Anoop Kumar Saxena And Ors. vs State Of U.P. Through Principal Secy. ... on 14 July, 2023

[Cites 35, Cited by 2]

Allahabad High Court

Anoop Kumar Saxena And Ors. vs State Of U.P. Through Principal Secy. ... on 14 July, 2023

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Neutral Citation No. - 2023:AHC-LKO:45864

A.F.R.

RESERVED

Court No. - 30

(1) Case :- WRIT - A No. - 902 of 2011

Petitioner :- Anoop Kumar Saxena And Ors.

Respondent :- State Of U.P. Through Principal Secy. Dept.Of Medical Edu.

Counsel for Petitioner :- Shobhit Mohan Shukla,Kshemendra Shukla

Counsel for Respondent :- C.S.C.,Abhinav Trivedi,I.P.Singh,Sanjay Bhashin,Shubham Tripathi,Vinayak Saxena

Connected with

(2) Case :- WRIT - A No. - 639 of 1999

Petitioner :- Mahesh Chandra

Respondent :- Sanjay Gandhi Post Graduate Institute Of Medical Sciences

Counsel for Petitioner :- R.P.Singh,Harsh Chauhan,I.P.Singh,P.K. Sinha,Sheo Prakash Singh

Counsel for Respondent :- J N Mathur,A.K. Chaturvedi,Abhinav Trivedi,Dharmendra Kumar Dixit

with

(3) Case :- WRIT - A No. - 6545 of 2007

Petitioner :- Ram Naresh Maurya

Respondent :- State Of U.P. Thru Chief Secy. And 3 Ors.

Counsel for Petitioner :- I.P. Singh

Counsel for Respondent :- C.S.C.,Abhinav Trivedi,Asit Kumar Chaturvedi,Brijesh Kumar Shukla,Dharmendra Kumar Dixit,J.N.Mathur,Sanjay Bhasin,Shubham Tripathi

with

(4) Case :- WRIT - A No. - 903 of 2011

Petitioner :- Arun Kumar Jaiswal And Ors.

Respondent :- State Of U.P. Through Principal Secy. Dept.Of Medical Edu.

Counsel for Petitioner :- Shobhit Mohan Shukla,Kshemendra Shukla

Counsel for Respondent :- C.S.C.,Abhinav Trivedi,I.P.Singh,Jagdambika Prasad Tripathi,Shailesh Kumar,Shubham Tripathi,Vinayak Saxena,Vishwanath Prasad Tripathi

with

(5) Case :- WRIT - A No. - 904 of 2011

Petitioner :- Mahendra Kumar Verma And Ors.

Respondent :- State Of U.P. Through Principal Secy. Dept.Of Medical Edu.

Counsel for Petitioner :- Shobhit Mohan Shukla,Kshemendra Shukla

Counsel for Respondent :- C.S.C.,Abhinav Trivedi,H.S.Tiwari,I.P.Singh,Rajendra Singh Chauhan,Shubham Tripathi,Vinayak Saxena

with

(6) C.M.Application No. 132871 of 2014

In Re:

Case :- WRIT - A No. - 3607 of 2014

Petitioner :- Dinesh Chandra Srivastav And Another

Respondent :- State Of U.P.Thru Director Sanjay Gandhi Post Graduate And Ors

Counsel for Petitioner :- Girish Chandra Sinha,Karunanidhi Yadav

Counsel for Respondent :- Vinayak Saxena,Abhinav Trivedi,I.P. Singh,Kshemendra Shukla,Shubham Tripathi

with

(7) Case :- WRIT - A No. - 3948 of 2014

Petitioner :- Dilip Singh And Another

Respondent :- State Of U.P. Through Chief Secy. U.P. And President S.G.P.G.I

Counsel for Petitioner :- Sheo Prakash Singh

Counsel for Respondent :- C.S.C.,Abhinav Trivedi,Kshemendra Shukla,Sanjay Bhasin,Shubham Tripathi,Vinayak Saxena

with

(8) Case :- WRIT - A No. - 1400 of 2015

Petitioner :- Dinesh Chandra Srivastava And Another

Respondent :- State Of U.P. Thru Director S.G.P.G.I. Of Medical And Others

Counsel for Petitioner :- Girish Chandra Sinha,Mayank Sinha,Ram Kumar Singh

Counsel for Respondent :- Vinayak Saxena,Abhinav Trivedi,Sanjay Bhasin,Shubham Tripathi

Hon'ble Om Prakash Shukla,J.

This judgment has been divided into the following sections to facilitate analysis :-

INDEX Sl. No. Heading Page No. A. Introduction 4 B. The SGPGI Act 9 C. Facts of the case 15

(i) Governing Body recommendation dated 08.01.1988 15

(ii) Government Order dated 05.03.1991 17

(iii) Appointment of AACO's 18

(iv) Cadre Review dated 03.01.1997 19

(v) Re-structuring of the Cadre on 27.11.2001 21

(vi) The case of AACO's 21

(vii) Implementation of GB dated 08.01.1988 to the Ministerial & Secretarial case 23

(viii) The controversy between the AACOS's and Assistant Accountants 25 D. Contention of Parties 31 E. Discussion & Findings 52 F. Conclusion 103 A. Introduction (1) Whether benefit or parity in pay-scales with Head of Department (HOD) employees can be extended in view of Governing Body recommendation dated 08.01.1988, even after implementation of the pay-scale parity policy with AIIMS employee vide Government order dated 01.08.1990 and 05.03.1991 to the non-faculty employees of the Sanjay Gandhi Postgraduate Institute of Medical Sciences (hereinafter to be referred in its acronym 'SGPGI or the Institute') is the core issue engaging the attention of this court in this bunch of writ petition. An ancillary issue relating to the consequential effect of the implementation of the said pay-parity on the seniority list in these cadres is the other issue, which is also to be determined in these petitions.

(2) Procrastination in implementation of the recommendation of the Governing Body dated 08.01.1988 to these non-faculty employees in the "Accounts Cadre, Ministerial Cadre and Secretarial Cadre" of SGPGI is allegedly the axiomatic cause for these bunch of matter as contended by the petitioners, whereas the State & SGPGI have contended that the said recommendation could not had been implemented as per law in the given facts and circumstances.

(3) Apparently, the present bunch of writ petitions have been filed by two set of petitioners; first set of petitioners are employed in the Accounts, Ministerial and Secretarial Cadres of the SGPGI and the other set of petitioners are the Assistant Accounts-cum-Computer Operators employed in the SGPGI.

(4) The crux of the matter is that as far as the Accounts Cadre is concerned, individuals appointed on the post of Accounts Clerk and Cashier in pay scale of Rs. 1200-2040/- between 1988 to 1991 have been granted promotion to the posts of Assistant Accountants with higher pay scale of 1400-12300 with effect from their date of joining or 08.01.1988, whichever is later, vide order dated 02.07.1994 and difference of salary has been paid, which has all occasioned due to the recommendation of General Body resolution dated 08.01.1988.

(5) Similarly, for the secretarial cadre, individual Stenographers appointed in October, 1991 in the pay scale of Rs. 1200-2040/- have been granted pay-scale of Rs. 1640-2900/- from their date of joining vide order dated 02.04.2003 and difference of salary was paid. As far as Ministerial Cadre is concerned, individual Typists, who were appointed in the pay scale of Rs. 950-1500/- during the year 1988 to 1994, have been granted next higher post and pay-scale of Rs. 1200-2040/- from their date of joining and they have further been granted next higher post and pay scale of Rs. 1400-2300/- after 03 years; and another next higher post and pay scale of Rs. 1640 -2900 after 05 years have been granted, vide order dated 20.03.2002. These all promotions and grant of pay-scales have also been orchestrated by the implementation of the General Body Resolution dated 08.01.1988. Further, advantage in the promotion and seniority list has also been accorded to these individuals.

(6) However, similar promotional and pay-scales benefits were not extended to some other employees of the Ministerial Cadres and also to the Assistant Accounts-cum-Computer Operators (AACOs) employed in the SGPGI, who have also challenged the seniority list prepared by the Institute from time to time.

(7) Vide the present Judgment, this Court proposes to dispose of the following writ petitions, which raises common question of law :-

S. No. Particulars Relief claimed

1.

WRIT-A-902/2011 (Anoop Kumar Saxena V/s State of U.P) Petitioners of this writ petition essentially belongs to Accounts Cadre Quashing of order dated 15.01.2010 passed by the President of the SGPGI directing SGPGI to withdraw the benefit of the Governing Body decision dated 08.01.1988 and extended on 02.07.1994 to the petitioner.

Further, quashing has also been sought of all consequential orders like decision dated 06.03.2010 of the Governing Body, Order dated 11.10.2010 issued by the Director of the institute and order dated 25.01.2011 passed by the Visitor of the SGPGI u/s 36 of the Act.

2. *WRIT-A-639/1999 (Mahesh Chandra V/s SGPGI) Quashing of seniority list dated 21.12.1998 and prayer for direction to SGPGI to publish the seniority list after disposal of representation made by the petitioner u/s 36 of the Act to the Visitor.

* This writ petition has become infructous in the sense that although the seniority list had not been quashed, however these petitioners were permitted to agitate all their issue before the Visitor and after agitating all the issues, another seniority list dated 27.06.2014 was published, which has been challenged vide another writ petition, which is also being decided along with the present bunch of matters.

3. WRIT-A-6545/2007 (Ram Naresh Maurya V/s State of U.P) Petitioner of this writ petition essentially belongs to Accounts Cadre and were appointed on the post of Asst. Accountant-cum-computer Operator on 25.05.1992 Writ of Mandamus has been prayed for direction to the Institute to comply with the recommendation of high level committee chaired by secretary, Medical education, Govt. of U.P as per direction of Government order dated 25.01.2006 & 06.09.2006 And to place the high level committee report dated 07.11.2005, opinion of law & finance department of the Govt. of U.P before the Governing body of the Institute.

4. WRIT-A-903/2011 (Arun Kumar Jaiswal & Ors. V/s State of U.P) Petitioners of this writ petition essentially belongs Ministerial Cadre Petitioner No. 12, 17, 22, 33 were allowed to withdraw vide order dated 23.05.2018.

Quashing of order dated 15.01.2010 passed by the president directing SGPGI to withdraw the benefit of the Governing Body Decision dated 08.01.1988 and extended on 02.07.1994 to the petitioner.

5. WRIT-A-904/2011 (Mahendra Kumar Verma V/s State of U.P) Petitioner of this writ petition essentially belongs to Secretarial Cadre Petitioner No. 5 & 6 were permitted to withdraw vide order dated 29.03.2018.

Petitioner No. 7 was permitted to withdraw vide order dated 24.01.2019 Petitioner No. 8,9 and 10 sought withdrawal of writ petition vide CMA No. 155962/2022 Quashing of order dated 15.01.2010 passed by the president directing SGPGI to withdraw the benefit of the Governing Body Decision dated 08.01.1988 and extended on 02.07.1994 to the petitioner.

6. #WRIT-A-3607/2014 (Dinesh Chandra Srivastava & Anr. V/s State of U.P) Prayer to hold DPC for filling of 4 post of Accounts officer and to consider the petitioners to be eligible candidates.

# The matter was disposed of vide an order dated 07.08.2014 directing to hold DPC within 2 months from 28.09.2014. Further, status quo order passed in Writ A-902/2011 to have no effect. Subsequently, recalling application has been filed vide CMA No. 132871/2014 by one Dilip Singh & Mahesh Chand praying for recalling of the order dated 07.08.2014. Thus, the said Application is also pending and taken together with other writ petitions for disposal.

7. WRIT-A-3948/2014 (Dilip Singh & Anr. V/s State of U.P) Quashing of the seniority list issued vide office memorandum dated 27.06.2014

8. WRIT-A-1400/2015 (Dinesh Chandra Srivastava V/s State of U.P) Quashing of the order dated 20.02.2015 and declaration/implementation of the DPC held on 04.02.2015 B. The SGPGI Act.

(8) Before embarking on to narrate the facts of the present case, it would be profitable to understand the provision of the SGPGI Act, which is the parent law under which the Governing Body and other functionary exercise their power for management & day to day affairs of the Institute.

(9) SGPGI is an autonomous Institute created under the statute, namely, Sanjay Gandhi Post Graduate Institute of Medical Sciences Act, 1983 (hereinafter referred to as the 'Act 1983'). In pursuance to sub-section (2) of section 41 of the Act, the first regulations were framed in 2011. Thus, after framing of the first statute of the SGPGI in 2011, the Rules and Regulations of the Government are not applicable unless adopted by the Institute. Since, the controversy relates back to pre-2011 era, the said regulation is of little help to the present context. However, the parent Act in itself gains prominence.

(10) Historically, SGPGI was established by an Act of the State of Uttar Pradesh, commonly known as the 'Sanjay Gandhi Post Graduate Institute of Medical Sciences Act, 1983'. Section 4 of the Act, 1983 provides for composition of the Institute and Section 7 of the Act, 1983 provides for the object of the Institute. Section 8 of the Act, 1983 deals with the functions of the institute and Section 9 of the Act, 1983 says as to who shall be the officers of the institute. Section 10 of the Act, 1983 says that the Governor of the State of Uttar Pradesh shall be the Visitor of the institute and certain sweeping powers have been given to the Visitor under Section 10 as well as under Sections 34 and 36 of the Act, 1983. Similarly, Section 11 of the Act, 1983 says that the President of the institute shall be the Chief Secretary of the State of Uttar Pradesh, who shall also be the Chairman of the Governing Body of the institute preside over such meetings. The said section also entails certain power to the President. Sections 12 and 13 of the Act, 1983 relates to the appointment of the Director and his power and duties under the Act, 1983.

(11) Section 17 of the Act, 1983 mentions as to who shall be the authorities of the institutes and enumerates the name of (a) Governing Body; (b) Academic Board; (c) Finance Committee; (d) Selection Committee for appointment of Professors and Heads of Departments of the Institute; (e) Selection Committee for appointment of teachers other than those specified in clause (d); (f) such other authorities as may be specified in the rules to be authorities of the Institute.

(12) Section 18 of the Act, 1983 relates to who all shall consist of the Governing body, which includes the name of 13 persons, including the President and Director as aforesaid. The said section enumerates the following :

"18. Governing Body.- (1) The Governing Body shall consist of the following persons, namely: -

(a) the President;

(b) the Director;

(c) Secretary to the Government of Uttar Pradesh in the Department of Medical, Health and Family Welfare, ex-officio;

(d) Secretary to the Government of Uttar Pradesh in the Finance Department, ex-officio;

(e) Director of Medical Education, Uttar Pradesh, ex-officio;

(f) two Principals from amongst the Principals of the State Medical Colleges in Uttar Pradesh in rotation to be nominated by the State Government; (g) two persons being Heads of Departments in the Institute to be nominated in rotation in the prescribed manner;

(h) two persons from amongst the teachers of the Institute to be selected in the prescribed manner;

(i) two persons to be nominated by the Visitor.

(2) The term of office of an ex-officio member shall continue so long as he holds the office by virtue of which he is a member, (3) The term of office of any member nominated under clause (f) or clause (g) or clause (i) of sub-section (1) shall be three years from the date of his nomination. (4) The term of office of a member under clause (h) of sub-section (1) shall be two years from the first day of January of the year in which he is elected. (5) The term of office of a member nominated to fill a casual vacancy shall continue for the remainder of the term of the member in whose place he has been nominated. (6) Notwithstanding anything contained in this Act, a member nominated under this section shall continue in office until another person is nominated as a member in his place. (7) The Governing Body shall meet at such time and place as the Chairman may from time to time determine;

Provided that the Governing Body shall meet at least once in three months.

(8) The procedure to be followed by the Governing Body for the transaction of business in any meeting or otherwise or in the exercise of its power or discharge of its functions shall be such as may be laid down in the regulations.

(9) Subject to such control and restrictions as may be prescribed, the Governing Body may constitute such Committees, as it thinks fit, for exercising any power or discharging any functions under this Act."

(13) Section 19 of the Act, 1983 mentions that the Governing Body shall be responsible for the general superintendence, direction and control of the affairs of the institute. The said section inter alia states :

"19. Functions of the Governing Body.- (1) Subject to the provisions of this Act, the Governing Body shall be responsible for the general superintendence, direction and control of the affairs of the Institute (2) Without prejudice to the provisions of sub-section (1), the Governing Body -

(a) Shall take steps for the implementation of the decisions of the Institute on questions of policy relating to the administration of the affairs and working of the Institute;

(b) shall institute courses of study at the institute and take decisions on the advice of the Academic Board on all academic matters including matters relating to the examinations conducted by the Institute;

(c) shall hold and control the property and funds of the Institute;

(d) may acquire or transfer any movable or immovable property on behalf of the Institute;

(e) shall administer any funds placed at the disposal of the Institute for specific purposes;

(f) may create or abolish posts of teachers and other employees of the Institute;

(g) may manage and regulate the finances, accounts, investments property, business and all other administrative affairs of the Institute and for that purpose appoint such agent as it may think fit;

(h) may invest any money belonging to the Institute (including any income from trust and endowed property) in such stocks, funds, shares or securities as it shall from time to time think fit;

(i) may enter into, vary, carry out and cancel contracts on behalf of the Institutes;

(j) may regulate and determine all other matters concerning the Institute in accordance with this Act and the ruler, and regulations made thereunder."

(14) Further, Section 21 of the Act, 1983 says about constitution of the Finance Committee and its duties. Section 21 inter-alia states :

"21. Finance Committee. - (1) The Finance Committee shall consist of: -

(a) the Director who shall also be the Chairman of the Committee;

(b) Secretary, to the Government of Uttar Pradesh in the Department of Medical, Health and Family Welfare, or his nominee;

(c) Secretary to the Government of Uttar Pradesh in the Department of Finance, or his nominee;

(d) two persons to be nominated by the Governing Body from its members;

(e) the Executive Registrar;

(f) the Finance Officer who shall also be the Secretary of the Committee.

(2) The Finance Committee shall advice the Governing Body on matters relating to the administration of property and funds of the Institute including limits for and principles to be observed with regard to the recurring and non-recurring expenditure for the ensuing financial year, having regard to the income and resources of the Institute. (3) The Finance Committee shall have such other powers and duties as may be prescribed."

(15) Section 29 of the Act, 1983 says that all orders and decisions of the Institute shall be authenticated by the signature of the President or any other member or officer authorised by the institute in this behalf and all other instruments shall be authenticated by the signature of the Director or any other officer of the Institute authorised in like manner in this behalf. Section 30 of the Act, 1983 protects the invalidation of any proceeding by the institute due to any vacancies etc., whereas Section 33 of the Act, 1983 prescribes the control of the State Government over the Institute, not being inconsistent with the provisions of this Act and for the purposes of efficient administration of the affairs of the Institute under this Act, 1983. Section 35 of the Act, 1983 gives prominence to the State Government, in case there is any dispute between the institute and the State Government relating to exercise of power and discharge of its function under the Act, 1983. Section 36 of the Act, 1983 talks of reference to the Visitor and gives sweeping power to entertain all kinds of question arising out of the administration of the institute under the Act, 1983.

(16) Although Section 41 of the Act, 1983 concerning power to make regulations, says that the Institute may with the previous approval of the State Government, make regulations to provide for any matter which is to be or may be provided for by regulations, however, no regulations framed under the Act, 1983 has been argued or has been brought to the knowledge of this Court prior to the year 2011.

C. Facts of the case

(i) Governing Body recommendation dated 08.01.1988 (17) Since, common facts are involved in these bunch of writ petitions, the facts of lead matter being Writ-A-902 of 2011 is being taken for consideration of this court. As per the averment made in the writ petition, the petitioners were appointed as Cashier/Accounts Clerk during the period from 1987-1990. The story unfolds by a meeting of the Finance Committee of SGPGI on 16.09.1987, wherein a decision was taken in principle with regard to revision of pay scales of Ministerial Staff, Accounts Staff and Secretarial Staff at par with maximum permissible pay scales available to such staff in the offices of the Heads of Departments (HOD) in the State Government. The qualifications to be at par with such staff in the Heads of the Department for similar post in the institute was also agreed in the meeting of the said committee.

(18) Based on the aforesaid meeting, the Finance Committee further in its meeting held on 31.10.1987 took a decision to revise the pay-scale/re-designation of the employees working in the Accounts/Ministerial/Secretarial Cadres of the institute, wherein it was decided to re-designate the posts of Accounts Clerk/Accounts Clerk-cum-Cashier/Cashier carrying the pay scales of Rs. 400-615/- to the post of Assistant Accountants carrying a pay scale of Rs. 515-860/-.

(19) Apparently, the aforesaid decision was ratified by the Governing Body in its meeting dated 08.01.1988 and was also approved by the body of the Institute on 22.04.1988. The implementation of the aforesaid decision and ratification of the Governing Body was procrastinated, leading to representation dated 14.12.1992. After a series of representation, it was only on 02.07.1994, the Director of SGPGI thought of implementing the said decision dated 08.01.1988 of the Governing Body and as such the petitioners were re-designated as Assistant Accountant with effect from 08.01.1988 or from their respective date of joining, whichever was later, in the pay scales of Rs. 515-860/- (revised to Rs. 1400-2300/-) in place of earlier and existing pay-scale of Rs. 400-615/- (Rs. 1200-2040/-).

(ii) Government Order dated 05.03.1991 (20) The said revision has been "in the eye of the storm" as the same was implemented without any reference to certain other simultaneous developments relating to the designation and pay-scales during the intervening period of 08.01.1988 and 01.07.1994. Significantly, the State Government, in principle agreed to revise the salary of all the employees and officers of SGPGI at par with the employees of AIIMS, New Delhi, which led to issuance of Government order dated 01.08.1990 providing for revision of the pay-scales with the consent of the Finance Department. In furtherance to the said development, the State Government, admittedly, issued another Government Order dated 05.03.1991, revising the pay scale of employees of SGPGI at par with the employees of AIIMS, New Delhi. As per the said revision, the Cashier/Accounts Clerks were made available the revised pay-scale of Rs. 1200-2040/-, whereas the Assistant Accountants were admitted to the pay-scale of Rs. 1400-2300/-. Apparently, the said revision in pay-scale was on the basis of recommendation of the Equivalence Committee (Randhar Committee) constituted after passing of the Government order dated 01.08.1990.

(iii) Appointment of AACO's (21) In the year 1992, a Departmental Promotion Committee (DPC) was held for promotion of these Cashier/Accounts Clerks to the post of Assistant Accountant. However, the said DPC was withheld and the Institute issued an advertisement for making direct selection on the post of Assistant Accountant-cum-Computer Operator ("AACO"). The petitioners apprehending that the said direct recruitment was being made at par with their post of Assistant Accountant for which they had been vying, filed a writ petition bearing No. 2358 of 1992, wherein an order dated 24.04.1992 was passed by a Co-ordinate Bench of this court on the statement of the counsel representing the Institute that two cadres i.e "Assistant Accountants" and "Assistant Accountant-cum-Computer Operator" are not being merged as they indicated two different qualification. On the facts of the said case, a Co-ordinate Bench of this Court directed the institute for conducting the DPC at the earliest, which had been pending since 7th of September, 1991.

(22) Apparently, the DPC was not conducted as per the aforesaid direction, however, the Institute went ahead with the recruitment on the post of Assistant Accountant-cum-Computer Operator, who are the petitioners in the other set of writ petitions and have flagged the seniority list prepared by the Institute.

(iv) Cadre Review dated 03.01.1997 (23) In the meantime, the Governing Body in its 43rd meeting held on 03.01.1997 made cadre review as well as pay-scales and promotional opportunities, with respect to the employees of the Institute in view of the recommendation dated 01.01.1997 of the Finance Committee. That 'cadre review and promotion policy' for the non-faculty employees of SGPGI, was approved by Governing Body on 03.01.1997 at par with AIIMS, New Delhi. The Governing Body in its 43rd meeting decided to implement the AIIMS package of allowances to all the employees uniformly and also decided in principle to implement the changes at SGPGI similar to changes at AIIMS in future as well. Thus, one of the ground taken by the petitioners of the first set of writ petitions (Writ No. 90 of 2011, 903 of 2011 and 904 of 2011) is that the parity of cadre structure with AIIMS was given with effect from 03.01.997 and not with effect from 05.03.1991 as mentioned in the preceding paragraphs. According to this Court, the determination as to what was the date when AIIMS package of allowance became applicable to employees of SGPGI is clear from the Government order dated 05.03.1991 itself and does not require deliberation any further, in view of the facts of the present case.

(24) The petitioners in Writ-A-902 of 2011, in order to buttress their case, have also flagged the salient feature of restructuring of Finance and Accounts Cadre approved by the Governing Body on 03.01.997 and have argued that 22 posts of Assistant Accountant were approved at entry level, out of which 8 posts were available in the institute, 8 posts were taken into consideration from re-designated post of Account clerks by Governing Body decision dated 08.01.1988, 4 post of cashier was merged with the post and the remaining 2 post of senior Auditor was also re-designated as Assistant Accountant with effect from 08.01.1988. Thus, it was stated by them that no post in the nomenclature of Accounts Clerk/Cashier remained in the Accounts Cadre and the entry post in the said cadre after restructuring was Assistant Accountant in the pay-scale of Rs. 1400-2300/- and not Account Clerk/ Cashier in the pay scale of Rs. 1200-2040/-.

(25) These petitioners have stated that as per the cadre restructuring, new posts of Junior Accounts officer were created at par with the AIIMS and the said post was a promotional post, meant to be filled from amongst the Assistant Accountants having 5 years' service in the grade and the criteria for promotion was seniority subject to rejection of unfit. Accordingly, some of the petitioners were promoted to the Junior Accounts officer vide an order dated 23.12.1998 and others vide an order dated 03.01.2002.

(v) Re-structuring of the Cadre on 27.11.2001.

(26) Further, another re-structuring of the cadre was effected on 08.10.2001 by the Finance Committee ratified by the Governing Body on 27.11.2001, wherein a new post of Assistant Accounts officer was created in between the post of Assistant Accountant and Junior Accounts Officer. Petitioners claimed to be further promoted as Assistant Accounts Officer with effect from 03.01.2002 vide some office memorandum dated 18.03.2002.

(vi) The case of AACO's (27) As provided by Governing Body on 3.1.1997, the post of AACO's was classified in computer cadre. However, representations were given by the individuals on the post of AACO's against this classification. A joint representation was given by AACO on 06.06.1997 to absorb them in Accounts Cadre and to re-designate them as Junior Accounts Officer, a post higher to Assistant Accountant.

(28) On the representations of the AACOs, the Finance Committee in its 40th meeting agreed to the merger of AACO with Accounts cadre at the level of Assistant Accountant in the pay scale of Rs. 1400-2300. The Finance Committee further recommended that their seniority with Assistant Accountant would be determined from the date of panel against which they were appointed. That the recommendations of above Finance Committee were approved by Governing Body in its meeting held on 04.05.1998.

(29) That in the light of the decision taken by Governing Body on 04.05.1998, a tentative seniority list was published on 26.09.1998 and objections were sought and final seniority list was published on 21.12.1998. The order dated 26.09.1998 furthers states that AACO stood merged in the Accounts cadre at the level of Assistant Accountant in the pay scale of Rs. 1400-2300/-.

(30) In the meantime, persons, who were appointed on the post of Assistant Accountant-cum-Computer Operator through direct recruitment prior to implementation of the decision dated 08.01.1988 (with regard to the petitioners of Writ No. 902 of 2011) vide an order dated 02.07.1994, after merger of the two cadres by the Governing Body and decision of the Government order dated 04.05.1998 started agitating their case of seniority over and above the petitioners and also filed writ petition no. 2939 (SS) of 1998, 5609(SS) of 1998, 639 (SS) of 1999 and no. 6545 (SS) of 2007, whereby they had challenged their seniority, merger and incorrect implementation of Governing Body decision dated 08.01.1988 etc. Thus, the second set of writ petition being led by Writ-A-639 of 1999 came to be filed by this AACOs challenging the combined seniority list issued on 21.12.1998 after merger of the said two posts, which is also to be decided by this Court in the present common Judgment.

(31) A Co-ordinate Bench of this Court, while hearing the writ petition no. 639 (SS) of 1999 on 13.12.1999, provided that the promotions shall not take place in pursuance of the Seniority list dated 21.12.1998, which is under challenge, until the seniority dispute is finally determined by the Government. The seniority list dated 21.12.1998 was confirmed by the Institute by an order dated 14.07.2000.

(32) Another 'cadre review & promotion policy' was approved by Governing Body on 27.11.2001 and eligible employees in order of seniority were promoted w.e.f. 03.01.2002, but being junior in the list, these AACO's were left out from being promoted. Thus, the seniority list is under challenge in these petitioners.

(vii) Implementation of GB dated 08.01.1988 to the Ministerial & Secretarial Cadre (33) The recommendation of the Governing Body dated 08.01.1988 came to implemented on 02.07.1994 as far as the employees of Accounts Cadre were concerned, however, as far as the other two cadres, namely, Ministerial and Secretarial are concerned, although the recommendation of the Governing Body dated 08.01.1988 came to be implemented on 01.01.1998, however, subsequently the same was cancelled vide an order dated 06.03.1998 and as such the employees of these two cadres preferred a reference petition under Section 36 of the Act, 1983 before the Visitor, wherein vide an order dated 23.08.1999, the issue was referred by the Visitor to the Department of Medical Education, State of Uttar Pradesh. Subsequently, vide an office order dated 13.02.2002, the State Government took a decision to implement the decision and also held the earlier implementation order dated 01.01.1998 to be proper and cancelled the order of cancellation dated 06.03.1998.

(34) Thus, SGPGI issued office orders on 20.03.2002 and 02.04.2003 for granting benefits of Governing body decision dated 08.01.1988 to Ministerial and Secretarial Cadres respectively, from the date of the decision of Governing Body dated 08.01.1988, pursuant to a direction of the State Government dated 13.02.2002. Apparently, some employees appointed in the Ministerial Cadre in the period intervening 08.01.1988 and 13.02.2002, felt aggrieved by the late implementation of the Governing Body decision as their salary in comparison to the salary admitted to the employees with effect from 08.01.1988 was relatively low as although the pay-scale was similar, however due to the grant of more increments their salary had become higher. Although, there had been no issue relating to seniority as the same was protected.

(viii) The controversy between the AACOS's and Assistant Accountants (35) In the meantime, the State Government, vide an office order dated 15.05.2000, set the controversy at rest by holding that the seniority of the persons working in the same pay-scale of the date of merger of the two cadres on 04.05.1998 shall be determined from the date of their substantive appointment and the seniority of the incumbents carrying different pay-scales shall be determined on the basis of higher pay-scales. Thus, as stated by the petitioners in Writ-A-902 of 2011 that since the petitioners and AACOs were both having same pay-scale on 04.05.1998 i.e. Rs. 1400-2300, on the date of merger, the Director of the institute in conformity with the office order dated 15.05.2000 of the State Government issued an order dated 14.07.2000 affirming the earlier seniority list dated 21.12.1998.

(36) In the aforesaid backdrop and there being pertinent controversy between the employees, the Finance Committee of the institute constituted a sub-committee vide its decision dated 10.03.2005, to examine the issue. The sub-committee in its meeting held on 07.11.2005 declared the implementation of the decision dated 08.01.1988 of the Governing Body as illegal, however the re-structuring of the cadre held on 03.01.997 and 27.11.2001 were held to be valid and correct. Thus, the sub-committee recommended for withdrawal of benefit admitted to the employees of Accounts Cadre, Ministerial Cadre and Secretarial Cadre and also further recommended for making recovery.

(37) Obviously, the recommendation dated 07.11.2005 was to the benefit of AACOs, who had been vying for seniority over the petitioners and as such they preferred a writ petition bearing No. 6545 of 2007 before this Court, praying inter-alia for taking action in furtherance to the said recommendation of the sub-committee dated 07.11.2005. A Co-ordinate Bench of this Court vide an order dated 15.10.2007 passed in Writ Petition No. 6545 (S/S) 2007, directed the Governing Body to take action as per law, however the Governing Body directed for a constitution of another sub-committee vide its decision dated 15.10.2007, wherein again the matter relating to the recommendation of the Governing Body dated 08.01.1988 was to be considered.

(38) The second sub-committee was constituted as per decision dated 15.10.2007 and comprised of Principal Secretary, Department of Law, Principal Secretary, Department of Finance, Finance Officer, SGPGI and Medical Superintendent/ Member Secretary of SGPGI. In the meeting held on 16.01.2008 in the absence of Principal Secretary, the second sub-committee arrived at a decision that there was no anomaly in the Accounts Cadre on account of the implementation of the decision of the Governing Body decision dated 08.01.1988 and recommended to continue with the exiting practise. The committee also proposed of no decision in the Secretarial Cadre as there was no dispute in the said cadre, however as far as the Ministerial Cadre was concerned, the Committee proposed pay protection of employees which appeared to be on the lower side than the employee, who had been extended the benefit of the Governing Body decision dated 08.01.1988. The said pay protection was given from the order dated 02.04.2003, by virtue of which the decision of the Governing Body dated 08.01.1988 was implemented.

(39) Further, the proposal/report dated 16.01.2008 of the second committee was placed before the Governing Body on 01.03.2008, which recommended the institute to take a final decision on the implementation in consultation with the finance department of the state Government. However, several employees of the ministerial cadre filed writ petition bearing No. 6555 of 2009, seeking quashing of the office order dated 02.04.2003 and 20.03.2002 and a direction was sought for final decision on the predicament of the decision of Governing Body dated 08.01.1988 in the light of the first sub-committee report dated 07.11.2005 and subsequent Government order dated 25.01.2006 and 06.09.2006 and as such a direction was sought for granting equal benefits to them at par with their juniors in accordance with the light of the second committee report dated 16.01.2008. Further, as far as the said writ petition is concerned, a Co-ordinate Bench of this Court, vide an order dated 15.10.2009, directed the President of the Institute to take a decision in the matter keeping in view the recommendation of the Governing Body in accordance with law and by a speaking and reasoned order.

(40) Pursuant to the aforesaid direction, the President of the Institute, who is also the Chief Secretary of the State Government as per section 11 of the Act, 1983, took a decision dated 15.01.2010, wherein it had observed that once the benefit of the pay parity with that of the AIIMS employee was given to the non-teaching employees of the institute, prior to the implementation of the decision of Governing Body dated 08.01.1998, extending of any benefits to the petitioners was against the orders issued by the State Government and was not approved by the State and as such not worthy of implementation and accordingly recommended for recovery.

(41) The said decision dated 15.01.2010 of the President of the Institute was placed before the Governing Body of the Institute. The Governing Body, in turn, vide its recommendation dated 06.03.2010 approved the decision of the President and authorised the Director of the Institute to act accordingly as per law. Subsequently, the Director of the Institute issued show cause notice dated 01.07.2010 to the petitioners of the first set of writ petitions, calling upon them to file their reply/representation.

(42) Further, representation to the said show cause notice of the Director of the SGPGI also did not yield any result, as the Director of the SGPGI vide his order dated 11.10.2010 reiterated the earlier order of the President/Governing Body, except to the fact of petitioners' status was now to be determined as per Government order dated 05.03.1991. Thus, the petitioners being aggrieved by the three orders preferred a writ petition being 7570 of 2010 before this Court, wherein a Co-ordinate Bench of this Court disposed of the said writ petition vide an order dated 02.11.2010 by remitting the matter to the Visitor in view of Section 36 of the Act, 1983.

(43) Thereafter, the petitioners preferred a detailed representation before the Visitor in terms of Section 36 of the Act, 1983, however even the said reference was rejected vide an order dated 25.01.2011 and as such the petitioners have filed the first set of writ petitions seeking quashing of order dated 15.01.2010 passed by the President of the SGPGI directing SGPGI to withdraw the benefit of the decision of Governing Body dated 08.01.1988 and extended on 02.07.1994 to the petitioners. Further, quashing has also been sought of all consequential orders like decision dated 06.03.2010 of the Governing Body, Order dated 11.10.2010 issued by the Director of the institute and order dated 25.01.2011 passed by the Visitor u/s 36 of the Act, 1983.

(44) As already narrated in the aforesaid facts, two other similar petitions being Writ No. 903 of 2011 and 904 of 2011 came to be filed by similarly circumstanced employees from the Ministerial and Secretarial Cadre respectively. These petitions were opposed by the state, SGPGI as well as the employees appointed as Assistant Accounts-cum-Computer Operator (AACOs), who claimed equal treatment and as such challenging the seniority list, equal treatment and declaration/implementation of DPC have filed five writ petitions, wherein Writ No. 639 of 1999, Writ No. 6545 of 2007 and Writ No. 3948 of 2014 is for challenging the seniority list and writ petition No. 3607 (S/S) of 2014 was filed for holding of DPC and Writ No. 1400 (S/S) of 2015 for declaration/ implementation.

(45) Although, writ petition No. 3607 (S/S) of 2014 was disposed of vide order dated 07.08.2014 granting relief to the said petitioners, however, subsequently C.M.Application No. 132871 of 2014 has been filed by one Dilip Singh and Mahesh Chand praying for recalling of the said order dated 07.08.2014 inter alia on the ground that the order dated 07.08.2014 has been obtained by concealment of material fact. As the issue involved in pending C.M. Application No. 132871 of 2014 in re: Writ Petition No. 3607 (S/S) of 2014 is identical to other above-captioned writ petitions, with the consent of the parties, the same is being decided by this common order .

D. Contention of the Parties (46) Heard Mr. S.K. Kalia, learned Senior Advocate, Mr. Asit Chaturvedi, learned Senior Advocate, Mr. Shobit Mohan Shukla, learned Counsel represening the petitioners in Writ Petition Nos. 902 of 2011, 903 of 2011 and 904 of 2011, Mr. Sanjay Bhasin, learned Senior Advocate ably assisted by Mr. Shubham Tripathi, learned Advocates for SGPGI, Mr. Jagdambika Prasad Tripathi, Mr. H.S. Tiwari, Mr. Rjendra Singh Chauhan, Mr. V.P. Nag, Mr. Girish Chandra Sinha, Mr. S.P. Singh, Mr. I.P Singh, learned Advocates representing respective parties.

(47) Mr. S.K. Kali, learned Senior Advocate in his charismatic simplicity submitted that all the petitioners were appointed in SGPGI in Accounts, Ministerial and Secretariat Cadre in the year 1987 onwards and three Writs have been filed by them respectively. He argued that the Finance Committee in its meeting held on 31.10.1987 decided to revise/re-designate the employees of Accounts, Ministerial and Secretarial cadre, which formed the basis of the decision of Governing Body dated 08.01.1988. However, in the meantime, the State Government vide Government Order dated 01.08.1990 agreed in principle to provide the pay-scale of 4th Pay Commission which was applicable w.e.f. 01.01.1986 at par with AIIMS, New Delhi.

(48) Accordingly, the pay-scales of employees were revised vide Government Order dated 05.03.1991 w.e.f. dated 01.01.1986 based on recommendation of Equivalence Committee. It has been contended by the learned Senior Counsel that during revision, the decision of Governing Body dated 08-01-1988 was not reported to the Committee and as a result thereof Accounts Clerk were given the pay-scale of Upper Division Clerk in AIIMS i.e. Rs. 400-615/- revised Rs. 1200-2040. He emphatically stressed on the point that had the decision dated 08.01.1988 been taken into consideration, Accounts Clerk would have been designated as Assistant Accountants and given the pay scales of Rs. 1400-2300 at that stage itself and there would have been no occasion for any dispute thereafter.

(49) According to the learned Senior Advocate representing the petitioners, representations had been given by the petitioners and in view of the said representation, the Institute constituted a Committee and after consideration of their claims, a D.P.C. was constituted for the said purpose and the petitioners were re-designated as Assistant Accountants from the post of Account Clerk. Since, the unrevised pay-scale of Account Clerk was Rs. 400-615/- and of Assistant Accountant was Rs. 515 to 860/-, as such after re-designation, the petitioners were given the revised pay-scale of Assistant Accountant i.e. Rs. 1400-2300/- vide order dated 02.07.1994.

(50) Learned Senior Advocate representing the petitioners further submits that the recommendation of the sub-committee dated 07.11.2005 has erroneously declared that implementation of the decision dated 08-01-1988 of the Governing Body as illegal, whereas on the other hand it said that the restructuring held on 3-1-1997 and 27-11-2001 be treated to be implemented, even though the said restructuring was done keeping in view the decision of the Governing Body dated 8-1-1988. According to him, the decision of the sub-committee was contradictory and as such the recommendation for withdrawal of benefit admitted to the employees of the Accounts, Ministerial and Secretarial cadres and further recommendation for making recovery was illegal.

(51) It has been submitted that since there is no other provision in the Act, 1983 providing for regulation of service conditions of the employees of the institute, therefore, as per the General Clauses Act, the power bestowed on the Governing Body to create and abolish the posts as provided under section 19(2)(f) of the Act, 1983 includes the power to regulate the service conditions of the employees of the Institute. Thus, the impugned decision of the President of the SGPGI dated 15-01-2010 to the effect that the decision of the Governing Body dated 08-01-1988 should be discarded, on the ground of it not having been approved by the State Government proves to be misconceived and legally not tenable. According to him, no approval of State Government was required for creation of any post in the Institute, as can be seen from the fact that Section 19(2) (f) was amended in the year 2009 in which approval of the State Government has now been required for the said purpose. He submits that in any case when the budget required for the purpose of payment of pay-scale in pursuance of decision of the Governing Body dated 08-01-1988 was allocated by the State Government, the requirement of Section 25 of the Act has been complied with and it indicates implied approval of decision of Governing Body dated 08-01-1988 by the State Government.

(52) Learned Senior Counsel has tried to drive home his point by stating that both the decision of the Governing Body dated 08.01.1988 and the decision of granting pay-scale at par with AIIMS dated 05.03.1991 can co-exist as the said two decisions are neither repugnant to each other nor there was any illegality in implementing the two decisions for the employees of the Institute. The grant of aforesaid two benefits to the petitioners cannot be said to be admitting double benefits to the petitioners but the order of the President of the SGPGI is apparently based on the said notion. Furthermore, it has been argued that the other reasons assigned in the impugned order dated 15-01-2010 are legally not tenable and the decision of the Governing Body dated 03-01-1997 cannot be legally tested on the touch stone of Section 41(1) (f) of the Act, 1983 inasmuch as till date no regulations have been framed by the Institute and, therefore, in view of Section 19 (2)(f) of the Act, 1983, the Governing Body was fully competent to review the cadre and to provide pay scale and promotional opportunities to the employees of the Institute. The learned Senior Counsel emphatically asserted that when ex post facto approval of State Government for Governing Body decision dated 3-1-1997 can be recommended why not for Governing Body decision dated 08-01-1988, though at this belated stage it would create chaotic situation in the Cadre. He also stressed on the point that in Cadre Review dated 03.01.1997, re-designation of posts as per decision of Governing Body dated 08.01.1988 was taken into consideration.

(53) According to the learned Senior Counsel, the President of SGPGI, while passing the impugned order dated 15.01.2010, has though tried to create an impression that the Institute is subservient to the State Government but while holding the office order issued by the State Government to be illegal, he has acted as superior authority and not as the President of the Institute. The tenor of the impugned order dated 15.01.2010 goes to show that the President of the Institute has also tried to sit in appeal over the decision taken by the State Government and has annulled the decision of the Governing Body which he happens to be the President.

(54) The learned Senior Counsel has submitted that the alleged parity with AIIMS was granted w.e.f. 1997 and not from 1991 as is also evident from a letter of the Director of the Institute dated 13-10-2008 addressed to the Director of AIIMS. Thus, according to him, the Visitor has failed to examine as to when the AIIMS parity has been granted to the petitioners and secondly whether admitting the benefit of the decision of Governing Body dated 08-01-1988 amounts to admitting dual service benefits to the petitioner or not. In order to affirm decision dated 15-01-2010 and 11-01-2010, the Visitor though has referred to the decision of the first sub-committee meeting dated 07-11-2005 but has utterly failed to consider second sub-committee decision dated 16-01-2008. Not a single iota has been said with regard to the decision dated 16-01-2008. Further even the State Government vide its order dated 20-10-2010 has held that there is no occasion and purpose to grant ex-post facto to the approval decision dated 3-1-1997 as the said decision has already been implemented. Thus it has been submitted that the order of this Court in pursuance to which the President of SGPGI has passed the impugned order dated 15- 01-2010 did not deal with the merit of the case. Further, according to the learned Senior Counsel, the post to post parity with AIIMS has never been granted till date and therefore sole premise to snatch the benefits flowing from the decision dated 08.01.1988 is misconceived and while making cadre restructuring in the year 1997, the decision dated 08.01.1988 was taken into consideration. The original impugned order from where the dispute has erupted i.e order dated 15.01.2010 apart from being illegal and arbitrary is violative of principles of natural justice for the reason that the follow up decision dated 06.03.2010 is also based on prejudices inasmuch as decision to issue show cause notice after a final decision has been taken is nothing but an eyewash and is a camouflage.

(55) Learned Senior Counsel representing the petitioners further submitted that decision dated 08.01.1988 was rightly implemented as it created no hindrance or adverse impact on the alleged grant of parity with All India Institute of Medical Sciences(AIIMS). As a matter of fact, the decision dated 08.01.1988 and its implementation is not in derogation to any further decision taken by the Institute as regards the service conditions and pay scale of the employees of the Institute. The situation can be visualized from a hypothetical situation that had the decision dated 08.01.1988 been implemented in 1988 itself, no question of any kind would have arisen as regard grant of said benefits. The said decision was implemented so as to boost the morale of the employees.

(56) According to the learned Senior Counsel, the Governing Body of Institute in its 43rd meeting held on 03.01.1997 made cadre review as well as pay scales and promotional opportunities with respect to the employees of the Institute. The said decision was based on the recommendations of the Finance Committee taken in its meeting held on 01.01.1997. The Governing Body on 03-01-1997 decided to implement the AIIMS package of allowances to all the employees uniformly and also decided in principle to implement the changes at Sanjay Gandhi Post Graduate Institute of Medical Sciences, Paripasu with changes at AIIMS in future. Thus, in fact parity of cadre structure with AIIMS was given w.e.f. 3-0l-1997 and not w.e.f. 1-08-1990. Moreover, according to him, the aforesaid cadre restructuring/ revision of the pay scale dated 08-01-1988 was taken into consideration while reviewing the cadre restructuring on 03-01-1997. Through the cadre review made on 03-01-1997, the posts of Typist/Junior Clerk (Store) and Hospitality Clerk were declared as dying cadre and two existing Typist and Junior Clerk and Hospitality Clerk were merged to the post of Lower Division Assistant in a phased manner on completion of 03 years' experience on the aforesaid post. The echelon of the cadre structure also goes to show that the same was based on the decision of the Governing Body dated 08-01-1988. Thus, the parity with AIIMS had been approved vide aforesaid decision dated 3-1-1997 yet the actual parity has not been granted. According to the learned Senior Counsel, in AIIMS, the post of LDC, UDC, Head Clerk and Office Superintendent are in existence but in the Institute, the post of L.D.A., U.D.A. and Office Superintendent are in existence. It was stated that the earlier existing post of Typist was declared as dying cadre vide decision dated 3-1-1997 keeping in view the earlier decision dated 8-1-1988. Thus, parity of AIIMS has not been granted. This was the situation in the cadre of Accounts and Secretariat as well.

(57) The next ground taken by the learned Senior Counsel is that while taking the impugned decision of withdrawal of the service benefits having been made available to the petitioners way back in the year 2002 w.e.f. 08.01.1988, no opportunity has been provided to them as neither any show cause has been issued to the petitioners nor they have been given an opportunity to place their case before the authorities prior to the decision of the Governing Body dated 06.03.2010. Such an action on the part of the respondents is in absolute derogation to the principles of natural justice and as such the same cannot be allowed to be sustained in the eyes of law. According to him, in the Accounts Cadre, the petitioners, who were designated as Assistant Accountant and have been promoted on higher post would be placed at which post is not clear inasmuch as the post of Account Clerk is not in existence and other posts in Ministerial Cadre are also not in existence. The submission of the petitioners is that none of the grounds taken by the President of SGPGI, to cancel the service benefits made available to the petitioners long ago, are tenable either in the eyes of law or on facts. It was further contended that although prior to passing of the order dated 11.10.2010, an exercise to provide opportunity to the petitioners was undertaken in pursuance of an office order dated 01.07.2010 but as a matter of fact the said opportunity was nothing but an eyewash as after taking a final decision on 06.03.2010 itself, there was no purpose for providing opportunity to the petitioners.

(58) According to the learned Senior Counsel, the entire exercise is malicious and capricious and is oriented to give benefit to a certain class of employees. The Visitor in a pre-determined notion has decided the reference petition without properly appreciating the grounds raised by the petitioners in their reference petition. Thus, he prays for allowing the writ petitions No. 902 of 2011, 903 of 2011 and 904 of 2011.

(59) On the other hand, according to the State of Uttar Pradesh, the order dated 15.01.2010 was passed by the President of the SGPGI and thereafter it was placed before the Governing Body in its 68th meeting held on 06.03.2010 for its deliberation and decision. The Governing Body approved the order of the President of the SGPGI and recommended to set aside the office orders dated 02.07.1994, 20.3.2002 and 02.04.2003 issued on the basis of earlier recommendation of the Governing Body dated 08.1.1988. Thereafter, considering various representations and after approval of the President of SGPGI, the Director of SGPGI passed impugned order dated 11.10.2010 for setting aside the implementation of the decision of the Governing Body taken in its meeting on 08.01.1988, wherein it was mentioned that the employees of ministerial and secretarial cadre shall be restored their designation and pay scale, as per "Cadre re-structuring of Promotion Policy", approved by Governing Body on 3.1.1997 subject to ex-post facto sanction of State Government and employees of accounts Cade shall be accorded benefits as per decision of the said Governing Body.

(60) According to Mr. V.P. Nag, the learned Standing Counsel for the State, the petitioners and other beneficiary employees preferred writ petition nos. 7570 (S/S) of 2010, 7571 (S/S) of 2010 and 7572 (S/S) of 2010 before this Court, wherein all the said writ petitions were disposed of vide order dated 02.11.2010 with liberty to the petitioners to submit their representations before the Visitor who shall take decision within a month and till then the impugned orders would remain stayed. The learned Counsel has vociferously argued that in view of the order dated 02.11.2010, passed by this Court, petitioners/employees submitted before the Visitor, who sought the comments from the President and the Director of the Institute and also Secretary, Medical Education Department of Govt. of U.P. and after considering the relevant facts, Government Orders, decisions of statutory bodies and provisions of Act, the Visitor passed a self-speaking and reasoned order dated 25.01.2011 thereby upholding orders dated 15.01.2010, 11.10.2010 and recommendation of Governing Body taken on 06.03.2010.

(61) Apparently, the State has tried to build a case by submitting that the resolution of Finance Committee meetings dated 16.09.1987 and 31.10.1987, was ratified by Governing Body in its meeting dated 08.01.1988, whereby the pay scales to ministerial staff of the Institute (i.e. Office Superintendent, Sr. Assistant/U.D.A., Senior Clerk/L.D.A., Senior Accounts Clerk/Cashier/Cashier/ Record Keeper and others) was made at par with the pay-scales available to the staffs in the offices of Heads of Departments in Government Departments. Thereafter, Government accorded sanction to grant pay scales and allowances to the faculty of the SGPGI at par with their counter parts in All India Institute of Medical Sciences, New Delhi (hereinafter referred as 'AIIMS'). Subsequently, vide order dated 01.08.1990 of the Government, employees of SGPGI were also accorded same benefits. Thereafter vide Government Order dated 05.03.1991, revised pay scale was granted to the employees including petitioners w.e.f. 01.01.1986, the date from which the scale was revised in as per recommendations of 4th Pay Commission, in view of option given by the employees and they never protested parity in pay being granted with the employees of AIIMS. According, to the learned Counsel for the State, the pay-scale of all the petitioners in Writ-A No. 902 of 2011 was revised to Rs.1200-2040 (4th Pay Commission) by Government Order dated 05.03.1991 at par with the AIIMS, New Delhi and revised salary along with arrears (difference of salary) was also paid. Thus, he has reiterated that the implementation of resolution of Governing Body dated 08.01.1988 in the year1994 in respect of Accounts Cadre from retrospective effect was improper. Further, according to the learned Counsel, vide the Government Orders dated 5.3.1991 and 09.07.1991, the revised pay-scales were granted to the ministerial staff and secretarial cadres w.e.f. 1.1.1986 or w.e.f joining, whichever was later, and revised salary along with arrears (difference of salary) was also paid to them.

(62) The learned Counsel has stated that the employees appointed on the post of Accounts Clerk/Cashier (pay-scale Rs. 400-615/ Rs.1200-2010) were re-designated as Assistant Accountant in the pay scale of Rs. 470-735/Rs.1400-2300 (revised) from 08.01.1988 or from their date of joining, illegally and arrears with respect to same were also paid to them.

(63) Learned Counsel for the State has further clarified that the approval of the Governing Body was titled "Cadre Restructuring, Pay Scale and Promotional Opportunities to Employees of the Institute", in brief known as "Cadre Review Report" and which was made effective from 03.01.1997 itself for all employees and officers of the Institute and promotions were made from the month of June, 1997 onwards. The ministerial cadre structure was also approved by the Governing Body on 03.01.1997.

(64) According to learned Counsel for the State, the pay scale of Stenographer as recommended by Governing Body meeting dated 08.1.1988 was Rs. 570-1100 (revised Rs. 1640-2900) and if granting this pay scale was correct, they would have been designated as Stenographer and their promotions made under the Government Order dated 09.07.1991 should be cancelled because benefit cannot be granted as per the choice of the petitioners. It was further submitted that whenever the petitioners were given the benefits of promotions and regularization under the Government Order dated 09.07.1991 they did not protest, and on other hand, they also accepted the pay scale, proposed by Governing Body meeting dated 08.01.1988. It was argued that the pay scale for the post of Stenographer was sanctioned as Rs. 1200-2040/ Rs. 4000-6000 by Governing Body in its meeting held on 03.01.1997 and 27.11.2001. Thus, under these circumstances, granting the pay scale of Rs.1640-2900 (Pre-revised Rs 570-1100) as recommended by Governing Body dated 08.01.88 from their date of joining was illegal and incorrect.

(65) The learned Counsel for the State has also submitted that the promotions in all cadres in the Institute, including the petitioners were made as per the approval of the cadre review report of 27.11.2001 and as such, it was illegal and improper to the application of former resolution passed by Governing Body in its meeting held on 08.01.1988. The learned Counsel has also submitted that on being knowing illegality in payment of arrears as per decision dated 8.1.1988 of Governing Body, recovery was initiated against the petitioner, wherein a Writ Petition No. 2843 (S/S) of 2005 (Anil Kumar Rai & others Vs. Director, SGPGIMS) was filed which was disposed of with liberty to move representation. Thus, according to the learned Counsel for the State, the Institute had been pursuing its cause of wrongful implementation of the recommendation of the Governing Body dated 08.01.1988, ever since the same was discovered as apparent from the report of the 1st committee dated 07.11.2005, which declared the said recommendation to be illegal and also recommended for recovery.

(66) On the legal ground, the learned Counsel for the State argued that the power of Governing Body to create/abolish posts under Section 19(2)(f) of the Act, 1983 does not include power to revise pay-scales. Every revision of pay-scale involves financial implications and requires budgeting, being recurring in nature, requires approval of State Government as per section 25(3) of the Act, 1983 while no approval to implement decision dated 08.01.1988 of the Governing Body was granted. Further, according to the learned Counsel, once Government Order dated 01.08.1990 and Government Orders dated 05.03.1991 and 09.07.1991 was issued giving parity with employees of AIIMS w.e.f. 01.01.1986 (actual payment w.e.f. 01.01.1986 or the date of joining), the decision of Governing Body 08.01.1988 stood rendered ineffective and implementation thereof subsequently was not sustainable on any grounds. He submits that pay-scale of employees should have nexus with duties assigned hence parity with employees attached to the office of HOD in State Government may not be claimed once parity with AIIMS having been extended retrospectively and arrears also paid on basis of option given and received without protest.

(67) Thus, learned Counsel for the State has submitted that the employees may not claim dual benefits arising from two sets of policies nor in such fashion it may be applied amongst employees of Institute, wherein some may get parity with AIIMS and some may get both pay-parity with employees of HOD offices in Government and that of AIIMS. He concluded his argument by submitting that illegality may not be allowed to perpetuate and any attempt to abuse the process of court and process of law must be effectively curbed nor any one may be allowed to get unjust profit.

(68) Mr. Sanjay Bhasin, learened Senior Counsel spearheaded the arguments along with Mr. Subham Tripathi for the SGPGI. The learned Senior Counsel has articulated his argument to submit that pursuant to the order of the Chief Secretary, Uttar Pradesh and decision of the Governing Body taken on 6.3.2010, the Director of the Institute on 1st July 2010 issued office order, whereby the opportunity of hearing was afforded to the petitioners and other beneficiaries and it was desired from them to submit their representations as to why the orders issued on 02.07.1994, 20.3.2002 and 02.4.2003 should not be cancelled. It was further categorically mentioned that the employees of ministerial and secretarial cadre shall be restored their designation and pay scale, as per "Cadre re-structuring of Promotion Policy", approved by Governing Body on 3.1.1997 subject to ex-post facto sanction of state government and employees of accounts shall be accorded benefits as per decision of governing body.

(69) According to the learned Senior Counsel, in view of the decisions of Statutory Bodies and statutory provisions given in the Act, the Visitor passed an order on 25.01.2011 which is self-speaking and reasoned. The Visitor did not find any illegality in the orders dated 15.01.2010, 11.10.2010 and decision of Governing Body taken on 06.03.2010 and as a result of which all the representations of the petitioners and others were dismissed. Thus, he has argued that since sufficient opportunity of hearing has been given to the petitioners and others by the Director and Visitor against the order of the Chief Secretary dated 15.01.2010 and decision of Governing Body taken on 06.03.2010, the contention of the petitioners with regard to violation of principles of natural justice does not stand substantiated and accordingly there is nothing substantial remaining in the writ petition and same is liable to be dismissed.

(70) The learned Senior Counsel has argued that petitioners were substantively appointed on the post of Accounts Clerk/cashier in the pay scale of Rs.400-615 as per 3rd Pay Commission. The pay scale of all these Petitioners was revised to Rs.1200-2040 (4th Pay Commission) by Government Order dated 05.03.1991 at par with the AIIMS, New Delhi and revised salary was granted along with arrears (difference of salary) to them. As such, it was illegal and improper to apply the former resolution passed by Governing Body in its meeting held on 08.01.1988 in 1994 upon incumbents of accounts cadre from retrospective effect. The Learned Senior Counsel has painstakingly, submitted that the revised pay scales, as sanctioned vide Government Order dated 5.3.1991 and 09.07.1991 were granted to the employees of ministerial and secretarial cadres w.e.f. 1.1.1986 or their date of joining, whichever later and revised salary along with arrears (difference of salary) was paid to them and as such, it was illegal and improper to apply the former resolution passed by Governing Body in its meeting held on 08.01.1988 in 2002-03 from retrospective effect.

(71) According to the learned Senior Counsel, a perusal of cadre review report of 03.01.1997 and 27.11.2001 clearly shows that earlier the post of Typist was the entry level in the ministerial/ administration cadre and the same was changed to Lower Division Assistant, to be filled by direct recruitment. Further, pay-scales have to be commensurate with nature of work/duty of the post and could not have been casually/whimsically equated with pay-scales of HOD employees, unless some study was carried out establishing that they perform the same nature of duties / work to be entitled to HOD pay-scale. He submits that, once GO dated 01.08.1990 (in principle parity with AIIMS) and GO dated 05.03.1991 (parity with AIIMS- Accounts Cadre) and 09.07.1991 (parity with AIIMS- Ministerial & secretarial cadre) were issued giving parity with AIIMS retrospectively w.e.f. 01.01.1986 and actual payment of arrears w.e.f. 01.01.1986 (or the date of joining) was paid, the GB decision of 08.01.1988 became redundant and in effect stood overridden by the government orders.

(72) The learned Senior Counsel has emphatically stressed on the point that dual benefit/second benefit of parity with HOD employees could not have been given after execution/ implementation of parity with AIIMS having been extended retrospectively. In any case, there cannot be two sets of policies applied in the same Institute where few employees in a cadre get the dual benefit of parity with AIIMS as well as parity employees of HOD and the other get benefit of parity with AIIMS only. He further submits that the State Government which had in principle approved parity in pay scale and allowances to SGPGI employees and officers at par with their counterparts in AIIMS vide GO dated 05.03.1991 and others, issued revised pay scales of 4th Pay Commission in accordance with the proposal of the Randhar Committee report and other relevant facts. The Randhar Committee had elaborated the equivalence in pay scales of SGPGI employees as compared to their counter parts in AIIMS.

(73) The learned Senior Counsel has submitted that since opportunity of hearing has also been afforded to the petitioners, which is one of the main grounds of challenge, before annulling the illegal and erroneous implementation of the Governing Body resolution dated 08.01.1988, it is blatant lie to say that they have not been heard. Moreover, since before the decision of Governing Body taken on 6th March 2010 no final opinion was made out in respect to the issue in question, therefore, the question of making any communication prior to 6 March 2010 did not arise and as soon as opinion was made out, petitioners were afforded opportunity of hearing by Director vide his order dated 1st July, 2010. According to him, it is well settled that court should never permit a litigant to perpetuate illegality by abusing the legal process and it is bounden duty of the court to ensure that the dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of process of law. No one should be allowed to use judicial process for earning undeserved gains or unjust profit. He also relies on letter dated 20.10.2010 to shows that there is no mention with respect to budget and the only reason for not giving post facto approval was the long-time gap and the effect of implementation of cadre restructuring dated 03.01.1997 which was already done. Towards the end of the argument, the learned Senior Counsel has submitted that the averments of the petitioners that the present dispute has occurred due to belated decision making of the institute is incorrect as time and again various committees were constituted by the institute, who had also recommended for withdrawal of the implementation of the Governing Body resolution dated 08.01.88, however the said withdrawal could only be done in 2010.

E. Discussion & Findings (74) This Court, having given its anxious thought to the rival submissions of the learned Counsel for the parties, is of the view that the present decision has to be in two overlapping parts. The first would be relating to the sanctity of the impugned orders (i) dated 15.01.2010 passed by the President of the SGPGI, (ii) Order dated 06.03.2010 of the Governing Body, (iii) Order dated 11.10.2010 issued by the Director of the institute and (iv) order dated 25.01.2011 passed by the Visitor of the SGPGI under Section 36 of the Act, all impugned order in unison directing SGPGI to withdraw the benefit of the Governing Body decision dated 08.01.1988 and implemented on 02.07.1994, 20.03.2002 and 02.04.2003. The second would be its consequence on the seniority list of the Accounts Cadre as has been agitated in the present bunch of petitions by the Accountant-cum-Computer Operators.

(75) At the outset, this Court would examine the legality of implementation of Governing Body decision dated 08.01.1988. Apparently, it is borne from the records that the recommendation of the Governing Body dated 08.01.1988 relates to granting revised pay-scales to non-faculty employees at par with maximum permissible pay-scales available to such staffs in the offices of Heads of Departments (HOD) in State Government. Noticeably, the aforesaid recommendation was not implemented immediately and in the meantime, the State Government, vide order dated 17.10.1989, had accorded sanction for grant of pay scales and allowances to the faculty of the SGPGI at par with their counter parts in All India Institute of Medical Sciences (AIIMS), New Delhi and on demand of non-faculty employees of SGPGI, same benefits was accorded to the non-faculty employees by the State Government, vide order dated 01.08.1990.

(76) Consequently, in view of the Government Order dated 01.08.1990, the State Government granted the revised pay-scale to the non-faculty employees of the Institute, including those belonging to the Accounts cadres, Ministerial cadre and Secretarial cadre vide Government Orders dated 05.03.1991 and 09.07.1991 and this pay revision was made effective from 01.01.1986, the date from which the 4th Pay Commission scale was revised.

(77) Three things are clear from the aforesaid unfolding of facts. Firstly, the Governing Body although recommended for pay-parity with the maximum permissible pay-scales available to such staffs in the offices of Heads of Departments (HOD) in State Government on 08.01.1988, however the same was not implemented and in the meantime pay-parity with AIIMS was granted to this non-faculty employees of SGPGI on 05.3.1991. Secondly, the pay-parity with AIIMS was granted to this non-faculty employees on their demand. Thirdly and most significantly, the Government Order dated 5.3.1991 specifically records that the revised pay scale & pay-parity with AIIMS was being given on the basis of the option given by the non-faculty employees of institute and they would not be entitled for the other benefits admissible to employees of State Government.

(78) It is rather amusing and this court rather finds difficult to appreciate as to when pay-parity with AIIMS was granted to the non-faculty employees of SGPGI, how they can claim further pay-parity with maximum permissible pay-scales available to such staffs in the offices of Heads of Departments (HOD) in State Government as resolved in governing Body recommendation dated 08.01.1988. These non-faculty employees cannot be benefited twice by claiming pay-parity with staffs of HOD of state as well as pay-parity with staffs of AIIMS, New Delhi. These employees can be either entitled to parity with staffs of HOD of State government or with AIIMS, New Delhi and not both. Besides, the fact that the pay-parity with AIIMS was granted to these non-faculty employees of their demand, the records of this case reveal that the pay-parity with AIIMS was accepted by these employees without any demur and it is only after the said acceptance that the pay-parity and the arrears were paid to them. Now, that when these employees have already accepted the said benefits, it is neither fair, nor proper or legal for them to turnaround and again demand implementation of Governing Body resolution dated 08.01.1988. Further, even the Government Order dated 05.03.1991 in clear and unequivocal terms says that they would not be entitled for the other benefits admissible to employees of State Government.

(79) The learned Senior Counsels appearing for these non-faculty employees, have argued that the recommendation of the Governing Body dated 08.01.1988 was not brought to the notice of the authorities while issuance of G.O dated 05.03.1991 and in case the said resolution would had been brought to the notice of the Authorities, the recommendation would had been implemented in the G.O dated 05.03.1991 itself and benefits would had been accordingly extended at that point of time only. Thus, it has been argued that procrastination in implementation is the root cause of the impugned orders. Although, in the first instance, the argument of the learned Senior Counsels appears to be attractive, however it is apparent from records that the said argument is merely a mirage. In fact, the said argument appears to this court as self-defeating. As a matter of fact & records, the G.O dated 05.03.1991 was pursuant to Governing Body resolution dated 18.07.1989, which was passed after the impugned resolution dated 08.01.1988, which says in as many words as follows:

"The Governing Body noted its earlier decision to implement AIIMS grades of nurses and technical staff at SGPGI. The matter is still pending with the Government. In respect of administration and other staff the Governing Body observed that the State has already decided in principle that the salary of state employees will be in parity to central staff. To ensure that all categories of posts at SGPGI are covered, the Governing Body recommended that the Institute should undertake an in depth examination of post-to-post parity with reference to the grades and other fringe benefits applicable at AIIMS, New Delhi and grades at SGPGI and the grades now being revised by the State Government on the recommendations of the equivalence committee. If there are any anomalies, these should be examined by the Finance Committee and its recommendations be brought before the next Governing Body".

(80) The aforesaid resolution envisages in clear terms that the State Government in principle has already decided that the salary of state employees will be in parity to Central staff and to ensure that all categories of posts at SGPGI are covered, the Governing Body states that the Institute has already undertaken an in depth examination of post-to-post parity with reference to the grades and other fringe benefits applicable at AIIMS, New Delhi and grades at SGPGI and most significantly it says that the grades now being revised by the State Government are on the recommendations of the equivalence committee. Thus, it cannot be eschewed that the authorities while issuing the G.O dated 05.03.1991 were not aware of the earlier resolution dated 08.01.1988, in fact by not dealing with the said earlier resolution, it has constructively overruled the same. Further, the resolution also speaks of anomalies, if any, and in that regard says that the Finance Committee shall examine the same and be brought before the next Governing Body. Thus, to say that the G.O dated 05.03.1991 was implemented without noticing the recommendation of the Governing Body resolution dated 08.01.1988 would be a misnomer. It is rather surprising that the resolution dated 18.07.1989, which was much after the resolution dated 08.01.1988 of the Governing Body, came to be implemented vide Government Order dated 05.03.1991, whereas no Government order was issued for implementation of the resolution dated 08.01.1988 before the implementation of Governing Body resolution dated 19.07.1988 or ever thereafter till 02/07/1994, which again was only an office-order and not a Government order, which separates the chaff from the grain that after the resolution dated 19.07.1989, there was no occasion nor any intention for implementation of the earlier Governing body resolution dated 08.01.1988. Ideally, the said resolution would had been withdrawn immediately after the resolution of the Governing Body dated 19.07.1989 or in any circumstances after 05.03.1991, which would nipped the controversy in the bud.

(81) However, in the aforesaid context, this court is reminded of the Judgment passed by the Honble Supreme Court in the case Mallikarjuna Rao and Others Etc. Etc. Vs. State of A.P. and Others Etc. Etc. AIR 1990 SC 1251: (1990) 2 SCC 707: 1990 (1) SCALE 705, wherein the Apex court has distinctively held that the Constitution of India does not permit the Courts to direct or advise the Executive in matters of policy, or to sermonize qua any matter which, under the Constitution, lies within the sphere of Legislature or Executive. Therefore, this Court can only point out the legal consequences of the improper implementation of the erstwhile recommendation of the Governing Body dated 08.01.1988, after the implementation of the pay-parity of the employees of the Institute with AIIMS, New Delhi in view of the Government order dated 05.03.1991 and nothing more.

(82) Pertinently, the State Government vide G.O dated 05.03.1991 had issued the aforesaid revised pay scales of 4th pay commission in accordance with the proposal of the Randhar Committee or the Equivalence Committee, which had recommended the equivalence in pay scales of SGPGI employees at par with their counter parts in AIIMS. Further, since pay revision was made effective from 01.01.1986, the date from which the 4th Pay Commission scale was revised, these employees were granted and also paid arrears of salary as per the revised pay-scale. The result of revised pay-scale is as per the following chart:

Sl. No. Name of post Existing pay-scale Revised pay scales after G.O dated 05.03.1991

1.

Accounts Clerk 400-615 1200-2040

2. Cashier 400-615 1200-2040

3. Typist 354-550 950-1500

4. Lower Division Assistant 400-615 1200-2040

5. Upper Division Assistant 470-735 1400-2300

6. Stenographer 515-860 1200-2040 (83) It is available from records that after the implementation of the aforesaid pay-parity with the employees of the AIIMS, the petitioners of Writ-A Nos. 902 of 2011, 903 of 2011 and 904 of 2011, started representing the Institute for implementation of the Governing Body recommendation dated 08.01.1988, which technically would had been withdrawn immediately after the G.O dated 05.03.1991, wherein pay-parity with AIIMS was granted. In any case, the Institute, subduing to the demand of these employees implemented the recommendation of Governing Body dated 08.01.1988 in a phased manner and as such in the 1st Phase, the employees of "Accounts Cadre" were extended benefits vide order dated 02.07.1994, passed by the Senior Administrative Officer. Thus, employees appointed on the post of Accounts Clerk/Cashier (pay-scale Rs. 400-615/1200-2010) were re-designated as Assistant Accountant in the pay scale of Rs. 470-735/Rs.1400-2300 (Revised) from 08.01.1988 or from their date of joining and again arrears with respect to same were also paid to them. Thus, dual financial benefit as well as the benefit in pay-scale has accrued to the petitioners due to the aforesaid G.O dated 05.03.1991 and recommendation of the Governing Body dated 08.01.1988.

(84) It is one thing to say that the employees on the post of Accounts Clerk/ Cashier, who had been given parity to the AIIMS pay scale vide G.O dated 05.03.1991, would had been given the pay scale of Assistant Accountant (pay scale of 1400-2300) at that point of time and it is other thing to say that the said pay scale of Assistant Accountant was granted in view of the implementation of the Governing Body recommendation dated 08.01.1988. The petitioners admittedly did not challenge at any point of time the alleged erroneous grant of pay scale by the G.O dated 05.03.1991 and merely after 32 years of after taking the benefit has tried to make a feeble attempt to argue that the G.O dated 05.03.1991 was wrongly applied to these Accounts Clerk/ Cashier and was merely a pay-revision and had the said GO not applied erroneously, these petitioners would have been designated as Assistant Accountant in the pay scale of Rs.1400-2300 at the time of implementation of G.O dated 05.03.1991 itself.

(85) Besides the fact that it is too late in the day to argue on the aforesaid aspect, the said analogy seems to be absurd, especially when the same is not commensurate to the pleadings in the writ petitions. Further, the conduct of these employees apparently seems not to be above suspicion as there is not a single document on records to suggest that these employees have been agitating the implementation of Governing Body resolution dated 08.01.1988 prior to 05.03.1991 i.e the implementation of the pay-parity with AIIMS. However, once these pay-parity with AIIMS was granted, these employees resurrected from their deep slumber and started agitating the implementation of the Governing Body resolution dated 08.01.1988. Thus, apparently it seemed these employees first waited for the pay-parity of AIIMS to be implemented by the State Government and thereafter took a chance in seeking implementation of the Governing Body resolution dated 08.01.1988, which apparently they succeeded due to obvious reasons of lackadaisical attitude of the Institute and the State Government.

(86) This Court has been informed that several complaints of the public representatives regarding irregularities in the Institute was received by the State Government, who had ordered an enquiry and Sri Rakesh Kumar Goyal, IAS, the then Additional Director of Institute was nominated as enquiry officer. Pertinently, the issue of implementation of the recommendations of the Governing Body dated 8.1.1988 with respect to only a section of employees of the Institute was also one of the issues, enquired by Sri Goyal. After examining relevant files and records, Sri Goyal submitted his report to the State Government on 7-11-2008 and found this issue illegal and identified the erring officials and as a consequence on the direction of a Division Bench of this Court in Public Interest Petition (PIL) No. 8785 (M/B) of 2009, the departmental proceedings against the erring officials of the Institute are underway.

(87) There is another aspect of the matter. As already observed, hereinabove, as far as the employees of Accounts Cadre are concerned, the resolution of the Governing Body dated 08.01.1988 was belatedly implemented on 02/07/1994 i.e after close to six years after the resolution and this court in the peculiar circumstances has held to be improper and suspicious. However, the case of the Ministerial Cadre and the secretarial Cade seems to more fragile & worse as far as the date of implementation is concerned. Apparently, on the heels of the aforesaid demand having been implemented for the employees of the Accounts cadre, the other two categories, namely, Ministerial Cadre and Secretarial cadre intensified their demand for implementation of the Governing Body decision taken in its meeting held on 08.01.1988, i.e. parity with the Head of Department of State Government.

(88) This demand of the Ministerial cadre was implemented on 01.01.1998 but was subsequently cancelled on 06.03.1998 and the issue was directed to be re-examined. The employees of Ministerial Cadre, in return preferred a reference petition under section 36 of the Act, 1983 before the Visitor, whereupon the matter was referred to the Department of Medical Education, Government of U.P. Apparently, thereafter the matter had been making rounds of the Institute as well as the State Government and ultimately, the State Government vide an office order dated 13.02.2002 took a decision to implement the decision of the Governing Body dated 08.01.1988 and consequently held the order dated 01.01.1998 to be correct and cancelled the order of cancellation dated 06.03.1998. Thus, the Institute issued office orders on 20-03-2002 and 02-04-2003 for Secretariat Cadre and Ministerial cadre, respectively, for extending the benefit of the decision dated 08-01-1988 w.e.f. the said date/ date of joining to the members of the said cadres. Thus, as far as the Ministerial and secretarial Cadre is concerned, the Governing Body resolution dated 08.01.1988, came to be implemented after close to 14 and 15 years and that too after the cadre restricting of the Institute was implemented vide Governing Body resolution dated 03.01.1997 and 27.11.2001.

(89) Apparently, the Governing Body vide its recommendation dated 03.01.1997, approved the "Cadre Restructuring, Pay Scale and Promotional Opportunities to Employees of the Institute", in brief known as "Cadre Review Report" and which was made effective from 03.01.1997 itself for all employees and officers of the Institute. In view of the aforesaid Cadre restructuring, the post of accounts clerks, cashier and senior auditor was re-designated as Assistant accountant. The post of accounts clerk was abolished. Similarly the post of Typist in Ministerial Cadre was also abolished. The Governing Body also decided to implement the AIIMS package of allowances to all the employees uniformly and also decided in Principal to implement the changes at SGPGI aligned with the changes at AIIMS in future. Moreover, another restructuring of the cadre was done on 08-01-2001 and ratified by the Governing body dated 2711-2001. The sole change incorporated in the cadre structure was that in between posts of office Superintendent and Administrative Officer another post was inserted/ created in the name of Assistant Administrative Officer. The Cadre restricting of the Ministerial and Secretarial Cadre after the aforesaid G.B Meeting dated 03.01.1997 & 27.11.2001, can be depicted in a tabular chart as follows:

Ministerial cadre:

Name of Post Pay Scale Experience for Promotion Remarks Adm. Officer 2200-4000 5 years as Asstt Adm Officer Asstt Adm Officer* 2000-3500 5 years as Asstt Adm Officer This post was added by GB on 27.11.2001 Office Supdt.

1640-2900 5 years as UDA UDA 1400-2300 5 years as UDA LDA 1200-2040 3 years as Typist The post of typist was declared dead and the typist who has and shall pass the computer test will be promoted as LDA.

Typist 950-1500 The post declared Dead Secretarial cadre:

Name of post Sanctioned vide GO dated 9.7.1991 & 3.1.1997 Sanctioned by GB dated 27.11.2001 Experience for promotion Stenographer 1200-2040 4000-6000 Direct Recruitment Personal Asstt 1400-2600 5500-9000 5 years as Stenographer Private Secy 2000-3500 6500-10500 7 years as Personal Assistant.

PS to Director 3000-4500* 10000-15200 8 years as Private Secretary * PS to Director was re-designated as Principal Private Secretary by GB on 3.1.1997.

(90) Thus, as per the cadre review mentioned supra the earlier entry level post of Typist in the ministerial/ administration cadre was changed to Lower Division Assistant, to be filled by direct recruitment. Apparently, in view of the above stated "Cadre Review Report" dated 03.01.1997, employees belonging to the Ministerial Cadre were promoted to the post of Lower Division Assistant, in the pay scale of Rs.1200- 2040 from the post of Typist (pay scale of Rs.950-1500) w.e.f. 03.01.1997 vide office order dated 10.06.1997. However, in the most absurd manner and due to the erroneous implementation of the 14/15 year old Governing Body resolution dated 08.01.1988, these employees pursuant to order dated 18.3.2002 and 02.04.2003 were placed to the higher post of Lower Division Assistant/Office Assistant Grade-III (pay scale Rs.1200-2040) from their date of joining to the post of Typist and were further placed on the post of Upper Division Assistant/Office Assistant Grade-II (in the pay scale of Rs.1400-2300) after 03 years in between from 1991-95 and some of the employees belonging to the said "Ministerial Cadre" were further placed to next higher post i.e. Office Superintendent/Office Assistant Grade-1 (in the pay scale of Rs.1640-2900) after 05 years from 1996, which apparently is wrong and an erroneous implementation of the recommendation.

(91) Moreover, as far as the "secretarial Cadre" is concerned, a perusal of GO dated 5.3.1991 and 9.7.1991 and the cadre review report of 03.01.1997 and 27.11.2011, clearly shows that post of Stenographer was sanctioned in pay scale of Rs. 1200-2040, whereas apparently they have been given pay scale of Rs.1640-2900 from 08.01.1988 or their date of joining, whichever is later, in view of the implementation of the Governing Body resolution dated 08.01.1988. Similarly, employees were promoted to the post of Personal Assistant w.e.f. 3.1.1997 vide Office Memorandum dated 10.6.1997, issued in pursuance to the decision of Governing Body taken on 3.1.1997 in the pay-scale of 1400-2600, however later on they were given pay scale of Rs 1640-2900 from 3.1.1997 at par with AIIMS.

(92) It is also significant to note that as per the records of the present case, the Finance Committee vide its resolution dated 16.09.1987 had also proposed the name of post & pay-scale to be with pay-parity with the staff of Head of Department of the State, which came to be ratified by the Governing Body on 08.01.1988. Interestingly, since the recommendations of Governing Body meeting dated 8.1.1988 were not found to be accepted by State Government, even no posts were created by the proposed names (Office Assistant Grade 1, Office Assistant Grade II, Office Assistant Grade III) in the cadre review meeting. Therefore granting the benefit of these posts and higher pay scales to the petitioners in 2002-03 from retrospective effect is absolutely preposterous. Thus, the petitioners have been given the benefits of higher posts and pay scales in a very arbitrary, illegal and discriminatory manner in the name of implementation of the resolution passed by Governing Body in its meeting held on 08.01.1988, which is not permissible under law.

(93) Further, this court cannot be oblivious to the fact that once GO dated 01.08.1990 and GO dated 05.03.1991 (parity with AIIMS- Accounts Cadre) and 09.07.1991 (parity with AIIMS- Ministerial & Secretarial Order) were issued giving parity with AIIMS retrospectively w.e.f. 01.01.1986 and actual payment of arrears w.e.f. 01.01.1986 (or the date of joining) was paid, the recommendation of the Governing Body decision of 08.01.1988 became redundant and in effect stood overridden by the government orders. Thus, it seems dual benefit has been given to these petitioners by first allowing them the benefit of parity with AIIMS as has also been done to other employees of the Institute and secondly by later on implementing the erstwhile recommendation of the Governing Body dated 08.01.1988, as has not been done to other employees of the Institute after 6 or 14/15 years. The said recommendation apparently appears to be discriminatory and hit by the concept of equality as propounded under Article 14 of our constitution.

(94) In any case, the aforesaid implementation was erroneous in view of the fact that it amounts to giving dual benefit to the petitioners because of the implementation of G.O dated 05.03.1991 and recommendation dated 08.01.1988, it is also seen that the said implementation of the Governing Body resolution dated 08.10.1988 lacks the force of law as the same was never sanctioned by the State Government.

(95) Although, it has been attempted to be argued by the learned Senior Counsels of the non-faculty employees, that no sanction from the state Government was required as per the prevailing law and the provisions of the Act, however this court finds the issue otherwise.

(96) As available from records, SGPGI is an autonomous Institute created under the statute namely Act, 1983. In pursuance to sub-section (2) of section 41 of the Act, the first regulations were framed in 2011. Thus, after framing of the first statute of the SGPGI in 2011, the Rules and Regulations of the Government are not applicable unless adopted by the Institute.

(97) Since, the issue relates to pre-2011 era, when the regulations were not in existence, the Act of 1983 would only apply. Moreover, the State Government vide Government Order dated 07.08.1992, has given its consent to implement rules/regulations applicable on the employees of the State Government upon the employees of SGPGI, till the promulgation of the regulations of SGPGI, as per the decision taken by the Governing Body in its meeting held on 22.03.1990.

(98) Section 19(2)(f) of the Act, 1983 has been relied upon by the petitioners to argue that the Governing Body is the sole authority, which is responsible to create or abolish post of teachers and other employees of the Institute and consequently no approval of state Government was required for creation of any post in the Institute. They have tried to argue that the said provision can be interpreted and extended to mean that the Governing Body is the sole authority for revision in pay-scale of the employees of the institute. They have also relied on the amendment made in the year 2009 to argue that post the said amendment only approval by the statement government has become mandatory and prior to the said year, no approval was required. According to the petitioners, when the budget required for the purpose of payment of pay scale in pursuance of decision of the Governing Body dated 08-01-1988 was allocated by the State Government, the requirement of Section 25 of the Act, 1983 has been complied with and it indicates implied approval of decision of Governing Body dated 08-01-1988 by the State Government.

(99) In the first blush, the argument appears to have some force, however gradually the said force diminishes as it gives way to the literal meaning to the provision of section 19(2)(f) of the Act, 1983. Section 19(2)(f) says in as many words says; the Governing Body "may create or abolish posts of teachers and other employees of the Institute". The revision of pay scales or the right of the institute to incur any financial implications is conspicuously absent from the said sub-section. However, the point is whether the said provision can be interpreted to mean that it includes a power to revise pay-scales. This court is reminded that essentially the recommendation of the Governing Body dated 08.01.1988 is relating to extending the parity in pay with the Head of Department to the non-faculty members of the Institute and not creation or abolishing of the post as construed by the petitioners. Even this creation and abolition of the post has been made subject to prior approval post the amendment of 2009. Thus, to say that Section 19(1)(f) of the Act, 1983 can be interpreted to give powers to the governing Body to revise the pay-scales would not be in the correct of the things, especially when every revision of pay-scale involves financial implications and requires budgeting, being recurring in nature and as such requires approval of State Government as per section 25 of the Act, 1983.

(100) Although it can be argued that the Act of 1983 specifically does not contain any provisions relating to the power or authority for determination of the pay-scales, but once we see the provisions of section 25 of the Act, 1983 it is clear that the said power of revision in pay-scales involving expenditure is in fact in-built in the said section, which inter-alia states:

"25.(1) There shall be prepared in such form and at such time, every year as may be prescribed, a budget in respect of the financial year next ensuing, showing the estimated receipts and expenditure of the institute and the same shall be forwarded to the state Government in such manner as may be prescribed.

(2) The Governing Body shall comply with such direction as may be given by the State Government and approve the budget finally.

(3) It shall not be lawful for the Institute to incur any expenditure either not sanctioned in the budget or in the case of funds granted to the Institute, subsequent to the sanction of budget, by the state Government or the Government of India, or any international organisation or foundation or any other agency save in accordance with the terms of such grant:

Provided that in the case of sudden or unforeseen circumstances, non-recurring expenditure not exceeding rupees fifteen thousand not sanctioned in the budget may be incurred by the director and he shall immediately inform the state Government in respect of all such expenditure."

(101) Apparently, section 25(1) of the Act, 1983 in clear and unequivocal terms says that the Institute is mandated to prepare a budget in respect of the financial year next ensuing, showing the estimated receipts and expenditure of the institute and the same shall be forwarded to the state Government. Extending benefits as envisaged by the recommendation of the Governing Body dated 08.01.1988 involves expenditure of the Institute, for which budgeting is mandated and as per the requirement of section 25(1), the estimated expenditure has to be notified before the same is to be ensued in the next financial year. Further, section 25(2) of the Act, 1983 prescribes an obligation on the part of the Institute to comply with such direction as may be given by the State Government and then only the Institute can approve the budget finally. Thus, the role and responsibility of the State Government is paramount in budgeting and involving expenditure by the Institute. Section 25(3) of the Act, 1983 merely protects the Institute in case of any emergency expenditure, which was not sanctioned, which again as a corollary means that sanctioning of expenditure by the state Government is mandatory. Moreover, the proviso limits & curtails the power of the Institute of spending without prior sanctioning to "sudden or unforeseen circumstances", "non-recurring expenditure not exceeding rupees fifteen thousand" and further it entails immediate information to the state Government of all such expenditure.

(102) The benefit extended to the petitioner vide the recommendation of the General Body dated 08.01.1988 cannot be construed as emergency by any strength of imagination, nor the same is non-recurring and less than fifteen thousand. Further, this court cannot shut its eye to the provision of Section 41(1)(f) of the Act, 1983 which says that the institute may with the previous approval of the State Government may make regulations for the tenure of office, salaries and allowances and other conditions of service of the officers, teachers and employees of the Institute, which means the Act does not specifically contains any provisions for conditions of service of the employees of the institute . Since, at that relevant point of time, there existed no regulations as the same came into existence only on 2011, it is the Act, 1983 which has to be read and understood in that context and as such section 25 of the Act, 1983 plays a significant role in understanding the manner in which the expenditure involving revision of pay-scale of the Institute can be interpreted.

(103) Further, section 23 of the Act, 1983 provides that the State Government may pay to the institute in each financial year certain sum of money for exercise of its powers and discharge of its function under the Act, 1983. Thus it is apparent, from the perusal of section 23 as well as section 24 and 19 of the Act, 1983 that the State government has a vital role so far as the issues related to budgets and release of funds of the institute is related. In the present case as the issue involved is increase in the budget as well as recurring expense the concurrence of the State was mandatory as has been reasoned in the preceding paragraph.

(104) Further, on a plain reading of the Act of 1983 including the provisions of sections 33 and 35 of the Act, 1983 brings one to the unescapable understanding that the Institute was servient to the State Government as far as expenditure, budgeting or grant of allowance to any employee of the Institute is concerned. In that context, even the reliance on the letter dated 20.10.2010 by the learned Senior Counsel for the petitioner is also not correct, as a plain reading of the said letter shows that there is no mention with respect to budget and the only reason for not giving post facto approval was the long-time gap and the effect of implementation of cadre restructuring dated 03.01.1997 which was already done. This court is afraid that it is unable to subscribe to the interpretation and reasoning of the learned Senior Counsel and as such holds that as far as the revision of the pay-scale as per the recommendation of the General Body dated 08.01.1988 is concerned, sanction from the state government was obligatory. Thus, the office order dated 02.07.1994, 20.03.2002 and 02.04.2003 without having the sanction of the state Government is held to be without the authority of law.

(105) The learned Senior Counsel for the petitioners have urged that since there was a sanction of amount of Rs. 41.45 Lacs for extending the benefit of Governing Body decision dated 08.01.1988 by the Institute to the petitioners, it has to be construed that the state has granted sanction for the said benefits to be extended to them. Unfortunately, this court is not able to agree to the said contention of the learned Senior Counsel counsels, inasmuch as if an amount/budget has been released by the State Government on an incorrect premise as at that time the decision with respect to implementation of 08.01.88 was prevailing, it cannot be considered as a reason to perpetuate the illegality committed. In any case, the law stands well settled that the Court should never permit a litigant to perpetuate illegality by abusing the legal process. It is bounden duty of the Court to ensure that the dishonesty and any attempt to abuse the legal process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of process of law. No one should be allowed to use judicial process for earning undeserved gains or unjust profit. The same view was reiterated by the Hon'ble Supreme Court in Civil Appeal No.10596 of 2010 In Re: Goa State Cooperative Bank limited Vs. Krishna Nath A. (dead) through LRS. and others.

(106) Further, the contention of the learned Senior Counsel for the petitioners that the employees of these cadres would be reverted back to non-existing post without considering the intervening services is also not correct, because all posts on which these employees are working like LDA, UDA, Office Superintendent are existing even today and since parity has to be with their counterparts in AIIMS, their promotions would be determined in accordance with the years of service having been put in by the petitioners in the Institute in accordance with the cadre review report of 03.01.1997 and 27.11.2001. The only change is that the these employees/petitioners would resume the promoted posts on which they stood promoted in accordance with the cadre review report of 03.1.1997 and 27.11.2001, as has been done with respect to all the employees of Institute in other cadres. Only the improper benefit that was extended to them and not to other employees of the Institute would be set at right, as has been in detail elaborated by the Chief Secretary, the Director and the Visitor in the impugned orders.

(107) The conscious of the court is unable to find any legal reasoning for implementation of the recommendation of the Governing Body dated 08.01.1988, especially when the revised pay scale orders as issued by the State Government vide G.O dated 05.03.1991 were made effective from 01.01.1986. In other words, since parity in pay scales and allowances to SGPGIMS employees at par with their counterparts in AIIMS was given w.e.f. 01.01.1986 therefore to implement the decision of the Governing Body taken in its meeting held on 08.01.1988 retrospectively, wherein parity was proposed at par with the Heads of Department of State Government, appears to be totality illegal, as two different standards cannot be imposed on same set of employees at one point of time.

(108) The petitioners have prayed for quashing the decision of 68th meeting of Governing Body held on 6th March 2010 and order dated 15.01.2010, passed by the Chief Secretary, Uttar Pradesh and order dated 11.10.2010, passed by Director of the Institute and order dated 25.01.2011, passed by the Visitor (His Excellency the Governor of Uttar Pradesh) of the Institute. However, this court finds that all these orders are well deliberated, speaking, reasoned and has traced the service history of the petitioners in arriving at the said just, proper and legal decision.

(109) This court finds that the Chief Secretary/President of the Institute has vividly dealt with the issue of irregularity in point nos. 3.5, 7 & 7.2 of his order dated 15.1.2010 and the Director has also mentioned the same in page no.19 of his order dated 11.10.2010, to the effect that, after approval of the State Government, G.O dated 05.03.1991 was issued to extend parity in pay scales and allowances at par with AIIMS w.e.f. 01.01.1986 to the employees and other officers of the Institute and as such there was no occasion and justification to implement the decision of Governing Body taken in its meeting held on 08.01.1988. Both the president and the Director have raised the issue of competency of the Institute to suggest the decision of the Governing Body dated 08.01.1988 to be implemented and that too from retrospective effect. The president and the Director have rightly observed that by extending the aforesaid benefit of a stale Governing Body decision, the Institute has sought to give absolutely illegal leaps and bound of jump to employees who were neither qualified nor were recruited in the Institute on the post and pay scale vide office orders dated 02.07.1994, 20.3.2002 and 02.04.2003.

(110) Interestingly, none of petitioners were appointed as per the GB decision of 8.1.1988. In fact, they were appointed on posts and pay scales approved by subsequent Governing Body approval and Government Orders. The petitioners themselves have stated this and therefore, there was no requirement, occasion and justification to implement the decision of Governing Body of 08.01.1988. The Governing Body on 08.01.1988 proposed new nomenclature and pay scales but no number of the post with the proposed nomenclature was sanctioned by Governing Body, hence the benefit of non-existing posts cannot be given to any of the employees. This fact has also been stated by the Director of the Institute in last paragraph of page no.24 of the impugned order dated 11-10-2010.

(111) Further, it has to be borne in mind that the Cadre Review Report of 3.1.1997 had already taken into consideration all the relevant orders, facts and all previous decision taken by Governing Body, hence it was totally illegal and arbitrary to side track the decision of Governing Body taken in the meeting of 3.1.1997 by implementing pay scales and structure which already stood superseded by the Cadre review report approved on 3.1.1997.

(112) Therefore, all employees and officers are to be promoted in accordance with the cadre review report approved by Governing Body on 3.1.1997 and 27.11.2001 and this Cadre Review Report was made for the first time and that too for all categories of employees and officers in various cadres. It is correct on the part of the learned Senior Counsel for the Institute that because of this illegal implementation of Governing Body resolution dated 08.01.1988, there was chaos in the Institute because the employees only in the ministerial, secretarial and accounts cadre were placed on higher posts not only by virtue of re designation but even enhanced pay scales on which they were neither appointed nor did they apply for or were eligible. He is right in his submission that other employees and officers of other cadres resented this and demanded equal treatment and there were numerous representations of various section of employees and some of them even approached this Court and filed writ petitions.

(113) Moreover, this Court considers it to be of paramount significance that the Governing Body resolution dated 8.1.1988 was not implemented till 1994 because the same was not found to be approved by State Government in accordance with the then prevailing practice and procedure and the provisions given in the Act of 1983, but the same came to be implemented in the year of 1994 and thereafter in 2002-03. Apparently, the Chief Secretary and President of the Institute has also arrived at the same finding in point no.4.1 of his order dated 15.1.2010 and further the Director has also mentioned the same in last paragraph of page no.19 of his order dated 11-10-2010. This action of implementing the recommendations of the Governing Body dated 8.1.1988 was also found illegal, arbitrary, and discriminatory by several inquiry officers/committees for reasons given in their reports.

(114) This court also finds support in the reasoning given by a Government's level Committee (under the chairmanship of Sri Prashant Trivedi, Secretary, Medical Education department of Govt. of U.P.) in its report dated 7-11-2005, wherein the Committee recommended that since the pay scales at par with AIIMS, New Delhi have already been granted to all the employees of SGPGI, (including petitioners/the employees of ministerial, accounts and secretarial cadre), vide Government Order dated 1-8-1990 and 5-3-1991 w.e.f. 1.1.1986 and the Cadre Structure and Promotion Policy has been approved by Governing Body on 3.1.1997 and 27.11.2001 after considering all the previous decisions and orders, it was illegal to grant the benefits at par with State Government (as recommended by Governing Body on 08.01.1988) during the year of 1994 & 2002-03 to only a section of accounts, ministerial and secretarial cadre with retrospective effect, therefore, the same should be cancelled and recovery should be made accordingly. In this context, the Chief Secretary and President of the Institute has also agreed with this finding in point nos. 3.13 and 4.5 of his order dated 15.1.2010.

(115) Further, the illegality of the office memorandum dated 13-2-2002 has in detail been elaborated upon by the Chief Secretary in his order dated 15-1-2010, in which he has clearly mentioned that issuance of office memorandum dated 13-2-2002 was totally illegal, since it was issued without the concurrence of the Finance Department of Uttar Pradesh and also because it was against the provisions laid down in "Uttar Pradesh Karya Niyamawali 1975". Since the Governing Body has also taken a decision for annulling the execution of Governing Body dated 08.01.1988, which was executed vide orders dated 2-7-1994, 20.03.2002 and 02.04.2003, nothing remains in the case put forward by the petitioner.

(116) So far as the argument of the Ld. Sr. Counsels, relating to the report of the 6 member committee dated 16.01.2008 is concerned, the Governing Body in its 62nd meeting held on 01.03.2008, after extensive deliberations made a very specific observation that most of the members nominated in the said committee do not have their signatures on the minutes. It was also pointed out by the secretary, finance that the representative of the finance department, Govt. of U.P. was not present. Accordingly, it was resolved that the Governing Body is authorising the President of the Institute to take a final decision on the implementation of the recommendations of the committee in consultation with the Finance Department, Government of Uttar Pradesh.

(117) Moreover, even the recommendations made by the Committee in its meeting held on 16.01.2008 were conditional as it was specifically stated that while implementing the decision of Governing Body dated 8.1.1988 it shall be ensured that no deviation from AIIMS occurs and it was further stated that the recommendations was being made on a condition that establishment and finance department of the state government should be consulted and their consent should be obtained where after the proposal would be kept before the Governing Body of the Institute. Since, neither the Principal Secretary, Department of Finance nor any other authorised representative from the Finance department was a part of the meeting, it is incorrect to presume that merely being nominated in the committee will be considered as the consent of the finance department and the same to be an empty formality is not correct. Merely being a member of a committee and not participating in it will mean that the consent of that individual/concerned department is not obtained, especially when it was also not represented by any other individual of that particular department. It was only due to the said reason that the committee final made a conditional observation of taking the consent of finance and establishment department prior to placing its recommendations before the governing body.

(118) That a perusal of agenda item no. 3 of the impugned Governing Body meeting held on 06.03.2010 clearly shows that prior to implementation of the recommendations made in the impugned office order dated 15.01.2010, detailed deliberations were held where-after the Governing Body took final decision. The Governing Body also had authorized the President to take a decision on the issue related to implementation of 08.01.88 after consulting with the Finance Department, Govt. of U.P. As such, the president/ Chief Secretary was authorised by the Governing Body also apart from the order dated 15.01.2009 passed by this Court in writ petition no.6555 (S/S) of 2009 (Mukesh Kumar Srivastava & others Vs. State of UP & others) to look into the entire issue related to the implementation of 08.01.88 and its implementation and effect. Since this court had directed to Chief Secretary to pass the order in accordance with law, he was fully authorised to pass the orders. Further, the chief secretary of the state is also the president of the Institute as per section 11 of the SGPGI Act, 1983 and as such the contention of some of the petitioner that direction was given to the president and order was passed by the chief secretary is also not correct.

(119) Also, the averments of the petitioner that the present dispute has occurred due to belated decision making of the institute is incorrect and does not hold any water, as time and again various committees has been constituted by the institute, who had also recommended for withdrawal of the implementation of the resolution of Governing Body dated 08.01.1988, however, the said withdrawal could only be done in 2010. Moreover, order dated 08.01.1988 was withdrawn on 06.03.1998 and orders dated 02.07.19994, 20.03.2002 and 02.04.2003 have been found by a High Level Enquiry Committee, in its report dated 07.11.2005 to be illegal and wrongly issued, however the consequent effect of the said could not be implemented because of the pendency of this bunch of writ petitions. Since, this Court is of the view that the dual benefit was not permissible to the petitioners, the implementation of the recommendation of the Governing Body dated 08.10.1988 is held to be bad in law.

(120) The next ground argued very vociferously by the Ld. Sr. counsels for the petitioner is that no opportunity of hearing has been given to these employees and they were for the first time been asked to file reply to the show cause notice dated 1.07.2010 issued by the Director of the Institute. According to him, no opportunity was granted to them of hearing before the President of the Institute or before the Governing Body and as such the opportunity given was merely an eyewash.

(121) Apparently, this court finds that since before the decision of Governing Body taken on 6th March 2010 no final opinion was made out in respect to the issue in question, therefore, the question of making any communication prior to 6th March 2010 does not arise and by the time an opinion was made, the petitioners were afforded opportunity of hearing by the Director vide his order dated 1st July, 2010. Further, in the case of "Canara Bank V/s V.K. Awasthi" (2005) 6 SCC 321, wherein the respondent in that case was served with a show cause notice on 6.08.1992 and was granted 15 days to reply. The respondent failed to reply and as a consequence was terminated from the service on 17.08.1992. The respondent contended that principles of natural justice was not followed and High Court upholding the said contention directed the bank to provide proper hearing to the respondent before the disciplinary committee. Hence, the bank filed an appeal before the Supreme Court. The bank provided the respondent with personal hearing before the appellant authority. The issue concerning in that case was whether post decisional hearing provided by the bank to the respondent before appellant authority is in concurrence with Audi alteram partem or not. The Apex Court relied on Charan Lal Sahu v.Union of India, AIR 1990 C 1480, where the Court held that 'post-decisional hearing can obliterate the procedural deficiency of a pre-decisional hearing'. Therefore, if there is any lack in the proceedings of any case, then it can be resolved by using post- decisional hearing. Therefore court allowed the appeal and held that no violation of Principle of Natural Justice was witnessed and Post Decisional Hearing in the present appeal serves the purpose of pre decisional hearing. In any case, in view of the orders of this Hon'ble Court, passed on 02.11.2010 in a bunch of writ petition being 7570/2010, 7571/2010 & 7572/2010, petitioners got another opportunity of hearing before the Visitor of the Institute and after hearing the petitioners and other parties concerned, the Visitor passed the impugned order dated 25.01.2011, whereby the representations of the petitioners have been dismissed, being baseless on several reasons and grounds given therein. In view of the above, it is held that the petitioners have been given ample opportunity of hearing.

(122) Thus, this Court is of the considered view that keeping in light of the grant of parity with AIIMS, New Delhi by Governing Body dated 18.07.1989, as well as, GOs dated 01.08.1990 and 05.03.1991, w.e.f. 01.01.1986, the earlier Governing Body decision of 08.01.1988 (qua parity of pay-scale with employees of HOD in State Department) stands superseded and is inapplicable. Consequently, orders like the ones dated 02.07.19994, 01.01.1988, 20.03.2002 and 02.04.2003, giving parity with employees of HOD of Uttar Pradesh are held to be illegal and without any effect.

(123) In view of the above, this court finds that the impugned orders have in no manner missed the woods for the tree and apparently a very detailed and reasoned order has been passed by the President/ Chief Secretary vide order dated 15.01.2010. Further, this court also does not find any error in the decision of 68th meeting of Governing Body held on 6th March 2010 and order dated 11.10.2010, passed by Director of the Institute and order dated 25.01.2011, passed by the Visitor (His Excellency the Governor of Uttar Pradesh) of the Institute. The impugned orders have rightly considered all the relevant facts and has found grave illegality in the matter and therefore has passed order to cancel/withdraw the benefits arising out of the implementation of the resolution of Governing Body dated 08.01.1988. The impugned orders are fair, proper and legal in the facts & circumstances. No grounds for interference against the impugned orders have been made by the petitioner.

(124) As far as the recovery of excess amount paid is concerned, the Hon'ble Supreme court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. The Hon'ble Apex court in Col. B.J Akkara (Retd.) V/s Government of India and Others :( 2006) 11 SCC 709 has considered an identical question as under:

"27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 76 1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652] ):

(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.

(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular 2 (2006) 11 SCC 709 interpretation of rule/order, which is subsequently found to be erroneous.

28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.

29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 761999 till the issue of the clarificatory circular dated 1192001. Insofar as any excess payment made after the circular dated 1192001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made."

(125) Similarly, in the case of "State of Punjab & Ors V/s Rafiq Masih", ( 2015) 4 SCC 334, the Hon'ble Apex court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the employees. The Hon'ble Apex court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:

"8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.

xxx xxx xxx

18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

(126) Further, recently the Hon'ble Supreme Court in the case of "Thomas Daneil V/s State of Kerala & Ors." (2022 SCC OnLine SC 536) had an occasion to determine similar question of recovery of increment granted on account of an error to an employee while in service, after almost 10 years of his retirement. The Hon'ble court after tracing the history of the settled law refused to allow the recovery of the said amount and set-aside the recovery notice.

(127) As far as the facts of the present case is concerned, it is not the case of the state or the Institute that on account of misrepresentation or fraud played by these employees, the excess amounts have been paid to them. In fact, the excess amount has been paid because of the erroneous implementation of the Governing Body resolution dated 08.01.1988, which has been withdrawn/cancelled by the impugned orders passed by President/ Chief Secretary vide order dated 15.01.2010, decision of the Governing Body held on 6th March 2010, order dated 11.10.2010, passed by Director of the Institute and order dated 25.01.2011, passed by the Visitor (His Excellency the Governor of Uttar Pradesh) of the Institute. Thus, this court is of the view that an attempt to recover the excess amount already paid would be unjustified.

(128) As far as the second controversy is concerned, the same is relating to seniority dispute amongst employees of the "Accounts Cadre". The controversy herein has emerged on account of a reconstitution of cadres. In the first instance, a separate cadre was constituted being the computer cadre for the "Accountants-cum-Computer Operator" of the Institute. This was necessitated by the decision of the Cadre review meeting dated 03.01.1997 of the Governing Body of the Institute. Consequent upon the representation of these "Accountants-cum-Computer Operator", the separate cadre so created, was sought to be re-amalgamated with the existing Accounts cadre. The said issue was aggravated by the erroneous implementation of the Governing Body decision dated 08.01.1988, which resulted in some employee, who were originally junior in rank, acquiring a higher position in seniority, over and above those who were senior to them in the Accounts Cadre. Before embarking upon the niceties of the seniority dispute, it is imperative to delve upon the chronological turn of events, which resulted in the said dispute.

(129) The petitioners of the second set of petitions, were substantively appointed to the post of Assistant Accountant cum Computer Operator on 12.2.1990 and 20.7.1990 respectively in the un-revised pay scale of Rs.515-860/-. The revised pay scale was made admissible to all the non-faculty employees at par with AIIMS, New Delhi, vide Government order dated 1.8.1990 and 5.3.1991, which, was made effective from 01.01.1986 or the date of joining, whichever was later.

(130) The pay scale for the posts of 'Assistant Accountant' and 'Assistant Accountant cum Computer Operator' (AACCO, for short) was sanctioned as Rs. 1400-2300/- and the same was made admissible from 1.1.986 or from the date of joining, whichever was later and pay scale for the post of Accounts Clerk and Cashier was sanctioned as Rs. 1200-2040. That as stated above, the petitioners (AACCO) were sanctioned the revised pay scale of Rs. 1400-2300 from their date of joining, whereas Accounts Clerk and Cashier were sanctioned the revised pay scale of Rs 1200-2040.

(131) As discussed herein above, the erstwhile decision of Governing Body taken on 08.01.1988 was made applicable (on 02.07.1994) to the Accounts Clerk and Cashier and the individuals were wrongly sanctioned, pay scale of Rs. 1400-2300 from 08.01.1988 or from their date of joining, whichever was later. The action taken on the basis of Governing Body decision dated 08.01.1988, on 02.07.1994, has been decided against the employees in the aforesaid paragraphs.

(132) As per the 'cadre review & promotion policy' for the non-faculty employees of SGPGI, which was approved by Governing Body on 03.01.1997 at par with AIIMS, New Delhi, the post of these petitioners of the second set of writ petition, was classified in computer cadre. However, representations were given by these petitioner to absorb them in Accounts Cadre and to re-designate them as Junior Accounts Officer, a post higher to Assistant Accountant.

(133) In view of the above, the Finance Committee of the Institute agreed to the merger of AACCO with Accounts cadre at the level of Assistant Accountant in the pay scale of Rs. 1400-2300. The Finance Committee further recommended that their seniority with Assistant Accountant would be determined from the date of panel against which they were appointed. The recommendations of the said Finance Committee were approved by Governing Body in its meeting held on 04.05.1998.

(134) Thus, in the light of the decision taken by Governing Body on 04.05.1998, a tentative seniority list was published on 26.09.1998 and objections were sought and final seniority list was published on 21.12.1998. The order dated 26.09.1998 furthers states that AACCO stood merged in the Accounts cadre at the level of Assistant Accountant in the pay scale of Rs. 1400-2300/-.

(135) Obviously, these petitioners were not happy with the said seniority list and as such these AACCOs gave representations from time to time against the seniority list published by Institute and also filed writ petition nos. 2939(SS) of 1998, 5609 (SS) of 1998, 639 of 1999 (SS) and 6545 of 2007 (SS), whereby they had challenged their seniority, merger and incorrect implementation of Governing Body decision dated 08.01.1988 etc. Apparently, writ petition no. 2939(SS) of 1998 was decided on the ground of alternate remedy before the Visitor under section 36 of the Act, 1983. Similarly, writ petition No. 5609 (SS) of 1998 was decided on the basis of statement of SGPGI, to the effect that the objection of the petitioner would be decided first in accordance with law and only then the seniority list shall be published.

(136) In view of the above representation given, the Visitor in his order dated 28.8.1999 observed that there is prima facie error in fixing seniority of accounts cadre, but did not pass final order and referred the issue to medical education department for necessary examination and order. Thus, this Court, while hearing the writ petition no. 639 (SS)/1999 on 13.12.1999 provided that the promotions shall not take place in pursuance of the Seniority list dated 21.12.1998, which is under challenge, until the seniority dispute is finally determined by the Government. However, in the meantime, the seniority list dated 21.12.1998 was confirmed by the Institute by an order dated 14.07.2000.

(137) Another 'cadre review & promotion policy' was approved by Governing Body on 27.11.2001 and eligible employees in order of seniority were promoted w.e.f. 03.01.2002, but being junior in the list, AACCO's were left out from being promoted due to the effect of Governing Body resolution dated 08.01.1988. In the meantime, the benefits given on the basis of Governing Body decision dated 08.01.1988 was enquired by the Institute authorities time and again and same was found incorrect, irregular and illegal because of the reasons given therein. Thus, another writ petition no. 6555/2009 (SS) was filed by the senior employees of ministerial cadre before this Hon'ble Court and after hearing the parties, this Hon'ble court passed order on 15.10.2009 and directed to the Chief Secretary of Uttar Pradesh to decide the issue/representation and pass reasoned order expeditiously within three months.

(138) The President of the Institute (Chief Secretary) passed the impugned orders on 15.1.2010 in compliance of Hon'ble High Court order dated 15.10.2009 in above stated writ petition no. 6555/2009 (SS) to the effect that orders issued on the basis of Governing Body decision dated 8.1.1988 were improper, incorrect, irregular and deserved to be withdrawn. However, he further ordered being an important issue, to place the same before Governing Body of the Institute for deliberation and decision. Governing Body took decision on 06.03.2010 to withdraw all the orders issued on the basis of Governing Body decision dated 08.01.1988.

(139) In view of the above stated decision of Governing Body and principle of natural justice, the Director of the SGPGI afforded an opportunity of hearing to the employees concerned vide order dated 01.07.2010 and after considering their representations, relevant facts, orders, subsequent decisions of the authorities of the Institute, passed final order on 11.10.2010 for withdrawal of all the orders, issued on the basis of the decision of Governing Body dated 08.01.1988.

(140) The employees concerned filed writ petition nos. 7570 of 2010 (SS), 7571 of 2010 (SS) and 7572 of 2010 (SS) before this Court against orders dated 15.1.2010, 11.10.2010 and Governing Body decision dated 6.3.2010. This Court, after hearing the parties, disposed of the writ petition on 02.11.2010 and directed that the Visitor may decide the matter within a period of one month from the date of reference is made by the petitioners before him and till then the operation of impugned orders shall remain stayed. In case, the reference is not made within a period of two weeks from that day the order passed would be of no avail.

(141) The Visitor, after considering the representations of the employees concerned and counter reply of the parties, as well as, Institute's stand, passed order on 25.01.2011, whereby it was ordered that there is no illegality in passing orders by the Director, President and Governing Body of the Institute and accordingly the representations were dismissed by the Visitor, being devoid of merit. Thus, all the orders came to be challenged by the employees concerned by filing of writ petition no. 902/2011, 903/2011 (SS) and 904/2011 (SS) before this Court, in which status quo order was passed vide interim order dated 24.02.2011.

(142) The status of petitioners of writ petition nos. 902/2011 (SS), 903/2011 (SS) and 904/2011 (SS) as it was prior to passing the orders impugned, is being maintained in the light of the interim order passed by a Co-ordinate Bench of this Court on 24.2.2011 for maintaining 'status quo'.

(143) In the meantime, a tentative seniority list of petitioners' cadre was published on 4.6.2014 and objections were sought. However, objections given by the petitioners and other similarly situated persons, vide their letters dated 10.6.2014 and 21.6.2014, were disposed of without making changes in their seniority position, in the light of this Court's 'status quo' order dated 24.2.2011 and final seniority list was published on 27.6.2014, which mentions in the remark column -'designations because of status quo order of Hon'ble High Court', against which writ petition no. 3948/2014 (SS) came to be filed before this court and subsequently all the writ petitions were connected to the present bunch of matter vide order dated 11.08.2014.

(144) Essentially the dispute for seniority is three -fold, the first being that the same was not prepared as the status quo order dated 24.02.2011 has adversely effected the said seniority list and secondly, these accountant-cum-computer cadres absorbed in the Accounts cadre were more qualified and deserved higher pay scale than the Cashier and Accounts Clerk. Most importantly, some of the employee of the Accounts Cadre have been extended and given the benefit of implementation of Governing Body order dated 08.01.1988.

(145) In S.I. Roop Lal and Another vs. Lt. Governor through Chief Secretary, Delhi and Others : AIR 2000 SC 594=(2000) 1 SCC 644, it was held by the Honble Supreme Court that the salary of the post held by a person alone may also not be the determining factor for considering their equivalence, and for determining their status to be equal, and not only the nature and responsibility of the duties attached to the two posts have also to be taken into consideration, but also (i) the similarity/dissimilarity in the methods of recruitment, and (ii) the qualifications prescribed for their respective selection, and (iii) the process of any such selection.

(146) In the instant case before this Court, it is clear that any claim of similarity or parity in between the employees (Cashier, Accounts Clerk etc.) belonging to the "Accounts Cadre" and the Accountant-cum-Computer Operator dissipates and evaporates when tested on the anvil of the last three tests laid down by the Hon'ble Apex Court, which have been numbered as (i), (ii) & (iii) by this court, for the sake of convenience.

(147) In the instant cases, the difference and distinction between the two groups of person in the Accounts Cadre is so stark and apparent that such difference and distinction cannot cease to exist. Some employee's taking advantage of the implementation of the Governing Body resolution dated 08.01.1988 have climbed up the seniority, which was not permissible as per law and in the wake of this Judgment, which has found the implementation of the aforesaid Governing Body resolution to erroneous, a need for preparation of a fresh seniority list is warranted, keeping in view the changed circumstances.

(148) Thus, the seniority list as published on 27.06.2014 cannot be sustained as per law. Moreover, as rightly put by the AACO's there was need for fixing of seniority afresh, as a numbers of new incumbents had joined whose names deserved to be incorporated in the seniority list and several persons from the earlier seniority list had retired, who names deserved to be omitted. In any case, this court cannot be mute spectator to one of the submission of the learned Counsel for the Institute that, in light of 'status quo' order of this court there was little scope to make any changes in the seniority position of the AACCO's.

F. Conclusion (149) For all the aforesaid reasons, these writ petitions are disposed of with the following directions :-

(i) No interference is called for in the decision of 68th meeting of Governing Body held on 6th March 2010, order dated 15.01.2010 passed by the Chief Secretary, Uttar Pradesh, office order dated 11.10.2010 passed by the Director of the Institute and order dated 25.01.2011 passed by the Visitor (His Excellency the Governor of Uttar Pradesh) of the Institute;

(ii) In view thereof, the implementation of the decision of the Governing Body dated 08.01.1988 vide office orders dated 02.07.1994, 20.03.2002 and 02.04.2003, is held to be illegal and as such they are set-aside;

(iii) However, recovery of excess payment made to the petitioners, in view of the implementation of the Governing Body decision dated 08.01.1988 is found to be unjustified in the given facts and circumstances;

(iv) The status quo order dated 24.2.2011 (supra) stands vacated;

(v) Except for the recovery of excess amount already paid, which this Court has found to be unjustified, the order dated 15.01.2010 passed by the Chief Secretary, Uttar Pradesh, the decision of Governing Body dated 06.03.2010 and office order dated 11.10.2010 passed by Director of the Institute, order dated 25.01.2011 passed by the Visitor (His Excellency the Governor of Uttar Pradesh) of the Institute are directed to be complied in its letter and spirit and all promotions, re-arrangement of post, pay-scales, DPC, other service benefits, etc. has to be assessed and calculated in the light of these orders and the cadre review meeting dated 03.01.1997, within a period of two months from today;

(vi) The seniority list published on 27.06.2014 is quashed. The Institute is directed to prepare fresh seniority list of the employees of "Accounts Cadre" in the light of the observations made hereinabove and the decisions of the President dated 15.01.2010, Governing Body dated 06.03.2010, the Director dated 11.10.2010 and the Visitor dated 15.01.2011, within two months from today;

(vii) All the writ petitions and pending Applications are disposed of in the above terms.

(viii) There shall be no orders as to cost.

(Om Prakash Shukla, J.) Order Date : 14th July, 2023 Ajit/-

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Allahabad High Court

Anoop Kumar Saxena And Ors. vs State Of U.P. Through Principal Secy. ... on 14 July, 2023