Allahabad High Court
P.K. Malik Son Of Pandit Vidur Malik vs State Of U.P. Through Principal ... on 22 September, 2005
Equivalent citations: 2005(4)ESC2404
Bench: Sunil Ambwani, Rakesh Tiwari
JUDGMENT
A.N. Ray, C.J., Sunil Ambwani and Rakesh Tiwari, JJ.
1. The short order of reference made to us, is set out below:
"This writ petition has been filed seeking the benefit of the Government Order dated 17.10.1998 for making those Instructors as Lecturers who had been performing the duties of Lecturer, even though they had never applied for the post of Lecturer or faced any selection process for the said post. In view of the law laid down by the Hon'ble Apex Court in Ram Ganesh Tripathi and Ors. v. State of U.P. and Ors, , we doubt the power of the Government to issue the said Government Order dated 17.10.1998. More so, placing reliance upon the said Government Order, the Division Bench of this Court had given retrospective effect to the said Government Order, though such terms were not retrospective effect to the said Government Order, though such terms were not incorporated therein, in writ petition No. 32098 of 1999, Dr. Swatantra Bala Sharma v. State of Uttar Padesh and Ors., decided on 17"' September, 1999. The said petitioner namely Dr. Swatantra Bala Sharma had earlier filed a writ petition for the same relief prior to the commencement of the said Government Order dated 17.10.1998 which had been dismissed and the Special Leave Petition filed against the same had also been dismissed by the Hon'ble Apex Court. We doubt the correctness of the judgment given by the Division Bench of this Court in Writ Petition No. 32098 of 1999, Dr. Swatantra Bala Sharma v. State of Uttar Pradesh and Ors., decided on 17"' September, 1999 and request the Hon'ble Chief Justice to refer the matter to a Larger Bench on the following issues:
"(1) Whether the Government could issue the Government Order dated 17.10.1998 treating the Instructors as Lecturers, though they had never applied for the said post nor they had been appointed as Lecturer when the process of selection and eligibility etc. is entirely different on the post of Lecturers and teacher includes only Professor, Reader and Lecturer?
(2) Whether without bracketing both the posts, i.e. Instructors and Lecturers, the government could issue the Government Order dated 17.10.1998 treating the Instructors as Lecturers?
(3) Whether in the absence of any provision in the said Government Order to give effect to the said order with retrospective effect, the Division Bench could grant the relief that they shall be deemed to have been appointed as Lecturers from the date of initial appointment as Instructors?"
2. The referred questions are three in number. In our opinion, with great respect and due deference to the Hon'ble Division Bench, there are in fact four questions. The fourth implicit question is given below:
(4) Whether the judgement given by the Division Bench in writ petition No. 32098 of 1999, Dr. Swatantra Bala Sharma v. State of U.P. and Ors. was a correct judgment in law?'
3. The facts giving rise to this writ petition before us are regarding the persons who were holding the post of Instructors in the University. Several of them have come before the Court from time to time claiming substantial equality with Lecturers. The claims have been made that they should have been given designation as Lecturer and also be paid salaries as Lecturer from the very dates of their appointment as Instructors.
4. The matter received very large scale attention from the State Government when the order dated 17.10.1998 was passed wherein it was provided that the Instructors, in any department would be given designation and pay as Lecturers from the date of promulgation of the said Government Order. However, ' the Instructors have not felt satisfied with that. They from 1998, claimed before the Courts for this additional benefit that the Instructor should get designation and pay as Lecturer from even before 1998, and such benefit should commence from the very dates of their respective appointment. It is in this background that the Hon'ble Division Bench has sent the questions to us for determination.
5. So far as the first question is concerned, we answer it in the affirmative. It is our opinion that it was possible for the Government, as the substantial employer, who issued the order dated 17.10.1998 to treat Instructors and Lecturers as equivalent even though they have differences in the matters of selection and eligibility. It is possible in law for the employer to treat apparent unequals as equals and grant them identity of designation and pay. If there is any discrimination, then in that event it is for the employee to bring that fact before the Court. So long as that is not done, on the basis of basic power of the employer, who passed the orders for the purposes of equalisation of different types or grades, cannot be doubted or disputed. The power of Government to issue orders dated 17.10.1998 was of a plenary nature.
6. So far as the second question is concerned, we are of the opinion that even without bracketing both the posts i.e. Instructor and Lecturer, the Government could issue the order dated 17.10.1998, subsequently for the equalisation of benefits of the two posts. It is again for the employers in the first place to consider and determine whether the persons with different channels of entry will be entitled to enter, So to speak, in the same room or in the same house, and thereby be entitled to the same benefit and rights and liabilities which will be substantially equal amongst themselves. Again, if there is any discrimination, that is to be gone into expressly only in appropriate proceedings filed by aggrieved section of employees, if at all there is ever such litigation; it is not for the Court suo motu to consider the matter of discrimination. It should, on the other hand, accord full validity and effect to the order passed by the employer government.
The third question by the Hon'ble Division Bench is, in our respectful opinion, to be taken up along with the implicit question which is about the correctness of the decision of Swantra Bala's case.
7. Just before the Government Order dated 17.10.1998 had come to be promulgated, a Full Bench decision had been in the offing which was delivered immediately after the promulgation of the order dated 17.10.1998. This was the decision given in the case of Dr. Ajay Kumar Jaitley, which is reported at 1999 (1) UPLBEC 388. In paragraph 29 of the said judgment, the Court was careful to point out that the Government Order dated 17.10.1998 was not before it. From the wording of the said order dated 17.10.1998, and also on the basis of materials on record presented before the Division Bench, it is clear that the Division Bench did go on to lay down certain points of in equality existing according to it as between Instructors and Lecturers.
8. After the order of 17.10.1998 was promulgated, came the decision in Swatantra Bala's case, which was delivered by a Division Bench on 17.9.1999. In the paper book before us, the said judgment is to be found set out from page 24 and at page 35 thereof and internal page 13 of the said judgment, the following sentence occurs:-
"In our opinion, there is clear discrimination against the petitioner because the Instructors who were in other departments were given designation and pay of lecturers from the date of the initial appointment as Instructors".
9. Then again on the next page, the Division Bench said:
"In our opinion since the Instructors of other departments were given benefits of the appointment of the Lecturers from the date of their initial appointment as Instructors, hence there cannot be discrimination against the petitioner otherwise, Article 14 of the Constitution will be violated"
10. In the ordering portion, the Division Bench directed the respondents to treat the petitioner as Lecturer from the date of initial appointment as Instructor on 29.12.1980, and to give her arrears of balance of salary, if any as Lecturer from the said date.
11. The movetary importance of making the operation of the Government order retrospective can easily be seen. The Division Bench referring the matter to us, has seen it fit to doubt the decision given in Swatantra Bala's case.
12. In our respectful opinion, the decision in that case falls in two different parts. In the first part, as a matter of assessment of fact, it was laid down that Instructors of other departments were given benefit of being appointed as Lecturer from the dates of their initial appointment. This is a /Conclusion of clear facts only. So far as this conclusion of cleary and only facts is concerned, it is binding, unless the judgment is set aside by a Higher Court, between the parties only. In our opinion, this factual determination should not be taken as a judgment in rem.
13. We have examined Swantrantra Bala's case in detail and with respect, the somewhat scanty details of facts as to how many Instructors were given the benefit of being appointed as Lecturers from the dates of their initial appointment in which the different departments in the University these are not very apparent from the judgment. The next time, the matter comes before the Court, in our opinion, it will be open to the Court to examine whether the Instructors' have actually been given such benefits from the previous date. It would also be open to the Court to examine whether the Instructors claiming retrospective benefits are similarly situated as the other Instructors, who have, if at all, got such retrospective benefits.
14. Once these facts are established, it would again be open to the Court to examine whether a mixed question of fact and law is made out i.e., whether refusal of retrospective benefits to the petitioner before the Court would clearly and obviously discriminate thus calling for constitutional correction from the Court.
15. This part of Swatantra Bala 's case would not bind the Courts in future, but once the discrimination is established, as was held established by the Division Bench in Swatantra Bala's case, then and in that event, it would clearly be within the jurisdiction of the Court to remove that discrimination, and direct even the operation of the Government Order to be given retrospective effect to the writ petitioners, although the Government Order contains no such retrospective provision as per its terms and words. This is the clear law, that the Constitution and Article 14 are superior not only to Government Orders but even to the Acts of Parliament. The Constitution is equal only to itself, and sale-sarvient to none. It is for the Court to enforce the Constitution and its mandates into Acts and orders, and for that purpose, it can pass either positive orders according benefits to / parties or it can nullify orders cancelling the whole or ;parts of any other law. In this view of the matter the third question is also answered. Thus the Division Bench in Swatrantra Bala's case had rightly held that Court can grant relief by way of making a government order, particularly the Government Order dated 17.10.1998 retrospective in operation even, if the Government had failed to do so by itself, it would be an exercise by the Court in in removing unconstitutionality. The way we read question No. 3 referred by the Division Bench before us, it appears to us that the question is not one in regard to correctness of the decision of the Swantantra Bala's case; but if is a question with regard to the
16. Court's powers which can be exercised under Article 14 for kthis the sky is the limit, but that thought the limit is so high the Court must only very carefully exercise the powers for enforcing equality never acting eursorily.
17. The questions are thus answered as above and the matter will now go before the Bench having the jurisdiction in the matter for decision in accordance with law.