Can the implemented judgement and order (in appeal) of HC be challenged in SC?

[Sadiq Hussain]

The revised pay rules were brought into force by the State Government of which I was an employee, from 01/04/2012. The rules do not provide for exercising any option either to be governed by new scales or to retain the old scales. Per contra, the same stipulate the condition precedent that the pay of every such Government servant who was in service as on 01/04/2012 shall be fixed in the revised scale very promptly and not later than 31/07/2012.

An employee was under suspension as on the date of coming into effect the said rules. Subsequently, the punishment of Compulsory Retirement came to be imposed on him while he was under suspension itself, without any order for reduction of pay or pension. The authority competent had fixed the pay of said employee in the revised scale from 01/04/2012, in the letter and spirit of the provisions of aforesaid rules, since the suspension of employee does not put end to his service. Pension was sanctioned to him accordingly.

The Accountant General refused to authorise the employee payments of retiral benefits based on new pay. He had recomputed, suo moto, the Pension and DCRG etc basing on his pay in the old scale. This action was quashed by the HC. Appeal filed against the judgement stood dismissed. Upon filing Contempt Petition by the employee the A.G. has implemented the judgement and order of the HC in their entirety, on 30/07/2015 itself.

But, the A.G. has filed SLP before the SC in the current year and succeeded in getting stayed the already operated judgement and order of HC.

My case is fully covered by the judgement and order of the HC which stood stayed by the SC, with the difference that I was unauthorisedly absent from duty and not under suspension like the employee in the above case.

Please do suggest me the legal remedies available to me.

[Dr. Ashok Dhamija]

You have mentioned that “Appeal filed against the judgement stood dismissed”, but it is not mentioned whether the appeal was filed before the Supreme Court or before the division bench of the High Court (if the order was that of a single judge bench of the High Court).

Generally speaking, there is no restriction in law against challenging an implemented order or judgment of the High Court (i.e., an order which has already been implemented), but the higher court (in this case, the Supreme Court) may observe that the order has already been implemented and that the challenge (i.e., the appeal in the higher court) is only an academic exercise and in such a case the appeal may be dismissed or may not be relevant for laying down the legal principle. But, some times, there are other reasons for challenging such order which has already been implemented. For example, the high court order may initially be in favour of a single person and the Government or authority concerned may implement that thinking that it does not have serious financial implications. But, subsequently, it may come to the notice of the authority that a number of other people may also claim similar benefit, which may have wider financial implications for the Government, so, therefore, the authority may decide to challenge such order even if it has been already implemented in respect of one or more employees.

However, this does not mean that you do not have remedy in this case. Firstly, you may also file an appropriate petition before the High Court and you may get a similar order from the High Court. Stay by the Supreme Court does not mean that the order of the High Court has been reversed as yet. As of today, the High Court order is valid, though stayed.

Second remedy for you would be to directly file an impleadment / intervening application before the Supreme Court in the case in which the High Court order has been challenged, on the ground that you would also be affected by its judgment. If your application is allowed by the Supreme Court, you may also be named as a respondent and you would be heard by the court and you can make your own submissions. In such a case, the judgment of the Supreme Court would be directly applicable to your case also.
     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Sadiq Hussain]

Dear sir (Dr. A. Dhamija ji),
I regret, the judgement was rendered by a Single Bench of the High Court and the Appeal was preferred before the Division Bench, as rightly guessed by your expertise.
Sir, if you permit me to continue with this query, I may mention here that the facts and circumstances of this case, per my little knowledge, are very peculiar in nature. In fact, the suspended employee had belonged to judiciary department and the authority which had sanctioned his pension was the Principal District and Sessions Judge.
The sanction so accorded was within the framework of the rules governing the conditions of sanction. The Pension Verification Manual of the Accountant General makes it mandatory on the part of the said authority for serving notice to both the sanctioning authority and the pensioner pointing out irregularity, if any, found by it in the sanction of pay fixation. This dictum was never complied. Rather, the Principal Accountant General had reduced suo moto and unilaterally the entire benefits to 50% of the benefits which were sanctioned by the jurisdictional authority. It was this order of reduction had fell for consideration of the HC. Accordingly, the very same impugned order stood quashed by the Single Bench. In other sense the validity and legal sanctity of sanction accorded by the competent authority of the parent department of the pensioner was upheld. Despite, the sanctioning authority (Principal District Judge) had colluded with the A.G. to file the WA before the Division Bench, as if it was disputing its own sanction. Although, this legal aspect was not raised on behalf of the pensioner, the W.A came to be dismissed by the Division Bench.
Similarly, the SLP also was filed jointly by the Principal District Judge (sanctioning authority) as 1st Petitioner and the Accountant General (authorising authority) as 2nd Petitioner. However, an application was moved before the Hon’ble SC for deletion of the 1st Petitioner and thereby another SLP is filed by the Accountant General alone.
So, kindly suggest me about the most effective remedy to be availed by me, since the payment pension as sanction accorded to me by the competent authority of my department is still valid, like the sanction in the case referred to by me.
If, the law permits me to approach directly to the Hon’ble SC, please inform me about the probable costs thereof, for which I shall remain ever thankful to you sir.

• This reply was modified 8 years, 6 months ago by Sadiq Hussain.

[Dr. Ashok Dhamija]

It appears that you have not approached the high court so far. The options before you could perhaps be like this (on the basis of whatever information is available in your question):

(1) Write to your authority for grant of the benefit in accordance with the decision of the high court, under which your case is fully covered, as you have mentioned (this is presuming that you’ve so far not applied to the authority. As of today, the high court has not be set aside, though stayed by SC.

(2) If the department grants you the benefit, well and good. But, if the department does not grant the benefit to you, citing the stay granted by the Supreme Court in the above case, then you may perhaps get a cause of action to approach the Supreme Court in the above case as an intervener since in that case your interest is also affected by the future decision of the SC. Alternatively, you can approach the high court citing authority’s refusal to grant you the benefit. If the high court gives you benefit, again it is good for you. But, if the high court refuses to give you the remedy on the ground of its judgment having been stayed, in that case also you may perhaps intervene in the Supreme Court in the above case.

(3) The third option, of course, would be to do nothing other than writing to your authority and just to wait for decision of the Supreme Court. If the SC ultimately dismisses the SLP, your authority would be bound by it and would have to grant you the similar benefit if your case is covered by it.      

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Sadiq Hussain]

Sir, the paying authority, upon such representations made by me, has made a report to its supriors under intimation to me. It is contended therein that the judgement of the HC in the aforesaid case has not reached the finality on account of Government’s decision of filing SLP before th SC.This report dates back to 17/12/2015. However, the first SLP (C) was filed not earlier than. 23/01/2016.

[Dr. Ashok Dhamija]

In that case, you may please consider one of the options mentioned earlier.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Sadiq Hussain]

Dear sir,

I salute you and your patience, since the queries made by me so far were considerably lengthy. Despite, you have extended your helping hand towards me.

Frankly speaking, I had submitted a query to another forum of experts, like this, with all most all same length. But, the experts had asked me to precise the same.

Thus, my cherished aspirations have have been fulfiulled by you sir.

So, I would request your goodself to accept my deep hearted gratitudes and thanks.

[Author]

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