Allahabad High Court
State Of U.P. And 2 Others vs Mohd. Ramjan And Another on 2 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1583, 2019 (6) ALJ 604, (2019) 10 ADJ 815 (ALL), (2019) 5 ALL WC 4644
Bench: Manoj Misra, Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 42 Case :- SPECIAL APPEAL No. - 622 of 2019 Appellant :- State Of U.P. And 2 Others Respondent :- Mohd. Ramjan And Another Counsel for Appellant :- Ghanshyam Dwivedi Counsel for Respondent :- Sunil Kumar Srivastava Hon'ble Manoj Misra, J.
Hon'ble Suresh Kumar Gupta, J.
(Delivered By Hon'ble Manoj Misra, J.) This intra-court appeal has been filed against the judgment and order dated 12.12.2018 passed by the learned Single Judge in Writ A No. 5163 of 2003 by which the writ petition filed by the respondents has been allowed and a direction has been issued to the state-authorities (the appellants herein) to treat the writ petitioners at par with other Instructors and place them in pay scale of Rs. 5,000-8,000 with all consequential benefits.
Before we proceed to address the arguments raised in this appeal, it would be apposite for us to have a glimpse of the facts of the case.
The writ petitioners (the respondents herein) were appointed as Instructor in Government Industrial Training Institute (for short GITI) in the year 1981 against the post of Wood Work Instructor. In the year 1989, the GITI was merged with Industrial Training Institute (for short ITI) as a consequence whereof the writ petitioners became employee of the ITI and they continued to work as Wood Craft Instructor. Prior to the merger, both the institutes, that is GITI and ITI, were under the Director, Training and Employment, Govt. of U.P., Lucknow (for short Director Training). Post merger also the institute (ITI) remained under the Director Training. However, an anomalous situation in respect of the pay scale of the Instructors arose. The writ petitioners who were from the GITI were maintained at the pay scale of Rs. 3200-4900 whereas the Instructors who had been appointed in the ITI were in the pay scale of Rs. 5000-8000. The writ petitioners claimed that post merger there existed just one class of Instructors in the ITI, regardless whether they came from GITI or had been, since before, in the ITI, therefore they were entitled to the same pay scale. It appears that prior to filing Writ A No. 5163 of 2003, the writ petitioners, seeking pay parity, had filed Writ A No. 6619 of 2002 in this Court which was disposed off, vide order dated 15.02.2002, with a direction to the authorities to consider and decide the representation of the writ petitioners made in that regard. Pursuant to the direction given in that writ petition, by order dated 29.11.2002, the Principal Secretary, Labour Department, on behalf of the State, took a decision that under the present set of service rules, as amended in the year 1994, there is no provision for enhancement / up-gradation in salary of an Instructor payable in the pay scale of Rs. 3200-4900 to that of Trade Instructor payable in the pay scale of Rs. 5000-8000 because the post of Trade Instructor is a post which is to be filled by direct recruitment and the eligibility qualifications of an Instructor are different from that of Trade Instructor and as such it is not legally permissible to place the writ petitioners, who were appointed as Instructors in the pay scale of Rs. 3200-4900, in the pay scale of Rs. 5000-8000 admissible to Trade Instructors.
Assailing the order dated 29.11.2002, the writ petitioners (the respondents herein) filed Writ A No. 5163 of 2003 claiming that as GITI got merged with ITI and the Instructors in GITI continued as Instructors in the ITI and there being no separate cadre of Trade Instructor in the service rules, which speaks of only one cadre, that is of Instructors, the writ petitioners who were performing same duties and functions were entitled to same pay scale. It was urged that in the year 1991, U.P. Industrial Training Institutes (Instructors) Service Rules, 1991 (for short Service Rules, 1991) were framed and notified by the Governor in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. In those rules, which are applicable to the writ petitioners, there is just one cadre, that is of Instructors, and no distinction has been drawn between an Instructor and a Trade Instructor. Hence, the writ petitioners who are performing same duties and functions as any other Instructor and hold Diploma in Wood Working, are entitled to the same scale of pay as payable to the so-called Trade Instructors in the establishment.
In paragraph 5 of the counter-affidavit filed in Writ A No. 5163 of 2003, the stand taken by the respondents (appellants herein) in the writ petition was that before merger between GITI and ITI in the year 1989, there were two types of Instructor, one, lower grade instructor, who were working in GITI in the pay scale of Rs.3200-4900 (old Rs.200-320), and the other, an Instructor, working in ITI in the higher pay scale of Rs. 5000-8000 (old Rs.1400-2600). It was claimed that the pay scale of Rs.5000-8000 is admissible only to those Instructors who were working as Trade Instructor. It was also claimed that qualification of lower grade instructor is just a certificate/ diploma whereas for appointment as Trade Instructor one is required to complete course from NCVT apart from other qualifications. It was claimed that the writ petitioners have not completed the course from NCVT.
In a nutshell, the stand of the appellants (respondents in the writ proceedings) before the writ court was that the higher pay scale was admissible only to the Trade Instructors whose qualifications were higher and not to the writ petitioners as they did not possess those qualifications.
The learned Single Judge found that as it was not in dispute that the two sets of institutes, namely, GITI and ITI, got merged, and the Service Rules, 1991 did not draw a distinction between the lower grade instructor and the higher grade instructor, as claimed by the state-respondents, and, in fact, the Service Rules, 1991 provided for a solitary cadre of Instructor, denial of the same pay scale to the erstwhile GITI Instructors is arbitrary and violates Article 14 of the Constitution of India.
We have heard Sri Ghanshyam Dwivedi, learned Standing Counsel for the appellants; Sri Sunil Kumar Srivastava for the writ petitioners (respondents) and have perused the record.
The learned counsel for the appellants contended that the learned Single Judge has failed to consider that the post of Trade Instructor is to be filled by direct recruitment, under the Service Rules, 1991, and, to hold that post, minimum qualifications are prescribed which are higher than those possessed by the writ petitioners, therefore the writ petitioners, who were not eligible to be appointed on the post were not entitled to the pay scale admissible to the post of Trade Instructors. Therefore, the order of the learned Single Judge is liable to the set aside.
Per contra, the learned counsel for the writ petitioners (the respondents herein) submitted that in paragraph 5 of the writ petition it has been specifically stated by the writ petitioners that they were fully qualified and they possess certificate of diploma in Wood Working and were selected and appointed only after interview by a Selection Committee. It has been urged that there is no specific denial of the averments made in paragraph 5 of the writ petition though, in an ambiguous manner, in paragraph 7 of the counter affidavit, it is stated that the averments made in paragraph 5 of the writ petition are not admitted as stated inasmuch as the Director had made appointment in lower grade. It has been urged that the assertion of the writ petitioners that they possess certificate of Diploma in Wood Working (Craft) has not been denied. It has also been urged on behalf of the writ petitioners that the learned Single Judge has examined all aspects and has correctly held that as it is not in dispute that the Service Rules, 1991 provide for a solitary cadre post of Instructor and no distinction between higher and lower grade Instructor has been drawn in the service rules, and all kind of Instructors qua their trade are performing the same duties, the claim for pay parity is justified.
Having heard the rival submissions, at the outset we may observe that the learned counsel for the appellants has not questioned the observation made by the learned Single Judge in paragraph 54 of the judgment, which is extracted below:-
"54. When questioned, learned Standing Counsel could not dispute that prior to 1991 there were no service rules, as such applicable, to Instructors appointed in G.I.T.I. and I.T.I. He also could not dispute that two sets of institutes when merged together, all Instructors working therein were treated as a single lot and their sanctioned strength was noticed in Rule 4 of Rules, 1991 as 1931 permanent and 1011 temporary, total 2942. This strength has now been reduced by Second Amendment Rules, 2003 to 1597 permanent and 1168 temporary i.e. 2765 in total. He also could not dispute that in the work, duties and responsibilities of petitioners qua other Instructors, there is no distinction. It may be noticed that Instructors, who were appointed in I.T.I. prior to 1989, as a matter of fact, may have possesses Certificate or Diploma or other qualification, but, the fact remains that at the time of merger in 1989, when two Institutes were merged, no distinction was carved out by State between persons working as 'Instructor' in these Institutes since all were discharging same duties."
Further, upon careful perusal of the record as also the Service Rules, 1991, as amended from time to time, we find that Rule 4 of the Service Rules, 1991 provides for the cadre of service. Sub-rule (2) of Rule 4 provides for the strength of the service and the number of posts therein. It discloses the name of the post as Instructor of which the number of posts, that is strength of the cadre, is given in sub-rule (2) of Rule 4. There is no mention of Lower Grade Instructor or Higher Grade Instructor in the Service Rules, 1991. Rule 8 of the Service Rules, 1991 provides for the academic qualifications. It provides the qualifications for different trades relating to the post of Instructor, not for higher or lower grade. At Serial No.7, which is now at Serial No.6, post amendment in the year 2003, Carpenter is enlisted as one of the Trades for the post of Instructor. The essential qualification for the post of Instructor in the Trade of Carpenter is Diploma in Wood Working. The Rule 8 of Service Rules, 1991, as was initially notified (prior to amendments), is extracted below:-
"8. Academic Qualification - A candidate for recruitment to a post in the service must possess the following qualifications:
(A) Essential- (1) Educational-
(i) Must have passed Intermediate Examination from the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognised by the Government as equivalent thereto.
(ii) Must have obtained a certificate in the respective trade from the National Council for Training in Vocational Trades.
Or Must have obtained National Apprenticeship Certificate in the respective trade;
Or Must have obtained the following diploma relating to the respective trade from Board of Technical Education, Uttar Prdesh or from any other Institution recognised by the Government:
Sr. No. Trade Desirable Diploma
1. (A) Radio/T.V. Mechanic : Diploma in Electronics.
(B) Electronics Mechanic : Diploma in Electronics.
2. (A) Stenographer English : Diploma in Secretarial Practice.
(B) Stenographer Hindi : Diploma in Secretarial Practice.
3. (A) Surveyor : Diploma in Civil Engineering (B) Draftsman Civil : Diploma in Civil Engineering
4. Refrigeration and Air Conditioning Mechanic : Diploma in Refrigeration and Air conditioning Engineering.
5. Diesel Mechanic : Diploma in Automobile Engineering.
6. Draftsman Mechanical : Diploma in Drafting (Mechanic) and Designing.
7. Carpenter : Diploma in Wood working.
8. Cutting Tailoring : Diploma in Costume Design and Dress making.
9. Engineering Drawing : Diploma in Mechanical Engineering or Diploma in Draftsman from Industrial Training Institute.
10. Workshop Calculation : Diploma in Mechanical or Electrical Engineering.
Note: The candidate must have passed the National Council for Training in Vocational Trades or National Apprenticeship Certificate Examination or Diploma Examination in First Division.
2. Experience-
The candidate must have experience of not less than five years including the training period spent in National Trade Certificate or National Apprenticeship Certificate or Apprenticeship in any registered industrial concern for a period not less than three years or Diploma in the appropriate branch in the trade concerned.
3. Other---
Working knowledge of Hindi.
(B) Preferential- Successful training from Central Training Institute in respective Trade."
A perusal of the extracted Rule 8 of Service Rules, 1991 would reveal that a certificate in the respective Trade from National Council for Vocational Trade (NCVT) is one of the three alternative qualifications. The service rules that were applicable in the year 1991 would be relevant for the petitioners because they were appointed prior to it and the merger of GITI with ITI took place prior to 1991, that is in 1989, as would be clear from paragraph 5 of the counter affidavit filed by the appellants in the writ proceedings.
We find that in paragraph 5 of the writ petition it has been specifically stated by the writ petitioners that they hold diploma in Wood Working. In the counter-affidavit filed to the writ petition, the reply of paragraph 5 is given in paragraph 7 of the counter-affidavit where there is no specific statement that the writ petitioners do not hold diploma in Wood Working though, in paragraphs 5 and 9 of the counter affidavit, the eligibility of the petitioners for appointment as Instructor in the Trade of Carpenter is challenged by claiming that the writ petitioners do not possess certificate for the course from NCVT.
As we have found that in Rule 8 of the Service Rules, 1991, as applicable at the relevant time, one of the alternative essential qualifications was diploma from Board of Technical Education, Uttar Pradesh or from any other Institution recognised by the Government in the trades specified, non possession of certificate in the respective trade / course from the National Council for Training in Vocational Trade would not be fatal to their appointment on the post of Instructor if they hold the alternative eligibility qualification. We further find that the trade of Carpenter is one of the Trades enlisted in Rule 8 for which a diploma in Wood Working is required. The writ petitioners in paragraph 5 of the writ petition claimed that they possess diploma in Wood Working of which there is no specific denial in the counter affidavit, as noticed above. Under the circumstances, the argument of the learned counsel for the appellants that the writ petitioners do not possess the necessary qualification for the post has no legs to stand.
Otherwise, it is not in dispute that the two institutes, namely, GITI and the ITI were merged in the year 1989 and a solitary cadre of Instructors, though in different trades, in the ITI was created as would be clear from Rule 4 of the Service Rules, 1991. The Service Rules, 1991 do not carve out higher and lower grade for the post of Instructor. Further, at the time of merger of GITI and ITI, admittedly, the writ petitioners were in service as Instructors in GITI, therefore, post merger, when the Service Rules, 1991 provided a solitary cadre of Instructors, they cannot be deprived of the pay scale attached to the post of Instructors, by artificially carving out distinction, when there exists none, particularly, when it has not been demonstrated that their initial appointment was in any way illegal or that the duties assigned to them are functionally different from that of the other Instructors.
For all the reasons recorded above, we are of the view that the learned Single Judge was justified in allowing the writ petition and providing pay parity to the writ petitioners. The appeal is dismissed. There is no order as to costs.
Order Date :-02.08.2019 Sunil Kr Tiwari