Dinesh Chandra Khare vs State of U.P. and Others

D.K. Seth, J.—Rule 5E read with Rule 18 of Uttar Pradesh District Offices (Collectorates) Ministerial Service Rules, 1980, has been sought to be declared ultra vires to Articles 14 and 16 of the Constitution, by means of this writ petition. The grounds for challenge is that Stenographer Grade II and Grade I in Category F particularly to Stenographer Grade I are compelled to stagnate while their counterparts in Category D, were allowed promotional channel in Category-E, excluding the Stenographers.

Dr. R.G. Padia, learned Counsel for the Petitioner contends that though the persons holding post in Category C in the scale of Rs. 250-425 being the same pay scale of Stenographer Grade II are allowed promotion to Category D in the scale of Rs. 280-460 while Stenographer Grade II allowed promotion to the Stenographer Grade I in the pay scale of Rs. 300-500 while those in Category-D have scope of further promotion available to Category-E in the scale of Rs. 450-700. Whereas no further promotional channel is open and available to Stenographer Grade I. He also points out that a person in Category A has promotional channel open in Category B, then Category C followed by Category D and E. In those cases, as many as there are four promotional channel higher up. Whereas Stenographer Grade I which may be filled up even by direct recruitment does not have any further scope for promotion, whereas Stenographer Grade II has only one channel to Stenographer Grade I. According to him even from Category C there are two promotional channels open, whereas Stenographer Grade II has only one promotional channel open to them. On these grounds he contends that Rule 5 Category E providing promotional scope only to Category D filled up by promotion from Category C excluding Category F is ultra vires. In as much as the persons holding the pest of Category F have been allowed stagnate without further promotion which is wholly discriminatory.

Similar question arose in the case of U.P. Government Stenographers Association and Ors. v. State of U.P. and Ors. Writ Petition No. 5176 of 1987, disposed of on 20.7.1990 by a Division Bench of this Court, in which Rule 5(1) of U.P. Food and Civil Supplies (Supply Branch) Subordinate Service Rules. 1980 (hereinafter referred to as Civil Supply Rules) so far as it excluded Stenographers from the held of eligibility to the post of Inspector, was declared ultra vires. Rule 5(1) of U.P. Food and Civil Supplies (Supply Branch) Subordinate Service Rules, 1980, as it stood when tire same was challenged In the said writ petition, was as follows:

Sources of recruitment.-

(1) Recruitment to the various categories of posts In the Service shall be made from the following sources

(i) Inspector.-

(a) By direct recruitment through the Commission; and

(b) By promotion through the Commission from amongst permanent Head Clerks/Permanent Accountants working in the Supply Branch of the Food and Civil Supplies Department.

(ii) Senior Inspector.-(a) By direct recruitment through the Commission;

(b) By promotion through the Commission from amongst permanent Inspectors.

(2) Recruitment to the cadres of Inspectors and Senior Inspectors shall be so arranged that as far as may be 50 per cent of the posts are held by direct recruitment and 50 per cent by persons appointed by promotion.

Whereas Rule 5 of U.P. District Offices (Collectorate) Ministerial Service Rules (hereinafter referred to Collectorate Rules) so far as it is relevant for our purpose, being Category C, D, E and F, provides as under:

Category ''C Enquiry clerk in the scale of By promotion from amongst the pay of Rs. 250-425. Permanent incumbents of the posts mentioned in Category B.

Category ''D'' Senior Assistant which term By promotion from amongst the Includes Nazir, Judicial Assistant, permanent incumbents of the posts Revenue Assistant, Revenue Record mentioned in Category B and C Keeper, English Record Keeper, above. Chief Revenue Accountant and any other ministerial post in the scale of pay of Rs. 280-460.

Note.-(I) For the purpose of promotion to the posts in Category I) a combined seniority list shall be prepared by arranging the name of Enquiry clerk and thereafter the names of persons holding the posts in Category B in order of seniority.

(2) Where a person is selected both for the posts in Category C and ''D'' the post In Category ''D'' shall be first offered to the person in order of seniority.

Category E Office Superintendent (in the pay By promotion from amongst (he scale of Rs. 450-700. permanent incumbents of the posts in Category D. Category F (i) Stenographer Grade II in the By direct recruitment, scale of Rs. 250-425. (ii) Stenographer, Grade I (in the By promotion from amongst the scale of Rs. 300-500. permanent Stenographers in the scale Of Rs. 250-425. If suitable persons are not available for promotion the post may be filled up by direct recruitment.

A comparison of the said two Rules show that the said Civil Supplies Rule in Rule 5 provides for promotion to the Post of Inspector by direct recruitment and through promotion from amongst permanent Head Clerks, permanent Accountant, whereas promotion to the post of Senior Inspector was provided by direct recruitment and by promotion from amongst permanent Inspectors and the ratio was fixed at fifty per cent of each categories. For the purposes of promotion to the post of Inspectors and Senior Inspectors, Stenographers of the said department were thoroughly excluded. Similarly in the Collectorate Rules, Category E posts are to be filled up by promotion from amongst permanent incumbents of the posts in Category D excluding the Stenographers in Category F. Thus there appears to be an Identify of commonness in the feature of both the Rules in the matter of exclusion of Stenographer for being promoted in the respective higher posts.

After the judgment in the case of U.P. Government Stenographers Association (supra) declaring Rule 5(1) as ultra vires was delivered, the Civil Supply Rules were amended by including the Stenographers as source of recruitment by promotion to the post of Inspectors in the following manner:

Sources of recruitment-Recruitment to the various categories of posts in the Service shall be made from the following sources

(1) Inspector.-

(a) Seventy five per cent by direct recruitment through the Commission; and

(b) Twenty five per cent by promotion through Selection Committee from amongst substantively appointed such incumbents of the posts of the categories mentioned in Clauses (i) and (ii) below as have completed five years of service on any one or more of the posts of the said categories on the first day of the year of recruitment

(i) Senior Assistant-Accountants, Senior Clerks, Accounts Clerk, and Junior Clerk/Typist to the extent of twenty per cent of the post; and

(ii) Stenographer-to the extent of five per cent of the posts.

(iii) Senior Inspector-by promotion through Selection Committee from amongst substantively appointed Inspector who have completed at least five years service as such or the first day of the year of recruitment.

Thus, we find that Stenographers similarly situated in the Civil Supplies Department were granted the benefit of promotional channel to a higher post while their counterparts in the Collectorate were deprived of similar opportunity.

In the said case, a question was raised that the Stenographers altogether perform the duties different from the Assistant Accountants and, therefore, they might be excluded from the field of eligibility for promotion to the higher post. The said question was dealt with in the said judgment with the following observation:

The duties of a Stenographer are indeed very much different from the duties of clerks and accountants, that could be a basis for excluding Stenographers from the field of eligibility for promotion to higher posts. However, the Petitioners pointed out that in several departments of the U.P. Government Stenographers fall in the field of eligibility for higher posts which require performance of duties of entirely different nature. It is accordingly submitted on behalf of the Petitioners that exclusion of Stenographers from the field of eligibility for promotion to higher posts In the Food and Civil Supplies Department Is arbitrary and without any Justification. Reference in this connection has been made to the rules obtaining in Sales Tax, Forest. Sugar, Entertainment Tax, Agriculture and Transport Departments. It is stated that in the Sales Tax Department 6 per cent posts are reserved for Stenographers for promotion to tire cadre of Sales Tax Officer Grade II. In the Forest Department under the U.P. Forest Department Clerical Cadre Service Rules, 1981, Stenographers are eligible to be promoted as Chief Head Assistant and Head Clerk. Under the U.P. Sugar Department Subordinate Service Rules, 1981 Stenographer:? Fall in the field of eligibility for promotion to the post of Khandsari Inspector. In the Entertainment Tax Department Stenographers are eligible for promotion to the post of Entertainment Inspector. Under the U.P. Transport Department (Taxation Subordinate Service Rules, 1979 Stenographers fall In the field of eligibility for promotion to the post of Traffic Inspector and Goods Inspector. The Petitioner has placed on record copy of Government order dated 23rd October, 1972 whereby J.C. Tewari. Head Clerk and Hart Shanker Agarwal, Stenographer in Agriculture Directorate were promoted to the post of Administrative Officer. From this it would appear that in the Agriculture Department Stenographers were not excluded from the field of eligibility for promotion to administrative posts. In Annexure 12 the Petitioner has mentioned names of 18 Stenographers who were appointed to administrative and inspectorate posts in the Food and Civil Supplies Department prior to the enforcement of the statutory rules mentioned hereinabove. The Stenographer mentioned in this list were promoted to the posts of District Supply Officer Senior Supply Inspector, Area Rationing Officer and Supply Inspector. The State Government has not controverted these allegations. If Stenographers working in other departments of the U.P. Government were found fit for promotion to inspectorate and administrative in the Food and Civil Supplies Department It will, therefore, have to be held that the action of the State Government is arbitrary and deserving of quashing. The exclusion arises from the field of eligibility prescribed in Rule 5(1) of the U.P. Food and Civil Supplies (Supply Wing) Subordinate Service Rules, 1980. This rule so far as it excludes Stenographers of the department from the field of eligibility will accordingly have to be held as ultra vires of Articles 14 and 16 of the Constitution.

The same analogy is equally applicable in the case of Stenographer in the Collectorate as well. It would not be possible to reject the plea of Stenographer on the ground as contended by the learned standing counsel and vehementally argued that the Stenographers having been performing altogether different kind of duties are wholly unsuitable for being promoted to the post of Office Superintendent, being Category E because of the nature of the Job undertaken by the Office Superintendent, cannot be sustained.

Now, admittedly the Stenographers In Grade II have promotional channel to the post of Stenographer Grade I, Though Stenographers Grade II are in the same scale of Category C but Stenographers Grade II are eligible only for one promotion, whereas Category C are privileged to two higher promotions, one in the scale of Rs. 280-460 and the next in the scale of Rs. 450-750. The Stenographer Grade I having granted the pay scale of Its. 300-500 which is little higher than Category D admittedly is far less than Rs. 450-700 in Category E. The Stenographer Grade I is filled in normally by promotion but in case suitable persons are not available for promotion, the post may be filled up by direct recruitment. In case a person is appointed to Stenographer Grade I by direct recruitment, in that event he does not have any further promotional channel and would be stagnating in the scale, post throughout his service career, which is altogether an unhealthy administrative set up, not to speak of discrimination with those of his counterpart in Category D. At the same time, Category D in the pay scale of 280-460 which is little less than Stenographer Grade I in the scale of Rs. 300-560 are eligible for promotion to the scale of Rs. 450-700. On the other hand, Stenographer Grade I having little higher grade than Category D will be deprived of any promotion to any further higher posts.

In the case of AIR 1988 1033 (SC) , the Apex Court had laid down:

Reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects the service is bound to degenerate and stagnation kills the desire to serve properly.

In the case of Council of Scientific and Industrial Research and Another Vs. K.G.S. Bhatt and Another, , the Apex Court had observed:

It is often said and indeed, adroitly an organisation public or private does not hire a hand but engages or employs a whole man. The person is recruited by an organisation not Just for a job, but for a whole career. One must therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel low morale and Ineffectual performance, among both non-managerial employees and their supervisors. There cannot be any modern management much less any, career planning man power development management development etc. which is not related to a higher promotions (See Management of Indian Enterprises by Prof. N.N. Chatterjee Chap. 12 P. 128)

In the case of Dr. Ms. O.Z. Hussain Vs. Union of India and others, , it was observed by the Apex Court that:

This Court has on more than one occasion pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no Justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non-medical ''A Group Scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State tt is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the ''A'' category scientists in the non-medical wing of the Directorate.

The people of India had given a Constitution to themselves as the preamble thereto records. The Government in India has been divided into three wings; Legislative wing, Administrative wing, which is known as Executive and the Judiciary. Now the Legislature legislates tire law being the guideline as to how tire country is to be governed. The executive governs in terms thereof. The Government is established by law, a Government Is run by law. The Judiciary is sentinel to harness tire governance within the ambit of law when there are infractions brought to its notice. The governance of a Government is of the people, for the people and by the people. Admittedly, the Government is responsible to the public for giving sound, efficient and responsible governance. It is the people who are ultimate beneficiary of the governance. It is the people to whom the Government is responsible. It is the people who has a right to be governed in accordance with law. The Government ows the responsibility to hand-down an efficient Government.

The efficiency of the Government depends on the system of the management. Such management is carried on through various Government departments which are naturally manned not by machines but by human resources. Though the machines might be there, but they are controlled and monitored and operated by these human beings. These resources manning the Government are not expected to be robots. They are human having all kinds of expectations, efficiency and tendency to improve. These are natural human character, in order to achieve efficient management, the medium, through which management is carried on, is to be kept well and geared up as well-oiled machine.

One of the method of good administration is to extract best out of the human agency through whom the Government is administered. To get best out of human beings is to keep him in good humour, not only by providing him adequate return but also with adequate expectation for advancement in the career. Only this expectation for their advancement in the career is the succour and nourishment to the ambition of an individual to thrive for excellence. Unless the goal is set, an individual is not expected to excel. The goal is return for excellence. An individual is expected to excel only when he knows that by reason of excellence", he may expect to be rewarded and that he scope of reward is available by means of promotion. It is the normal character of human being to thrive always for more and better and ultimately best within the limits of his capacity. In service parlance, the same is rewarded through making promotion or higher grade available though might be by selection. Unless such scope is available, the administration is not expected to be efficient. The need for providing provision for promotion is not charity or grace extended to the employees but is a scope of career that might herald an employee to the top of service career in his channel provided.

The counter-affidavit filed on behalf of the Collector being Respondent No. 5, in fact, has not been able to make out any case showing that there is any promotional channel or discrimination sought to be made out, is not genuine or is a myth. Learned standing counsel also, in the course of his argument, has not been able to make out any case contrary to what has been observed earlier so as to lead this Court to hold otherwise.

In view of the established principle as laid down by the Apex Court, particularly, the ratio decided In the cases referred to above, and in the facts and circumstances of the case which undisputedly appears lo be identical with the case of Stenographer In the Civil Supply Department, following the judgment in the case of U.P. Government Stenographer Association (supra), it appears to me that the Stenographers in the Collectorate are being discriminated with their counter pans of Category C and D employees in the matter of prospect of promotion and compulsion to stagnate, inasmuch as while two promotions in the Category C and D promotional channel has been provided to Category E. the Stenographers in Grade If have been given only one promotion whereas Stenographers Grade I have been given none, particularly, when a person may be recruited directly in Stenographer Grade I.

Articles 14 and 16 of the Constitution had stressed the equality clause on which the basic feature of our Constitution rests. The equality clause is the mainstay on which balance is maintained. Whenever this equality clause is infringed or a person is deprived of ii, the duty of the Court is lo enforce (he same and see (had the principal tenets of the Constitution are obeyed, followed and Implemented. Any law that stands contrary or tends to tarnish the equality clause, the same has to be removed. It is the duty of the Court to point out such defect in the legislation, if there is any and strike it down, in appropriate cases, whenever it is brought to its notice and when if is pointed out, the duty of the legislative body is lo carry out and undertake such exercises for removal of such defects by appropriate legislation, though the Courts have not been empowered or impregnated with the jurisdiction to direct legislation but indirectly it might point out the situation where legislation becomes necessary. The legislature had all along been alive to such a situation and it is (he duty of the Legislature to remain so alive lo undertake exercise for doing away with the discrimination and ensuring effective implementation of the equality clause.

In the present case, it appears that Stenographers have been discriminated upon in absence of any promotion channel and their non-inclusion for promotion to the post of Office Superintendent. It is for the legislature to think in its own wisdom as to whether Die Stenographers should be given promotion to the post of Office Superintendent by including the Stenographers as one of (lie source of recruitment for promotion to the post of Office Superintendent or whether some other posts commensurate with the job undertaken by them are to be created or provided for or whether any other further promotional scope either by way of introducing new higher grade equal to the scale of Office Superintendent or the other way out to any further scope or channel for promotion to be provided with the aim and object to further advance efficiency of the Government. It is not the domain of the Court to embrace upon suggesting the modality or method, manner in which the same is to be done or provided and how to recompensate the depriving of equality so long perpetrated upon the Stenographers since 1980 or as to how the situation is to be tackled by bringing the Stenographer at the par, which the Stenographers have been deprived of. All these matters are to be taken care of by the legislative authority in the wake of removal of discrimination so as to hand down effective equality and equal opportunity to the Stenographers as well. The demand for equality is a right fundamental to an individual which an individual demands and not begs.

Thus, the Collectorate Rules, 1983, so far as it does not provide for promotion to the Stenographers, as Indicated above, is ultra uires to Articles 14 and 16 of the Constitution, particularly in excluding the Stenographers from the source of promotion to the post of Category E in Rule 5 of the U.P. State District Offices (Collectorate) Ministerial Service Rules, 1980 and it is so declared discriminatory and ultra vires to the above extent. Accordingly, a suitable writ do issue to the extent, Indicated above. The writ petition thus stands allowed.

There will, however, be no order as to costs.