HIGH COURT DECISION ABOUT JST GRADE
CWP No.6599/2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No.6599/2007
Date of Decision: 4.3.2008.
Shakuntala Devi and another
............. Petitioner
Versus
State of Haryana and others.
..............Respondents.
CORAM:HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE JASWANT SINGH
Present:- Sh.Umesh Narang,Advocate,
Sh.Subhash Ahuja,Advocate and
Sh.L.R.Nandal,Advocate
- for the petitioners.
Sh.Mahabir Singh Sindhu,DAG Haryana for respondents..
*****
JASWANT SINGH, J.
This order will dispose of CWP Nos. 6599, 17763, 16364, 16374,
13061, 15512,16161, 16190, 17008, 17010, 16194, 16284, 16217, 16978,
17665, 17617, 17397, 6634, 10939, 10441, 11264, 11185, 12649, 12662,
13056,16193 of 2007 and 611 and 1116 of 2008 since common questions
of facts and law are involved in these writ petitions. For the sake of
convenience and with the consent of the learned counsel for the parties,
facts are taken and dealt with from CWP No. 6599 of 2007.
Smt. Shakuntala Devi and her husband Yad Ram Sharma,
petitioners, who are working as JBT teachers have filed CWP No. 6599 of
2007 for quashing of impugned identical orders dated 29.1.2007
(Annexures P-3 and P-4) and order dated 24.2.2007 (Annexures P-5 and P-CWP No.6599/2007 2
6) vide which higher scale of pay earlier granted to them on account of
their acquiring higher qualifications (JST Grade) has been withdrawn and
their pay re-fixed and recovery of excess amounts paid has been ordered to
be effected with effect from November 2003/ December 2006, in view of
the judgment dated 6.11.2003 passed by the Hon'ble Supreme Court of India
in State of Haryana v. Sumitra Devi and others 2004(12) SCC 322,
and subsequent order dated 14.7.2006, issued by the Director, School
Education Haryana, i.e. respondent no.2.
Facts giving rise to the matter in controversy are that the
petitioner no.1 was appointed as JBT teacher on adhoc basis on
14.7.1978 and her services were regularised w.e.f. 16.9.1982. She had
acquired higher qualification of B.A.Part I on 20.11.1974. Similarly,
petitioner no.2 was also appointed as JBT teacher on adhoc basis on
13.12.1977 and his services were regularised with effect from
19.8.1983 and he had acquired higher qualification of B.A. Part I on
12.6.1975. Both the petitioners, thus, became entitled to be placed in
the higher scale of pay in terms of para 2 of the Punjab Government
letter dated 23.7.1957, which provided as a matter of concession grant
of higher scale of pay to the JBT teachers on their acquiring higher
qualification, during the course of their service. It seems that the
petitioners on being denied the benefit of 1957 instructions for a
considerable time were constrained to file writ petitions before this
Hon'ble Court and thus both the petitioners were granted the benefit of
JST Grade on the basis of their aforesaid higher qualification pursuantCWP No.6599/2007 3
to the judgment dated 6.2.1997 passed by this Court in CWP No.
12023 of 1993, against which no Special Leave Petition has ever been
filed by the respondents. In this manner, the judgment dated 6.2.1997
in favour of the petitioners has attained finality. Accordingly, it is
stated that the pay of petitioner no.1 was re-fixed vide order dated
22.1.1998 (Annexure P-1) and similar orders were passed in favour of
petitioner no.2 also.
Similarly, it is stated that all the petitioners in the above said
connected writ petitions, like the petitioners herein, had acquired
higher qualification prior to their joining service as JBT teachers on
regular basis and in almost all cases even prior to joining on adhoc
basis, and had been granted JST Grade i.e. higher grade in pursuance
to the decisions in writ petitions filed by them in the Hon'ble High
Court against which either no Special Leave Petition was filed or the
same was dismissed and thus the judgments had attained finality.
Respondents in the garb of Sumitra Devi's case (supra) have
passed an order dated 18.8.2006 (Annexure P-2) after getting advice of
Legal Remembrancer, Haryana to the effect that the benefit given in
pursuance of the orders passed by the Hon'ble High Court, irrespective
of the fact that the concerned employee was not a party to the lis i.e. in
Sumitra Devi's case, can be withdrawn and recovered after the decision
of the Hon'ble Supreme Court in Sumitra Devi's case. However, before
doing so, a show cause notice must be issued and proper orders are
passed before any recovery is made.CWP No.6599/2007 4
In this manner, respondent no.4 was directed to initiate steps
to recover the benefits granted to the petitioners of JST Grade and the
same were withdrawn and the pay of the petitioners was reduced and
re-fixed w.e.f. 1.1.1986 vide impugned orders dated 29.1.2007
(Annexures P-3 and P-4) and after reducing/ re-fixing pay of the
petitioners, respondent no.4 has issued impugned notice/orders dated
24.2.2007 (Annexures P-5 and P-6) for recovery of the excess amount
paid to the petitioners, at expiry of one month. Similar orders have
been passed in all these connected writ petitions.
It has been urged by the petitioners that on the basis of these
instructions dated 18.8.2006 (Annexure P-2) respondents are initiating
steps to recover the benefits granted to them without affording any
opportunity of hearing. It has been further submitted that in Sumitra
Devi's case the Hon'ble Supreme Court was considering the
interpretation of government instructions dated 9.3.1990 and further
the advice tendered by the Legal Remembrancer, Haryana nowhere
suggests that benefit of higher pay scale given to the writ petitioners of
other cases, in which the judgments of the Hon'ble Court have attained
finality, are to be withdrawn. It is further stated that higher pay scales
were granted by the respondents as a conscious decision in view of
decision of Hon'ble High Court and there was/is no mis-representation
or fraud played by the petitioners.
Written statement has been filed on behalf of the respondents
and it is submitted inter alia admitting that the benefit of higher gradeCWP No.6599/2007 5
was granted to the petitioners vide order dated 28.7.1997/22.1.1998
(Annexure P-1) on the basis of their higher qualification and in
pursuance of the judgment dated 6.2.1997 passed in CWP No. 12023 of
1993. It is further stated that the State of Haryana had filed Civil
Appeal No. 4861 of 1998 titled as State of Haryana and others v.
Sumitra Devi, in the Hon'ble Supreme Court of India which was
allowed on 6.11.2003. In para 6 it was held as under:-
"6. Thus in this view of the matter, any teacher who was
granted this pay scale was only those JBT teachers who
were entitled to have a higher pay scale if they acquired
qualification during the period of their service not prior
to joining of the service."
Thus, in this view of the matter, the benefit of higher scale is
to be granted only to those teachers who have acquired higher
qualifications while in service and not to those who were holding
higher qualification prior to their entry into government service in the
respondent department. It is further submitted that in view of the
judgment in Sumitra Devi's case (supra) advice of Legal
Remembrancer and Secretary to Government of Haryana was sought
on the point whether the JST grade granted to the petitioners can be
withdrawn and the Legal Remembrancer has given his advice as
under:-
"The benefit given in pursuance of the order passed by
Hon'ble High Court, irrespective of the fact that the
concerned employee was not to party to the lis, can beCWP No.6599/2007 6
withdrawn and recovered after the setting aside of the
order by the Hon'ble Apex Court. Before proceeding to
issue show cause notices qua refund, it must be ensured
that the benefit was given in pursuance of according to
the order of the Hon'ble High Court. Benefit given after
the verdict of the Hon'ble Court can be deemed as such".
Thereafter, Director, School/Elementary Education, Haryana
vide his order dated 14.7.2006 (Annexure R-1) has directed respondent
no.3 that Hon'ble Supreme Court in Civil Appeal Appeal No. 4861 of
1998 titled as State of Haryana and others v. Sumitra Devi, which
was allowed on 6.11.2003, had set aside the order dated 13.2.1997
passed by this Court in CWP No. 16208 of 1996 and the JST grade
granted to large number of JST teachers may be withdrawn. In view of
the said orders passed by the Hon'ble Supreme Court and advice
tendered by Legal Remembrancer, Haryana, that even those teachers
who might not have been party to this CWP No. 16208 of 1996 their
JST grade may be withdrawn, the impugned action has been taken.
We have heard learned counsel for the parties.
Keeping in view the facts and circumstances explained
hereinabove and taking into consideration the rival contentions of the
learned counsel for the parties, it is not in dispute that JST grade
granted to the petitioners vide order dated 22.1.1998 (Annexure P-1)
was in pursuance of the order dated 6.2.1997 passed by this Court in
CWP No. 12023 of 1993, which has attained finality. The principle ofCWP No.6599/2007 7
law on the issue is not res-integra. It is well settled by the Hon'ble
Supreme Court in the matter of Union of India v. Madras Telephone
SC & ST Social Welfare Association, 2007(1) RSJ 111, wherein it
has been held that applicant whose claim to seniority and consequent
promotion on the basis of principles laid down in Allahabad High
Court's judgment in Parmanand Lal's case, have been upheld or
recognised by the Court or Tribunal to be judgment and order which
have attained finality will not be adversely affected by the contrary
view subsequently taken in the judgment reported as Union of India v.
Madras Telephone SC & ST Social Welfare Association, 1997(10)
SCC 226.
The Hon'ble Supreme Court in the case of Cauvery Water
Disputes Tribunal, In re: 1993 Supp(1) SCC 96(II) held that the
legislature can change the law in general by changing the basis on
which a decision is given by court but it cannot affect setting aside the
decision inter parties itself.
Similarly, in State of Haryana v. Karnal Coop. Farmers'
Society Ltd. (1993) 2 SCC 363, it was held by the Hon'ble High
Court that decree of civil court and judicial order holding that certain
lands and immovable properties fell outside “shamilat deh” regulated
by the principal Act, subsequent amendment in directing Assistant
Collector to decide the claim by ignoring them was held to be
unconstitutional as it encroached upon judicial power. In para 37, itCWP No.6599/2007 8
was held as under:-
“37. Thus, it becomes clear that a legislature while has the
legislative power to render ineffective the earlier judicial
decisions, by removing or altering or neutralising the legal
basis in the unamended law on which such decisions were
founded, even retrospectively, it does not have the power
to render ineffective the earlier judicial decisions by
making a law which simply declares the earlier judicial
decisions as invalid or not binding for such power if
exercised would not be a legislative power but a judicial
power which cannot be encroached upon by a legislature
under our Constitution.”
Therefore, keeping in view the principle of law that rights
inter parties which have been conclusively determined by judicial
orders cannot be re-agitated on the basis of subsequent declaration of
law in some other subsequent judgment as settled by the Hon'ble
Supreme Court in Madras Telephone's case (supra), Cauvery Water
Disputes Tribunal's case (supra), and Karnal Coop. Farmers'
Society's case (supra), the orders and notices impugned in these
connected 28 writ petitions are not sustainable and hence set aside.
However, it is made clear that if the benefit of higher grade
on the basis of higher qualification i.e. JST grade was granted to any of
the petitioner(s) by the respondents on their volition i.e. without any
binding judicial order, then the benefit can be withdrawn with effect
from the date of grant, in view of the mandate of Hon'ble SupremeCWP No.6599/2007 9
Court in Sumitra Devi's case (supra) after following the principles of
natural justice, but no recovery of excess amount already paid to the
petitioners shall be effected for the period from the date of grant till
the date of the passing of the orders in accordance with law, keeping in
view the law laid down by the Hon'ble Supreme Court in Sahib Ram
v. State of Haryana, 1995(2) Recent Service Judgments 139.
With the aforesaid directions all these writ petitions stand
allowed.
No order as to costs.
(Jaswant Singh)
Judge
4.3.2008 (Jasbir Singh)
joshi Judge
CWP No.6599/2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No.6599/2007
Date of Decision: 4.3.2008.
Shakuntala Devi and another
............. Petitioner
Versus
State of Haryana and others.
..............Respondents.
CORAM:HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE JASWANT SINGH
Present:- Sh.Umesh Narang,Advocate,
Sh.Subhash Ahuja,Advocate and
Sh.L.R.Nandal,Advocate
- for the petitioners.
Sh.Mahabir Singh Sindhu,DAG Haryana for respondents..
*****
JASWANT SINGH, J.
This order will dispose of CWP Nos. 6599, 17763, 16364, 16374,
13061, 15512,16161, 16190, 17008, 17010, 16194, 16284, 16217, 16978,
17665, 17617, 17397, 6634, 10939, 10441, 11264, 11185, 12649, 12662,
13056,16193 of 2007 and 611 and 1116 of 2008 since common questions
of facts and law are involved in these writ petitions. For the sake of
convenience and with the consent of the learned counsel for the parties,
facts are taken and dealt with from CWP No. 6599 of 2007.
Smt. Shakuntala Devi and her husband Yad Ram Sharma,
petitioners, who are working as JBT teachers have filed CWP No. 6599 of
2007 for quashing of impugned identical orders dated 29.1.2007
(Annexures P-3 and P-4) and order dated 24.2.2007 (Annexures P-5 and P-CWP No.6599/2007 2
6) vide which higher scale of pay earlier granted to them on account of
their acquiring higher qualifications (JST Grade) has been withdrawn and
their pay re-fixed and recovery of excess amounts paid has been ordered to
be effected with effect from November 2003/ December 2006, in view of
the judgment dated 6.11.2003 passed by the Hon'ble Supreme Court of India
in State of Haryana v. Sumitra Devi and others 2004(12) SCC 322,
and subsequent order dated 14.7.2006, issued by the Director, School
Education Haryana, i.e. respondent no.2.
Facts giving rise to the matter in controversy are that the
petitioner no.1 was appointed as JBT teacher on adhoc basis on
14.7.1978 and her services were regularised w.e.f. 16.9.1982. She had
acquired higher qualification of B.A.Part I on 20.11.1974. Similarly,
petitioner no.2 was also appointed as JBT teacher on adhoc basis on
13.12.1977 and his services were regularised with effect from
19.8.1983 and he had acquired higher qualification of B.A. Part I on
12.6.1975. Both the petitioners, thus, became entitled to be placed in
the higher scale of pay in terms of para 2 of the Punjab Government
letter dated 23.7.1957, which provided as a matter of concession grant
of higher scale of pay to the JBT teachers on their acquiring higher
qualification, during the course of their service. It seems that the
petitioners on being denied the benefit of 1957 instructions for a
considerable time were constrained to file writ petitions before this
Hon'ble Court and thus both the petitioners were granted the benefit of
JST Grade on the basis of their aforesaid higher qualification pursuantCWP No.6599/2007 3
to the judgment dated 6.2.1997 passed by this Court in CWP No.
12023 of 1993, against which no Special Leave Petition has ever been
filed by the respondents. In this manner, the judgment dated 6.2.1997
in favour of the petitioners has attained finality. Accordingly, it is
stated that the pay of petitioner no.1 was re-fixed vide order dated
22.1.1998 (Annexure P-1) and similar orders were passed in favour of
petitioner no.2 also.
Similarly, it is stated that all the petitioners in the above said
connected writ petitions, like the petitioners herein, had acquired
higher qualification prior to their joining service as JBT teachers on
regular basis and in almost all cases even prior to joining on adhoc
basis, and had been granted JST Grade i.e. higher grade in pursuance
to the decisions in writ petitions filed by them in the Hon'ble High
Court against which either no Special Leave Petition was filed or the
same was dismissed and thus the judgments had attained finality.
Respondents in the garb of Sumitra Devi's case (supra) have
passed an order dated 18.8.2006 (Annexure P-2) after getting advice of
Legal Remembrancer, Haryana to the effect that the benefit given in
pursuance of the orders passed by the Hon'ble High Court, irrespective
of the fact that the concerned employee was not a party to the lis i.e. in
Sumitra Devi's case, can be withdrawn and recovered after the decision
of the Hon'ble Supreme Court in Sumitra Devi's case. However, before
doing so, a show cause notice must be issued and proper orders are
passed before any recovery is made.CWP No.6599/2007 4
In this manner, respondent no.4 was directed to initiate steps
to recover the benefits granted to the petitioners of JST Grade and the
same were withdrawn and the pay of the petitioners was reduced and
re-fixed w.e.f. 1.1.1986 vide impugned orders dated 29.1.2007
(Annexures P-3 and P-4) and after reducing/ re-fixing pay of the
petitioners, respondent no.4 has issued impugned notice/orders dated
24.2.2007 (Annexures P-5 and P-6) for recovery of the excess amount
paid to the petitioners, at expiry of one month. Similar orders have
been passed in all these connected writ petitions.
It has been urged by the petitioners that on the basis of these
instructions dated 18.8.2006 (Annexure P-2) respondents are initiating
steps to recover the benefits granted to them without affording any
opportunity of hearing. It has been further submitted that in Sumitra
Devi's case the Hon'ble Supreme Court was considering the
interpretation of government instructions dated 9.3.1990 and further
the advice tendered by the Legal Remembrancer, Haryana nowhere
suggests that benefit of higher pay scale given to the writ petitioners of
other cases, in which the judgments of the Hon'ble Court have attained
finality, are to be withdrawn. It is further stated that higher pay scales
were granted by the respondents as a conscious decision in view of
decision of Hon'ble High Court and there was/is no mis-representation
or fraud played by the petitioners.
Written statement has been filed on behalf of the respondents
and it is submitted inter alia admitting that the benefit of higher gradeCWP No.6599/2007 5
was granted to the petitioners vide order dated 28.7.1997/22.1.1998
(Annexure P-1) on the basis of their higher qualification and in
pursuance of the judgment dated 6.2.1997 passed in CWP No. 12023 of
1993. It is further stated that the State of Haryana had filed Civil
Appeal No. 4861 of 1998 titled as State of Haryana and others v.
Sumitra Devi, in the Hon'ble Supreme Court of India which was
allowed on 6.11.2003. In para 6 it was held as under:-
"6. Thus in this view of the matter, any teacher who was
granted this pay scale was only those JBT teachers who
were entitled to have a higher pay scale if they acquired
qualification during the period of their service not prior
to joining of the service."
Thus, in this view of the matter, the benefit of higher scale is
to be granted only to those teachers who have acquired higher
qualifications while in service and not to those who were holding
higher qualification prior to their entry into government service in the
respondent department. It is further submitted that in view of the
judgment in Sumitra Devi's case (supra) advice of Legal
Remembrancer and Secretary to Government of Haryana was sought
on the point whether the JST grade granted to the petitioners can be
withdrawn and the Legal Remembrancer has given his advice as
under:-
"The benefit given in pursuance of the order passed by
Hon'ble High Court, irrespective of the fact that the
concerned employee was not to party to the lis, can beCWP No.6599/2007 6
withdrawn and recovered after the setting aside of the
order by the Hon'ble Apex Court. Before proceeding to
issue show cause notices qua refund, it must be ensured
that the benefit was given in pursuance of according to
the order of the Hon'ble High Court. Benefit given after
the verdict of the Hon'ble Court can be deemed as such".
Thereafter, Director, School/Elementary Education, Haryana
vide his order dated 14.7.2006 (Annexure R-1) has directed respondent
no.3 that Hon'ble Supreme Court in Civil Appeal Appeal No. 4861 of
1998 titled as State of Haryana and others v. Sumitra Devi, which
was allowed on 6.11.2003, had set aside the order dated 13.2.1997
passed by this Court in CWP No. 16208 of 1996 and the JST grade
granted to large number of JST teachers may be withdrawn. In view of
the said orders passed by the Hon'ble Supreme Court and advice
tendered by Legal Remembrancer, Haryana, that even those teachers
who might not have been party to this CWP No. 16208 of 1996 their
JST grade may be withdrawn, the impugned action has been taken.
We have heard learned counsel for the parties.
Keeping in view the facts and circumstances explained
hereinabove and taking into consideration the rival contentions of the
learned counsel for the parties, it is not in dispute that JST grade
granted to the petitioners vide order dated 22.1.1998 (Annexure P-1)
was in pursuance of the order dated 6.2.1997 passed by this Court in
CWP No. 12023 of 1993, which has attained finality. The principle ofCWP No.6599/2007 7
law on the issue is not res-integra. It is well settled by the Hon'ble
Supreme Court in the matter of Union of India v. Madras Telephone
SC & ST Social Welfare Association, 2007(1) RSJ 111, wherein it
has been held that applicant whose claim to seniority and consequent
promotion on the basis of principles laid down in Allahabad High
Court's judgment in Parmanand Lal's case, have been upheld or
recognised by the Court or Tribunal to be judgment and order which
have attained finality will not be adversely affected by the contrary
view subsequently taken in the judgment reported as Union of India v.
Madras Telephone SC & ST Social Welfare Association, 1997(10)
SCC 226.
The Hon'ble Supreme Court in the case of Cauvery Water
Disputes Tribunal, In re: 1993 Supp(1) SCC 96(II) held that the
legislature can change the law in general by changing the basis on
which a decision is given by court but it cannot affect setting aside the
decision inter parties itself.
Similarly, in State of Haryana v. Karnal Coop. Farmers'
Society Ltd. (1993) 2 SCC 363, it was held by the Hon'ble High
Court that decree of civil court and judicial order holding that certain
lands and immovable properties fell outside “shamilat deh” regulated
by the principal Act, subsequent amendment in directing Assistant
Collector to decide the claim by ignoring them was held to be
unconstitutional as it encroached upon judicial power. In para 37, itCWP No.6599/2007 8
was held as under:-
“37. Thus, it becomes clear that a legislature while has the
legislative power to render ineffective the earlier judicial
decisions, by removing or altering or neutralising the legal
basis in the unamended law on which such decisions were
founded, even retrospectively, it does not have the power
to render ineffective the earlier judicial decisions by
making a law which simply declares the earlier judicial
decisions as invalid or not binding for such power if
exercised would not be a legislative power but a judicial
power which cannot be encroached upon by a legislature
under our Constitution.”
Therefore, keeping in view the principle of law that rights
inter parties which have been conclusively determined by judicial
orders cannot be re-agitated on the basis of subsequent declaration of
law in some other subsequent judgment as settled by the Hon'ble
Supreme Court in Madras Telephone's case (supra), Cauvery Water
Disputes Tribunal's case (supra), and Karnal Coop. Farmers'
Society's case (supra), the orders and notices impugned in these
connected 28 writ petitions are not sustainable and hence set aside.
However, it is made clear that if the benefit of higher grade
on the basis of higher qualification i.e. JST grade was granted to any of
the petitioner(s) by the respondents on their volition i.e. without any
binding judicial order, then the benefit can be withdrawn with effect
from the date of grant, in view of the mandate of Hon'ble SupremeCWP No.6599/2007 9
Court in Sumitra Devi's case (supra) after following the principles of
natural justice, but no recovery of excess amount already paid to the
petitioners shall be effected for the period from the date of grant till
the date of the passing of the orders in accordance with law, keeping in
view the law laid down by the Hon'ble Supreme Court in Sahib Ram
v. State of Haryana, 1995(2) Recent Service Judgments 139.
With the aforesaid directions all these writ petitions stand
allowed.
No order as to costs.
(Jaswant Singh)
Judge
4.3.2008 (Jasbir Singh)
joshi Judge
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