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Judgment
Heard Shri P.K. Srivastava and Shri R.K. Srivastava, learned counsel appearing on behalf of the petitioners.
None has appeared on behalf of the U.P. Power Corporation Ltd.
We have proceeded to decide the present writ petition with the assistance of learned counsel for the petitioner as well as the learned Standing Counsel.
Since, common question of facts and law are involved in both the writ petitions, hence they are decided by the common judgment.
The question involved in the present writ petition is that whether while joining in Class II services on the post of Assistant Engineer, respondents have got right to discriminate for payment of time scale treating the promotees and direct recruits differently.
The brief facts of the present case are as under:
Petitioners were appointed as Junior Engineer in the Subordinate Electrical and Mechanical Engineering Services, State of U.P. between 1959 to 1965. Subsequently, they were promoted on the post of Assistant Engineer against the promotees'' quota between 19731977 on various dates. Thereafter, petitioners'' services were merged with the U.P. State Electricity Board (in short hereinafter referred as the ''Board''). A circular dated 31.12.1981 was issued by the Board providing that after completion of 9 years and 5 years of services as Assistant Engineer or Assistant Executive Engineer, an officer if found fit shall be entitled for higher pay scale.
The submission of the learned counsel for the petitioner is that all the Assistant Engineers whether they are promotees or direct recruit were entitled for promotional pay scale in pursuance to those circular after completion of satisfactory service of 9 years and 5 years. However, the controversy arises at later stage in view of Board''s circular dated 19.6.1989 which provides that the payment of higher pay scale after rendering 19 years of services shall be available only to direct recruits. Feeling aggrieved with the alleged discrimination classifying the revised pay scale between promotees and direct recruits petitioners have approached this Court under Article 226 of the Constitution of India. Relevant impugned provision as indicated in the circular dated 19.6.1989 as contained in Annexure3 to the writ petition is reproduced as under:
From the aforesaid provision it is evident that a decision was taken for grant of higher pay scale to the Assistant Engineer joined as direct recruit after rendering satisfactory services of 19 years.
The submission of the learned counsel for the petitioner is that the Board has got no right to discriminate the payment of time scale among the promotees and direct recruits. Once an incumbent joined on the next higher post may be as direct recruit or promotees shall be entitled for same pay scale and perks without any discrimination.
The learned counsel for the petitioner further submitted that according to Regulation 3 of the U.P. State Electricity Board Service of Engineers (Integration and Seniority) Regulations, 1976 (in short hereinafter referred as ''Regulation'') the Engineers of various cadres have been merged and integrated into one cadre of Electrical and Mechanical Engineers called the U.P. State Electricity Board (electrical and mechanical) Engineers service. According to Regulation 3(e) the promotees of the Electrical and Mechanical branch, including Executive and Superintending Engineers promoted from among such promotees shall belong to same cadre.
For convenience Regulation 3 of the Regulation is reproduced as under:
�Integration of Engineers from Different Sources 3(e): Promotees of the Electrical and Mechanical branch, including Executive and Superintending Engineers promoted from among such promotees.�
In view of Regulation referred hereinabove it is evident that whether a person join the cadre of Assistant Engineer as promotee or direct recruit shall belong to same cadre without any differentiation. Accordingly, the submission of the learned counsel for the petitioner is that the impugned provision for payment of time scale after rendering 19 years of service is discriminatory hence violative of Article 14 of the Constitution of India. It has been submitted by petitioner''s counsel that equals cannot be treated as unequally. After joining in the cadre of Assistant Engineer may be as promotee, the petitioner as well as direct recruit stand at same footing and there can not be any discrimination in payment of time scale.
We have considered the arguments advanced by the learned counsel for the parties. Undisputedly, after joining the cadre of Assistant Engineer whether promotees or direct recruit they shall be the member of the same cadre without any discrimination. Payment of salary or time pay scale corelate with the right available by Article 21 of the Constitution of India. Since the promotees and direct recruit discharges same duties and there is only one cadre i.e. cadre of Assistant Engineer discrimination on the ground of source of recruitment i.e. direct recruit or promotees for payment of time pay scale seems to be not permissible and hit by Article 14 & Article 21 of the Constitution of India.
Since, none appeared on behalf of U.P. Power Corporation Ltd. we have gone through the averments made in the counter affidavit filed by the U.P. Power Corporation. The only defence taken in para 6, 7, 8 and 9 of the counter affidavit is that since policy decision was taken to provide benefit of time pay scale only to direct recruit and petitioner constitute different class being promotee no such benefit should be given to the petitioner and impugned circular does not suffer from any illegality or impropriety and petitioners being promotee officers cannot be equated with directly recruited officers. The promotional avenues are directly proportional to the availability of posts and organizational requirements.
The defence setup by U.P. Power Corporation Ltd. seems to be not sustainable. Here the question is not relating to source of recruitment or promotional quota. The question is once an incumbent joins a cadre, whether the respondents have right to discriminate in the matter of salary and perks keeping in view the source of recruitment. Whether it is a promotee or a direct recruit once they are appointed in a cadre, in the present case the cadre of Assistant Engineer they shall be treated equally at par with each other without any discrimination. From the counter affidavit filed by the respondents and pleading on record it is evident that so far as the payment of time pay scale to the promotees and direct recruits after rendering the service of 19 years are concerned they should be treated equally without any discrimination. Once payment of time pay scale has been provided to the promotees and direct recruit after rendering 9 years and 5 years of service then as a natural consequence the decision taken by the opposite parties to provide benefit of time pay scale after rendering 19 years of satisfactory service only to direct recruit is discriminatory, hence violative of Article 14 of the Constitution of India.
Petitioner''s counsel has relied upon the cases reported in (1999) 4 SCC 756, Kamlakar and Others v. Union of India and Others and (2007) 6 SCC 9, Nehru Yuva Kendra Sangathan v. Rajesh Mohan Shukla and Others.
In the case of Kamlakar (supra) Hon''ble Supreme Court proceeded to held as under:
�12. We have considered the limited issue. We are of the view that all these appellants should get the same relief as the appellants in the Civil appeal which arose out of Special leave Petition No.16646 of 1995. Once they were all in one cadre, the distinction between direct recruits and promotees disappears at any rate so far as equal treatment in the same cadre for payment of the pay scale given in concerned. The birthmarks have no relevance in this connection. If any distinction is made on the question of their right to the post of Data Processing Assistants they were holding and to its scalewhich were matters common to all of them before the impugned order of the Government of India was passed on 2.7.1990, then any distinction between Data Processing Assistants who were direct recruits and those who were promotees, is not permissible. We, therefore, reject the respondents'' contention. We have examined the record and the common points arising in this case and those in Civil appeal which arose out of Special Leave Petition No.16646 of 1995 and we are unable to find any lawful distinction between the appellants and those in the other appeal which has been allowed.�
In the case of Nehru Yuva Kendra Sangathan (supra), Hon''ble Supreme Court had held as under:
�9���We find that the nature of duties being discharged by the Youth Coordinators who have come on deputation and have been absorbed as such and those who were directly recruited on fixed terms are discharging the same duties. The only difference is their source of recruitment. Once the deputationists are discharging the same duties and are being paid salary and other allowances then there is no reason to deny the same benefits (sic to those), who are discharging the same duties and functions. Those deputationists now absorbed obtained the order from this Court but the direct recruits did not approach this Court, they were treated as a class apart because of their source of recruitment. Once these persons are already working for more than two decades discharging the same functions and duties then we see no reason why the same benefit should not be given to the respondents. Looking to the nature and duties of these respondents were are of opinion that there is no reason to treat them differently���������..Therefore, there is no reason not to grant them the same scale of pay and as such this Court at the time of admission has confined the relief that why it should not be granted from the date of the filing of the writ petition in the High Court. Accordingly, we dispose of these Civil appeals with a direction that the same benefits as were being given to the Youth Coordinators who were initially on deputation and were absorbed, should be given to the respondents from the date of filing of the writ petition in the High Court of Allahabad.�
The judgment of Hon''ble Apex Court relied upon by the petitioner''s counsel squarely covers the present controversy.
In view of above it is not the source of recruitment plays role in fixation of salary, perks and other service benefits but it is the service condition of the cadre concern plays role in fixation of salary perks and revised scale. Once an incumbent joins a cadre whether as promotee or as direct recruit, the persons from both the categories shall be entitled for same salary, perks and other benefits.
There is one other aspect of the matter. It has not been disputed by the parties'' counsel that a person holding the post of Assistant Engineer whether joins the cadre by promotion or direct recruit discharges same duties without any difference. Whether it is promotees or direct recruit after joining the cadre of Assistant Engineering functions with equal rights, duties and liabilities without any difference. Accordingly any classification made for the payment of time pay scale to the Assistant Engineers as has been done by the impugned circular so far as it deprives the promotees from time pay scale after 19 years of service is unreasonable, unjust and improper and is violative of Article 14 of the Constitution of India.
The object of Article 14 is wider and is to ensure fairness and equality of treatment. Extending a benefit to one class of an establishment and denying to the other class enumerated in the same provision shall be an incident of arbitrary and bad law vide; 1974 (4) SCC 3, E.P. Royappa v. State of Tamilnadu & anOthers, 1978 (1) SCC 248, Mrs. Menaka Gandhi v. Union of India; Indian Express Newspapers (P) Ltd. v. Union of India, (1995) Supp. (4) SCC 758 (Para 13 to 15 and 20). Wherever there is denial of equality, such action shall be arbitrary and Article 14 of the Constitution of India strikes at arbitrariness of State action in any form. The classification made by the State authorities whether by legislative enactment or executive action may be tested at touchstone of Article 14 of the Constitution of India being arbitrary or discriminatory vide; (1981) 1 SCC 722, Ajay Hasia v. Khalid Mujib Sehravardi (para 16 and 19); AIR 1979 SC 1628, Ramana Dayaram Shetty v. I.A.A.I (para 10 and 21); AIR 1991 SC 101, Delhi Transport Corporation v. D.T.C. Mazdoor Congress (para 199, 244, 251, 262, 264, 267).
In view of above settled proposition of law since promotees and direct recruit after joining the cadre of Assistant Engineer becomes member of one cadre they are entitled for equal treatment. Any classification on the basis of source of recruitment shall not only be arbitrary but shall be discriminatory and hit by Article 14 of the Constitution of India. Needless to say that every State action whether it is quasi judicial or administrative is amenable to writ jurisdiction, AIR 1970 SC 150, A.K. Kraipak and Others v. Union of India and Others. The guarantee of equal protection applies against the substantive law as well as procedural law. Nonarbitrariness is a necessary concomitant of the rule of law vide; (1999) 7 SCC 89, Style (Dress Land) v. Union Territory, Chandigarh and A.P. Aggarwal v. Govt. of NCT of Delhi, (2000) 1 SCC 600.
Relevant portion from the judgment of Style (Dress Land) (supra) is reproduced as under:
�12. This Court in Shrilekha Vidyarthi (Kumari) v. State of U.P. held that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 and basic to the rules of law, the system which governs us, arbitrariness being the negation of the rule of law. Nonarbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary in whatever sphere must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all powers must be for public good instead of being an abuse of power. Action of renewability should be gauged not on the nature of function but public nature of the body exercising that function and such action shall be open to judicial review even if it pertains to the contractual field. The State action which is not informed by reason cannot be protected as it would be easy for the citizens to question such an action as being arbitrary.�
In the case of Ramana Dayaram Shetty (supra) Hon''ble Supreme Court held that Government is not free like a private individual in selecting the recipients for its largesse. Meaning thereby while deciding the question relating to the payment of revised pay scale from the fund of exchequer whether it is State Government or its instrumentalities have to impart equal treatment to its employees as well as other persons. Government cannot act in a discriminatory manner to quote from Ramana Dayaram Shetty (supra):
�We agree with the observations of Mathew, J., in V.Punnen Thomas v. State of Kerala that:
''The Government is not and should not be as free as an individual in selecting the recipients for its largesse. Whatever its activity, the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal.�
The same proposition of law has been reiterated by the Hon''ble Supreme Court in Erusian Equipment and Chemical Ltd. v. State of W.B., reported in AIR 1975 SC 266.
In view of above, the writ petition descrives to be allowed.
The impugned provision contained in Para Kha (1) of the Circular dated 19.6.1989 as contained in Annexure 3 to the writ petition so far as it deprive the promotees from payment of time pay scale after rendering 19 years of satisfactory services is hereby struck down. The opposite parties are commanded to provide the same benefit, which is being given to direct recruit after rendering 19 years of satisfactory service for payment of time pay scale forthwith. Since petitioner have retired from service, the opposite parties are directed to revise the petitioner''s pay scale for the purpose of pensionary, and other consequential benefits expeditiously, say within three months from the date of receipt of certified copy of this judgment.
Both the writ petitions are allowed accordingly. No order as to costs.