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CASE NO.: Appeal (civil)  4772 of 2006

PETITIONER: State of Haryana & Ors.                                          

RESPONDENT: M.P. Mohla                                                                 

DATE OF JUDGMENT: 10/11/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 12389 of 2004)  S.B. SINHA, J.

Leave granted.                  Respondent was appointed as veterinary surgeon in the cadre of  Haryana Veterinary Service (Grade \026 I) on or about 5.8.1965.  He was  promoted to the post of Assistant Director \026 cum \026 Sub-Divisional Officer  on 1.6.1980.  In the year, 1986, he was granted a pay scale of Rs. 2375- 3600.  The State, however, implemented grant of Selection Grade Scale in  the scale of Rs. 2000-3500 which was revised to Rs. 2200-4000 and  Selection Grade Scale of Rs. 4100-5300 to 20% of the posts of Veterinary  Surgeons who had completed 12 years of service.  He was placed in the said  pay scale by an order dated 20th September, 1993 with retrospective effect  from 1.4.1992.  In the meantime, however, an intermediary senior scale of  Rs. 3000-4500 was introduced which became applicable upon completion of  five years of regular service.  He became entitled thereto.  He was promoted  to the post of Deputy Director in the pay scale of Rs. 3000-4500.  On  9.4.1996 he was drawing Rs. 4500/- and Rs. 100/- for personal pay.   

       Haryana Civil Services (Revised Pay) Rules, 1998 (for short "the  Revised Rules") came into force on 7.1.1998 in terms whereof the pay scales  were revised.  In terms of the said Rules, the pay scales of the posts of  Deputy Director and Joint Director/ Project Director were said to have been  revised from Rs. 3000-4500 and Rs. 3000-5000 to Rs. 10000-13900 and Rs.  10000-15200 respectively.   

       Another rules known as Haryana Civil Services (Assured Career  Progression) Rules, 1998 (for short "the ACP Rules") came into force with  effect from 7.1.1998 in terms whereof the pay scales of Rs. 3000-4500 and  Rs. 4100-5300 were revised respectively to Rs. 10000-13900 and Rs. 12000- 375-16500 with effect from 1.1.1996.  In terms of ACP Rules, the pay of  Respondent was fixed at Rs. 12000-16500.  By a letter dated 15.4.1998,  Respondent asked for grant of a certificate of performance of higher  responsibility so as to enable him to claim the benefit of promotional  increments in the pay scale of Rs. 12000-16500.  Therein, he also cited the  instances of other persons who had been granted similar benefit.

       Pay of Respondent was fixed in the pay scale of Rs. 13500-17250 by  an order dated 12.10.1998.  A certificate of higher responsibility was also  issued to him pursuant whereto he claimed promotional increment in the  revised scale of Rs. 13500-17250.  The claim of Respondent was rejected by  an order dated 16.4.1999 stating:

"While inviting your attention on the subject cited  above, it is informed that you are already working  in the higher pay scale of Rs. 4100-5300 before

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your promotion.  Your pay, therefore, has been  correctly fixed under Clause 2 of Note 7 of Rule  15 of A.C.P. Rules, 1998.  The Govt. letter dated  7.3.88 is not applicable in respect of pay fixation  with effect from 1.1.1996."

       A writ petition was filed by Respondent claiming inter alia the  following reliefs:

"(i)    a writ in the nature of certiorari may kindly  be issued in favour of the petitioner and against the  respondents quashing the order dated 16.4.1999  (Annexure P/13) whereby claim of the petitioner  for fixation of his pay in the higher promotional  revised pay scale of Rs. 14300-400-18300 has  been rejected on a totally erroneous premise  ignoring the fact that the petitioner was already  drawing the Selection Grade of Rs. 4100-5300  with effect from 1.4.92 (Annexure P/2) and which  Selection Grade scale now has been revised to Rs.  13500-17250 with effect from 1.1.1996 and  consequently on his promotion to the next higher  post of Dy. Director w.e.f. 29.3.1996, the  petitioner is entitled to be placed in the next higher  revised pay scale i.e. of 14300-400-18300. (ii)    a writ in the nature of mandamus may kindly  be issued in favour of the petitioner and against the  respondents directing the respondents to fix the  pay of the petitioner in the revised pay scale of Rs.  14300-400-18300 from the date of his promotion  as Dy. Director, instead of fixing in the pay scale  of Rs. 13500-17250, i.e., the pay scale which the  petitioner would have continued to draw even  while working on the post of Assistant Director- cum-Sub Divisional Officer and alternatively the  respondents may be further directed to fix the pay  of the petitioner on the promotional post of Deputy  Director w.e.f. 9.4.1996 on the next stage in the  existing pay scale of Rs. 13500-17250 in  accordance with Rule 4.4 (c)(i) of CSR Vol. I and  to grant all other consequential benefits."

       By an order dated 4.12.2000, the said writ petition was allowed  directing:

"Accordingly we accept this writ petition and  quash the impugned order.  It is directed that the  petitioner would be promoted in the present  corresponding scale of Rs. 4100-5300 and on  promotion will be given one increment.  The  arrears should be paid within four months from  today.  We deem it necessary to observe that the  State should take necessary steps and remove the  said anomaly that might arise in case of many  other officers."

       A Special Leave Petition filed by Appellants thereagainst was  dismissed by this Court by an order dated 10.8.2001.  In the meanwhile  Respondent filed a Contempt Petition claiming a higher scale of pay  corresponding to Rs. 14300-18300 wherein Appellants filed their reply  stating that the order of the High Court had been complied with.  It is not in  dispute that the question as regards purported anomaly in the applicability of  the Revised Rules and the ACP Rules had not been determined by the court.

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       The said contention indisputably was raised by Appellants in the  special leave petition stating:

"Because the Respondent is not entitled to be fixed  in the corresponding pay scale of Rs. 4100-5300 as  contained in First Schedule, Part II, of H.C.S.  (Revised Pay Rules), 1998 by way of rule 2(h) and  the ACP Rules are applicable as contained under  Sr. No. 6 in Schedule 1, part 1 of H.C.s (Assured  Career Progression) Rules, 1998.  Therefore, the  order passed by High Court is in contravention of  H.C.S. (Revised Pay Rules), 1998 and also not in  accordance with H.C.s (A.C.P.) Rules 1968"

       It is not in dispute that in its counter-affidavit an admission was made  by Appellants stating:

"That this para is wrong and misleading.  The  Petitioner was working on the post of Deputy  Director in the pre-revised scale of Rs. 3000-4500  and selection grade of Rs. 4100-5300 and his pay  was protected in the scale of Rs. 4100-5300.  His  pay was fixed in the pre-revised scale of Rs. 3000- 4500 and his pay was protected in the scale of Rs.  4100-5300.  After granting new pay scales by the  govt. the pay of the Petitioner was re-fixed in the  scale of Rs. 13500-17250, for which he was  entitled.  The pay fixed by the respondent  department is in accordance with the revised pay  scale which is correct."

       A review application was filed before the High Court despite  dismissal of the special leave petition by this Court seeking purported  clarifications in the matter of the applicability of the Rules.  It was  contended that the purported admission made was on a wrong reading of the  provisions of the Rules.  It was further contended that Respondent is  governed by the ACP Rules and not the Revised Rules.   

       Respondent, on the other hand, contended that the ACP Rules has no  application as he had already been promoted twice prior to coming into force  thereof.   

       The said review application has been dismissed by reason of the  impugned order.   

       Before we embark upon the rival contentions of the parties, we may  notice that a Division Bench of the High Court passed the following order on  2.3.2004:

"The petitioner was in the scale of Rs. 4100-5300,  which was withdrawn vide order dated 4.12.2000,  the same was ordered to be restored, dispute arose  as to what is the corresponding scale to the said  scale in the light of 5th Pay Commission.

       Learned Counsel for the parties are not clear  as to what corresponding scale was being applied  prior to its withdrawal.  Stand of the Learned  Counsel for the state is that corresponding scale  should be Rs. 12000-16500/-, while according to  the petitioner corresponding scale should be Rs.  13500-17250/-.

       Since Writ Petition has been disposed of and

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this issue was not adjudicated upon, strictly  speaking the controversy raised cannot be the  subject matter of the Review Petition.  However,  this issue will be decided on the next date of  hearing."

       We may at this juncture also take note of a letter issued by the  Financial Commissioner and Secretary to the Government of Haryana,  Finance Department which is in the following terms:

"I am directed to invite your attention on the  subject noted above and to say that it has come to  the notice of the Finance Department that the  various departments are not allowing replacement  pay scales of Selection Grade (Pre-revised) as  prescribed under Ist Schedule Part \026 II of the  Haryana Civil Services (Revised Pay) Rules, 1998  issued vide Finance Department notification dated  7.1.1998.

       This matter has been examined by  Government in detail and have decided that  wherever Selection Grades were existing in the  pre-revised scales as a definite percentage of the  posts and after stipulated years of service, they  would carry the Selection Grade also in the revised  scales and the replacement of such Selection Grade  would be the replacement scale prescribed under  Ist Schedule Part \026 II of the Haryana Civil Services  (Revised Pay) Rules, 1998 if the same has not been  mentioned separately.  This would hold good in  case of all the concerned Government employees  for whom specific ACP scales have not been  provided."

       Contention of Mr. R. Srivastava, learned senior counsel appearing on  behalf of Appellants is that the High Court despite observing that the  question with regard to the applicability of the Rules as also the effect of the  purported admission made on behalf of application shall be examined,   failed to do so as would appear from the impugned order.

       In the functioning of the Executive Government mistake can always  take place and if a wrong rule is made to apply by reason thereof, the same  ordinarily should not only be allowed to be perpetrated as the same may   have a huge financial repercussion.  Ambiguity in the matter of applicability  of scale of pay, it was urged, should have been determined by the High  Court.

       Mr. Prabhjit Jauhar, learned counsel appearing on behalf of  Respondent, on the other hand, submitted that the ACP Rules which were  issued in 1998 with retrospective effect from 1996 have no application in the  instant case.  It was admitted that Respondent’s pay was fixed in the pay  scale of Rs. 13500 \026 17250 at the Directorate level and in that view of the  matter Appellants cannot be permitted to resile from the said admission.

       A judgment as is well-known must be read in its entirety.  The  judgment of a court must also be implemented.  But what would be the  effect of a judgment must be considered from the reliefs claimed in the writ  petition as also the implications thereof which has to be deciphered from  reading the entire judgment.  A judgment may also have to be read on the  touchstone of pleadings of the parties.

       In State of Karnataka and Others v. C. Lalitha [(2006) 2 SCC 747],  this Court observed:

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"A judgment, as is well known, is not to be read as  a statute. But, it is also well known that the  judgment must be construed as if it had been  rendered in accordance with law."

It was noticed:

"In Gajraj Singh v. State of U.P.6 this Court held:  (SCC p. 768, para 8) "A doubt arising from reading a judgment of  the Court can be resolved by assuming that  the judgment was delivered consistently  with the provisions of law and therefore a  course or procedure in departure from or not  in conformity with statutory provisions  cannot be said to have been intended or laid  down by the Court unless it has been so  stated specifically.""

       We, as at present advised, do not intend to go into the question as to  whether the Revised Pay Rules or the ACP Rules will apply in the case of  Respondent.  The dispute between the parties has to be decided in  accordance with law.  What, however, cannot be denied or disputed that a  dispute between the parties once adjudicated must reach its logical  conclusion.  If a specific question which was not raised and which had not  been decided by the High Court the same would not debar a party to agitate  the same at an appropriate stage, subject, of course, to the applicability of  principles of res judicata or constructive res judicata.

       It is also trite that if a subsequent cause of action had arisen in the  matter of implementation of a judgment a fresh writ petition may be filed, as  a fresh cause of action has arisen.

       In J.S. Parihar v. Ganpat Duggar and Others [(1996) 6 SCC 291], this  Court held:

"\005The question is whether seniority list is open to  review in the contempt proceedings to find out  whether it is in conformity with the directions  issued by the earlier Benches. It is seen that once  there is an order passed by the Government on the  basis of the directions issued by the court, there  arises a fresh cause of action to seek redressal in an  appropriate forum. The preparation of the seniority  list may be wrong or may be right or may or may  not be in conformity with the directions. But that  would be a fresh cause of action for the aggrieved  party to avail of the opportunity of judicial review.  But that cannot be considered to be the wilful  violation of the order. After re-exercising the  judicial review in contempt proceedings, a fresh  direction by the learned Single Judge cannot be  given to redraw the seniority list. In other words,  the learned Judge was exercising the jurisdiction to  consider the matter on merits in the contempt  proceedings. It would not be permissible under  Section 12 of the Act\005"           [See also State of Orissa & Anr. v. Aswini Kumar Baliarsingh, 2006  (7) SCALE 610]  

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       The law as regards the effect of an admission is also no longer res  integra.  Whereas a party may not be permitted to resile from his admission  at a subsequent stage of the same proceedings, it is also trite that an  admission made contrary to law shall not be binding on the State.

       Reliance has been placed on Sangramsinh P. Gaekwad and Others v.  Shantadevi P. Gaekwad (Dead) Through LRS. and Others [(2005) 11 SCC  314] but therein the court was considering the effect of an admission made  in the pleadings which was binding on the party proprio vigore in the  subsequent proceedings.

       A review petition filed by Appellants herein was not maintainable.   There was no error apparent on the face of the record.  The effect of a  judgment may have to be considered afresh in a separate proceeding having  regard to the subsequent cause of action which might have arisen but the  same by itself may not be a ground for filing an application for review.

       Mr. Srivastava submitted that an application for review in effect and  substance was an application for clarification of the judgment of the High  Court.  We do not think so.  An application for clarification cannot be taken  recourse to to achieve the result of a review application.  What cannot be  done directly, cannot be done indirectly.  [Ram Chandra Singh v. Savitri  Devi and Others, (2004) 12 SCC 713]

       If the ACP Rules were applicable in the case of Respondent, it was the  duty of Appellants to bring it to the notice of the High Court and ask for   adjudication on the said question.  But the effective order passed as against it  could not have been sought to be nullified by raising a question which had  not been raised in the writ petition.  There might not have been an  adjudication on a question which was relevant for determination of the issue  directly or indirectly but in a case of this nature such a contention could not  have been entertained in a review proceeding which would have the effect of  taking away the benefit granted by a court upon adjudication.

       It may not also be open to a party to the lis to ask for a clarification  contrary to or inconsistent with its stand taken by it in the writ proceedings.   Our attention has been drawn to a decision of this Court in Board of Control  for Cricket in India and Another v. Netaji Cricket Club and Others [(2005) 4  SCC 741] wherein this Court opined:

"It is also not correct to contend that the Court  while exercising its review jurisdiction in any  situation whatsoever cannot take into consideration  a subsequent event. In a case of this nature when  the Court accepts its own mistake in understanding  the nature and purport of the undertaking given by  the learned Senior Counsel appearing on behalf of  the Board and its correlation with as to what  transpired in the AGM of the Board held on 29-9- 2004, the subsequent event may be taken into  consideration by the Court for the purpose of  rectifying its own mistake."           Therein a review proceeding was entertained as the court accepted its  own mistake in understanding the nature and purport of the undertaking  given by the learned senior counsel appearing on behalf of the Board.  It was  in that context opined that the subsequent event may be taken into  consideration by the court for the purpose of rectifying its own mistake.   Subsequent event may have some relevance but the same must have a direct  nexus with the judgment sought to be reviewed.  It has been noticed  hereinbefore that before us an endeavour has been made to urge that the  review application was in effect and substance an application for  clarification.

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       In this case the purported subsequent event is the filing of the  contempt petition.  Appellants’ specific stand in the contempt petition is that  the order of the court stood complied with.  If the order of the court stood  complied with, there was no subsequent event which was necessary to be  taken into consideration.  Filing of an application under the provisions of the  Contempt of Courts Act, 1971 itself cannot be a ground to deny the benefit  under a judgment.  It is one thing to state that the judgment of the court has  been implemented, but it is another think that the effect of the judgment is  not that what was being contended by Respondent.  It is in that sense, this  Court times without number has laid down the law that such subsequent  events may give rise to a fresh cause of action.   

       Reliance has also been placed on a decision of this Court in National  Housing Coop. Society Ltd. v. State of Rajasthan and Others [(2005) 12  SCC 149] wherein following Kunhayammed and Others v. State of Kerala  and Another [(2000) 6 SCC 359] a Division Bench of this Court opined that  when a special leave petition is dismissed by a non-speaking order, the High  Court could be moved for a writ for review.   

       Submission of Mr. Jauhar, however, is that if a review petition is  permitted to be filed and allowed, the same would nullify the order of this  Court dismissing the special leave petition filed by Appellants.  This may be  so but we are of the opinion that keeping in view the facts and circumstances  of this case it is not necessary for us to make an endeavour to reopen a  binding precedent particularly when no such action arises therefor.   

       We, therefore, are of the opinion that this appeal has no merit and,  thus, must be dismissed accordingly.    However, the question as regards  applicability of one or the other Rules if arises in future, the same has to be  determined on its own merit in accordance with law and having regard to the  fact situation obtaining in each case.  In the facts and circumstances of this  case, there shall be no order as to costs.