Allahabad High Court
Umesh Chandra Misra vs State Of U.P Through The Secy Land ... on 9 December, 2019
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 17 Case :- SERVICE SINGLE No. - 2382 of 2003 Petitioner :- Umesh Chandra Misra & Ors. Respondent :- State Of U.P Through The Secy Land Development Counsel for Petitioner :- S.S.L.Srivastava Counsel for Respondent :- C.S.C.,Ajit Kumar,Devendra Kumar,Smt.T.Somvansi Hon'ble Manish Mathur,J.
1. Heard Sri S. S. L. Srivastava, learned counsel for petitioners, learned State Counsel appearing on behalf of opposite parties no.1 and 3 and Sri Anurag Tripathi, learned counsel appearing on behalf of opposite party no.2.
2. Petition has been filed against order dated 25.02.2004 whereby pay-scale of Rs.8000-13500/- with effect from the date petitioners had completed 24 years of service has been withdrawn. Further prayer for a direction to opposite parties to grant the said scale in terms of Government Order dated 25.09.2002 has been sought.
3. As per the averments made in petition, petitioners were initially appointed on the post of Drafts Man under the Sharda Sahayak Command. It has been stated that earlier vide Government Order dated 26.02.1998, petitioners were provided the revised pay-scale of Rs.1400-2300/-. Subsequently vide Government Order dated 25.09.2002, which was issued in pursuance to directions issued by this Court vide interim order dated 12.02.2002 in Writ Petition No.1665 (SS) of 1995, the revised pay scale admissible to persons such as petitioners working in the Command was revised to Rs.8000-13500/- after completion of 24 years of satisfactory service. The said benefit was thereafter withdrawn by means of impugned order dated 25.02.2004. It has been stated that subsequently, the benefit was again granted on 19.09.2005 followed by Government Order dated 20.10.2005 however the same was subject to final decision in the pending writ petitions.
4. Learned counsel for petitioners has submitted that a perusal of Government Order dated 25.09.2002 makes it apparent that the higher pay-scale of Rs.8000-13500/- has been granted after due application of mind regarding discrepancies being faced by petitioners compared to employees of other department who were performing the same nature of duties. It has been submitted that although the Government Order dated 25.09.2002 has been passed after considering various aspects but the impugned Government Order dated 25.02.2004 has been passed in a completely non-speaking manner without indicating any reasons whatsoever for withdrawal of benefit already granted to persons such as petitioners.
5. It has also been submitted that after grant of benefits in the year 2002, petitioners had a vested right to the said benefits; therefore passing of impugned order without affording any opportunity of hearing is also bad in law. Learned counsel for petitioners has also submitted that withdrawal of benefit of aforesaid pay-scale amountsto hostile discrimination since persons employed as Drafts Man in other Government Departments have been provided the said scale and therefore there is no intelligible differentia between persons such as petitioners and Drafts Man employed in another Government Departments which would merit withdrawal of aforesaid benefits.
6. Learned counsel for petitioners has also relied upon the Government Order dated 03.09.2001 whereby conditions for grant of time scale have been indicated. It has been stated that even otherwise petitioners are entitled to the time scale as provided under Government Order dated 25.09.2002 which is in fact in the nature of consequential order to the Government Order dated 03.09.2001.
7. Learned State Counsel appearing on behalf of opposite parties has however disputed the submissions advanced by learned counsel for petitioners with submission that the pay-scale of Rs.8000-13500/- is in fact that of Junior Engineers and not applicable upon Drafts Man. It has been submitted that the said pay-scale is not in the nature of promotional pay-scale but is the higher scale granted to Government Employees upon completion of 24 years of service. Learned State Counsel has also submitted that in fact petitioners are eligible only for the next higher scale of Rs.5500-9000/- on completion of 24 years of satisfactory service and not for the scale of Rs.8000-13500/- which is not the next higher promotional pay-scale applicable upon petitioners. It has also been submitted that the Government Order dated 25.02.2004 withdrawing the earlier benefits has been passed in view of fact that concurrence/ approval has not been taken from the Finance Department which is required to be done under paragraph 26 of the Rules of Business.
8. Sri Anurag Tripathi, learned counsel appearing on behalf of opposite party no.2 has submitted that the nature of Sharda Sahayak Command is that of a Government Department and all the Government Orders as applicable upon Government Servants are applicable upon petitioners. Written instructions dated 25.11.2019 provided to Sri Tripathi indicating the aforesaid fact is taken on record.
9. Upon consideration of submissions raised by learned counsel for parties and perusal of record, it is apparent that Government Order dated 25.09.2002 has been passed by Secretary of the Department concerned indicating the discrepancies and discrimination being faced by employees of the command such as petitioners. It has been noticed in the said Government Order that Drafts Man employed in other Government Departments such as Irrigation and Public Works Department are granted the pay-scale of Rs.8000-13500/- upon completion of 24 years of satisfactory service. In view of said discrepancy the State Government decided to make available pay-scale of Rs.8000-13500/- to petitioners upon completion of 24 years of satisfactory service. The said Government Order apparently was issued in pursuance of an interim order dated 12.02.2002 passed in Writ Petition 1665 (SS) of 1995, which had earlier been filed by the same set of petitioners. The Government Order dated 25.09.2002 has noticed the fact that by means of aforesaid interim order dated 12.02.2002, opposite parties had been directed to decide representation of petitioners regarding grant of said scale, which was rejected on 25.02.2002 but subsequently the State Government on its own looking to the disparity in pay-scale, passed the Government Order dated 25.09.2002 granting aforesaid benefits.
10. The aforesaid benefits granted to petitioners were thereafter withdrawn by means of the impugned Government Order dated 25.02.2004 but perusal of same clearly indicates that no reasons what so ever have been indicated for withdrawal of benefits already granted. The impugned Government Order also does not indicate the considerations recorded in the earlier Government Order dated 25.09.2002 granting said benefits.
11. So far as benefit of grant of higher pay-scale after completion of 24 years of satisfactory service is concerned, it can be seen that the said benefit has been provided uniformly to all Government Servants by means of Government Order dated 03.09.2001 which indicates that the next higher pay-scale would be admissible in case of those Government Employees who have been granted only one promotion/one time pay-scale, are substantive in appointment and have not yet been granted the second promotion/ second promotional pay-scale. The exact pay-scale required to be granted for a certain post is not indicated in the said Government Order, which has been issued by the Finance Department.
12. For the purposes of adjudicating upon the pay-scale applicable upon a particular Government Employee such as petitioners, it is the relevant department itself which is required to issue Government Orders pertaining to grant of pay-scales. For that purpose, the Government in its wisdom issued the Government Order dated 25.09.2002 granting pay-scale of Rs.8000-13500/- to petitioners after completion of 24 years of satisfactory service.
13. Although, the impugned Government Order dated 25.02.2004 does not indicate any reason whatsoever for withdrawal of aforesaid benefits granted earlier to petitioners vide Government Order dated 25.09.2002 but in the counter affidavit, opposite parties have taken a stand that benefits granted by means of earlier Government Order dated 25.09.2002 were withdrawn since it had been issued without concurrence of Finance Department of the State Government. It has been further stated that since no promotional post of Drafts Man was available in the department therefore the Finance Department recommended that first promotional pay-scale on completion of 14 years of service should be Rs.4500-7000/- whereafter Rs.5000-8000/- should be provided as second promotional scale on completion of 24 years of satisfactory service. In view of aforesaid facts that the benefit accorded by Order dated 25.09.2002 was withdrawn.
14. In view of aforesaid submissions raised in the counter affidavit, the matter required to be considered firstly is as to whether the benefit extended by means of Government Order indicating reasons for grant of particular pay-scale can be withdrawn by subsequent Government Order without indicating any such reasons. The second question requiring adjudication would be whether concurrence of Finance Department was required by the department concerned for issuance of Government Order dated 25.09.2002.
15. So far as the first question is concerned, it is to be seen that the Government Orders are in the nature of administrative orders which cannot be said to be quasi judicial in nature and as such do not require any reasons to be specified therein.
16. So far as the second question is concerned, it is seen that grant of second promotional pay-scale to Government employees who had not been granted either the second promotion or the second promotional pay-scale would be governed by the conditions of Government Order dated 03.09.2001. The said Government Order is equally applicable upon all Government Servants including the petitioners as has been admitted by opposite party no.1 in paragraph 19 of its counter affidavit dated 22.07.2014. The said fact has also been admitted by opposite party no.2 in the written instructions dated 25.11.2019. As such, the only dispute pertains to the scale of pay which is required to be paid to petitioners upon completion of 24 years of satisfactory service since it is the admitted case of opposite parties that petitioners would be entitled to higher pay-scale upon completion of 24 years of satisfactory service.
17. With regard to aforesaid, it is seen that Government Order dated 25.09.2002 clearly indicates the fact that Drafts Man engaged in Government Service in other Government Departments are provided the pay-scale of Rs.8000-13500/- as the second promotional pay-scale. It was on this ground of parity that petitioners were also granted the said pay-scale. The opposite parties have not denied the said fact of persons employed as Drafts Man in other Government Departments being paid the second promotional pay-scale of Rs.8000-13500/-.
18. In the counter affidavit filed by opposite party no.1 on 22.07.2014, it has only been stated that upon completion of 14 years of service, the first promotional pay scale of Rs.5000-8000/- is to be granted whereafter next promotional pay-scale of Rs.5500-9000/- is to be paid on completion of 24 years satisfactory service. However, it has not been denied anywhere that persons employed on the same post of Drafts Man in other Government Departments are being provided the pay-scale of Rs.8000-13500/- as second promotional pay-scale upon completion of 24 years of satisfactory service. As such, the said ground taken in the counter does not stand to reason.
19. Learned counsel appearing on behalf of opposite party no.2 has relied upon the judgment rendered in the case of Fuljit Kaur Vs. State of Punjab & Others reported in (2010)11 SCC 455 with the submission that negative equality cannot be granted. It has been submitted that earlier order dated 25.09.2002 being an illegal order since it was not approved by Finance Department, benefit of same cannot be granted to petitioners.
20. Paragraph 13 and 14 of the judgment rendered in Fuljit Kaur (supra) however are with regard to negative equality in which it has been held that even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on petitioners with the same relief since Article 14 is not meant to perpetuate illegality or fraud.
21. From perusal of paragraph 13 and 14 of the aforesaid judgment, it is clear that same operates in the field of equality under Article 14 of the constitution of India with regard to benefits granted to other similarly situated employees. In the present case, learned counsel for opposite party no.2 does not dispute the fact of grant of second promotional pay-scale of Rs.8000-13500/- to Drafts Man employed in other Government Departments is in accordance with law.
22. The only submission advanced is that the earlier Government Order dated 25.09.2002 was not passed as per provisions. In the present case, parity is being granted to petitioners for second promotional pay-scale for other similarly situated Drafts Man employed in other Government Departments. Since it is no body's case that grant of aforesaid pay-scale of Rs.8000-13500/- to other such similarly situated Drafts Man is illegal, the aforesaid judgment would be inapplicable in the present circumstances.
23. Hon'ble the Supreme Court in the case of Director General, CRPF & Ors vs. Janardan Singh & Ors. reported in 2018 LAB. I.C. 3302 after considering various earlier judgments has held that although Article 14 does not prohibit reasonable classification but at the same time the said classification must be founded on an intelligible differentia and that such differentia must have a rational relation to the object sought to be achieved by such classification. Relevant paragraphs of the aforesaid judgment are as follows:
"18. Article 14 does not prohibit reasonable classification but for passing test of permissible classification there are two conditions which have been time and again laid down and reiterated. It is useful to refer to the Constitution Bench Judgment of this Court in AIR 1955 SC 191, Budhan Choudhary versus State of Bihar in paragraph 5, following has been laid down.
5???..It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure???.."
19. Another judgment which needs to be noticed with regard to Article 14 is a judgment of this Court in AIR 1970 SC 1453, Harakchand Ratanchand Banthia and Others vs. Union of India and others. In paragraph 23, following has been laid down:
"23. ??..When a law is challenged as violative of Article 14 of the Constitution it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it. Having ascertained the policy and object of the Act the Court has to apply a dual test in examining its validity (1) whether the classification is rational and based upon an intelligible differentia which distinguishes persons or things that are grouped together from others that are left out of the group and (2) whether the basis of differentiation has any rational nexus or relation with its avowed policy and object?? "
24. Upon application of the aforesaid judgment in the present facts and circumstances of the case, it is clear that the opposite parties have not indicated any reasonable differentia relating to object sought to be achieved for differentiating between petitioners and other such persons employed as Drafts Man in other Government Departments.
25. On a comprehensive consideration of the entire law on the subject of parity of pay scales on the principle of equal pay for equal work, Hon'ble the Supreme Court in State of Punjab and others versus Jagjit Singh and others, reported in (2017) 1 SCC 148 has held as follows:-
"58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation."
26. In view of the facts indicated herein above as admitted by opposite parties that the nature of work of petitioners as Drafts Man and those working on same post in other Government Departments are same, the aforesaid judgment rendered in the case of Jagjit Singh (supra) is squarely applicable to the present facts and circumstances.
27. No other point has been pressed by learned counsel for parties.
28. In view of aforesaid facts and law, the impugned Government Order dated 25.02.2004 does not stand to reason since it amounts to hostile discrimination against petitioners.
29. As a result, writ in the nature of certiorari is issued quashing the Government Order dated 25.02.2004. Further writ in the nature of mandamus is issued directing opposite parties to grant the second promotional pay-scale to petitioners in the pay-scale of Rs.8000-13500/- from the date of completion of 24 years of satisfactory service in terms of the earlier Government Order dated 25.09.2002. Orders pertains to grant of said benefit are required to be passed within a period of four months from the date a copy of this order is produced before opposite party no.1.
30. As a consequence, petition is allowed.
Order Date :- 9.12.2019 Subodh/-