Ganesh Prakash and Others vs State of U.P. and Others

Arun Tandon, J.—Heard Sri Ravi Kant, senior advocate assisted by Sri J.P. Singh learned Counsel for the petitioners, Sri Rajeev Gupta, learned Counsel for the respondent- High Court, Sri V.K. Singh, Additional Advocate General for the State respondents.

Petitioners, who are twenty seven in number, applied in pursuance to the advertisement published in the year 2002 for appointment on the post of Personal Assistants in the High Court of Judicature at Allahabad both at Allahabad and Lucknow Bench. The pay scale disclosed in the advertisement applicable to the post was Rs. 5,500-9,000. The petitioners have been selected and in fact appointed as Personal Assistants to the Hon''ble Judges on 29th April, 2003. The petitioners are continuously working in the establishment of the High Court since then.

The petitioners, by means of present petition, seek a writ of mandamus commanding the respondents to ensure payment of salary to the petitioners in the pay scale of Rs. 6,500-10,500, as revised from time to time, from the date of their initial appointment along with arrears qua the difference of salary.

In support of the said relief learned Counsel for the petitioners submits that appointment on the post of Personal Assistants was earlier being made in the pay-scale of Rs. 1,640-2,900 (revised to 5,500-9,000), while appointment of Private Secretaries was being made in the pay-scale of Rs. 2,000-3,500 (revised to 6,500-10,500).

The Personal Assistants and the Private Secretaries working in the Hon''ble High Court filed Writ Petition No. 1408 of 1993, P.S. & P.A. Brotherhood, High Court, Allahabad * and Anr. v. State of U.P. and Ors. seeking parity in the pay-scale with reference to the employees working on identical post in the Central Secretariat/Delhi High Court. The writ petition was allowed by a Division Bench of this Court vide judgment and order dated 21.12.1993 and it was provided that the salary of the Private Secretaries shall be fixed in the pay scale of Rs. 3,000-4,500 and of Personal Assistants attached with the Hon''ble Judges shall be in the pay-scale of Rs. 2,000-3,500, whereas the Personal Assistants attached with the officers of Registry (i.e., the officers in the pay scale of Rs. 5,900-6,700) shall be paid salary in the pay-scale of Rs. 2,000-3,200-with effect from 1.1.1986. The respondents were further directed to fix and pay the salary accordingly w.e.f. 1.1.1994. Against the said judgment of the Division Bench dated 21.12.1993 the State Government as well as the High Court approached the Hon''ble Supreme Court by filing special leave petition, which has ultimately been dismissed by the Supreme Court vide orders dated 26.3.1996.

The State Government issued a Government order dated 23.12.1997 on recommendation of Pay Committee U.P. (1997), whereby the pay scales of Rs. 2,000-3,200 and Rs. 2,000-3,500 were merged and revised to Rs. 6,500-10,500 and the pay scale of Rs. 3,000-4,500 was revised to Rs. 10,000-15,200 w.e.f. 1.1.1996.

For enforcing the judgment and order of the Division Bench dated 21.12.1993, the State Government issued Government order dated 8.11.2001 which provided that the pay scale applicable to the Private Secretaries would be Rs. 3,000-4,500, while that applicable to the post of Personal Assistant working with the Officers of the High Court will be Rs. 2,000-3,200 and Personal Assistants working with the Hon''ble Judges would be in the scale of Rs. 2,000-3,500, w.e.f. 1.1.1996.

On 11.11.2001 the Allahabad High Court Private Secretaries (Condition of Service) Rules, 2001 were notified and for the first time the aforesaid rules categorised the post of Private Secretaries into four subclasses carrying different pay scales, but the service conditions of the Personal Assistant continued to be governed by the Allahabad High Court Officers and Staff (Conditions of Service and Conduct), Rules, 1976.

The petitioners before this Court contended that in view of the revision effected under the judgment of this Court dated 21.12.1993 resulting in issuance of the Government order dated 8.11.2001, referred to above, the pay scale applicable to the post of Personal Assistant attached with the Hon''ble Judges stood revised w.e.f. 1.1.1986, and this re-fixed scale of salary on further revision in accordance with Government order dated 23.12.1997 stands revised to Rs. 6,500-10,500, w.e.f. 1.1.1996. The post of Personal Assistant would carry the pay scale of Rs. 6,500-10,500, w.e.f. 1.1.1996. Therefore, they submit that mere wrong mention of the pay scale in the advertisement published, will not justify the refusal of payment of salary to the petitioners in the scale of Rs. 6,500-10,500. It is submitted that even if the advertisement for the post of Personal Assistant provided that the pay scale admissible would be Rs. 5,500-9,000, yet when the pay-scale admissible to the said post stood revised to Rs. 6,500-10,500, the Personal Assistants attached to the Hon''ble Judges become entitled to the said pay-scale. It is therefore submitted that the respondents are under legal obligation to pay salary to the petitioners in the revised pay scale of Rs. 6,500-10,500 from the date of their appointment.

In paragraphs 14 to 16 of the writ petition it has been stated that earlier also appointment on the post of Personal Assistant in pursuance to the advertisement dated 9.8.1996 was made in the pay scale of Rs. 1,640-2,900 (revised to Rs. 5,500-9,000), but after joining of the selected candidates they have been paid salary in the pay scale of Rs. 6,500-10,500 in pursuance to the recommendation of the pay committee dated 23.12.1997 from the date of appointment.

A counter-affidavit was filed on behalf of the State respondents on 14.2.2009 annexing copy of the order dated 26th June, 2007, whereby pay scale, admissible to the Personal Assistant has been revised from 5,500-9,000 to 6,500-10,500, w.e.f. 26.6.2007. Therefore the dispute in the present writ petition is confined to the period starting from the date of appointment of the petitioners, i.e., 29.4.2003 till the 26.6.2007 only.

This Court, after examining the matter on 27.2.2009, passed a reasoned order recording therein that with the issuance of the Government order dated 8th November, 2001 (in compliance to the Division Bench judgment of this Court dated 21.12.1993), the revised pay scale of the Personal Assistants attached to the Hon''ble Judges stands revised to Rs. 2,000-3,500, w.e.f. 1.1.1986, and on acceptance of the report of the Fifth Pay Commission, vide Government order dated 23.12.1997 the pay scales of Rs. 2,000-3,200 and 2,000-3,500 were merged and a uniform pay scale of Rs. 6,500-10,500 was provided with effect from 1.1.1996.

Since the vacancy in question was advertised without noticing the Government order dated 8.11.2001 and dated 23.12.1997 wrong pay scale was mentioned qua the post. However, the candidate selected in response to the advertisement on the post of Personal Assistant was entitled to the pay scale of Rs. 6,500-10,500 as was applicable to the post. The Court, therefore, required the State Government to reconsider the matter.

The Special Secretary passed an order dated 6th April, 2009 in compliance to the order of this Court dated 27th February, 2009, which has been brought on record as Annexure-1 to the supplementary affidavit, stating therein that the judgment of the High Court dated 21st December, 1993 and the consequential revision of the pay scale under the Government order dated 23.12.1997 would be applicable to the writ petitioners/persons who were actually working on the said date and not to the subsequent appointees.

To the similar effect is the affidavit filed on behalf of the State respondents on 10.4.2009 wherein another order dated 6th April, 2009 passed by the Secretary has been brought on record, which discloses the reasons which are more or less identical to the stand taken in the earlier counter-affidavit for the purpose of denying the relief prayed for.

The Court has, therefore, to proceed to examine in the facts of the present case as to whether the petitioners are entitled to the pay scale of Rs. 6,500-10,500 from the date of their initial appointment or not.

It is not in dispute that the High Court vide judgment and order passed in Writ Petition No. 1408 of 1993, dated 21.12.1993 held that the Personal Assistant attached to the Hon''ble Judges would be entitled to pay scale of Rs. 2,000-3,500, w.e.f. 1.1.1986 and the State respondents were directed to fix the salary accordingly w.e.f. 1.1.1994. The Civil Appeal filed by the High Court of Allahabad against the said judgment was dismissed as withdrawn, while the SLP filed by the State Government against the said judgment was dismissed by the Hon''ble Supreme Court vide order dated 26.3.1996.

The State Government in the meantime accepted the recommendation of the Fifth Pay Committee of U.P. (1997), whereby pay scales of Rs. 2,000-3,200 and 2,000-3,500 were merged and revised to Rs. 6,500-10,500.

For the purpose of giving effect to the Division Bench judgment of this Court dated 21.12.1993 a Government order was issued on 8th/November, 2001 (copy whereof is enclosed as Annexure-9 to the writ petition) whereunder amendment was made qua item No. 22 of the Government order dated 12.7.1991 resulting in the pay scale admissible to the Personal Assistants attached to the Hon''ble Judges being provided as Rs. 2,000-3,500 in place of Rs. 1,640-2,900. The Government order dated 8.11.2001 reads as follows:

izs"kd] Jh ,u0ds0 esygks=k] izeq[k lfpo] mRrj izns''k ''kklu A lsok esa] egkfucU/kd mPp U;k;ky;] bykgkckn U;k; vuqHkkx&1 �mPp U;k;ky;� y[ku� fnukad 8 uoEcj] 2001 fo"k;& fjV ;kfpdk la[;k 1408@93ih0,0@ih0,l0 cznjgqM mPp U;k;ky; cuke jkT; ,oa vU; esa ikfjr ek0 mPp U;k;ky; ds fu.kZ; fnukad 21-12-1993 ds vuqikyu ds lEcU/k esa A egksn;]

mi;qZDr fo"k;d ''kklukns''k la[;k&2094@lkr U;k;&1&55 �fjV�@93] fnukad 4 vxLr] 1997 ds izLrj&2 esa mfYyf[kr rkfydk ds LFkku ij v/kksvafdr rkfydk dh O;oLFkk fd; tkus dh Jh jkT;iky egksn; lg"kZ Lohd`fr iznku djrs gSA

dz0la0 ''kklukns''k fnukad 30-6-1989 ds layXyd ds vuqlkj dzekad inuke LrEHk 8 esa mfYyf[kr osrueku �:0� esa fu.kZ; ds vuqlkj iqujhf{kr osrueku �:0 esa�

(1)

(2)

(3)

(4)

(5)

1- 15 futh lfpo ''kklukns''k fnukad 12-7-1991 ds vuqlkj 2]000&3]500 3]000&100&3]500&125&4]500

2- 22 oS;fDrd lgk;d �:0 5]900&6]700 ikus okys vf/kdkjh;ksa ls vkc)� 1]640&2]900 2]000&80&2]300&n0jks0&75&3]200

3- oS;fDrd lgk;d �ek0 U;k;ewfrZ;kas ls vkc)� oS;fDrd lgk;d �mi;qDr ds vfrfjDr� 1]640&2]900 2]000&60&2]300 n0jks0&75&3]200&100&3]500 1]640&60&2]600&n0jks0&75&2]900

2- lUnfHkZr ''kklukns''k fnukad 4 vxLr] 1992 dks ''ks"k ''krsZ ;Fkkor~ cuh jgsxh A Hkonh; �,u0ds0 esygks=k� izeq[k lfpo

The aforesaid Government order had the effect of providing the salary admissible to the post of Personal Assistants attached to the Hon''ble Judges as Rs. 2,000-3,500, w.e.f. 27.12.1991.

In view of the revision in the pay scales (i.e., on recommendation of the Fifth Pay Commission) the pay scale of Rs. 2,000-3,500 stood further revised to Rs. 6,500-10,500. Government order dated 23.12.1997 reads as follows:

izs"kd] Jh lq''khy pUnz f=ikBh izeq[k lfpo] foRr mRrj izns''k ''kklu A ---- ---- layXud% mijksDrkuqlk ---- ---- �iqujhf{kr osruekuksa dh rkfydk� ''kklukns''k la[;k&i0 ek0fu0&356@nl&22 ,e0@67] fnukad 23 fnlEcj] 1997 dk layXud A

dze la[;k orZeku osrueku �fnukad 1-1-1996 ls iwoZ� iqujhf{kr osrueku �fnukad 1-1-1996 ls izHkkoh�

1

2

3

1- 750&12&870&n0 jks0&14&940 2]250-55-2]660-60-3]200

2- 775&12&871&n0 jks0&14&1]025 2]610-60-3]150-65-3]540

3- 800&15&1]010&n0 jks0&20&1]150 2]650-65-3]300-70-4]000

4- 825&15&900&n0 jks0&20&1]200 2]750-70-3]800-75-4]400

5- 950&20&1]150&n0 jks0&25&1]400 3]050-75-3]950-80-4]590

6- 950&20&1]150&n0 jks0&25&1]500 ]] ]]

7- 975&25&1]150&n0 jks0&30&1]540 3]200-85-4]900

8- 975&25&1]150&n0 jks0&30&1]660 ]] ]]

9- 1]200&30&1]440&n0 jks0&30&1]800 4]000-100-6]00

10- 1]200&30&1]560&n0 jks0&40&2]040 ]] ]]

11- 1]320&30&1]560&n0 jks0&40&2]040 ]] ]]

12- 1]350&30&1]440&40&1]800&n0 jks0&50&2]200 4]500-125-7000

13- 1]400&40&1]800&n0 jks0&50&2]300 ]] ]]

14- 1]400&40&1]800&n0 jks0&50&2]040 4]500-125-7]250

15- 1]400&40&1]600&50&2]300&n0 jks0&60&2]600 5]000-150-8]000

16- 1]600&50&2]300&n0 jks0&60&2]600 ]] ]]

17- 1]600&50&2&]300&n0 jks0&60&2]660 ]] ]]

18- 1]640&60&2]600&n0 jks0&75&2]900 5]500-175-9]000

19- 2]000&60&2]300&n0 jks0&75&3]200 6]500-200-10]500

20- 2]000&60&2]300&n0 jks0&75&3]200&100&3]500 ]] ]]

21- 2]375&75&3]200&n0 jks0&100&3]500 7]450-225-11]500

22- 2]200&75&2&]800&n0 jks0&100&4]000 8]000-275-13]500

23- 2]350&75&2]800&n0 jks0&100&4]100 ]] ]]

24- 2]275&75&2]800&n0 jks0&100&4]000 ]] ]]

25- 2]350&75&2]800&n0 jks0&100&4]300 8]550-275-14]600

26- 2]350&75&2]800&n0 jks0&100&4]400 ]] ]]

27- 3]000&100&3]500&125&4]500 10]000-275-14]600

28- 3]000&100&3]500&125&4]750 ]] ]]

29- 3]000&100&3]500&125&5]000 ]] ]]

30- 3]200&100&3]500&125&4]875 10-650-325-15]850

31- 3]700&125&4]700&150&5]000 12]000-375-16]500

32- 4]100&125&4]850&150&5]300 14]300-400-18]300

33- 4]500&150&5]700 ]] ]]

34- 5]100&150&5]700 16]400-450-20]000

35- 5]100&150&6]150 ]] ]]

36- 5]100&150&5]700&200&6]300 ]] ]]

37- 5]900&200&6]700 18]400-500-22]400

38- 7]300&100&7]600 22]400-525-24]500

39- :i;s 800 fu;r osru :i;s 26]000 fu;r osru

Before proceeding any further this Court may highlight that under the Government order dated 8th November, 2001 salary was revised qua the post of Personal Assistant attached to Hon''ble Judges with reference to the post, while under the Government order dated 23rd December, 1997 revision has been effected in the pay scales with reference to the earlier pay scale applicable irrespective of the post.

The advertisement giving rise to the appointment of present writ petitioners, issued in the year 2002, wrongly disclosed the pay scale for the post of Personal Assistants as Rs. 5,500-9,000. As a matter of fact, having regard to the Government order dated 8th November, 2001 and the revision effected under Pay Committee U.P. (1997), the salary qua the post of Personal Assistants in fact was in the pay scale of Rs. 6,500-10,500.

Mere wrong mention of the pay scale qua the post of Personal Assistants in the advertisement cannot be the basis for denying the salary admissible to the post of Personal Assistants as revised under the Government order dated 8th November, 2001 read with revision effected under the Government order dated 23.12.1997.

At this stage it may be recorded that the Hon''ble Supreme Court in the case of Malik Mazhar Sultan and Another Vs. U.P. Public Service Commission and Others, as well as Division Bench of this Court in the case of Sanjay Agarwal, etc. etc. v. State of U.P. and Ors. etc. etc. 2007 (6) ADJ 272 : 2006 (7) AWC 7233, has specifically held that in case there is a conflict between the terms of the advertisement and the Government order, which provides for method of recruitment and appointment on the post in question, then the terms of the Government order will prevail and the advertisement has to be read down in light of the Government order. For ready reference relevant portion of paragraph 41 of the Division Bench judgment of this Court in the case of Sanjay Agarwal (supra) reads as follows:

...It is also obvious that if there is any inconsistency between the advertisement and Rules, the statutory rules shall prevail. In Malik Mazhar Sultan (supra), the Apex Court has clearly held that recruitment to the service could only be made in accordance with the Rules and not otherwise.

The stand taken on behalf of the State respondents to the effect that the benefit of the Government order dated 8th November, 2001 qua revision of the pay scale admissible to the post of Personal Assistants would be applicable to the writ petitioners of Writ Petition No. 1480 of 1993 or the persons working on the date the Government order was issued is apparently misconceived. The Government order dated 8th November, 2001 in fact revises the pay scale admissible to the post of Personal Assistants in compliance to the judgment and order of the High Court. Such Government order, which revises the salary admissible to the post, cannot be treated to be confined to the writ petitioners of Writ Petition No. 1480 of 1993 or the persons working on the date of issuance of the Government order. The Government order revising the salary qua a post applies to all the incumbents already working as well as future appointments to be made on the same post, specifically when the Government order does not lay down any such condition as has been argued on behalf of the State respondents.

This Court has, therefore, no hesitation to hold that the Government order dated 8th November, 2001 has the effect of revising the pay scale admissible to the post of Personal Assistants working with the Hon''ble Judges as Rs. 2,000-3,500, which in view of the Government order dated 23.12.1997 shall stand revised to Rs. 6,500-10,500, w.e.f. 1.1.1996. Accordingly, any appointment on the post of Personal Assistant attached to the Hon''ble Judges subsequent to the said revision has to be made in the pay scale of Rs. 6,500-10,500 and any wrong mention of the scale in the advertisement cannot be the basis for denying the pay scale applicable to the post to the persons appointed.

This Court may also refer to the judgment of the Division Bench of this Court in the case of State of U.P. and Ors. v. Anand Kumar Mishra and Ors., passed in Special Appeal (D) No. 870 of 2009, decided on 6th August, 2009, wherein it has been held as follows:

We do not find any substance in the submission of Mr. Shukla.

It is well-settled that every State action has to be founded on valid reason. A State action which is unreasonable and arbitrary, strikes at the very root of Article 14 of the Constitution of India. Testing the decision of the State Government on the aforesaid anvil, we find that it is absolutely arbitrary.

It is not in dispute that other employees of the State Government on the very same recommendation of the Pay Revision Committee and Equivalence Committee, have been given the benefit of revised pay scale with effect from 1.1.1996. Simply because the decision in regard to these employees was taken later on, it will not give a right to the State Government to give them the scale of pay from the date the decision is taken. We do not find any justification for giving the benefit of the revised scale of pay to the employees from the date the decision was taken for extending such benefit and not to give it from 1.1.1996.

The Court may now refer to the judgments relied upon on behalf of the State respondents.

(a) Union of India v. Arun Jyoti Kundu and Ors. (2007) 7 SCC 472 : 2007 (7) AWC 7342 (SC), wherein it has been provided that fixation of a particular date for effecting the revision in the pay scale under the Government order does not amount to discrimination.

There can be no two opinion qua the principle of law so laid down. However, in the facts of the present case the Court has found that on the recommendation of the Pay Committee the salary applicable to the post of Personal Assistants attached to the Hon''ble Judges stood revised as Rs. 6,500-10,500, w.e.f. 1.1.1996 and therefore the judgment relied upon by the State respondent more or less supports the case of the writ petitioners.

(b) State of U.P. and Ors. v. J.P. Chaurasia and Ors. AIR 1989 SC 19, wherein it has been held that the Court will not interfere with the decision of the Pay Commission, being an expert body.

In the opinion of the Court the aforesaid judgment is also clearly distinguishable, and as a matter of fact has no application in the facts of the present case.

(c) K.A. Nagamani Vs. Indian Airlines and Others, wherein it has been held that participation in the selection process without any demur or protest will disentitle the unsuccessful candidate to question the process of selection.

In the opinion of the Court the aforesaid judgment is also clearly distinguishable and as a matter of fact has no application in the facts of the present case, inasmuch as the process of selection is not being questioned herein.

(d) State of Maharashtra v. Association of Court Stenos, P.A.P.S. and Anr. (2002) 1 UPLBEC 510, wherein it has been provided that the condition of service could be governed by a set of rules made by the Chief Justice of the High Court.

With reference to the said judgment it is contended on behalf of the State respondents that the High Court had framed draft rules qua appointment on the post of Personal Assistants and in the said draft rules, it has been recommended that the pay scale admissible to the post of Personal Assistants attached to the Hon''ble Judges be fixed at Rs. 5,500-9,000.

I am of the considered opinion that such draft rules cannot in any way dilute the Government order, which has fixed the salary admissible to the post of Personal Assistants attached to the Hon''ble Judges in the pay scale of Rs. 6,500-10,500, w.e.f. 1.1.1996 to which the petitioners are entitled. The recommendation of the High Court have yet not been accepted by the State Government.

Even otherwise the State Government itself has provided the pay scale of Rs. 6,500-10,500 to all the Personal Assistants w.e.f. 26th June, 2007 and, therefore, the aforesaid plea has only been taken to be rejected.

Sri Rajeev Gupta, counsel for the High Court has informed the Court that in the year 2008 an advertisement was published for appointment on the post of Personal Assistant in the establishment of High Court in the pay scale of Rs. 6,500-10,500 and the selected candidates have been offered appointment in the pay scale of Rs. 6,500-10,500.

In view of the aforesaid, writ petition is allowed. A mandamus is issued directing the respondents to re-fix the salary of the petitioners and other similarly situate Personal Assistants attached to the Hon''ble Judges in the pay scale of Rs. 6,500-10,500 from the date of their appointment within one month from the date of production of a certified copy of this order before respondent No. 1. The arrears calculated on that basis may be paid to the petitioners within two months thereafter.