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Daljit Singh Narula And Others v. State Of Haryana And Others
Judgment Summary — S.S. Dewan, J. (with C.J. S.S. Sandhawalia concurring)
Factual and Procedural Background
The petition arises from a dispute concerning pay-scale sanctioned for certain reporters serving in the Haryana Vidhan Sabha Secretariat. The Speaker recommended (letter dated 2 July 1970) that reporters' pay scales be equated with superintendents/private secretaries; the State Government accepted and issued a notification dated 26 October 1970 giving effect to that recommendation (annexure A). A copy was sent to the Accountant-General, who sought details; the Vidhan Sabha Secretary replied on 21 December 1970 that the sanction was under consideration and information would follow.
The Speaker proceeded to sign (17 May 1971) a notification listing reporters for the revised pay-scale, but before publication the State Government cancelled the earlier sanction by order dated 18 May 1971 (annexure R3/1) and issued a cancellation notification dated 8 June 1971 (annexure F). The Speaker sought reconsideration (government declined by letter dated 6 September 1971) and a memorial to the Governor was rejected. The petition was filed challenging the revocation.
The State's stated reason for cancellation (in written statement) was administrative difficulty: promotions from reporter were to editors of debates (a non-gazetted post), and declaring reporters gazetted and equating them with civil secretariat posts would create administrative problems.
Legal Issues Presented
- Whether the cancellation order (annexure F) that revoked the sanction to a revised pay-scale amounted to a reduction in rank invoking Article 311(2) of the Constitution (and therefore required notice of charges and an inquiry)?
- Whether the petitioners were entitled to be heard before the Government revoked the sanction to the revised pay-scale (i.e., procedural fairness / audi alteram partem in the circumstances)?
- Whether an executive order determining a condition of service (the sanctioned revised pay-scale) could be altered retrospectively to the prejudice of a civil servant, or whether such alteration must operate only prospectively?
Arguments of the Parties
Petitioners' Arguments (as presented by Sri J.L. Gupta)
- The impugned cancellation order had the effect of reducing the petitioners in rank and involved penal consequences; therefore Article 311(2) protections applied and the order was invalid for lack of compliance.
- The petitioners should have been heard before being deprived of the benefit of the revised pay-scale; absence of such hearing rendered the order unsustainable.
- The executive order (granting revised scale) could not be retrospectively altered so as to take effect from the original sanction date; the cancellation could not be given retrospective effect to the prejudice of petitioners.
State / Respondent's Position (as disclosed in the record)
- The Government's written statement explained that promotions from reporters typically went to the post of editor of debates, which remained non-gazetted; making reporters gazetted and equating them with superintendents/private secretaries would create administrative problems.
- The Government exercised policy discretion in determining status and pay-scales and declined to accede to requests to make the editor post gazetted to accommodate the revised scale for reporters.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| K.D. Vasudeva v. Union of India [(1971) 2 S.L.R. 487] | The principle that a condition of service determined by an executive order cannot subsequently be altered retrospectively to the prejudice of a civil servant. | The court relied on this authority to hold that the cancellation must operate prospectively; petitioners are entitled to benefits from the sanction date until revocation. |
| Suresh Kumar v. Union of India [A.I.R. 1969 Punj. 257] | Same general principle was cited (that retrospective alteration to the prejudice of a civil servant is impermissible). | Used together with other authorities to support the conclusion that the revocation cannot be given retrospective effect to deprive petitioners of the interim benefit already flowing from the earlier sanction. |
| N.C. Singhal v. Director-General, Armed Forces Medical Services [(1972) 4 SCC 765 : A.I.R. 1972 S.C. 628] | Affirms the rule restricting retrospective adverse alteration of executive orders affecting conditions of service. | Applied to determine that the cancellation of sanction operates prospectively and petitioners retain entitlement up to revocation date. |
| Madan Lal Chopra v. Union of India [1967 S.L.R. 588] | Illustrates circumstances where affected employees were held entitled to a hearing before suspension of benefits or recovery; concerned disputed eligibility and retrospective withdrawal leading to recovery. | The court distinguished this case on its facts, holding it inapplicable to the present controversy because issues of eligibility, suspension of benefits and recovery did not arise here. |
Court's Reasoning and Analysis
The court addressed each contention in turn.
First (Article 311(2) issue): The court explained that Article 311(2) protects against reduction in rank as a penal measure without notice of charges and an opportunity to be heard. Crucially, the protection is triggered only if an order in fact effects a reduction in rank. The court found no factual reduction in rank here: none of the petitioners had been appointed to the revised (gazetted) scale and they continued to serve as reporters in their original non-gazetted scale until the cancellation. The impugned order merely recalled an earlier sanction; it did not change their rank or status. Consequently Article 311(2) was not attracted and the first contention failed.
Second (right to be heard): The court observed that the Government's cancellation was grounded in administrative and policy considerations (difficulty in reconciling the non-gazetted status of editor-of-debates posts with making reporters gazetted). Determinations about classifying posts and fixing conditions of service fall within governmental policy discretion; the court cannot compel the Government to alter administrative arrangements to accommodate the petitioners. Given that context, the petitioners could not claim a right to be heard before the Government exercised its policy choice. The court distinguished Madan Lal Chopra on the basis that that case involved disputed eligibility and recovery/suspension of already granted benefits — facts not present here — and thus the authority relied upon by petitioners did not apply.
Third (retrospective operation): The court accepted the petitioners' third contention. Reliance was placed on authorities (K.D. Vasudeva; Suresh Kumar; N.C. Singhal) establishing that a condition of service created by executive order cannot be retrospectively altered to the civil servant's prejudice. Applying that principle, the court held that the cancellation must operate prospectively: the effect is that petitioners are entitled to the benefit of the revised scale from the date of the original sanction (notification dated 26 October 1970) up to the date when the sanction was revoked (order dated 18 May 1971 / notification dated 8 June 1971 as reflected in the record). The court thus fashioned a limited remedy confined to the period between sanction and revocation.
On remedies and costs: the court directed the State Government to afford the petitioners the benefit of the revised pay-scale for the period identified and allowed the writ petition in that manner. No order as to costs was made. The Chief Justice (S.S. Sandhawalia) concurred.
Holding and Implications
Core Holding: The writ petition is allowed. The cancellation of the sanction to the revised pay-scale operates prospectively; the petitioners are entitled to the benefit of the revised scale from the date of the sanction until the date of its cancellation. A direction is issued to the State Government to give effect to this limited salary entitlement. No order as to costs.
Implications:
- Direct effect on the parties: Petitioners receive the revised pay for the period from sanction to revocation; the Government is directed to implement that award.
- Scope of precedent: The court applied established authorities to hold that executive orders altering conditions of service cannot be applied retrospectively to the employee's detriment. The judgment distinguishes earlier case-law (Madan Lal Chopra) on grounds of materially different facts; the decision does not purport to establish a new principle beyond the existing authorities cited.
Judge(s): S.S. Dewan, J. (author); S.S. Sandhawalia, C.J. (concurring).
S.S Dewan, J.:— Facts giving rise to this petition, which has been referred to a larger Bench by Rajendra Nath Mittal, J., are these:
2. Petitioners at the material time were reporters amongst others serving in the Haryana Vidhan Sabha Secretariat. Speaker of the Vidhan Sabha vide letter, dated 2 July 1970, recommended to the State Government that the pay scale of the reporters should be brought at par with those of the superintendents/private secretaries in the civil secretariat. The Government accepted the recommendation. Consequently, a notification, dated 26 October 1970, (copy annexure A to the petition) giving effect to it, was issued in the Government gazette. A copy of this notification was sent to the Accountant-General. The Deputy Accountant-General addressed a letter to the Secretary of the Vidhan Sabha with a view to elicit information as to the incumbents affected by the notification and their status in the revised scale, gazetted or non-gazetted, so as to enable the office of the Accountant-General to take suitable action in the matter. To this Secretary gave reply, dated 21 December 1970, stating that the sanction issued by the Governments vide notification, dated 26 October 1970, was under consideration and necessary information would be supplied in due course. Even so it appears the Speaker proceeded to sign a notification on 17 May 1971, containing the names of the reporters of the benefit of revised pay-scale for publication in the Government gazette. Before the publication could be made, the Government cancelled the sanction granting revised pay-scale by order, dated 18 May 1971, copy of which has been appended as annexure R3/1 to the written statement, furnished by the Secretary to the Vidhan Sabha. The notification to this effect was issued which is, dated 8 June 1971, and copy whereof is annexure F to the petition. On the direction of the Speaker, the Government was approached for the reconsideration of the matter. Government did not agree and so informed the Speaker through letter, dated 6 September 1971. A memorial was submitted to the Governor on behalf of the reporters against the order of the Government revoking the sanction in respect of the revised scale. The memorial did not find favour and was turned down.
3. Before proceeding to consider, the arguments urged on behalf of the petitioners, it is necessary to make mention of the reason why the State Government cancelled the sanction to the revised scale. It has been stated in the written statement entered on behalf of the Deputy Secretary, General Administration, that the promotion from the post of reporters had earlier been taking place to the post of editors of debates and that post was not gazetted till date. In view of this, decision to declare the post of reporters as gazetted and to equate them with the posts of superintendents/private secretaries would have created administrative problems.
4. Adverting now to the arguments of Sri J.L Gupta, learned counsel for the petitioners, it was contended:
(i) That the impugned order (annexure F to the petition) had the effect of reducing the petitioners in rank and involved penal consequences. Hence compliance with the provisions of Art. 311 of the Constitution was necessary before the order could be made. This having been not done, the order was liable to be set aside.
(ii) That the petitioners ought to have been heard before they could be deprived of the benefit of the revised pay-scale, by the impugned order. The State having failed to afford such an opportunity to them, the order was in law unsustainable.
(iii) That the executive order such as the impugned order could not be competently made so as to take effect retrospectively from the date of the order, annexure A to the petition.
5. I find no substance in the first contention. Clause (2) of Art. 311 prohibits reduction in rank of a civil servant as a measure of penalty unless he is informed of the charges against him and is given a reasonable opportunity of being heard in an enquiry in respect of those charges. Evidently, a civil servant, before he can complain of the violation of the require meets of Cl. (2) of the article, has to show in the first instance that there has occurred in fact a reduction in his rank by reason of the order passed against him. In the present case, there is no question whatsoever of any such reduction in the case of the petitioners by the impugned order. All that the impugned order does is to recall the sanction to the revised scale granted earlier. It may be mentioned that none of the petitioners was appointed to the revised scale in implementation of the sanction and they continued to serve as reporters in their own scale of pay with non-gazetted status all along till the impugned order was passed. The impugned order has not affected their rank or the status. The contention of the learned counsel based upon Cl. (2) of Art. 311 is consequently repelled.
6. There is no merit in the second contention either. The reason why the Government on second thought decided to cancel by the impugned order the earlier order granting revised scale has been mentioned above. In view of this, there can be no manner of doubt that the Government was confronted with the problem of having to raise by suitable action the non-gazetted status of the post of editor of debates, a post to which ordinarily a reporter is promoted if the revised scale of pay carrying gazetted status sanctioned in the case of reporters were to be left undisturbed. To do so or not was at the sole discretion of the Government. This Court cannot direct the Government to so provide nor can the petitioners demand that the Government should have so done with a view to accommodate them in the revised scale of pay. This obviously is a matter which turns upon the Government policy in regulating the conditions of service. Again the power of the Government to lay down conditions of service including the one relating to emoluments or fixation of pay-scale of a civil servant and to amend them unilaterally without the consent of civil servant is unquestionable. In this situation, it will be manifestly idle to contend, as did the counsel, that the petitioners were entitled to be heard before the Government proceeded to pass the impugned order. In support of his contention, the learned counsel relied upon the judgment of this Court in Madan Lal Chopra v. Union of India [1967 S.L.R 588]. This ruling has no bearing whatsoever in the present case. Facts are substantially different. In that case, the petitioner was a guard in the Northern Railway on 1 January 1949, on which date the posts of luggage guards were abolished. The fact whether or not he was a luggage guard on the said date was in dispute. On 1 September 1950, the President of India passed an order in these terms:
“(i) That luggage guards working as such on 1 January 1949, should be fitted in the scale of guards C as personal to themselves; and
(ii) that until all the qualified and medically fit men amongst such guards were absorbed against posts of guards grade C no post of guard grade C should be filled either by promotion or by recruitment from other categories of staff.”
7. It appears that the controversy arose as to the eligibility of the petitioner to the benefit of the protection of pay under the President's order. Ultimately, the petitioner was found entitled to it and he started getting higher pay thereunder. Later on, the Divisional Accounts Officer reported to the Divisional Personnel Officer that the petitioner had been wrongly given the benefit of the President's order in so far as he had been declared to be medically unlit subsequent to the crucial date. As a result, his dues were withheld and recovery of the amount already paid was ordered to be effected. The petitioner and another similarly situate moved this Court by filing writ petitions. The petitioners contended that the benefit of the order of the President had been appropriately extended to them and that the same could not be withdrawn without affording to them an opportunity of hearing. Power of the authority to withdraw the benefit and to do so retrospectively was also brought into question. The learned Judge on these facts found that the petitioners were entitled to be heard before their dues could be suspended in order to effect recovery. It was further directed that during the course of hearing, the question as to the competency of the authority to set aside its order would also be gone into.
8. It will appear from the narration that the facts of the case and the circumstances in which the learned Judge upheld the claim of the petitioners to a hearing prior to the passing of the order are entirely different from those of the present case. No such questions as to the eligibility of a civil servant to the benefit of protection of pay under the orders of the Government, suspension of the benefit or the recovery of money already passed arise in the present case. Thus, the view expressed in Madan Lal Che case [1967 S.L.R 588] (vide supra), has to be read and confined to its own set of facts and circumstances and cannot be extended to the present case.
9. Passing on to third contention, I am of the opinion that the same most succeed on the short ground that a condition of service determined by an executive order cannot be subsequently altered retrospectively to the prejudice of a civil servant. This was so held in the cases of K.D Vasudeva v. Union of India [(1971) 2 S.L.R 487], Suresh Kumar v. Union of India [A.I.R 1969 Punj. 257] and N.C Singhal v. Director-General, Armed Forces Medical Services [(1972) 4 SCC 765: A.I.R 1972 S.C 628]. The impugned order cancelling the sanction to the revised scale of pay would, therefore, operate prospectively with the result that the petitioners would be entitled to the benefit of the revised scale from the date of the sanction till the date of its cancellation.
10. In the result, in view of my finding that the impugned order is prospective in operation, the petitioners are held entitled to the limited salary as aforesaid and a direction shall issue to the State Government to afford to them the benefit of revised scale of pay from the date of the notification sanctioning the revised scale to date when the sanction was revoked by the impugned order.
11. The writ petition is allowed in the manner stated above. In the circumstances of the case, there will be no order as to costs.
12. S.S Sandhawalia, C.J:— I agree.
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