TMI Blog2010 (8) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... yee would be entitled to the benefit of higher scale of pay/upgradation/stepping up of salary sans pre- requisite qualification for the grant of the same. 2. For the sake of convenience, facts appearing in Civil Appeal No.3439 of 2007 are being taken into consideration. Respondent No.1, Krishan Kumar Vij had initially joined the services of the State of Punjab, Department of Irrigation as Tracer in 1949. He was thereafter promoted as a Draftsman in the year 1950. He was further promoted as Divisional Head Draftsman, some time in the year 1962. Thereafter, he was transferred in the services of the Board. There also, he earned promotion as Circle Head Draftsman and then as the Assistant Design Engineer. Regular promotion to respondent No.1 on the post of Asstt. Design Engineer in Punjab Service of Engineers (II) was granted with retrospective effect from 1.6.1976. Finally, on attaining the age of superannuation, he retired from service on 31.1.1987. Even though, respondent no.1 had earned several promotions, while in service, he still complained of stagnation in service as he was not able to earn further promotion. This was the cause for triggering off the instant litigation. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 5. It has been mentioned in para 5 that the Board shall draw schedules indicating the lowest post(s) for direct recruitment in respect of various cadres for the purpose of this order, separately. 6. Pursuant to the said order, another order was issued by P.S.E.B. on 24.5.1990 (hereinafter for brevity shall be referred to as 'Order of 1990') specifying the promotional scales for Assistant Engineers and the conditions precedent for eligibility thereof, adopted by the Board. 7. The relevant part of the said Order of 1990, is reproduced here in below: 2. The above higher scales will only be available to the directly recruited Assistant Engineers as per regulation. (emphasis supplied by us) 7-A(i) read with regulation-9 of PSEB, Service of Engineers(Electrical)Regulation-1965 7-A(i) read with Regulation-9 of PSEB, Service of Engineers (Civil) Regulations - 1965 The cases of Assistant Engineers appointed by promotion as per provisions of the Regulation 7-A(ii) read with Regulation - 10 of the Regulations ibid will be governed by Guidelines circulated vide Secretary Finance Officer Order No. 197/PRC/FIN-1988 dated 23.04.1990. Note: The departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be disposed of on 8.5.2003, with a direction to the Board to decide the representation in the light of relevant law, rules and instructions by passing a speaking order. In the aforesaid Writ Petition, no notice was issued to the appellant-Board. In consequence of the directions passed by the High Court as mentioned hereinabove, respondent No.1's representation was considered at length by the Board but was decided against him on 22.8.2003 which was again challenged by respondent No.1 before the Division Bench of the High Court of Punjab and Haryana. The High Court vide the impugned judgment and order passed on 6.12.2004 allowed respondent No.1's Writ Petition whereby and whereunder the order dated 22.8.2003, passed by the Board was set aside with further direction to grant to the said respondent the next higher pay scale after completion of 16 years of service. It is this order which is being assailed by the Board before us. 12. According to respondent No.1, since he had completed requisite length of service of 16 years on the post of Assistant Design Engineer, thus had become entitled for the higher pay scale. It appears, he took the cue for filing the 2nd Writ Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er contra, the learned counsel for respondent no.1 contended that issue is no more res integra in the light of the order passed in the matter of Rajinder Singh Patpatia by learned Single Judge of the High Court, confirmed in LPA by Division Bench, further approved by this Court, by dismissing the Board's Special Leave Petition at the threshold and then rejection of review petition. It has been contended by them that stagnation would be applicable at all stages and to all the employees, who have not been granted promotion, otherwise the very purpose of the word 'stagnation' would stand defeated. 17. They have also submitted before us that there was no question of granting promotion to them but the actual relief on the strength of the order/circular which could have been granted to the employees was stepping up, upgradation/ revision of the pay scale without being actually promoted to next higher post. In other words, they have contended that no interference is called for in the impugned judgment and the appeals being devoid of merits and substance, deserve to be dismissed. 18. As mentioned herein above while granting relief to respondent no.1, Division Bench has pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that only those Assistant Engineers who were either directy recruited or had acquired the requisite qualifications prescribed for direct recruitment were chosen to be granted higher scale if they had been promoted against the post falling within the quota of 9% of the cadre strength of the said post. 24. Order of 1990 contemplates that it is to be followed as per Regulation which provides that only such persons as have been promoted under Regulation 7(a)(ii) read with Regulation 10(4) shall be treated as direct recruits. In other words, it does not apply to the promotees irrespective of their academic qualifications nor they can be treated at par with the direct recruits. There was a purpose of treating them so, otherwise, it would have the effect of violating the constitutional mandate contained in Articles 14 and 16 of the Constitution of India, on the premise that unequals have been treated as equals. It is with that intention, to avoid criticism and future litigation that such persons who possessed qualifications for direct recruitment and could be promoted against the posts falling vacant, would become entitled to claim the benefit. Since respondent no.1 did not fall in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n stars that despite having knowledge of the provisions of the Regulations applicable to them, they did not make any attempt to acquire the qualifications. 29. It is also to be noted that even though respondent no.1 was junior to Rajinder Singh Patpatia who was granted relief by the High Court, still respondent No.1 took such a long time to approach the High Court. The aforesaid legal and factual aspect of the matter specially the interpretation of the order of 1990 read with the Regulations was not properly and reasonably appreciated by the Division Bench. In this regard, it is necessary to quote the stand of the appellant-Board right from the very beginning when it had proceeded to reject the representation of respondent no.1. 30. The relevant portion of the reason of the Board so assigned to reject the respondent's representation is reproduced here in below : in view of the principles/features enunciated in the scheme for grant of time-bound placement into the promotional/devised promotional scale after 9/16 years of regular service as introduced on the PSEB pattern, the case of Diploma Holder SDOs does not fall within the ambit of grant of 1st and 2nd Time-bound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y has to be avoided. 34. It has been stated by Lord Dunedin, in the case of Murray v. IRC (1918) AC 541 at p. 553 that, 'it is our duty to make what we can of statutes, knowing that they are meant to be operative and not inept and nothing short of impossibility should in my judgment allow a judge to declare a statute unworkable'. The principle was reiterated by him in a later judgment in the case of Whitney v. IRC (1926) AC 37 at p.52, where he observed, 'a statute is designed to be workable and the interpretation thereof by a court should be to secure that object unless crucial omission or clear direction makes that end unattainable. 35. The aforesaid observations make it abundantly clear that the courts will, therefore, reject the construction which is likely to defeat the plain intention of the legislature even though there may be some inexactitude in the language used. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. 36. In view of this, to attain the fruitful results of the Order of 1990 we have to give it a meaningful and proper construction which would ach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sual manner. Since, we have decided the matter on merits, thus it is not proper to make avoidable observations, except to say that the approach of the High Court was neither proper nor legal. 40. It is not in dispute that all the respondents of various appeals have since demitted the office on attaining the age of superannuation. While they were in service, may be on account of orders of the High Court, to save itself from being hauled up for committing contempt of court, Board has made payments to them towards arrears etc. After such a long lapse of time, more so, when the respondents have already retired, it will be harsh on our part to direct recovery thereof. Thus, we direct that the amounts already paid to the respondents would not be recovered by the Board. 41. At the cost of repetition, we may reiterate that the effect of the Order of 1990 read with the Regulations would be that only those employees who fulfilled the pre-requisite qualification for further promotion along with certain length of service as required would only be entitled to the benefit as per the Order of 1990. The other Assistant Engineers, even though they had completed the requisite length of service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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