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KULDEEP SINGH & OTHERS V/S STATE OF J&K & OTHERS, decided on Tuesday, October 25, 2016.
[ In the High Court of Jammu and Kashmir, SWP No. 64 of 2008 & 2421 of 2012 & MP No. 01 of 2016. ] 25/10/2016
Judge(s) : ALOK ARADHE
Advocate(s) : Abhinav Sharama. R. Koul, , Rohit Kapoor, AAG.
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    1. In this writ petition under Article 226 of the Constitution of India read with Section 103 of the J&K State Constitution the petitioners who are Medical Assistants seek a direction to the respondents to accord them the benefit of SRO 81 dated 07.03.2006 retrospectively from the date of their initial appointments and not from the prospective date with all the consequential benefits. The petitioners have also prayed for applying the principle of 'reading down' SRO 81 dated 07.03.2006 and have prayed that the aforesaid SRO should be given effect from 30.03.1992 in order to avoid it being declared unconstitutional. In order to appreciate the petitioners' grievance few facts need mention which are stated infra.2. The petitioners were appointed as Medical Assistants in the year 1993 in the pay scale of Rs. 950-1500/- . It is pertinent to note that previously the post of Medical Assistant carried the pay scale of Rs. 900-1830/-. However by SRO 75 dated 30.03.1992 of the Jammu and Kashmir Civil Services (Revised Pay) Rules 1992 the existing pay scale of the post of Medical Assistant was upgraded to Rs. 1200-2040/-. However it was provided that fresh appointments shall be made in the pay scale of Rs. 950-1500/- and incumbents shall be paid pay scale of Rs. 1200-2040/- after putting in eight years of service in the pay scale of Rs. 950-1500/-. The relevant extract read as under:(b) Patwaries:All the Patwaries in the existing pay scale of Rs. 900-1830/- will be placed in the pay scale of Rs. 1200-2040/- Fresh appointments to the post of Patwaries will initially be made in the pay scale of Rs. 950-1500/- and they will be placed in the pay scale of Rs. 1200-2040/- after putting in eight years of service in the scale of Rs. 950-1500/-(c) Medical Assistants:The provisions of (b) above will apply in the case of Medical Assistants also mutandis.3. Thereafter vide SRO No. 18 dated 19.01.1998 of the Jammu and Kashmir Civil Servicers (Revised Pay) Rules 1998 which was made effective retrospectively with effect from 01.01.1996. Under the aforesaid rules the pay scale of Rs. 1200-2040/- was revised to Rs. 4000-6000/- and pay scale of Rs. 950-1500/- was revised to Rs. 3050-4910/- and Rule 15 of the Rules provided that all the Medical Assistants existing in the pay scale of Rs. 1200-2040 would be placed in the pay scale of Rs. 4000-6000/- and fresh appointments to the post of Medical Assistant shall be made in the pay scale of Rs. 3050-4910/- and they would be placed in the pay scale of Rs. 4000-6000/- after putting in eight years of service in the pay scale of Rs. 3050-4910/- The relevant extract of the Rule reads as under:(b) Patwaries:All the Patwaries in the existing pay scale of Rs. 1200-2040/- will be placed in the pay scale of Rs. 4000-6000/-. Fresh appointments to the post of Patwaries will initially be made in the pay scale of Rs. 3050-4590/- and they will be placed in the pay scale of Rs. 4000-6000/- after putting in eight years of service in the scale of Rs. 3050-4590/-(c) Medical Assistants:The provisions of (b) above will apply in the case of Medical Assistants also mutandis.4. On a representation being made by the Medical Assistants who were appointed after 30.03.1992 seeking release of the salary in the pay scale of Rs. 1200-2040/- with effect from the date of their initial appointments on the ground that the Medical Assistants appointed prior to 30.03.1992 were being paid salary in the higher pay scale the State Government issued SRO 81 dated 07.03.2006 by which a proviso was inserted after Rule 15 (c) of SRO 18 dated 19.01.1998 which reads as under:Provided that all the Medical Assistants (Pharmacist) carrying the revised pay scale of Rs. 3050-4910/- shall be w.e.f. 1st April 2005 placed in the pay scale of Rs. 4000-6000/-. Future recruitment to the post of Medical Assistant (Pharmacist) will be made in the pay scale of Rs. 4000-6000/-The petitioners were deprived of the benefit of SRO 81 dated 07.03.2006 and are getting lesser pay. In the aforesaid factual background the petitioners have approached this Court.5. Learned counsel for the petitioners submitted that the petitioners are carrying the same post and are performing the same duties yet they are being paid lesser pay. It is further submitted that the purpose of issuing of SRO 81 dated 07.03.2006 was to remove disparity between the Medical Assistants who stood appointed prior to 30.03.1992 and those who stood appointed after 30.03.1992 and placing them in the same pay scale. However the disparity was removed with effect from 01.04.2005 by placing all the Medical Assistants in the pay scale of Rs. 4000-6000/- instead of giving effect from 30.03.1992. It is also submitted that the by way of amendment in the SRO a class is created within class itself which is not permissible under Articles 14 & 16 of the Constitution of India. Lastly it is urged that SRO 81 dated 07.03.2006 be read down and disparity be removed by giving effect to the SRO with effect from 30.03.1992 instead of 01.04.2005 by applying the doctrine of ‘reading down’. In support of his submissions learned counsel for the petitioners has placed reliance on the decision of Hon'ble the Supreme Court in the case of State of Kerala and others vs. Unni and another. (2007) 2 SCC 365.6. On the other hand learned Additional Advocate General submitted that at the time of appointment of the petitioners a particular pay scale was prescribed for the post of Medical Assistant. The petitioners with their eyes wide open have accepted the post and pay scale and they are estopped from complaining now. It is further submitted that no relief can be granted to the petitioners as relief of quashment of proviso to Rule 15 (c) of SRO 81 dated 07.03.2006 has not been sought in the petition on the ground that the same is ultra vires. It is further submitted that the words to the proviso are clear and unambiguous therefore the doctrine of reading down cannot be applied to the fact situation of the case. In support of the aforesaid submissions reliance has been placed on the decisions of the Supreme Court in the case of Federal Steam Navigation Co. vs. Department of Trade and Industry (1974) 2 All E.R 97 100 Jit Ram Shiv Kumar vs. State of Haryana 1980 AIR 1985 Shri Gurbaksh Singh Sibbia etc vs. State of U.P. (1980) 3 SCR 383 and Delhi Transport Corporation vs. DTC Mazdoor Congresw (1991) AIR 101.7. I have considered the rival submissions made at the bar and have perused the record. The object and purpose of issuance of SRO 81 dated 07.03.2006 was to bring all the Medical Assistants at par i.e. in one pay scale. Admittedly all the Medical Assistants who were appointed prior to or after 01.4.2005 hold the same post and performing the same duties therefore they are entitled to the same salary and pay scale on the principle of equal pay for equal work. However the moot question which arises for consideration is whether any relief can be granted to the petitioners in absence of any challenge to proviso to Rule 15 (c) of SRO 81 dated 07.03.2006 on the ground that the same is ultra vires Articles 14 & 16 of the Constitution of India and whether relief as prayed for by the petitioners can be granted to them by applying the principle of reading down SRO 81 dated 07.03.2006.8. It is well settled rule of statutory interpretation that if on one construction a given statute will become ultra vires the power of legislature whereas on the another construction which may be open statute remains effective and operative the Court will prefer latter on the ground that legislature is presumed not to have intended and excess on its jurisdiction but the Rule applies only where two views are available as to the meaning of statutory language. The principle of reading down is the Rule of harmonious construction. (See Union of India vs. Elphinstone Spinning and Weaving Co. ltd. AIR 2001 SC 724 Utter Pradesh Power Corporation ltd. vs. Ayodhya Prasad Misra AIR 2009 SC 296 and M Rathinaswami vs. State of Tamil Nadu (2009) 5 SCC 625) (Also see principle of statutory interpretation by justice G. P. Singh 13th Edition).9. The principle of 'reading down' means that general words may be construed in a limited sense to avoid the statute becoming unconstitutional. So also words may be construed in a wider sense if narrower construction rendered the law unconstitutional and that result in avoiding the words giving a wider meaning. (See Express Newspaper limited vs. Union of India AIR 1985 SC 587).10. It is clear well settled law proposition that in the garb of reading down a provision it is not open to read words and expressions not found in the provision/statute and thus venture into a kind of judicial legislation. (See Union of India vs. Ind- Swift Laboratories ltd. (2011) 4 SCC 635). In the instant case opportunity to the learned counsel for the petitioners was granted on 28.09.2006 to seek relief in respect of SRO 81 dated 07.03.2006. However instead of seeking relief of quashment of proviso to Rule 15 (c) of aforesaid SRO as ultra vires the petitioners have sought relief of reading down the proviso. At the cost of repetition proviso to Rule 15 (c) is reproduced below:Provided that all the Medical Assistants (Pharmacist) carrying the revised pay scale of Rs. 3050-4910/- shall be w.e.f. 1st April 2005 placed in the pay scale of Rs. 4000-6000/-. Future recruitment to the post of Medical Assistant (Pharmacist) will be made in the pay scale of Rs. 4000-6000/-11. The words '1st April 2005' which are clear and unambiguous cannot be read as 30.03.1992. The proviso is not capable of two interpretations and in any uncertain terms it seeks to confer the benefit of revised pay scale of Rs. 3050-4910 with effect from 01.04.2005 therefore in the statutory opinion of this Court and in the fact situation of the case the principle of reading down cannot be made applicable to the instant case.12. So far as reliance placed by the learned counsel for the petitioners in the case of State of Kerala and others vs. Uni and ors (supra) it is pertinent to mention that in paragraph 44 of the aforesaid decision which has been relied upon by the learned counsel for the petitioners reads as under:Interpreting a rent control legislation Lahoti.J. (as His Lordship then was) in Rakesh Wadhawan vs. Jagdmba Industrial Corpon. Opined (SCC 455 para 19).19 There are two means of resolving the riddle firstly by placing such meaningful interpretation on the provision as would enable the legislative intention being effectuated; and secondly by devising such procedure without altering the structure as would enable the substantive law being meaningfully implemented. Let us see whether the expression assessed by the Controller qualifies only 'the cost of application' or qualifies the entire preceding expression i.e. arrears of rent and interest at six percent per annum on such arrears together with the cost of application 'as there is ambiguity and the provision is susceptible to two meaning the court should interpret it in the manner which will best serve the object sought to be achieved.13. Thus from the perusal of paragraph 44 of the aforesaid judgment it is evident that the provision in the aforesaid case was ambiguous and therefore doctrine of reading down was invoked. In the instant case there is no ambiguity therefore in absence of any challenge to the vires of proviso to Rule 15(c) of the SRO 81 no relief as prayed for by the petitioners can be granted. In this connection reference may be made to the decision of Hon'ble the Supreme Court in the case of Subramaniam Swamy vs. Election Commission of India (2008) 14 SCC 318. However taking into account the fact that the litigants should not suffer on the ground of inadvertence on the part of the counsel I deem it appropriate to grant liberty to the petitioners to approach this Court again by challenging the validity of the proviso to Rule 15(c) of SRO 81 dated 07.03.2006.14. With the aforesaid liberty the writ petition is disposed of.SWP No. 2421/2012In this writ petition under Article 226 of the Constitution of India read with Section 103 of the J&K State Constitution the petitioners who are Medical Assistants seek quashment of order dated 01.03.2011 by which an amount of Rs. 64 620/- is sought to be recovered from petitioner No. 3 on the ground that petitioner No. 3 is not entitled for in-situ promotion under SRO 14 of 1996. The petitioners have also prayed for quashment of recovery proceedings initiated against them as well as writ of prohibition restraining the respondents from making any recovery from the petitioners. The petitioners have also prayed for a direction to the respondents to accord them all the consequential benefits. The petitioners have also prayed for grant of pay scale of Rs. 4000-6000/- in favour of the petitioners with effect from their initial appointments as Medical Assistants. In order to appreciate the petitioners' grievance few facts need mention which are stated infra.2. The petitioners were appointed as Medical Assistants on 05.10.1993 05.10.1993 24.02.1994 and 17.01.1997 respectively in the pay scale of Rs. 950-1500/-. It is pertinent to note that previously the post of Medical Assistant carried the pay scale of Rs. 900-1830/-. However by SRO 75 dated 30.03.1992 of the Jammu and Kashmir Civil Services (Revised Pay) Rules 1992 the existing pay scale of the post of Medical Assistant was upgraded to Rs. 1200-2040/-. However it was provided that fresh appointments shall be made in the pay scale of Rs. 950-1500/- and incumbents shall be paid pay scale of Rs. 1200-2040/- after putting in eight years of service in the pay scale of Rs. 950-1500/-. The relevant extract read as under:(b) Patwaries:All the Patwaries in the existing pay scale of Rs. 900-1830/- will be placed in the pay scale of Rs. 1200-2040/- Fresh appointments to the post of Patwaries will initially be made in the pay scale of Rs. 950-1500/- and they will be placed in the pay scale of Rs. 1200-2040/- after putting in eight years of service in the scale of Rs. 950-1500/-(c) Medical Assistants:The provisions of (b) above will apply in the case of Medical Assistants also mutandis.3. Thereafter vide SRO No. 18 dated 19.01.1998 of the Jammu and Kashmir Civil Servicers (Revised Pay) Rules 1998 which was made effective retrospectively with effect from 01.01.1996. Under the aforesaid rules the pay scale of Rs. 1200-2040/- was revised to Rs. 4000-6000/- and pay scale of Rs. 950-1500/- was revised to Rs. 3050-4910/- and Rule 15 of the Rules provided that all the Medical Assistants existing in the pay scale of Rs. 1200-2040 would be placed in the pay scale of Rs. 4000-6000/- and fresh appointments to the post of Medical Assistant shall be made in the pay scale of Rs. 3050-4910/- and they would be placed in the pay scale of Rs. 4000-6000/- after putting in eight years of service in the pay scale of Rs. 3050-4910/- The relevant extract of the Rule reads as under:(b) Patwaries:All the Patwaries in the existing pay scale of Rs. 1200-2040/- will be placed in the pay scale of Rs. 4000-6000/- Fresh appointments to the post of Patwaries will initially be made in the pay scale of Rs. 3050-4590/- and they will be placed in the pay scale of Rs. 4000-6000/- after putting in eight years of service in the scale of Rs. 3050-4590/-(c) Medical Assistants:The provisions of (b) above will apply in the case of Medical Assistants also mutandis.4. On a representation being made by the Medical Assistants who were appointed after 30.03.1992 seeking release of salary in the pay scale of Rs. 1200-2040/- with effect from the date of their initial appointments on the ground that the Medical Assistants appointed prior to 30.03.1992 were being paid salary in the higher pay scale the State Government issued SRO 81 dated 07.03.2006 by which a proviso was inserted after Rule 15 (c) of SRO 18 dated 19.01.1998 which reads as under:Provided that all the Medical Assistant (Pharmacist) carrying the revised pay scale of Rs. 3050-4910/- shall be w.e.f. April 2005 placed in the pay scale of Rs. 4000-6000/-. Future recruitment to the post of Medical Assistant (Pharmacist) will be made in the pay scale of Rs. 4000-6000/-The petitioners were deprived of the benefit of SRO 81 dated 07.03.2006 and are getting lesser pay.5. Under the provisions of SRO 18 dated 19.01.1998 the petitioner Nos. 1 2 & 3 were entitled to pay scale of Rs. 4000-6000/- from 01.01.1996 and petitioner No. 4 from the date of his initial appointment. The petitioner No. 1 was placed in the pay scale of Rs. 4000-6000/- from his existing pay scale of Rs. 3050-4910/- with effect from the date the petitioner No. 1 completed 8 years regular service as he was not granted any promotion throughout his career. Similar benefits were granted to the petitioner Nos. 2 3 & 4. However by the impugned order recovery has been sought on the ground that the petitioners fall under a special category in terms of SRO 18. In the aforesaid factual background the petitioners have approached this Court.6. Learned counsel for the petitioners submitted that the petitioners have not been granted benefit of higher pay scale under any special provision but have been granted benefit of higher pay scale as the petitioners were not granted regular promotion. Therefore the impugned action of the respondents in seeking recovery of amount is patently arbitrary as the case of the petitioners is not covered under Rule 3 (ii) (g) of SRO 14 dated 15.01.1996.7. On the other hand learned counsel for the respondents submitted that in view of the Jammu and Kashmir Civil Service (Higher Standard Pay Scale Scheme) Rules 1996 and in particular Rule 3 (ii) (g) of the aforesaid Rules excess payment has been paid to the petitioners which is liable to be recovered.8. I have considered the submissions made by the learned counsel for the parties and have perused the record. For facility of reference Rule 3 (ii) (g) is reproduced as under:Such of the categories of posts/employees for which special treatment is expressly provided or may be provided under any law or Rule or notification or order for the time being in force.9. In the instant case petitioners have been granted benefit of higher pay scale under J&K Civil Services (Revised Rules) 1998 after completion of eight years service. Therefore the aforesaid benefit of higher pay scale has been granted to the petitioners on ground that they were not granted any promotion. In other words petitioners were not granted benefit under any special provision therefore Rule 3 (ii) (g) has no application to the fact situation of the case. Therefore the impugned action of respondents in seeking recovery in question from the petitioners in the eyes of law cannot be sustained. It is accordingly quashed. The respondents are directed to consider the in-situ promotion case of the petitioner in accordance with law within a period of two months from the date of receipt of a certified copy of order passed today. However for the reasons assigned in SWP No. 64/2008 benefit of SRO 81 dated 07.03.2006 cannot be granted to the petitioners as the petitioners have not challenged the vires of the same. Accordingly the writ petition is disposed of.