Allahabad High Court
State Of U.P. Through Prin. Secy. Home ... vs Jai Prakash Gupta & 2 Ors. on 3 December, 2013
Bench: Abdul Mateen, Devi Prasad Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH High Court of Judicature at Allahabad Lucknow Bench Lucknow *********** [RESERVED] Reserved On:- 18.11.2013 [ A.F.R. ] Circulated On:-28.11.2013 Delivered On:- 03.12.2013 Court No. - 25 Case :- SERVICE BENCH No. - 1691 of 2012 Petitioner :- State Of U.P. Through Prin. Secy. Home Lko. & 2 Ors. Respondent :- Jai Prakash Gupta & 2 Ors. Counsel for Petitioner :- C.S.C. Counsel for Respondent :- C.S.C.,Avdhesh Shukla Hon'ble Abdul Mateen,J.
Hon'ble Devi Prasad Singh,J.
[Per Devi Prasad Singh, J.]
1. Instant writ petition under Article 226 of the Constitution of India, has been preferred against the judgment and order dated 29.3.2012, passed by the U.P. State Public Services Tribunal, Lucknow in Claim Petition No.222 of 2010 (Jai Prakash Gupta. Vs. The State of U.P. and others). The Tribunal allowed the claim petition and directed the petitioners to consider the case of the claimant respondents for grant of scale of S.I. (M)/Steno equivalent to Assistant Programmer and pass order accordingly. The Tribunal also directed to count the services of the claimant respondents rendered by them in Uptron India Limited, for pensionary and other retiral benefits in pursuance of the provisions contained in Rule 19 (3) of the U.P. Police Computer Staff (Non-Gazetted) Service Rules, 2002 (in short Rules).
2. While preferring the claim petition before the Tribunal, the claimant respondent preyed for following relief, to reproduce from claim petition:-
"8. RELIEF SOUGHT:
Wherefore, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to:-
(i)Issue a Claim, order or direction, commanding the opposite parties to consider the case of the petitioner for post of Assistant Programmer.
(ii)Issue a Claim, order or direction, commanding the opposite party no.3 to consider the period of service rendered by the petitioner in Uptron India Ltd. while calculating the service in the Police Department.
(iii)Issue a Claim, order or direction, commanding the opposite parties to pay to the petitioner salary of the post of Assistant Programmer on the basis of equal pay for equal work.
(iv)To award the cost of the petition.
(v)To issue such order direction as the Hon'ble Court deems fit and proper in the circumstances of the case."
3. The claimant respondent, a graduate having undergone ITI Training, was appointed as Technician-A, by the order dated 26.12.1988 in the pay scale of Rs.950-1550 in accordance with Rules in Uptron India Limited. In view of satisfactory service record, he was promoted to the post of Technician-B from 7.10.1993 in terms of recommendation of 4th Pay Commission (Annexure No.2 to the claim petition). The claimant respondent had undergone Training in Computer in the year 1997.
4. The Uptron India Limited was running in loss. In consequence thereof, it was declared a sick industry and referred to Board of Industrial and Finance Reconsideration (in short BIFR) in the year 1993. The IFCI was appointed as operating agency. The financial condition of the Company further deteriorated over the years so much so that payment of salary to its employees became difficult. The production of Uptron India Limited closed since 1998. The matter is still pending with BIFR. As such, by the Government order dated 26.11.2002 it has recommended for complete closure of Uptron India Limited and sent to BIFR. Winding up petition was also filed which is pending.
5. In order to reduce the manpower, the Government started looking for possibility of deployment in other Government departments on deputation, contract or body shopping etc. Voluntary scheme was also launched for which fund was provided by the State Government. Out of these employees deployed on contract/deputation basis with other departments, 235 employees have been adopted by the Government departments and 446 are still working on contract/deputation/body shopping basis. Only 1350 employees have opted for voluntary retirement scheme and absorption of remaining employees who were on deputation/contract basis is under consideration of the State Government.
6. The claimant respondent who is the confirmed employee of Uptron India Limited (a Government Company), appeared in written test conducted on 8.3.1998 by the U.P. Police Computer Centre, Lucknow, the petitioner No.3 for inducting computer trained persons on deputation. The scheme of examination contains three categories of posts i.e., Sub-Inspector, Electronic Data Processor (E.D.P.) 5500-190-9000, Head Constable 3200-4900 and that of Constable in the pay scale of Rs.3050-4590.
The claimant respondent appeared in the examination for the post of Head Constable and equivalent post and he successfully qualified along with 60 others.
7. In spite of the fact that the petitioner qualified for second category of post (supra) along with 60 others, an order dated 22.6.1998 was served providing therein that the persons having Computer expertise would be appointed on contract basis on the vacant post of Sub-Inspector, Ministerial/Steno for the period of one year. The order further provides, "service of such employees shall be governed by the rules applicable to them in the parent department. Their lien shall also be retained." Another office memo dated 17.10.1998 was issued on behalf of the Governor of the State providing that all 61 employees selected from Uptron India Limited, will be appointed on group contract basis in the Police Department and for that a contract shall be signed with Uptron India Limited. It was further decided that 325 posts of Constable would be frozen to adjust the employees of Uptron India Limited in Police Department and no appointment would be made against these vacancies and in due course of time, these posts will be surrendered. The budget sanctioned against these posts would be used to adjust the selected employees of Uptron India Limited.
8. Subject to aforesaid backdrop, an agreement was signed in June, 1999 between the State Government and the U.P. Police Computer Centre and Uptron India Limited. The Uptron India Limited agreed to lend services of its computer trained persons on contract basis. It may be noted that claimant respondent and others were not part of settlement between the Government, Uptron India Limited and U.P. Police Computer Centre, Lucknow. Neither the consent was obtained.
9. The Uptron India Limited relieved its 45 employees including the claimant respondent by an order dated 7.7.1999. Thus, a total number of 45 persons including the claimant respondent are continuously performing their duties to the satisfaction of the petitioners.
10. In the meantime, the Government notified U.P. Police Computer Staff (Non-Gazetted) Service Rules, 2002 (in short the Rules). Rule 19 deals with the absorption and appointment on contract etc. The High Level Committee constituted by the Government convened its meeting on 20.4.2002 wherein it was resolved that the employees of Uptron India Limited who had computer knowledge, should be adjusted in the department and the persons having knowledge of shorthand, should be adjusted on the post of SIM/ Stenographer. The claimant respondent has the knowledge of stenography and being eligible against the post of SIM/Stenographer, could have been benefited by the resolution of the High Level Committee.
11. A decision was taken in accordance with Rules for appointment by absorption to absorb the claimant respondent and another 45 persons having requisite knowledge of computer against 46 posts lying vacant in the department.154 posts were that of SIM/ Stenographer. However, later on, a decision was taken for bifurcation of 46 posts surrogating 40 posts of Sub-Inspector (Civil Police) having different scales and 6 posts of Head Constable (Civil Police) drawing different scales on the basis of office note. The decision for bifurcation seems to be not based on any Government order, memo or circular. The Secretary Home, wrote a letter dated 20.4.2004 that it would be appropriate to absorb the employees of Upton India Limited against 144 posts of SIM/Stenographer in terms of decision of High Level Committee in the Home Department. It appears that instead of adhering to decision taken by the High Level Committee dated 25.11.2005, the Deputy Director U.P. Police Computer Centre, appointed the petitioner on the post of Console Operator in the Police Department whereas, other similarly situated 40 employees of Uptron India Limited were absorb on the post of Assistant Programmer having high pay scale. DIG acted upon another Government order dated 9.11.2005 which seems to be not based on opinion of High Level Committee. The petitioner joined on the post of Console Operator with protest and objected with the change of service condition which is detrimental to his rights keeping in view the benefit given to other Uptron India Limited employees (supra). Being no action taken on petitioner's representation and after receiving a notice, the petitioner approached the Tribunal and the Tribunal allowed the claim petition directing the petitioners to provide benefit at par with other Uptron India Limited employees. The operative portion of the Tribunal's judgment is reproduced as under:-
"In view of the above observations, the instant claim petition is, hereby, allowed. The opposite parties are directed to consider the case of the petitioner for grant of scale of S.I. (M)/Steno equivalent to Assistant Programmer by issuing fresh orders with effect from the date of initial appointment in the light of the observations made in the body of this judgment. However, the payment of arrears of back wages after grant of scale shall be limited to three years before the date of filing of the claim petition only. It is further provided that the petitioner's services with the parent organization i.e., Uptron India Limited shall be counted towards qualifying services for pensionary and other retiral benefits in accordance with the provisions contained in Rule 19 (3) of U.P. Police Computer Staff (non-gazetted) Service Rules, 2002.
This order shall be complied with within a period of three months from the date of receipt of a certified copy of this order by the opposite parties.
No order is made as to costs.
Sd 29/3/2012 Sd 29/3/2012 (J.K. SANT) (PRAMOD KUMAR) MEMBER (JUDICIAL) (MEMBER (ADMN.) Judgment signed, dated and pronounced in the open Court. Sd 29/3/2012 Sd 29/3/2012 (J.K. SANT) (PRAMOD KUMAR) MEMBER (JUDICIAL) (MEMBER (ADMN.) Dated: March 29, 2012 RS"
12. Sri Anil Tiwari, learned Senior Counsel while assailing the impugned judgment and order passed by the Tribunal submitted that the impugned judgment and order is against the Rules (supra). The petitioner does not possess any fundamental or statutory right to claim appointment on the post of Assistant Programmer possessing higher pay scale. He would submit that the Tribunal had incorrectly interpreted the Rules (supra) and passed the impugned judgment on unfounded facts.
13. On the other hand, learned counsel for the claimant respondent defended the impugned judgment and order of Tribunal on the ground that the petitioner is entitled for equal treatment at par with the other employees of Uptron India Limited. He stated that claimant respondent under the government order and Rules, has right to seek employment under the Rules in question and on account of recurring cause of action, the Tribunal has rightly interfered and allowed the claim petition.
It shall be appropriate that appropriate Government orders and Rules be considered while considering the order passed by the Tribunal.
14. The Uttar Pradesh Police Computer Centre wrote a letter dated 24.2.1998 to the Managing Director Uptron India Limited informing that in terms of earlier communication (Annexure No.3 to the claim petition) 25.9.1997, necessary information with regard to 470 employees of Uptron India Limited, received by them, after scrutiny of 470 employees, it was decided to engage 390 employees in U.P. Police Computer Centre against the three categories of posts namely, Sub-Inspector, Head Constable and Constable (supra). The DIG further informed the Managing Director of Uptron India Limited that with regard to three categories, the examination shall be conducted on 8.3.1998 in National Degree College, Lucknow followed by practical test. Certain conditions were imposed by the DIG, U.P. Police Computer Centre to enable candidates to appear in the test. Relevant portion from the order dated 26.2.1998 is reproduced as under:-
"पुलिस विभाग एक अर्ध सैनिक संगठन है। यहां के कर्मियों का अनुशासन सैनिक अनुशासन पद्यति पर आधारित है। इसके अतिरिक्त यहां कार्य की प्रणाली भी इस प्रकार की है जिसमें कम समय में अधिक दक्षता से अधिकाधिक कार्य निपटाने का प्रयास किया जाता है। पुलिस विभाग में प्रतिनियुक्ति पर आने वाले कर्मयों को यहां के अनुशासन व कार्य पद्यति का कड़ाई से अनुपालन करना होगा। अतः यह आवश्यक है कि प्रतिनियुक्ति पर चयन हेतु लिखित परीक्षा में वे ही कर्मी सम्मिलित हों जो निम्नांकित शर्तों पुलिस विभाग में एक वर्ष की अवधि के लिए प्रतिनियुक्ति पर आने के इच्छुक हों:-
"1. प्रतिनियुक्ति पर आने वाले सभी कर्मियों को विभागीय अनुशासन का पालन करना होगा। विशेष परिस्थितियों में कर्मियों को कार्य भी सामान्य अवधि के अतिरिक्त समय में या अवकाश के दिनों में भी कार्य के लिए बुलाया जा सकता है। इसके लिए उन्हें अलग से कोई भत्ता देय नहीं होगा। कार्य की अवधि के संबंध में उन पर वही नियम लागू होंगे जो पुलिस विभाग के अन्य कर्मियों पर लागू होते हैं।
2. प्रतिनियुक्ति पर आने वाले कर्मियों को उनके प्रतिनियुक्ति के पद के अनुरूप वेतन, मंहगाई भत्ता व अन्य भत्ते अनुमन्य होंगे। चूंकि प्रतिनियुक्ति पर आने वाले कर्मी पुलिस एक्ट में भर्ती नहीं किये गये हैं अतः वेतन व मंहगाई भत्तों के अतिरिक्त अन्य भत्तों के संबंध में राज्य सरकार के ---(non-Police) कर्मियों की भांति नियम लागू होंगे।
3. प्रतिनियुक्ति पर आने वाले कर्मियों को पुलिस विभाग की कार्य प्रणाली के अनुरूप कार्य करने के लिए प्रशिक्षण लेना होगा।
4. प्रतिनियुक्ति पर आने वाले कर्मियों को राज्य के किसी भी जनपद या इकाई में नियुक्त किया जा सकता है। सभी पद स्थानान्तणीय हैं और प्रतिनियुक्त पर आने वाले कर्मी को विभाग की आवश्यकतानुसार एक स्थान से दूसरे स्थान पर स्थानान्तरित भी किया जा सकता है या विशेष कार्य के लिए नियुक्ति के स्थान से अल्प काल के लिए दूसरे स्थान पर भी भेजा जा सकता है।
5. समय समय पर आवश्यकता होने पर अन्हें विभागीय कम्प्यूटर प्रशिक्षण हेतु अथवा विशेष सरकारी कार्य से राज्य से बाहर भी भेजा जा सकता है। नियुक्ति स्थान से बाहर जाने पर उन्हें सामान्य राज्य कर्मियों की भांति---/दैनिक भत्ता अनुमन्य होगा।
6. कार्य अक्षमता या अनुशासनहीनता की स्थति में प्रतिनियुक्ति अवधि बिना किसी पूर्व सूचना के घटाई जा सकती है या प्रतिनियुक्ति को समाप्त कर कर्मी को वापस उसके मूल विभाग अपट्रान में वापस भेजा जा सकता है।
---------------"
15. The aforesaid condition reveals that the test was held for appointment on deputation and successful candidates were liable to be transferred to meet out the exigencies of service of the department and undergo related training. Though the test was held for appointment on deputation for the period of one year but later on, by office memo dated 22.6.1998 (Annexure No.5 to the claim petition), it is provided that computer trained employees of Uptron India Limited shall be appointed against existing vacancies of Sub-Inspector (Ministerial)/ Stenographer on contract basis for the period for one year. The office memo dated 22.6.1998 is reproduced as under:-
"उत्तर प्रदेश शासन गृह (पुलिस) अनुभाग-10 संख्या-1145/6-पु०-10-98-1200 (53)/98, लखनऊ: दिनांक: 22जून, 1998 कार्यालय ज्ञाप उत्तर प्रदेश पुलिस मुख्यालय के शासन को सम्बोधित पत्र संख्या-3/क-53-95 दिनांक 16-4-98 के अनुसार प्रदेश पुलिस में उप निरीक्षक (मिनिस्टीरियल)/ आशुलिपिक के 154 पद रिक्त चल रहे हैं।
2. उत्तर प्रदेश में द्रुतगति प्रचलित आधुनिकीकरण एवं कम्प्यूटरीकरण की प्रक्रिया को देखते हुए तथा कानून एवं व्यवस्था के रख-रखाव हेतु सूचनाओं के आदान-प्रदान में अपेक्षित तात्कालिकता को ध्यान में रखते हुए उक्त रिक्त 154 पदों को ऎसे कर्मियों से भरा जाना अपरिहार्य एवं समीचीन है जो कम्प्यूटर के कार्य में दक्ष हो और अपराध/कानून व्यवस्था से संबंधित आकड़ों/सूचनाओं के आदान-प्रदान में दक्ष हों।
3. उक्त अपेक्षाओं पर सम्यक विचारोपरान्त श्री राज्यपाल ने सहर्ष यह आदेश प्र्दान किये हैं कि उप निरीक्षक (मिनिस्टीरियल)/ आशुलिपिक के उक्त रिक्त पदों को अपट्रान इण्डिया लिमिटेड के कम्प्यूटर प्रशिक्षित कर्मियों से संविदा के आधार पर भरा जाय।
4. संविदा की शर्तें निम्नवत होंगी :-
(1)संविदा की अवधि एक वर्ष की होगी। संविदा के दौरान अपट्रान कर्मियों पर उनके पैतृक संगठन की नियमावली लागू रहेगी और बिना किसी पूर्व सूचना/नोटिस के इन्हें संविदा के मध्य भी इनके पैतृक विभाग में प्रत्यावर्तित किया जा सकता है। मूल विभाग में उनका लियन बना रहेगा।
(2)उन्हीं अपट्रान कर्मियों को संविदा के आधार पर लिया जायेगा जो पूर्व में योग्य पाये गये हों अथवा भविष्य में चयन/स्क्रीनिंग से योग्य पाये जायेंगे।
(3)रिक्त पदों के वेतनमान और संविदा पर लिये जाने वाले कर्मयों को अनुमन्य वेतन की समकक्षता सुनिश्चित की जायेगी।
(4)पेंशनरी कन्ट्रीब्यूशन के प्रकरण पर अलग से निर्णय लेकर आदेश निर्गत किये जायेंगे।
(एन० रविशंकर) सचिव।
पृष्ठांकन संख्या-1145 (1)/6-पु०-10-98, तद्दिनांक प्रतिलिपि पुलिस महानिदेशनक, उत्तर प्रदेश, लखनऊ को आवश्यक कार्यवाही एवं समस्त संबंधितों को सूचित कराने हेतु प्रेषित।
आज्ञा से, (एम० एन० प्रधान) उप सचिव।
पृष्ठांकन संख्या-1145 (2)/6-पु०-10-98, तद्दिनांक प्रतिलिपि निम्नलिखित को सूचनार्थ एवं आवश्यक कार्यवाही हेतु प्रेषित:-
(1)प्रबन्ध निदेशक, अपट्रान इण्डिया लि० लखनऊ।
(2)निजी सचिव, प्रमुख सचिव (इलेक्ट्रानिक्स) प्रमुख सचिव के सूचनार्थ प्रेषित।
आज्ञा से, (एम० एन० प्रधान) उप सचिव।"
16. Another Government order dated 17.1998 (Annexure No.6 to the claim petition) provides that 61 selected employees of Uptron India Limited who were selected in the examination, will be engaged on group contract basis in U.P. Police Department. They will remain on roll of Uptron India Limited and all expenditure with regard to perks and salary etc., shall be remitted to Uptron India Limited by the Police Department. The office memorandum dated 17.10.1998 (supra), is reproduced as under:-
"उत्तर प्रदेश शासन गृह (पुलिस) अनुभाग-10 संख्या-2961/6-पु०-10-98-1200 (53)/98, लखनऊ: दिनांक: 17 अक्टूबर, 1998 कार्यालय ज्ञाप उत्तर प्रदेश में द्रुत गति से प्रचलित आधुनिकीकरण एवं कम्प्यूटरीकरण की प्रक्रिया को देखते हुए तथा कानून एवं व्यवस्था के रख-रखाव हेतु सूचनाओं के आदान-प्रदान में अपेक्षित तात्कालकता दृष्टिगत उत्तर प्रदेश पुलिस मुख्यालय में उप निरीक्षक (एम)/आशुलिपिक के 154 रिक्त पदों के विपरीत अपट्रान इण्डिया लिमिटेड के कम्प्यूटर प्रशिक्षित कर्मियों को संविदा के आधार पर भरे जाने संबंधी कार्यालय ज्ञाप संख्या-1145/6-पु०-10-98-1200 (53)/98, दिनांक 22 जून, 1998 के क्रम में अधोहस्ताक्षरी को यह कहने का निर्देश हुआ है कि इस मामले में विचारोपरान्त पूर्व में चयनित 61 अपट्रान कर्मियों को "ग्रुप कान्ट्रैक्ट" के आधार पर पुलिस विभाग में तैनात किये जाने की राज्यपाल महोदय ने सहर्ष स्वीकृति प्रदान कर दी है। उक्त व्यवस्था के अधीन संबंधित कर्मचारी मूलतः अपट्रान इण्डिया के कर्मी व अपट्रान के पे-रोल पर बने रहेंगे, परन्तु उनकी सेवाओं के उपभोग के एवज् में उनके वेतन भत्तों पर आने वाले सम्पूर्ण व्यय की प्रतिपूर्ति अपट्रान इण्डिया लिमिटेड को पुलिस विभाग द्वारा कर दी जायेगी। तद्नुसार अपट्रान इण्डिया लिमिटेड से अनुबंध कर लिया जाये।
इस संबंध में आने वाला व्यय पुलिस विभाग से संबंधित अनुदान के अन्तर्गत सुसंगत लेखा शीर्षक से मानक मद "16-व्यावसायिक एवम् विशेष सेवाओं के लिए भुगतान" से वहन किया जायेगा।
उक्त आदेश वित्त विभाग के अशासकीय-ई-12-2093/ दस-98, दिनांक 17-10-98 प्राप्त सहमति से जारी किये जा रहे हैं।
(एन० रविशंकर) सचिव।
प्रतिलिपि निम्लिखित को सूचनार्थ एवं आवश्यक कार्यवाही हेतु प्रेषित:-
1. महालेखाकार, उत्तर प्रदेश, इलाहाबाद।
2. कोषाधिकारी, इलाहाबाद/लखनऊ।
3. पुलिस महानिदेशक, उत्तर प्रदेश, लखनऊ।
4. प्रबन्ध निदेशक, अपट्रान इण्डिया लिमिटेड।
5. निजी सचिव, सचिव, इलेक्ट्रानिक्स।
6. निजी सचिव, सचिव, गृह।
आज्ञा से, (राम मोहन मिश्रा ) विशेष सचिव।"
17. In terms of the aforesaid office memo, an agreement was entered with Uptron India Limited, petitioner No.3 and the State Government. Thereafter, the claimant respondent along with S.K. Pandey and Sunil Kumar Mishra, was relieved by office order dated 8.7.1999 (Annexure No.9 to the claim petition). The Office order dated 7.7.1999 reveals that the claimant respondent and two others namely, S.K. Pandey and Sunil Kumar were engaged as Computer Operator on contract basis for one year in terms of tri-party agreement and relieved by the Uptron India Limited to join U.P. Home Department. In consequence thereof, the relieving order dated 7.7.1999 was issued which is reproduced as under:-
"UPTRON INDIA LIMITED LUCKNOW Ref: UIL:Par:SMA/99 (2) Dated: 7 JULY 99 OFFICE ORDER Consequent upon selection of following employees of your Division in Home Depp.UP on the post of Computer Operator on the contract signed between UPTRON Management and concerned employee and the Government of UP, through Secretary Home Deptt, which terms have been accepted by the concerned employees, they may be relieved with immediate effect to join UP Home Deptt and report for Duty to Secretary, Home Department, Annexe Govt. Of UP, Lucknow.
1. Mr. S.K. Pandey, Asst 'B', CCD
2. Mr. Sunil Kumar Mishra, Jr. Officer, CCD
3. Mr. Jai Prakash , Tech. 'B' CCD The lien of the concerned, employee will be retained with UPTRON during this period.
This issues with the approval of the Competent Authority.
(B.K. Mathur) Manager (Personnel)"
18. The Government notified Rules on 31.12.2002 , the Uttar Pradesh Police Computer Staff (Non-Gazetted) Service Rules, 2002 (in short 2002 Rules). Clause (h) of Rule 3 defines, 'member of the Service' means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the service. Sub-rule (k) deals with the substantive appointment. For convenience, sub-rule (h) and (k) are reproduced as under:-
(h) 'member of the Service' means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the service.
(k) 'Substantive appointment' means an appointment, not being an ad hoc appointment; on a post in the Cadre of the service, made after selection in accordance with rules and, if there were no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government:
19. A plain reading of definition clause of Rule 3 reveals that member of service includes all those employees appointed in pursuance of the order prior to enforcement and commencement of Rules and substantive appointment includes the appointment made in pursuance of procedure prescribed by executive instructions prior to enforcement of rules.
20. The cadre of service has been defined under Rule 4 of 2002 Rules. The cadre includes the post of Console Operator/ Head Constable (Computer); Assistant Programmer/Sub-Inspector (Computer) and Programme / Inspector (Computer).
21. Rule 5 deals with the source of recruitment which provides Console Operator shall be appointed by direct recruitment and Assistant Programmer/Sub-Inspector to be appointed to the extent of 75% by direct recruitment and 25% by promotion from substantively appointed Console Operator. The Programmer/Inspector (Computer) to be appointed to the extent of 25% by direct recruitment and 75% by promotion from amongst substantively appointed Assistant Programmer/Sub-Inspector (Computer) who have completed five years service on the first day of the year of recruitment. For convenience, Rule 4 and 5 are reproduced as under:-
"4. Cadre of service (1) The strength of the service and of each category of posts therein shall be such as determined by the Government from time to time.
(2) The strength of the service of each category of posts therein shall, until orders varying the same are passed under sub-rule (1), be as given below:
Sl. Name of Post Number of Posts No. Permanent Temporary Total
1. Consol Operator 4 3 7 Head-Constable (Computer).
2. Assistant Programmer/ 20 2 22 Sub-Inspector (Computer).
3. Programmer/Inspector 10 7 17 (Computer) Provided that
(i)The appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post,without thereby entitling any person to compensation; or
(ii) The Governor may create such additional permanent or temporary posts as he may consider proper."
22. Rule 19 deals with the appointment by absorption. It provides substantively appointed confirmed employees of the Government Department who have been working on deputation in the Computer Centre on post specified in sub-rule (2) of Rule 4 for not less than one year. The employees who intend to be absorbed on the post held by him, shall apply within 90 days intimating his intention for absorption to the appointing authority. The appointment authority shall consider the application with regard to absorption keeping in view the character roll and other service record. The absorption shall be done subject to consent accorded by the parent department. The employee found fit for absorption under Rules, shall be absorbed on the post in service held by him from the date of order of absorption passed by the appointing authority. The employees who do not move application or whose case is not processed for absorption or not found fit, shall be reverted back to his parent department in pursuance of provisions contained in sub-rule (4) of Rule 19. For convenience, Rule 19 of the Rules is reproduced as under:-
"19. Appointment by absorption--(1) A substantively appointed confirmed employee of a Government Department, who--
(i) has been working on deputation in the Computer Centre on any posts specified in sub-rule (2) of rule 4 for not less than one year on the date of commencement of these rules; and
(ii) intends to be absorbed on the post held by him; shall, within 90 days from the said date, intimate in writing to the appointing authority that he intends to be so absorbed.
(2) The appointing authority shall, before any recruitment is made under these rules, consider cases of employees, who opt for such absorption, on the basis of character rolls and such other record pertaining to them, as may be considered proper, and prepare a list of employees, in order of the dates of their joining the Computer Centre, who, in its opinion, are fit to be so absorbed.
Provided that no employee shall be considered for absorption under this rule unless his parent department consents to such absorption.
(3) An employee, who is found fit for absorption under sub-rule (2) shall be absorbed on the post in the service held by him with effect from the date of the order of absorption issued by the appointing authority and his service in the parent department shall, with effect from the same date, cease, but shall not entail forfeiture of his past services for retirement and pensionary benefits, and provisions of any rules or regulations to the contrary shall stand relaxed.
(4) An employee, who does not intimate his opinion under sub-rule (1) or who is not found fit for absorption under sub-rule (2), shall be reverted to his parent department."
23. The Home Department was informed by the DIG (Establishment), vide letter dated 18.3.2004 (Annexure No.11 to the claim petition) that 46 employees of Uptron India Limited may be absorbed i.e., 40 persons on the post of Sub-Inspectors and 6 persons on the post of Head Constables. In pursuance of the aforesaid letter, the State Government by its letter dated 20.4.2004 (Annexure No.12 to the claim petition), directed the IG, Establishment, Lucknow that keeping in view of the request made by the DIG with regard to absorption of services of employees of Uptron India Limited, it shall be appropriate that absorption could be done on the post of SIM/Stenographer and for that, employees' consent may be obtained. The letter dated 20.4.2004 (Annexure No.12 to the claim petition) is reproduced as under:-
"अर्ध शा०प०सं- 787 (1) एच.ई./छः-पु०-8-2004-1200 (53)/98 डी० दीप्ति विलास, गृह विभाग सचिव। गृह (पुलिस) अनुभाग-8 उत्तर प्रदेश शासन।
लखनऊः दिनांकः 20अप्रैल, 2004 प्रिय महोदय, अपट्रान कर्मियों के आमेलन के संबंध में आपके पत्र सं० 18-262-99 (कम्प्यूटर) दि० 18.03.04 के द्वारा गृह विभाग/पुलिस महानिदेशक के अधीन कार्यरत 46 अपट्रान कर्मियों को 40 उप निरीक्षक नागरिक पुलिस एवं 06 हेड कांस्टेबल नागरिक पुलिस के पदों को आस्थगित कर अपट्रान कर्मियों को अमेलित करने का प्रस्ताव दिया गया है।
यह कर्मचारी गृह विभाग द्वारा लिए गए पूर्व निर्णय के क्रम में एस. आई. एम./आशुलिपिक के आस्थगित रखे 154 पदों के सापेक्ष संविदा के आधार पर रखे गये हैं। इस परिप्रेक्ष्य में अपट्रान कर्मियों को एस. आई. एम./आशुलिपिक के आस्थगित रखे गए पदों के सापेक्ष ही आमेलन की कार्यवाही किया जाना यथेष्ट होगा। इसी अनुरूप पदों के आमेलन का प्रस्ताव शासन को उपलब्ध कराया जाए।
आमेलन के पूर्व इन कर्मियों की सहमति भी प्राप्त किया जाना समीचीन होगा। सहमति/घोषणा पत्र का एक प्रारूप इस आशय से संलग्न किया जा रहा है कि पुलिस महानिदेशक के अधीन कार्यरत अपट्रान कर्मियों की सहमति/घोषणा पत्र तद्नुसार प्राप्त कर शासन को दिनांक 22.04.2004 तक उपलब्ध कराने का कष्ट करें।
भवदीय, (डी० दीप्ति विलास) श्री ओ० पी० त्रिपाठी, पुलिस महानिरीक्षक, स्थापना, लखनऊ।
संख्या एवं दिनांक उपरोक्त प्रिय महोदय, उपर्युक्त की प्रतिलिपि आपको भी तद्नुसार कार्यवाही हेतु प्रेषित करने की मुझसे अपेक्षा की गयी है।
भवदीय, (डी० दीप्ति विलास) श्री प्रवीण सिंह पुलिस महानिरीक्षक, तकनीकी सेवाएं मुख्यालय, जवाहर भवन, लखनऊ।"
24. It appears that instead of taking decision in pursuance of aforesaid guidelines circulated by the State Government through letter dated 20.4.2004, relying upon another Government order dated 9.11.2005 (Annexure No.RA-1 to the rejoinder affidavit), Deputy Director, U.P. Police Computer Centre, passed the order dated 25.11.2005 to absorb the claimant respondent and others on the post of Console Operator from the date of their joining in the scale of Rs.3200-85-4900 placing them for one year probation.
25. In view of the letter dated 25.11.2005, the claimant respondent along with 5 others, were relieved by Uptron India Limited to join on the post of Console Operator and cancelled their lien with immediate effect. The pay scale of SIM (Stenographer) is Rs.5500-9000/- which is higher then the post of Console Operator bearing scale of Rs.3200-4500/-.
26. It is not disputed that out of 46 employees of Uptron India Limited who appeared in the examination and succeeded, 40 were appointed on the post of SI (Civil Police) and 6 were appointed on the post of Head Constable (Civil Police). The scale of SI (Civil Police) is higher than the scale of Head Constable. Forty persons were absorbed on the post of Assistant Programmer/SIM/Stenographer and remaining 6 including the claimant respondent, were adjusted against the post of Console Operator. The scale of Sub-Inspector/Assistant Programmer is higher than the scale of Console Operator or Head Constable.
27. The claimant respondent vehemently opposed the appointment and absorption on the post of Console Operator which according to him, is contrary to directions issued by the State Government vide order dated 20.4.2004 (supra).
28. While filing claim petition, the claimant respondent specifically pleaded in para 4.11, 4.15, 4.20 and 4.22 that while passing the order with regard to appointment and absorption for 46 employees of Uptron India Limited, bifurcation was done and 40 persons were chosen for appointed as Sub-Inspector Civil Police and 6 persons were chosen for appointed on the post of Head Constable of Civil Police or equivalent post. In consequence thereof, the claimant respondent was absorbed on Console Operator whereas, other similarly situated 40 persons were absorbed as Assistant Programmer possessing higher salary. It is specifically pleaded that the claimant respondent has been discriminated though he was performing same duty and same work like other 40 employees. While serving in Uptron India Limited, the service condition of the claimant respondent's employment was same as other 40 employees.
29. A perusal of the Government order dated 26.6.1998 contained in Annexure No.5 filed with the claim petition reveals that only criteria decided by the State Government for absorption of the claimant respondent and other incumbent was on proficiency in Computer. Those who were possessing required knowledge, were found to be eligible for absorption constituting one group or class.
30. While giving reply to the averments contained in para 4.2 to 4.16 of the claim petition before the Tribunal, the State Government in para 5 of the written statement admitted the facts and stated that since the averments contained in para 4.2 to 4.16 are based on records, are not disputed.
Once the averments contained I n para 4.2 to 4.16 of the claim petition have not been disputed by the Government before the Tribunal in view of Section 58 of Evidence Act, it requires no further evidence and deemed to be proved.
31. Attention has been invited to Government order dated 9.11.2005 filed as Annexure No.RA-1 to the rejoinder affidavit, which reveals that claimant respondent was appointed on the post of Console Operator. Since the facts given in the claim petition have not been disputed by the learned standing counsel, it does not appear justified to appoint the claimant respondent on the post of Console Operator when his knowledge and proficiency with regard to Computer Application, has not been disputed before the Tribunal.
32. Thus, the claimant respondent seems to have been treated differently than the persons belonging to same category absorbing on a lower post with lower salary. Absorption should have been done with same yardstick.
33. Learned counsel for the claimant respondent has filed supplementary counter affidavit dated 26.9.2013 and placed on record the copy of the rejoinder affidavit filed before the Tribunal. The Annexure No.1 to the rejoinder affidavit filed before the Tribunal, reveals that work and conduct of the claimant respondent was appreciated by the Special Secretary of the Government recommencing that the claimant respondent may be absorbed in the pay scale of Rs.5500-9000/-. The Special Secretary took note of the fact that persons possessing the scale of Rs.4500-7000/- and 5500-9000/- have been adjusted in the same or higher scale.
34. Along with rejoinder affidavit filed before the Tribunal, the claimant respondent has placed on record a comparative chart (Annexure No.2) of 42 employees who were absorbed in the department. The chart reveals that employees working in the Uptron India Limited in the scale of Rs.2000-3600/- (Smt. Punam Ghosh and Smt. Mathubala), Rs.1600-2720/-, Rs.1400-2660/-, Rs.1400-2400/- and Rs.1200-2120/- have been absorbed same higher scale. The chart further reveals that Smt. Punam Ghosh and Smt. Mathubala, working in the pay scale of Rs.2000-3600/-, were absorbed in the scale of Rs.5500-9000/- and while doing so, an amount of Rs.1000/- was added additionally with intention to adjust them on the post of Assistant Programmer. Admittedly, the scale of Assistant Programmer is Rs.5500-9000/-. In case persons at serial No.1 to 36 would have been provided same pay scale though possessing different pay scale while serving in Uptron India Limited, the claimant respondent could have been absorbed in the same pay scale at the time of absorption in the Police Department.
35 Thus, at the face of record, it appears that persons absorbed along with the claimant respondent in the Police Department at serial No.1 to 36 (List Annexure No.2 to the rejoinder affidavit filed before the Tribunal) were possessing different lower pay scale than what they have been provided while absorbing them in the scale of 5500-9000/-. It is on this ground that keeping in view recommendations made by the Special Secretary (supra), the claimant respondent has claimed higher pay scale while preferring petition. The petitioner State has not acted uniformly in pursuance of the Government order dated 20.4.2004 while absorbing the erstwhile employees of Uptron India Limited.
36 While defending the State action, it has been submitted by the petitioners counsel that the comparative chart filed as Annexure No.2 to the supplementary affidavit containing the name of 41 employees is selective one and is not in order. Even if it is so, the fact remains that the claimant respondent has been treated differently than others while enhancing the pay scale during the course of absorption.
37 A supplementary affidavit dated 13.3.2011 filed before the Tribunal by the claimant respondent reveals that the claimant respondent has set up a case that he is performing same duties as being performed by Assistant Programmer and accordingly, he has been assigned same duty which has been assigned to Assistant Programmer. A copy of duty chart has been filed as Annexure No.SA-1 to the supplementary affidavit.
Though the averments contained in para 4 of the supplementary affidavit has been rebutted by filing response but the contents of Office Memo dated 18.6.2002 by which the claimant respondent has been assigned duty of Assistant Programmer, seems to have not been disputed. The duty chart issued by the Joint Secretary Sri Barati Lal through Office Memo dated 18.6.2002 speaks volumes. Thus, the Tribunal seems to have committed no error by relying upon factual matrix on record before it.
38. It is well settled principles of law that equals cannot be treated unequally. Equality is the basic feature of the Constitution of India, and any treatment of equals unequally or unequal a equals will violative of Basic Structure of the Constitution of India and shall be hit by Article 14 of the Constitution, vide 2000 (1) SCC 168, Indra Sawhney Vs. Union of India (Kerala Creamy Layer case); 1999 (7) SCC 209 Ajit Singh II Vs. State of Punjab; 1995 (2) SCC 745 R.K.Sabarwal Vs. State of Punjab; 1992 Supp (3) SCC 217 Indra Sawney Vs.Union of India.
Once the order dated 20.4.2004 was complied with and majority was given its benefit, then it was not open for the subordinate authorities to treat the claimant respondent differently with the same set of erstwhile employees of Uptron India Limited. The Tribunal had appreciated the material evidence on record while allowing the claim petition. There appears to be no substantial ground to take a different view than what has been taken by the Tribunal.
39 It shall not be out of place to mention that learned Senior counsel appearing for State of U.P., tried to give further strength to the pleading on record by bringing certain additional material which seems to be not were before the Tribunal. While assailing the judgment and order of subordinate court, authority or tribunal, a writ petition should be decided on the basis of pleading on record before the subordinate authority or Tribunal. No additional plea may be raised and taken in writ jurisdiction where, the order of Tribunal has been assailed, vide, (2007) 10 SCC 712: Union of India. Vs. Jai Prakash Singh; 2010 (28) LCD 911: Manohar Lal (Dead) By Lrs. Vs. Ugrasen (Dead) by Lrs and others;
Otherwise also, even after considering the totality of circumstances, the impugned judgment and order passed by the Tribunal does not seem to suffer from any impropriety or illegality.
40 Sri Anil Tiwari, learned Senior Counsel appearing for the petitioners submits that absorption of the claimant respondent was done in terms of decision taken from time to time and in accordance with service Rules (supra). It is further submitted that claimant respondent No.1 has accepted the salary of the Console Operator. Copy of receipts are filed as Annexure No.RA-3, 4 and 5 to the rejoinder affidavit.
However, mere acceptance of salary does not seem to come in the way of the claimant respondent since at the very threshold of joining service, the claimant respondent stalled his claim for higher salary and post in the manner discussed hereinabove and being unsuccessful to redress his grievance, he approached the Tribunal.
It shall be appropriate to consider some cases relied upon by the petitioners' counsel.
41. In the case reported in (2001) 1 SCC 501: Gaya Din (D) through Lrs and others. Vs. Hanuman Prasad (D) through Lrs and others, their lordships of Hon'ble Supreme Court held that higher forum may interfere in the findings of subordinate authority in case they are perverse not being supported by evidence on record or are against the law or suffer from procedural irregularity.
The case of Gaya Din (supra) does not seem to applicable in the facts of the present case where, the Tribunal applied mind while allowing the claim of the respondent.
42. In the case reported in (1997) 11 SCC 174: Jai Prakash Wadhwa and others. Vs. Lt. Governor, Delhi Admn. and another, relied upon by the petitioners' counsel, their lordship of Hon'ble Supreme Court held that employees of the Corporation are not Government servants.
Similar proposition of law has been held in the case reported in (2011) 12 SCC 474: State of Uttar Pradesh and another. Vs. Narendra Bahadur Singh and others. In the case of Narendra Bahadur Singh (supra), their lordships held that in absence of any statutory provisions or other enabling provisions the services rendered in a Corporation (Mandi Parishad), cannot be counted while joining the Government services.
Both the cases do not seem to fit under the facts and circumstances of the present case where, the claim of the claimant respondent is based on the Government order dated 20.4.2004 and not any decision taken by the Uptron India Limited. Here, it is not a case where, prayer has been made for counting past services rendered in Uptron India Limited. Rather it is a case for claim of benefit of Government order which has been extended to similarly situated persons.
43. In the case reported in (2009) 15 SCC 705: Shanti Sports Club and another. Vs. Union of India and others, the controversy before the Hon'ble Supreme Court was relating to a dispute under Land Acquisition Act. In para 41 relied upon by the petitioners' counsel, their loedships held that all executive actions of the Government or State are required to be considered in terms of Articles 77 (1) and 166 (1) respectively. The orders require to be authenticated by the President or the Governor, only thereafter they may be treated as an order passed by the State Government.
In the present case, an order was passed by the State Government on 20.4.2004 laying down criteria for absorption of erstwhile employees of Uptron India Limited. Its benefit was extended to substantial number of employees placing them in higher pay scale but same was denied to the claimant respondent in the present case. Thus, persons standing on equal footing have been treated differently by the petitioners, which seems to be not permissible.
44. There is one other aspect of the matter. The Tribunal had appreciated the entire evidence on record and after due consideration of rival submissions, allowed the claim petition. The order passed by the Tribunal does not seem to suffer from any perversity hence, while exercising extraordinary jurisdiction of this Court under Article 226 of the Constitution, it is not open for this Court to re-appreciate the evidence on record with regard to placement of claimant respondent on higher pay scale.
45. In the case reported in AIR 1964 SC 364 :Union of India Vs. H.C. Goel, the Hon'ble Supreme Court has held that:-
"It is, therefore, clear that the High Court was in error in reappreciating the evidence before the Tribunal and recording the conclusion that that evidence did not establish the charges against the respondent."
46. The Constitution Bench of Hon'ble Supreme Court in the case reported in AIR 1965 SC 1103: State of Madras Vs. G. Sundaram, has held that:-
"It is, therefore, clear that the High Court was not competent to consider the question whether the evidence before the Tribunal and the Government was insufficient or unreliable to establish the charge against the respondent. It could have considered only the fact whether there was any evidence at all which, if believed by the Tribunal, would establish the charge against the respondent. Adequacy of that evidence to sustain the charge is not a question before the High Court when exercising its jurisdiction under Article 226 of the Constitution."
47. In the case of State reported in (1975) 2 SCC 557: A.P. Vs. Chitra Venkata Rao, the Hon'ble Apex Court has held as under:-
"The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held that proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which there findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226."
48. In the case reported in 1997(3) SCC 261: L. Chandra Kumar Vs. Union of India and others, the Constitutional Bench of Apex Court had laid down the scope of the power of judicial review exercised by the High Court while deciding the writ petition against the judgment of Central Administrative Tribunal in para 93 as follows:-
" Their function in this respect is only supplementary and all such decisions of the Tribunal will be subject to security before the Division Bench of the respective High Courts."
49. The Apex Court in the case reported in (2009) 8 SCC 310: State of Uttar Pradesh and another Vs. Man Mohan Nath Sinha and another, has held that:-
"The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to re-appreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal."
50. In view of the above, the judgment and order passed by the Tribunal, does not seem to suffer from any arbitrariness, illegality or infirmity which may call for interference. Substantial justice has been done by the Tribunal while allowing the claim petition after appreciating the evidence and material on record. The impugned judgment and order passed by the Tribunal does not seem to suffer any impropriety or illegality.
51. The writ petition is accordingly dismissed. No orders as to costs.
[Justice Devi Prasad Singh] [Justice Abdul Mateen]
Order Date :- 03.12.2013
Rajneesh Dy. R-PS)