2010 (8) TMI 961 - SC - Indian Laws

Whether in the light of the Order/Circular issued by the appellant- Bhakra Beas Management Board (hereinafter shall be called as Board ) respondent No.1 - employee 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?

Summary

Issues:
1. Entitlement to higher scale of pay/upgradation/stepping up of salary without pre-requisite qualification.
2. Applicability of the Order of 1990 to directly recruited Assistant Engineers.
3. Delay and laches in filing the writ petition.
4. Interpretation of the Order of 1990 and its impact on the employees.
5. Effect of earlier judgments on the current case.

Issue-wise Detailed Analysis:

1. Entitlement to Higher Scale of Pay/Upgradation/Stepping Up of Salary Without Pre-requisite Qualification:
The core issue was whether the respondent-employee was entitled to the benefit of a higher scale of pay/upgradation/stepping up of salary without having the pre-requisite qualifications for the grant of the same. The court examined the Order/Circular issued by the appellant-Board and concluded that only those employees who fulfilled the pre-requisite qualifications for further promotion, along with the required length of service, would be entitled to the benefit as per the Order of 1990. The court emphasized that an employee who does not fulfill the qualifications as per Regulation 10(4) for the higher post would be ineligible for promotion and/or higher pay scale, and such an employee cannot complain of stagnation.

2. Applicability of the Order of 1990 to Directly Recruited Assistant Engineers:
The Order of 1990 categorically stipulated that it would be applicable only to directly recruited Assistant Engineers as per Regulation 7(a)(i) read with Regulation 9. The court noted that the benefit would accrue only to those directly recruited Assistant Engineers/Assistant Executive Engineers who possessed the requisite qualifications for appointment to the higher post. It was clarified that the note appended to the Order of 1990 created a legal fiction limited to those employees who had passed both parts (A) and (B) of the AMIE Examination and were promoted against 9% posts reserved for that class, treating them as direct recruits.

3. Delay and Laches in Filing the Writ Petition:
The court observed that the respondent's writ petition was filed belatedly after a lapse of eight years, which should have led to its dismissal on the ground of delay and laches. The appellant-Board had raised this ground categorically, but the High Court had overlooked it and dealt with it in a casual manner. The Supreme Court noted that the approach of the High Court was neither proper nor legal, although it decided the matter on merits without making avoidable observations.

4. Interpretation of the Order of 1990 and Its Impact on the Employees:
The court emphasized that the Order of 1990 was issued to remove stagnation but did not give a blanket or absolute right to any employee to be entitled to a higher pay scale without fulfilling the pre-requisite qualifications for holding the higher post. The interpretation of the High Court to the Order of 1990 was found to be unsustainable as it would lead to improper consequences, such as granting higher scales to employees irrespective of their conduct, qualifications, performance, or behavior. The court reiterated that a statute or any enacting provision must be so construed as to make it effective and operative, avoiding any construction that reduces the statute to futility.

5. Effect of Earlier Judgments on the Current Case:
The court addressed the effect of earlier judgments, particularly the case of Rajinder Singh Patpatia, where the High Court's order was confirmed by the Supreme Court by dismissing the Board's Special Leave Petition at the threshold. The court referred to the judgment in Kunhayammed & Ors Vs. State of Kerala & Anr., which held that mere dismissal of a Special Leave Petition at a preliminary stage does not constitute a binding precedent. Thus, the earlier order of the High Court and the Supreme Court in Rajinder Singh Patpatia's case did not create a bar from re-examining the matter on merits.

Conclusion:
The Supreme Court set aside and quashed the impugned order of the High Court, concluding that the respondent-employee was not entitled to the higher scale of pay as he did not fulfill the pre-requisite qualifications. The court directed that the amounts already paid to the respondents would not be recovered by the Board, considering the long lapse of time and the fact that the respondents had already retired. The appeals were allowed, with the parties bearing their own costs.