1. Heard Sri Saurabh Lavania, learned counsel for the petitioner and Sri N.K. Seth, learned Senior Advocate assisted by Sri Hari Prasad Gupta, Advocate for respondents.
2. This is a writ petition filed by an association, namely, U.P. Koshagar Karmchari Upsangh Collectorate Koshagar, Lucknow through its Secretary, Sri G.P. Srivastava, challenging the Government Order dated 13.09.2005, to the extent of quashing of para 8 thereof, whereby it has made Government Order dated 06.08.1998 ineffective and inoperative. Petitioner has also sought a writ of mandamus commanding respondents to maintain ratio of 80:20 of Treasury Accountants and Assistant Treasure Accountants in the Collectorate Treasury, Lucknow. It has further sought mandamus commanding respondents to pay salary to the members of petitioner's association working as Treasury Accountants in the pay scale of Rs. 1640-2900/- and 1400-2300 w.e.f. 01.01.1986 in the light of judgment dated 03.12.2004 passed in Writ Petition No. 6522 (SS) of 1993, as also in furtherance of paras 5 and 6 of Government Order dated 13.09.2005. An alternative prayer has been made by directing respondents to comply the Government Order dated 23.08.2005 and 08.09.2005. Another mandamus has been sought directing respondents to allow members of petitioner's association to continue to work on the post of Treasury Accountants and pay salary in the pay scale of Rs. 5500-9000/- in furtherance of Government Order dated 23.08.2005 and 08.09.2005.
3. Petitioner claims to be an association of Class-III officials working in Lucknow Treasury Office in the capacity of Assistant Treasury Accountants, Treasury Accountants and Assistant Treasury Officers. Earlier Assistant Accountants and Accountants working in Treasury Department were paid salary in the pay scale of Rs. 1200-2040 and 1400-2300 respectively while persons posted at U.P. Government Secretariat were getting salary in the pay scale of Rs. 1400-2600 and Rs. 1640-2900 respectively. The backdrop of the pay scale made applicable to aforesaid posts is taken from the fact that the Equivalence Committee, 1989 constituted by State Government to consider the pay parity of State Government employees with Central Government employees submitted a report and pursuant thereto the Government Order dated 10.07.1998 was issued and in respect of officials posted in Treasury Directorate, the pay scales were revised as under:
dzekad inuke fnukad 01-01-86 ds iwoZ ykxw osrueku fnukad 01-01-86 ls iqujhf{kr osrueku 1 dks"kkxkj eq[; fyfid @ vij dks"kkxkj eq[; [email protected] lgk;d dks"kkxkj eq[; fyfid&u;k inuke&lgk;d dks"kkxkj vf/kdkjh 625&1360 1640&2900 2 fcy ikj.k [email protected] psd jkbZVj&u;k inuke&dks"kkxkj ys[kkdkj 470&735 1200&2040 3 isaa'ku fyfid @ofj"B [email protected][kiky @vf/k"Bku fyfid&u;k inuke&lgk;d dks"kkxkj ys[kkdj xzsM&1 430&685 1200&2040 4 dfu"B fyfid @L;[email protected] @Vadd&u;k inuke&lgk;d dks"kkxkj ys[kdkj xzsM &2 354&550 950&1500 English translation by the Court S.N.
Designation Pay scale prior to 1.1.1986 Revised pay-scale since 1.1.1986
1. Head Clerk, Treasury/Additional Head Clerk, Treasury/Assistant Head Clerk, Treasury New Designation - Assistant Treasury Officer 625-1360 1640-2900
2. Bill Passing Clerk/Cheque Writer New Designation - Treasury Accountant 470-735 1200-2040
3. Pension Clerk/Senior Clerk/Record Keeper/Establishment Clerk New Designation -Assistant Treasury Accountant Grade - I 430-685 1200-2040
4. Junior Clerk/Syah Nawis/Typist New Designation - Assistant Treasury Accountant, Grade - II 354-550 950-1500
4. The aforesaid pay scales were modified by another Government Order dated 21.03.1990 and in respect of Items No. 2, 3 and 4, hereinabove, the pay scales were revised as under:
dzekad inuke iqujhf{kr osrueku vH;qfDr 1 dks"kkxkj ys[kkdkj 1400&2600 & 2 Lkgk;d dks"kkxkj ys[kkdkj xszM&1 1200&2040 inuke lgk;d dks"kkxkj ys[kkdkj j[kk tk;
Lkgk;d dks"kkxkj ys[kkdkj xzsM&2 1&950&1500 2&1200&2040 72 inksa ds fy, tks lkekU; izd`fr dk dke djrs gSa] rks 788 inksa esa ls vyx djrs gq, dfu"B fyfid inuke j[kk tk; rFkk 'kSf{kd ;ksX;rk bUVj dkelZ ,dkmUVsUlh lfgr j[kh tk; rFkk Hkfo"; esa bu inksa ij fu;qfDr;ka lsysD'ku cksMZ ds ek/;e ls dh tk;
'ks"k 716 inksa dk inuke lgk;d dks"kkxkj ys[kkdkj j[kk tk;A English translation by the Court S.N Designation Revised Pay scale Remarks
1. Treasury Accountant 1400-2600
---
2. Assistant Treasury Accountant Grade - I 1200-2040 Be designated as Assistant Treasury Accountant
3. Assistant Treasury Accountant Grade - II (1) 950-1500 (2) 1200-2040 72 posts, incumbents of which perform ordinary nature of work, be separated from 788 posts, giving them the designation of Junior Clerk and prescribing Inter (Commerce) with Accountancy as educational qualification; and appointments to these posts be done in future through the Selection Board.
The remaining 716 posts be designated as Assistant Treasury Accountant
5. It was also decided that the proportion of posts of Treasury Accountants and Assistant Treasury Accountants shall be maintained as 80:20 w.e.f. 01.01.1986.
6. Petitioner claims that Accountants and Assistant Accountants working in Treasury Department are getting salary in the pay scale lower than what is paid to the persons holding similar designated posts in Civil Secretariat and this is arbitrary. Writ Petition No. 6522(SS) of 1993 was filed by, which was partly allowed vide judgment dated 03.12.2004 in the following manner:
"In view of the above-mentioned facts and circumstances, the Writ Petition No. 6522 (SS) of 1993 is allowed in part and a writ in the nature of mandamus is issued, commanding the opposite parties to grant parity to the Treasury Accountants in the Government Treasuries with the Accountants/Assistant Accountants working the State Secretariat by granting them pay scale of Rs. 1640-2900 w.e.f. 1.1.1986 and also grant arrears of salary in accordance with law. A writ in the nature of mandamus is also issued, commanding the op0posite parties to grant parity to the Assistant Treasury Accountants working under the Head of the Departments in the State of U.P. as well as Junior Accountants in the Central Government by granting them pay scale of Rs. 1400-2300 w.e.f. 1.1.1986 alongwith arrears."
7. There was another Writ Petition No. 6658 (SS) of 1996 filed by petitioner's association which was dismissed by aforesaid judgment dated 03.12.2004.
8. In compliance of aforesaid judgment dated 03.12.2004 the State Government issued order dated 13.09.2005 providing pay scale of Rs. 1640-2900 and Rs. 1400-2300 to Treasury Accountants and Assistant Treasury Accountants w.e.f. 01.01.1986 and the earlier Government Orders dealing with pay scales of aforesaid cadres have been directed to stand amended accordingly.
9. There was another issue with regard to maintenance of ratio of the post of Treasury Accountants and Assistant Treasury Accountants, i.e., 80:20 and that fixation was accepted by State Government vide order dated 06.08.1998 on account whereof the Writ Petition No. 6658 (SS) of 1996 was dismissed having become infructuous but while revising pay scales by Government Order dated 13.09.2005 the aforesaid Government Order dated 06.08.1998 has been held ineffective and it is directed that earlier sanctioned posts will stand revived.
10. It appears that as on 01.01.1986 there were 422 posts of Treasury Accountants and 1866 posts of Assistant Treasury Accountants. As a result of providing 80:20 ratio of Accountants and Assistant Accountants, the cadre strength became 1829 posts of Accountants and 459 posts of Assistant Accountants, as was clarified by Government Order dated 06.08.1998. The result of making ratio of 80:20 inoperative, the earlier sanctioned strength of two cadres stand revived.
11. Learned counsel for the petitioner submitted that cadre strength cannot be altered so as to cause prejudice to petitioner and this reduction of strength of higher cadre and increase of lower cadre is patently illegal and arbitrary.
12. The submission, in my view, is patently erroneous. The cadre strength and fixation of number of posts in strength is a policy decision. It is not the case of petitioner's association that as a result of reduction in strength, any member of petitioner's association, who was already getting salary in higher pay scale, has been placed in lower scale and his salary has been reduced. As a result of alteration of cadre strength it is only the chance of promotion, which will be affected. It is within the domain of employer to determine the strength of various cadres in personnel's structure in the establishment. It cannot be said that providing lesser number of posts in higher cadre would be per se illegal or arbitrary or otherwise vitiated in law, if large number of posts in higher cadre are reduced and in the lower cadre the strength is increased or revived. It is not the case of petitioner that any vested right of its members has been denied. Chance of promotion is not a vested right but it is only right of consideration for promotion whenever the occasion arisen. The Apex Court in High Court of Delhi and Anr. v. A.K. Mahajan and Ors. (2009) 12 SCC 62 has explained and reiterated the principles that a mere chance of promotion cannot be a ground to challenge the amendments to the rules. It is only when the selection for direct recruitment or promotion actually starts by way of advertisement or calling for the names for consideration for promotion, that the chance of promotion crystallizes into a right of consideration for promotion. Even in such case if the rules are validly amended retrospectively, a person having only a right to be considered for promotion cannot claim promotions to be made in accordance with the old rules. The Court said:
"22. This Court has time and again held that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of employer. That right of consideration may accrue at a particular point of time or subsequently thereto. Merely because at a particular point of time the employee is not considered, does not mean the total denial of the consideration of the employee."
13. Learned counsel for the petitioner could not show anything to persuade this Court as to how para 8 of Government Order dated 13.09.2005 is vitiated in law.
14. It also cannot be doubted that an executive order can always be changed by issuing a subsequent executive orders. Had the pay scales already made available to any member of petitioner's association, if reduced, resulting in reducing his salary which he is actually getting when the impugned order was issued, something could have been said, but no such fact has been pleaded or placed before this Court. Learned counsel for the petitioner also could not show as to how petitioner's members have a vested right to claim a particular cadre strength as this is within the domain of employer and is a policy matter. Creation of post, in fact, is a legislative matter and unless shown arbitrary no interference is called for.
15. The petitioner, in effect, has required this Court to issue a writ of mandamus to respondents to create a post or maintain a particular cadre strength. I am afraid that such a mandamus cannot be issued to respondents. In Union of India and others Vs. Tejram Parashramji Bombhate and others, AIR 1992 SC 570, the Apex Court held that the Court or a Tribunal has no power to compel the Government to change its policy involving expenditure and to direct creation of any post. Following the aforesaid authority, in Gyan Prakash Vs. Union of India, 1997 (11) SCC 670 the Court said:
".......What the petitioner, in effect wants this Court to do is to issue a writ directing the creation of post in the Delhi Higher Judicial Service. Such a direction cannot in our opinion be given."
16. Therefore, in taking the view that for creation of post this Court cannot issue a direction I am fortified with the aforesaid authorities of the Apex Court and hence the relief as sought by the petitioner, which is of the same effect, in our view, cannot be granted.
17. There is another obstruction in the way of petitioner. The writ petition is on behalf of association; when not even a single member has joined array of party, same is not maintainable as held by Full Bench of this Court in Umesh Chand Vinod Kumar and others Vs. Krishi Utpadan Mandi Samiti, Bharthana and another, 1983 AWC 881. In para 45 of the judgment the Full Bench answered the question no. 1 as under:
45. Our answer to the referred questions is as follows:--
Q. 1 Whether an association of persons, registered or unregistered, can maintain a petition under Article 226 of the Constitution for the enforcement of the rights of its members as distinguished from the enforcement of its own rights?
A. 1 - The position appears to be that an association of persons, registered or unregistered, can file a petition under Article 226 for enforcement of the rights of its members as distinguished from the enforcement of its own rights-
(1) In case members of such an association are themselves unable to approach the court by reason of poverty, disability or socially or economically disadvantaged position (Title Indians").
(2) In case of a public injury leading to public interest litigation; provided the association has some concern deeper than that of a wayfarer or a busybody, i.e., it has a special interest in the subject-matter.
(3) Where the rules or regulations of the association specifically authorise it to take legal proceedings on behalf of its members, so that any order passed by the court in such proceedings will be binding on the members.
In other cases an association, whether registered or unregistered, cannot maintain a petition under Article 226 for the enforcement or protection of the fights of its members, as distinguished from the enforcement at its own rights."
18. In the present case none of the reasons have been shown to exist which would otherwise maintain the writ petition on behalf of association, registered or unregistered for enforcement of rights of its members. Despite repeated query, learned counsel for the petitioner could not show any of the aforesaid ground or conditions in which writ petition on behalf of association is maintainable. For this reason also the writ petition is liable to be dismissed.
19. In the entirety of facts and circumstances of the case I do not find any reason to interfere.
20. Dismissed. Interim order, if any, stands vacated.
Order Date :- 20.08.2014 AK