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Judgment
Dev Darshan Sud, J.—This Letters Patent Appeal arises from the judgment of the Hon''ble Single Judge in CWP(T) No. 2023 of 2008. We find that during the pendency of this petition a number of grounds have been urged, reference made to different Notification, which were never a part of the original petition. We say this for the reason that the Hon''ble Single Judge was confined to the submissions made on behalf of the petitioners and the respondents. In these circumstances, it was but natural that the Hon''ble Single Judge would have rendered his judgment on the pleadings and the material before him. In appellate jurisdiction, addition to the grounds on which challenge has been made is not permissible unless such a foundation has been laid before the Hon''ble Single Judge.
We advert to the pleadings that the petition was instituted before the erstwhile Administrative Tribunal on the pleading that the applicant had retired as Junior Engineer from the Department of Agriculture where he had worked as such. He then pleads that the employees of Himachal Pradesh are being allowed the same pay scales as sanctioned from time to time by the Punjab Government to its employees which are adopted by the Himachal Government on grounds of equivalence of posts. The case then proceeds with the narration of the fact as to how with the revision of pay scale in Punjab the Scales were revised in Himachal also. The order challenged was Annexure A-1 with the petition which is Office Order passed by the Director of Agriculture stating that consequent upon the revision of pay scale on 1.9.1998, the pay scale of Engineers in the State was also revised accordingly.
We now consider the reply. It is categorically admitted in the pleading of preliminary objections urged by the State that the Government of Himachal Pradesh is following the same pay scale pattern as is the case of Junior Engineers in Punjab. But it then proceeds that there is no separate Department of Soil Conservation in Himachal Pradesh and therefore, the pay scales as granted vide Annexure A-1 are in order. There was only one Department of Agriculture in Himachal Pradesh without a Soil Conservation Department which was a part of the Agriculture Department and in these circumstances parity could not be claimed. The reply proceeds to distinguish between the duties in the Soil Conservation Department and qualification etc. The duties, qualifications etc. of the Engineers in Punjab and Himachal Pradesh have also been referred to. We say this because for what we consider here-in-after the case as urged by the State is one of grant of wrong pay scales to the petitioners in contravention of the provisions of Article 309 of the Constitution of India. The focus of the entire pleadings of the parties before the Hon''ble Single Judge is one relating to parity with their counter parts in Punjab. Nowhere has either party pleaded that in Himachal Pradesh, there were pay revisions/notifications governing each category of employees which applied to the petitioners and therefore they could not claim to a separate clause governed by different set of Rules governing their pay. Miscellaneous applications have been filed for bringing on record additional material in appeal.
We would like to preface the judgment with this caution that new points cannot be urged in the appeal which in-fact were never pleaded or urged before the Hon''ble Single Judge, since, allowing such a course would turn the appeal into fresh original proceedings. We emphasis that the Hon''ble Single Judge should and ought to have had an opportunity to judge the submissions made before us on the material even though such material comprises notification etc. For which purpose, foundation in the pleadings should have been laid in the original pleadings so that the contentious points/issues should have been decided/ironed out. Another important point urged by the appellant State is that without laying challenge to the Notification(s), issued from time to time which govern all employees in Himachal Pradesh or of subsequent pay revision Notifications specific to the Himachal Pradesh Agriculture Department. Junior Engineers Class-III (Non-Gazetted) Recruitment and Promotion Rules, 1995 as amended from time to time have also not been challenged. In these circumstances, the petition is defective and the judgment rendered is against the settled principles of law.
In Shanbaggakannu Bhattar Vs. Muthu Bhattar and Another, , the Supreme Court holds:-
We are wholly unable to appreciate how on any principle or authority the Division Bench had, in an appeal under the Letters Patent, allowed a point which involved not only law but also facts to be agitated when that point had never been taken even in the plaint or before the trial court, the first appellate court and the high Court in second appeal. It had not been raised even in the memorandum of appeal at any stage. Indeed it was admitted before the first appellate court that the alienation evidenced by ext. B-9 by Parvathiammal was one by way of a gift and was without consideration. It was never pleaded, asserted or claimed by the plaintiff that any consideration had passed for the properties which were the subject matter of the gift by Parvathiammal in favour of Duraiswami. In such a situation it was not open to the Division Bench of the High Court to allow the question of consideration to be raised for the first time and that also without any amendment of the pleadings being allowed and without the defendants having a proper opportunity to meet the case.
(p.2470)
We are also aware about the principle of law as laid down by the Supreme Court in Gurucharan Singh Vs. Kamla Singh and Others, , holding,
Before we examine this quintessential aspect present before us with complex scholarship by Shri S. C. Misra we had better make short shrift of certain other questions raised by him. He has desired us, by way of preliminary objection, not to give quarter to the plea founded on Section 6 of the Act, to non-suit his client, since it was point raised de novo at the Letters Patent stage. The High Court gave thought to this objection but overruled it, if we may say so, rightly. The Court narrated the twists and turns of factual and legal circumstances which served to extenuate the omission to urge the point earlier but hit the nail on the head when it held that it was well-settled that a pure question of law going to the root of the case and based on undisputed or proven facts could be raised even before the court of last resort, provided the opposite side was not taken by surprise or otherwise unfairly prejudiced. Lord Watson, in Connecticut Fire Insurance Company v. Kavanagh, 1892 A.C. 473 stated the law thus :
When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interest of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the Court of ultimate review is placed in a much less advantageous position than the courts below. But their Lordships have no hesitation in holding that the course ought not in any case to be followed unless the court is satisfied that the evidence upon which they are asked to decide establishes beyond doubt that the facts if fully investigated would have supported the new plea.
We agree with the High Court that the new plea springs from the common case of the parties and nothing which may work injustice by allowance of this contention at the late stage of the Letters Patent Appeal has been made out to our satisfaction. ...
(pp. 10-11)
We will consider this in the light of the factual matrix of the present case. It is trite that instructions, orders, regulations in contravention of the statutory Rules under Article 309 of the Constitution of India cannot be enforced and the petition requires to be dismissed but when we consider (infra) that the Rules governing the service of the respondents have also undergone a change from time to time, the question for resolution on the factual aspect would still remain as to whether it was the Rule of the service or the general Rules which were applicable or if it was the general Rule applicable, where was the necessity of an independent revision of the specific service Rules.
We now advert to the submissions made by the State of Himachal Pradesh. In a nutshell the case pleaded by them is that on 31.12.1997, pay revision in pay scales was granted to the Junior Engineers on the analogy of grant by Punjab Government to its employees by letter dated 13.1.1997 which is evidenced by Annexure A-2 with the writ petition filed in L.C. Bhardwaj''s case. The letter states that the orders are subject to the outcome received from the Punjab Government with reference to their letter. The other clause incorporated therein states that the pay in the revised scales will be fixed strictly in accordance with the Rule/Instructions issued by the Government from time to time. The necessary proposal regarding further placement etc. was to be submitted to the Department. On 7.2.1998 and 26.3.1998, 16 and 31 Junior Engineers respectively were given the higher pay scales by the Director of Agriculture on his own without proposal being sent to the Government. This scale was allowed w.e.f. 1.1.1986 in the scale of Rs. 2000-3500, Rs. 2200-4000 w.e.f. 1.1.1991, after completion of eight years of service Rs. 3000-4500 and after 18 years of service Rs. 3700-5300 (Annexure P-4) with the writ petition. The revisions which have been made in Punjab were upheld up to the Supreme Court and it was the case of the petitioners herein that since the same analogy applied here, the decision having attained finality, there was no option with the appellant but to follow the same scale as was awarded by the Punjab Government.
Now comes the sheet anchor of the arguments of the respondent. It is submitted that on 20.1.1998, under Article 309 of the Constitution of India and the provisions of sub-rule (1) of Rule 10 of the Vidhan Sabha (Recruitment and Conditions of Service) Rules, 1974, the Governor of Himachal Pradesh had promulgated afresh Rules (which Rules have been annexed now with the Letters Patent Appeal). These Rules were called The Himachal Pradesh Civil Services (Revised Pay) Rules, 1998. The date of enforcement of these Rules is the Ist January, 1996. Clause-2 of these Rules provided that they shall apply to all persons appointed to the services and posts in connection with the affairs of the State of Himachal Pradesh. Sub-rule (2) of clause-2 provided for the exclusion which was:-
(a) Members of All India Service serving in connection with the affairs of the State of Himachal Pradesh;
(b) Persons not in the whole time employment of the Government of Himachal Pradesh;
(c) Persons paid out of contingencies;
(d) Employees whose scales of pay have been determined on the recommendations of the University Grants Commission (U.G.C.)
(e) Work-charged employees;
(f) Persons employed on contract basis, except when the contract provides otherwise; and
(g) Persons specifically excluded wholly or in part from the operation of these Rules.
According to the categorization in the Schedule appended to these Rules, the pay scale admissible to the petitioners was revised from Rs. 1800-3200 to Rs. 5800=-9200 as shown in column No. 12. It was also urged that the petitioners are working as whole time employees serving in Himachal Pradesh and in these circumstances they would be entitled to pay scale according to these Rules and not under any other Rule. Emphasis was also laid on clause-10 of the Rules which states:
Over-riding Effect:- The provisions of the Fundamental Rules and instructions issued thereunder shall not apply to the extent that they are inconsistent with the provisions of these rules.
The submission of the appellant is that this clause read with clause-12, which is the finality clause, leave no doubt for any other interpretation save and except that whatever is contained in these Rules (which is the pay revision) is final and no other set of Rules or instructions can govern the service conditions of the writ petitioners. Again on 1.1.1998, by resorting to the same powers the Government of Himachal Pradesh revised these Rules. They were made effective from 1.1.1996. The pay scale of Junior Engineers of Rs. 1800-3200 has been revised to Rs. 5800-9200 on 1.1.1996 and those in the scale of Rs. 2200-3900 were allowed revised pay scale of Rs. 7220-11320 as personal measures to them.
In short, the submission of the State is that the Rules issued on 20.1.1998 and subsequent amendment on 1.9.1998 having not been challenged, the petitioners are bound to accept the pay scales as these very Rules govern their conditions of service so far as pay scales etc. are concerned. The petition, therefore, deserves to be dismissed on this short ground irrespective of the fact that the Rules contained a clause of Retrospectivity which was perfectly in order and was not Violative of any Constitutional Principle. No order etc. could be passed which would be at variance with these Rules and the only administrative instructions supplementing but not supplanting the Rules could be issued. Reliance was placed by the State on two decisions of the Supreme Court in Sant Ram Sharma Vs. State of Rajasthan and Another, and Raj Kumar and Others Vs. Shakti Raj and Others, . In Sant Ram''s case the Court holds:-
We proceed to consider the next contention of Mr. N. C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found it the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
(p.1914)
In Virender Singh Hooda and Others Vs. State of Haryana and Another, , the Supreme Court holds:-
The result of the aforesaid discussions is that Retrospectivity in the Act cannot be held to be ultra vires except to a limited extent which we will presently indicate. It is not a case of usurpation of judicial power by the Legislature, The Legislature has removed the basis of the decision in Hooda and Sandeep Singh''s cases by repealing the circulars. The Act is also not violative of Articles 14 and 16 of the Constitution of India the candidates have right to posts that are advertised and not the one which arise later for which a separate advertisement is issued. A valid law, retrospective or prospective, enacted by Legislature cannot be declared ultra vires on the ground that it would nullify the benefit which otherwise would have been available as a result of applicability and interpretation placed by a superior Court, A mandamus issued can be nullified by the Legislature so long as the law enacted by it does not contravene constitutional provisions and usurp the judicial power and only removes the basis of the issue of the mandamus.
Despite the aforesaid conclusion, the Act [proviso to Section 4(3)] to the extent it takes away the appointments already made, some of the petitioners had been appointed much before enforcement of the Act (ten in number as noticed hereinbefore) in implementation of this Court''s decision, would be unreasonable, harsh, arbitrary and violative of Article 14 of the Constitution. The law does not permit the Legislature to take back what has been granted in implementation of the Court''s decision. Such a course is impermissible. (p.620)
The writ petitioners, respondents herein, have been emphasizing on the upward revision of the pay scale on the basis and pattern of the Punjab Government and made a meticulous reference to the Notification etc. including the judgment of the Punjab and Haryana High Court appended hereto as Annexure A-13, titled: Raghuvansh Kumar Sehgal and Others vs. State of Punjab and Another, CWP No. 11511 of 1993, decided on 14th December, 1995, which judgment was upheld by the Supreme Court and which according to the petitioners inter alia formed the basis of their claim. It was also urged that the general Rules did not apply which fact was itself plain and evident from an amendment made in the Himachal Pradesh Agriculture Department Junior Engineer, Class-III (Non-gazetted) Recruitment and Promotion (First Amendment) Rules, 1999 notified by the Himachal Pradesh Government by publication in the Gazette on 6th February, 1999 dealing extensively with the service conditions including the pay of the petitioners. At this juncture, we also note that these Rules have been subsequently again amended by the Government by a Notification No. Agr-A(3)-3/2005, dated 2.1.1010. The Rules of 1995 were repealed with this rider:-
(ii) Notwithstanding such repeal any appointment made or anything done or any action taken under the rules so repealed under sub-rule(i) supra shall be deemed to have been validly made, done or taken under these rules.
We now turn to the submissions made on behalf of the State that no challenge has been made to the Himachal Pradesh Civil Services (Revised Pay) Rules, 1998 which were notified on 20.1.1998 with retrospective effect from 1.1.1996, these Rules being applicable to all employees, the writ petition deserves to be dismissed at the threshold without considering any other aspect.
Reliance on this behalf has been placed by learned counsel on the decision of the Supreme Court in Gulzari Lal Agarwal Vs. Accounts Officer, Yadlapati Venkateswarlu Vs. The State of Andhra Pradesh and another, and Osram Surya (P) Ltd. Vs. Commissioner of Central Excise, Indore, This is but stating the obvious, as observed by us, the principle of law is that administrative instructions cannot supplant but only supplement statutory Rules.
It is then submitted that the Revised Pay Rules of 1998 and the order impugned in the writ petition Annexure A-1, dated 10.6.2004 have already saved the benefits allowed to the Junior Engineers as a measure personnel to them, no prejudice is being caused to them and in this eventuality no vested right has been taken away. Reliance is placed by the State on the judgment of the Supreme Court in Virender Singh Hooda''s case. An important submission, on the factual aspect which is made, is that reliance was placed by the petitioners on the Notification dated 6.2.1999 issued under the proviso to Article 309 amending the Himachal Pradesh Agriculture Department Junior Engineer Class-III (Non-Gazetted) Recruitment and Promotion Rules, 1995 and effect of such amendment was that the petitioners were still receiving higher pay scale allowed to them in terms of the Himachal Pradesh Civil Services (Revised Pay) Rules, 1998. It is also contended that the Civil Services (Revised Pay) Rules, 1998 are an exception to the Rule of statutory interpretation that the General Rules must yield to the Special Rules. Appellant relies upon the decision of the Supreme Court in S. Prakash and Another Vs. K.M. Kurian and Others,
We find that the factual foundation has not been laid in the pleadings before the Hon''ble Single Judge. There is no denying the fact that it is the Rules governing the service which prevail over administrative instructions, but we do not find any foundation in the pleadings. There is no explanation on the record nor any attempt made to plead or urge the fact of the amendment in the Himachal Pradesh Agriculture Department Junior Engineer Class-III (Non-Gazetted) Recruitment and Promotion Rules, 1995 and they are repeatedly supplanting them with fresh Rules. This was required for the reasons that the State is of the stand that the general Rules as considered by us above, namely; Himachal Pradesh Civil Services (Revised Pay) Rules are applicable to all employees and this point crops up for the first time in arguments before us in Letters Patent Appeal. The State had to lay down the foundation which we find lacking. We have already noted above that in appeal, fresh grounds are being urged. We may also refer to the Full Bench decision of the Punjab and Haryana High Court in The The Kurukshetra University and Others Vs. Rural College of Education, Kaithal, holding:-
Repelled on his main stand that there was no statutory provisions under which the guidelines Annexure P/3 had been issued, Mr. Kuldip Singh then fell back on an argument of despair. It was sought to be contended rather vehemently that the provisions of Ordinance-1 itself are bad and either ultra vires of the Act or otherwise unconstitutional. We are unable to either appreciate, or to permit the raising of any such contention at the stage of a Letters Patent Appeal. Reference to the exhaustive writ petition would show that far from so alleging, there was not even a hint that Ordinance-1 of the Act was either ultra vires of the parent statute or was unconstitutional, indeed there is not even a specific reference to Ordinance-1 at all in the whole of the writ petition. It was indeed ultimately conceded fairly by Mr. Kuldip Singh that any specific challenge to the constitutionality or being beyond the scope of the Act was never laid against any one of the ordinances. Consequently, not the least foundation was laid for such a submission in the whole of the petition. What, however, is more is the admitted fact that at no stage before the learned single Judge, such an argument seems to have been raised even by implication. Even before us, the basic stand of the learned counsel for the respondents was that Annexure P/3 was not covered by Ordinance-1, which as already noticed, we are inclined to repel in its totality. We are, therefore, unable to permit the raising of an altogether new ground for which no basis exists in the pleadings or in the arguments before the learned single Judge, at this belated stage.
(p.106)
We find that in somewhat similar situation the Supreme Court in State of Madhya Pradesh and Others vs. Satyavrata Taran, (2012)SCC 83 holds:-
We tried to wade through voluminous materials in the form of schemes, Govt. orders and circulars produced by both the learned counsel appearing for the parties. More we tried to delve into the matter, more and more murkier facts, which we call normally Pandoras Box, started emerging. Going through these documents could have been done by us, but since those documents were not even produced by way of affidavit and since the learned counsel on the opposite side had (sic did not have) any knowledge of those documents, we have thought it fit to remand these matters back to the High Court for fresh disposal in accordance with law, by granting liberty to both the parties to produce all these documents which they tried to rely upon before us.
We are also informed by both the learned counsel that it would be in the interest of all the parties that these petitions be heard before one Bench so that possibility of divergent opinion/s from the High Court could be possibly avoided. The expression of desire appears to be reasonable and, therefore, we accept the same.
In that view of the matter, we allow the appeals, set aside the orders passed by the High Court in all these matters and remand the matter back to the High Court for its fresh consideration in accordance with law. We also give liberty to both the parties to place on record all the documents on which they intend to rely in support of their case including the manner, mode and the source of appointment of each of the Assistant Professors.
(p.91-92)
The settled position of law that if fresh material is placed on the record for consideration in appeal, the proper course of action would be to remand the case for reconsideration for the reasons that the Hon''ble Judge did not have the advantage of assessing the material/documents so placed in appeal, the interest of justice would demand that the case be remanded for decision afresh after affording opportunity to the parties to adduce that material before the Hon''ble Single Judge. We find that these principles are by now well settled. We may add that in appeal proceedings, the appellate Court cannot be converted into a Court of original trial.
In these circumstances we deem it proper that the case be placed before the Hon''ble Single Judge where both parties shall place on record additional material/documents relevant to the controversy as raised in this appeal so that the Hon''ble Judge can have the advantage of going through that material before rendering his decision. Parties are granted permission to amend their pleadings accordingly. Appeal disposed of. We request the Hon''ble Single Judge to expedite hearing of the case, if possible. Writ petition shall abide by the order in this appeal.