Uttarakhand High Court
Anil Kumar Saxena And Another ... vs State Of Uttarakhand And Others on 31 December, 2020
Equivalent citations: AIRONLINE 2020 UTR 496
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
Judgment Reserved on: 31.10.2020
Judgment Delivered on: 31.12.2020
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No.1907 of 2016 (S/S)
Anil Kumar Saxena and another ...Petitioners
Versus
State of Uttarakhand and others ....Respondents
Present: Mr. Gopal Joshi, Advocate holding brief of Mr. Alok Mehra, Advocate for the
petitioners.
Mr. N.S. Pundir, Deputy Advocate General for the State of Uttarakhand.
Hon'ble Sharad Kumar Sharma, J.
(Via Video Conferencing) In the undivided State of Uttar Pradesh, as it then was, there was only one Government aided polytechnic, which was constituted and completely funded by the State Government from the State exchequer, which was named as K L Polytechnic, Roorkee, District Haridwar. The petitioners, who are Group-D employees, of the said Government aided Polytechnic, have filed the present writ petition, initially praying for quashing of the Government Order No.143(1)/XLI-1/2015 dated 23.02.2015, as was issued by respondent no.1, and also a prayer for a writ of mandamus was sought, seeking a direction to the respondents to grant to the petitioners a Grade Pay of Rs. 1800/- to the petitioners also w.e.f. 01.01.2006; under the same principle, modalities and foundation, as it has been granted to the Group D employees of the Government and to similar other Government aided institutions of the State. The petitioners have further prayed for a writ of mandamus to grant the benefit of the Assured Career Progression Scheme, in an identical matter as it has been extended to the Group D employees of the Government and to the other Government -2- aided institutions. It was under that backdrop, when there was a tacit denial for the grant of a parity of the Grade Pay; as was being similarly paid to the other State Government Group-D employees and to the other State Government aided educational institutions. There was a sense of discrimination and deprivation, which the petitioners faced because their sole ground was that once the status of the petitioners' institution is that of a Government aided institution and it was completely financed by the State. In that eventuality, there cannot be any hostile discrimination for non extension of the aforesaid benefits of revised pay scale and ACP, as it has been extended to the other State Government and the other Government aided institutions Group-D employees. They submitted that since there is no distinction in the service conditions, the mode of appointment, the nature of responsibility discharged by them and even their status of being an aided institution being the same, the artificial distinction, which had been made by the respondents was arbitrary and violative of Article 14 of the Constitution of India and hence, the writ petition was preferred with the following backdrop and reliefs:-
"Prayer It is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to:-
(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned Government order dated 23.12.2015 (annexure no.8) issued by respondent no.1.
(ii) Issue a writ, order or direction in the nature of certiorari for quashing the government order dated 13.07.2017 issued by respondent no.2 (Annexure No.14) to the extent whereby, benefit of merger of Pay Band-IS in Pay Band-I have been granted to Group-D employees of K.L. Polytechnic Roorkee w.e.f. 01.12.2015.-3-
(iii) Issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to grant Grade Pay of Rs.1800/-to the petitioners w.e.f. 01.01.2006 as is being granted to Group-D employees of Government and Government Aided institutions.
(iv) Issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to grant the benefit of Assured Career Progression Scheme (ACP) as is being granted to Group-D employees of Government and Government Aided instiuion.
(v) Issue any other writ order or direction, which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(vi) Award the cost of the writ petition in favour of the petitioner."
2. The petitioners have come up with the case, that the petitioner no.1, who was appointed as regular Group D employee, Parichalak/Peon in the institution of respondent no.2, vide letter of appointment, which was issued in his favour on November 1989. He joined his duties, and later on, owing to satisfactory services rendered, his services stood confirmed with effect from 19.12.1999. Similarly, the petitioner no.2 too was also appointed, as Group D employee on 13.03.2013 and on successful completion of probation period his services too stood confirmed with effect from 09.02.2016.
3. The cadre of Group D employees of the Government aided institution of respondent no.4, which are sanctioned and created by the State and the service condition of its employees, were being regulated by the Rules as was notified by the State Government vide its Gazette -4- Notification dated 19.07.1997; called as U.P. Pravidhik Shiksha Institution Receiving Grand-In-Aid From the Government Regulations, 1996. Being the statutory service regulations, which was formulated by the State Government in pursuance to exercising its powers vested in it under Section 23 of the Uttar Pradesh Pravidhik Shiksha Adhiniyam 1962, to be read with Section 21 of the U.P. General Clauses Act 1904, having acquired the said status of being the Government aided Polytechnic and since the service conditions of the petitioners, were governed by statutes of the State Government framed under an Act, the contention of the petitioners is that the respondents cannot and ought not to have created any distinction or much less an artificial distinction, in the extension of the service benefits viz. the pay scale, dearness allowance, gratuity pension, family pension, revision of scale, ACP, etc. as was payable to the other Government aided institution employees.
4. The contention of the petitioners, is that as a consequence of the enforcement of recommendation of the 6th Pay Commission, which later on was accepted and adopted by the State Government vide its Government Order dated 17.10.2008 and the pay scale, which were revised with effect from 01.01.2006, at no point of time when the recommendation was enforced in the following manner:-
(i) The Pay Scale of Rs.2550-3200, which later was revised to Pay Band-IS in the Pay Scale of Rs.4400-7440, which was carrying the Grade Pay of Rs.1300/-, -5-
(ii) Similarly the Pay Scale of Rs.2610-3540, which later, was revised to Pay Band -IS in the Pay Scale of Rs.4400-7440, carrying the Grade Pay of Rs.1400/-.
(iii) The Pay Scale of Rs.2650-4000 was revised to Pay Band -IS i.e. Pay Scale of Rs.4400-7440, was revised to Grade Pay of Rs.1650/-.
(iv) Similarly Pay Scale of Rs.2750-4400, was revised to Pay Band-1 in the Pay Scale of Rs.5200-20200 with a Grade Pay of Rs.1800/-. As a consequence of the aforesaid revision of Pay Band of different cadre of employees, by the Government Order of 17.10.2008, with effect from 01.01.2006 and its subsequent adoption of the Government Order by the State Government on 17.10.2008, the State Government is shown to have later taken a policy decision on 24.03.2011, and decided to merge and upgraded pay scale of Group D employees, working with the State and the other Government aided institution from Pay Band-IS i.e. Pay Scale of Rs.2550-3200, as given above and it was revised as to be the Pay Band-1 of Rs.5200-20200 with a Grade Pay of Rs.1800/-, with immediate effect i.e. with effect from 01.01.2006 which was made payable to Group-D, employees of Government and Government aided institution, which is being claimed by the petitioners in the present writ petition, as Pay Band IS stood merged to Pay Band-I.
5. It is this Grade Pay of Pay Band-1 i.e. of Rs.5200-20200 with Grade Pay of Rs.1800/- which already stood enforced by the Government -6- Order of 24.03.2011 with effect from 01.01.2006, which is being claimed by the petitioners, which had not been paid to them for no, logical reasons.
6. The petitioners' contentions is that as a consequence of the merger of Pay Band-IS to Pay Band-I, as detailed above, the said Pay Band
-I of Rs.5200-20200 with Grade Pay of Rs.1800 (which is claimed by the petitioner in the present writ petition) ought to have been similarly paid to them as there could not be any discrimination. The State took a policy decision and by virtue of the Government Order of 14.12.2011, extended the benefit of the Pay Band-1, as referred above, and the same was made payable to all Group-D employees, who were working in other Government aided institutions and without there being any rationale logic, the same was not extended to the petitioners Government Polytechnic and to its Group-D employees, which too was an unaided institution, managed, controlled and regulated by the State and the State had a deep and pervasive financial and administrative control over the institution of respondent no.4. Hence, as a result of the revision of the said Grade Pay, the benefit of the Government Order dated 14.12.2011, as it had been made payable to the other Government aided institutions as a consequence of the recommendations of the 6th Pay Commission as adopted on 17.10.2008 should be paid to the petitioners too as they are Group-D employees of an State aided institution, the State Government further took a policy decision of extending the benefit of the Assured Career Progression Scheme, to the employees of the State Government and employees of Aided Educational Institutions, which subsequently, stood revised by virtue of the Government Order dated -7- 01.07.2013 and the employees thereto were extended the benefits of Ist IInd and IIIrd, promotional Pay Scale after completing satisfactory service of 10 years, 16 years and 26 years. There is no quarrel in the instant writ petition on the issue for the extension of the benefit of revised ACP, which admittedly stood granted to the Government aided schools, as was being extended by the Government Order dated 01.07.2013 and as a result thereto, the revised Grade Pay of Pay Band-1 was extended to all other educational aided institutions but the same was not extended to the petitioners. Hence, the present controversy.
7. Mr. Gopal Joshi, Advocate, in brief of Mr. Alok Mehra, Advocate, for the petitioners, had argued that once the institutions of respondent no.4 admittedly, is aided by the Government, the Service Rules of its employees, including Group-D employees, is governed by the Statutory Rules framed under an Act No.17 of 1962, there was no decision taken at the hands of respondent nos.1 to 3, for providing the similar upgraded pay scale and the benefit of the ACP scheme, to the petitioners, who too are Group-D employees of an Aided Educational Institution, as the said discrimination at the hands of State, would be in contravention to the implications of Article 14 of the Constitution of India.
8. His argument was further, that when the petitioners faced the said anomalies and discrimination at the hands of State authorities, they represented their cause before the respondent no.4 and Deputy Director, Technical Education and on considering the veracity of the claim of the -8- petitioners, they had recommended, for its payment of the revised pay scale of Pay Band-1 and also for the extension of the benefit of ACP, to the petitioners also and the grant of Grade Pay of Rs.1800/-. Despite of the said recommendation have been made, the same was later rejected by the Government Order dated 23.02.2015 which is impugned in the present writ petition.
9. Contention of the counsel for the petitioner is that not granting the benefit of the merged superior scale of Group-D employees, on the pretext that it would be falling heavily on the Government exchequer, holds no logic to stand, because at least the State on the pretext of a financial burden being caused upon them by extension of the benefit of revised pay scale to the petitioners, cannot grant them said latitude of treating the petitioners institution and its employee, discriminately, which too is enjoying the same status of being an unaided institution, on the artificial pretext of an imposition of higher financial burden on the State, if the benefit has already been extended, in that eventuality, there was no logic also for the reason being that in the same manner the benefit ought to have been equally made applicable by the State Government on the petitioners also, when the similar benefits were already extended to the other similar Government aided institutions including the Intermediate Government aided institutions, which are being managed by the elected Committee of Management.
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10. The petitioners submitted that the petitioner no.1, who is getting Grade Pay of Rs.1400/- while petitioner no.2, who is getting the Grade Pay of Rs.1300/-. This Grade Pay, which was being also paid to the Group-D employees of the Government aided Intermediate College, who were already receiving a Grade Pay of Rs.1800/- and furthermore, since they have already completed the requisite period of service as stipulated by the Government Order of 04.03.2014, for the grant of benefit of ACP and since they have completed 27 years of satisfactory service, they would be entitled for the grant of benefit of third ACP and in respect thereto, the counsel for the petitioners has drawn the attention of this Court to the service record particularly relating to salary certificate and other documents, which had been placed on the records of the writ petition.
11. The counsel for the petitioners submitted that there was no restriction or much less a rationale restriction, in creating the distinction in extension of the benefit of the revised pay scale and the benefit of the ACP, at the hands of the respondents, to the petitioners, for the reason being that the petitioners being a Group-D employee had been rendered identical service as compared to their counterpart in other Government aided institutions and even with the State Government employees also and since there is no distinction in their qualifications, which they hold for being appointed on the post of Group-D employees, they should have been extended the similar benefit, as has been paid to other Group-D employees. When the prayer of the petitioners was not heeded and when no orders were passed by the respondents, despite of there being a recommendation made
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in their favour, the petitioners submitted their representation before the respondents, for raising the claim for the grant of benefit of revised Pay Scale of Pay Band-I and the benefit of ACP. On considering the representation, it was respondent no.3, who has reacted on it and has written a letter to respondent no.2 on 06.04.2016, requesting the respondents to reconsider their decision which had been taken by the Government Order dated 23.12.2015 which is impugned in the present writ petition and further to grant the benefit to the petitioners also, in compliance of the Government Order dated 24.03.2011. Nothing proceeded, hence the petitioners preferred this writ petition by filing the same before the Registry of this Court on 21.09.2016.
12. The respondents were noticed. The counter affidavit was called for and the order sheet of the writ petition reflects that despite of effective service and steps being taken by the petitioners to serve respondent no.4 i.e. the aided institution, in which they were working as Group-D employees, they have not put in appearance despite of service of notice by the petitioners as would be apparent from the affidavit of service which was filed by the petitioners, on 20.02.2018. Consequently, this Court, after submission of the affidavit of service had passed an order on 13.04.2018; whereby it was observed that in case if, respondent no.4, does not put in appearance, the matter would be proceeded ex-parte against them. Consequently, by an order of 03.05.2018, the writ petition as directed to proceeded ex-parte against the respondents.
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13. The pleadings were exchanged.
14. It is during the intervening period that the respondents proceeded to issue yet an another Government Order on 13.07.2017, by virtue of which the respondents had extended the benefit of Pay Band-I i.e. of Rs.5200-20200/- carrying a Grade Pay of Rs.1800/- to the petitioners also but with effect from 01.12.2015. By issuance of Government Order dated 13.07.2017, the petitioners were treated as to be kept on common pedestal for the purposes of extension of benefit of the revised ACP and the Grade Pay to them but its enforceability was made only with effect from 01.01.2015, which too would be yet a discriminatory enforcement of the benefits of the Government Order dated 24.03.2011, for the reason being that in other identically placed aided institutions including the non-aided colleges, similar benefit has been extended to the Group-D employees with effect from 01.01.2006. Hence, the petitioners' amended contention was that though partially their grievance stands redressed, by issuance of the Government Order dated 13.07.2017; but there was no rationale adopted by the respondents, for extending the benefit to the petitioners only with effect from 01.12.2015, and hence, there was a deprivation in the grant of equal benefit to the petitioners for the period from 01.01.2006 to 01.05.2015 (The dispute which now remain to be considered). Consequently, the petitioners counsel in the proceedings, which were held on 02.07.2018, after parting the said information of the issuance of the Government Order No.628 dated 13.07.2017, sought a prayer to file an amendment application. Consequently, after inviting objection from the State Government to the
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said Amendment Application No.9336 of 2018, the objections were submitted on 20.08.2018 and later on, the same was allowed by an order of 21.08.2020, whereby as a consequence of allowing of the amendment application, the petitioners has partially modified their relief by adding relief no.2 to the following effect:-
"ii) Issue a writ, order or direction in the nature of certiorari for quashing the government order dated 13.07.2017 issued by respondent no.2 (Annexure No.14) to the extent whereby, benefit of merger of Pay Band-IS in Pay Band-1 have been granted to Group D employees of K.L. Polytechnic Roorkee w.e.f. 01.12.2015."
15. In the proceedings of the writ petition, which was held on 19.12.2018, while considering the misc. application, which was preferred by the petitioners, the Court had passed an interim order, on an interim relief application being Interim Relief Application No.19318 of 2018, whereby the respondents have extended the benefit of ACP to the petitioners, in pursuance to the Government Order dated 29.01.2010, which was already granted to petitioner no.1, in accordance with the Schedule of beneficiaries to whom the benefit was being extended but the equivalent remunerative benefit, as like that to the other employees, who were guided by the Schedule annexed to the Government Orders, was not extended. Hence, this Court passed an order directing the respondents to extend the benefit of ACP to the petitioner no.1 strictly in accordance with Schedule annexed.
16. This writ petition was argued on number of occasions and ultimately, it was heard finally and as per the pleadings, which has been
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brought on record by the petitioners. He has placed on record the documents including the Government instructions and Government Orders, by virtue of which the benefit of the revised Pay Scale of Pay Band-I has already been extended to the identically placed Government Aided Inter Colleges Group-D employees and the same has also been made applicable on the Government Group-D employees with effect from 01.01.2006; but if the pleadings raised by the parties to the writ petition are taken into consideration, the State Government has utterly failed to justify their stand, and reasoning as to, that under what logical qualifications or rationale they could have extended the similar benefits to the similarly placed employees with effect from 01.01.2006 and not extending the same benefit to the petitioners w.e.f. the said cut of date of 01.01.1996, and there is no logical rationality in extending the benefit to the petitioners only with effect from 01.12.2015, because in pursuance to Government Order dated 13.07.2017, one aspect which is quite clear is that at least the respondents themselves, had principally agreed that the petitioners' acquired and enjoyed the identical status of being a Group-D employee of a Government aided institution and that is why the benefit of revised pay scale was extended to the petitioners, by the Government Order dated 13.07.2017 though w.e.f. 01.02.2015. But however, during arguments or even by their pleadings, the respondents have not been able to satisfy the Court as to under what procedure and basis, the cut of, of 03.12.2015, has been determined by the respondents and on what rationale as to be the period with effect from which the benefit of revised pay scale would be extended with effect from 03.12.2015 and not with effect from 01.01.2006, as it has been paid to the
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other similarly placed Group-D employees working in a Government aided institutions.
17. Learned Deputy Advocate General Mr. N.S. Pundir, argued that the said distinction of enforceability of the benefit of the revised pay scale of Pay Band-I and the benefit of ACP, with effect from 01.12.2015, has been on the basis of an administrative decision, which is alleged to have been taken by the State, but this administrative decision in itself even if could be said to be sustained, has had to be attached with justifiable reasons and there cannot be any hostile discrimination in the extension of the financial benefit of the revised pay scale, which has been identically given to others, and the revised Grade Pay as has been paid to other Group-D employees of Government aided institutions. On this count itself, the benefit extended by the Government Order dated 13.07.2017, making enforceability of revised pay scale of Pay Band-I by the Government Order dated 24.03.2011; revising the Pay Band-IS to Pay Band-I, the respondents should have identically given the same benefit to the petitioners too with effect from 01.01.2006; as it has been paid to the other employees of the State, as well as of the Government aided institutions. Hence, this Court holds that the decision taken by the respondents by virtue of the Government Order dated 13.07.2017 of giving the benefits with effect from 01.02.2015, is discriminatory and that too without there being any rational attached to it, which deserves to be modified in its applicability in relation to the petitioners. It is hereby a writ of mandamus is issued to the respondents, that the benefit which has been extended to the petitioners
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with effect from 01.12.2015, should be brought in parlance to the benefit, which has been extended to the other Government employees, and Group-D employees of the Government other aided institutions, who were paid with effect from 01.01.2006 and hence, the petitioners too would be entitled for the benefit with effect from 01.01.2006. Thus, the writ petition is allowed. The respondents are directed to extend the benefit of Pay Band-I of Rs.5200-20200 with a Grade Pay of Rs.1800/- and extended to the other Group-D employees of other Aided Institutions, the applicability of Government Order dated 13.07.2017 would be with effect from 01.01.2016 and not with effect from 01.12.2015.
18. The counsel for the petitioners in support of his contention submits about the discrimination, which they have faced at the hands of the respondents is supported by the earlier judgment, holding it to be discriminatory and had made reference to a judgment rendered by this Court in Writ Petition No.978 of 2014 (S/S), Anand Singh Rawat and another vs. State of Uttarakhand and others decided on 13.12.2019, wherein the aspect of extension of benefit of 6th Pay Commission by virtue of Government Order dated 24.03.2011, which was extended with effect from 01.01.2006, in relation to the Group-D employees of the petitioners' department was considered by this Court and the writ petition was allowed and a writ of mandamus was issued to the State Government, for the enforcement of the recommendation of 6th Pay Commission as adopted on 24.03.2011 with effect from 01.01.2006. He submits that the said judgment of 13.02.2019 has already been enforced by the State Government and the
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benefit has already been extended of the revised Pay Scale. Hence, the petitioners would be governed by the ratio laid down in the judgment and identical benefit is to be extended to them. As per the ratio laid in para 7, 8 and 9 of the judgment dated 13.12.2019, which are quoted hereunder:-
"7. In that eventuality, the employees of Group-D department working with the State or the respondents herein cannot be meted out with the different treatment as it would be in violation of Article 14 of the Constitution of India and any disparity in its enforceability of financial benefit it would amount to be a hostile discrimination and that too, in relation to the employees, who belonged to a lower cadre. The extension of financial benefit obviously though its enforceability would be dependent upon its adoption by the State Government with effect from 24.03.2011 to 06.04.2011, but the fact remains that the two Government Orders, as a matter of fact, it's nothing but reflection of adoption of a policy decision taken by the Government of India by enforcing the recommendation of 6th Pay Commission extending financial benefits with effect from 01.01.2006, the exception could only be carved out, until and unless, the Government of India while issuing and enforcing the recommendation of 6th Pay Commission, keeps it open for the State to enforce the benefit on the recommendation of 6th Pay Commission to gives liberty to the State to alter the date of its adoption and enforceability. The State Government while taking an administrative decision and enforcing the recommendation of 6th Pay Commission cannot on it's own wisdom while enforcing the same from the date when the State adopts the recommendation i.e. Government Orders dated 24.03.2011 and 06.04.2011 can alter its date of enforceability. Rational behind, it is that if the State machinery delays the decision making process of the State, in adopting the recommendation of 6th Pay Commission which quite apparently in the instant case happens to be at a highly belated stage on 24.03.2011. The employees ought not to suffer due to delay acceptance of the recommendations by the State. Even otherwise rationally also, in view of Article 14, 16 and 39(1)(d) of the Constitution of India, the accrual of financial benefit once it is decided by the Government of India to be extended to State employees by enforcing the recommendations of the 6th Pay Commission, it goes without saying that the Government of India have assessed its financial implications prior to passing the recommendation of 6th Pay Commission which was to be adopted by the State Government subsequently has to be enforced w.e.f. 01.01.2006 in relation to Group-D employees too, who are weaker segment of the welfare country.
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8. Hence, subsequent adoption of recommendation of 6th Pay Commission by the State would not have any bearing on its applicability on the basis of the date of passing of the Government Order by the State Government and that too, in the State itself, when the same Government Order which was issued on 24.03.2011 adopting the recommendation of the 6th Pay Commission, has been made applicable in relation to Group-A, B and C employees with effect from 01.01.2006. There is no rational or reason why Group D employees are being discriminated. The same benefit ought o have been meted out to Class-IV employees also as they too would fall to be within the definition of 'Public Servant' by serving the State, may be that they are belonging to a lower category or a cadre.
9. In that view of the matter, since there happens to hostile discrimination at the hands of the State which as per the Constitutional mandate being a welfare State in expected to treat its employees equally, is liable to pay the recommendation of 6th Pay Commission as enforced by the Government Order dated 24.03.2011, with effect from which it has been made applicable in relation to the Group-A, B and C employees of the State i.e. 01.01.2006."
19. Thus, the writ petition is allowed. A writ of mandamus is issued to the respondents to grant the benefit of revised pay scale of Pay Band I, to the petitioners with effect from 01.01.2006, to that extant the Government Order No.629/XLI and 17-40/2014 is modified in it applicability with effect from 01.01.2006 in place of 01.12.2015.
20. However, there would be no order as to cost.
(Sharad Kumar Sharma, J.) 31.12.2020 Arti