of the appellant as
      a constitutional appointee, and relaxed Regulation 6  so  far  as  the
      appellant is concerned vide its order dated 18.03.1996, has  no  power
      to  withdraw  the  same,  especially  when  no  master   and   servant
      relationship has been established between a  constitutional  appointee
      and the State Government.  True, the appellant’s conditions of service
      were governed  by  the  1972  Regulations,  but  when  the  Government
      themselves had  relaxed  the  same,  especially  Regulation  6,  as  a
      personal measure to him, then we fail to see how they  could  withdraw
      that benefit to his  disadvantage  which,  in  our  view,  is  clearly
      discriminatory and violative of Article  14  of  the  Constitution  of
      India.


      17.   We, therefore, allow this appeal  and  set  aside  the  impugned
      judgment of the High Court and quash the orders passed by the State of
      Haryana dated 29.11.1996 and  15.04.1997.  The  appellant,  therefore,
      would be entitled to all consequential benefits which would be paid to
      him within a period of three months  from  the  date  of  this  order.
      State of Haryana is also directed to pay an award  of  Rs.50,000/-  to
      the appellant by way of cost.


                                                                REPORTABLE
                        IN THE SUPREME COURT OF INDIA


                        CIVIL APPEALLATE JURISDICTION


                       CIVIL APPEAL NO.  9015  OF 2013
       (Arising out of Special Leave Petition (Civil) No.4692 of 2010)


      G.L. Batra                                         …. Appellant


                                   Versus


      State of Haryana and others                    …. Respondents






                               J U D G M E N T






      K.S. Radhakrishnan, J.




            Leave granted.


      2.    We are in this case concerned  with  the  question
whether  the State Government is competent to vary  the  remuneration  fixed  to  a constitutional appointee to his disadvantage, after his appointment.


      3.    The appellant herein was working, in the  post  of  senior  most
      Additional Secretary, in the Lok  Sabha  during  the  years  1991-1994
      drawing a salary of Rs.7500/- per month as basic pay for the  post  in
      the pay scale of Rs.7500-7600 which was revised in the  pay  scale  of
      Rs.22400-525-24500 and DA @ 32% w.e.f. 01.01.1996.
According  to  the
      appellant, he had the prospect of promotion to the Secretary  General,
      Lok Sabha, a post equivalent to Cabinet Secretary which is in the  pay
      scale of Rs.30,000/- fixed and DA @ 32%.
The  age  of  retirement  of
      Secretary General, Lok Sabha, when the appellant joined Haryana Public
      Service Commission, was 60 years, which  was  later  increased  to  62
      years.


      4.     The  appellant,  while  he  was  working  as  the  senior  most
      Additional Secretary in the Lok Sabha, was appointed  as  Chairman  of
      the Haryana Public Service Commission (for short ‘the Haryana PSC’) by
      the Haryana State Government on 06.07.1994 in exercise of  the  powers
      conferred by Article 316 of  the  Constitution  of  India  along  with
      Ravinder Sharma and Ram Phal Singh as Members of the Haryana PSC.   On
      joining duty, conditions of services of the appellant were governed by
      the  Haryana  Public  Service  Commission  (Conditions   of   Service)
      Regulations, 1972 (for short ‘1972 Regulations’).
At that  time,  the
      existing basic pay of the Chairman of the Haryana PSC as per rules was
      Rs.7000/- per month.  The appellant then preferred a representation on
      04.10.1994 requesting the Government to re-fix his pay as Rs.7500/- on
      06.07.1994 and Rs.7600/- w.e.f. 01.09.1994 by relaxing the Rules.


      5.    The Government of Haryana examining the said request  passed  an
      order on 18.03.1996, fixing the remuneration of the Chairman,  Haryana
      PSC as Rs.7500/- per month w.e.f. 06.07.1994 as a personal measure, in
      relaxation of the provisions contained in Regulation  6  of  the  1972
      Regulations.  Noticing that the above-mentioned order was silent as to
      from which date the allowances, as mentioned in Regulation 6  were  to
      be given to the appellant, the Commission wrote a letter on 20.06.1996
      to the State Government to clarify as to whether the  allowances  were
      to be given  w.e.f.  01.01.1986  as  was  given  to  the  other  State
      Government employees  or  w.e.f.  01.01.1989  when  Regulation  6  was
      amended to include ‘allowances’ in addition to  the  basic  pay.   The
      State Government referring to the said letter  replied  on  23.06.1996
      stating that DA was to be paid w.e.f. 01.01.1989 only and  not  w.e.f.
      01.01.1986 as admissible to other State Government employees.


      6.    The appellant then wrote a Demi Official letter dated  24.9.1996
      to the Chief Secretary, Haryana PSC stating that he  was  entitled  to
      the Dearness Allowance, which he was drawing while he  was  Additional
      Secretary and if the DA was paid only w.e.f. 08.02.1989, then the same
      would be in pursuance to Regulation 6, which already stood relaxed  in
      his case.  It was  also  pointed  that  that  when  Regulation  6  was
      relaxed, all conditions laid down under the said Regulation also stood
      automatically  relaxed.   The  Government,  however,  reiterated   the
      earlier stand through their letter dated 23.10.1996.  Over and  above,
      the Government passed yet another order on 29.11.1996 withdrawing  its
      earlier order dated 18.03.1996 whereby  the  appellant’s  remuneration
      was fixed by relaxing Regulation 6 and a direction was also issued  to
      recover the  excess  payment  already  made  to  the  appellant.   The
      appellant then filed a representation on 03.02.1997 to the  Government
      of Haryana stating his grievances but the State Government  passed  an
      order on 15.04.1997 re-fixing the remuneration  of  the  appellant  in
      pursuance to the Regulation 6 of the 1972 Regulations as Rs.4135/- per
      month.  The appellant subsequently made  various  representations  but
      his grievances were not redressed.  The appellant then  preferred  CWP
      No.13029 of 1997 before the High Court of Punjab and Haryana seeking a
      declaration that the first and second proviso to  Regulation  6(2)  of
      the Regulation are unconstitutional and ultra vires to Articles 14 and
      16 of  the  Constitution  of  India  and  to  quash  the  order  dated
      29.11.1996 and 15.04.1997.  While the writ petition was  pending,  the
      appellant retired from service as  Chairman  of  the  Haryana  PSC  on
      19.09.1999.


      7.    The writ petition filed by the appellant was later heard by  the
      Division Bench of the Punjab and Haryana High Court and the  same  was
      dismissed on 04.11.2009.  Aggrieved by the same this appeal  has  been
      preferred by special leave.


      8.    We have  heard  Shri  K.K.  Venugopal,  learned  senior  counsel
      appearing for the appellant and Mr. Manjit Singh,  learned  Additional
      Advocate General appearing for the State of Haryana.


      9.    The appellant was appointed as Chairman of the  Haryana  PSC  by
      the Governor of the State of Haryana in exercise of  powers  conferred
      under Article 316 (1A) of the Constitution of India.   The  conditions
      of service of the Chairman and the Members are governed  by  the  1972
      Regulations.  Regulation 6, with which we are concerned in this  case,
      reads as follows:
           “6.   (1) The Chairman shall receive  a  remuneration  of  seven
           thousand and five hundred rupees a month and each of  the  other
           Members a remuneration of six thousand and five hundred rupees a
           month.  They shall be entitled to such other allowances  as  may
           be admissible  in  future  from  time  to  time,  to  Government
           employees drawing the same pay  (in  addition  to  four  hundred
           rupees a month as car allowances provide a care is maintained).


           (2)  The  Chairman  or  the  Member  if,  at  the  time  of  his
           appointment as such, is a retired Government employee he will be
           entitled to the remuneration mentioned in sub-regulation (1)  in
           addition to the pension sanctioned to him.


                 Provided that the amount of remuneration  plus  the  gross
           amount of pension or the pension equivalent to  other  forms  of
           retirement benefits does not exceed the pay last  drawn  by  him
           before his retirement or  the  remuneration  mentioned  in  sub-
           regulation (1) whichever is higher.


                 Provided further that  the  total  remuneration  plus  the
           gross amount of pension and  the  pension  equivalent  to  other
           forms of retirement benefits, excluding the allowances, shall in
           no case exceed eight thousand rupees per month.


           (3)   The Chairman or  the  Members  who  at  the  time  of  the
           appointment as such, in the service  of  the  Central  or  State
           Government and does not exercise option under sub-regulation (1)
           of regulation 9 shall be paid  the  remuneration  drawn  by  him
           immediately before his appointment as Chairman or Member, as the
           case may be, or the remuneration  mentioned  in  sub-regulations
           (1) whichever is higher, till the date of  his  retirement  from
           Government service in  the  normal  course  and  thereafter  his
           remuneration shall be regulated as  provided  in  sub-regulation
           (2).


           (4)   A member who in the absence of the Chairman  on  leave  or
           otherwise, is asked to perform  the  additional  duties  of  the
           Chairman, shall be entitled to an additional remuneration at the
           rate of two hundred rupees a month:


                 Provided that such additional duties are performed  for  a
           period of not less than fourteen days.”


      10.   We find that after the appellant was appointed as Chairman    of
      the Haryana PSC, the Government passed an order on 18.03.1996 relaxing
      the provision contained in Regulation 6 and re-fixed the  remuneration
      of the appellant as Chairman of the  Haryana  PSC  as  Rs.7500/-  p.m.
      w.e.f. 06.07.1994  as  a  “personal  measure  to  him.”   We  find  it
      difficult to appreciate the stand of the State Government  as  to  how
      they could withdraw that benefit vide  notification  dated  29.11.1996
      and then re-fix the same vide order dated 15.04.1997 as Rs.4135/- p.m.
       The Government after having recognized the status of the appellant as
      a constitutional appointee, and relaxed Regulation 6  so  far  as  the
      appellant is concerned vide its order dated 18.03.1996, has  no  power
      to  withdraw  the  same,  especially  when  no  master   and   servant
      relationship has been established between a  constitutional  appointee
      and the State Government.  True, the appellant’s conditions of service
      were governed  by  the  1972  Regulations,  but  when  the  Government
      themselves had  relaxed  the  same,  especially  Regulation  6,  as  a
      personal measure to him, then we fail to see how they  could  withdraw
      that benefit to his  disadvantage  which,  in  our  view,  is  clearly
      discriminatory and violative of Article  14  of  the  Constitution  of
      India.


      11.   We are also of the view, as rightly contended by learned  senior
      counsel for the appellant, that the High Court has committed a serious
      error in ignoring the judgment of the learned  Single  Judge  in  Writ
      Petition No.15159 of 1996 titled Ram Phal Singh v. State of Haryana  &
      others decided on 8th September, 2004, a case relating to  the  Member
      of the Haryana Public Service  Commission,  who  was  appointed  as  a
      Member along  with  the  appellant  by  the  Haryana  Government  vide
      notification dated 16.07.1994. Learned Single Judge in that case  held
      that first proviso under  Regulation  6(2)  of  the  1972  Regulations
      which restricts the remuneration payable to a  Member  of  the  Public
      Service Commission (who was drawing wages under the  Government  at  a
      level higher than the remuneration fixed under Regulation 6(1) of 1972
      Regulations), the last pay drawn by him under the  government  at  the
      time of his appointment as a member of the Public Service  Commission,
      is violative of the proviso under Clause (b) of  Article  318  of  the
      Constitution of India.


      12.   A Division Bench of the Punjab and Haryana High  Court   placing
      reliance on Ram Phal Singh’s case (supra), rendered  the  judgment  in
      M.B. Pandove v. State of Punjab and others on 26.2.2005.  Against  the
      said judgment,  Special  Leave  Petition  (C)  No.12336  of  2005  was
      preferred  before  this  Court  which  was  dismissed  on  13.07.2005.
     
 Further, we notice that LPA No.115 of 2005 filed against the  judgment
      in Ram Phal Singh v. State of Haryana & others CWP 15159 of  1995  was
      also dismissed by a Division Bench of  the  Punjab  and  Haryana  High
      Court on 19.03.2007


      13.   We find that the  above-mentioned  facts  were  brought  to  the
      knowledge of the Division Bench of the Punjab and Haryana  High  Court
      when they rendered the  impugned  judgment  but  the  Division  Bench,
      however, over-ruled the judgment in Ram  Phal  Singh’s  case  (supra),
      which was also affirmed by another Division Bench  in  LPA  No.115  of
      2005 vide its judgment  dated  19.03.2007.   We  fail  to  see  how  a
      coordinate bench of the High Court could over-rule  a  judgment  of  a
      learned Single Judge which was already affirmed by another  coordinate
      bench.  The Division Bench  has  committed  a  serious  error  of  the
      highest order.  The Division Bench should have referred the matter  to
      a larger Bench, if it was in disagreement with  the  judgment  of  the
      learned Single Judge which had already been affirmed by a  co-ordinate
      bench and on the doctrine of merger, the judgment of the Single  Judge
      had merged with that of the Division Bench.   Thus,  in  essence,  the
      Division Bench has overruled the judgment of a co-ordinate bench which
      is clearly inadmissible.  Over and above, it may also  be  noted  that
      the judgment in Ram Phal Singh’s case (supra) was followed by  another
      coordinate Division Bench of the High Court in M.P.  Pandove  (supra).
      Special Leave  Petition  (C)  No.12336  of  2005  filed  against  that
      judgment was also dismissed by this Court.  In the impugned  judgment,
      all these aspects are conveniently sidetracked and overlooked.


      14.   Law on this point has been dealt with by this Court  in  several
      Judgments.
In Dr. Vijay Laxmi Sadho v. Jagdish (2001) 2 SCC 247, this
      Court held as follows:
              “As the learned Single Judge was not in  agreement  with  the
           view expressed in Devilal case it would  have  been  proper,  to
           maintain judicial discipline, to refer the matter  to  a  larger
           Bench rather than to take a different  view.  We  note  it  with
           regret and distress that the said course was not followed. It is
           well-settled  that  if  a  Bench  of   coordinate   jurisdiction
           disagrees with another Bench of coordinate jurisdiction  whether
           on the  basis  of  “different  arguments”  or  otherwise,  on  a
           question of law, it is appropriate that the matter  be  referred
           to a larger Bench for resolution of the  issue  rather  than  to
           leave two conflicting judgments to operate, creating  confusion.
           It is  not  proper  to  sacrifice  certainty  of  law.  Judicial
           decorum, no  less  than  legal  propriety  forms  the  basis  of
           judicial procedure and it must be respected at all costs.”



      15.   In State of Bihar v. Kalika Kuer @ Kalika Singh and  others  AIR
      2003 SC 2443 
this Court held that when an earlier decision  may  seems
      to be incorrect to a Bench of a  coordinate  jurisdiction  considering
      the question later, on the  ground  that  a  possible  aspect  of  the
      matter was not considered or not  raised  before  the  Court  or  more
      aspects should have been gone into by the Court  deciding  the  matter
      earlier but it would not be a reason to  say  that  the  decision  was
      rendered per incuriam and liable to be ignored.  
The earlier  judgment
      may seem to be not correct yet it will have the binding effect on  the
      latter bench of coordinate jurisdiction. 
 The  Court  held  that  easy
      course of saying that earlier decision was rendered  per  incuriam  is
      not permissible and the matter will have to be resolved  only  in  two
      ways – either to follow the earlier decision or refer the matter to  a
      larger Bench to examine the issue, in case it  is  felt  that  earlier
      decision is not correct on merits. 
 In this respect reference may also
      be made to the Judgment of this Court in Union of India and others  v.
      Godfrey Philips  India  Ltd.  AIR  1986  SC  806,  Sundarjas  Kanyalal
      Bhathija and others v. The Collector, Thane,  Maharashtra  and  others
      AIR 1990 SC 261 and  Tribhovandas  Purshottamdas  Thakkar  v.  Ratilal
      Motilal Patel AIR 1968 SC 372 etc.


      16.   Applying the above-mentioned principle, we are  clearly  of  the
      view that the High Court has committed a grave  error  in  over-ruling
      the judgment of the learned Single Judge  in  Ram  Phal  Singh’s  case
      (supra), which stood merged into the judgment of a Division  Bench  as
      it was affirmed by a  coordinate  bench  in  LPA  No.115  of  2005  on
      19.03.2007 and failed to  remedy  the  illegality  meted  out  to  the
      appellant.


      17.   We, therefore, allow this appeal  and  set  aside  the  impugned
      judgment of the High Court and quash the orders passed by the State of
      Haryana dated 29.11.1996 and  15.04.1997.  The  appellant,  therefore,
      would be entitled to all consequential benefits which would be paid to
      him within a period of three months  from  the  date  of  this  order.
      State of Haryana is also directed to pay an award  of  Rs.50,000/-  to
      the appellant by way of cost.




                                                            .……………………………..J.
                            (K.S. Radhakrishnan)




                                              ……………………………..J.
                                              (A.K. Sikri)
      New Delhi,
      October 07, 2013.






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