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2020 DIGILAW 182 (UTT)

K. C. SINGHAL v. ANURADHA

2020-03-04

SHARAD KUMAR SHARMA

body2020
JUDGMENT Hon'ble Sharad Kumar Sharma, J. Based on a bundle of facts, the petitioner has filed a Writ Petition, being Writ Petition No. 454 of 2014, KC Singhal Vs. Union of India and others, praying for the following reliefs:- “PRAYER It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to: a) Issue a writ, order and direction in the nature of mandamus commanding the respondent to grant the benefit of 5th and 6th Pay Commission revising the pay scale w.e.f. 28.7.2003 and 1.1.2006 respectively with consequential benefit of financial up gradation (i.e. 1st and 2nd ACP). b) To pass any other and further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." 2. In the said writ petition, after the exchange of pleadings and final arguments of the parties, was disposed of by the co-ordinate Bench of this Court by the judgement dated 8th September 2014, and in the judgement thus rendered on 08.09.2014, an adjudication which was solicited by the petitioner, which was based on the premise that the issue which has been agitated by the petitioner in the writ petition; was in relation to the relief as that which was sought in the writ was squarely covered by the judgement rendered by the Division Bench in Special Appeal No. 265 of 2012, Ramesh Singh and others Vs. The Director, National Institute of Visually Handicapped and Others. The relevant part of the judgement, as rendered by the co-ordinate Bench of this Court in the writ petition of the petitioner is quoted hereunder:- “3. In view thereof, since the relief sought herein is similar to that of the above special appeal, this matter is disposed of in the same terms and conditions as decided by the Division Bench of this Court in Special Appeal No.265 of 2012 (Ramesh Singh & others Vs. The Director, National Institute of Visually Handicapped & others) and this Court holds that the petitioner is entitled for revision of his basic pay as the learned counsel for the petitioner submits that his case is on similar footing. 4. Let the needful be done as expeditiously as possible but definitely within a period of ten weeks from the date of production of a certified copy of this order. 5. No order as to costs." 3. 4. Let the needful be done as expeditiously as possible but definitely within a period of ten weeks from the date of production of a certified copy of this order. 5. No order as to costs." 3. During the course of arguments in the contempt petition, the learned counsel for the petitioner has harped upon the directions which has been made by the co-ordinate Bench of this Court in the judgment dated 08.09.2014, to the effect that, “the needful be done expeditiously". Reverting back to the direction issued by the learned Single Judge vide its judgment dated 8th September 2014, so far it related to bringing the claim of the petitioner in parlance to the judgement of the Division Bench of this Court dated 1st August 2013 as rendered in Special Appeal No. 265 of 2012, it contained a direction for the remittance of the benefit of the 5th Pay Commission to the appellant as directed therein by the Division Bench of this Court, which contained the following directions, which is quoted hereunder:- “2. We, accordingly, allow the appeal, set aside the judgment and order under appeal and, at the same time, allow the writ petition by directing the National Institute for the Visually Handicapped to give benefit of the 5th Pay Commission to the appellants and also direct the Central Government to provide necessary fund to National Institute for the Visually Handicapped to meet its obligations pursuant to this order. It is made clear that while giving such benefit, the said Institute and the Central Government will ensure grant thereof with effect from 28th July, 2003, i.e. the date on which the others got the same benefit." 4. As far as the judgement rendered by the co-ordinate Bench of this Court dated 8th September 2014 is concerned, that has attained finality qua the petitioner; as there is no challenge to it further before any superior court. As far as the judgement rendered by the co-ordinate Bench of this Court dated 8th September 2014 is concerned, that has attained finality qua the petitioner; as there is no challenge to it further before any superior court. If the relief granted to the petitioner in the writ petition is read in correlation to the direction issued by the Division Bench of this Court dated 01.08.2013, which was directed to be complied with in the case of petitioner himself, it would amount to that the petitioner's relief would be limited as it has been carved out and sought in the writ petition, which was only confined for the grant of benefit of the recommendation of the 5th and 6th Pay Commission, revising the scale w.e.f. 01.01.2006 and 28.07.2003 respectively, and in the absence of there being any reference to the remaining relief, which was sought for in the writ petition, the benefit of up-gradation based on 1st and 2nd ACP was not a subject matter which was either claimed or determined by the learned Single Judge. The petitioner filed a contempt petition on 24.02.2015; contending thereof that the direction as given by the Division Bench of this Court on 01.08.2013, was not complied with. 5. Notices were issued to the respondents on the contempt on 25.02.2015. Respondents have filed their counter affidavit on 04.09.2017 and in para 10 of their counter affidavit, the respondents have specifically come up with the case and have also placed the documents on record wherein they have already come up with the case that the writ petition itself when it was filed for claiming the benefit of the recommendations of 5th Pay Commission based on the Commission's Report, a specific plea has been raised by the respondents that the said benefit of revising the pay scale based on the recommendation of Pay Commission was already made to the petitioner by an order dated 15th December 1997 and 24.11.2008 respectively, which has been annexed as Annexure-2 and 3 to the counter affidavit, which is quoted hereunder, wherein the name of the petitioner finds place amongst the category of Catering Assistant Serial No. 1; wherein his scale which he was drawing of i.e. Rs. 1620/- was revised to Rs. 5000/- with effect from 1st January 1996 and thereafter it was revised from Rs. 5000 to Rs. 8000 vide order dated 24.11.2008. “10. 1620/- was revised to Rs. 5000/- with effect from 1st January 1996 and thereafter it was revised from Rs. 5000 to Rs. 8000 vide order dated 24.11.2008. “10. That the contents of para 9 and 10 of the petition are matters of record. As per the orders of the Hon'ble Court the respondent was required to grant the benefits of 5th and 6th pay commission recommendations to the petitioner. However (along with some other employees) the petitioner was already granted the benefits of 5th pay commission recommendations effective from 01.01.1996, vide office order dated 15.12.1997, when his basic pay was revised from Rs. 1620.00 to Rs. 5000.00. The true photocopy of the said office order dated 15.12.1997 under which the petitioner was granted the benefits of 5th Pay commission recommendations is annexed as Annexure 2 to this affidavit. Similarly the petitioner was already granted the benefits of 6th pay commission recommendations with effect from 01.01.2006, vide pay fixation order dated 24.11.2008, when his basic pay was revised from Rs. 5000-150-8000 to Rs. 9300-34800 + Rs. 4200 (G.P.). The pay fixation order granting the benefits of the 6th Pay commission recommendations to the petitioner is annexed as Annexure 3 to this affidavit." 6. The respondents' case in the counter affidavit of the contempt petition is that the direction as issued by the co-ordinate Bench of this Court in its judgement dated 8th September 2014, as a matter of fact the benefit of revision of scale as claimed by the petitioner, it already stood paid to the petitioner in view of the order dated 15th December 1997 and that was made payable to the petitioner with effect from 1996 and that was a fact which was mis-represented by the petitioner in the writ petition, concealing the fact that the revision of the pay scale was already paid and granted to him with effect from 01.01.1996 by an order dated 15.12.1997 as passed by the Officer Incharge (Admin. Section). 7. In order to answer the said stand taken by the respondent in their counter-affidavit, the petitioner has filed his rejoinder affidavit on 02.03.2020 and while answering to the contents of para 9 and 10 of the counter affidavit, the petitioner had not specifically denied the issuance of letter dated 15th December 1997, directing the recommendation of the 5th Pay Commission to be paid to him with effect from 1st January 1996. Paragraph 9 and 10 of the rejoinder affidavit are quoted hereunder: “9. That the contents of paragraph no. 9 of the counter affidavit are not correct. It is wrong to say that the petitioner was already getting the benefits of fifth & sixth pay commission reports way back effectively from 01.01.1996 and 01.01.2006 respectively along with other employee of the N.I.V.H. he concealed these facts from the Hon'ble Court in his writ petition as well as at the time of its disposal. The petitioner moved a application before the respondent on 03.05.2007 for revise the pay scale w.e.f. from 22.12.2004 and A.C.P as per the O.M. No. 3/2/94 dated 14.02.2007 published by the Government of India Department of Personal and Training. The respondent gave the benefits of the fifth pay commission on 15.12.1997 and sixth pay commission on 24.11.2008, but the pay scale of all the canteen staff has been revised by the respondent on 31.07.2003 w.e.f. 28.07.2003, but the scale of the petitioner not revised by the respondent, therefore petitioner filed the writ petition no. 454 of 2014 before this Hon'ble Court, which was allowed. 10. That in reply to the contents of paragraph no. 10 of the counter affidavit it is submitted that the respondent grant the benefits of fifth and sixth pay commission to the petitioner, but the respondent did not revise the scale of the petitioner w.e.f. 28.07.2003, while the respondent in accordance with Ministry of Social Justice & Empowerment letter no. 22-20/99-Nil dated 28.07.2003 revised the scale of the all the canteen staff. Since the Division bench of this Hon'ble Court vide judgment dated 01.08.2013 directed the respondent to grant the benefits of the fifth pay commission w.e.f. 28.07.2003 and the Single Judge of this Hon'ble Court relying upon the judgment passed by the Division bench of this Hon'ble Court allowed the writ petition of the petitioner directing the respondent to do needful in the matter within 10 weeks. It is further submitted that the respondent in the counter of the writ petition also took this plea before the Single Judge and the learned Single Judge after hearing the counsel of the petitioner and respondent passed the order dated 08.09.2014. It is further submitted that the respondent in the counter of the writ petition also took this plea before the Single Judge and the learned Single Judge after hearing the counsel of the petitioner and respondent passed the order dated 08.09.2014. Since the respondent vide order dated 31.07.2003 revised the scale of the all canteen staff w.e.f. 28.07.2003 and not revised the scale of the petitioner, therefore petitioner filed the writ petition before this Hon'ble Court and this Hon'ble Court allowed the aforesaid writ petition. It is further submitted the respondent also filed the review application to review the order dated 08.09.2014, but same was rejected. The order dated 08.09.2014 become final, therefore it is obligatory part of the respondent to comply the order dated 08.09.2014, but the respondent deliberately is not complying the order." 8. It is the equivalence, which has been sought by the petitioner though it runs contrary to his own interest for the reason being that the Division Bench's judgement dated 01.08.2013; when it had issued a direction in relation to the Ramesh Singh and others' case (supra) they were rather the incumbents who were actually working with the respondent, who were not paid the recommendation of 5th Pay Commission, as it has already been done in the case of the petitioner by an order dated 15th December 1997. Based on the directions issued by the Division Bench of this Court rather the appellants of the Special Appeal No. 265 of 2012, in fact had been remitted to the benefits of the recommendations of the 5th Pay Commission only with effect from 28th July 2003 only. Meaning thereby much subsequent to the grant of the benefit of the recommendation made of 5th Pay Commission, which rather in fact has been already paid to the petitioner which in his case happens to be with effect from 1st January 1996 and as such the case of the petitioner may not be placed at a common pedestal as that of Ramesh Singh's case because his case before the Division Bench was that he had been denied to be paid with the recommendation of 5th Pay Commission by the respondent which gave him the cause of action to file a writ, which is not the case in hand where the petitioner has already been paid with the revision of scale. 9. 9. But so far as the petitioner is concerned, since he was already paid the recommendation of 5th Pay Commission by an order dated 15th December 1997 w.e.f. 01.01.1996, he could not have claimed an equivalent benefit based on the judgement of the Division Bench of this Court dated 01.08.2013. 10. The learned counsel for the petitioner had made reference to the documents annexed by him in the writ petition that is yet another earlier judgement rendered by the another Division Bench of this Courts in Writ Petition No. 4756 of 2001, Subhash Chandra Binjola Vs. Director National Institute of Visually Handicapped, whereby the writ petition was disposed of for making the payment of recommendation of 5th Pay Commission. As far as the propriety of the said judgment is concerned, since it is not a subject matter of debate nor was a subject matter of consideration either in the writ petition of the petitioner which was disposed of on 8th September 2014 or before the Division Bench's judgement of Ramesh Singh's case dated 01.08.2013, which has been relied with by the petitioner for the purposes of claiming a parlance of the benefit of recommendation of 5th Pay Commission hence at this stage in the contempt jurisdiction making a reference of the judgement annexure 3 to the writ petition is of no avail for the purposes of adjudicating the present contempt petition, because it was never a consideration when the writ petition of the petitioner was decided on 08.09.2014, based on Division Bench judgment dated 01.08.2013. Thus judgment annexure 3 to the writ petition will be of no relevance for the contempt. 11. Similarly, yet another reference which has been made by the learned counsel for the respondent, where he make a reference to the office memorandum dated 31st July 2003 contending thereof that his name does not find reference therein and consequently it will amount to that the benefit of the recommendation of the 5th Pay Commission was not accepted for him. In response to it, the learned counsel for the petitioner argues that the said office memorandum, the grant of the benefit of ACP is only to those employees whose names are indicated in the said office memorandum. In response to it, the learned counsel for the petitioner argues that the said office memorandum, the grant of the benefit of ACP is only to those employees whose names are indicated in the said office memorandum. This Court is of the view that yet again the grant of benefit of ACP as given to those mentioned in office memorandum dated 31.07.2003, is not a subject to be considered in the contempt jurisdiction because it was not the basis of adjudication which was directed by the judgement of the co-ordinate Bench of this Court as decided on 8th September 2014, though it was claimed by the petitioner in the relief clause, hence that would not be attracted because settled law is the relief claimed in a petition, if its not granted at the stage of final adjudication it stands automatically claimed, hence, it cannot be solely claimed in the writ petition. 12. Further, in support of his contention, the learned counsel for the petitioner had made reference to a representation dated 31st May 2007 made by him wherein he has raised a claim for the grant of the benefit of the ACP, as well as that of recommendation of 5th and 6th Pay Commission which constituted to be the part of the writ petition. 13. Since, when despite of aforesaid records being placed in the writ petition when the adjudication was made by the co-ordinate Bench of this Court on 08.09.2014, it was confined from the viewpoint of the ratio propounded by the Division Bench of this Court on 01.08.2013 and based on its directions, since it was not referring to firstly, the consideration of the grant of ACP as claimed by the petitioner by addressing the Court on the basis of office memorandum dated 31st July 2003, this contempt Court is not required to venture into the said aspect, which was beyond the scope of the judgment dated 08.09.2014 or 01.08.2013. Secondly, the said office memorandum dated 31st July 2003, would not be of any relevance for deciding the contempt; for the reason being that the grant of benefit of ACP claimed in the writ petition did not find any consideration in the adjudication made on 8th September 2014, hence this Court is not supposed to venture into that aspect of the entitlement of the petitioner for the grant of the benefit of ACP, which was not an issue covered by the judgment sought to be enforced by the present contempt. Third reference made by the petitioner to the representation in the light of the observations made that the respondent to do the needful is yet again of no benefit for the reason being that though the representation constituted to be the part of the writ petition there was no such direction as such, which was issued by the co-ordinate Bench of this Court directing the respondent to decide the representation in the light of the judgement rendered by the Division Bench of this Court. 14. The Court is of the opinion that where the language used by the co-ordinate Bench of this Court in its judgement dated 8th September 2014, to do the needful would always relate back to the direction of remittance of the recommendation of the 5th Pay Commission based on the directions issued by the Division Bench of this Court in its judgement on which reliance was placed i.e. dated 1st August 2013. Doing the needful as directed therein would mean a positive step to be taken by the respondent for remitting the recommendation of the 5th Pay Commission only. It will not include or venture to decide the representation dated 3rd May 2007 which was not even intended by the judgment dated 8th September 2014, which has been sought to be complied with in the present contempt petition. 15. Hence, in view of the pleadings raised in the counter affidavit of the respondent particularly in para 10 and its response given by the petitioner in his para 9 and 10 to the rejoinder affidavit as a matter of fact the payment of the recommendation of 5th Pay Commission has already been given to the petitioner with effect from 1st January 1996. This Court is of the opinion that as of now, no contempt as such is surviving or shown to have been committed deliberately or intentionally by the respondents. Consequently, the contempt petition is hereby dismissed. The notices thus issued to the respondents are hereby discharged.