1. The petition has been filed with the following prayers:-
"(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 25.09.2017 served on 27.9.2017 as contained in Annexure Nos. 1, 2 & 3 to this writ petition.
(b) Issue a writ order or direction in the nature of mandamus commanding the opposite parties by directing them not to give effect to the impugned orders dated 25.9.2017 as contained in Annexure Nos. 1, 2 & 3 which has been issued in circumvention of the GOs dated 22.5.1990 & 16.11.1998 as contained in Annexure Nos. 9 & 15 respectively.
(c) Issue a writ order or direction in the nature of mandamus commanding the opposite parties by directing them to consider the petitioners for upgradation/ modification of their pay scale at least above those incumbents who were appointed in Office Staff i.e. ministerial cadre i.e. Group 'C' as since their initial appointments the petitioners are the gazetted officers.
(d) Issue a writ order or direction in the nature of mandamus commanding the opposite parties by directing them to create a structure of cadre by providing avenue of promotions from the post of Training Officers.
(e) Issue a writ order or direction in the nature of mandamus commanding the opposite parties by directing them not to make any recovery from the salary and the emoluments already paid to the petitioners as all of them deserve to be treated as appointed in the cadre since date of their initial appointment.
(f) Any other suitable direction or order may also be issued in favour of the petitioners, which this Hon'ble Court may deem fit and proper in the circumstances of the case."
2. Brief facts of the case are as follows:-
(i) The Judicial Training and Research Institute (JTRI) was established at Lucknow after Governor's approval in furtherance of National Joint Conference of Chief Ministers, Chief Justices & Law Ministers presided by Prime Minister with object for training & research of Judicial Officers, Law Officers, Government Advocates, and Public Prosecutors. The decision was followed by Law Commission's 14th & 17th Report.
(ii) The Governor of U.P. accorded the approval for establishing JTRI at Lucknow under the administrative control of Law Department, Government of U.P. Two 'Ex-Cadre' posts of Training Officer in JTRI were created with other gazetted posts by G.O. No.अधि0 2034/सात-उoन्याo/1986-55/86 dated 06.08.1986. Vide G.O. No.959/ सात-उoन्याo/1986-55/86 dated 31.08.1987, two more Ex-Cadre posts of Training Officer were created. Thus, total number of Ex-Cadre posts of Training Officer at JTRI reached at 04 (Four).
(iii) Vide office order dated 16.08.1989, petitioner no.1 was appointed on the vacant post of Research Officer. Subsequently, vide office order dated 22.06.1990, he was promoted/appointed on the post of Training Officer. Petitioner No.1 was confirmed on the post of Training Officer vide order dated 28.10.1998.
(iv) Petitioner No.1 was not being allowed the next benefit arising out of IIIrd ACP and Petitioner Nos.2 and 3 of IInd ACP on the ground that since they are holding Ex-Cadre posts, they are not entitled for Time Scale/ACP.
(v) Vide Letter/G.O. No.साo-976/सात - न्याय - 1-15-07(प्र)/14 dated 06.08.2015, it was communicated/directed by the Government that either under the earlier arrangement of Time Bound Promotional Pay Scheme (for short 'Time Scale Scheme') or under the present scheme of Financial Upgradation (for short 'ACP'), there is no provision of grant of Financial Upgradation to the incumbents of Ex-Cadre posts.
(vi) Vide G.O. No.63/2016/साo-1539/सात - न्याय - 1 - 16 - 7 (प्र)/2014 dated 08.12.2016, three out of four Ex-Cadre Posts of Training Officer in JTRI have been made Cadre posts w.e.f. 15.06.2003 and the persons working against those three posts of Training Officer have been absorbed against cadre posts.
(vii) Vide Office Order No.जेo टीo आरoआईo/अधिo-397/324 dated 23.02.2017 issued by JTRI in due compliance of the aforesaid Government Order dated 08.12.2016, order has been passed to absorb three incumbents/Training Officers against the three posts of Training Officers made a Cadre Post w.e.f. 15.06.2003. Further, vide Letter No.जेo टीo आरoआईo/अधिo-397/325 dated 23.02.2017, appropriate direction was sought from the Government in respect to the date of admissibility and grant of Time Scales/ACPs to the petitioners.
(viii) In the meantime, a test checking of the pay fixation of the officers/employees working in JTRI was conducted by the team of Auditors of the Establishment Revision Bureau, Department of Finance, U.P. Civil Secretariat, Lucknow (for short 'ERB') from 01.05.2017 to 05.05.2017 in which discrepancies were found in pay fixation of total 8 officers/employees working in JTRI, including the petitioners herein. Subsequently, vide Letter No.ब्यूरो-638/दस-2017-6 (ऑडिट)/2017 dated 25.08.2017 issued by Director, Establishment Revision Bureau, Department of Finance, Lucknow, U.P., it was directed that the fixation of pay etc., of the aforementioned 8 officers/employees found erroneous in the aforesaid test/checking audit, be corrected and the amount paid in excess to their entitlement be adjusted from their salary etc., after inviting their objections in that regard.
(ix) In furtherance of the aforesaid letter dated 25.08.2017 (supra), the pay scale(s) of the aforesaid officers/employees have been re-fixed after inviting their objections. In the case of Training Officers, their pay scales and admissible time scales/financial upgradations have been re-fixed and appropriate order(s) dated 25.09.2017 have been issued, which are impugned herein, treating their services on the cadre post of Training Officer w.e.f. 15.06.2003 in terms of aforesaid Government Order dated 08.12.2016.
3. Learned counsel for the petitioners has submitted that the impugned order has been issued in a camouflage of pay fixation as per G.O. dated 08.12.2016, G.O. dated 22.12.2016 and letter dated 25.08.2017 without serving the same to the petitioners. It is submitted that after representation of the petitioner dated 17.03.2014 to the Principal Secretary (Judicial) & LR, Government of U.P. for upgradation of the post/pay scale on 30.10.2014, the State Government directed Director, JTRI to submit fresh proposal of upgradation of post/pay scale considering the qualification, work & responsibility of the posts of Training Officers.
4. Learned counsel for the petitioners has submitted that the impugned orders culminating into reduction of the pay of the petitioners without there being any fault on their part are violative of principles of natural justice as the reduction of pay if ordered against any proved misconduct, is included amongst the penalties in U.P. Government Servant (Discipline and Appeal) Rules, 1999.
5. Learned counsel has relied upon a judgment rendered by Hon'ble Supreme Court in the case of Rudra Kumar Sain & Ors. v. Union of India & ors. - (2000) 8 SCC 25 in which it has been held that the longevity of service is a material factor as after rendering the services for about a decade, it may not be termed as adhoc, stop gap or fortuitous.
6. It is submitted that a person who possess the requisite qualification for being appointed on a particular post and if he is appointed on the said post after approval and consultation with the appropriate authority and continue on the said post for fairly long period, then such an appointment cannot be held stop gap or fortuitous or purely adhoc.
7. Learned counsel for the petitioners has submitted that the petitioners deserve to be considered for upgradation/modification of their pay scales at least above those incumbents who were appointed in the Office Staff i.e. Ministerial Cadre, which is Group 'C' post, as since their initial appointments, the petitioners are the Gazetted Officers.
8. Learned counsel for the petitioners has submitted that the impugned orders have been passed in arbitrary manner and without considering the entirety of the matter and without application of mind. The same deserve to be quashed.
9. Per Contra, learned counsel for the State has vehemently opposed the submissions made by learned counsel for the petitioners and submitted that Government Orders dated 06.08.1986 and 31.08.1987 have been issued on the basis of Project Report and those orders have accordingly been made effective. It is further submitted that vide Government Order dated 06.08.1986, two Ex-Cadre posts of Training Officer were created on temporary basis and further vide Government Order dated 31.08.1987, two more ex-cadre posts were created on temporary basis. Thus, the total number of ex-cadre posts reached at four.
10. It is submitted that the posts of Clerical/Ministerial Cadre, Accounts Cadre and Stenographers Cadre in JTRI have been restructured by the Government of U.P. in the line of other departments of the State Government. It is submitted that vide Government Order dated 06.08.2015 (supra), it was communicated/directed by the Government that either under the earlier arrangement of Time Scale Scheme or under the present scheme of ACP, there is no provision of grant of financial upgradation to the incumbents of ex-cadre posts. It is further submitted that vide Government Order dated 08.12.2016 (supra), three out of four posts of Training Officer in the JTRI have been made a cadre post only w.e.f. 15.06.2003, prior to which it was an ex-cadre post.
11. It is further submitted by the State that vide letter dated 23.02.2017, appropriate direction was sought from the Government in respect of the date of admissibility of the Time Scale/ACPs to the petitioners and the said matter is still pending consideration before the Government of U.P.
12. Learned counsel for the State has invited attention of the Court towards Para - 11 of Counter Affidavit dated 20.07.2018 and submitted that a test checking of pay fixation of officers/employees working in JTRI was conducted by the team of Auditors of ERB from 01.05.2017 to 05.05.2017 in which discrepancies were found in fixation of total 08 officers/employees working in JTRI, including the petitioners. Therefore, vide order dated 25.08.2017 (supra) issued by Director, ERB, it was directed that the discrepancies found in the pay fixation of aforesaid 08 officers/employees be corrected and amount paid in excess to their entitlement be adjusted from their salary etc., after inviting their objections.
13. It is submitted that in pursuance of order dated 25.08.2017 (supra), pay scale(s) of the aforesaid officers/employees have been refixed. It is further submitted that in the case of Training Officers (petitioners herein), their pay scale(s) and admissible Time Scale/financial upgradation have been refixed and appropriate order(s) dated 25.09.2017 have been issued treating their services on the cadre post of Training Officer w.e.f. 15.06.2003 in terms of Government Order dated 08.12.2016, which is absolutely just and proper and in accordance with the relevant Rules, Government Orders and law.
14. Learned counsel has submitted that the officers and employees of JTRI are governed by Rules and Government Orders promulgated by the Government from time to time and the incumbents of the post of Training Officers have been granted service benefits absolutely in accordance with relevant government orders.
15. It is submitted that as a policy decision taken by the Government, the post of Office Superintendent has been merged with the post of Administrative Officer and in resolution to the issue of pay disparity among the various posts of the cadre as raised by U.P. State Employees' Association, the Clerical/Ministerial Cadre of the Government Departments has been restructured and Grade Pay of Rs.4600 has been made admissible to the post of Administrative Officer. It is submitted that under the aforesaid restructuring of Clerical/Ministerial Cadre, it has been provided for promotions to the post of Senior Administrative Officer from the post of Administrative Officer and further promotion from the post of Senior Administrative Officer to the post of Chief Administrative Officer. It is submitted that the aforesaid three posts of Administrative Officer, Senior Administrative Officer and Chief Administrative Officer are Gazetted Posts.
16. In reply of counter affidavit dated 20.07.2018, the petitioners have filed rejoinder affidavit dated 30.08.2018 wherein it has been pleaded that there was no direction to create Training Officer post as Ex-Cadre in the Government Order dated 06.08.1986 and Government Order dated 31.08.1987. A proposal dated 24.02.2016 & 25.02.2016 was made by the Principal Secretary, Judicial & L.R. for restructuring of Training Officers and promotional avenues for upgrading/promotion to Assistant Director, Deputy Director and Joint Director. It is also pleaded that despite the order of this Hon'ble Court dated 27.03.2018 by which two months time was given to the State Government for restructuring, nothing has been done till now
17. It is also brought attention of the Court by the petitioners that in Government Order dated 06.08.1986 (supra), even the post of Assistant Director (Management) was shown as Ex-Cadre but the same has not been treated as Ex-Cadre Post in the minutes of meeting held on 31.08.1998 & 03.09.1998 presided by Secretary Personnel regarding review of Ex-Cadre Post in different departments, however, the post of Training Officer was ignored while making restructuring of ministerial cadre in the line of other departments.
18. Learned counsel for the State has invited attention of the Court towards Para - 11 of the Counter Affidavit dated 09.11.2020 and submitted that in pursuance of direction dated 27.03.2018 (supra) passed by the Court, a meeting was conducted on 11.10.2018 under the Chairmanship of Principal Secretary, Law in which it was decided that apart from the service rules of Training Officer of JTRI, the service rules of all the cadre of JTRI shall be prepared. It is further pleaded in the counter affidavit that pursuant to decision of the meeting dated 11.10.2018, the Director, JTRI sent the proposal for promulgation of service rules of all cadres of JTRI. The said proposal was forwarded to Finance and Personnel Department in which certain objections were raised. The Finance and Personnel Department on 22.07.2020 remitted the proposal back to JTRI for correction of the proposal and amended draft which is still awaited.
19. Learned counsel for the petitioners in rejoinder affidavit dated 18.11.2020 denied all the averments made in the aforesaid counter affidavit and submitted that the counter affidavit does not disclose as to why while making restructuring of the ministerial cadre in the line of other departments, post of Training Officer was left despite the decision of the Hon'ble Chief Minister keeping in view the recommendation of meeting held on 31.08.1998 & 03.09.1998 presided by Secretary Personnel regarding review of Ex-Cadre Post in different departments.
20. Learned counsel for the petitioners has submitted that on 01.03.2014, Class III non-gazetted post of Office Superintendent - Grade II pay scale [Rs.570-1100] revised in Pay Scale Rs.9300-34800, Grade Pay Rs.4200/- was brought in Rs.15,600-39,100 Grade Pay Rs.5400/- as per 6th Pay Commission redesignating as Senior Administrative Officer further redesignated as Chief Administrative Officer which resulted in further hike of the Pay Scale as per 7th Pay Commission. However, Training Officers, a Gazetted post [Rs.770 1600] was revised merely as Rs.9300-34800 Grade Pay Rs.4600/-. Thus, due to non-structuring, three Training Officers of JTRI i.e. the petitioners, which was created as Gazetted Officer in pay scale Rs.770-1600 are merely at Rs.9300-34800 Grade Pay Rs.4600/- as per 6th Pay Commission i.e. much less than such incumbent who was in ministerial staff whereas the petitioners were appointed as Gazetted Officer on the posts of Training Officer. Therefore, the petitioners deserve to be given service benefits at least from the date the incumbent below in rank to them were so given.
21. It is submitted that petitioner no.2 is due to retire on 31.07.2021, petitioner no.3 on 31.05.2022 and petitioner no.1 on 30.09.2023 but inclination appears to keep them still stagnated after more than 30 years of service. Therefore, the petitioners are entitled to all the reliefs prayed for treating them as notionally promoted since the initial proposal made by the administrative department i.e. the Department of Law and Justice for restructuring of Training Officers.
22. I have heard learned counsel for the parties and perused the record.
23. Vide G.O. order dated 22.05.1990 (supra), the ex-cadre posts were made permanent, which reads as under:-
la[;k [email protected]& m0U;k0 & [email protected] isz"kd] Jh ds0 ,y0 'kekZ] U;k; lfpo] mRRkj izns'k 'kkluA lsok esa] funs'kd] U;kf;d izf'k{k.k ,oa vuqla/kku laLFkku] m0 iz0] y[kuÅA U;k; ¿mPp U;k;ky;À vuqHkkx y[kuÅ% fnukad 22 ebZ] 1990 fo"k;& U;kf;d izf'k{k.k ,oa vuqla/kku laLFkku] y[kuÅ ds vUrxZr l`ftr vLFkk;h inksa dk LFkk;hdj.kA egksn;] mi;ZqDr fo"k; ij vkids i= la[;k&[email protected] fnukad 19 viSzy 1990 ds lanHkZ esa eq>s ;g dgus dk funs'k gqvk gS fd jkT;iky egksn;] U;kf;d izf'k{k.k ,oa vuqla/kku laLFkku] y[kuÅ ds vUrxZr dk;kZy; Kki la[;k vf/k0 [email protected]&m0U;k0&1986&[email protected]] fnukad 6 vxLr] 1986 ds vuqyXud&1 esa mfYYkf[kr vLFkk;h inksa esa ls lgk;d funs'kd& ¼izcU/k½ ds vLFkk;h in tks 'kklukns'k la[;k [email protected]&m0U;k0&[email protected]] fnukad 23 uoEcj] 1989 }kjk lekIr dj fn;k x;k gS dks NksM+rs gq, layXud esa mfYYkf[kr vLFkk;h inksa dks fnukad 1 ekpZ] 1990 ls LFkk;h inksa esa ifjofrZr fd;s tkus dh Lohd`fr iznku djrs gSA 2& bu inksa ds in /kkjdks dks 'kklu }kjk le;≤ ij tkjh fd;s x;s vkns'kksa ds vuqlkj eagxkbZ HkRRkk ,oa vU; HkRRks tks mUgsa vuqeU; gks Hkh ns; gksaxsA 3& eq>s ;g Hkh dgus dk funs'k gqvk gS fd layXud ds dkye&6 esa mfYYkf[kr 'kklukns'k la[;k [email protected]&m0U;k0&[email protected]] fnukad 9 ekpZ] 1989 ds vuqlkj bu vLFkk;h inksa dh fujUrjrk vafre ckj o"kZ 1989&90 esa fnukad 28 Qjojh] 1990 rd tkjh dh xbZ FkhA 4& bu inksa ij gksus okyk O;; vk;&O;; ds vuqnku la[;k&42 ds vUrxZr ys[kk 'kh"kZd 2014 U;k; iz'kklu vk;kstusRRkj 800 vU; rFkk 01& U;kf;d izf'k{k.k ,oa vuqla/kku laLFkku ds v/khu lqlaxr izkFkfed bdkb;ksa ds uke Mkyk tk;sxkA 5& izekf.kr fd;k tkrk gS fd bu inksa dk LFkk;hdj.k dk;kZy; Kki la[;k&,&2&797&nl&87&24¿12À&86] fnukad 25 ebZ] 1987 esa fufgr lHkh 'krksZZa dh iwfrZ ds ckn fd;k tk jgk gSA layXud& ;FkksDrA Hkonh;
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24. Vide G.O. dated 08.12.2016, three out of four posts of Ex-Cadre Training Officer post was made cadre post, which reads as under:-
संख्या: 63/2016/0 1539/सात-न्याय-1 10:/(ए)/2014 प्रेषक, रंगनाथ पाण्डेय प्रमुख सचिव, उ०प्र० शासन।
सेवा में, निदेशक, न्यायिक प्रशिक्षण एवं अनुसंधान संस्थान, उ०प्र० लखनऊ।
न्याय अनुभाग-1 (उच्च न्यायालय) लखनऊः दिनांक 08 दिसम्बर, 2016 विषय: न्यायिक प्रशिक्षण एवं अनुसंधान संस्थान, उ०प्र० लखनऊ के निःसंवर्गीय प्रशिक्षण अधिकारियों के पदों को संवर्गीय पद घोषित किये जाने एवं उक्त पद पर वर्तमान में कार्यरत 03 प्रशिक्षण अधिकारियों को संवर्गीय पद पर संविलीन किये जाने के सम्बन्ध में।
महोदय, उपर्युक्त विषयक आपके पत्र संख्या जे०टी०आर०आई०/अधि0-397/14-1322, दिनांक 9-7-14 के संदर्भ में मुझे यह कहने का निर्देश हुआ है कि शासनादेश संख्या: अघि0-2034/सात-उ0न्या0/1986-55-86, दिनांक 6-8-1986 द्वारा वेतनमान रू0 770-1600 (पुनरीक्षित वेतन बैण्ड-2 वेतन रू0 9300-34800 व ग्रेड वेतन रू0 4600/-) में सृजित प्रशिक्षण अधिकारी के 02 निःसवर्गीय पद तथा शासनादेश संख्या: अधि0-959/सात-30न्या0/1986-55/86, दिनांक 31-8-1987 द्वारा वेतनमान रू0 770-1600 (पुनरीक्षित वेतन बैण्ड-2 वेतन रू० 9300-34800 व ग्रेड वेतन रू0 4600/-) में सृजित प्रशिक्षण अधिकारी के 02. निःसंवर्गीय पदों के सापेक्ष 01 निःसंवर्गीय पद कुल 03 निःसंवर्गीय पदों को दिनांक 15-6-2003 से संवर्गीय बनाये जाने एवं उक्त पद पर वर्तमान में कार्यरत 03 प्रशिक्षण अधिकारियों को संविलीन किये जाने की श्री राज्यपाल महोदय सहर्ष स्वीकृति प्रदान करते हैं।
2. उक्त का समादेश न्यायिक प्रशिक्षण एवं अनुसंधान संस्थान, उ०प्र० लखनऊ की प्रख्यापित की जाने वाली सेवा नियमावली में कर लिया जायेगा।
3. उक्त पदो में से 02 पदों को स्थायी किया गया है तथा 02 पदों की निरन्तरता अन्तिम बार दिनांक 28-02-2017 तक बढ़ायी गयी है।
4. यह आदेश वित्त विभाग के अशासकीय संख्या 1392/ई-12/दस/2016, दिनांक 05 दिसम्बर, 2016में प्राप्त उनकी सहमति से जारी किये जा रहे है।
भवदीय, (रंगनाथ पाण्डेय) प्रमुख सचिव
25. Letter dated 23.02.2017 is also reproduced hereinbelow for ready reference:-
संख्या : जे0टी0आर0आई0/अधि0 - 397/325 प्रेषक, श्री राम मनोहर नारायण मिश्र, अपर निदेशक, न्यायिक प्रशिक्षण एवं अनुसंधान संस्थान, उ0प्र0 विनीत खण्ड, गोमती नगर लखनऊ।
सेवा में, विशेष सचिव, न्याय अनुभाग- 1 ( उच्च न्यायालय), उत्तर प्रदेश शासन, लखनऊ।
दिनांक: 23 फरवरी, 2017 विषयः न्यायिक प्रशिक्षण एवं अनुसंधान संस्थान, उ0प्र0, लखनऊ के निःसंवर्गीय प्रशिक्षण अधिकारियों के संवर्गीय पद घोषित किये जाने एवं उक्त पद पर वर्तमान में कार्यरत 03 प्रशिक्षण अधिकारियों को संवर्गीय पद पर संविलीन किये जाने के संबंध में।
महोदय, कृपया उपर्युक्त विषयक शासनादेश संख्या 63/2016 / सा0-1539/सात-न्याय-1-16-7(2)/2014, दिनांकित 08 दिसम्बर, 2016 का संदर्भ लेने का कष्ट करें, जिसके द्वारा शासनादेश संख्या अधि0-2034 / सात-उ0न्या0 / 1986-55-85, दिनांक 06-8-1986 द्वारा वेतनमान रू0 770-1600 वेतन बैण्ड-2 वेतन रू0 9300-34800 ग्रेड वेतन रू0 4600) में सृजित प्रशिक्षण अधिकारी के 02 पद तथा शासनादेश संख्या अधि0-959 / सात-उ०च्या0 / 1986-55-86, दिनांक 31.08 1987 द्वारा वेतनमान रू0 770-1600 (पुनरीक्षित वेतन बैण्ड-2 वेतन रू0 9300-34800 व ग्रेड वेतन रू0 4600) में अधिकारी के 02 निःसंवर्गीय पदों के सापेक्ष 01 निःसंवर्गीय पद अर्थात कुल 03 निःसवर्गीय पदों को दिनांक 15.06.2003 से संवर्गीय बनाये जाने एवं उक्त पद पर वर्तमान में कार्यरत 03 प्रशिक्षण अधिकारियों को संविलीन किये जाने की स्वीकृति प्रदान की गयी है।
उक्त के सम्बन्ध में अवगत कराना है कि उक्त शासनादेश दिनांक 06.08.1986 एवं 31.08.1987 सृजित प्रशिक्षण अधिकारी के निःसंवर्गीय पदों पर श्री अनुराग सिंह दिनांक 22.06.1990 के अपरान्ह से, श्रीमती अर्चना शर्मा दिनांक 03.12.1993 से तथा सुश्री सबीहा अख्तर दिनांक 20.03.1996 के अपरान्ह से कार्यरत है। पूर्व में उन्हें कार्यभार ग्रहण करने की तिथि से सेवा के आधार पर समयमान वेतनमान / ए०सी०पी० का लाभ अनुमन्य कराया गया था।
उक्त के क्रम में शासनादेश संख्याः सा0-976/ सात-न्याय-1-15-07 (प्र) / 14, दिनांक 06 अगस्त, 2015 द्वारा शासन से प्राप्त निर्देश- "समयमान वेतनमान की पूर्व व्यवस्था तथा वित्तीय स्तरोन्नयन की वर्तमान व्यवस्था में निःसंवर्गीय पदों पर पदधारकों को वैयक्तिक वेतनमान अथवा वित्तीय स्तरोन्नयन अनुमन्य किये जाने की कोई व्यवस्था नहीं है। समयमान वेतनमान की पूर्व व्यवस्था में भी संवर्गीय पदों पर निरन्तर नियमित सन्तोषजनक सेवा के आधार पर तथा वर्तमान वित्तीय स्तरोन्नयन की व्यवस्था के अन्तर्गत संवर्गीय पदों पर नियमित निरन्तर सन्तोषजनक सेवा के आधार पर शासनादेशों में दी गयी शर्तों एवं प्रतिबन्यों को पूर्ण करने वैयक्तिक रूप से समयमान वेतनमान तथा वित्तीय स्तरोन्नयन अनुमन्य किये जाने की व्यवस्था की गयी है। निःसंवगीय पदों पर समयमान वेतनमान सुनिश्चित वित्तीय स्तरोन्नयन की अनुमन्यता नहीं है।" के कम में नोटिस दी गयी थी कि उन्हें पूर्व में प्रदत्य सेलेक्शन ग्रेड एवं ए०सी०पी० के लाभ को संशोधित कर वेतन निर्धारण सही किया जाना होगा और सही वेतन के निर्धारण के आधार पर हुए अधिक भुगतान का देय वेतन आदि से समायोजन किया जाना होगा।
उक्त के क्रम में शासनादेश संख्या: 63/ 2016 / सा0-1539 / सात-न्याय-1-16-7 (प्र)/2014, दिनांकित 08 दिसम्बर, 2016 द्वारा प्रशिक्षण अधिकारी के कुल (02 स्थायी व 01 अस्थायी) 03 निःसंवर्गीय पदों को दिनांक 15. 06.2003 से संवर्गीय बनाये जाने एवं उक्त पद पर वर्तमान में कार्यरत 03 प्रशिक्षण अधिकारियों को संविलीन किये जाने की स्वीकृति प्रदान की गयी है, किन्तु पदधारकों को उनकी प्रशिक्षण अधिकारी के पद पर नियुक्ति/कार्यभार ग्रहण करने की तिथि से सेवा के आधार पर समयमान वेतनमान / ए०सी०पी० का लाभ देय होगा अथवा संवर्गीय किये जाने की तिथि 15.06.2003 से सेवा के आधार पर ए०सी०पी० का लाभ देय होगा, स्थिति स्पष्ट नहीं है। अतः शासन से अनुरोध है कि प्रशिक्षण अधिकारी के पदों को संवर्गीय किये जाने की तिथि 15.06.2003 के पूर्व से कार्यरत श्री अनुराग सिंह, श्रीमती अर्चना शर्मा एवं सुश्री सबीहा अख्तर को उनके वर्तमान पद पर कार्यभार करने की तिथि से सेवा के आधार पर समयमान वेतनमान / ए०सी०पी० का लाभ देय होगा अथवा प्रशिक्षण अधिकारी के पदों को संवर्गीय किये जाने की तिथि 15.06.2003 से सेवा के आधार पर ए०सी०पी० का लाभ देय होगा, के सम्बन्ध में कृपया मार्ग-दर्शन / आदेश प्रदान करने का कष्ट करें।
भवदीय, (राम मनोहर नारायण मिश्र) अपर निदेशक
26. The following orders were passed by this Hon'ble Court on 19.01.2018 and 27.03.2018:
Dt: 19.01.20218 "Learned counsel for the petitioners states that though promotion of the petitioners is under consideration since 2014, but the opposite parties have not promoted the petitioners on the ground that restructuring of the post is being considered at the Government level and after consideration, necessary exercise would be undertaken.
Learned counsel for the petitioners has also drawn the attention of the Court towards the Government Order dated 22nd May, 1990 wherein ex-cadre post where the petitioners were appointed has been made permanent post. Once the post has been made permanent, the consequences will follow automatically.
Learned Addl. Chief Standing Counsel prays for and is granted ten days' time to file counter affidavit.
List thereafter.
Interim order, if any, shall continue till the next date of listing."
"Learned standing counsel has submitted that he may be granted more time to file counter affidavit but the fact remains that the post has been made permanent in 1990 and restructuring exercise is pending at the government level since 2014. The restructuring exercise has not been finalised. It is submitted that the sub-ordinate staff of the petitioners are getting more salary than the petitioners on account of the fact that the claim of the petitioners has not been finalised as contemplated under law treating the post to be permanent. Since restructuring exercise is pending at government level on account of which the entire J.T.R.I. administration is suffering, therefore, in these circumstances, we direct the State Government to undertake the restructuring exercise within a period of two months.
List thereafter.
Interim order to continue till the next date of listing."
27. Perusal of Annexure - 10 i.e. Government Order dated 22.05.1990 makes it clear that Ex-Cadre post of Training Officer was made permanent. Undoubtedly, promotion of the petitioners is under consideration since 2014 but the opposite parties have not taken any decision to promote the petitioners only on the ground that restructuring of the post is being considered at the Government level. Inspite of the aforesaid two directions of this Court, nothing has been done by the competent authority for restructuring the cadres yet.
28. Perusal of the orders dated 19.01.2018 and 27.03.2018 (supra) passed by a coordinate Bench of this Court reveals that the post of Training Officers i.e. the petitioners, were made permanent in 1990 and restructuring exercise is pending at the government level since 2014. The restructuring exercise has not been finalised yet and the sub-ordinate staff of the petitioners are getting more salary than the petitioners on account of the fact that the claim of the petitioners has not been finalised. Even after continuous service of more than 25 years, the petitioners are still struggling for their promotion and financial benefits.
29. The Hon'ble Supreme Court in the case of D.R. Nim, IPS v. Union of India - AIR 1967 SC 1301 has observed that when an officer has worked for a long period in a post and had never been reverted, it cannot be held that the officer's continuous officiation was a mere temporary or local or stop-gap arrangement even though the order of appointment may state so. In such circumstances, the entire period of officiation has to be counted for seniority. Any other view would be arbitrary and violative of Articles 14 and 16(1) of the Constitution because the temporary service in the post in question is not for a short period intended to meet some emergent or unforseen circumstances.
30. In the case of G.K. Dudani & Ors. v. S.D. Sharma & Ors. - 1986 (supp) SCC 239, the Hon'ble Supreme Court has held that promotees appointed to temporary additional posts which were initially created for a specific period but still continuing, as also those initially appointed to cadre posts but later deputed to hold ex-cadre posts, also fall within the category of regularly appointed. Therefore, rule of continuous length of service would apply to them also with effect from the date of their such appointments.
31. The Hon'ble Supreme Court in the case of State of Tripura and Ors. v. K.K. Roy - (2004) 9 SCC 65 has held in Paras - 4, 5 & 6 as under:-
"4. Indisputably, the post of Law Officer-cum-Draftsman is a single-cadre post. It is also undisputed that there does not exist any promotional avenue therefor. The respondent is holder of a Master's degree as also a degree in Law. He was appointed in the year 1982. If the contention of the appellant is to be accepted, the respondent would be left without being promoted throughout his career. In almost an identical situation, a Bench of this Court in Council of Scientific and Industrial Research v. K.G.S. Bhatt [(1989) 4 SCC 635 : 1990 SCC (L&S) 45 : (1989) 11 ATC 880] held: (SCC pp. 638-39, para 9) "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. One 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. (See Principles of Personnel Management, Flipo, Edwin B., 4th Edn., p. 246.) 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.' (See Personnel Management, Dr Udai Pareek, p. 277.) There cannot be any modern management much less any career planning, manpower development, management development etc. which is not related to a system of promotions."
5. The matter came up for consideration again in O.Z. Hussain (Dr) v. Union of India [1990 Supp SCC 688 : 1991 SCC (L&S) 649 : (1991) 16 ATC 521] wherein this Court in no uncertain terms laid down the law stating: (SCC pp. 691-92, para 7) "Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical ''A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers."
6. It is not a case where there existed an avenue for promotion. It is also not a case where the State intended to make amendments in the promotional policy. The appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondent having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue for promotion, he cannot resile therefrom. It is not a case where the principles of estoppel or waiver should be applied having regard to the constitutional functions of the State. It is not disputed that the other States in India/Union of India having regard to the recommendations made in this behalf by the Pay Commission introduced the Scheme of Assured Career Promotion in terms whereof the incumbent of a post if not promoted within a period of 12 years is granted one higher scale of pay and another upon completion of 24 years if in the meanwhile he had not been promoted despite existence of promotional avenues. When questioned, the learned counsel appearing on behalf of the appellant, even could not point out that the State of Tripura has introduced such a scheme. We wonder as to why such a scheme was not introduced by the appellant like the other States in India, and what impeded it from doing so. Promotion being a condition of service and having regard to the requirements thereof as has been pointed out by this Court in the decisions referred to hereinbefore, it was expected that the appellant should have followed the said principle."
32. The following has been held in Paras - 28 & 30 by Hon'ble Supreme Court in the case of A. Satyanarayana and Ors. v. S. Purushotham and Ors. - (2008) 5 SCC 416:
"28. The superior courts, while exercising their power of judicial review, must determine the issue having regard to the effect of the subordinate legislation in question. There must exist a rational nexus between the impugned legislation and the object of promotion. Promotions are granted to a higher post to avoid stagnation as also frustration amongst the employees. This Court, in a large number of decisions, has emphasised the necessity of providing for promotional avenues. (See Food Corporation of India v. Parashotam Das Bansal [(2008) 5 SCC 100] .) The State, keeping in view that object, having found itself unable to provide such promotional avenue, provided for the scheme of accelerated career progress (ACP). The validity and effect of the impugned legislation must be judged keeping in view the object and purport thereof. This Court would apply such principle of interpretation of statute which would enable it to subserve the object in place of subverting the same.
30. Although mere chance of promotion is not a fundamental right, but right to be considered therefor is. In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all times to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India."
33. It is also admitted fact that in the minutes of meeting held on 31.08.1998 and 03.09.1998 (Annexure - 15) it was resolved to regularise all ex-cadre posts in all the departments of Government of U.P. The posts of Training Officers (petitioners) of JTRI also fall within the ambit of the aforesaid resolution. Vide letter bearing No.अ0शा0प0सं0-13/7/98-का-1-1998 उत्तर प्रदेश शासन कार्मिक अनुभाग-1, लखनऊ: dated 16.11.1998, all Principal Secretary/Secretary of Government of U.P. were informed about the aforesaid resolution. According to the aforesaid resolution, the post of Training Officers in JTRI were to be brought amongst the cadre post in the year 1998. In such circumstances, issuance of Government Order dated 08.12.1996 (supra) treating all ex-cadre posts as cadre post only w.e.f. 15.06.2003 is not consonance with the resolution passed in the meeting held on 31.08.1998 and 03.09.1998. Therefore, I am convinced with the arguments and contentions of the petitioners that fixing of an arbitrary date for treating their services as cadre post w.e.f. 15.06.2003 is wrong and without any basis. Government Order dated 08.12.2016 is, therefore, nothing but has been passed for annulling the monetary benefits and promotional avenues of the petitioners according to their long length of service since they have been appointed on 22.06.1990, 07.12.1993 & 20.03.1996 respectively.
34. It is an admitted fact that rules regarding promotioal avenues of Training Officer of JTRI is not in existence yet. However, the employees cannot be made to suffer in the absence of such rules. The Hon'ble Supreme Court in a number of cases has clearly stated that promotions are granted to a higher post to avoid stagnation. The work of Training Officer is perennial, regular and permanent and without this post, existence of JTRI may not be imagined. It is the admitted fact that they continued in service without any break from the respective dates of their appointment, therefore, they are members of the service in a substantive capacity. The post of Training Officer was not created for any specific person or particular period and not going to be abolished after their retirement. The institution like JTRI is meant for programmes relating to training & research, holding & organizing conferences at State, National & International Level wherefore Training Officers perform pivotal role, therefore, even assuming such post as an ex-cadre post would defeat the very purpose of establishing the JTRI.
35. The petitioners have been given service benefits i.e. Time Scale and ACP etc. arising out of their continuous long length of service required for the same. In the counter affidavit dated 20.07.2018, the following has been contended in Para - 11:-
"11. That, in the meantime, a test checking of the pay fixation of the officers/employees working in the JTRI was conducted by the team of auditors of the Establishment Revision Bureau (अधिष्ठान पुनरीक्षण ब्यूरो), Department of Finance, U.P., Civil Secretariat, Lucknow, from 01.05.2017 to 05.05.2017 in which discrepancies were found in fixation of total 08 officers/ employees working in the JTRI, including the petitioners herein. Subsequently, vide Letter No.ब्यूरो -638/दस-2017 6 (ऑडिट)/2017, dated 25.08.2017, issued by the Director, Establishment Revision Bureau, Department of Finance, U.P., Lucknow, it was directed that the fixation of pay etc. of the aforementioned 08 officers/employees found erroneous in the aforesaid test checking/audit, be corrected and the amount paid in excess to their entitlement be adjusted from their salary etc after inviting their objections in that regard."
36. After perusing the aforesaid contentions made in the said counter affidavit, I do not find any logic or justification for passing an order for recovery or excess payment made to the petitioners which has been given to them after considering their continuous long length of service.
37. In view of the foregoing observations, the instant petition is allowed.
38. Writ of Certiorari is issued quashing impugned order(s) dated 25.09.2017 (Annexures - 1, 2 & 3) passed by respondent no.2/Director, Judicial Training and Research Institute, Lucknow.
Writ of Mandamus is issued directing respondents to consider the petitioners for upgradation/modification of their pay scale as per minutes of meeting held on 31.08.1998 and 03.09.1998 and as per letter dated 16.11.1998.
Writ of Mandamus is issued directing respondents not to recover excess payment, if any, already paid to the petitioners.
Writ of Mandamus is also issued directing respondents to create a structure of cadre by providing avenue of promotions from the post of Training Officers, at the earliest.
Order Date :- 21.05.2021 nishant (Chandra Dhari Singh, J.)