- (1.) This petition under Article 226 of the Constitution is directed against the judgment dated 9.3.2004 rendered by the Chandigarh Bench of the Central Administrative Tribunal (for brevity, 'the Tribunal') holding that the original applicant-respondents have been rightly given the pay scale of Rs. 5500-9000 with effect from 1.1.1996.
(2.) The original applicant-respondents have been working on the posts of Investigator Grade-II in the Department of Labour Bureau. Their initial scale of pay was Rs. 2000-3300. it has remained undisputed that the cadre is to comprise of direct recruits through the Staff Selection Commission as well as by promotion from the feeder cadre of Computers. Likewise, appointments to the Investigator Grade-I are also made by direct recruitment through Union Public Service Commission and also by promotion from the cadre of the Investigator Grade-II like the original applicant-respondents. The view of the Tribunal is discernible from paras 9 and 10, which reads thus :- "In this backdrop of the admitted facts, it can be safely said that notification granting upgraded pay scale of Rs. 5,500-9,000 was issued under proviso to Article 309 of the Constitution of India and it could not be amended by the administrative order dated 30.4.2001, much less with retrospective effect. Law is well settled that rules framed under Article 309 can be amended only by an amendment under said Article and not by an administrative order. Reliance is placed on Nagarajan v. State of Mysore, 1966 AIR(SC) 43. What to talk of administrative orders, even the rules framed under proviso to Article 309 cannot be amended with retrospective effect so as to take away any vested right. It has been held in Bhatnagar v. Union of India and others, 1991 1 SCC 544 that once the Union and the State Government frame rules, their action in respect of matters covered by rules should be regularised by those rules. Rules framed under Article 309 are the solemn rules, having a binding effect and Government should refrain from acting in a manner not contemplated by their own rules. Otherwise, such action would smack of arbitrariness. Undisputedly, in this case in the notification issued under Article 309 of the Constitution of India, the category of applicants has been given the pay scale of Rs. 5,500-9,000, which cannot be taken away by passing an administrative order. Moreover, respondents have committed another illegality in making the impugned order applicable retrospectively. It has been settled in a number of decision including Chairman, Railway Board and others v. C.B. Rangadhmaiah and others,1997 2 SLJ 368 (a decision by a Bench of five Hon'ble Judges) that an amendment which is retrospective in operation cannot be sustained when it is unreasonable, arbitrary and in violation of the articles guaranteed under Articles 14 and 16 of the Constitution of India. On the question of retrospective effect of an amendment, it has been held in Salabuddin Mohammed Yunus v. State of Andhra Pradesh, 1984 AIR(SC) 1905 that such notification is violative of Articles 14 and 16 of the Constitution of India and as such is liable to be quashed. Since vested rights had accrued in favour of the applicants by virtue of notification under Article 309 of the Constitution, those could not be taken away by passing an administrative order."
(3.) The argument of the petitioner-Union of India that the grant of pay scale of Rs. 5500-9000 was the result of a mistake, did not find favour with the Tribunal. The Tribunal has noticed in the penultimate para that the stand of the petitioner even through the earlier round of litigation was also the same, and rejected the aforesaid argument by holding that after acceptance of the recommendation of the Pay Commission in respect of specific category of employees their cadre cannot be put into common categories so as to grant them the pay scale on the basis of conversion table. The Tribunal further observed that the view taken by a Division Bench of this Court in the case of K.C. Kaushal and others v. Union of India (CWP No.7311 of 1999, decided on 7.8.2000) could not be ignored by the petitioner-Union of India. The aforesaid decision rendered in the case of Investigators Grade-II as well as employees belonging to Investigator Grade-I had taken notice of the fact that no reasons were forthcoming for discriminating the category of the Investigator Grade-II vis-a-vis Investigator Grade-I. The Tribunal has also supported its view by noticing that in a number of other departments the counterparts of the original applicant-respondents were granted upgraded scale and the petitioner-Union of India did not point out any distinguishing feature while restoring the upgraded scale to them. The view of the Tribunal is that the petitioner-Union of India cannot escape from the conclusion reached by this Court in K.C. Kaushal's case by passing a subsequent administrative order and undone the finding recorded by this Court. In support of its view the Tribunal has placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of State of Haryana and others v. Ashok Kumar and others, 2000 Supp1 JT 294 and held that by an administrative order the petitioner-Union of India cannot overrule a judgment of the High Court.;