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A.P. Singh, J.—Petitioner, having the qualification of High School Leaving Certificate Examination in the year 1977 from the Meghalaya Board of School Education, was appointed as Store Keeper in the year 80-81 in the Public Health Engineering Department, hereinafter, called the PHED. Subsequently, his services as Store Keeper was regularised. 20 posts of Surveyors in the said department came to be advertised by the Meghalaya Public Service Commission on 17.4.88 in the pay scale of Rs. 450/- to 825/- p.m. Three alternative qualifications were prescribed for appointment on the post. The qualifications were:
(1) Matriculation/HSLC or Higher Secondary Examination with 2 years recognised certificate in surveying Civil from III or (2) read upto 3rd year Diploma course in Civil Engineering from a recognised institute and passed Surveying Paper of 4th Semester and (3) Government servants under PHED holding the post of Section Assistant/Store Keeper with minimum 5 years experience of qualified service in PHE Department and having minimum qualification of matriculation or its equivalent were also made eligible for the post. A copy of the advertisement which was issued in that regard has been filed with the petition as Annexure-I at page 23. Persuant to the said advertisement, Petitioner who was qualified as per the IIIrd alternative qualifications applied and was ultimately selected by the Public Service Commission. He was appointed on the said post vide order dated 1.7.89. A copy of the order of Petitioner''s appointment has been filed as Annexure-II, relevant portion of the appointment order reads as follows:
On recommendation of the MPSC in the interest of public service, the following persons are hereby appointed as Surveyor PHE in order of merit subject to Police verification report in the scale of pay of Rs. 1375/-40-1575-EB-45-1890-50-2390/- p.m. plus other allowances as admissible under the existing rules of Meghalaya Govt. and posted to the Division office mentioned against their names below....
However, by the time the appointment of the Petitioner was made, the pay scale of Surveyor was revised to Rs. 1375/- to 2390/- p.m. Petitioner continued to work on the post for a considrably long period and is presently continuing on the same post.
Present petition has been filed questioning the legality and justifiability of notification issued by the Govt. of Meghalaya on 5.1.96, Annexure-V to the writ petition and consequent order for recovery passed on 23.2.96. By the notification dated 5.1.96, the State Government in exercise of its powers under proviso to Article 309 of the Constitution was amended the pay scale of Surveyors in so far as non certificate holders are concerned. The notification reads as follows:
In exercise of the powers conferred by the priviso to Article 309 of the Constitution of India, the Governor of Meghalaya is pleased to order that the following further amendment shall be made in the Schedule to the Meghalaya Service (Revision of Pay) Rules, 1988 published with Finance Department''s Notification No. F(PR)-35/88/28, dt. 30th November, 1988 namely:
In the said Schedule under the head "Public Health Engineering" the following entries shall be inserted in column (4) against the existing entries of "Subordinate Engineer Grade-II/Overseer Grade-II/Draftsman Grade-II/Head Mechanic/Surveyor (Certificate Holder)/Head Plumber/Treatment Plant Operator.
For Surveyor who are not certificate holder, the scale of Rs. l200-30-1350-EB-35-1595-40-1995 shall apply.
Their pay scale has been reduced from Rs. 1375/- 2390/- to Rs. 1200/- Rs. 19957-. Whereas by order dated 23.2.96 a direction has been issued by the Chief Engineer PHED, for recovery of excess payment of salary from non-certificate holders. The order reads as follows:
Enclosed please find herewith a copy of letter No. F(PR)-64/88/35, dt. 5.1.96 from the Under Secy Finance (Pay Revision) Deptt., Shillong, which speaks for itself.
In this connection appointment order issued vide this office order No. PHE/MEGH/ESTT/977/89/42 dt. 1.7.89 and No. PHE/MEGH/ESTT/977/89/281 dt. 8.4.94 of which the scale of pay of Surveyor may please be read as follows:
(1) Surveyor (Certificate holder).
Rs. 1375-40-1575-EB-45-1890-50-2390/-
(2) Surveyor (Non-Certificate holder)
Rs. 1200-30-1350-EB-35-1595-40-1995/-
Accordingly necessary recovery of pay if drawn in excess against the non-certificate holder Surveyor under your control may be made under an intimation to this office at an early date.
It has been contended by the learned Counsel for the Petitioner, that once the Petitioner had been appointed in the pay scale of Rs. 1375/- to 2390/- on the basis of recruitment held pursuant to the issue of the advertisement dated 17.4.88, his pay scale cannot be reduced to his detriment by a subsequent notification in the garb of amendment.
A return has been filed by the State of Meghalaya in which it has been inter-alia alleged that the pay scale of Rs. 1375/- to 2390/ - had wrongly been given to non-certificate holders inasmuch as there existed no provision in the Pay Commission Report. The pay fixation of non-certificate holders was a case of mistake. It was by mistake that pay scale admissible for Surveyor (certificate holders) was provided to non-certificate holders as well. The learned Counsel however failed to file or to point out any material in possession of the Govt. from which it can be reduced that there existed different pay scales for Surveyors (Certificate holders) and Surveyors (non-Certificate holders). What has been shown from the pay commission report is the pay scale of Rs. 450-825/- for certificate holders but in the said report no separate pay scale fras been provided for non-certificate holders. In the circumstances, it is not possible to believe that Petitioner''s appointment was made in the above pay scale by way of mistake.
It is another thing as will appear from the Pay Commission Report appointment on the post was not contemplated in regard to those having no certificate. But that it is not the issue in the present case. As it is not the case of the Respondents that Petitioner was not eligible for appointment on the post and his appointment, was wrongly made. As will appear from the advertisement at serial No. 25 at page 29 of the Civil Rule, there was a provision in the advertisement for appointment of non-certificate holders too on the post. In the circumstances, in absence of provision of a separate pay scale for non-certificate holders in the Pay Commission Report Respondents cannot say that Petitioner''s appointment in the pay scale of Rs. l375/- 2390/- was wrongly made.
To emphasise the point that provision of the pay scale of Rs. 1375/- 2390/- both for certificate holders and non-certificate holders was not a case of mistake as has been asserted by the Respondents. Petitioner has filed a copy of a latest advertisement issued by the Meghalaya Public Service Commission on 11.8.97 in Apphira Newspaper published from Shillpng. The advertisement from the Meghalaya Public Service Commission is for the Govt. of Meghalaya being Advertisement No. 1/1997-98, dated 21st July, 1997 advertising 12 posts of Surveyors in the Agriculture Department at item No. 4 wherein, pay scale provided for certificate holders as well as non-certificate holders is Rs. 1375-40-1575-EB-45-1890-50-2390/- p.m. This is the same pay scale in which Petitioner too was appointed. Qualification provided in this advertisement also would demonstrate that, non-certificate holders i.e. departmental candidate as the Petitioner, have also been made eligible for appointment. Still, a common pay scale has been provided for both certificate holders and non-certificate holders.
It is strange that the impugned notification dated 5.1.96 has been made applicable only in PHED and not to other departments of the Govt. of Meghalaya though the post of Surveyor, as will be evident from Annexure-I to the affidavit filed today, also exists in other departments including the Agriculture Department of the Govt. of Meghalaya. In the circumstances, payment of the same pay scale to certificate holders and non-certificate holders in one department of the Govt. and payment of different pay scales to the certificate and non-certificate holders in another department of the same govt, is also challenged by Petitioner''s learned Counsel as discriminatory.
A joint reading of the notification dated 5.1.96 and order dated 23.2.96 would show that the notification though not specifically made retrospective, has been applied retrospectively inasmuch as by the order dated 23.2.96, the Petitioner and other non-certificate holders had been obligated to refund the excess amount of salary received by them since after their appointment in the pay scale of Rs. 1375/- to 2390/-. The excess payment by way of salary is obviously to be determined on the basis of the latest revised pay scale of Rs. 1200/- to 1995/- learned Counsel for the Petitioner contends, that such an interpretation by order dated 23.2.96 to the notification is unwarranted inasmuch as the said notification does not specifically state in terms that it is retrospective in operation. Learned Counsel further contends, that unless a rule is specifically made retrospective by clear words or by necessary intentment, its operation will have to be prospective. He accordingly contends that in any case, the order dated 23.2.96 is wholly misconceived and unjustified/unwarranted from the notification dated 5.1.96.
Taking the last argument of the learned Counsel for the Petitioner, it is without any iota of doubt that notification dated 5.1.96, Annexure-V to the petition has not been specifically made retrospective, hence the amendment as brought about by the notification has to be prospective and not retrospective. I, accordingly find that the order dated 23.2.96 directing for the recovery of excess amount of salary paid to the Petitioner in the old pay scale of Rs. 1375/- to 2390/- is not warranted from the amended provision.
Coming to the contention of the learned Counsel for the Petitioner regarding the illegality of the notification dated 5.1.96, a reference to the judgment of the Supreme Court in State of Gujarat and Another Vs. Raman Lal Keshav Lal Soni and Others, is inevitable. This judgment has also been followed by the Supreme Court in a subsequent case of Ex-Capt. K.C. Arora and Another Vs. State of Haryana and Others,
In Raman Lal Keshav Lal Soni and Ors., the point which arose for decision by the Supreme Court was, whether in exercise of its powers under Article 309 of the Constitution, the State Govt, had the authority of retrospectively changing the status of Govt. servants from that of State Govt. employees to a local Board employee. Other questions apart of the above question were also involved. A constitution Bench of the Supreme Court discussing the matter in great detail concluded that pre-existing rights of a Govt. servant cannot be changed to his detriment by enacting a law in exercise of its powers under Article 309 of the Constitution and giving that law retrospective operation. The relevant observation of the Supreme Court which occur in paras 51 and 52 are reproduced below:
Once they had joined the common stream of service to perform the same duties, it is clearly not permissible to make any classification on the basis of their origin. Such a classification would be unreasonable and entirely irrelevant to the object sought to be achieved. It is to navigate around these two obstacles of Article 311 and Article 14 that the Amending Act is sought to be made retrospective, to bring about an artificial situation as if the erstwhile municipal employees never became members of a service under the State. Can a law be made to destroy today''s accrued constitutional rights by artificially reverting to a situation which existed 17 years ago? No.
In para 52, the Supreme Court further observed:
The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have no conform to the dos and don''ts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, 20 years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by 20 years. We are concerned with today''s right and not yesterday''s. A legislature cannot legislate today with reference to a situation that obtained 20 years ago and ignore the march of events and the Constitutional rights accrued in the course of the 20 years. That would be most arbitrary, unreasonable, and a negation of history.
Though, in the present case, the impugned notification has not been made retrospective but is effect essentially is, that the vested right of the Petitioner to be paid salary in the pay scale in which he was appointed in the year 1989 is now being affected.to his detriment by placing him in the lower pay scale on the ground that he is not a certificate holder, a ground which has been invented only for providing a lower pay scale which had nothing to do with the qualification provided at die time of his appointment on the post. This notification in effect retrospectively changes the status of the Petitioner as Surveyor of inferior category though there exists no such category.
In the background of the fact that Petitioner''s appointment was made as per terms of the advertisement which was issued by the Govt. of Meghalaya which provided one pay scale both for certificate holders and non-certificate holders and in his appointment order also, Petitioner was given die pay scale of Rs. 1375/- to 2390/-, it is not open now at this late stage for the Respondents to reduce Petitioner''s pay scale from Rs. 1375/- to 2390/- to Rs. 1200/- to 1995/- by way of legislation in purported exercise of power under Article 309 of the Constitution. Since the impugned notification adversely affects the vested rights of the Petitioner to be paid same salary as is paid to a Surveyor with certificate in my opinion, now it is not permissible for the Govt. to create a class in regard to the post without there being appropriate justification. No reasons have been given by the Respondents in their affidavit of opposition as to how the work of non-certificate holders is inferior from that of the certificate holders. Therefore, in the absence of sufficient material to indicate that non-certificate holders are not able to perform the quality of the job as is performed by certificate holders, it will not be open for the Respondents to create an artificial classification in the post by the impugned notification. The notification, apart from being violative of Article 14 of the Constitution is also hit by Article 311(2).
In the light of the above discussion, this petition succeeds and is accordingly allowed with costs. The notification dated 5.1.96 alongwith consequential order dated 23.2.96 are quashed. Accordingly, the Respondents are directed to continue to pay salary to the Petitioner in the pay scale of Rs. 1375/- to 2390/- in which he had been appointed. They shall also forebear from making any recovery from the Petitioner on account of the assumed excess payment in pursuance of the order dated 23.2.96. Respondents shall also give other consequential benefits to the Petitioner.
Present Civil Rule No. 36(SH)97 and Civil Rule No. 83(SH)97 are connected inasmuch as the notification and the order challenged in both the writ petitions are the same. Points urged in support of the writ petition in both the cases are also the same. In the circumstances, no separate judgment is required in Civil Rule No. 83(SH)97. judgment rendered in Civil Rule No. 36(SH)97 shall govern Civil Rule No. 83(SH)97 as well.