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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 ;

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

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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