Allahabad High Court
Navneet Kulsheshthra & Others vs State Of U.P. & Others on 15 October, 2015
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved On: 29.09.2015
Delivered On: 15.10.2015
Case :- WRIT - A No. - 55186 of 2008
Petitioner :- Navneet Kulsheshthra & Others
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- Seemant Singh,Abdul Haseeb,Ram Kumar Varma,Shailendra,Siddharth Khare
Counsel for Respondent :- C.S.C.,Niraj Tiwari
Hon'ble Yashwant Varma,J.
The twenty-seven petitioners who are all Laboratory Technicians in the Uttar Pradesh Rural Institute of Medical Sciences And Research, Saifai1 have petitioned this Court seeking the following reliefs:
(a) Quashing of an advertisement dated 27 August 2006 to the extent it provided that the Laboratory Technicians would be appointed in a pay scale Rs. 4000-6000 in place of Rs.4500-7000;
(b) Quashing of the appointment letters issued to the petitioners to the extent that it provided for a pay scale of Rs.4000-6000 in place of Rs.4500-7000;
(c) Quashing of the resolution of the governing body of the Institute dated 28 June 2008 as well as the consequential order passed by the Director on 10 July 2008;
(d) To grant to the petitioner the pay scale of Rs. 4500-7000 with arrears of pay scale from the date of their initial appointment; and
(e) Grant of the new scale of Rs.5000-8000 being the scale of pay made effective from 28 July 2007 for Laboratory Technicians engaged in the Sanjay Gandhi Post Graduate Institute of Medical Sciences2.
For the purposes of consideration of the issues raised and canvassed before this Court the following undisputed facts may at first be noticed.
SGPGI came to be established in terms of the provisions of the Sanjay Gandhi Post Graduate Institute of Medical Sciences Act, 19833 with the object of it being established as a center of excellence for providing medical care, educational and research facilities in the field of medical sciences in the existing super specialties and such others as may emerge in the future. The objects and function of the SGPGI as set forth in the 1983 Act indicate that it was envisaged to function not just as a referral hospital but also as a super specialty center, a venue for experiment and research and also to provide for post graduate teaching, holding of examinations and conferment of degrees, diplomas and other academic distinctions. With an objective of providing medical facilities in rural areas the State decided to establish a satellite center of SGPGI at Safai. This satellite center was to work under the aegis and control of SGPGI. In 2005 the State formed an opinion that the effective functioning of the above satellite center at Safai was being hampered on account of the control of its affairs by SGPGI, which was locationed at Lucknow. It was also found that the objectives of the satellite center and SGPGI were different and accordingly it was thought fit that the satellite center be transposed into an independent and autonomous medical Institute. With the above objectives in mind the State Legislature passed the Uttar Pradesh Rural Institute of Medical Sciences And Research Safai Act, 2005 [Act No. 27 of 2005]4. It received the assent of the Governor on 14 December 2005. It would be relevant to refer to the Prefatory Note of the Act, which carries the Statement of Objects and Reasons and reads as under:
"Prefatory Note--Statement of Objects and Reasons--With a view to providing specialized medical facilities to the rural areas, which accounts for 80% of the population of the State, it had been decided to establish and develop a satellite center at Saifai under Section 3 of the Sanjay Gandhi Post Graduate Institute of Medical Sciences Act, 1983. Accordingly the satellite centre at saifai is being developed and established progressively. It is being experienced that the effective functioning of the above satellite centre is being hampered on account of being controlled and managed by Sanjay Gandhi Post-Graduate Institute of Medical Sciences from Lucknow, as the aims and objectives of the Sanjay Gandhi Post-Graduate Institute of Medical Sciences are different than its satellite centre at Safai, Etawah. It was also felt that the said satellite centre should be managed by authorities located at. Also, the concept and objectives of establishing a very specialized and modern medical Institutes at Safai has been to make available such facilities to the vast population of more than 2 crore of the rural areas of District Etawah and other adjoining districts. This objective can be achieved only when the present satellite centre may be converted into an independent and autonomous medical institute in the name of Rural Institute of Medical Sciences and Research, Safai, Etawah.
It has, therefore, been decided to make a law to provide for converting the present satellite centre into a Rural Institute of Medical Sciences and Research at Saifai to achieve the objective of offering specialized medical and health services to the rural population and free specialized medical and health services to persons living below the poverty line.
The Uttar Pradesh Rural Institute of Medical Sciences and Research Saifai Bill, 2005 is introduced accordingly."
Section 3 of the Act provided that the Institute shall stand established at Safai and be known as the Rural Institute of Medical Sciences and Research. It further provided that all the assets, liabilities and employees of the satellite center of SGPGI already functioning at Safai shall be deemed to be of the Institute. The Institute was to be given the status of a body corporate and was to be affiliated to a University in terms of the provisions of the U.P. State Universities Act 19735. The affairs of the Institute were to be administered by its authorities who found mention in Section 16 of the 2005 Act and amongst them the pivotal body was the Governing Body. Section 18 described the functions of the Governing Body inter alia to be:
"18. Functions of the Governing Body.--(1) Subject to the provisions of this Act, the Governing Body shall be responsible for the general superintendence, direction and control of the affairs of the Institute.
(2) Without prejudice to the provisions of sub-section (1), the Governing Body:-
(a) shall take steps for the implementation of the decisions of the Institute on questions of policy relating to the administration of the affairs and working of the Institute;
(b) ..... ........ ...... ..... ...... ..... ...... ...... ...... ...... ..... ..... .... ....
(c) shall hold and control the property and funds of the Institute;
(d) ..... ..... ..... ..... ...... ....... ........ ......... ........... ............ .............;
(e) ..... ..... ..... ..... ...... ....... ........ ......... ........... ............ .............;
(f) may create or abolish posts of teachers and other employees of the Institute;
(g) may manage and regulate the finances, accounts, investments, property, business and all other administrative affairs of the Institute and for that purpose appoint such agent as it may think fit;
(h) ..... ..... ..... ..... ...... ....... ........ ......... ........... ............ .............;
(i) ..... ..... ..... ..... ...... ....... ........ ......... ........... ............ .............;
(j) may regulate and determine all other maters concerning the Institute in accordance with this Act, and the rules and regulations made thereunder."
Section 22 dealt with the appointments of teachers and other employees in the following terms:
"22. Appointment of teachers and other employees.-- (1) Subject to the provisions of this Act, such number of Principals, Professors, Associate Professors, Assistant Professors and Group 'A' officers, as may be necessary, shall be appointed by the President, and such number of Group 'B' officers, as may be necessary, shall be appointed by the Director.
(2) Save as otherwise provided in sub-section (1) the officers, teachers and other employees of the Institute shall be appointed in such manner and with such designations and grades as may be laid down in the regulations.
(3) The officers, teachers and other employees of the Institute appointed under this Act shall be entitled to such salary and allowances and shall be governed by such conditions of service as may be laid down in the regulations."
Sections 23, 24 and 25 of the Act provided for the creation of funds, obligation of the State Government to effect payments to the Institute as may be required for the functioning and development of the Institute in accordance with appropriations made by law and the affirmation of a budget. The funds of the Institute were to be comprised of moneys provided by the State Government, fees and other charges, moneys received by way of grants, gifts, donations etc.
Section 39 conferred a regulation making power upon the Institute with the previous approval of the State Government. The relevant part thereof reads as follows:
"39. Power to make Regulations. --(1) Subject to the provisions of this Act and the rules made thereunder the Institute may, with the previous approval of the State Government, make regulations to provide for any matter which is to be or may be provided for by regulations and without prejudice to the generality of this power, such regulations may provide for--
(a) .... ..... ...... ....... ........ ......... .......... ........... ....;
(b) .... ..... ...... ....... ........ ......... .......... ........... .....;
(c) .... ..... ...... ....... ........ ......... .......... ........... ....;
(d) .... ..... ...... ....... ........ ......... .......... ........... ....;
(e) .... ..... ...... ....... ........ ......... .......... ........... ....;
(f) the tenure of office, salaries and allowances and other conditions of service or the officers, teachers and employees of the Institute;
(g) .... ..... ...... ....... ........ ......... .......... ........... ....;
(h) .... ..... ...... ....... ........ ......... .......... ........... ....;
(i) .... ..... ...... ....... ........ ......... .......... ........... ....;
(j) .... ..... ...... ....... ........ ......... .......... ........... ..;
(k) .... ..... ...... ....... ........ ......... .......... ........... ...;
(l) .... ..... ...... ....... ........ ......... .......... ........... .....;
(m) .... ..... ...... ....... ........ ......... .......... ........... ....;
(n) .... ..... ...... ....... ........ ......... .......... ........... .....;
(2) .... ..... ...... ....... ........ ......... .......... ........... ............ ............."
Consequent to the creation of the Institute by means of the aforesaid legislative enactment an advertisement came to be issued on 27 August 2006 for various posts comprising its faculty including the post of Laboratory Technician. This advertisement admittedly described the pay scale of Laboratory Technicians to be Rs. 4000-6000. It was pursuant to the aforesaid advertisement that all the petitioners applied and upon being selected came to be appointed in May and September 2007. After having accepted the appointment an issue with regard to disparity between the pay of the petitioners and other Laboratory Technicians who were already working in the Institute came to the surface. This issue arose on account of the fact that while the petitioners had been appointed in a pay scale of Rs.4000-6000, the existing Laboratory Technicians were drawing pay in the scale of Rs.4500-7000. Ultimately and upon this issue being raised before the authorities of the Institute the Finance Committee in its meeting held on 4 May 2008 took into consideration this anomaly and recommended that all Laboratory Technicians be placed in the scale of Rs. 4500-7000. It was further resolved that the step up in the scale of pay be made effective from the date the recommendation of the Finance Committee being approved by the Governing Body in its meeting held on 28 June 2008. Consequently an office order came to passed on 10 July 2008 informing all concerned of the revised pay scale which would be drawn by all Laboratory Technicians including the petitioners herein. It becomes relevant to note here that the decisions of the Finance Committee, Governing Body as also the Office Order dated 10 July 2008 clearly recorded in unambiguous terms that the step up in the pay scale would not have retrospective effect.
With effect from 28 October 2007, the scale of pay of Laboratory Technicians employed at SGPGI was raised to Rs. 5000-8000. The petitioners claim parity with the above Laboratory Technicians and it is in the above backdrop that they seek the second relief namely grant of pay in the scale of Rs. 5000-8000.
It is in the above backdrop of facts that the submissions advanced by the learned counsel fall for consideration. Learned senior counsel appearing on behalf of the petitioners contends that the petitioners were wrongly denied the scale of Rs. 4500-7000. He submits that on the date when the advertisement came to be issued, Laboratory Technicians were already employed in the Institute and consequently no discrimination could have been practiced against the respondents. It is further submitted that the decision of the Finance Committee as approved by the Governing Body is also liable to be faulted with when and insofar as it restricted the grant of pay scale from the date of its decision. Referring to the provisions of the 2005 Act, Sri Khare submits that the parity of pay with employees of SGPGI was liable to be maintained and continued by the Institute. It is his submission that the Institute till date has framed no regulations and that consequently the scales of pay as admissible to employees of SGPGI are liable to be extended to the employees of the Institute.
Learned counsel appearing for the respondents refuting the above submissions asserted that the petitioners being fully aware of the scale of pay which was being extended by the Institute to Laboratory Technicians chose to apply for the same. He contends that the petitioners having applied for the said post of their own volition cannot now turn around and challenge the pay scale granted by the Institute. He further submits that the decision of the Finance Committee and the Governing Body of the Institute quite far from being described as arbitrary should have been accepted by the petitioners as having granted parity of pay to them. He submits that the decision of the Governing Body was made in order to rectify the anomaly, which existed in the Institute as a consequence of which Laboratory Technicians already in service were drawing a scale of pay higher than that of the petitioners.
Learned counsel for the respondent, in the opinion of this Court is not incorrect in his submission that the petitioners participated in the selection process and sought appointment on the post in question being fully aware of the scale of pay being offered to them. This Court therefore holds that after having participated in the selection process and having sought appointment on terms mentioned in the advertisement it is clearly not open to them now to challenge the advertisement or assail the terms and conditions thereof. However the contentions advanced on behalf of the petitioners may even otherwise be tested on merits.
This Court finds as one reads the Statement of Objects and Reasons for promulgation of the 2005 Act that the satellite center of SGPGI was sought to be accorded the status of an independent and autonomous medical Institute. The 2005 Act, therefore, operated as a statutory excision of the satellite center from the SGPGI and accorded independent status to the Institute. The 2005 Act in a sense severed/cut the umbilical cord which prior thereto connected the satellite center to SGPGI and transposed it into the Institute, which stands and exists today. By virtue of Section 3 the Institute was conferred the status of a body corporate and all assets, liabilities and employees of the satellite center existing on the date of promulgation of the 2005 Act stood transferred and vested in the Institute. Consequently all affairs of the Institute were entrusted to the authorities enumerated in Section 16, the Governing Body becoming the primary statutory authority charged with the administration and management of the Institute. The provisions of Sections 17 and 18 of the Act further buttress the conclusion of this Court that SGPGI from the date of promulgation of 2005 Act ceased to have control or oversight in respect of the affairs of the Institute.
Fundamentally, therefore, this Court finds no justification in the plea of the petitioners that they are entitled to a scale of pay similar or equivalent to the staff of SGPGI. The petitioners admittedly were never the employees of the satellite center. They came on board only upon creation of the Institute under the 2005 Act.
More importantly and which fact must be noted, the Institute was to function and carry on its affairs from out of funds which were placed at its disposal in terms of Section 24. The payments to the Institute were provided to be those which the State Government may after appropriation made by law pay to it in each financial year in terms of Section 23. It was based upon the above funds placed in the hands of the Institute that a budget was to be prepared by it to meet its expenditure. These provisions also do not indicate any brooding omnipresence or subservience of the Institute to SGPGI. SGPGI, as noted above, was a super specialty facility while the Institute was to function as a multi-specialty medical institute. Obviously, the funds and means available with SGPGI cannot be compared with the budget, which was available in the hands of the Institute. It, therefore, follows that the Institute could not have been compelled to provision for scales of pay equivalent to those provided by SGPGI. This is, of course, subject to what this Court has found above namely, the absence of any legal right inhering in the petitioners to claim a scale of pay equivalent to that provided by SGPGI.
As was submitted by the learned counsel appearing for the respondents, all the petitioners applied for selection as Laboratory Technicians pursuant to an advertisement, which clearly showed the scale of pay to be Rs. 4000-6000. It was only post-entry in service that an objection was raised by the petitioners with respect to the difference in pay scale being accorded to them and drawn by the erstwhile employees whose services stood taken over on the date of promulgation of the 2005 Act. This Court finds no legal infirmity in the decision of either the Finance Committee or the Governing Body when it prescribed an equivalent pay scale to all Laboratory Technicians. In fact, the decision as noticed above was taken not as a step towards rectification but as a remedy for removal of an anomaly. Obviously, on the date of promulgation of the 2005 Act, there were employees including Laboratory Technicians in the satellite center who were drawing scales of pay equivalent to those drawn by employees of the SGPGI. This obviously because the satellite center was merely in the nature of an outpost of SGPGI. The employer of the satellite center and SGPGI was common. So were the rules and regulations governing the terms and conditions of service. It was for the aforesaid reason that the employees of the satellite center were drawing a scale of pay equivalent to those working in SGPGI. Obviously, consequent to the promulgation of the 2005 Act, the scales of pay of the existing employees could not have been downgraded. This was obviously the only logical circumstance for the preservation of the pay scale of the employees of the satellite center whose services stood transferred and vested in the Institute on 14 December 2005 which was the date of commencement of the 2005 Act.
This takes us then to the last submission advanced by the learned counsel for the petitioners namely, that in the absence of any regulation being framed, the teachers and other employees of the Institute were entitled to the same scales of pay as were being drawn by employees of SGPGI. This Court finds no merit in this submission either. As one reads Section 18 which enumerates the functions of the Governing Body, it is apparent that it was this authority which held control over the property and funds of the Institute and was conferred the power to create or abolish posts of teachers and other employees, manage and regulate finances and oversee all other affairs of the Institute. Section 18 when enumerating the functions of the Governing Body does not mandate the exercise of power by that body only by regulations. The residuary clause in sub section (2) of Section 18 confers a power on the Governing Body to regulate and determine all matters concerning the Institute in accordance with the Act, the rules and the regulations made thereunder. This, however, does not lead one to a conclusion that the terms and conditions of service could not have been regulated or laid down by the Governing Body except by way of framing of regulations. This Court cannot loose sight of the fact that the statutory enactment in question created a new, independent and autonomous body corporate. Regulations were to be framed by the Institute in respect of the tenure of office, salaries, allowances and other conditions of service of officers, teachers and employees of the Institute with the previous approval of the State Government. Obviously, therefore, there had to necessarily be a time gap between the Institute coming into being and the framing of regulations with the previous approval of the State Government. In this interregnum the affairs of the institute were liable to be administered and managed by the Governing Body. If the argument of the learned Senior Counsel were to be accepted, it would mean that in between this period of the promulgation of the 2005 Act and the framing of the regulations with the previous approval of the State Government, there would be a complete vacuum. The acceptance of the submission would envisage a period where while the Institute had come into being, it would remain a body existing only on paper powerless to act till regulations were framed. This Court is unable to therefore subscribe to the submission as advanced and the same is consequently negatived.
The 2005 Act gave birth to a new entity, a separate body corporate which was no longer to function under the brooding shadow of SGPGI. The payment of additional emoluments to certain Laboratory Technicians was an inevitability consequent to the Institute taking over employees whose terms and conditions of service were equated to those of SGPGI. The 2005 Act made no provision in terms of which the employees and staff were to be accorded pay scales equivalent to those drawn by the staff at SGPGI. The claim of the petitioners is therefore not liable to be countenanced.
Accordingly and for the reasons noted above, this Court finds no merit in the present petition, which is consequently dismissed.
Order Date :- 15.10.2015
Arun K. Singh
(Yashwant Varma, J.)
