Suresh Chandra Kavidayal & Others vs State & Others

Lok Pal Singh, J

Petitioners have approached this Court, seeking the following reliefs:-

(i) Issue a writ order or direction in the nature of certiorari to quash the order dated 23.05.2018 passed by the respondent no. 1, Secretary, Cane Development & Sugar Industries, Uttarakhand Sashan, Dehradun (Annexure No. 6-B).

(ii) Issue a writ order or direction in the nature of mandamus commanding and directing the respondent authorities to merge the services rendered by the petitioners as Ganna Gram Sewak with the services rendered by the petitioners after their redesignation as Cane Supervisor (the said merger of services with earlier service benefits has already been allowed by G.O. dated 21.02.1977 but revoked by G.O. dated 23.05.2018) for providing the restructured pay scale and pensionary benefits.

Brief facts, of the case, are that petitioner nos. 1 to 5 and husband of petitioner no. 6 were appointed on the post of Ganna Gram Sewak in Cane Department in between the year 1976-1977 at the pay scale of Rs.175 -250. Subsequent thereto, on 21.02.1977, State of Uttar Pradesh had issued a Government Order whereby provision of merging the services of the Ganna Gram Sewak in the post of Cane Supervisor was made. Thereafter, on 10.06.2004, Cane & Sugar Commissioner, Kashipur, Udham Singh Nagar wrote a letter to the Secretary, Cane Development & Sugar Industry Uttaranachal Sashan (now Uttarakhand) for adjusting the post of the petitioners i.e. Ganna Gram Sewak with the post of the Cane Supervisor. The Secretary, Government of Uttaranchal in its letter dated 31.07.2004 observed that as the post of Ganna Gram Sewak has been abolished and post of Ganna Gram Sewak has been converted into Cane Supervisor therefore, it is necessary that employees who are working on the post of Ganna Gram Sewak, their services shall be merged on the post of Cane Supervisor and they shall be adjusted against the vacant post of Cane Supervisor. Pursuant to G.O. dated 31.07.2004, services of the petitioners as Ganna Gram Sewak were adjusted on the post of the Cane Supervisor. Thereafter, petitioners referred various representations before the authorities for giving the benefits of the earlier services rendered by them as Ganna Gram Sewak but of no veil. The Cane & Sugar Commissioner, Kashipur referred various recommendations to the Secretary Cane Development & Sugar Industries, Uttarakhand Sashan for considering the claim of the petitioners but same remained pending consideration, ultimately, without having considering the recommendations of the Cane & Sugar Commissioner, the Joint Secretary, State of Uttarakhand passed the order dated 23.05.2018 rejecting the claim of the petitioners, stating that there is no provision to count services of non-government for services related benefits in government services, and further it is observed that in view of notification no. 193/XXXVI(3)/2018/17(1)/2018 dated 13.04.2018, there is no justification to include the services of retired Ganna Gram Sewaks (petitioners) who worked under Contributory Scheme.

Feeling aggrieved, petitioners approached this Court.

In the counter affidavit, filed on behalf of respondent no.2, it is stated that vide G.O. No. 5651 dated 21.02.1997, issued by the erstwhile State of Uttar Pradesh, 114 Society Paid Ganna Gram Sewak were adjusted on the post of Cane Supervisor and their earlier services will be counted for the purposes of gratuity and pensionary benefits. It is stated that petitioners were working as contributory Ganna Gram Sewak in the erstwhile State of Uttar Prades and after creation of State of Uttarakhand, in pursuance of the Government Order dated 31.07.2004, then Joint Cane & Sugar Commissioner, Uttarakhand vide Order No. 1437 dated 18.08.2004 adjusted the services of the petitioners on the post of Cane Supervisor (government post) in the pay scale of Rs. 3200-85-4900. Thereafter, vide Government Order No. 274 dated 23.05.2018, it was directed that there is no justification for counting the earlier services rendered by the petitioners on the post of Contributory Ganna Gram Sewak, and, accordingly the service benefits are not admissible to the petitioners. It is further contended that engagement of the petitioners was totally different with the other employees and they cannot be equated with them.

In paragraph no. 8 of the counter affidavit it is submitted that the State of Uttar Pradesh adjusted only those Ganna Gram Sewak on the post of Government Cane Supervisor, who were getting salary from the Society, the said Government Cane Supervisor approached to this Court by way of filing Writ Petition No. 3262 of 2001 (S/S) Aryaveer & ors. vs. State of Uttarakhand & ors., for calculating their earlier services and grant of service benefits. This Court vide order dated 4.10.2004 directed the respondents for calculating the services rendered by those petitioners on the post of Society Paid Ganna Gram Sewak. In another Writ Petition No. 185 of 2003 (S/S), Ravindra Prasad Sharma & ors., vs. State of Uttarakhand & ors., decided on 17.05.2006, it was directed that petitioners have been paid the service benefits by calculating their earlier services as Ganna Gram Sewak.

It is contended that as the entry of the petitioners in the department was totally different, as they had worked as Contributory Ganna Gram Sewak under the Contributory Scheme, therefore they cannot claim parity with the petitioners of aforesaid writ petitions.

Petitioners filed their rejoinder affidavit, refuting the averments made in the counter affidavit.

Heard learned counsel for the parties and perused the entire material available on record.

Perusal of the record would show that initially petitioner nos. 1 to 5 and husband of petitioner no. 6 were working as a seasonal clerk, thereafter, they were appointed as Ganna Gram Sewak. Subsequent thereto, their services were merged as Cane Supervisor in the Department in pursuance of the G.O. dated 31.07.2004, as the post of Ganna Gram Sewak was abolished at that point of time. Further, various recommendations have been sent by the Cane & Sugar Commissioner, Kashipur to the Secretary, Cane Development & Sugar Industries, Uttarakhand Sashan for considering the claim of the petitioners, giving them benefits of the services which were rendered by them as Ganna Gram Sewak for the purpose of calculating the benefits of the pension and gratuity. The Co-ordinate Bench of this Court, in the writ petitions mentioned above, also issued directions to the respondents to give benefits of the earlier services to the petitioners, rendered by them as Ganna Gram Sewak, who were subsequently adjusted on the post of Cane Supervisor.

Respondents are trying to distinguish the case of the petitioners that of the petitioners of aforesaid writ petitions, as present petitioners were working under contributory scheme (i.e. 50% salary was paid by the society and further 50% salary was paid by the Cane Development Council), however, their services were already adjusted on the post of Cane Supervisor. It is the case of the State that petitioner nos. 1 to 5 and husband of petitioner no. 6 were working on the post of Ganna Gram Sewak under contributory scheme therefore their earlier services rendered as Ganna Gram Sewak under Contributory Scheme for the grant of benefit of gratuity and pension is not admissible. But, the State cannot discriminate with the employees working under it, as the similarly situated persons have been granted benefit of their earlier services after merging/adjustment on the post of Cane Supervisor. I do not find any justification in not giving the same benefits to the petitioners, as already granted to similarly situated persons.

Learned Counsel for the State has placed reliance upon the judgment of Hon'ble Apex Court in the case of Kerala Assistant Prosecuting Officer Association vs. State of Kerala report in (2018) 7SCC 314 and would submit that induction of the present petitioners and those Ganna Gram Sewak who were appointed on the post of Cane Supervisor is entirely different, therefore, petitioner cannot claim parity with them.

The ratio of the judgment Kerala Assistant Prosecuting Officer Association (supra) cited by the learned counsel for the State is not applicable in the facts and circumstances of the case. It is admitted case of the respondents that they have paid 50% salary to the petitioners when they were working on the post of Ganna Gram Sewak, thus, it can safely be presumed that the petitioners were in employment of the respondents when they were working as Ganna Gram Sewak. Subsequently, their services have been merged as Cane Supervisor, thus, the respondents cannot deprived the petitioners from the parity with those Ganna Gram Sewak who have been granted benefits.

A perusal of the record would reveal that services of the similarly situated other Ganna Gram Sewak has been merged as Cane Supervisor and they have been paid service benefits for the entire period while the petitioners have been denied similar treatment. The doctrine of equality is the sole of our Constitution. The Hon'ble Apex Court in the case of Ashutosh Gupta vs. State of Rajasthan reported in (2002) 4 SCC 34 has held that the doctrine of equality before law is a necessary corollary to concept of rule of law accepted by the Constitution. The relevant paragraph is extracted hereunder:-

"5. Article 14 of the Constitution secures equal protection to government servants and Article 16 is a particular application of general guarantee provided in Article 14. The doctrine of equality before law is a necessary corollary to concept of rule of law accepted by the Constitution. It is well settled principle that if a person complains of unequal treatment, the burden squarely lies on that person to place before the court sufficient materials from which it can be inferred that there is unequal treatment. Where, however, the necessary materials have not been placed to show how there has been an unequal treatment, the plea of provisions being violative of Article 14 cannot be entertained. We record this conclusion of ours, as in course of hearing of this matter. Mr. Jain, learned counsel appearing for the appellant, had often repeated that the provision of the Emergency Recruitment Rules has permitted even a beetle shop owner with the minimum income as indicated therein to appear and compete at the test and on being selected, the period for which he had been earning the aforesaid amount could be taken into account for the purpose of seniority in the cadre even though there has been no nexus between that period and the service to which he has been recruited. Apart from making such submission on a hypothetical basis, no material has been produced to indicate if anyone of the persons recruited under the Emergency Recruitment Rules has reaped any undue advantage in respect of his past experience by adoption of the formula in the Emergency Recruitment Rules for the purpose of allotting year of allotment as 1976-N-1 + half of N-2. In the absence of an iota of material on this aspect, we are not required to examine the correctness of the said submission of Mr. Jain, on an assumption that the provisions of the Recruitment Rules might have enabled the professionals on being recruited to count their past experience for reckoning their seniority in the cadre of administrative service even though the said experience might not have any correlation with the administrative service. Even otherwise, the entire experience of such recruits could not have been totally wiped off and therefore the rule making authority while making the rules for recruitment on emergency basis did make the provisions contained in Rule 25 which is also in para materia with similar provisions available elsewhere including the one which was meant for emergency recruitment to the Indian Administrative Service. Where the challenge is made to a statutory provision being discriminatory, allegations in writ petition must be specific, clear and unambiguous. There must be proper pleadings and averments in the substantive petition before the question of denial of equal protection of infringement of fundamental right can be decided. There is always a presumption in favour of the constitutionality of enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The presumption of constitutionality stems from the wide power of classification which the legislature must, of necessity possess in making laws operating differently as regards different groups of persons in order to give effect to policies. It must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience. The claim of equal protection under Article 14, therefore, is examined with the aforesaid presumption that the State Acts are reasonable and justified. If we examine the challenge to the impugned provision from the aforesaid standpoint, we have no hesitation to hold that the appellants have utterly failed to establish any material from which grievances about the discrimination alleged can be said to have been made.

In view of the above, having considered the settled principle of law, the respondents being the State, cannot deny similar treatment to the petitioners as given to the similarly situated persons. Thus, the writ petition succeeds and is allowed. Impugned order dated 23.05.2018 is hereby quashed. Respondents are directed to adjust the period of services rendered by the petitioners on the post of Ganna Gram Sewak for fixation of their salary and other benefits.

No order as to costs.