State Of U.P. And 3 Others vs Fateh Bahadur Singh And 6 Others
2017 Latest Caselaw 3115 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 10                                                            A.F.R.
 

 
Case :- SPECIAL APPEAL No. - 1116 of 2013
 

 
Appellant :- State Of U.P. And 3 Others
 
Respondent :- Fateh Bahadur Singh And 6 Others
 
Counsel for Appellant :- Standing Counsel
 
Counsel for Respondent :- H.Singh,Ashok Khare,Gautam Baghel
 
						with
 
Case :- SPECIAL APPEAL No. - 626 of 2014
 

 
Appellant :- State Of U.P. Thru' Secy. And 4 Others
 
Respondent :- Mahendfa Pal Singh And 6 Others
 
Counsel for Appellant :- Waseem Alam,S.C.
 
Counsel for Respondent :- Gautam Baghel
 

 
Hon'ble Arun Tandon,J.

Hon'ble Krishna Singh,J.

We have heard Sri Vivek Shadilya, Additional Chief Standing Counsel on behalf of the State and Sri Gajendra Pratap Singh, Advocate assisted by Sri Gautam Baghel, Advocate on behalf of respondent Nos.1 to 7 in the present appeal.

This Intra-Court Appeal has been filed by the State of Uttar Pradesh against the judgment and order of the learned Single Judge dated 25.04.2013 passed in writ petition No.53510 of 2008.

Facts in short relevant for deciding the present appeal are as under:-

Writ petitioners-respondents before this Court were appointed as Collection Amin in the Revenue Department of State of Uttar Pradesh. The petitioners were admittedly sent on deputation for working as Collection Amin in the Trade Tax Department of the State of U.P.

The exact date on which each of the petitioner was sent on deputation has specifically been taken note of in the order of the learned Single Judge and it is between December, 1976 to August 1991. While the petitioners were still on deputation in Trade Tax Department of the State of Uttar Pradesh. The State Government in exercise of powers under Article 309 of the Constitution of India framed U.P. Trade Tax Collection Amin Service Rules, 1995 (hereinafter referred to as 'the Rules 1995').

Rules 18(1) of the Rules, 1995 provided for absorption of the Collection Amin, who were substantively appointed under the U.P. Collection Amin Service Rules, 1974 and were on deputation in Trade Tax Department.

This Rule 18 was amended as U.P. Trade Tax Collection Amins Service (Second Amendment) Rules, 2007 (hereinafter referred to as 'the Rules 2007') and the cut off date mentioned in Rule 18(1) in respect of date of appointment under the Collection Amin Rules, 1974 was deleted. Therefore, irrespective of the date of appointment under the U.P. Collection Amin Service Rules, 1974, all such Collection Amins on deputation in the Trade Tax Department were absorbed.

After all this has taken place the petitioners approach the Hon'ble High Court by means of writ petition No.53510 of 2008 raising a grievance that they should be provided a pay scale of Rs.5500-9000/- after completing 14 years of service and by means of amendment application they prayed for quashing of the order dated 21st June, 2007 passed by the Joint Commissioner, Trade Tax Department, Allahabad whereby the representation made by the petitioners for the same relief had been rejected.

The learned Single Judge under the order impugned after noticing the provision of 1995, Rules and the amendment made in the year, 2007 has returned a finding that the petitioners were absorbed in Trade Tax Department under notification dated 20th June, 2007 and, therefore, having regard to the Provisions of Fundamental Rules 22 of U.P. Fundamental Rules, 1973 they are entitled to the same salary since revised from time to time in respect of Collection Amins working in the Revenue Department.

It has been then recorded that since revision in the pay scale was affected under Government Order dated 3rd June, 1989 and dated 3rd December, 1994, the petitioners would be entitled to the benefits of such revision both in the matter of grant of selection grade as well as promotional pay scale.

The learned Single Judge has thereafter gone on hold that even otherwise on the principle of equal pay for equal work, the petitioners were entitled to the same pay scale as selection grade and promotional pay scale as has been made available to the Collection Amins of the Revenue Department.

The State not being satisfied with the judgment and order of the learned Single Judge has approached this Court by means of this intra-Court appeal.

In order to appreciate the controversy raised by means of the present appeal, it would be worthwhile to reproduce Rule 18 of the 1995 Rules which reads as follows:-

"(18) Absorption in the Service - (1) Subject to the provisions of sub-rule (2) a Collection Amin substantively appointed on or after the first day of January, 1975 under the Uttar Pradesh Collection Amin's Service Rules 1974 and working as such in the Uttar Praddesh Trade Tax Department on the date of the commencement of these rules shall on such commencement stand absorbed in the service and be deemed to have been substantively appointment under these rules and his service in the Revenue Department shall with from such date, cease.

(2) A Collection Amin entitled to be absorbed under sub-rule (1) who does not wish to be so absorbed shall within three months from the date of the commencement of these rules intimate in writing to the appointing authority that he does not wish to be absorbed in the service and he shall there upon be reverted to the Revenue Department and the provisions of sub-rule (1) shall not apply in his case.

(3) A person absorbed in the service under sub-rule (1) shall not intail for future of his past service and the provisions of any rules regulations or orders to the contrary shall stand relaxed".

We may also reproduce the amendment in Rule 18(1) vide notification dated 20th June, 2007 which reads as under:-

mRrj izns'k ljdkj

laLFkkxr foRr dj ,oa fucU/ku vuqHkkx&3

la[;k&d0fu0&3&[email protected]&07&4 ¼101½&95

y[kuÅ %% fnukad %% 20 twu] 2007

vf/klwpuk

izdh.kZ

lafo/kku ds vuqPNsn 309 ds ijUrqd }kjk iznRr 'kfDr dk iz;ksx djds jkT;iky mRrj izns'k O;kikj dj laxzg vehu lsok fu;ekoyh] 1995 dks la'kksf/kr djus dh n`f"V ls fuEufyf[kr fu;ekoyh cukrs gSA

mRrj izns'k O;kikj dj laxzg lsok ¼f}rh; la'kks/ku½ fu;ekoyh 2007

1- ;g fu;ekoyh mRrj izns'k O;kikj dj laxzg vehu lsok ¼f}rh; la'kks/ku½ fu;ekoyh 2007 dgh tk;sxhA

2- ;g 29 ekpZ] 1995 ls izHkkoh gqbZ le>h tk;sxhA

mRrj izns'k O;kikj dj laxzg vehu lsok fu;ekoyh] 1995 esa fu;e 18 esa fn;s x;s fo|eku mifu;e ¼1½ ds LFkku ij LrEHk&2 esa fn;k x;k mifu;e j[k fn;k tk;sxk] vFkkZr %&

LrEHk&1 LrEHk&2

fo|eku mifu;e

,rn~}kjk izfrLFkkfir mifu;e

¼1½ mi&fu;e ¼2½ ds micU/kksa ds v/khu jgrs gq, mRrj izns'k laxzg vihu lsok fu;ekoyh ------------- ds v/khu igyh tuojh] 1975 dks ;k mlds I'pkr ekSfyd :i ls fu;qDr vkSj bl fu;ekoyh ds izkjEHk gksus ds fnukad dks mRrj izns'k O;kikj dj foHkkx esa bl :i esa dk;Zjr dksbZ laxzg vehu ,sls izkjEHk ds fnukad dks lsok esa lkesfyr gks x;k ekuk tk;sxk vkSj bl fu;ekoyh ds v/khu ekSfyd :i ls fu;qDr le>k tk;sxk vkSj jktLo foHkkx esa mldh lsok,sa ,sls fnukad ls ugh jg tk;sxhA

¼1½ mifu;e ¼2½ ds micU/kksa ds v/khu jgrs gq, mRrj izns'k laxzg vehu lsok fu;ekoyh 1974 ds v/khu ekSfyd :i ls fu;qDr vkSj bl fu;ekoyh ds izkjEHk gksus ds fnukad dks mRrj izns'k O;kikj dj foHkkx esa bl :i esa dk;Zjr dksbZ laxzg vehu ,sls izkjEHk ds fnukad dks lsok esa vkesfyr gks x;k ekuk tk;sxk vkSj bl fu;ekoyh ds v/khu ekSfyd :i ls fu;qDr gqvk le>k tk;sxk vkSj jktLo foHkkx esa mldh lsok;sa ugh jg tk;saxhA

LayXud %&

g0 viBuh;

¼uhrk pkS/kjh½

izeq[k lfpo

On a simple reading of the above, it is apparently clear that the absorption under the U.P. Trade Tax Collection Amin, Rules, 1995 was by operation of law from the date Rules 1995 had been enforced dated 29.3.1995. However, an option was given to all such Collection Amins of the Revenue Department who were on deputation to opt out of such absorption by giving a notice within the period of 3 months from the date of commencement of the Rules.

It is writ large on record, that none of the petitioners exercised any option to remain out of absorption. Therefore, what logically follows is that the petitioners agreed to be absorbed under the Uttar Pradesh Trade Tax Collection Amin Service Rules, 1995.

From a simple reading of the Rule, it would be clear that the such absorption stood conferred on 29th March, 1995 that the date on which the Rules 1995 were enforced.

We are of the opinion that the learned Single Judge was not correct in returning a finding that the petitioners stood absorbed under the notification dated 20th June, 2007 whereby the U.P. Trade Tax Collection Amins Service (Second Amendment) Rules, 2007 were notified.

It may be recorded that under the amendment Rules 2007 only the cut off date mentioned in Rule 18(1) of the 1995, Rules had been deleted meaning thereby that the irrespective of the date of appointment as the Collection Amin in the Revenue Department all such Amins working on deputation in the Trade Tax Department. stood absorbed. Neither the date of absorption was changed nor the date for exercise of the choice for option was altered. Even otherwise, the amendment of Rules 2007 had no effect qua the petitioners as they all had been appointed in Revenue Department subsequent to 1.7.1975.

The learned Single Judge fell in error in holding that the petitioners were absorbed under Amendment Notification dated 20.6.2007.

We hold that the petitioners stood absorbed as members of the Uttar Pradesh Trade Tax Collection Amin Cadre with effect from 29.3.1995.

Once such a conclusion is reached, it needs to be examined as what would be the effect of the Government Order which revised the pay scale of the Collection Amin to Rs.1640-2900/- with effect from 1.1.1996 and the promotional pay scale as Rs. 5500-9000/- from the same date.

It is not in dispute that petitioners stood absorbed in the cadre covered by U.P. Trade Tax Collection Amins Rules, 1995 i.e. prior to 1.1.1996 and, therefore, what logically follows is that they would be entitled to the benefits of the pay scale including the selection grade and promotional pay scale as would be enforced subsequent to their date of absorption for the Trade Tax Collection Amins.

Since the aforesaid aspect of the matter has escaped the attention of the learned Single Judge, the direction issued for grant of promotional pay scale and selection grade to the petitioners with reference to the Government Order dated 3.6.1989 to 3.9.1994 is clearly beyond what had been prayed for in the writ petition as has already noted above. The petitioners had prayed for grant of promotional pay scale of Rs. 5500- 9000/- as for quashing of order dated 21.6.2007.

The relief as prayed for grant of promotional pay scale of Rs.5500-9000/- was with effect from 1.1.1996 as is admitted in paragraph 4 of the judgment of the learned Single Judge. This date is admittedly subsequent to the date of absorption of the petitioners in the Trade Tax Department.

So far as the plea of equal pay for equal work is concerned, the Apex Court has repeatedly held that principle of equal pay for equal for equal work is complex question which needs to be examined by the expert body. In the case of State of Uttar Pradesh Vs. Ministerial Karmachari Sangh AIR 1998 SC 303, it has been held that issue of pay parity must be assigned to the expert body as it cannot be done by the Courts.

Since the High Court under Article 226 of the Constitution of India is not an expert in the field, and if the expert body which can best examine the said grievance.

In our opinion, the learned Single Judge could have at best directed Constitution of all expert body to examine the grievance, if any on the principle of equal pay for equal work.

The order of the learned Single Judge cannot be legally sustained and is hereby set aside. The writ petition is restored to its original number and to reconsider in light of the observations made hereinabove.

With the aforesaid observations, the special appeals are allowed.

Order Date :- 9.8.2017

Akbar

Hon'ble Arun Tandon,J.

Hon'ble Krishna Singh,J.

Allowed.

For orders, see our order of date passed on the separate sheets.

Order Date :- 9.8.2017

Akbar