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2019 DIGILAW 2471 (ALL)

Pradeep Kumar Awasthi v. State Of U. P.

2019-11-04

ASHWANI KUMAR MISHRA

body2019
JUDGMENT : Ashwani Kumar Mishra, J. Petitioner, Pradeep Kumar Awasthi was initially appointed as a Superintendent (Medical and Electrical) Grade-II in the Central Reserve Engineer Force, a unit in the Border Road Organization (hereinafter referred to as 'organization'), in the year 2001. He continued in the organization from 25.06.2001 to 08.04.2010. While in the employment of the Organization he appears to have applied for appointment to the post of Junior Engineer in the Minor Irrigation Department of the State of Uttar Pradesh, pursuant to an advertisement issued, and was ultimately selected. He joined as Junior Engineer in the Minor Engineering Department on 12.04.2010. Upon an application moved by the petitioner the competent authority in the department of Minor Irrigation has already passed an order on 05.10.2012 granting pay protection as also allowed his services rendered in the Organization to be counted towards qualifying services for pension etc. An application has also been moved by the petitioner for counting of his previous services rendered in the Organization for the purposes of grant of financial up-gradation under the Assured Career Progression scheme (hereinafter referred to as ACP). Some recommendations appear to have been made at the local level in favour of petitioner but no orders have been passed by the competent authority, in that regard, till date. However, the petitioner has come to know of the Government Order issued by the State of Uttar Pradesh on 05.11.2014, which denies benefit of ACP by excluding the services rendered in the earlier Organization. Clause (10) of this Government Order specifically excludes the services rendered in the Central Government or its authorities etc. for the purposes of grant of A.C.P. benefit to the employees of the State Government. Clause (9) and (10) of the Government Order dated 05.11.2014 are relevant for the controversy raised in this petition and are reproduced hereinafter:- **9- fdlh dkfeZd }kjk izns'k ds vU; jktdh; foHkkxksa esa leku xszM osru esa dh x;h fu;fer lsok dks foRrh; LrjksUkU;u ds fy, x.kuk esa fy;k tk;sxk] ijUrq ,sls ekeyks esa ,0lh0ih0 dh O;oLFkk ds vUrxZr ns; fdlh ykHk gsrq u;s foHkkx ds in ij ifjoh{kk vof/k (Probation Period) lUrks"ktud:i ls iw.kZ djus ds mijkUr gh fopkj fd;k tk;sxk ,oa lEcfU/kr ykHk ns; frfFk ls gh vuqeU; djk;k tk;sxkA 10- dsUnz ljdkj@LFkkuh; fudk;@Lo'kklh laLFkk@lkoZtfud midze ,oa fuxe eas dh x;h iwoZ lsok dks foRrh; LrjksUU;u ds fy, x.kuk esa ugha fy;k tk;sxkA** 2. Petitioner, accordingly, has challenged clause (10) of the Government Order dated 05.11.2014 by filing the present writ petition. It is alleged that Clause (10) of the Government Order dated 05.11.2014 is violative of Article 14 and 16 of the Constitution of India. A further prayer is made in this petition to command the respondents to count petitioner's services rendered in the Organization for the grant of pay upgradation under the ACP scheme. Reliance is placed upon the judgments of Apex Court in Food Corporation of India Vs. Ashis Kumar Gupta, (2009) 7 SCC 734 and Purshottam Lal Vs. Union of India, (1973) 1 SCC 651 . 3. A counter affidavit has been filed by the State disputing petitioner's right to claim financial up gradation under the ACP scheme. A rejoinder affidavit has been filed by the petitioner denying the averments made in the counter affidavit and reiterating the averments made in the writ petition. 4. I have heard Sri Vikas Budhwar, learned counsel for the petitioner and Sri Vishal Singh, learned State Counsel for the respondents and have perused the materials brought on record. 5. The short question that arises for consideration in the facts of the present case is as to whether the State Government is justified in restricting the period of working in the employment of State, on the same scale, as a condition for grant of ACP benefit, and thereby denying services rendered earlier to other bodies like the Central Government/Local Body/Autonomous Body/Government Corporation etc. The other connected issue is with regard to legality of Clause (10) of the Government Order dated 05.11.2014, and whether it offends Article 14 and 16 of the Constitution of India? 6. Facts giving rise to the controversy raised in this petition have already been noticed and, therefore, needs no reiteration. The moot question remains whether petitioner's working in the Organization is liable to be counted for the purposes of grant of financial up gradation under ACP scheme, introduced vide Government Order dated 05.11.2014. 7. Learned counsel for the petitioner submits that the State cannot discriminate between employees/ officers engaged in the State Government vis-a-vis employees of the Central Government, Local bodies, Autonomous body, Public Sector Undertaking and Corporation etc., while extending benefit of financial upgradation under the ACP scheme. 7. Learned counsel for the petitioner submits that the State cannot discriminate between employees/ officers engaged in the State Government vis-a-vis employees of the Central Government, Local bodies, Autonomous body, Public Sector Undertaking and Corporation etc., while extending benefit of financial upgradation under the ACP scheme. Argument is that Clause (10) is violative of Article 14 read with Article 39(A) of the Constitution of India inasmuch as having been appointed in the concerned department of the State of U.P. i.e. Minor Irrigation Department in the present case, the attributes referable to his earlier employment gets extinct and that all benefits admissible to an employee of the State Government are liable to be extended to him also. Learned counsel for the petitioner places reliance upon observation of Apex Court contained in para 29, 30 and 32 of Food Corporation of India and others Vs. Ashish Kumar Ganguli, (2009) 7 SCC 734 . The observations, relied upon, are reproduced hereinafter:- "29. A statutory authority or an administrative authority must exercise its jurisdiction one way or the other so as to enable the employees to take recourse to such remedies as are available to them in law, if they are aggrieved thereby. The question which, however, arises for consideration is as to whether having exercised its jurisdiction in favour of a class of employees, a statutory authority can deny a similar relief to another class of employees. In a case of this nature, in our opinion, the writ court was entitled to declare such a stand taken by the statutory authority as discriminatory on arriving at a finding that both the classes are entitled to the benefit of a statutory rule. 30. It is contended that the deputationists who were the Central Government employees were transferred in terms of Section 12A of the Act. 30. It is contended that the deputationists who were the Central Government employees were transferred in terms of Section 12A of the Act. We may notice sub-section (3) thereof, which reads as under : "12.(3) An officer or other employee transferred by an order made under sub-section (1) shall, on and from the date of transfer, cease to be an employee of the Central Government and become an employee of the Corporation with such designation as the Corporation may determine and shall subject to the provisions of sub-sections (4), (4A), (4B), (4C), (5) and (6) to be governed by the regulations made by the Corporation under this Act as respects remuneration and other conditions of service including pension, leave and provident fund, and shall continue to be an officer or employee of the Corporation unless and until his employment is terminated by the Corporation." As in terms of the aforementioned provision, the employees so transferred would be deemed to be the employees of the Corporation upon cessation of the relationship of employer and employee between the Central Government and themselves and they would be subject to the provisions of the same regulations. We fail to understand, why the benefit of the said regulations shall be denied to the employees who were deputed to the Corporation from the State Government cadre. 32. Thus, for all intent and purport, the past services of the Central Government employees and the State Government employee whether appointed in the service of the Corporation by way of transfer or by way of absorption would result in cessation of relationship of employer and employee between the Central Government or the State Government as the case may be and the employees concerned. In other words, until their absorption, the respondents were the employees of the State Government and they become the employees of the Corporation only upon their absorptions. Furthermore in the cases of both the Central Government employees as also the State Government employees, common regulation would bind them since their absorption in the service of the Corporation either in terms of sub-section (3) of Section 2A of the Act or in terms of the order of absorption passed in respect of each of the respondents." 8. Sri Budhwar, learned counsel for the petitioner further submits that grant of financial upgradation under ACP scheme is based upon acceptance of pay commission recommendation of the year 2008. Sri Budhwar, learned counsel for the petitioner further submits that grant of financial upgradation under ACP scheme is based upon acceptance of pay commission recommendation of the year 2008. Argument is that once Pay Committee recommendations are accepted, provisions thereof would have to be implemented in its entirety and the services rendered by State Government employee earlier to Central Government etc. cannot be ignored for the purposes. It is also contended that classification introduced vide Government Order dated 05.11.2014, restricting ACP benefits to employees of State Government alone is clearly arbitrary and violates Article 14 of the Constitution of India. It is also urged that classification made on the basis of erstwhile appointing authority, as is sought to be done herein, is clearly impermissible in law. Learned counsel for the petitioner also places reliance upon the observation contained in para 14 of the Apex Court judgment in case of Purshottam Lal Vs. Union of India, (1973) 1 SCC 651 which is reproduced hereinafter:- "14. Mr. Dhebar on behalf of the Government maintains the same position and he says that the Pay Commission's Report did not deal with the case of the petitioners. We are unable to accept this contention. The terms of reference are wide, and if any category of Government servants were excluded material should have been placed before this Court. The Pay Commission has clearly stated that for the purposes of their enquiry they had taken all persons in the civil services of the Central Government or holding civil posts under that Government and paid out of the Consolidated Fund of India, to be Central Government employees. It is not denied by Mr. Dhebar that the petitioners are paid out of the Consolidated Fund of India." 9. Before proceeding to examine the contention advanced on behalf of the petitioner it would be necessary to examine essential ingredients/ attributes of the Assured Career Progression scheme itself. The Government Order dated 05.11.2014 records that previous Government Orders in respect of grant of ACP benefit are not getting implemented due to various reasons and, therefore, in supersession of previous Government Orders issued from time to time, the new Government Order dated 05.11.2014 is being issued. Clause (3) of this Government Order contemplates grant of three financial upgradation upon completion of regular satisfactory service in the employment of State i.e. 10 years, 16 years and 26 years, respectively. Clause (3) of this Government Order contemplates grant of three financial upgradation upon completion of regular satisfactory service in the employment of State i.e. 10 years, 16 years and 26 years, respectively. Manner of computation of such term has been specified in various clauses of the Government Order. It is thereafter that Clauses (9) and (10) have been added which have already been extracted above. 10. The justification for existence of the ACP scheme lies in acceptance of settled proposition in service jurisprudence that genuine stagnation in employment due to lack of adequate promotional avenues is detrimental to efficiency of administration and must be avoided. Opportunity of advancement in service career by promotion is considered a normal incidence of service. Efficient administration alone can serve public interest. 11. In the case of Council of Scientific and Industrial Research Vs. K.G.S. Bhatt, (1989) 4 SCC 635 Hon'ble Supreme Court has been pleased to emphasize the importance of ACP scheme to obviate stagnation in service. Para 9 of the report is relevant and is reproduced hereinafter:- "...It is often said and indeed, adroitly, an organisation public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. Once must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. 'The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors. There cannot be any modern management much less any career planning, manpower development, management development much less any career planning, manpower development, management development, etc. which is not related to a system of promotions." 12. The observation in the case of Council of Scientific Industrial Research (supra) has been consistently followed in subsequent decisions of the Apex Court. See: (State of Tripura Vs. K.K. Rai, (2004) 9 SCC 65 and Hukum Chandra Gupta Vs. ICAR, (2012) 12 SCC 666 ). 13. which is not related to a system of promotions." 12. The observation in the case of Council of Scientific Industrial Research (supra) has been consistently followed in subsequent decisions of the Apex Court. See: (State of Tripura Vs. K.K. Rai, (2004) 9 SCC 65 and Hukum Chandra Gupta Vs. ICAR, (2012) 12 SCC 666 ). 13. Plea of stagnation in service can ordinarily be set up where an employee in his entire length of service is not even allowed three promotional avenues. The right against stagnation is thus available against the employer who fails to provide reasonable avenues of promotion to its employees. It is available with reference to the length of service in a particular employment/ organization. Financial upgradation as per ACP scheme is intended to compensate for the lack of promotional avenue available with the employer concerned and the benefit under the scheme is personal to the employee concerned. 14. The counting of services for the purposes of awarding financial upgradation under the ACP scheme, therefore, has a direct co-relation with the existence of stagnation in the employment itself. The employment is with reference to a particular employer or else, the very justification for existence of ACP scheme would seize to exist. 15. Where the employee takes up a new employment with a different employer, he can not ask for counting of his services rendered to the previous employer in order to make out a case of stagnation against the subsequent employer. Such a plea can ordinarily be raised with reference to the length of services rendered to the employer concerned only. 16. Clause (9) of the Government Order dated 05.11.2014 also limits the counting of regular service in the same grade of pay, in other Government Departments of the same employer i.e. State, and the benefit of ACP would become payable only after satisfactory completion of probationary period. The requirement, as per it, is that the employer remains the same i.e. State of Uttar Pradesh, and that the employee has continued in the same scale of pay for long without having requisite avenues of promotion. 17. In a case where the Government Servant has taken up fresh employment with the same employer i.e. the State, but on a higher grade of pay, then the services rendered earlier on the lower scale of pay would not be counted for the grant of benefit under the ACP scheme. 17. In a case where the Government Servant has taken up fresh employment with the same employer i.e. the State, but on a higher grade of pay, then the services rendered earlier on the lower scale of pay would not be counted for the grant of benefit under the ACP scheme. This clause, therefore, clearly reveals that avoidance of stagnation for the employee concerned is with reference to his working for long period, in the same scale of pay without any promotional avenue. 18. Similarly, where services are rendered to a different employer i.e. one having distinct juristic personality i.e. Central Government/Local authority / Public Sector Undertaking / Government Corporation etc. the services offered to the previous employer would not be counted for the purposes of alleging stagnation against the new/ subsequent employer i.e. State of U.P. 19. The classification of employer vide Clauses (9) and (10) of the Government Order dated 05.11.2014, for the purposes of implementing ACP scheme in question, therefore, has a direct nexus with the object sought to be achieved and can not be said to be arbitrary or unreasonable inasmuch as it is based on intelligible differentia. 20. So far as judgment of the Apex Court in the case of Food Corporation of India Vs. Ashis Kumar Ganguli (supra) is concerned, this case related to grant of advance increment where distinction was drawn on the basis of source of recruitment. The Apex Court observed that deputationists from the State Government who have been absorbed in the employment of Corporation can not be treated as a class distinct from the employees on transfer from Central Government to the Corporation (Food Corporation of India) once they are governed by the same set of rules. Such classification has been held to violate equality clause enshrined in Article 14 of the Constitution of India. 21. The judgment of the Apex Court in the case of Food Corporation of India (supra) has no applicability on the facts of the present case inasmuch as the distinction based on source of recruitment had no nexus with the object of grant of advance increment. This, however, is not the case here. In the present case, the benefit of financial upgradation under ACP scheme has direct co-relation with the existence of stagnation in a particular employment. This, however, is not the case here. In the present case, the benefit of financial upgradation under ACP scheme has direct co-relation with the existence of stagnation in a particular employment. Once the employment itself changes the services rendered to the previous employer would not be relevant and cannot be counted to determine stagnation in the subsequent employment or to grant financial upgradation in lieu thereof. 22. In Purshottam Lal (supra) the Apex Court had upheld plea of discrimination raised before it under Article 32 of Constitution of India. The Apex Court found that benefits of revised pay scale was admissible to the writ petitioners w.e.f. July 1, 1959, in accordance with recommendations of Pay Commission. Once the Pay Commission report was accepted the part implementation thereof was not approved. This judgment also has no applicability to the facts of the present case. 23. The grant of benefit under ACP scheme is otherwise a matter of policy and would not require interference by this Court once the plea of arbitrariness fails. The Hon'ble Supreme Court in Secretory, Government (NCT Of Delhi) and others Vs. Grade-I DASS Officers Association and others, (2014) 13 SCC 296 has been pleased to observe that power of judicial review would not be warranted once the policy itself is not found violative of Article 14 and 16 of the Constitution of India. 24. The petitioner had worked with the Organization from 2001 to 2010 whereafter he has been offered fresh appointment in the Department of Minor Irrigation of the State of Uttar Pradesh. The fresh employment offered to petitioner is with a different employer and his services with the subsequent employer would be governed by entirely distinct set of rules from what existed earlier. The period of service rendered hitherto to the previous employer would not be relevant for the purposes of examining plea of stagnation against the subsequent employer, which alone justifies grant of financial upgradation under the ACP scheme in question. Other issues like pay protection and counting of services for grant of pensionary benefits are governed by separate and distinct consideration and set of rules/executive instructions and have already been allowed to the petitioner by the subsequent employer and, therefore, these aspects requires no further examination. 25. Other issues like pay protection and counting of services for grant of pensionary benefits are governed by separate and distinct consideration and set of rules/executive instructions and have already been allowed to the petitioner by the subsequent employer and, therefore, these aspects requires no further examination. 25. In view of the aforesaid deliberations and discussions, I have no hesitation in rejecting challenge laid to Clause (10) of the Government Order dated 05.11.2014 on the ground of it being arbitrary and violative of Article 14 and 16 of the Constitution of India. Clause (10) of the Government Order is found to be just and valid. Petitioner's plea for counting of his services rendered to the previous employer, for determining stagnation in the employment of the Department of Minor Irrigation, and thereby to grant financial upgradation in lieu thereof, also can not be sustained. Writ petition consequently fails and is dismissed. No order is passed as to costs.