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J&K High Court · body

2017 DIGILAW 781 (JK)

Jawahar Lal Raina v. State of J&K

2017-08-31

JANAK RAJ KOTWAL

body2017
1. The Government Order No.534/Agri of 1972 dated 27.05.1972, which was issued pursuant to the Cabinet Decision No. 40 dated 19.04.1972, provided inter alia for “grant of two advance increments in favour of officers of the Agriculture, Horticulture, Floriculture, Animal Husbandry and Sheep Husbandry departments, who acquired M.Sc and M.V.Sc degree”. In the year 1982, the Jammu and Kashmir Civil Services (Revised Pay) Rules (for short, the Rules of 1982) were framed and notified vide SRO 91 dated 22.03.1982. Under Rule 12 of the Rules of 1982, the grant of advance increment for higher qualification was maintained. Rule 12 is extracted for ready reference: “12. Advance increment(s) on acquisition of higher qualification either while in service or at the time of initial appointment, as admissible under the relevant rules and orders, in various Departments like Education, Agriculture, Animal Husbandry, Health, Medical Education etc. will continue to be allowed in the revised scales on the existing terms and conditions.” 2. The Rules of 1982 were followed by the Jammu and Kashmir Civil Services (Revised Pay) Rules, 1987 (for short, the Rules of 1987) notified vide SRO 370 dated 17.07.1987. The benefit of advance increment(s) was similarly maintained under Rule 12 of the Rules of 1987. Rule 12 is extracted: “12. Advance increment(s) on acquisition of higher qualification either while in service or at the time of initial appointment, as admissible under the relevant rules and orders, in various Departments like Education, Agriculture, Animal Husbandry, Health, Medical Education etc. will continue to be allowed in the revised scales on the existing terms and conditions.” 3. Important feature of Rule 12 of the Rules of 1982 and Rule 12 of the Rules of 1987, which is relevant to be noticed, is that the benefit of advance increment(s) was available to the officers, who possessed the higher qualification at the time of initial appointment, as well as the officers, who acquired such qualification while in service. 4. The Rules of 1987 were followed by the Jammu and Kashmir Civil Services (Revised Pay) Rules, 1992 (for short, the Rules of 1992), which were notified vide SRO 75 dated 30.03.1992 and were deemed to have come into force on 01.04.90. There was a change in grant of the benefit for higher qualification under the Rules of 1992, inasmuch as the benefit of advance increment(s) to the fresh recruits in the aforementioned departments was temporarily withdrawn. There was a change in grant of the benefit for higher qualification under the Rules of 1992, inasmuch as the benefit of advance increment(s) to the fresh recruits in the aforementioned departments was temporarily withdrawn. The benefit to be granted for higher qualification was incorporated in Rule 8, which is extracted: “8. The existing provisions of Rule (10) and Rule (12) of the Jammu and Kashmir Civil Service (Revised Pay) Rules, 1987, relating to the benefit of higher starting salary/advance increment(s) for higher qualification, in respect of all Departments, except to the extent of the posts of Police Constables and Junior Engineers, as provided in Rule 9(d) and (f), shall remain inoperative temporarily for fresh recruits till such time as fresh orders are issued in this behalf by the Government.”(underlining by me) 5. Close on the heels of the notification of the Rules of 1992, the Finance Department issued O. M. No. A/37(92)-633 dated 15.09.1992 whereby it was clarified that the terms, “Fresh recruitments”, “fresh appointments”, “New appointments”, “Future appointments”, appearing in the Rules of 1992 shall mean appointments as have been made or shall be made on or before 31.03.1992. 6. The petitioners are/were the officers in the Agriculture Department and Horticulture Department. They were appointed prior to the year 1990 at different times starting from the year 1978. All of them acquired higher qualification of M.Sc. Agriculture at different times after the year 1992, that is, after coming into force of the Rules of 1992 up to the year 2000. As all of them acquired higher qualification as in-service officers, that is, after their initial appointment, they were granted the benefit of the advance increments in terms of the Rules of 1987, which, like the Rules of 1982, provided for such benefit both to the officers who possessed such higher qualification at the time of their initial appointment as well as to the officers, who acquired such qualification as in-service officers. 7. Difficulty in context of this writ petition started, however, with communication No. Agri-E-104/04-GNL dated 30.05.2005 of the Agriculture Production Department, Government of Jammu and Kashmir to the Director of Agriculture, Jammu. By this letter, it was clarified that advance increments for acquiring higher qualification by the in-service employees and fresh recruits made from 01.04.1992 is inoperative and the Director was asked to take further action in the matter. By this letter, it was clarified that advance increments for acquiring higher qualification by the in-service employees and fresh recruits made from 01.04.1992 is inoperative and the Director was asked to take further action in the matter. This letter in its substance, as it is relevant, is reproduced: “I am directed to refer your letter No. Agri/Acctts/04/185 dated 26.05.2004, regarding the subject noted above and to say that the case was referred to the Finance Department who have observed as under:- “It is clarified that advance increments for acquiring higher qualification by in-service employees and fresh recruits made from 01.04.1992 is inoperative.” You are accordingly requested kindly to take further action in the matter.” (underlining by me) 8. Apprehending the withdrawal of the benefit of the advance increments given to the in-service officers, who were appointed prior to the Rules of 1992 but obtained the higher qualification after that, all such officers represented to the government. The Finance Department seems to have rejected the representation(s) made by these officers vide its OM No. A/9(81)1-888 dated 28.07.2006, whereby the benefit of advance increments (excess pay and allowances) given to all such officers up to 12.09.2001 was waived of and it was ordered that the fixation of their pay shall be reviewed and regulated correctly and the excess payment made with effect from 12.09.2001 shall be recovered. Para 9 of this OM is relevant and is extracted: “9. Thereafter, consequent upon the representation of in-service Agri. Asstts. who were in service as on 31.3.1992 and acquired Post-Graduate qualification, the matter was reexamined in consultation with law Department and it is accordingly clarified that the benefit of advance increment to in-service candidates/employees shall strictly be regulated in terms of Rule 8 of SRO 75 of 30.3.1992 read with Finance Department clarificatory O.M. No. A/37(2)-633 dated 15.9.1992 up to the date of issue of opinion to Health and Med. Edu. Deptt. Vide FA/Med/21/2001 dated 12.9.2001. The benefit of advance increment (excess pay and allowance) drawn/paid up to 12.09.2001 is waived off. The pay fixation w.e.f 12.9.2001 shall be reviewed and regulated correctly treating higher qualified in-service candidates on par with fresh recruits and excess pay and allowance w.e.f 12.9.2001 shall be recovered and credited to relevant Govt. Account Head. Sd/- (B.B.Vyas) Commissioner/Secretary to Government, Finance Department.” 9. The pay fixation w.e.f 12.9.2001 shall be reviewed and regulated correctly treating higher qualified in-service candidates on par with fresh recruits and excess pay and allowance w.e.f 12.9.2001 shall be recovered and credited to relevant Govt. Account Head. Sd/- (B.B.Vyas) Commissioner/Secretary to Government, Finance Department.” 9. In this writ petition, petitioners seek writ of certiorari quashing communication No. Agri-E-104/04-Gnl dated 30.05.2005 (supra) and O.M. No. A/9(81)-1-888 dated 28.07.2006. Besides, they seek quashing of communication No. DHJ/Acctts/4849-65 dated 28.09.2006 of the Directorate of Horticulture, Jammu and communication No. DAJ/Acctts/266-07/1490-1507 dated 26.09.2006 of the Directorate of Agriculture, Jammu, which seem to have been issued as follow up action to O.M dated 28.07.2006 (supra). Petitioners also seek quashing of the clarification/ interpretation dated 12.09.2001 pertaining to Health and Medical Education Department insofar as it applies to the case of the petitioners. Petitioners further seek writ of prohibition restraining respondents from giving effect to re-fixation to their salary and recovery of pay and allowances w.e.f 12.09.2001. 10. Mr. U.K.Jalali, learned Senior Advocate, appearing on behalf of the petitioners, submitted precisely but vehemently that under Rule 12 of the Rules of 1982 as well as Rule 12 of the Rules of 1987, the benefit of advance increments on acquiring the higher qualification was available, both to the officers, who possessed such higher qualification at the time of their initial appointment as well as to the officers, who acquired such qualification after joining the service. Under Rule 8 of the Rules of 1992 such benefit was temporarily kept in abeyance for fresh recruits till further orders. The benefit, therefore, was to be given to the officers, who had been appointed prior to the Rules of 1992 even if they acquired higher qualification after coming into force of the said Rules. Learned Senior Advocate argued that the plain language of Rule 8 required no interpretation and no interpretation contrary to the plain meaning could have been given by an Administrative Order. Mr. Jalali argued also that in terms of the impugned clarification dated 30.05.2005 and O.M. dated 28.07.2006, the Finance Department by stopping the benefit of advance increments to in-service officers has defeated the clear mandate of the Statutory Rules of 1992. Learned counsel argued that advance increments to in-service officers for acquiring higher qualification is an incentive to in-service officers to improve their professional standard in the better interest of the administration. 11. Learned counsel argued that advance increments to in-service officers for acquiring higher qualification is an incentive to in-service officers to improve their professional standard in the better interest of the administration. 11. Respondents in their objections have not denied the clarification, which was issued by the Finance Department shortly after notification of the Rules of 1992 vide its O.M. dated 15.09.1992. By this Office Memo, the Finance Department had clarified inter alia that the term ‘fresh recruitments’ figuring in the Rules of 1992 shall mean as an appointment made or to be made on or after 31.03.1992. This clarification in context of Rule 8 of the Rules of 1992 had made it clear that benefit of advance increment(s) for possessing/acquiring higher qualification was not to be given to the officers appointed on or after 31.03.1992. Conversely, it was made clear that such a benefit was to be given to all those officers who had been appointed prior to 31.03.1992. A doubt, however, can be entertained about correctness of this opinion to the extent it fixes 31.03.1992 as the cutoff date for the reason that the Rules of 1992 were deemed to have come into force on 01.04.1990 so a question arises as to whether the relevant date for operation of Rule 8 should be taken as 01.04.1990 or 31.03.1992. This aspect, however, has no relevance in this case as all the petitioners were appointed prior to 1990. 12. The stand taken by the respondents, however, is that the Finance Department on examination of a proposal submitted by the Health and Medical Education Department had, vide U.O. No. A/9(81)1-1068 dated 20.07.2004, had taken “a view that in-service persons acquiring higher qualification after the cutoff date is at par with fresh recruit having higher qualification abnitio by no stretch of imagination an in-service employee having acquired higher qualification after 31.03.1992 could be treated as superior to a fresh and direct recruit having same qualification.’ It is further stated in the objections that the case of the Agriculture Department was also disposed of in accordance with the above interpretation vide U.O. No. A/9(98)-1315 dated 15.05.2005 and the same was clarified to Accountant General vide O.M. No. A/9(81)II-694 dated 16.09.2005 “that no initial higher starting salary/advance increments are available with effect from 01.04.1987 viz. from the date of the commencement of J&K Civil Services Revised Pay Rules, 1992.” It is stated further in the objections that the representation of in-service Agriculture Assistants “who were in service on 31.03.1992 and acquired post-graduation qualification, the matter was examined in consultation with Law Department and it clarified vide O.M. No: A/9(98)1-888 dated 28.7.2006 that the benefit of advance increment to in-service officers/employees shall strictly be regulated in terms of Rule 8 of SRO 75 dated 30.6.1992 read with Finance Department clarification vide No: A/31(92)-633 dated 15.9.1992 up to the date of issue of opinion to Health and Medical Education Department vide No: FD/Med/21/2001 dated 12.9.2001. The benefit of advance increment (excess pay and allowances) drawn/paid up to 12.9.2001 has been waived off.” 13. Learned Additional Advocate General, Mr. L. K. Moza, appearing on behalf of the respondents, submitted that grant of the benefit of additional increments to the in-service officers, having been engaged prior to 01.04.1992, will act discriminatorily against the officers, who have joined or join service after the said date with higher qualification. Dilating his point, Mr. Moza submitted that the officers having joined service prior to 01.04.1992 would be eligible for the benefit of advance increments after acquiring higher qualification, whereas the officers with higher qualification but having joined service after 01.04.1992 will not be eligible for the said benefit. Such a classification in the same category of officers would be violative of the right of equality as envisaged under Article 14 of the Constitution. Mr. Moza, therefore, concluded by saying that the Finance Department is the authority to interpret a statutory rule and has given its opinion having regard to the Constitutional provisions. 14. Rule 8 of the Rules of 1992 is clear and unambiguous in its meaning and admits of no doubt to call for interpretation other than the literal meaning, which is the golden rule of interpretation of statutes. When the words of the statute are clear, plain and unambiguous, then effect is to be given to that meaning, irrespective of the consequences. What Rule 8 of the Rules of 1992 provides is that the benefit of advance increment(s) for possessing/acquiring higher qualification under Rule 12 of the Rules of 1987 shall remain inoperative temporarily for fresh recruits till such time as fresh orders are issued in this behalf by the Government. What Rule 8 of the Rules of 1992 provides is that the benefit of advance increment(s) for possessing/acquiring higher qualification under Rule 12 of the Rules of 1987 shall remain inoperative temporarily for fresh recruits till such time as fresh orders are issued in this behalf by the Government. The clear meaning that can be derived on reading these two rules in juxtaposition is that under Rule 12 of the Rules of 1987 benefit of advance increment(s) was available both to the officers joining the service with higher qualification as well as to the officers who acquire such higher qualification as in-service officers, that is, after joining the service. However, under Rule 8 of the Rules of 1992 the benefit of advance increment(s) for possessing/acquiring higher qualification was temporarily suspended ‘for fresh recruits’ meaning clearly that such benefit would not be available to the officers appointed after coming into force of the Rules of 1992, whether they possess higher qualification at the time of entering the service or acquire such qualification after joining the service. Rule 8 of the Rules of 1992 neither directly nor by implication gives any indication of operating against the officers who had been appointed prior to coming into force of these rules. This clear meaning of Rule 8 was reflected in OM No. A/37(92)-633 dated 15.09.1992 which clarified that the expressions inter alia ‘fresh recruitments’ and ‘fresh appointments’ shall mean appointments having been made or shall be made on or after 31.03.1992. Had the intention been to suspend the benefit of advance increment(s) to all the officers irrespective of their date of appointment, the same could have been adequately mentioned in Rule 8 instead of saying that the same ‘shall remain inoperative for fresh recruits’. 15. The stand taken on behalf of respondents needs to be analyzed in order to underline the reasons that might have prevailed upon the Finance Department to withdraw (or suspend) the benefit of advance increment(s) for higher qualification even to the officers who had joined service prior to the coming into force of the Rules of 1992. 15. The stand taken on behalf of respondents needs to be analyzed in order to underline the reasons that might have prevailed upon the Finance Department to withdraw (or suspend) the benefit of advance increment(s) for higher qualification even to the officers who had joined service prior to the coming into force of the Rules of 1992. The objections filed on behalf of the respondents would show that the decision to withdraw this benefit to the in-service officers, having been appointed prior to coming into force the Rules of 1992, was for the first time taken by the Finance Department vide U.O. No. A/9(81)-1-1068 dated 20.07.2004 when some proposal was received from the Health and Medical Education Department. The view taken by the Finance Department was that in-service officers acquiring higher qualification after the cutoff date are at par with fresh recruits having higher qualification ab initio and that by no stretch of imagination, an in-service officer having acquired higher qualification after 31.03.1992 could be treated as superior to a fresh recruit having same qualification. The same analogy was adopted while disposing of the representation(s) of the petitioners and with the consultation of Law Department vide impugned O.M. No. A/9(81)-1-888 dated 28.07.2006 decision was taken that benefit under Rule 8 of the Rules of 1992 shall be regulated by Finance Department clarificatory O.M. No. A/37(92)-633 dated 15.09.1992 up to the date of issue of opinion to the Health and Medical Education Department vide F.A/Med/21/2001 dated 12.09.2001 and benefit given up to that stage shall be waived of whereas fixation of pay with effect from 12.09.2001 shall be reviewed and regulated treating higher qualified in-service officers at par with fresh recruits and excess pay and allowances with effect from 12.09.2001 shall be recovered from them. 16. What is, thus, clear is that the Finance Department vide its O.M. dated 15.09.1992 (supra) conveyed the correct literal meaning of Rule 8 of the Rules of 1992 and clarified that fresh recruit in accordance with the said Rule would be a person who is appointed on or after 31.03.1992, that is, the date of Notification of the Rules. 16. What is, thus, clear is that the Finance Department vide its O.M. dated 15.09.1992 (supra) conveyed the correct literal meaning of Rule 8 of the Rules of 1992 and clarified that fresh recruit in accordance with the said Rule would be a person who is appointed on or after 31.03.1992, that is, the date of Notification of the Rules. However, at a later stage when some proposal was received from Health and Medical Education Department, the Finance Department took a view that benefit of advance increment(s) for higher education cannot be given even to the in-service officers, who had been appointed prior to coming into force of the Rules of 1992 for the reason that the in-service officers having acquired higher qualification after 31.03.1992 cannot be treated as superior to a fresh recruit having same qualification. The Finance Department, therefore, took the decision that the benefit of advance increment(s) available under the Rules of 1987 shall not be available after coming into force the Rules of 1992 and in the result, the benefit was rendered unavailable even to the officers who had joined prior to coming into force of the Rules of 1992 but acquired higher qualification as in-service officers after that. By taking such a decision, the Finance Department in effect re-wrote Rule 8 by withdrawing (suspending) the benefit of advance increment(s) not only to the fresh recruits, that is, the officers who are recruited after coming into force the Rules of 1992, but also to the officers who had joined service prior thereto. 17. Two important questions, thus, arise. (i) Whether Rule 8 of the Rules of 1992 is discriminatory against the officers who joined service after coming into force of these Rules with higher qualification or acquired higher qualification after joining the service and (ii) Whether the decision taken by the Finance Department is legally sustainable? 18. On facts, there cannot be any dispute in regard to the operation of Rule 8 of the Rules of 1992 as it is. The benefit of advance increment(s) for higher education was made inoperative temporarily for fresh recruits. That means an officer joining service after coming into force of these Rules will not be entitled to benefit of advance increment(s) even if he possesses higher qualification as at the time of joining the service or acquires higher qualification after joining the service. The benefit of advance increment(s) for higher education was made inoperative temporarily for fresh recruits. That means an officer joining service after coming into force of these Rules will not be entitled to benefit of advance increment(s) even if he possesses higher qualification as at the time of joining the service or acquires higher qualification after joining the service. As against this, the officers, who have joined service prior to coming into force of these Rules are entitled to such a benefit on acquiring higher qualification even after coming into force of these Rules. Rule 8, therefore, creates two classes of officers, one entitled to benefit of advance increment(s) on acquiring higher qualification and the other not entitled to this benefit even if the possess or acquire higher classification. Such a classification, however, has been held not as a hostile discrimination violative of the Fundamental Right of Equality. Similar situation has been considered by the Supreme Court in H.P.Gupta and anr. v. Union of India and ors. (2002) 10 SCC 658 . Facts of the case are given in para 1 of the reporting and finding of the court is given in para 5, which are extracted: “1. The appellants before us are working as Junior Telecom Officers in the Telecommunication Department of Respondent No. 1 Union of India. They were direct recruits into the service and they possessed the qualification of degree in Engineering even at the time of joining the service. Under the scheme framed by the respondent-Union of India, two advance increments are given to those who acquired a degree in Engineering while in service. The appellants claimed that similar benefit should be extended to them also, as otherwise, the policy would result in hostile discrimination. The application filed by the appellants having been dismissed by the Administrative Tribunal, this appeal is preferred by special leave. 5. We find that the object of giving two advance increments to those officials who did not possess degree in Engineering before joining the service, is only to encourage them to get such a degree so that they could improve themselves while in service. When that object is satisfied, we do not think the contentions advanced on behalf of the appellants that there should be equality in the matter of payment of salary or other emoluments or even there should be parity in the matter of giving increments, cannot be accepted. When that object is satisfied, we do not think the contentions advanced on behalf of the appellants that there should be equality in the matter of payment of salary or other emoluments or even there should be parity in the matter of giving increments, cannot be accepted. It is true that in such a situation, as pointed out by the learned Senior Counsel for the appellants certain anomalies may arise in specific cases when the official who has acquired degree in Engineering subsequent to joining of service may get higher salary though junior to the appellants. There cannot be perfect equality in any matter on an absolute scientific basis and there may be certain inequities here and there. If the classification is correct and serves a particular purpose, the same is not to be judicially interfered with. If the argument advanced on behalf of the appellant is accepted then the scheme itself will become ineffective though it may result in giving uniform treatment to all. Thus the incentive scheme will stand scrapped and such an event should be avoided. In this view of the matter, we decline to interfere with the order made by the tribunal. The appeal is accordingly dismissed.” 19. The decision in H.P.Gupta’s case has been referred to with concurrence by the Supreme Court in a similar fact situation arising in Food Corporation of India and ors. v. Bhartiya Khadya Nigam Karmchari Sangh & anr. 2012 (1) Supreme 250 . 20. Now coming to the next question, as to whether decision taken by the Finance Department is sustainable in law. It needs to be pointed out that the Rules of 1992 are statutory in nature for having been framed in exercise of powers under Section 124 of the State Constitution. As explained above, the Finance Department by withdrawing the benefit of advance increment(s) even to the officers, who have joined service prior to coming into force of these rules has in effect re-written Rules 8. Administrative departments have the power to issue orders and circulars to clarify the meaning and the purport of a legislative provision but no such administrative device can be used to re-write a statutory provision and to render it ineffective. Legal position in this regard is well settled and is required to be followed by all. Administrative departments have the power to issue orders and circulars to clarify the meaning and the purport of a legislative provision but no such administrative device can be used to re-write a statutory provision and to render it ineffective. Legal position in this regard is well settled and is required to be followed by all. To state the legal position in this regard,para 10 of the Supreme Court judgment in State of M.P and ors. v. Yogendra Shrivastava, (2010) 10 SCC 539 is reproduced: “10. The contention that the executive orders issued from time to time or the appointment letters issued in accordance with such executive orders will prevail over the Rules cannot be accepted. When there is conflict between the Statutory Rules and executive orders, the statutory Rules will prevail (See: K. Dayandan Lal v. State of Kerala- 1996 (9) SCC 728 , T. N. Housing Board vs. N. Balasubramanium -2004 (6) SCC 85, State of Karnataka vs. K.G.S.D. Canteen Employees Welfare Association - 2006 (1) SCC 567 and Punjab National Bank vs. Astamija Das- 2008 (14) SCC 370 ). Executive orders cannot be made or given effect in violation of what is mandated by the Rules. If appointment letters provides for payment of NPA which is not in consonance with Rules, they can be corrected or set right by Tribunals/courts.” 21. In the result of the above analysis, it is held that the Finance Department has fallen in error by depriving benefit of Rule 8 of the Rules of 1992 even to those officers who had joined service prior to coming into force of these rules but acquired the higher qualification after that. Accordingly, this writ petition succeeds as it has strong merit. 22. This writ petition is, therefore, allowed and by issue of a writ of certiorari the communication Nos. Agri-e-104/04-Gnl dated 30.03.2005 and O.M. No. A/9(81)1-888 dated 28.07.2006 are quashed and by issue of a writ of prohibition respondents are restrained from withdrawing the benefit of advance increment(s) given to them in terms of Rule 8 of the Rules of 1992.