TaxTMI 
TaxTMI 
2024 (7) TMI 1673
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....ed 06.04.2023 passed by a Division Bench of the High Court of Judicature at Allahabad (hereinafter, 'High Court'), whereby an intra-court appeal preferred by the State of Uttar Pradesh (hereinafter, 'State') challenging the Single Judge's judgement dated 02.02.2018 was dismissed on the ground of delay. Consequently, the judgment of the Single Judge, which effectively directed to grant the pay scale of 7500-12000 to Sub-Deputy Inspectors of Schools/ Assistant Basic Shiksha Adhikaris (hereinafter, 'SDI/ABSA') and the Deputy Basic Shiksha Adhikaris (hereinafter, 'DBSA'), with effect from the year 2001, stood affirmed. 3. Since the instant appeal arises out of a long-drawn saga, where multiple rounds of litigation occurred inter-se the parties before various fora, including this Court, it would be appropriate to narrate the factual events before delving into the legal issues raised before us concerning the law of precedents, the doctrine of merger and the principle of res judicata. FACTS 4. The controversy centers around the alleged discrepancy in the pay scales of SDI/ABSA and DBSA of the Basic Education Department, State of Uttar Pradesh vis-à-vis the Headmasters of J....
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....(7500-12000)* *Selection Grade Pay Scale 10. It may be seen from the above table that the post of Headmaster was placed in the pay scale of 4625-7000 w.e.f. 01.01.1996. Thereafter, the said pay scale was revised to 6500-10500 w.e.f. 01.07.2001, and in addition, the Selection Grade of Rs. 7500-250-12000 was also granted through the 2001 Order. Additionally, Headmasters also got a promotion grade pay scale of 8000-13500 vide a subsequent government order dated 03.09.2001. No corresponding revision in the pay scales of SDI/ABSA and DBSA was, however, made w.e.f. 01.07.2001. 11. The perceived anomaly in pay scales being the hallmark of disputation, it may be useful to reflect the differentiation in pay scales, which have been granted to SDI/ABSA, DBSA and Headmasters since 1945, along with subsequent revisions, by way of the following comparative tabulation: Pay Scale with Effect From Pay Scale Granted to SDI/ABSA (Rupees) Pay Scale Granted to DBSA (Rupees) Pay Scale Granted to the Headmaster (Rupees) 1945 120-200 200-250 75-175 1955 120-300 250-250 100-200 1965 150-350 250-600 100-125 1972 325-575 450-950 240-3....
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....ay scale of 7500-12000 with effect from 01.07.2001 to SDI/ABSA and corresponding higher pay scale (8000-13500) with effect from 01.07.2001 to the DBSA. The High Court further directed the State to consider granting the writ-petitioners therein pay scales higher than that of Headmasters on the premise that they had been enjoying a better pay scale prior to 20.07.2001. 15. The aggrieved State challenged the High Court's order through Civil Appeal No. 8869/2003 (arising out of SLP(C) No. 900/2003) before this Court. During the pendency of that Appeal, the State held discussions with the Caveator and referred the matter to the Chief Secretary's Committee (hereinafter, 'Rizvi Committee'). The Rizvi Committee made a proposal dated 12.01.2010 (hereinafter, 'Proposed Policy'), to grant the pay scale of 7500-12000 for the post of Assistant Basic Education Block Officer, which was essentially created by merging the posts of SDI/ABSA and DBSA, thereby creating a singular cadre of 1031 posts. As per the Proposed Policy, the pay scale of 750012000 to the newly designated post of Block Education Officer would be notionally effective from 01.01.2006, with actual monetary benefits being given w....
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....2.2008." By the same proceedings, a decision was taken to file the same into this Court together with application supported by an affidavit in as much as such decision was taken with mutual consent of the parties. But for whatever reason, the same has not been filed into the Court. Since the Government itself has taken appropriate decision in the matter as is evident from the proceedings referred to hereinabove, no further cause as such survives requiring any further adjudication of this appeal and the Government having taken appropriate decision cannot go back from implementing the same. In the circumstances, the Civil Appeals are accordingly dismissed." [Emphasis supplied] 17. Subsequently, an application seeking clarification of the above order was also filed before this Court, which was dismissed as withdrawn for being not maintainable vide order dated 08.07.2011. We may, however, clarify that the details of such an application are neither part of the record of this appeal nor a copy of it was tendered by learned counsel for the parties. 18. Nevertheless, and in compliance to this Court's order dated 08.12.2010, the Appellant-State i....
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....rred Writ-A No. 35611/2007 (hereinafter, '2007 Writ') before the High Court, seeking quashing of the abovementioned recovery orders and further sought a direction to the State to pay the entire pension along with arrears calculated at the last pay drawn by him along with 24% interest on the delayed payment, and also to release the remaining 10% of the gratuity amount along with interest from the date it became due. 22. The High Court, vide an interim order dated 03.08.2007, directed the State to pay forthwith the retiral dues admissible to Respondent No. 1, excepting the amount which was paid in excess to him. It is the specific case of the State that this order was duly complied with. 23. The High Court kept the above stated 2007 writ petition pending so as to await the outcome of the first round of litigation. Meanwhile, when the State issued the 2011 Order, the Respondents once again approached the High Court vide Writ A No. 44344/2011 (hereinafter, '2011 Writ'), challenging the 2011 Order while also seeking directions for the grant of pay scale of 7500-12000 with effect from 01.01.1996 and consequential payment of arrears. The High Court then clubbed together the Writ Pet....
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....however, clarified that the pendency of Special Leave Petitions would not pose an impediment to the Division Bench of the High Court in deciding the State's intra-court appeal expeditiously. 29. In the midst of all of these proceedings and in light of this Court's order dated 13.02.2023, the High Court passed the Impugned Order dated 06.04.2023 dismissing the application for condonation of delay of 428 days filed by the Appellant-State. Consequently, the State's intracourt appeal stood rejected, giving rise to the instant proceedings. 30. The sole issue that arises for our consideration, thus, is whether the SDI/ABSA and DBSA are entitled to the higher pay scale of 750012000 with effect from 01.07.2001 or whether it has been appropriately granted to them from 01.12.2008 onwards? CONTENTIONS OF THE PARTIES 31. Learned Additional Solicitor General of India and Learned Additional Advocate General, while arguing for the State of Uttar Pradesh, urged that the consequence of the directions issued by the Learned Single Judge is that the earlier Division Bench judgement of the HC dated 06.05.2002 stands restored even though the said judgement was no longer in existence as it st....
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....ions mandating that the State would not go back from implementing the proposal approved by this Court. 34. Per contra, Mr. Dushyant Dave, Learned Senior Counsel representing the Respondents and learned counsel for the Caveator, Ms. Shubhangi Tuli, vehemently opposed the claim put forth on behalf of the State. They argued that the Respondents, who are retired senior citizens, have been dragged by the State in avoidable litigation for the last twenty-two years, despite this being a simpliciter case of acknowledgement and removal of the pay anomaly. They contended that the Appellants have consistently defied the Court's orders and, being in contempt, are making flimsy and false excuses to overreach the judicial system. They urged that firstly, the State's plea regarding the financial burden of approximately Rupees 1500 Crores is unsubstantiated and has no factual foundation. Secondly, the mere consequence of financial burden is not a valid ground to denounce a judicial dictum. ANALYSIS 35. We have considered the rival submissions in the backdrop of the protracted litigation between the parties, which has led to the passing of multiple orders by this Court and the High Court, ....
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....ees' Welfare Association v. Union of India and another 1989 (4) SCC 187, made two pertinent observations, which we propose to analyse in the present context, i.e. - (i) since the Supreme Court in its order dated 08.12.2010 dismissed Civil Appeal No. 8869/2003 and did not discern any error of fact or law in the decision of the High Court dated 06.05.2022, the latter would consequently operate as res judicata inter se the parties; and (ii) it is impermissible for the State Government to overreach and render nugatory a judgement of the High Court, once it has attained finality. 40. In this regard, it seems to us that the High Court has construed narrowly the ratio of the decision of this Court in Supreme Court Employees' (supra) which encapsulated that when a Special Leave Petition is dismissed in limine, there is no law laid down under the aegis of Article 141 of the Constitution. Hence, the judgement against which such petition was preferred becomes final and conclusive so as to operate as res judicata between the parties thereto. In stark contrast, the dismissal of Civil Appeal No. 8869/2003 by this Court vide order dated 08.12.2010 was not a dismissal simpliciter or in limine. ....
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.....) 44. To sum up our conclusions are: (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal. (iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Unde....
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....der, the order against which such Special Leave Petition is filed would not merge with the order of dismissal. However, once leave has been granted in a Special Leave Petition, regardless of whether such appeal is subsequently dismissed with or without reasons, the doctrine of merger comes into play resulting in merger of the order under challenge with that of the appellate forum, and only the latter would hold the field. Consequently, it is the decision of the superior court which remains effective, enforceable, and binding in the eyes of the law, whether the appeal is dismissed by a speaking order or not. Pernod Ricard India Private Limited v. Commissioner of Customs, 2010 (8) SCC 313. 44. The High Court therefore fell in error on assuming that its previous decision dated 06.05.2002 was intact and enforceable, independent of the order passed by this Court in the Civil Appeal arising therefrom. On the same analogy, the High Court's holding that its previous decision dated 06.05.2002 would operate as res-judicata, also cannot sustain being erroneous in law. We say so for the reason that the final and binding order between the parties is the one dated 08.12.2010, passed by this C....
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....fficient ground(s) to condone the delay. The Division Bench accordingly rejected the application for condonation of delay and consequently dismissed the appeal. 49. It is an admitted fact that the State authorities failed to avail their remedy of intra-court appeal within a reasonable time. It was only when contempt proceedings were slapped on them that the authorities woke up and filed the appeal, which, by that time, was highly belated. This Court has in a catena of decisions elaborated the parameters and carved out such exceptional circumstances which may constitute a valid ground to condone the delay in the interest of justice. These principles include the recent approach that no undue leverage can be extended to the State or its entities in condonation of delay and that no special privilege can be extended to the State or its instrumentalities. State of Madhya Pradesh & Ors v. Bherulal (2020) 10 SCC 654. 50. Nevertheless, the Courts have been cognizant of the fact that as a custodian of public interest, the affairs of the State are run and controlled by human beings. Various factors, including the bona fide formation of erroneous opinion, negligence, lack of initiative, ....
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.... that prescription of pay scale for a post entails Policy decision based upon the recommendations of an expert body like Pay Commission. All that the State is obligated to ensure is that the pay structure of a promotional or higher post is not lower than the feeder cadre. Similarly, pay parity cannot be claimed as an indefeasible enforceable right save and except where the Competent Authority has taken a conscious decision to equate two posts notwithstanding their different nomenclature or distinct qualifications. Incidental grant of same pay scale to two or more posts, without any express equation amongst such posts, cannot be termed as an anomaly in a pay scale of a nature which can be said to have infringed the right to equality under Article 16 of our Constitution. 54. Equally well settled is that the creation, merger, de-merger or amalgamation of cadres within a service to bring efficacy or in the administrative exigencies, is the State's prerogative. The Court in exercise of its power of judicial review would sparingly interfere in such a policy decision, unless it is found to have brazenly offended Articles 14 and 16 of the Constitution. 55. There was no pay parity in ....
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....ests of one and all that such like litigation which has the potentiality of multiplying in the future, should be brought to an end without any delay. 58. We, therefore, find it a fit case to invoke the extraordinary powers held by this Court under Article 142 of the Constitution. It is well settled that Article 142 empowers this Court to pass orders in the 'larger interest of the administration of justice' and 'preventing manifest injustice'. Nidhi Kaim v. State of Madhya Pradesh, (2017) 4 SCC 1. This is more so in cases involving protracted litigation and delay, Abbobaker v. Mahalakshmi Trading Co., (1998) 2 SCC 753. such as in the present case. It is a matter of common knowledge that the cases entailing discord over pay parity, are frequently subjected to prolonged litigation. These squabbles often lead to parties enduring significant challenges and hardships over extended periods as they await adjudication. Regrettably, the delay in resolving such matters usually renders them infructuous by the time a decision is reached. 59. Thus, in light of the long pending litigation between the parties, the rights of the parties involved, and to give quietus to the issue, we deem it a....