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higher scale of pay earlier granted to them on account of their acquiring higher qualifications (JST Grade) has been withdrawn and their pay re-fixed and recovery of excess amounts paid has been ordered to be effected with effect from November 2003/ December 2006, in view of the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 pursuant CWP 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 grade CWP 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 be CWP 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 of CWP 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, it CWP 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 Supreme CWP 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