Beant Singh & Ors. v. State of Punjab & Ors.

Judgment

1. 2. Whether the judgment should be reported in the Digest? Yes Yes M.M. KUMAR, J.

1. This order shall dispose of a batch of four petitions. However, the facts are being referred from CWP No. 14634 of 2009 (Beant Singh and CWP No. 14634 of 2009 & connected petitions -2- others v. State of Punjab and others).

2. The petitioners have approached this Court with the prayer for declaring the Punjab Pay Scale of Teachers Act, 2004 (for brevity, ‘the Act’), ultra vires of the Constitution. Further prayer has also been made for quashing Memo. dated 29.12.2004, issued by the Director Public Instructions (Elementary), Punjab-respondent No. 2.

3. The petitioners have been working in the respondent State and superannuated after attaining the age of retirement. It has been claimed that they had acquired higher qualifications of Giani/Prabhakar, which entitled them to the grant of higher scale of pay as per the policy circular dated

23.7.1957. The qualification, with their date of acquiring and the date of retirement is discernible from the following table supplied by the petitioners:- Name Sr. No. Qualification Date of acquiring higher qualification Beant Singh Giani / Prabhakar

9. Mohinder Singh Amarjit Singh Mohinder Kaur Santosh Marwaha Amarjit Kaur Baldev Singh Manjit Kaur Promila

10. Amarjit Kaur

11. Gurdip Singh

12. Avtar Singh

13. Sucha Singh

14. Gurcharan Singh              Date of retirement

31.5.2006

31.8.2006

31.7.2007

28.2.2006

24.11.200 6

30.11.200 6

31.8.2009

31.10.200 6

26.9.2010

30.4.2009

30.4.2008

30.9.2008

30.4.2007

31.3.2013 CWP No. 14634 of 2009 & connected petitions -3-

18. Sarbjeet Singh Jagdish Kaur Rachhpal Kaur Lakhbir Kaur

19. Manjit Kaur

20. Ajit Singh

21. Jasbir Kaur

22. Gurnam Kaur Sukhbans Kaur Sulwinder Kumar Lakhwinder Singh

26. Satinderjit Kaur , BA           

31.5.2015

30.4.2013

31.1.2010

30.11.201 1

30.9.2007

30.4.2008

30.6.2008

31.1.2007

31.1.2009

31.7.2007

29.2.2008

30.4.2016

4. It is claimed that on the acquisition of additional qualification like Giani/Prabhakar/BA, the petitioners became entitled to one to three increments depending on the percentage of marks secured by them in the additional educational qualification. Apart from the reliance placed on policy circular dated 23.7.1957, averments have also been made that subsequently on 19.2.1979 another circular was issued which fixed the cut- off date of 19.2.1979 de-linking the qualification from the pay scale. It was, thus, provided that the pay scale would be in accordance with the post held by the teachers and not in accordance with the qualification acquired by them. In other words, those teachers who have acquired higher qualifications before 19.2.1979 were to be granted benefits of 1 to 3 increments as per the policy circular dated 23.7.1957. The Act has been enforced with effect from 31.12.2004. Petitioner Nos. 1 to 8, 10 to 13, 17, 19 to 25 have retired after the enforcement of the Act, whereas petitioner Nos. 9, 14 to 16, 18 and 26 are still serving. On the ground that Section 3 of the Act has de-linked the qualification from the pay scale and have linked CWP No. 14634 of 2009 & connected petitions -4- only the post with the pay scale, a challenge has been raised to the constitutional validity of the provisions of Section 3 of the Act. The argument is that there are a number of judgments rendered by this Court or Hon’ble the Supreme Court, which would be nullified by the enactment of Section 3 of the Act. Consequently, the petitioners have claimed the relief of declaring the order dated 21.1.2005 (P-11) unconstitutional and illegal.

5. The petitioners have claimed that in pursuance to the policy circular dated 23.7.1957 linking the pay scale with the qualification, they were granted higher pay scale by giving them benefit of 1 to 3 increments and they were also placed in group/category as contemplated by the policy circular. The aforesaid averments made by the petitioners have not been controverted and it is claimed that the 1 to 3 increments were allowed to them inadvertently although they were not entitled to.

6. In the written statement filed on behalf of respondent Nos. 1 to 3, the stand taken by the respondents is that by the impugned Act an attempt has been made to remove the disparity between the same class of employees holding the same class of posts. In that regard reference has been made to the statement of objects and reasons annexed to the Bill introduced in the Vidhan Sabha for enactment of the Act. It was made clear that payments already made to the teachers up to 31.12.1985 was to be protected to avoid any undue hardship to them and the Act has been enforced retrospectively from 1.1.1986. As such no recovery of the amount already paid to the teachers under the policy circular dated 23.7.1957 or 19.2.1979 was contemplated.

We have heard learned counsel for the parties and have perused the paper book with their able assistance. CWP No. 14634 of 2009 & connected petitions -5-

8. Mr. K.P.S. Sandhu, learned counsel for the petitioners has argued that once the increments or higher pay scale has been granted to the petitioners in pursuance to the policy circular dated 23.7.1957 read with later instructions dated 19.2.1979 then by the legislative action those benefits cannot be taken away, especially when the grant of benefits have been upheld by various judgments of this Court as well as that of Hon’ble the Supreme Court. In that regard, Mr. Sandhu has placed reliance on a judgment of this Court rendered in C.O.C.P. No. 22 of 1980 (P-3 & P-4). He has also placed reliance on a Division Bench judgment of this Court rendered in the case of Ajit Singh Datta and others v. State of Punjab and others (CWP No. 2322 of 1980, decided on 10.11.1981, Annexure P- 5). Mr. Sandhu has also placed reliance on the judgment of Hon’ble the Supreme Court rendered in the case of State of Punjab v. Kirpal Singh Bhatia, (1975) 4 SCC 740, which had granted the benefit contemplated by policy instructions dated 23.7.1957. In support of his submission, learned counsel has also placed reliance on other judgments of Hon’ble the Supreme Court rendered in the cases of Virender Singh Hooda v. State of Haryana, (2004) 12 SCC 588 and Madan Mohan Pathak v. Union of India, (1978) 2 SCC 50.

9. Mr. Suvir Sehgal, learned Additional Advocate General, Punjab, has, however, argued that the power of the legislature is a plenary power and it can render the judicial decision ineffective by enacting a valid law on a subject within its legislative competence. It can fundamentally alter or change the character of the subject in issue even if the judgment has been delivered by the Court by giving effect to the law retrospectively. In support of his submission, learned counsel has placed reliance on para 56 of CWP No. 14634 of 2009 & connected petitions -6- the judgment of Hon’ble the Supreme Court rendered in the case of Indian Aluminum Co. v. State of Kerala, (1996) 7 SCC 637. To buttress his stand, learned counsel has also placed reliance on paras 67 and 68 of another judgment of Hon’ble the Supreme Court rendered in the case of A. Manjula Bhashini v. Managing Director, Andhra Pradesh Women’s Cooperative Finance Corporation Limited, (2009) 8 SCC 431.

10. The question which falls for determination is whether the legislature in exercise of its plenary power render a judicial decision ineffective. The question is no longer res integra and in a plethora of judgments Hon’ble the Supreme Court has held that a judicial decision can be rendered ineffective by enacting a valid law by changing the basic rationale of such a judgment. The question fell for consideration in the case of Indian Aluminum Co. (supra), which has been rightly relied upon by Mr. Sehgal. Their Lordships’ of Hon’ble the Supreme Court after analysing a large number of judgments laid down the principles. The following extracts from para 56 of the judgment sum up these principles, which in extenso need to be read: “56. From a resume of the above decisions the following prin- ciples would emerges; (1) The adjudication of the rights of the parties is the essen- tial judicial function. Legislature has to lay down the norms of conduct or rules which will govern the parties and the transac- tions and require the court to give effect to them; (2) The Constitution delineated delicate balance in the exer- cise of the sovereign power by the Legislature, Executive and Judiciary; CWP No. 14634 of 2009 & connected petitions -7- (3) In a democracy governed by rule of law, the Legislature exercises the power under Articles 245 and 346 and other com- panion Articles read with the entries in the respective Lists in the Seventh Schedule to make the law which includes power to amend the law; (4) Courts in their concern and endeavour to preserve judi- cial power equally must be guarded to maintain the delicate balance devised by the Constitution between the three sover- eign functionaries. In order that rule of law permeates to fulfil constitutional objectives of establishing an egalitarian social or- der, the respective sovereign functionaries need free play in their joints so that the march of social progress and order re- main unimpeded. The smooth balance built with delicacy must always maintained; (5) In its anxiety to safeguard judicial power, it is unneces- sary to be overzealous and conjure up incursion into the judicial preserve invalidating the valid law competently made; (6) The Court, therefore, need to carefully scan the law to find out: (a) whether the vice pointed out by the Court and in- validity suffered by previous law is cured complying with the legal and constitutional requirements; (b) whether the Legisla- ture has competence to validate the law; (c) whether such vali- dation is consistent with the rights guaranteed in Part III of the Constitution; (7) The Court does not have the power to validate an invalid law or to legalise impost of tax illegally made and collected or to remove the norm of invalidation or provide a remedy. These CWP No. 14634 of 2009 & connected petitions -8- are not judicial functions but the exclusive province of the Leg- islature. Therefore, they are not the encroachment on Judicial power. (8) In exercising Legislative power, the Legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial de- cision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its charac- ter retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the Court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retro- spective legislation with a deeming date or with effect from a particular date. The Legislature can change the character of the tax or duty from impermissible to permissible tax but the tax or levy should answer such character and the Legislature is com- petent to recover the invalid tax validating such a tax on remov- ing the invalid base for recovery from the subject or render the recovery from the State ineffectual. It is competent for the leg- islature to enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the Court or the direction given for recovery thereof. (9) The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the CWP No. 14634 of 2009 & connected petitions -9- decision or make a direction as not binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Con- stitution and the legislature must have competence to do the same.”

11. The aforesaid view has again been reiterated by Hon’ble the Supreme Court in paras 67 and 68 of the judgment rendered in the case of A. Manjula Bhashini (supra).

12. The question which survives for consideration, thus, is whether the Act takes away the basis of the earlier judgment by rendering such judgments ineffective fundamentally altering or changing its character retrospectively. It would be appropriate to examine the long title and recitals of the Act which reads thus: “ An Act to provide for granting of pay scales to teachers as per rules with effect from the Ist day of January, 1986 and for the matters connected therewith or incidental thereto. Whereas, the Finance Department, vide its executive instructions issue, vide circular letter No. 5058-FRII-57/5600, dated the 23rd July, 1957, while revising pay scales of Government servants, had provided that the teachers in the Education Department shall be placed in two broad categories, namely, category ‘A’ and category ‘B’ according to their qualifications mentioned therein and had further provided that they shall be given pay scales specified in that letter; Whereas, the Finance Department, vide its instructions No. 9/9/79-FR(2)/143, dated the 19th February, 1979, reconsidered circular letter No. 5058-FRII-57/5600, dated the CWP No. 14634 of 2009 & connected petitions -10- 23rd July, 1957 and decided that the benefit of higher pay scale on the basis of the qualifications shall be allowed to only those teachers, who were appointed up to the 19th February, 1979 or who improved their qualifications up to that date and not thereafter; Whereas, the pay scales on the basis of the possession or acquisition of qualifications mentioned in circular letter No. 5058-FRII-57/5600, dated the 23rd July, 1957, continued to be allowed to the teachers upto the 31st day of December, 1985; Whereas on the basis of the recommendations of the Third Pay Commission, the Finance Department framed the Punjab Civil Services (Revised Pay) Rules, 1988 for granting revised pay scales to all the employees of different departments of the Punjab Government and in pursuance of these rules, read with Finance Department Notification No. 10/3/89-FPI/953, dated the 20th January, 1989, the State Government, vide its Notification No. 11/64/87-2Edu. 6/666, dated the 17th February, 1989, granted the specific pay scales according to the post held by a teacher with effect from the 1st day of January, 1986; Whereas consequent upon granting the specific pay scales by the State Government, vide the aforesaid statutory rules and notifications, the executive instructions of the Finance Department issued, vide its circular letter no. 5058- FRII-57/5600, dated the 23rd July, 1957 (which entitled the teachers to higher pay scales merely on the basis of qualifications although actually holding posts of lower pay scales which resulted in creating a different class leading to CWP No. 14634 of 2009 & connected petitions -11- disparity and discrimination between similarly situated teachers i.e. those who were appointed on or before the 19th February, 1979 and those who were appointed after the 19th February, 1979 even through they were working on the same post, performing same duties and responsibilities, stood superseded and no benefit of higher pay scales can be claimed by the teachers or be given to them on the basis of these executive instructions with effect from the 1st day of January, 1986; And whereas in these circumstances, it is expedient to enact a law in public interest to remove disparity and discrimination within the same class of teachers and to avoid undue and un-reasonable financial liabilities on the State Exchequer;”

13. A bare perusal of the aforesaid recitals and long title of the Act would show that the legislature has made an endeavour to delink the pay scale from the higher qualification but have confined the pay scale to the post held by a Teacher/Master/Mistress etc. By way of illustration if a JBT Teacher holds the degree of B.Ed., which is higher qualification for Master then such a JBT Teacher would continue to work with the pay scale admissible to that post. He would not get any extra increment for higher qualification or get the pay scale of Master on account of qualification which answers the higher post of Master. The Act has rendered ineffective the policy instructions dated 23.7.1957 and 19.2.1979, which in fact, were the basis of various judgments including Kirpal Singh Bhatia (supra). Therefore, the Act cannot be regarded as mere declaration by the legislature directly overruling, revising or overriding a judicial decision. The Act CWP No. 14634 of 2009 & connected petitions -12- enacted by the State legislature is concededly within its competence. There is not even any challenge to the competence of legislature to frame such a law. It does not suffer from any vice of arbitrariness or discrimination. On the contrary it seeks to bring parity in the pay scale of all the incumbents holding same post without granting any higher pay for higher qualification then the necessary ones.

14. As a sequel to the aforesaid discussion, we are of the considered view that the Act is intravires and it cannot be declared as ultra vires of the Constitution. However, no recovery could be made from the petitioners as payment of benefits in pursuance to the policy circular dated

23.7.1957 and 19.2.1979, was made to them without any misrepresentation on their part. For the aforesaid view, we place reliance on a Full Bench judgment of this Court rendered in the case of Budh Ram Garg v. State of Haryana, 2009 (3) PLR 1511. Accordingly, the writ petitions are allowed to the aforesaid extent leaving the official respondents to re-fix the pay of the petitioners without effecting any recovery.

15. The writ petitions stands disposed of in the above terms. (M.M. KUMAR) JUDGE (RITU BAHRI) JUDGE August 30, 2010 Pkapoor