# Anuragh Singh & Ors v. State of U.P

- **Citation:** (2021) 5 ILRA 197
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-05-21
- **Case number:** Service Single No. 30492 of 2017
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anuragh-singh-ors-v-state-of-u-p-47058
- **Pages:** 15

## Headnote

Constitution of India - Art. 14 & 16 -
Promotion & financial benefits- Training
Officer in Judicial Training and Research
Institute (JTRI) - 'Ex-Cadre' posts - No
rules regarding promotion of Training
Officer - Training Officer denied benefit
of ACP on the ground that they hold ExCadre posts - Held - employees cannot
be made to suffer in the absence of rules
regarding promotion - promotions are
granted to a higher post to avoid
stagnation - work of Training Officer is
perennial, regular and permanent - said
post was not created for any specific
person or particular period and not
going
to
be
abolished
after
their
retirement - 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 - No justification
for recovery of excess payment made to
the petitioners which was given to them
after considering their continuous long
length of service (Para 34, 36)

Allowed.(E-4)
List of Cases cited:-

## Text

_Characters 0–39,998 of 44,726. This is a partial read: ask again with offset=39998 for what follows._

5 All. Anuragh Singh & Ors. Vs. State of U.P.
197
----------
(2021)05ILR A197
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.05.2021

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Service Single No. 30492 of 2017

Anuragh Singh & Ors. ....Petitioners
Versus
State of U.P. ...Respondent

Counsel for the Petitioners:
Yadukul Shiromani Srivast

Counsel for the Respondent:
C.S.C.

Constitution of India - Art. 14 & 16 -
Promotion & financial benefits- Training
Officer in Judicial Training and Research
Institute (JTRI) - 'Ex-Cadre' posts - No
rules regarding promotion of Training
Officer - Training Officer denied benefit
of ACP on the ground that they hold ExCadre posts - Held - employees cannot
be made to suffer in the absence of rules
regarding promotion - promotions are
granted to a higher post to avoid
stagnation - work of Training Officer is
perennial, regular and permanent - said
post was not created for any specific
person or particular period and not
going
to
be
abolished
after
their
retirement - 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 - No justification
for recovery of excess payment made to
the petitioners which was given to them
after considering their continuous long
length of service (Para 34, 36)

Allowed.(E-4)
List of Cases cited:-

1. Rudra Kumar Sain & ors. Vs U.O.I.& ors. -
(2000) 8 SCC 25

2. D.R. Nim, IPS Vs U.O.I. - AIR 1967 SC 1301

3. G.K. Dudani & ors. Vs S.D. Sharma & ors. -
1986 (supp) SCC 239

4. State of Tripura & ors. Vs K.K. Roy - (2004) 9
SCC 65

5. A. Satyanarayana & ors. v. S. Purushotham &
ors. - (2008) 5 SCC 416

(Delivered by Hon'ble Chandra Dhari
Singh, J.)

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
198 INDIAN LAW REPORTS ALLAHABAD SERIES
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/सातउoन्याo/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.साo976/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/साo1539/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
5 All. Anuragh Singh & Ors. Vs. State of U.P.
199
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/दस2017-6 (ऑधिट)/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.
200 INDIAN LAW REPORTS ALLAHABAD SERIES

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
5 All. Anuragh Singh & Ors. Vs. State of U.P.
201
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
202 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
5 All. Anuragh Singh & Ors. Vs. State of U.P.
203

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:-

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1467@lkr&
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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
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la[;k&ts0Vh0vkj0vkbZ0@974 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 2034@lkr&m0U;k0&1986&55@86] fnukad 6
vxLr] 1986 ds vuqyXud&1 esa mfYYkf[kr vLFkk;h
inksa esa ls lgk;d funs'kd& 1⁄4izcU/k1⁄2 ds vLFkk;h in
tks 'kklukns'k la[;k 2986@lkr&m0U;k0&68@86]
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 53@lkr&m0U;k0&87@86] 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;
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la[;k&,&2&797&nl&87&24¿12À&86] fnukad 25
ebZ] 1987 esa fufgr lHkh 'krksZa dh iwfrZ ds ckn fd;k
tk jgk gSA

layXud& ;FkksDrA

Hkonh;

g0 viBuh;

ds0 ,y0 'kekZ

U;k; lfpo

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 सधिव,

उ०प्र० शासन।
204 INDIAN LAW REPORTS ALLAHABAD SERIES

सेवा में,

धनदेशक,

न्याधयक प्रधशक्षण एवं अनुसंिान
संस्थान,

उ०प्र० लखनऊ।

न्याय अनुभाग-1 (उच्च न्यायालय)

 लखनऊः धदनांक 08 धदसम्बर, 2016

धवषय:
न्याधयक
प्रधशक्षण
एवं
अनुसंिान
संस्थान,
उ०प्र०
लखनऊ
के
धनःसंवगीय प्रधशक्षण अधिकाररयों के पदों को
संवगीय पद घोधषत धकये जाने एवं उक्त पद पर
वततमान में कायतरत 03 प्रधशक्षण अधिकाररयों को
संवगीय पद पर संधवलीन धकये जाने के सम्बन्ध
में।

महोदय,

उपयुतक्त धवषयक आपके पत्र संख्या
जे०टी०आर०आई०/अधि0-397/14-1322,
धदनांक 9-7-14 के संदभत में मुझे यह कहने का
धनदेश हुआ है धक शासनादेश संख्या: अधघ02034/सात-उ0न्या0/1986-55-86, धदनांक 6-81986 द्वारा वेतनमान रू0 770-1600 (पुनरीधक्षत
वेतन बैण्ड-2 वेतन रू0 9300-34800 व ग्रेि
वेतन रू0 4600/-) में सृधजत प्रधशक्षण अधिकारी
के 02 धनःसवगीय पद तथा शासनादेश संख्या:
अधि0-959/सात-30न्या0/1986-55/86, धदनांक
31-8-1987 द्वारा वेतनमान रू0 770-1600
(पुनरीधक्षत वेतन बैण्ड-2 वेतन रू० 930034800 व ग्रेि वेतन रू0 4600/-) में सृधजत
प्रधशक्षण अधिकारी के 02. धनःसंवगीय पदों के
सापेक्ष 01 धनःसंवगीय पद कुल 03 धनःसंवगीय
पदों को धदनांक 15-6-2003 से संवगीय बनाये
जाने एवं उक्त पद पर वततमान में कायतरत 03
प्रधशक्षण अधिकाररयों को संधवलीन धकये जाने
की श्री राज्यपाल महोदय सहषत स्वीकृधत प्रदान
करते हैं।

2. उक्त का समादेश न्याधयक
प्रधशक्षण एवं अनुसंिान संस्थान, उ०प्र० लखनऊ
की प्रख्याधपत की जाने वाली सेवा धनयमावली में
कर धलया जायेगा।

3. उक्त पदो में से 02 पदों को स्थायी
धकया गया है तथा 02 पदों की धनरन्तरता अन्तन्तम
बार धदनांक 28-02-2017 तक बढायी गयी है।

4. यह आदेश धवत्त धवभाग के
अशासकीय
संख्या
1392/ई-12/दस/2016,
धदनांक 05 धदसम्बर, 2016में प्राप्त उनकी
सहमधत से जारी धकये जा रहे है।

भवदीय,

(रंगनाथ पाण्डेय)

प्रमुख सधिव

25. Letter dated 23.02.2017 is also
reproduced
hereinbelow
for
ready
reference:-

संख्या
:
जे0टी0आर0आई0/अधि0 - 397/325

प्रेषक,

श्री राम मनोहर नारायण धमश्र,

अपर धनदेशक,

न्याधयक प्रधशक्षण एवं अनुसंिान
संस्थान, उ0प्र0

धवनीत खण्ड, गोमती नगर

लखनऊ।

सेवा में,

धवशेष सधिव
5 All. Anuragh Singh & Ors. Vs. State of U.P.
205

न्याय अनुभाग- 1 ( उच्च
न्यायालय),

उत्तर प्रदेश शासन,

लखनऊ।

धदनांक: 23 फरवरी, 2017

धवषयः
न्याधयक
प्रधशक्षण
एवं
अनुसंिान
संस्थान,
उ0प्र0,
लखनऊ
के
धनःसंवगीय प्रधशक्षण अधिकाररयों के संवगीय
पद घोधषत धकये जाने एवं उक्त पद पर वततमान
में कायतरत 03 प्रधशक्षण अधिकाररयों को संवगीय
पद पर संधवलीन धकये जाने के संबंि में।

महोदय,

कृपया
उपयुतक्त
धवषयक
शासनादेश संख्या 63/2016 / सा0-1539/सातन्याय-1-16-7(2)/2014, धदनांधकत 08 धदसम्बर,
2016 का संदभत लेने का कष्ट करें, धजसके द्वारा
शासनादेश संख्या अधि0-2034 / सात-उ0न्या0 /
1986-55-85,
धदनांक
06-8-1986
द्वारा
वेतनमान रू0 770-1600 वेतन बैण्ड-2 वेतन
रू0 9300-34800 ग्रेि वेतन रू0 4600) में
सृधजत प्रधशक्षण अधिकारी के 02 पद तथा
शासनादेश संख्या अधि0-959 / सात-उ०च्या0 /
1986-55-86,
धदनांक
31.08 1987
द्वारा
वेतनमान रू0 770-1600 (पुनरीधक्षत वेतन
बैण्ड-2 वेतन रू0 9300-34800 व ग्रेि वेतन
रू0 4600) में अधिकारी के 02 धनःसंवगीय पदों
के सापेक्ष 01 धनःसंवगीय पद अथात कुल 03
धनःसवगीय पदों को धदनांक 15.06.2003 से
संवगीय बनाये जाने एवं उक्त पद पर वततमान में
कायतरत 03 प्रधशक्षण अधिकाररयों को संधवलीन
धकये जाने की स्वीकृधत प्रदान की गयी है।

उक्त के सम्बन्ध में अवगत कराना है
धक उक्त शासनादेश धदनांक 06.08.1986 एवं
31.08.1987 सृधजत प्रधशक्षण अधिकारी के
धनःसंवगीय पदों पर श्री अनुराग धसंह धदनांक
22.06.1990 के अपरान्ह से, श्रीमती अितना शमात
धदनांक 03.12.1993 से तथा सुश्री सबीहा अख्तर
धदनांक 20.03.1996 के अपरान्ह से कायतरत है।
पूवत में उन्हें कायतभार ग्रहण करने की धतधथ से
सेवा के आिार 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, धदनांक
06 अगस्त, 2015 द्वारा शासन से प्राप्त धनदेश-
"समयमान वेतनमान की पूवत व्यवस्था तथा
धवत्तीय स्तरोन्नयन की वततमान व्यवस्था में
धनःसंवगीय पदों पर पदिारकों को वैयन्तक्तक
वेतनमान अथवा धवत्तीय स्तरोन्नयन अनुमन्य
धकये जाने की कोई व्यवस्था नहीं है। समयमान
वेतनमान की पूवत व्यवस्था में भी संवगीय पदों
पर धनरन्तर धनयधमत सन्तोषजनक सेवा के
आिार पर तथा वततमान धवत्तीय स्तरोन्नयन की
व्यवस्था के अन्तगत संवगीय पदों पर धनयधमत
धनरन्तर सन्तोषजनक सेवा के आिार पर
शासनादेशों में दी गयी शतों एवं प्रधतबन्यों को
पूणत करने वैयन्तक्तक रूप से समयमान वेतनमान
तथा धवत्तीय स्तरोन्नयन अनुमन्य धकये जाने की
व्यवस्था की गयी है। धनःसंवगीय पदों पर
समयमान वेतनमान सुधनधित धवत्तीय स्तरोन्नयन
की अनुमन्यता नहीं है।" के कम में नोधटस दी
गयी थी धक उन्हें पूवत में प्रदत्य सेलेक्शन ग्रेि एवं
ए०सी०पी० के लाभ को संशोधित कर वेतन
धनिातरण सही धकया जाना होगा और सही वेतन
के धनिातरण के आिार पर हुए अधिक भुगतान
का देय वेतन आधद से समायोजन धकया जाना
होगा।

उक्त के क्रम में शासनादेश संख्या:
63/ 2016 / सा0-1539 / सात-न्याय-1-16-7
206 INDIAN LAW REPORTS ALLAHABAD SERIES
(प्र)/2014, धदनांधकत 08 धदसम्बर, 2016 द्वारा
प्रधशक्षण अधिकारी के कुल (02 स्थायी व 01
अस्थायी) 03 धनःसंवगीय पदों को धदनांक 15.
06.2003 से संवगीय बनाये जाने एवं उक्त पद
पर वततमान में कायतरत 03 प्रधशक्षण अधिकाररयों
को संधवलीन धकये जाने की स्वीकृधत प्रदान की
गयी है, धकन्तु पदिारकों को उनकी प्रधशक्षण
अधिकारी के पद पर धनयुन्तक्त/कायतभार ग्रहण
करने की धतधथ से सेवा के आिार पर समयमान
वेतनमान / ए०सी०पी० का लाभ देय होगा अथवा
संवगीय धकये जाने की धतधथ 15.06.2003 से
सेवा के आिार पर ए०सी०पी० का लाभ देय
होगा, न्तस्थधत स्पष्ट नहीं है। अतः शासन से
अनुरोि है धक प्रधशक्षण अधिकारी के पदों को
संवगीय धकये जाने की धतधथ 15.06.2003 के पूवत
से कायतरत श्री अनुराग धसंह, श्रीमती अितना शमात
एवं सुश्री सबीहा अख्तर को उनके वततमान पद
पर कायतभार करने की धतधथ से सेवा के आिार
पर समयमान वेतनमान / ए०सी०पी० का लाभ
देय होगा अथवा प्रधशक्षण अधिकारी के पदों को
संवगीय धकये जाने की धतधथ 15.06.2003 से
सेवा के आिार पर ए०सी०पी० का लाभ देय
होगा, के सम्बन्ध में कृपया मागत-दशतन / आदेश
प्रदान करने का कष्ट करें।

भवदीय,

(राम मनोहर नारायण धमश्र)

अपर धनदेशक

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."

XXX XXX XXX

Dt: 27.03.2018

"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
5 All. Anuragh Singh & Ors. Vs. State of U.P.
207
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 excadre 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
208 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 63839, 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
5 All. Anuragh Singh & Ors. Vs. State of U.P.
209
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 काधमतक 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
210 INDIAN LAW REPORTS ALLAHABAD SERIES
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.