1996 JTR(SC) 1089
1996 74 FLR 2346 ; 1996 7 JT 353 ; 1996 4 RSJ 106 ; 1996 5 Scale 785 ; 1996 10 SCC 166 ; 1996 SCC(L&S) 1381 ; 1996 Supp3 SCR 771 ; 1996 4 SCT 329 ; 1996 3 SLJ 97 ; 1996 5 SLR 633 ; 1996 2 UJ 561 ; 1997 1 UPLBEC 379 ; 1996 KHC 1671 ; 1996 6 Supreme 604
1996(6) Supreme 604
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ.
Shish Ram & Ors. -Appellants
versus
State of Himachal Pradesh & Ors. -Respondents
Civil Appeal No. 9853 of 1996
(Arising out of SLP (C) No. 15196 of 1993)
Decided on 19-7-1996
Counsel for the Parties :
For the Appellants : H.S. Gururaja Rao, Sr. Advocate, Devendra Singh and Ms. Deeva Singh, Advocates.
For the Respondent : K.R. Nagaraja, Advocate.
For the respondent : Om Parkash Vashisht (In-Person)
For the Respondent Nos. 1-2 : J.S. Attri, Advocate.
Act Referred :CONSTITUTION OF INDIA : Art.309
A) The provisions of Article 309 of the Constitution, read with its proviso, empower the State to make statutory rules regulating the recruitment, conditions of service, and promotion of public servants. The statutory rules framed under this article have overriding effect over executive instructions, and any inconsistencies between executive directives and statutory rules must yield to the latter, ensuring that the legislative framework governs service-related benefits and eligibility. In this matter, the statutory rules made under Article 309 prescribed enhanced pay scales and created direct promotional avenues for certain cadres, thereby shaping the seniority matrix for advancement to higher posts such as Gazetted Class II.
B) Key legal principles include that statutory rules under Article 309 prevail over inconsistent executive orders, pay scales directly impact seniority and eligibility for promotion, and the creation of separate cadres requires like-within-like treatment for promotions; a statutory scheme cannot be overridden by prior administrative instructions.
Facts of the case:
The appellants served as Head Clerks and the respondents as Accountants. Initially, the respondents drew a higher pay scale than the appellants. Subsequent statutory revisions under Article 309 upgraded the appellants pay scale beyond that of the respondents and rendered them eligible for promotion to Gazetted Class II, while the respondents remained in a distinct cadre without access to such promotion. The respondents sought promotion and restoration of seniority, which was directed by the tribunal, prompting this appeal.
Findings of Court:
The court found that the statutory rules framed under Article 309 resulted in a higher pay scale for the appellants and created separate, non-fusible cadres. It held that the respondents could not be treated as seniors to the appellants for promotion to Gazetted Class II, as the statutory scheme did not include Accountants as a feeder post and the executive instructions had to give way to the statutory framework.
Issues:
Whether respondents in a distinct cadre can claim seniority and promotion over appellants on the basis of prior pay parity when statutory rules redefine pay scales and promotional eligibility; whether executive instructions can override statutory rules under Article 309; and whether the tribunal correctly directed promotion based on perceived seniority.
Ratio Decidendi:
Where statutory rules under Article 309 establish a revised pay structure and define separate cadres for promotion, those rules prevail, and eligibility for promotion must be determined strictly in accordance with the statutory scheme, not on prior pay scales or executive directions; accordingly, cross-cadre seniority claims are not sustainable.
Result:
The appeal is allowed and the impugned tribunal direction is set aside; no costs are awarded.
A) The provisions of Article 309 of the Constitution, read with its proviso, empower the State to make statutory rules regulating the recruitment, conditions of service, and promotion of public servants. The statutory rules framed under this article have overriding effect over executive instructions, and any inconsistencies between executive directives and statutory rules must yield to the latter, ensuring that the legislative framework governs service-related benefits and eligibility. In this matter, the statutory rules made under Article 309 prescribed enhanced pay scales and created direct promotional avenues for certain cadres, thereby shaping the seniority matrix for advancement to higher posts such as Gazetted Class II.
B) Key legal principles include that statutory rules under Article 309 prevail over inconsistent executive orders, pay scales directly impact seniority and eligibility for promotion, and the creation of separate cadres requires like-within-like treatment for promotions; a statutory scheme cannot be overridden by prior administrative instructions.
Facts of the case:
The appellants served as Head Clerks and the respondents as Accountants. Initially, the respondents drew a higher pay scale than the appellants. Subsequent statutory revisions under Article 309 upgraded the appellants pay scale beyond that of the respondents and rendered them eligible for promotion to Gazetted Class II, while the respondents remained in a distinct cadre without access to such promotion. The respondents sought promotion and restoration of seniority, which was directed by the tribunal, prompting this appeal.
Findings of Court:
The court found that the statutory rules framed under Article 309 resulted in a higher pay scale for the appellants and created separate, non-fusible cadres. It held that the respondents could not be treated as seniors to the appellants for promotion to Gazetted Class II, as the statutory scheme did not include Accountants as a feeder post and the executive instructions had to give way to the statutory framework.
Issues:
Whether respondents in a distinct cadre can claim seniority and promotion over appellants on the basis of prior pay parity when statutory rules redefine pay scales and promotional eligibility; whether executive instructions can override statutory rules under Article 309; and whether the tribunal correctly directed promotion based on perceived seniority.
Ratio Decidendi:
Where statutory rules under Article 309 establish a revised pay structure and define separate cadres for promotion, those rules prevail, and eligibility for promotion must be determined strictly in accordance with the statutory scheme, not on prior pay scales or executive directions; accordingly, cross-cadre seniority claims are not sustainable.
Result:
The appeal is allowed and the impugned tribunal direction is set aside; no costs are awarded.
ORDER
Leave granted.
We have heard learned counsel on both sides and also respondent No. 8 in person.
2. The undisputed facts are that while the appellants were working as Head Clerks and respondent Nos. 3 and 4, Gulzari Ram and Ram Lal were working as Accountants, the scale of pay of the Head Clerks was 160-400 while that of the Accountants was 160-450. Later by executive order dated November 11, 1976 the Government had created 10 temporary posts of Assistants and upgraded them to the scale of Rs. 225-500 and some senior candidates came to be appointed to those posts. Subsequently, statutory rules under proviso to Article 309 of the Constitution came to be made, increasing the number of posts and scale of pay of all the Head Clerks, Assistants, Stenographers etc. to Rs. 225-500. By proceedings of the Government dated November 2, 1979 with effect from January 1, 1978, promotions of Accountants and Head Clerks were fused together, Pay of Assistants, Head Assistants etc. was revised to Rs. 620-1200/-, while that of the Junior Auditors and Accountants was revised to Rs. 570-1080/-. Similarly, for the promotion of the Accountants and Head Clerks statutory rules came to be made under proviso to Article 309 of the Constitution which came into force from June 13, 1978 enabling the Accountants and Head Clerks to be eligible for promotion as Superintendents. The Government have created promotional avenues to the posts of gazetted class II and the Head Clerks, Assistant Superintendents were made eligible for promotion to the said posts of Gazetted Grade II in the scale of Rs. 500-900/-. The Accountants were not included therein. The respondents 3 and 4 filed representations claiming promotion to these posts but their claims were rejected. When they filed the writ petition in the High Court, Shimla which was transferred to the Administrative Tribunal, which by the impugned in T.A. No. 90/87, dated May 25, 1993 directed the Government to consider their claims with effect from 1977 and also their entitlement for promotion as Gazetted Class II. Calling those directions in question, the above appeal has come to be filed.
3. Shri Gururaja Rao, learned senior counsel for the appellants, contended that though respondent Nos. 3 and 4 were initially drawing higher scale of pay of Rs. 160-450 and the appellants as Head Clerks were drawing pay scale of Rs. 160-400/-, by statutory orders their scale of pay was increased to Rs. 225-500/- and later to Rs. 620-1200/- and thereby the appellants scaled a march over the respondents whose scale of pay remained constant at Rs.160-450/- which was increased to Rs. 570-1080/- as referred to hereinbefore. As a consequence, they cannot be made senior to the appellants. Shri K.R. Nagaraja, learned counsel appearing for the respondents contended that they were recruited initially as clerks in November 1960 and May 1962; they were promoted as Junior Accountants in 1964-65 and they were further promoted as Accountants in April 1973 and July 1973. They always were treated to be seniors to the appellants who joined the service subsequent to their entry into the initial service. As per the executive instructions issued by the Government, a note was appended under which it was stated that when combined seniority for the purpose of promotion to the Supreintendents was to be maintained from amongst the Assistants, Head Clerks, Stenographers and Accountants, the direction was to keep the Accountants en block seniors to all others. In other words, he contends that they were drawing higher scale of pay and they were treated seniors to the appellants and others; as a consequence, when the revised rules came to be made under the fortuitous circumstances, their scale of pay was not to be on par with the appellants and they cannot be denied of their ligitimate right to promotion to the post of gazetted class II.
4. Having given our anxious consideration to the respective contentions, we think that the case of the appellants is founded on a sounder footing than that of the respondents. It is true that the respondents were drawing higher pay-scale than that of the appellants at the initial stage. But, later, when the statutory rules came to be made, there was a jump in the scale of pay of the appellants from Rs. 160-400/- to Rs. 225-500/- while the scale of pay of the respondents remained stagnant at Rs. 160-400/-. Even in the subsequent revision in the ministerial cadre, the appellants scale of pay was higher than that of the respondents. They were treated two separate entities as indicated earlier. When the statutory rules came to be made increasing their scale of pay and making them eligible for promotion directly to the post of gazetted cadre class II from Assistants, Head Accountants, Stenographers etc. to a pay-scale of Rs. 500-900/-, it would be obvious that the executive instructions issued earlier had to yield place to the statutory rules made under proviso to Article 309. It is equally true that in the subsequent rules made on June 13, 1978 under proviso to Article 309 of the Constitution fusing Accountants and Head Clerks as eligible for promotion to the post of Superintendent, it would be obvious that in view of the fact that higher scale of pay was given to the Assistants, Head Clerks in the scale of pay of Rs. 620-1200/- which that of the respondents remained to be Rs. 570-1080/-, by necessary implication they cannot be treated to be of the same class for the purpose of enabling them to seek promotion to the post of Gazetted Class II. Moreover, the statutory rules do not include Accountants as a feeder post for promotion as Gazetted Class II. Considered from these perspectives, we are of the view that the Tribunal was in clear error in directing the Government to consider Respondent Nos. 3 and 4 as senior to the appellants and in giving promotion over the appellants.
5. The appeal is accordingly allowed and the I.A. of the respondents stands dismissed. No costs.
Appeal accordingly allowed.
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