1. Heard learned counsel for the parties.
2. These bunch of writ petitions are filed by the petitioners challenging the government order dated 15-02-2012 and the office order dated 19-09-2012. Similar reliefs are also prayed for in other writ petitions. For convenience, the reliefs as prayed for by the petitioners in Writ Petition No. 7464(S/S) of 2012, are quoted below :-
i) issue a writ, order or direction in the nature of Certiorari quashing the paragraph 3 of the Government Order dated 15.2.2012, contained in Annexure No. 9 to the writ petition and also accordingly quashing the inter se eligibility list dated 9.7.2012 in which the petitioner No. 4 has been placed at Sl. No. 64, contained in Annexure no. 10 to the writ petition;
ii) issue la writ, order or direction in the nature of certiorari quashing the office order dated 19.9.2012, contained in Annexure No. 19 to the writ petition, by means of which the orders dated 2.8.2005 and 4.6.2007, by which the higher scale of pay on the basis of the recommendation of the Second Pay Committee was made admissible to the petitioner, have been cancelled;
iii) issue a writ, order or direction in the nature of mandamus restraining the opposite parties to give effect to the Government Order dated 15.2.2012 and the inter se eligibility list dated 9.7.2012 as well as to the impugned Order dated 19.9.2012;
iv) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to continue to pay the salary to the petitioners in the scale of pay which has been made admissible to the petitioners by means of the orders dated 2.8.2005 and 4.6.2007;
v) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to amend the Uttar Pradesh Registration Department Ministerial (Headquarters Establishment) Service Rules, 1979 since 2005;
vi) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to correct the eligibility list in view of the fact that the petitioners have been made admissible the benefit of the scale of pay of Rs. 5500-9000 w.e.f. 2.8.2005 and 4.6.2007."
3. Claim of the petitioners is that the petitioners were appointed on the post of Stenographers (Lower Grade) in the year 1991 and 1993 on regular basis in accordance with U.P. Registration Department Ministerial (Headquarters Establishment) Service Rules, 1979 (hereinafter referred to as ''the Service Rules of 1979). They all were confirmed in due course of time on the said post of Stenographers (Lower Grade) as per the service rules. After completion of 14 years of satisfactory service, they were also granted the selection grade and after completion of 16 years of service, the benefit of Second Assured Career Promotion(A.C.P.) was also granted to them by the government order dated 27.8.2004. The said government order also required for relevant amendments to be made in the service rules. However, petitioners were duly paid the revised pay-scales as per the government order dated 27.8.2004 without there being any amendment made to the rules. On 26.8.2005, an order was issued by the Personnel Department providing the requisite years of service for granting different scales of pay in Stenographer cadre and the petitioners, who were eligible, were also given the benefit of the said government order. On 24.8.2009, another government order was issued providing for new pay scales admissible to the Stenographers. All the said benefits were granted without making any amendments to the rules.
4. The petitioners claim that they were being paid the pay scales as per the aforesaid government orders. They further claim that under the U.P. Sub. Registrar Service Rules, 1983, the recruitment to the posts of Sub. Registrar is to be made 75% by direct recruitment and 25% by promotion from amongst the permanent ministerial staff of the office of the Inspector General and the permanent Chief Registration Clerks and permanent Registration Clerks of the subordinate offices under his administrative control. Thus, the petitioners claim that on account of this 25% promotion quota, 6% posts of Sub. Registrar are to be filled in from amongst the ministerial staff of the office of the Inspector General and the remaining 19% are to be filled in from amongst the permanent Chief Registration Clerks and permanent Registration Clerks of the subordinate offices under his administrative control. They claim that they are entitled for promotion within 6% quota of promotion to be filled in from amongst the permanent ministerial staff of the office of the Inspector General which includes Head Clerks and Stenographers. Their claim is set up under Rule 5(b)of the U.P. Sub. Registrars' Service Rules, 1983. For convenience, said rules are quoted below :-
Part III-Recruitment "Source of Recruitment
5. (1) Recruitment to the posts in the ordinary grade of the service shall be made from the following sources :-
(a) By direct recruitment :
(b) By promotion from amongst the permanent ministerial staff of the office of the Inspector General, permanent Chief Registration Clerks and permanent Registration Clerks of the Subordinate Offices under his administrative control :
Provided that the recruitment shall be so arranged that, as for as possible, the total strength of the promotees at any time, shall not exceed 25% of the strength cadre :
Provided further that as for as possible the total strength of promotees from amongst the ministerial staff of the office of the Inspector-General at any time shall not exceed 6 percent of the strength of the cadre.
NOTE- For the purpose of promotion a combined eligibility list shall be prepared by arranging the names of persons in higher pay scale in order of their seniority followed by the names of persons in the next lower pay scale in order of their seniority and where the pay scales are same, their names shall be arranged in order of seniority as determined on the basis of the dates of their substantive appointments so however that their Inter se seniority in their own cadre is maintained."
5. Petitioners claim that on account of their salary having been fixed in the pay scale of Rs. 5500-9000/- they are to be placed over and above all the employees of feeding cadre having the pay scale of Rs. 5000-8000/- and Rs. 4000-6000/-
6. A detailed Counter Affidavit is filed by the State. The stand of the State is that Uttar Pradesh Sub Registrar Services Rules, 1983 provided for appointment on the post of Sub. Registrar by way of promotion in which 25% of the posts of Sub. Posts of Registrar are to be filled by promotions from amongst the ministerial cadre of the office of Inspector General and permanent Chief Registration Clerks, Registration Clerks of the Subordinate Officers. They also admit that under the promotion quota of Sub. Registrar, 6% would include the Ministerial Staff of the office of the Inspector General and as against 19%, the permanent Chief Registration Clerks, Registration Clerks, which includes the petitioners.
7. For considering the aforesaid incumbents for promotion, a combined eligibility list is to be prepared in order of seniority which is based on the pay scale in which the incumbent is working. Stand of the state is that there is no separate cadre of Stenographers and, on the contrary, the ministerial staff includes Stenographers and Clerks working in the office of the Inspector General. Reliance is placed on Rules 3(k), 4 & 5 of the Uttar Pradesh Registration Department Ministerial (Headquarters Establishment) Serviced Rules, 1979, which are quoted below :-
3 (k) ''Service' means the uttar Pradesh Registration Department Ministerial (Headquarters Establishment) Service; and (I) ''year of recruitment' means the period of twelve months commencing from the first day of calendar year.
PART II-CADRE
4. Cadre of Service (1) The strength of service and of category of posts therein will be such as may be determined by the Government from time to time.
(2) The strength of the service and each category of posts the shall, until orders denying the same are passed under sub-rule (1), shall as given in Appendix'A;
Provided that-
(1) the appointing authority may leave unfilled or the Government may hold in abeyance any vacant post without thereby entitling person to compensation; and (2) the Governor may create such additional permanent or temporary posts from time to time as he may consider proper.
PART III - RECRUITMENT
5. Source of Recruitment- Recruitment to the various categories of pots in the service shall be made from the following sources :
NOTE- In the eligibility list to be prepared for the purpose of promotion to the post of Head Clerk, names of Senior Noters and Drafters shall be placed at the top followed names of Noters and Drafters. Names of each category of persons will be arrange according to their seniority.
(ii) Senior Noter and Drafter By promotion from amongst permanent Noters and Drafters (iii) Noter and Drafter By promotion from amongst the permanent Routine Grade Clerks. (iv) Routine Grade Clerk By direct recruitment (v) Stenographer(Higher Grade) By promotion of permanent Stenographer (lower grade) who has put in at least three years of service as such. If Stenographer (lower grade is not found fit or eligible, the post may be filled by direct recruitment. (vi) Stenographer (Lower Grade) By direct recruitment. 8. Further reliance is placed on Rule 22 of the aforesaid Rules of 1979. For convenience, Rule 22 of the said Rules is quoted below :-
22. Scale of Pay-(1) The scales of pay admissible to persons appointed to the various categories of posts in the service, whether in substantive or officiating capacity, or a temporary measure, shall be such as may be determined by the Government from tome to time.
(2) The scales of pay at the time of the commencement of these rules are given below :-
Name of Post Scale of pay-scale 1. Head Clerk Rs. 400-15-475 E.B. 15-550 2.Senior Noter and Drafter Rs. 250-7-285E.B.9.375.E.B.10.425 3. Noter and Drafter Rs. 230-6-290E.B.-9-335.E.B.-10.385 4.Routine Grade Clerk Rs. 200-5-250E.B.-6.280E.B.-8.320 5.Stenographer(higher grade) Rs. 300-8-340E.B.10-440 E.B.-12-500 6.Stenographer(lowergrade) Rs. 250-7-285 E.B.-9- 375 E.B.10-425
9. Submission of learned Standing Counsel is that since in the present department, the Stenographers do not form a separate cadre and are one with the ministerial cadre, unlike in other departments of the state government, where they form a separate cadre, hence, in order to provide adequate promotional avenues to the Stenographers, in the year 1997-1999, the Pay Commission recommended for restructuring of the Stenographer cadre, which were duly accepted and thus, a new restructured cadre of Stenographer was to be constituted. It was planned with new staffing pattern scheme . The Stenographer cadre was to consist of :-
i. Stenographer Grade-II Rs. 4000-6000 ii. Stenographer Grade-I Rs. 5000-8000 iii. Personal Assistant Grade-II Rs. 5500-9000 and iv. Personal Assistant Grade-I Rs. 6500-10500
10. Therefore, a government order dated 27-08-2004 was issued identifying the existing posts of the Stenographers and pay thereof. The said government order provided that a separate government order would be issued with respect to cadre restructuring of the Stenographers so as to implement the recommendations of the Pay Commission. The said government order further specifically provided that subsequent to issuance of the necessary order from the State Government with regard to cadre restructuring of Stenographer, the benefit of the enhanced pay scale would be applicable and accordingly, the existing 2 posts of Stenographer in the higher pay scale and 60 posts of Stenographers in the lower grade were proposed to be re-structured in 4 categories as indicated above. It appears that without waiting for issuance of the appropriate government orders from the State Government and modification of rules, wrongly and by mistake certain incumbents working as Stenographer in the Ministerial Cadre in the office of the Inspector General Registration were granted the benefit of the revised/new pay scale by means of the order dated 9.8.2005.In fact, the same could not have been granted as relevant instructions were yet to be issued with regard to staffing pattern of Stenographers cadre. Thereafter, by Government Order dated 26.8.2005 providing the procedure and method with regard to filling the posts in restructured cadre of Stenographer was issued. The said government order dated 26.8.2005 prescribed procedure pursuance to which the incumbents working under the Stenographers Cadre were to be given promotional pay scale. The government order dated 26.8.2005 further specifically provided that a separate order was to be issued from the administrative section of the concerned department for incorporating the necessary amendments in the service rules. The said government that provided procedure, also specifically provided that the enhanced pay scale would be admissible only after incorporation of necessary amendment in the service rules.
11. It appears that by mistake, without there being any amendment incorporated in the service rules, petitioners and other alike persons were wrongly given the benefit of new pay scale and/or promotional pay scale and accordingly in order to remove the said anomaly a fresh government order dated 15.2.2012 was issued, which again specifically provided that benefit of the revised pay scale and benefit of the government order dated 26-08-2005 would be made available only after amendment is made in the service rules. In pursuance to the government order dated 15th February, 2012, a departmental order dated 19.09.2012 was issued providing that the pay scale of petitioners and alike persons were wrongly revised and the said revision of pay scale was cancelled.
12. Submission of learned Standing Counsel is that since the service rules were not amended, the petitioners were not entitled for the revised pay-scale, which has been withdrawn by order dated 19th September,2012.
13. I have heard learned counsels of the parties at length with the assistance of materials given by them as placed on record.
14. From perusal of Service Rules of 1979, it is clear that there is only one cadre from which promotions are to be made and the pay scales admissible to the persons appointed to the various categories of posts in the service is provided under Rule 22 of the said Rules. In the government order dated 24.08.2009, in para 4, it is specifically provided that the same would be applicable from the date of amendment in the concerned service rules. For convenience, Clause 4 of the said government order dated 24th August, 2009, is quoted below :-
"4& lacaf/kr lsok fu;ekoyh esa ;Fkko';d la'kks/ku dh dk;Zokgh dk;Zdkjh vkns'kksa ds fuxZr gksus dh frfFk ls izHkkoh dh tk;sxhA""
15. From perusal of said Clause 4 of the government order dated 24th August, 2009, it is clear that the same shall be made applicable from the date of amendment in the concerned service rules. It was again reiterated in Clause 3 of the government order dated 15th February, 2012. For convenience, Clause 3 of the said government order dated 15th February, 2012 reads as follows :-
"3& eq>s ;g Hkh dgus dk funs'k gqvk gS fd lEcfU/kr fu;ekoyh (;fn dksbZ gks) esa vko';d la'kks/[email protected]'k fnukad 26 vxLr] 2005 ls izHkkoh fd;k tk;sxkA bl 'kklukns'k dh O;oLFkk dk ykHk] lsok fu;ekoyh esa rn~uqlkj la'kks/ku ds mijkUr] ns; frfFk ls gh vuqeU; gksxkA"
16. From the reading of the aforesaid government order dated 15th February,2012, it is clear that benefit of the government order was to be made applicable after amendment in the service rules.
17. It is admitted that the said rules were not amended. Since, the service rules were not amended, benefit of the said government orders ought not to have been given to the petitioners and the same could be given only after amendment in the service rules. There is no illegality or infirmity in the departmental order dated 19-09-2012, whereby petitioners' pay scale has been corrected and benefits wrongly given to them have been withdrawn.
18. In view of aforesaid, petitioners were not entitled for the enhanced pay-scale, as amendment in the relevant service rules did not take place, merely on the basis of the government order, which could only be given effect to by making necessary amendments in the service rules. The petitioners could not have been paid the higher pay-scales, which were paid to them.
19. At this stage, learned counsel for the petitioners has placed reliance on the following Judgments of Apex Court as well as this court :-
1. (1994) 2 Supreme Court Cases,521, Shyam Babu Verma and Others Vs. Union of India and Others
2. (1994) 6 Supreme Court Cases, 154, Bhagwan Shukla Versus Union of India and Others
3. 1995 Supp (1) Supreme Court Cases, 18, Sahib Ram Versus State of Haryana and Others
4. (1996) 4 UPLBEC, 2634, Bindeshwari Sahai Srivastava Vs. The Chief Engineer, Irrigation Department, U.P. and Others
20. Reliance is placed on para 11 of the Judgment in the case of Shyam Babu Verma(Supra), which is quoted below :-
"11. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1,1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1,1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps would be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."
21. Reliance is placed on para 3 of the Judgment in the case of Bhagwan Shukla's case(Supra), which is quoted below :-
"3. We have heard learned counsel for the parties. That the petitioner's basic pay had been fixed since 1970 at Rs, 190 p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs. 181 p.m. from Rs. 190 pan. in 1991 retrospectively w.e.f. 18-12-1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not, even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There, has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the (sic. employee) concerned to notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25.7.1991. which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant. The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17.9,1993 as well as the order (memorandum) impugned before the Tribunal dated 25.7.1991 reducing the basic pay of the appellant From Rs. 190 to Rs. 181 w.e.f. 18.12,1970."
22. Reliance is placed on para Para 5 of the Judgment in the case of Sahib Ram case(Supra), which is quoted below :-
"5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstance the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on revised scale. However, it is not on account of any mis-representation made by the appellant that the benefit of higher pay-scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The Principle of equal pay for equal work would not apply to the scale prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."
23. Reliance is placed on para 6 of the Judgment in the case of Bindeshwari Sahai Srivastava's case(Supra), which is quoted below :-
"6. In Paragaraph 15 of the writ petition, it has been stated by the petitioner that he has not committed any fraud or mis-representation in fixation of his salary at the rate of Rs. 930/- per month and if there was any mistake in fixing the pay, it was mistake of the respondents for which he is not responsible in any manner. These allegations have not been disputed in the counter affidavit. it is thus, apparent that in the instant case, the salary of the petitioner was fixed at Rs. 930/- per month by the Government in 1982 voluntarily without there being any fraud or misrepresentation on the part of the petitioner. The respondents, as such, can not recover from the petitioner after his retirement any part of the salary already paid to him."
24. Relying upon the aforesaid Judgments of the Apex Court as well as of this court, submission of learned counsel for the petitioners is that said pay scales were paid to the petitioners without there being any mis-representation or any concealment made by the petitioners or any fraudulent act of the petitioners, hence, no recovery, of the amount already paid to them, should be made from them.
25. It appears that the State Government is not making any recovery from the petitioners. It appears from the record that there was no role played by the petitioners in payment of the said enhanced amount. However, the said question cannot be decided in the present bunch of writ petitions as there is no demand made as yet. However, in view of law settled by various Judgments of the Apex Court as well as by this court, it is provided that no recovery of amount shall be made from the petitioners and other similarly situated persons without first giving an opportunity of hearing/show cause notice in accordance with law.
With the aforesaid, all the writ petitions are dismissed.
Order Date :- 27.03.2018 AKS (Vivek Chaudhary,J.)