The State Of Jharkhand Through The ... vs Prem Kumar Dubey
2021 Latest Caselaw 3745 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
             L.P.A. No. 362 of 2019
                   with
             I.A. No. 6213 of 2020
                   with
             I.A. No. 6214 of 2020

                     ------

1. The State of Jharkhand through the Establishment Deputy Collector, Dumka at P.O. + P.S. Dumka, District-Dumka (Jharkhand)

2. The Special Secretary, Department of Finance, Jharkhand at Ranchi.

3. The Deputy Commissioner, Dumka.

4. The Establishment Deputy Collector at Dumka

5. The District Accounts Officer, Dumka .................. Appellants Versus Prem Kumar Dubey, S/o of Shri Naresh Prasad Dubey, R/o Shiv Pahar, P.O. + P.S. Dumka, District-Dumka ......... Respondent

------

CORAM:             HON'BLE THE CHIEF JUSTICE
         HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                       ------

For the Appellants: Mr. Ashok Kumar Yadav, G.A.-I

------

Oral Judgment 07 / Dated : 01.10.2021

1. Matter has been heard through video conferencing mode and

there is no complaint whatsoever regarding audio and/or video quality.

I.A. No. 6213 of 2020

2. This Interlocutory Application has been filed for condoning the

delay of 381 days, which has occurred in preferring the present appeal.

3. Having heard learned counsel for the appellants and on perusal

of the averments made in the application, we are of the view that the

L.P.A. No. 362 of 2019

appellants were prevented by sufficient cause from preferring the

appeal within the period of limitation.

4. Accordingly, this Interlocutory Application is allowed and

delay of 381 days in preferring the appeal is condoned.

L.P.A. No. 362 of 2019

5. The instant intra-court appeal under Clause 10 of the Letters

Patent is directed against the order/judgment dated 28.03.2018 passed

by the learned Single Judge of this Court in W.P.(S) No.614 of 2009,

by which, the decision of the authority as contained in letter dated

12.11.2007, pertaining to withdrawal and recovery of one increment

from the salary of the petitioner has been quashed.

6. The brief facts of the case, as per the pleadings made in the

writ petition, which are required to be enumerated read hereunder as:-

The writ petitioner while posted as Assistant at District

Development Office, Dumka on 22.10.1995, has got done his

sterilization/'Nasbandi'. The Deputy Commissioner, Dumka vide

order dated 31.01.1996 granted the incentive as per the Rule

formulated in the year, 1977 known as "the Bihar Government Servant

(Family Planning), Rule 1977" (hereinafter referred to as 'the Rule

1977') under Article 309 of the Constitution of India for giving

incentive to those employees under the Unified State of Bihar for the

employees under 40 years of age those who have got two children for

sterilization/'Nasbandi', himself or wife, one advance annual

increment in a salary would be given. The salary of the petitioner, in

view of such decision, was increased with special increment as

incentive as per Annexure-2 to the writ petition. Subsequently, vide

L.P.A. No. 362 of 2019

letter dated 03.10.2002, issued by the Finance Department of the State

of Jharkhand, envisaged for modification of the provision of Family

Planning from 01.01.1996 and the State employees, as per the new

Scheme, will be given Family Planning Allowance, which would be

equivalent to one yearly increment and it will remain static in the

entire service. However, in earlier provision under the Rule, 1977, an

employee under 40 years of age and having two children were given

one advance annual increment in his salary which has to be merged in

the salary and the Dearness Allowance is to be given on the basis of

the aforesaid salary. The Establishment Deputy Collector issued an

order on 12.11.2007, stating therein, that due to letter of the Finance

Department, dated 03.10.2002, extra increment of salary given to the

writ petitioner is recoverable and accordingly, a direction was issued

for reducing the salary vide order dated 12.11.2007.

The writ petitioner being aggrieved with such decision has

objected to the same by submitting a detailed representation having no

effect compelled the writ petitioner to approach this Court under

Article 226 of the Constitution of India for quashing of the order dated

12.11.2007. The writ court after hearing the parties has interfered with

the aforesaid decision and quashed it by allowing the writ petition

which is the subject matter of the present intra-court appeal.

7. Mr. Ashok Kumar Yadav, learned G.A.-I appearing for the

appellants-State of Jharkhand has assailed the order passed by the

learned Single Judge on the ground that the writ petitioner had got

operated Family Planning on 22.10.1995 and as per the letter dated

31.01.1996 issued by the Deputy Commissioner, Dumka an additional

L.P.A. No. 362 of 2019

increment was sanctioned to the writ petitioner with effect from

20.02.1996. His normal date of increment in the pay-scale of Rs.1400-

40-1800-50-2300/- was due on 22.02.1996 and this increment was

sanctioned to him as per the Government letter dated 26.11.1990,

issued by the Personnel and Administrative Reform Department,

unified State of Bihar, Patna. Later on, as per letter dated 03.10.2002,

the previous letter, issued in this regard, was modified and an

Incentive Allowance was introduced in place of additional increment

with effect from 01.01.1996 on account of Family Planning done by

the Government servant.

It is the further plea of the State of Jharkhand that as per the

last paragraph no. 11 of the Government letter dated 03.10.2002, it has

been decided that any additional increment sanctioned in view of the

old circular, the same should be modified and accordingly, the

previous order contained in memo dated 31.01.1996 was modified

vide order dated 12.11.2007 by which the writ petitioner has been

allowed Incentive Allowance in place of additional increment but

without appreciating the aforesaid aspect of the matter the learned

Single Judge has interfered with the impugned decision of the

authority and therefore, the impugned order is required to be interfered

with.

8. We have heard learned counsel for the appellants-State,

perused the documents available on record as also the findings

recorded by the learned Single Judge.

L.P.A. No. 362 of 2019

9. Before proceeding to examine the legality and propriety of the

impugned order, we deem it fit and proper to refer certain admitted

facts which is important for determination of the lis.

The unified State of Bihar has come out with a Rule in

exercise of power conferred under proviso to Article 309 of the

Constitution of India to be known as the Bihar Government Servant

(Family Planning) Rule, 1977. The aforesaid Rule has been enacted

for the purpose of giving incentive to such public servant working

under the State Government who have got two children for

sterilization/'Nasbandi', himself or wife, by giving one advance

annual increment to be merged with the salary upon which the

Dearness Allowance would be admissible.

The writ petitioner was working as Assistant at District

Development Office, Dumka. He got his sterilization/'Nasbandi' on

22.10.1995. He made a claim for admissibility of one advance annual

increment in pursuance to the provision of the Rule, 1977. The Deputy

Commissioner, Dumka vide order dated 31.01.1996 granted one

advance annual increment and as per the provision of the Rule, 1977

the same has been merged with the salary and thereafter, he has started

getting Dearness Allowance over the same. After coming into effect of

the State Reorganization Act, the successor State of Jharkhand has

come out with a decision on 03.10.2002 issued by the Finance

Department for modification of the provision of Family Planning with

effect from 01.01.1996 and as per the new scheme there will be no

provision to grant one advance annual increment rather it has been

L.P.A. No. 362 of 2019

decided to be provided the benefit by way of Family Planning

Allowance.

The State authorities, thereafter, again reconsidered the case of

the writ petitioner in light of the decision as contained in letter dated

03.10.2002 and reduced the salary vide decision dated 12.11.2007

with a further direction for making recovery from the salary of the

writ petitioner. The writ petitioner objected to such decision by filing

detailed representation but no decision has been taken and as such, the

writ petition has been filed before this Court invoking the

extraordinary jurisdiction conferred to this Court under Article 226 of

the Constitution of India wherein, the learned Single Judge has

interfered with the impugned decision dated 12.11.2007 and quashed

it against which the instant intra-court appeal has been preferred.

10. The issue which has been raised by the learned counsel

appearing for the appellants-State of Jharkhand that in view of the

scheme dated 03.10.2002 a decision has been taken by withdrawing

the benefit which has been extended in favour of the writ petitioner by

granting one advance annual increment merging it with the salary of

the writ petitioner by replacing it as the Family Planning Allowance.

According to the learned counsel appearing for the appellants that

after coming into effect of the new scheme vide letter dated

03.10.2002 the case of the writ petitioner was reconsidered and as per

the terms and conditions of the aforesaid letter dated 03.10.2002 as in

paragraph no. 11 a decision has been taken for withdrawal of such

benefit which has been granted in favour of the writ petitioner by

virtue of the provision of the Rule, 1977.

L.P.A. No. 362 of 2019

11. Therefore, this Court is to consider the applicability of the

letter dated 03.10.2002 vis-à-vis the provision of the Rule, 1977 on the

basis of date of sterilization/'Nasbandi' which was admittedly on

22.10.1995 and was prior to 03.10.2002 applying it w.e.f. 01.01.1996.

There is no dispute in admitted position of law that any executive

instruction or circular cannot be given its retrospective effect. We have

examined the so called decision as contained under letter dated

03.10.2002 which is not an executive instruction said to have been

taken by the State Government in exercise of power conferred under

Article 162 of the Constitution of India rather it is a decision of the

authorities of the State Government which is under the signature of the

Special Secretary, Department of Finance. We are holding letter dated

03.10.2002 not to be an executive instruction of the State as because

in view of the provision of Article 162 of the Constitution of India any

decision will be treated to be an executive instruction if taken by the

State Government under the seal and signature of the Governor of the

State after its approval by the Cabinet but herein the decision of the

State authority as contained in letter dated 03.10.2002 cannot be

construed to be an executive instruction of State. But even accepting

letter dated 03.10.2002 to be an executive instruction then also it

cannot be given retrospective application as because any statute is to

be made effective with retrospective effect by the legislature and not

by the executive authority as because it is contrary to sound principles

of legislation, since citizens whose acts and rights are regulated by

laws, should not be mulcted or affected for acting and conducting

themselves in consonance with their existing law by enacting

L.P.A. No. 362 of 2019

retrospective legislature, Philips V. Eyre (1870) 40 LJQB.28. It is for

this reason that unless that sovereign legislative body or the

paramount instrument, i.e., the Constitution has conferred a power to

give retrospective effect, to rules or orders, effect cannot be given for

their retroactive operation.

12. The Hon'ble Apex Court in Hukam Chand Vs Union of

India [AIR 1972 SC 2427] at paragraph-8 has held as under:

"8. In the case of Cannanore Spinning and Weaving Mills Ltd. v. Collector of Customs and Central Excise, Cochin this Court dealt with an explanation which had been added by the Central Government in purported exercise of the power vested under the Central Excises and Salt Act, 1944. Question arose whether the explanation had a retrospective effect. The Court referred in the context to the rule making power of the Central Government under the aforesaid Act and observed:

"Dr Seiyed Muhammad, learned Counsel for the department did not support the impugned demand on the basis of the retrospective effect purported to have been given to the explanation referred to earlier by the notification dated February 16, 1963, (Exh. P-12) for obvious reasons. The rule making authority had not been vested with the power under the Central Excises and Salt Act to make rules with retrospective effect. Therefore the retrospective effect purported to be given under Exh. P-12 was beyond the powers of the rule-making authority."

13. The Hon'ble Apex Court in Federation of Indian Mineral

Industries & Ors Vs Union of India & Anr [(2017) 16 SCC 186]

has held that the power of subordinate legislation has no retrospective

effect unless the parent statute expressly or by necessary implication

authorises it to do so. The Hon'ble Court has observed at para-26 as

under:

L.P.A. No. 362 of 2019

26. The power to give retrospective effect to subordinate legislation whether in the form of rules or regulations or notifications has been the subject-matter of discussion in several decisions rendered by this Court and it is not necessary to deal with all of them--indeed it may not even be possible to do so. It would suffice if the principles laid down by some of these decisions cited before us and relevant to our discussion are culled out. These are obviously relatable to the present set of cases and are not intended to lay down the law for all cases of retrospective operation of statutes or subordinate legislation. The relevant principles are:

(i) The Central Government or the State Government (or any other authority) cannot make a subordinate legislation having retrospective effect unless the parent statute, expressly or by necessary implication, authorises it to do so. [Hukam Chand v. Union of India and Mahabir Vegetable Oils (P) Ltd. v. State of Haryana].

(ii) Delegated legislation is ordinarily prospective in nature and a right or a liability created for the first time cannot be given retrospective effect. (Panchi Devi v. State of Rajasthan)

(iii) As regards a subordinate legislation concerning a fiscal statute, it would not be proper to hold that in the absence of an express provision a delegated authority can impose a tax or a fee. There is no scope or any room for intendment in respect of a compulsory exaction from a citizen."

14. The Hon'ble Apex Court in State of Jharkhand & Ors. Vs

Shiv Karampal Sahu [(2009) 11 SCC 453] at paragraph-17 has held

as under:

"17. Ordinarily, a subordinate legislation should not be construed to be retrospective in operation. The Circular Letter dated 7-5-2003 was given a prospective effect. The father of the respondent died on 19-5-2000. There is nothing to show that even the Circular dated 9-8-2000 had been given retrospective effect. In any view of the matter, as the State of Jharkhand in the

L.P.A. No. 362 of 2019

Circular Letter dated 7-5-2003 adopted the earlier circular letters issued by the State of Bihar only in respect of cases where death had occurred after 15-10-2000 i.e. the date from which the State of Jharkhand came into being, the High Court, in our opinion, committed a serious error in giving retrospective effect thereto indirectly which it could not do directly. Reasons assigned by the High Court, for the reasons aforementioned, are unacceptable."

15. We, now, are proceeding to examine the factual aspect on the

basis of the fact of the given case.

Admittedly, the writ petitioner has got sterilization/'Nasbandi'

as on 22.10.1995, the day when the circular dated 03.10.2002 was not

in existence rather the Rule, 1977, was invoked enshrined under 2nd

proviso to Article 309 of the Constitution of India. We have

considered the provision of the Rule, 1977 issued by the Personnel

and Administrative Reform Department of the undivided State of

Bihar whereby and whereunder the provision has been made to grant

one additional increment to be merged with the salary upon which the

Dearness Allowance was admissible as would appear from notification

no.G.S.R.-59 dated 01.07.1977 issued by the Personnel and

Administrative Reform Department. The aforesaid circular goes to

suggest that the said circular was issued on 01.07.1977 in exercise of

power conferred under proviso to Article 309 of the Constitution of

India therefore, the Rule govern the field and accordingly, the

admissibility of benefit of one advance annual increment has been

extended in favour of the writ petitioner taking into consideration the

fact that he got himself sterilization/'Nasbandi' as on 22.10.1995. The

writ petitioner has started getting the benefit even the Dearness

Allowance on the basis of the provision of the Rule, 1977. The cadre

L.P.A. No. 362 of 2019

of the writ petitioner, in consequence of bifurcation of the State, has

finally been allocated to State of Jharkhand in exercise of power

conferred under Section 72 of the Bihar Reorganisation Act, 2000. The

successor State of Jharkhand, thereafter, has come out with a decision

on 03.10.2002 under which the decision for withdrawal of the benefit

which has been extended in favour of the writ petitioner on the basis

of the provision of the Rule, 1977 has been taken by withdrawing the

said benefit and as per the decision as contained in letter dated

03.10.2002 the benefit of one advance annual increment which has

already been merged with the salary of the writ petitioner has been

replaced by the benefit of the Family Planning Allowance by giving

retrospective effect of circular dated 03.10.2002, which according to

us, cannot be approved taking into consideration the settled position of

law which we have already held herein above that the decision as

contained in letter dated 03.10.2002 cannot be given its retrospective

effect.

The aforesaid decision of the State authority is also not

justified on the basis of the fact that the Bihar Reorganisation Act,

2000 contains a provision under Section 72 and 73 to the effect that

the service conditions of a Public Servant as on the date of the

bifurcation of cadre cannot be changed detriment to their interest as

would appear from the provisions of Section 72 and 73, which read as

under:

"72. Provisions relating to services in Bihar and Jharkhand,- (1) Every person, who immediately before the appointed day is serving in connection with the affairs of the existing State of Bihar shall, on and from that day provisionally

L.P.A. No. 362 of 2019

continue to serve in connection with the affairs of the State of Bihar unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Jharkhand:

Provided that no direction shall be issued under this section after the expiry of a period of one year from the appointed day.

(2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect.

(3) Every person who is finally allotted under the provisions of sub-section (2) to a successor State shall, if he is not already serving therein be made available for serving in the successor State from such date as may be agreed upon between the Governments concerned or in default of such agreement, as may be determined by the Central Government.

73. Other provisions relating to services.- (1) Nothing in Section 72 shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State:

Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Bihar or to the State of Jharkhand under Section 72 shall not be varied to his disadvantage except with the previous approval of the Central Government.

(2) All services prior to the appointed day rendered by a person,-

(a) if he is deemed to have been allocated to any State under Section 72, shall be deemed to have been rendered in connection with the affairs of that State;

L.P.A. No. 362 of 2019

(b) if he is deemed to have been allocated to the Union in connection with the administration of the Jharkhand shall be deemed to have been rendered in connection with the affairs of the Union,

for the purposes of the rules regulating his conditions of service.

(3) The provisions of section 72, shall not apply in relation to members of any All India Service."

16. Admittedly, the writ petitioner has been extended the benefit

on the basis of the provision of the Rule, 1977 by granting one

advance annual increment merging it with the salary upon which the

Dearness Allowance has also been made admissible and the writ

petitioner has started getting the benefit along with Dearness

Allowance over the same and therefore, the said part of addition in the

salary on the basis of the provision of the Rule, 1977 has become the

service condition of the writ petitioner being a part of the salary and

admittedly the salary is the service condition of a public servant but

the writ petitioner after have been allocated the cadre of the State of

Jharkhand, the State of Jharkhand has come out with a letter dated

03.10.2002 by taking a decision by withdrawing the benefit which has

already been extended making it a part of service condition of the writ

petitioner that too by applying the decision of the authority dated

03.10.2002 with retrospective application which is nothing but

detrimental to the service condition of the writ petitioner. Therefore,

according to our considered view, the said decision is also in the teeth

of the provision of Sections 72 and 73 of the Bihar Reorganisation

Act, 2000.

17. We after having discussed the things in entirety and also after

going across the findings recorded by the learned Single Judge, have

L.P.A. No. 362 of 2019

found thereof that the learned Single Judge has considered the

applicability of letter dated 03.10.2002 in the facts of the case vis-à-

vis the applicability of the provision of the Rule, 1977 and thereafter,

has come to the conclusion that the decision which has been taken by

the State authorities by passing the impugned order cannot be said to

be justified.

18. We, therefore, are of the view that the findings of the learned

Single Judge cannot be said to suffer from an error coupled with our

findings holding that the decision of the State authorities is contrary to

the provision of Sections 72 and 73 of the Bihar Reorganisation Act,

2000 as discussed herein above.

19. Accordingly, we find no merit in this appeal and hence, the

same is hereby dismissed. Consequent thereto I.A. No. 6214 of 2020

also stands disposed of.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.)

V.K.

A.F.R.