# Anoop Kumar Saxena & Ors v. State of U.P

- **Citation:** (2023) 7 ILRA 1358
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-14
- **Case number:** Writ A No. 902 of 2011
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anoop-kumar-saxena-ors-v-state-of-u-p-50383
- **Pages:** 45

## Headnote

C.S.C., Abhinav Trivedi, I.P. Singh, Sanjay
Bhashin,
Shubham
Tripathi,
Vinayak
Saxena

A. Service Law-Constitution of India,1950Article 226-The petitioners challenged the
withdrawal of pay scale benefits that had
been granted to them under a Governing
Body resolution dated 08.01.1988-The
central issue is whether the benefits
under this 1988 GB resolution can legally
coexist with the State Government's later
policy(dated
05.03.1991)
of
aligning
SGPGI employees' pay with that of All
India
Institute
of
Medical
Sciences(AIIMS), New Delhi-Held, The
extension of pay benefits under the 1988
Governing Body decision alongside AIIMS
parity granted by Government Order dated
05.03.1991 is impermissible-Dual financial
benefit
on
different
principles
is
unsustainable-The
1988
decision
was
never formally approved by the State
Government as required under section
25(3)
of
the
SGPGI
Act,
1983,
its
implementation in 1994 and subsequent
extension in 2002-2003 were thus without
lawful authority-Once parity with AIIMS
employees was granted and implemented
retrospectively
w.e.f.
01.01.1986,
the
1988
decision
stood
overridden
and
became redundant-Petitioners were given
show cause notices before withdrawal of
benefits and the matter was considered at
multiple institutional and statutory levels,
including by the Visitor under section 36
of the Act-While the governing body can
create and abolish posts u/s 19((2)(f) of
the Act, revision of pay scales affecting
financial liability requires prior State
approval under section 25(3)-Hence, the
writ petitions challenging the withdrawal
of benefits and the consequential orders
were
dismissed
as
being
devoid
of
merit.(Para 1 to 149)

The writ petition is dismissed. (E-6)
List of Cases cited:

## Text

_Characters 0–39,778 of 153,308. This is a partial read: ask again with offset=39778 for what follows._

1358 INDIAN LAW REPORTS ALLAHABAD SERIES
of unlawful absence from duties during his
foreign assignment period and a censure entry
was awarded to him in pursuance of the
disciplinary proceeding and while awarding the
punishment to the petitioner of censure entry,
one increment of the petitioner has been
stopped without clarifying that whether it is
permanent or temporary.

29. The petitioner was relieved from
service from the post of Physician, District
Hospital, Unnao and he handed over the charge
vide letter dated 16.02.1981 before proceeding
to Nigeria. Petitioner's service at Nigeria is
deemed to have been regularized and continued
in view of the fact that the State Government
vide order dated 07.07.1988 has regularized the
period of 16.04.1981 to 09.01.1985 - the period
during which the petitioner remained on foreign
assignment, as vide order dated 07.07.1988, he
was required to deposit the amount of GPF,
insurance and Pension Contribution for the said
period, which has been duly deposited by him
and the said fact has not been denied by the
respondents, therefore, there was no occasion
for issuing charge sheet dated 31.08.1990.

30. The respondents erred in law while
awarding censure entry to the petitioner in view
of the fact that on the one hand the State
Government has regularized the foreign
assignment period of the petitioner and on the
other hand censure entry was awarded to him in
pursuance to the disciplinary proceeding.

31. The disciplinary proceedings held by
the State authorities by and large do not adhere
to the well settled principles of law in the matter
of holding inquiry. This amounts to a dereliction
of duty embodied under U.P. Government
Servant (Discipline and Appeal) Rules, 1999.
The irregularities in the enquiry leave enough
scope for indiscipline and the guilty go
unpunished in all those cases, where the
procedural violations shield their misconduct.
The
discrepancies
also
prolong
the
disciplinary action contrary to the objects of
service jurisprudence. The dormant role on
the part of the State not to have a trained staff
for disciplinary enquiry cannot be viewed
lightly in every case. The disciplinary action
must
culminate
into
reformation
and
discipline.

32. In a departmental proceeding, if
allegation of unauthorized absence from duty is
made, the disciplinary authority is required to
prove that the absence is wilful and in absence
of such finding, the absence will not amount to
misconduct.

33. In view of reasons recorded above
and judgments relied upon by learned counsel
for the petitioner, the impugned orders dated
25.04.1996 awarding censure entry and
punishment to the petitioner and order dated
09.12.1998, whereby leave of the petitioner has
been rejected, are hereby quashed.

34. The writ petition succeeds and is
allowed.

35. Consequences to follow.

36. No order as to costs.
----------
(2023) 7 ILRA 1358
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.07.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 902 of 2011
connected with other cases

Anoop Kumar Saxena & Ors. ...Petitioners
Versus
State of U.P. ...Respondent
7 All. Anoop Kumar Saxena & Ors. Vs. State of U.P.
1359
Counsel for the Petitioners:
Shobhit Mohan Shukla, Kshemendra Shukla

Counsel for the Respondent:
C.S.C., Abhinav Trivedi, I.P. Singh, Sanjay
Bhashin,
Shubham
Tripathi,
Vinayak
Saxena

A. Service Law-Constitution of India,1950Article 226-The petitioners challenged the
withdrawal of pay scale benefits that had
been granted to them under a Governing
Body resolution dated 08.01.1988-The
central issue is whether the benefits
under this 1988 GB resolution can legally
coexist with the State Government's later
policy(dated
05.03.1991)
of
aligning
SGPGI employees' pay with that of All
India
Institute
of
Medical
Sciences(AIIMS), New Delhi-Held, The
extension of pay benefits under the 1988
Governing Body decision alongside AIIMS
parity granted by Government Order dated
05.03.1991 is impermissible-Dual financial
benefit
on
different
principles
is
unsustainable-The
1988
decision
was
never formally approved by the State
Government as required under section
25(3)
of
the
SGPGI
Act,
1983,
its
implementation in 1994 and subsequent
extension in 2002-2003 were thus without
lawful authority-Once parity with AIIMS
employees was granted and implemented
retrospectively
w.e.f.
01.01.1986,
the
1988
decision
stood
overridden
and
became redundant-Petitioners were given
show cause notices before withdrawal of
benefits and the matter was considered at
multiple institutional and statutory levels,
including by the Visitor under section 36
of the Act-While the governing body can
create and abolish posts u/s 19((2)(f) of
the Act, revision of pay scales affecting
financial liability requires prior State
approval under section 25(3)-Hence, the
writ petitions challenging the withdrawal
of benefits and the consequential orders
were
dismissed
as
being
devoid
of
merit.(Para 1 to 149)

The writ petition is dismissed. (E-6)
List of Cases cited:

1. Mallikarjuna Rao& ors. etc. Vs. St. of A.P.&
ors. Etc.Etc.(1990) AIR SC 1251:(1990) 2 SCC
707: (1990) 1 SCALE 705

2. Goa St. Cop. Bank Ltd. Vs. Krishna Nath
A.(dead) thru LRs. & ors., SC in Civil Appeal No.
10596 of 2010

3. Canara Bank Vs. V.K.Awasthi (2005) 6 SCC
321

4. Charan Lal Sahu Vs. U.O.I. (1990) AIR C 1480

5. Col. B.J. Akkara (Retd.) Vs. G.O.I. & ors.
(2006) 11 SCC 709

6. St. fo Punj. & ors. Vs. Rafiq Masih (2015) 4
SCC 334

7. Thomas Daneil Vs. St. of Ker. & ors. (2022)
SCC Online SC 536

8. S.I. Roop Lal & anr. Vs. L.G. thru Chief Secy.,
Delhi & ors. (2000) AIR SC 594=(2000) 1 SCC
644

(Delivered by Hon'ble Om Prakash Shukla, J.)

This judgment has been divided into
the following sections to facilitate analysis
:-

INDEX

Sl. No.
Heading
Page No.
A.
Introduction
4
B.
The SGPGI Act
9
C.
Facts of the case
15

(i)
Governing
Body
recommendation
dated
08.01.1988
15

(ii) Government Order dated
05.03.1991
17

(iii) Appointment of AACO's 18

(iv) Cadre Review dated
03.01.1997
19
1360 INDIAN LAW REPORTS ALLAHABAD SERIES

(v)
Re-structuring
of
the
Cadre on 27.11.2001
21

(vi) The case of AACO's
21

(vii) Implementation of GB
dated
08.01.1988
to
the
Ministerial & Secretarial case
23

(viii)
The
controversy
between the AACOS's and
Assistant Accountants
25
D.
 Contention of Parties
 31
E.
 Discussion & Findings
52
F.
 Conclusion
103

A. Introduction

(1) Whether benefit or parity in payscales with Head of Department (HOD)
employees can be extended in view of
Governing Body recommendation dated
08.01.1988, even after implementation of
the pay-scale parity policy with AIIMS
employee vide Government order dated
01.08.1990 and 05.03.1991 to the nonfaculty employees of the Sanjay Gandhi
Postgraduate Institute of Medical Sciences
(hereinafter to be referred in its acronym
'SGPGI or the Institute') is the core issue
engaging the attention of this court in this
bunch of writ petition. An ancillary issue
relating to the consequential effect of the
implementation of the said pay-parity on
the seniority list in these cadres is the other
issue, which is also to be determined in
these petitions.

(2) Procrastination in implementation
of the recommendation of the Governing
Body dated 08.01.1988 to these non-faculty
employees
in
the
"Accounts
Cadre,
Ministerial Cadre and Secretarial Cadre" of
SGPGI is allegedly the axiomatic cause for
these bunch of matter as contended by the
petitioners, whereas the State & SGPGI
have
contended
that
the
said
recommendation could not had been
implemented as per law in the given facts
and circumstances.

(3) Apparently, the present bunch of
writ petitions have been filed by two set of
petitioners; first set of petitioners are
employed in the Accounts, Ministerial and
Secretarial Cadres of the SGPGI and the
other set of petitioners are the Assistant
Accounts-cum-Computer
Operators
employed in the SGPGI.

(4) The crux of the matter is that as
far as the Accounts Cadre is concerned,
individuals appointed on the post of
Accounts Clerk and Cashier in pay scale of
Rs. 1200-2040/- between 1988 to 1991
have been granted promotion to the posts of
Assistant Accountants with higher pay
scale of 1400-12300 with effect from their
date of joining or 08.01.1988, whichever is
later, vide order dated 02.07.1994 and
difference of salary has been paid, which
has
all
occasioned
due
to
the
recommendation
of
General
Body
resolution dated 08.01.1988.

(5) Similarly, for the secretarial cadre,
individual Stenographers appointed in
October, 1991 in the pay scale of Rs. 12002040/- have been granted pay-scale of Rs.
1640-2900/- from their date of joining vide
order dated 02.04.2003 and difference of
salary was paid. As far as Ministerial Cadre
is concerned, individual Typists, who were
appointed in the pay scale of Rs. 9501500/- during the year 1988 to 1994, have
been granted next higher post and pay-scale
of Rs. 1200-2040/- from their date of
joining and they have further been granted
next higher post and pay scale of Rs. 14002300/- after 03 years; and another next
higher post and pay scale of Rs. 1640 -2900
after 05 years have been granted, vide order
dated 20.03.2002. These all promotions and
7 All. Anoop Kumar Saxena & Ors. Vs. State of U.P.
1361
grant of pay-scales have also been
orchestrated by the implementation of the
General Body Resolution dated 08.01.1988.
Further, advantage in the promotion and
seniority list has also been accorded to
these individuals.

(6) However, similar promotional and
pay-scales benefits were not extended to
some other employees of the Ministerial
Cadres and also to the Assistant Accountscum-Computer
Operators
(AACOs)
employed in the SGPGI, who have also
challenged the seniority list prepared by the
Institute from time to time.

(7) Vide the present Judgment, this
Court proposes to dispose of the following
writ petitions, which raises common
question of law :-

S. No.
Particulars
Relief claimed
1.
WRIT-A-902/2011
(Anoop Kumar Saxena
V/s State of U.P)

Petitioners of this writ
petition
essentially
belongs
to
Accounts
Cadre
Quashing of order
dated
15.01.2010
passed
by
the
President
of
the
SGPGI
directing
SGPGI to withdraw
the benefit of the
Governing
Body
decision
dated
08.01.1988
and
extended
on
02.07.1994 to the
petitioner.

Further,
quashing
has
also
been
sought
of
all
consequential
orders like decision
dated 06.03.2010 of
the
Governing
Body, Order dated
11.10.2010
issued
by the Director of
the
institute
and
order
dated
25.01.2011 passed
by the Visitor of the
SGPGI u/s 36 of the
Act.
2.
*WRIT-A-639/1999
(Mahesh Chandra V/s
SGPGI)
Quashing
of
seniority list dated
21.12.1998
and
prayer for direction
to SGPGI to publish
the
seniority
list
after
disposal
of
representation made
by the petitioner u/s
36 of the Act to the
Visitor.
* This writ petition has become infructous in the sense that
although the seniority list had not been quashed, however
these petitioners were permitted to agitate all their issue
before the Visitor and after agitating all the issues, another
seniority list dated 27.06.2014 was published, which has
been challenged vide another writ petition, which is also
being decided along with the present bunch of matters.
3.
WRIT-A-6545/2007
(Ram Naresh Maurya
V/s State of U.P)

Petitioner of this writ
petition
essentially
belongs
to
Accounts
Cadre
and
were
appointed on the post of
Asst.
Accountant-cumcomputer Operator on
25.05.1992
Writ of Mandamus
has been prayed for
direction
to
the
Institute to comply
with
the
recommendation of
high
level
committee chaired
by
secretary,
Medical education,
Govt. of U.P as per
direction
of
Government order
dated 25.01.2006 &
06.09.2006
And to place the
high
level
committee
report
dated
07.11.2005,
opinion of law &
finance department
of the Govt. of U.P
before
the
Governing body of
the Institute.
4.
WRIT-A-903/2011
(Arun Kumar Jaiswal &
Ors. V/s State of U.P)

Petitioners of this writ
petition
essentially
belongs
Ministerial
Cadre

Petitioner No. 12, 17, 22,
33
were
allowed
to
withdraw
vide
order
dated 23.05.2018.
Quashing of order
dated
15.01.2010
passed
by
the
president directing
SGPGI to withdraw
the benefit of the
Governing
Body
Decision
dated
08.01.1988
and
extended
on
02.07.1994 to the
petitioner.

Further,
quashing
has
also
been
sought
of
all
consequential
1362 INDIAN LAW REPORTS ALLAHABAD SERIES
orders like decision
dated 06.03.2010 of
the
Governing
Body, Order dated
11.10.2010
issued
by the Director of
the
institute
and
order
dated
25.01.2011 passed
by the Visitor u/s 36
of the Act.
5.
WRIT-A-904/2011
(Mahendra
Kumar
Verma V/s State of U.P)

Petitioner of this writ
petition
essentially
belongs to Secretarial
Cadre

Petitioner No. 5 & 6
were
permitted
to
withdraw
vide
order
dated 29.03.2018.

Petitioner No. 7 was
permitted to withdraw
vide
order
dated
24.01.2019

Petitioner No. 8,9 and 10
sought
withdrawal
of
writ petition vide CMA
No. 155962/2022
Quashing of order
dated
15.01.2010
passed
by
the
president directing
SGPGI to withdraw
the benefit of the
Governing
Body
Decision
dated
08.01.1988
and
extended
on
02.07.1994 to the
petitioner.

Further,
quashing
has
also
been
sought
of
all
consequential
orders like decision
dated 06.03.2010 of
the
Governing
Body, Order dated
11.10.2010
issued
by the Director of
the
institute
and
order
dated
25.01.2011 passed
by the Visitor u/s 36
of the Act.
6.
#WRIT-A-3607/2014
(Dinesh
Chandra
Srivastava & Anr. V/s
State of U.P)
Prayer to hold DPC
for filling of 4 post
of Accounts officer
and to consider the
petitioners
to
be
eligible candidates.

# The matter was disposed of vide an order
dated 07.08.2014 directing to hold DPC within
2 months from 28.09.2014. Further, status quo
order passed in Writ A-902/2011 to have no
effect. Subsequently, recalling application has
been filed vide CMA No. 132871/2014 by one
Dilip Singh & Mahesh Chand praying for
recalling of the order dated 07.08.2014. Thus,
the said Application is also pending and taken
together with other writ petitions for disposal.
7.
WRIT-A-3948/2014
(Dilip Singh & Anr. V/s
State of U.P)
Quashing
of
the
seniority list issued
vide
office
memorandum dated
27.06.2014
8.
WRIT-A-1400/2015
(Dinesh
Chandra
Srivastava V/s State of
U.P)
Quashing
of
the
order
dated
20.02.2015
and
declaration/implem
entation of the DPC
held on 04.02.2015

B. The SGPGI Act.

(8) Before embarking on to narrate
the facts of the present case, it would be
profitable to understand the provision of
the SGPGI Act, which is the parent law
under which the Governing Body and other
functionary
exercise
their
power
for
management & day to day affairs of the
Institute.

(9) SGPGI is an autonomous Institute
created under the statute, namely, Sanjay
Gandhi Post Graduate Institute of Medical
Sciences Act, 1983 (hereinafter referred to
as the 'Act 1983'). In pursuance to subsection (2) of section 41 of the Act, the first
regulations were framed in 2011. Thus,
after framing of the first statute of the
SGPGI in 2011, the Rules and Regulations
of the Government are not applicable
unless adopted by the Institute. Since, the
controversy relates back to pre-2011 era,
the said regulation is of little help to the
present context. However, the parent Act in
itself gains prominence.

(10)

Historically,
SGPGI
was
established by an Act of the State of Uttar
Pradesh, commonly known as the 'Sanjay
Gandhi Post Graduate Institute of Medical
Sciences Act, 1983'. Section 4 of the Act,
1983 provides for composition of the
Institute and Section 7 of the Act, 1983
provides for the object of the Institute.
Section 8 of the Act, 1983 deals with the
functions of the institute and Section 9 of
the Act, 1983 says as to who shall be the
7 All. Anoop Kumar Saxena & Ors. Vs. State of U.P.
1363
officers of the institute. Section 10 of the
Act, 1983 says that the Governor of the
State of Uttar Pradesh shall be the Visitor
of the institute and certain sweeping
powers have been given to the Visitor
under Section 10 as well as under Sections
34 and 36 of the Act, 1983. Similarly,
Section 11 of the Act, 1983 says that the
President of the institute shall be the Chief
Secretary of the State of Uttar Pradesh,
who shall also be the Chairman of the
Governing Body of the institute preside
over such meetings. The said section also
entails certain power to the President.
Sections 12 and 13 of the Act, 1983 relates
to the appointment of the Director and his
power and duties under the Act, 1983.

(11) Section 17 of the Act, 1983
mentions as to who shall be the authorities
of the institutes and enumerates the name
of (a) Governing Body; (b) Academic
Board;
(c)
Finance
Committee;
(d)
Selection Committee for appointment of
Professors and Heads of Departments of
the Institute; (e) Selection Committee for
appointment of teachers other than those
specified in clause (d); (f) such other
authorities as may be specified in the rules
to be authorities of the Institute.

(12) Section 18 of the Act, 1983
relates to who all shall consist of the
Governing body, which includes the name
of 13 persons, including the President and
Director as aforesaid. The said section
enumerates the following :

"18. Governing Body.- (1) The
Governing Body shall consist of the
following persons, namely: -

(a) the President;

(b) the Director;

(c) Secretary to the Government
of Uttar Pradesh in the Department of
Medical, Health and Family Welfare, exofficio;

(d) Secretary to the Government
of
Uttar
Pradesh
in
the
Finance
Department, ex-officio;

(e)
Director
of
Medical
Education, Uttar Pradesh, ex-officio;

(f) two Principals from amongst
the Principals of the State Medical Colleges
in Uttar Pradesh in rotation to be nominated
by the State Government; (g) two persons
being Heads of Departments in the Institute
to be nominated in rotation in the
prescribed manner;

(h) two persons from amongst the
teachers of the Institute to be selected in the
prescribed manner;

(i) two persons to be nominated
by the Visitor.

(2) The term of office of an exofficio member shall continue so long as he
holds the office by virtue of which he is a
member,

(3) The term of office of any
member nominated under clause (f) or
clause (g) or clause (i) of sub-section (1)
shall be three years from the date of his
nomination.

(4) The term of office of a
member under clause (h) of sub-section (1)
shall be two years from the first day of
January of the year in which he is elected.

(5) The term of office of a
member nominated to fill a casual vacancy
shall continue for the remainder of the term
of the member in whose place he has been
nominated.

(6)
Notwithstanding
anything
contained in this Act, a member nominated
under this section shall continue in office
until another person is nominated as a
member in his place.

(7) The Governing Body shall
meet at such time and place as the
1364 INDIAN LAW REPORTS ALLAHABAD SERIES
Chairman
may
from
time
to
time
determine;

Provided that the Governing
Body shall meet at least once in three
months.

(8) The procedure to be followed
by the Governing Body for the transaction
of business in any meeting or otherwise or
in the exercise of its power or discharge of
its functions shall be such as may be laid
down in the regulations.

(9) Subject to such control and
restrictions as may be prescribed, the
Governing Body may constitute such
Committees, as it thinks fit, for exercising
any power or discharging any functions
under this Act."

(13) Section 19 of the Act, 1983
mentions that the Governing Body shall be
responsible
for
the
general
superintendence, direction and control of
the affairs of the institute. The said section
inter alia states :

"19.
Functions
of
the
Governing Body.- (1) Subject to the
provisions of this Act, the Governing Body
shall be responsible for the general
superintendence, direction and control of
the affairs of the Institute

(2) Without prejudice to the
provisions
of
sub-section
(1),
the
Governing Body -

(a) Shall take steps for the
implementation of the decisions of the
Institute on questions of policy relating to
the administration of the affairs and
working of the Institute;

(b) shall institute courses of study
at the institute and take decisions on the
advice of the Academic Board on all
academic matters including matters relating
to the examinations conducted by the
Institute;

(c) shall hold and control the
property and funds of the Institute;

(d) may acquire or transfer any
movable or immovable property on behalf
of the Institute;

(e) shall administer any funds
placed at the disposal of the Institute for
specific purposes;

(f) may create or abolish posts of
teachers and other employees of the
Institute;

(g) may manage and regulate the
finances, accounts, investments property,
business and all other administrative affairs
of the Institute and for that purpose appoint
such agent as it may think fit;

(h)
may
invest
any
money
belonging to the Institute (including any
income from trust and endowed property)
in such stocks, funds, shares or securities as
it shall from time to time think fit;

(i) may enter into, vary, carry out
and cancel contracts on behalf of the
Institutes;

(j) may regulate and determine all
other matters concerning the Institute in
accordance with this Act and the ruler, and
regulations made thereunder."

(14) Further, Section 21 of the Act,
1983 says about constitution of the Finance
Committee and its duties. Section 21 interalia states :

"21. Finance Committee. - (1)
The Finance Committee shall consist of: -

(a) the Director who shall also be
the Chairman of the Committee;

(b) Secretary, to the Government
of Uttar Pradesh in the Department of
Medical, Health and Family Welfare, or his
nominee;

(c) Secretary to the Government
of Uttar Pradesh in the Department of
Finance, or his nominee;
7 All. Anoop Kumar Saxena & Ors. Vs. State of U.P.
1365

(d) two persons to be nominated
by the Governing Body from its members;

(e) the Executive Registrar;

(f) the Finance Officer who shall
also be the Secretary of the Committee.

(2) The Finance Committee shall
advice the Governing Body on matters
relating to the administration of property
and funds of the Institute including limits
for and principles to be observed with
regard to the recurring and non-recurring
expenditure for the ensuing financial year,
having regard to the income and resources
of the Institute.

(3) The Finance Committee shall
have such other powers and duties as may
be prescribed."

(15) Section 29 of the Act, 1983
says that all orders and decisions of the
Institute shall be authenticated by the
signature of the President or any other
member or officer authorised by the
institute in this behalf and all other
instruments shall be authenticated by the
signature of the Director or any other
officer of the Institute authorised in like
manner in this behalf. Section 30 of the
Act, 1983 protects the invalidation of any
proceeding by the institute due to any
vacancies etc., whereas Section 33 of the
Act, 1983 prescribes the control of the
State Government over the Institute, not
being inconsistent with the provisions of
this Act and for the purposes of efficient
administration of the affairs of the
Institute under this Act, 1983. Section 35
of the Act, 1983 gives prominence to the
State Government, in case there is any
dispute between the institute and the
State Government relating to exercise of
power and discharge of its function under
the Act, 1983. Section 36 of the Act, 1983
talks of reference to the Visitor and gives
sweeping power to entertain all kinds of
question arising out of the administration
of the institute under the Act, 1983.

(16) Although Section 41 of the Act,
1983
concerning
power
to
make
regulations, says that the Institute may
with the previous approval of the State
Government, make regulations to provide
for any matter which is to be or may be
provided for by regulations, however, no
regulations framed under the Act, 1983
has been argued or has been brought to
the knowledge of this Court prior to the
year 2011.

C. Facts of the case

(i)
Governing
Body
recommendation dated 08.01.1988

(17) Since, common facts are
involved in these bunch of writ petitions,
the facts of lead matter being Writ-A-902
of 2011 is being taken for consideration of
this court. As per the averment made in the
writ petition, the petitioners were appointed
as Cashier/Accounts Clerk during the
period from 1987-1990. The story unfolds
by a meeting of the Finance Committee of
SGPGI on 16.09.1987, wherein a decision
was taken in principle with regard to
revision of pay scales of Ministerial Staff,
Accounts Staff and Secretarial Staff at par
with maximum permissible pay scales
available to such staff in the offices of the
Heads of Departments (HOD) in the State
Government. The qualifications to be at par
with such staff in the Heads of the
Department for similar post in the institute
was also agreed in the meeting of the said
committee.

(18) Based on the aforesaid meeting,
the Finance Committee further in its
meeting held on 31.10.1987 took a decision
to revise the pay-scale/re-designation of the
1366 INDIAN LAW REPORTS ALLAHABAD SERIES
employees
working
in
the
Accounts/Ministerial/Secretarial Cadres of
the institute, wherein it was decided to redesignate
the
posts
of
Accounts
Clerk/Accounts Clerk-cum-Cashier/Cashier
carrying the pay scales of Rs. 400-615/- to
the post of Assistant Accountants carrying a
pay scale of Rs. 515-860/-.

(19)

Apparently,
the
aforesaid
decision was ratified by the Governing
Body in its meeting dated 08.01.1988 and
was also approved by the body of the
Institute
on
22.04.1988.
The
implementation of the aforesaid decision
and ratification of the Governing Body was
procrastinated, leading to representation
dated 14.12.1992. After a series of
representation, it was only on 02.07.1994,
the
Director
of
SGPGI
thought
of
implementing the said decision dated
08.01.1988 of the Governing Body and as
such the petitioners were re-designated as
Assistant Accountant with effect from
08.01.1988 or from their respective date of
joining, whichever was later, in the pay
scales of Rs. 515-860/- (revised to Rs.
1400-2300/-) in place of earlier and
existing pay-scale of Rs. 400-615/- (Rs.
1200-2040/-).

(ii)
Government
Order
dated
05.03.1991

(20) The said revision has been "in
the eye of the storm" as the same was
implemented without any reference to
certain other simultaneous developments
relating to the designation and pay-scales
during the intervening period of 08.01.1988
and 01.07.1994. Significantly, the State
Government, in principle agreed to revise
the salary of all the employees and officers
of SGPGI at par with the employees of
AIIMS, New Delhi, which led to issuance
of Government order dated 01.08.1990
providing for revision of the pay-scales
with
the
consent
of
the
Finance
Department. In furtherance to the said
development,
the
State
Government,
admittedly, issued another Government
Order dated 05.03.1991, revising the pay
scale of employees of SGPGI at par with
the employees of AIIMS, New Delhi. As
per the said revision, the Cashier/Accounts
Clerks were made available the revised
pay-scale of Rs. 1200-2040/-, whereas the
Assistant Accountants were admitted to the
pay-scale of Rs. 1400-2300/-. Apparently,
the said revision in pay-scale was on the
basis
of
recommendation
of
the
Equivalence
Committee
(Randhar
Committee) constituted after passing of the
Government order dated 01.08.1990.

(iii) Appointment of AACO's

(21) In the year 1992, a Departmental
Promotion Committee (DPC) was held for
promotion
of
these
Cashier/Accounts
Clerks to the post of Assistant Accountant.
However, the said DPC was withheld and
the Institute issued an advertisement for
making direct selection on the post of
Assistant
Accountant-cum-Computer
Operator
("AACO").
The
petitioners
apprehending
that
the
said
direct
recruitment was being made at par with
their post of Assistant Accountant for
which they had been vying, filed a writ
petition bearing No. 2358 of 1992, wherein
an order dated 24.04.1992 was passed by a
Co-ordinate Bench of this court on the
statement of the counsel representing the
Institute that two cadres i.e "Assistant
Accountants" and "Assistant Accountantcum-Computer Operator" are not being
merged as they indicated two different
qualification. On the facts of the said case,
a Co-ordinate Bench of this Court directed
7 All. Anoop Kumar Saxena & Ors. Vs. State of U.P.
1367
the institute for conducting the DPC at the
earliest, which had been pending since 7th
of September, 1991.

(22) Apparently, the DPC was not
conducted as per the aforesaid direction,
however, the Institute went ahead with the
recruitment on the post of Assistant
Accountant-cum-Computer Operator, who
are the petitioners in the other set of writ
petitions and have flagged the seniority list
prepared by the Institute.

(iv) Cadre Review dated 03.01.1997

(23) In the meantime, the Governing
Body in its 43rd meeting held on
03.01.1997 made cadre review as well as
pay-scales and promotional opportunities,
with respect to the employees of the
Institute in view of the recommendation
dated
01.01.1997
of
the
Finance
Committee.
That
'cadre
review
and
promotion policy' for the non-faculty
employees of SGPGI, was approved by
Governing Body on 03.01.1997 at par with
AIIMS, New Delhi. The Governing Body
in its 43rd meeting decided to implement
the AIIMS package of allowances to all the
employees uniformly and also decided in
principle to implement the changes at
SGPGI similar to changes at AIIMS in
future as well. Thus, one of the ground
taken by the petitioners of the first set of
writ petitions (Writ No. 90 of 2011, 903 of
2011 and 904 of 2011) is that the parity of
cadre structure with AIIMS was given with
effect from 03.01.997 and not with effect
from 05.03.1991 as mentioned in the
preceding paragraphs. According to this
Court, the determination as to what was the
date when AIIMS package of allowance
became applicable to employees of SGPGI is
clear from the Government order dated
05.03.1991 itself and does not require
deliberation any further, in view of the facts
of the present case.

(24) The petitioners in Writ-A-902 of
2011, in order to buttress their case, have also
flagged the salient feature of restructuring of
Finance and Accounts Cadre approved by the
Governing Body on 03.01.997 and have
argued that 22 posts of Assistant Accountant
were approved at entry level, out of which 8
posts were available in the institute, 8 posts
were taken into consideration from redesignated post of Account clerks by
Governing Body decision dated 08.01.1988,
4 post of cashier was merged with the post
and the remaining 2 post of senior Auditor
was
also
re-designated
as
Assistant
Accountant with effect from 08.01.1988.
Thus, it was stated by them that no post in the
nomenclature of Accounts Clerk/Cashier
remained in the Accounts Cadre and the entry
post in the said cadre after restructuring was
Assistant Accountant in the pay-scale of Rs.
1400-2300/- and not Account Clerk/ Cashier
in the pay scale of Rs. 1200-2040/-.

(25) These petitioners have stated that
as per the cadre restructuring, new posts of
Junior Accounts officer were created at par
with the AIIMS and the said post was a
promotional post, meant to be filled from
amongst the Assistant Accountants having 5
years' service in the grade and the criteria for
promotion was seniority subject to rejection
of unfit. Accordingly, some of the petitioners
were promoted to the Junior Accounts officer
vide an order dated 23.12.1998 and others
vide an order dated 03.01.2002.

(v) Re-structuring of the Cadre on
27.11.2001.

(26) Further, another re-structuring of
the cadre was effected on 08.10.2001 by
the Finance Committee ratified by the
1368 INDIAN LAW REPORTS ALLAHABAD SERIES
Governing Body on 27.11.2001, wherein a
new post of Assistant Accounts officer was
created in between the post of Assistant
Accountant and Junior Accounts Officer.
Petitioners claimed to be further promoted
as Assistant Accounts Officer with effect
from
03.01.2002
vide
some
office
memorandum dated 18.03.2002.

(vi) The case of AACO's

(27) As provided by Governing Body
on 3.1.1997, the post of AACO's was
classified in computer cadre. However,
representations
were
given
by
the
individuals on the post of AACO's against
this classification. A joint representation
was given by AACO on 06.06.1997 to
absorb them in Accounts Cadre and to redesignate them as Junior Accounts Officer,
a post higher to Assistant Accountant.

(28) On the representations of the
AACOs, the Finance Committee in its
40th meeting agreed to the merger of
AACO with Accounts cadre at the level
of Assistant Accountant in the pay scale
of
Rs.
1400-2300.
The
Finance
Committee further recommended that
their seniority with Assistant Accountant
would be determined from the date of
panel against which they were appointed.
That the recommendations of above
Finance Committee were approved by
Governing Body in its meeting held on
04.05.1998.

(29) That in the light of the decision
taken by Governing Body on 04.05.1998,
a tentative seniority list was published on
26.09.1998 and objections were sought
and final seniority list was published on
21.12.1998. The order dated 26.09.1998
furthers states that AACO stood merged
in the Accounts cadre at the level of
Assistant Accountant in the pay scale of
Rs. 1400-2300/-.

(30) In the meantime, persons, who
were appointed on the post of Assistant
Accountant-cum-Computer
Operator
through
direct
recruitment
prior
to
implementation of the decision dated
08.01.1988 (with regard to the petitioners
of Writ No. 902 of 2011) vide an order
dated 02.07.1994, after merger of the two
cadres by the Governing Body and
decision of the Government order dated
04.05.1998 started agitating their case of
seniority over and above the petitioners
and also filed writ petition no. 2939 (SS)
of 1998, 5609(SS) of 1998, 639 (SS) of
1999 and no. 6545 (SS) of 2007, whereby
they had challenged their seniority,
merger and incorrect implementation of
Governing
Body
decision
dated
08.01.1988 etc. Thus, the second set of
writ petition being led by Writ-A-639 of
1999 came to be filed by this AACOs
challenging the combined seniority list
issued on 21.12.1998 after merger of the
said two posts, which is also to be
decided by this Court in the present
common Judgment.

(31) A Co-ordinate Bench of this
Court, while hearing the writ petition no.
639 (SS) of 1999 on 13.12.1999, provided
that the promotions shall not take place in
pursuance of the Seniority list dated
21.12.1998, which is under challenge, until
the seniority dispute is finally determined
by the Government. The seniority list dated
21.12.1998 was confirmed by the Institute
by an order dated 14.07.2000.

(32) Another 'cadre review &
promotion
policy'
was
approved
by
Governing Body on 27.11.2001 and eligible
employees in order of seniority were
7 All. Anoop Kumar Saxena & Ors. Vs. State of U.P.
1369
promoted w.e.f. 03.01.2002, but being
junior in the list, these AACO's were left
out from being promoted. Thus, the
seniority list is under challenge in these
petitioners.

(vii) Implementation of GB dated
08.01.1988
to
the
Ministerial
&
Secretarial Cadre

(33) The recommendation of the
Governing Body dated 08.01.1988 came to
implemented on 02.07.1994 as far as the
employees
of
Accounts
Cadre
were
concerned, however, as far as the other two
cadres, namely, Ministerial and Secretarial
are
concerned,
although
the
recommendation of the Governing Body
dated 08.01.1988 came to be implemented
on 01.01.1998, however, subsequently the
same was cancelled vide an order dated
06.03.1998 and as such the employees of
these two cadres preferred a reference
petition under Section 36 of the Act, 1983
before the Visitor, wherein vide an order
dated 23.08.1999, the issue was referred by
the Visitor to the Department of Medical
Education,
State
of
Uttar
Pradesh.
Subsequently, vide an office order dated
13.02.2002, the State Government took a
decision to implement the decision and also
held the earlier implementation order dated
01.01.1998 to be proper and cancelled the
order of cancellation dated 06.03.1998.

(34) Thus, SGPGI issued office orders
on 20.03.2002 and 02.04.2003 for granting
benefits of Governing body decision dated
08.01.1988 to Ministerial and Secretarial
Cadres respectively, from the date of the
decision
of
Governing
Body
dated
08.01.1988, pursuant to a direction of the
State
Government
dated
13.02.2002.
Apparently, some employees appointed in
the Ministerial Cadre in the period
intervening 08.01.1988 and 13.02.2002, felt
aggrieved by the late implementation of the
Governing Body decision as their salary in
comparison to the salary admitted to the
employees with effect from 08.01.1988 was
relatively low as although the pay-scale
was similar, however due to the grant of
more increments their salary had become
higher. Although, there had been no issue
relating to seniority as the same was
protected.

(viii) The controversy between the
AACOS's and Assistant Accountants

(35) In the meantime, the State
Government, vide an office order dated
15.05.2000, set the controversy at rest by
holding that the seniority of the persons
working in the same pay-scale of the date
of merger of the two cadres on 04.05.1998
shall be determined from the date of their
substantive appointment and the seniority
of the incumbents carrying different payscales shall be determined on the basis of
higher pay-scales. Thus, as stated by the
petitioners in Writ-A-902 of 2011 that since
the petitioners and AACOs were both
having same pay-scale on 04.05.1998 i.e.
Rs. 1400-2300, on the date of merger, the
Director of the institute in conformity with
the office order dated 15.05.2000 of the
State Government issued an order dated
14.07.2000 affirming the earlier seniority
list dated 21.12.1998.

(36) In the aforesaid backdrop and
there being pertinent controversy between
the employees, the Finance Committee of
the institute constituted a sub-committee
vide its decision dated 10.03.2005, to
examine the issue. The sub-committee in its
meeting held on 07.11.2005 declared the
implementation of the decision dated
08.01.1988 of the Governing Body as
1370 INDIAN LAW REPORTS ALLAHABAD SERIES
illegal, however the re-structuring of the
cadre held on 03.01.997 and 27.11.2001
were held to be valid and correct. Thus, the
sub-committee
recommended
for
withdrawal of benefit admitted to the
employees of Accounts Cadre, Ministerial
Cadre and Secretarial Cadre and also
further recommended for making recovery.

(37) Obviously, the recommendation
dated 07.11.2005 was to the benefit of
AACOs, who had been vying for seniority
over the petitioners and as such they
preferred a writ petition bearing No. 6545
of 2007 before this Court, praying interalia for taking action in furtherance to the
said recommendation of the sub-committee
dated 07.11.2005. A Co-ordinate Bench of
this Court vide an order dated 15.10.2007
passed in Writ Petition No. 6545 (S/S)
2007, directed the Governing Body to take
action as per law, however the Governing
Body directed for a constitution of another
sub-committee vide its decision dated
15.10.2007, wherein again the matter
relating to the recommendation of the
Governing Body dated 08.01.1988 was to
be considered.