Jammu & Kashmir High Court
Saif Din Age 60 Years Son Of Nawab ... vs Unknown on 19 October, 2023
Sr. No. 14
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
SWP No. 1957/2018
1 Saif Din age 60 years son of Nawab Din, ..... appellant/petitioner (s)
resident of Telli Basti, Bari Brahmana;
2.Karnail Singh age 71 years son of Jai Singh
resident of Gurha Salathia, Tehsil and
District Samba.
3.Prem Singh age 60 years son of Baj Singh
resident of House No. 38-E Lane No. 9 Shiv
Nagar Jammu
4. Nathu Ram age 60 years son of Krishan
Dutt resident of Sarwal
5. Khurshid Mohammad age 62 years son of
Sh. Sen Baksh resident of Katal Batal.
6. Yudhveer Singh age 70 years son of
Baskar Singh resident of Gurha Salathia
Tehsil Vijay pur Distrcit Samba
7. Om Parkash age 61 years son of Sh. Tara
Chand resident of Janipur Colony Jammu
Through :- Mr. G.S.Thakur Advocate.
1 High Court of Jammu and Kashmir th. .....Respondent(s)
Registrar General, Jammu
2.District Judge, Jammu
3.State of Jammu and Kashmir th.
Commissioner Secretary to Government
Department of Law, Civil Secretariat Jammu.
4.Accountant General, Jammu
Through :- Mr. Vastav Sharma Advocate
Mr. Virender Dev Singh Advocate
2
vice
Mrs Monika Kohli Sr. AAG
Mr. Vishal Sharma DSGI.
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT(ORAL)
(19.10.2023.)
Sanjeev Kumar J.
1 This is third round of litigation by the petitioners seeking a
direction to the respondents not to effect any recovery on account of the pay
drawn by them in the higher pay scale of Process Servers which was
erroneously granted to them by the High Court and later on withdrawn.
2 The petitioners have served Subordinate Judiciary as Process
Servers and have now retired from service on attaining superannuation. In the
year 1988, the petitioners through their Association projected their grievance
before the Government that they were being paid salary in the pay scale lower
than that granted to the Process Servers serving in the Excise Department of
the State. In short, the Association of Process Servers claimed before the
Government the benefit of higher pay scale on the principle of 'equal wages for
equal work'. The Government did not redress the grievance of the petitioners
and, accordingly, they filed SWP No. 1683/1992 seeking a direction to the
Accountant General of the State of Jammu and Kashmir to fix the pay scale of
process servers of Subordinate Judiciary on a par with the Process Servers of
the Excise Department w.e.f 01.01.1982. The writ petition was allowed by a
Single Judge of this Court vide order and judgment dated 30.08.1994. The
State of Jammu and Kashmir, as it then was, challenged the order of the
learned Single Judge in LPA No. 112/1994. The appeal preferred by the State
was also dismissed vide order dated 31.10.1996. The State did not relent and
preferred SLP before the Hon'ble Supreme Court. The SLP too was dismissed.
Even the review petition filed by State subsequent to the dismissal of the SLP
by the Hon'ble Supreme Court was also dismissed vide order dated
05.08.1998.
3 Having been left with no option, the State implemented the
judgment and issued Government Order No.194-LD(A) of 1999 dated
26.02.1999 whereby sanction was accorded to the placement of all the Process
Servers of the Subordinate Judiciary in the pay scale of Rs.950-1500 i.e the pay
scale which was granted to the Process Servers of the Excise Department w.e.f
the date of promulgation of the Jammu and Kashmir Pay Revision Rules,
1992. The petitioners along with other Process Servers got the benefit of higher
pay scale w.e.f 01.04.1990.
4 It seems that the High Court later on noticed that while
implementing the judgment dated 30.08.1994 passed in SWP No. 1683/1992, a
serious mistake had been committed. Accordingly, the High Court vide its
order dated 28.03.2005 cancelled the In-Situ promotion of the Process Servers
granted to them by virtue of Government order dated 26.02.1999 and took
away the benefit which had been granted to them on account of such wrong
promotion. The Principal District Judges were called upon to furnish a report
regarding quantum of amount, if any, drawn by the Process Servers working in
their jurisdiction in excess of their entitlement under pay fixation. They were
also called upon to recover the excess drawls after affording an opportunity of
being heard to the process Servers concerned. The compliance of directions
issued by the High Court by the Principal District Judges was pre-empted by
the petitioners by calling in question the order of the High Court dated
28.03.2005 in SWP No. 336/2005 which came to be disposed of by a Single
Bench of this Court vide order and judgment dated 09.10.2009. The plea of the
petitioners that no amount could be recovered from them after re-fixation of
their salary in terms of the High Court order was not accepted. However, a
direction was issued to the High Court to adjust the amount so paid erroneously
instead of recovering it. This judgment of the Writ Court dated 09.10.2009 was
called in question by the petitioners-Process Servers in LPA No. 238/2009
which came to be dismissed vide order dated 19.09.2013. The SLP filed by the
petitioners before the Supreme Court also failed. Even the review petition filed
before the Hon'ble Supreme Court for recalling the order passed in the SLP
met the same fate.
5 Indisputably, the judgment passed by a learned Single Judge dated
09.10.2009 has attained finality.
6 It seems that the petitioners once again approached this Court
through the medium of SWP No. 348/2018 in a bid to stall the implementation
of the judgment passed by a Single Judge of this Court in SWP No. 336/2005.
In the petition, the petitioners contended that they had moved a representation
dated 05.06.2017 before the High Court which was not being decided by the
High Court. The petitioners, therefore, invoked the writ jurisdiction of this
Court to seek a direction to the High Court to consider and dispose of their
representation. The writ petition was, accordingly, disposed of by a Division
Bench of this Court vide order dated 19.07.2018 directing the respondent-High
Court to consider and decide the representation of the petitioners having regard
to the averments made in the writ petition and the judgments, if any, relied
upon. It is in compliance with the judgment dated 19.07.2018, the matter was
considered and one of the petitioners was intimated that the representation
which was filed by them on 05.06.2017 stood already decided vide
endorsement dated 15.11.2017 of the Hon'ble Chief Justice and that the
directions of the High Court have already been complied with. It was also
made known to one of the petitioners that the result of the representation had
already been conveyed to Ex-President, J&K Subordinate Judicial Process
Servers Welfare Association, Srinagar vide communication dated 18.11.2017.
The petitioners were also advised to seek review of judgment passed in SWP
No. 336/2005 in accordance with law. It is this representation read with
communication of the Deputy Registrar (Administration), High Court of
Jammu and Kashmir dated 18.11.2017 as also the consequential recovery
notices issued by the office of Accountant General which are called in question
by the petitioners in this petition.
7 Mr. G.S. Thakur, learned counsel appearing for the petitioners
submits that by way of representation made by the petitioners subsequent to the
judgment of the learned Single Bench dated 09.10.2009 attaining finality, the
petitioners had prayed before the High Court to review its decision of recovery
and adjustment of the salary drawn by the petitioners erroneously on the
ground that the legal position expounded by the Hon'ble Supreme Court in
similar cases was supportive of the view that the recovery of the arrears of
salary drawn by employees erroneously during their service career could not
be later on withdrawn particularly after their superannuation. He submits that
such directions have been made by the Hon'ble Supreme Court in relation to
the employees belonging to the lower rungs of the service. He submits that the
High Court while adverting to the representation made by the petitioners did
not advert to the legal position and erroneously refused to withdraw the order
whereby the Principal District Judges had been called upon to make recoveries
which were later on converted to 'adjustments' on the intervention of this
Court.
8 Having heard learned counsel for the parties and perused the
material on record, the only question that arises for consideration, in the given
facts and circumstances of the case, is whether the concluded judgment of this
Court can be reopened on the ground that the earlier judgment passed by the
Court had not taken note of the correct legal position enunciated by the
Supreme Court in various judgments rendered under similar set of
circumstances.
9 We are afraid that such question which has somehow arisen for
determination in this petition needs any in-depth scrutiny.
10 Indisputably, the judgment passed by a learned Single Bench of
this Court directing the respondents to adjust the arrears instead of recovering
them, has attained finality. The appeal preferred against the judgment before
the Division Bench of this Court, the SLP and, thereafter, review before the
Hon'ble Supreme Court stand already dismissed. The judgment of the Single
Bench, which has attained finality, has to be given effect to and the same
cannot be sought to be reviewed, recalled, modified or altered by filing a fresh
writ petition on the ground that there is a change of law subsequent to passing
of the judgment or that the law as was obtaining on the date of passing of the
judgment was not considered by the Single Bench disposing of the petition. If,
as is contended by learned counsel for the petitioners, the writ petition of the
petitioners i.e SWP No.336/2005 was not correctly decided by the learned
Single judge, the aggrieved petitioners had remedy of challenging the same
before the Division Bench. Not only did they avail the remedy of appeal, but
they even took the matter to the Supreme Court.
11 There is no dispute with regard to the fact that the LPA, SLP and
subsequently the review petition filed before the Hon'ble Supreme Court have
been dismissed. A final judgment by a Single Bench which has attained
finality cannot be sought to be reopened, recalled, modified or altered by filing
a fresh writ petition. As a matter of fact, the writ petition i.e SWP No.
348/2018 was itself grossly misconceived. However, the Court, having regard
to the prayer made by the petitioners that their representation is pending before
the High Court, disposed of the same by calling upon the respondent-High
Court to consider and dispose of the representation, if any, pending before it.
The direction by a Division Bench of this Court to the High Court to dispose of
the representation cannot be construed to mean that respondent High Court was
under an obligation to consider the representation and dispose of the same
acting contrary to and in violation of the final judgment of this Court.
12 For the foregoing reasons, we find this petition utterly
misconceived. We were inclined to dismiss this petition by imposing a very
heavy costs, but having regard to the fact that the petitioners before us are
class-IV employees and have since retired on superannuation, we refrain from
doing so. The petition is, accordingly, dismissed. Parties to bear their own
costs.
(MOHAN LAL) (SANJEEV KUMAR)
JUDGE JUDGE
Jammu
19.10.2023
Sanjeev
Whether order is reportable:Yes/No
