Allahabad High Court
U.P. Excise Subordinate Offices ... vs U.P. Public Service Commission And Ors. on 20 November, 1996
Equivalent citations: (1998)ILLJ99ALL
Author: D.K. Seth
Bench: D.K. Seth
JUDGMENT D.K. Seth, J.
1. The excise clerks in the subordinate offices claim that they are being paid less and are allowed lesser scale than that is allowed to the excise clerks in the head-quarter, though are performing same job. In writ petition No. 276 of 1991 between Bindeshwari Prasad Srivastava v. State of U.P., a certified copy of which is an-nexure IV to the supplementary affidavit, it was held that the reference cum head clerk in the subordinate offices of the head- quarter haying been performing same duties and responsibilities cannot be discriminated simply because their employment in head- quarter with those of the subordinate offices in the matter of scale and grade. The said order had been implemented by the respondents in respect of the petitioners involved in the said case whereas in the present case it is excise clerks which consist of junior clerks and senior clerks, are indeed claiming similar right. In the supplementary counter affidavit in para 4 it has been admitted that under the U.P.Excise Department Ministerial Services Rules, 1980 the selection to the post of Excise clerk in both the offices are one and the same and that before framing of the said 1980 Rules there was difference in the pay scale of the two groups of clerks in the headquarter and the subordinate offices, although the recruitment procedure was same. In para XI it has also been admitted that the order, referred to above, has already been implemented only in respect of the petitioner in the said case and not to the similar persons. In para IX the said paragraph 8 (iii) it has been admitted that rational committee treated both cadres as one i.e. cadre of clerks working at excise head quarter and the cadre of clerks working in subordinate offices in U.P. In Sub-para XI it has further been admitted that the inter-se seniority of excise clerks of both the cadres have merged into one after the recommendation and the pay rational committee posed some difference for which some directions were sought for as pointed in sub-para XIII. Pursuance to the said direction the inter-se seniority was fixed on the basis of the salary drawn. After the seniority list was published and objections were invited further difference having arisen the committee was appointed for deciding criterion for preparing seniority list. According to the recommendation of the said: committee the seniority list was prepared on the basis of the date of confirmation in service.
2. Mr. Vinod Sinha, learned counsel for the petitioner contends that since admittedly the cadre has merged into one and combined seniority list is being prepared there cannot be any question of denying equal pay for equal work and placing the excise clerks in subordinate office in a scale where their counterparts are in the headquarter.
3. Mr. Saxena, learned counsel for the respondents, on the other hand very fairly submits that in view of the amended rules as taken in the counter affidavit the question with regard to equal pay for equal work cannot be ignored in the present case.
4. In view of the stand taken by the respondents in the counter affidavit particularly in paragraphs 4 and 9, referred to above, it is no more open to the respondent to deny same scale to the excise clerks in the subordinate office with those of the excise clerks of the headquarters. Therefore, from the date of implementation of the rational committee the junior clerks in the subordinate office having merged into one cadre are entitled to the same scale of pay with those of the headquarters. This entitlement cannot be denied to the petitioners. It is incum-
bent upon the respondents to implement the same w.e.f. the date of merger of both the cadres on the basis of the recommendation of the pay rational committee, It is expected that the State Government would take proper steps as early as possible to implement the same and grant benefit to the excise clerks in the subordinate office accordingly.
5. The view which I have taken is supported by the reason though for different class or cadre in the judgment in the case of Bindeshwari Prasad Srivastaya (supra) which I do not find any reason to differ from.
6. I am further fortified by the U.P. Excise Department Ministerial Services Rules, 1980 (1980 Rules for short). The services as defined in Rule 3 (g) means the U.P.Excise Department Ministerial Services. No differentiation has been made with regard to the employment in the headquarter or subordinate offices while defining the services. The recruitment as provided in Rule 5 specified certain posts such as junior clerk, senior clerk and senior assistant. But nothing has been pointed out therein as to its relation of being engaged either in the headquarter or in the subordinate offices. Whereas in Rule 26 while providing provisions for transfer it has been provided that "services of persons appointed to the services shall be transferable on same pay scale from headquarter to subordinate office or vice versa." Therefore, there cannot be any scope for distinction in between excise clerks in the headquarter with those of subordinate offices. In the appendix the strength of different cadres are specified at the end of the said rules. The appendix also does not make any distinction as to the headquarter and the subordinate offices. Rule 72 while providing scales of pay also does not make any difference that senior cierks and junior clerks if posted at the head quarter will be placed at a different pay scale while those of the subordinate offices would be allowed different scale. On the other hand, only one scale each has been provided for senior clerks and junior clerks respectively. The procedure for recruitment has also not made any distinction with regard to the recruitment either in the headquarter or in the subordinate offices as is provided in Rule 15 of the said Rules. The Sub-rule 2 of Rule 15 on the other hand, provides that such selection shall be made in accordance with the procedure prescribed in the U.P. Subordinate Officers (Amended Staff) (Direct Recruitment) Rules, 1985, which does not make any difference with regard to the recruitment in the headquarter or in the subordinate offices. Therefore, there cannot be any question of distinction as between two groups. It is not the case of the respondent that these groups are performing higher and lesser responsibilities, therefore, there is no scope for denying equal pay for equal work as enshrined in Article 39(d) of the Constitution of India read with Articles 14 and 16(1) thereof,
7. If such is the position, in that event, there cannot be any cjuestion of preparing any separate seniority list either for headquarter or for the subordinate offices. If there is no scope for preparation of seniority list, in that event, there cannot be any distinctive feature so as to place excise clerk in the subordinate office below those of the headquarters simply because they used to get lesser scale of pay at one point of time. As soon as the merger of the cadre has been implemented and as soon as both the groups are treated to be one, common seniority follows. This situation is also accepted and admitted by the respondents. But the distinction that was sought to be made on the ground that there are some differences in fixation of seniority which according to the respondents is thorny one. But such consideration cannot stand in the way of deciding seniority. Seniority is to be decided according to the seniority rules as is applicable to the petitioners.
8. So far seniority is concerned the same has been dealt with in Rule 21 of the 1980 Rules which provides that seniority of persons substantially appointed in any cadre of the post shall be determined in accordance with the U.P.Government Seniority Rules, 1991 as amended from time to time. The only exception that has been made in the rules are purported in notes 1 and 2, under Rule 21 those exceptions are not relevant for the present purpose since the respondents have not taken stand that the seniority list was prepared without following the said exceptions. The said exceptions are perfectly justified and ought to be taken into consideration while fixing seniority.
9. Here the seniority has been purported to be fixed not on the basis of the substantive appointment but on the basis of confirmation. The date of confirmation is something different from the date of substantive appointment, though the confirmation of a person substan-tively appointed may be delayed for various reasons which may be one or the other. In fact in the Government department it is admitted position that the date of confirmation is different at different offices and often in the case of different persons in the same office. A perusal of an-nexure 3 shows that the same proceeded on the principle of date of confirmation. Plain look of page 1 of annexure S.A.3 serial Nos.4, 12 and 13 shows that persons appointed in 1964 and 1965 have been placed below the persons appointed in 1972 simply because the person at serial No. 11 was confirmed in 1981 while appointed on December 26, 1972 whereas person at serial No. 12 having been confirmed in April 1971 though appointed on May 10, 1965 was placed below the person in serial No. 11 whereas the person in serial No. 13 though appointed on October 7, 1964 was placed below both the persons in serial Nos. 11 and 12 simply on the ground that he was confirmed on April 1, 1972 Similarly the person in serial No. 36 though appointed on April 18, 1974 was placed above the persons in serial Nos. 37,38,39 and 40 simply because he was confirmed on April 1, 1983, though the said persons in 37,38,39 and 40 were appointed in 1960, 1961 and 1962 respectively. Thus, it appears that the list proceeded on the basis of confirmation not on the basis of the date of substantive appointment.
10. In view of Rule 21 read with the provision contained in Rules 5,6,7 and 8 of the 1991 seniority rules the seniority has to be determined on the basis of the date of substantive appointment as defined in Rule 4(h) of 1991 rules. No distinction can be made on the basis of their being posted in subordinate offices or on account of their receiving lesser scale. However, the position having continued for long time in order to avoid further constraint the seniority has to be determined in terms of Rule 21 of the 1980 Rules read with the provision of J991 Rules. Not only seniority should be decided and the seniority list should be prepared in terms of Rule 9 of 1991 rules but also all consequential benefits should be made available to the respective incumbents accordingly from the date when such candidates were eligible but this would not entail any financial consequences or entitle any of the incumbents to receive any fincial benefits thereout prior to the date of such determination. The seniority list should be prepared within a period of six months from the date and the consequential benefits in terms of such seniority list should be given within a period of six months thereafter. Though no financial benefit in the form of arrears of payment due to such fixation of seniority or notional promotion and other consequential benefits would be made available to the incumbents but however, such incumbent should be entitled to current pay and other entitlements as are admissible in law from the date of such determination onwards together with the consequential benefits in future but they will not claim any arrears prior to such dates.
11. In the result the application succeeds and is allowed. Let writ of mandamus do issue commanding the respondents to pay or grant equal pay scale to the excise clerks in the subordinate oftices commensurate with those of the other counterparts in headquarters from the date of implementation of recommendation of the pay rational committee namely the date when both these groups merged into one cadre, together with the arrears as are admissible from such date and also to pay current pays on notional fixation on the particular scale at which they are placed in the manner indicated above. Further writ of certiorari do issue quashing seniority list prepared, it being annexure S. A. 3. Let a writ of mandamus do issue commanding respondents to prepare a fresh seniority list in accordance with the law as observed above and fix seniority of the excise clerks accordingly within a period of six months from the date and also to fix and grant all notional benefits of promotions and other consequences of service benefits without arrear commensurate with such notional service benefits or promotion within a period of six months from the date of preparation of seniority list while, however, the petitioner shall be paid all service consequential benefits current from the date of such determination together with all consequential benefits as are admissible in law in future.