# State of U.P. & Ors v. Mohd. Ramjan & Anr

- **Citation:** (2019) 1 ILRA 671
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-02
- **Bench:** Manoj Misra, Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-mohd-ramjan-anr-44538
- **Pages:** 6

## Headnote

A. Pay parity - Under Rules 4 and 8 of
Service Rules, 1991- Single cadre of
instructors. Single grade. No difference
in educational qualification established.
Claim allowed by Single Judge- directing
the state authorities (the appellants
herein) to treat them at par with other
instructors (paras 13 to 16)-Special
Appeal dismissed. (E-8)

## Text

1 All. State of U.P. & Ors. Vs. Mohd. Ramjan & Anr.
671
of the application under Section 11 of the
Act, 1996. The application for appointment
of an Arbitrator under Section 11 is
maintainable.

15. The unamended Act, 1996 is
applicable to this case. Considering the
arbitration clause agreed upon by the
parties
the
M.D.,
U.P.S.R.T.C.
is
appointed as an Arbitrator to himself
arbitrate in the matter, as, the applicant
had agreed to his Arbitration as per the
arbitration clause. He shall conclude the
proceedings at the earliest, say, within a
period of one year.

16. The original records comprising
the dispatch register and the file bearing
No. 31LCT/12 shall be returned by the
Bench Secretary to Shri Ratnesh Chandra,
learned counsel for the opposite party no.
1.

17. The application is disposed of.
------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2019

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SURESH KUMAR GUPTA, J.

SPECIAL APPEAL NO. 622 of 2019

State of U.P. & Ors. ...Appellants
Versus
Mohd. Ramjan & Anr. ...Respondents

Counsel for the Appellants:
Sri Ghanshyam Dwivedi.

Counsel for the Respondents:
Sri Sunil Kumar Srivastava.

A. Pay parity - Under Rules 4 and 8 of
Service Rules, 1991- Single cadre of
instructors. Single grade. No difference
in educational qualification established.
Claim allowed by Single Judge- directing
the state authorities (the appellants
herein) to treat them at par with other
instructors (paras 13 to 16)-Special
Appeal dismissed. (E-8)

(Delivered by Hon'ble Manoj Misra J.)

1. This intra-court appeal has been
filed against the judgment and order dated
12.12.2018 passed by the learned Single
Judge in Writ A No. 5163 of 2003 by which
the writ petition filed by the respondents has
been allowed and a direction has been issued
to the state-authorities (the appellants herein)
to treat the writ petitioners at par with other
Instructors and place them in pay scale of Rs.
5,000-8,000 with all consequential benefits.

2. Before we proceed to address the
arguments raised in this appeal, it would
be apposite for us to have a glimpse of the
facts of the case.

3.

The
writ
petitioners
(the
respondents herein) were appointed as
Instructor
in
Government
Industrial
Training Institute (for short GITI) in the
year 1981 against the post of Wood Work
Instructor. In the year 1989, the GITI was
merged with Industrial Training Institute
(for short ITI) as a consequence whereof
the writ petitioners became employee of
the ITI and they continued to work as
Wood Craft Instructor. Prior to the
merger, both the institutes, that is GITI
and ITI, were under the Director, Training
and Employment, Govt. of U.P., Lucknow
(for short Director Training). Post merger
also the institute (ITI) remained under the
Director
Training.
However,
an
anomalous situation in respect of the pay
scale of the Instructors arose. The writ
petitioners who were from the GITI were
672 INDIAN LAW REPORTS ALLAHABAD SERIES
maintained at the pay scale of Rs. 32004900 whereas the Instructors who had
been appointed in the ITI were in the pay
scale of Rs. 5000-8000. The writ
petitioners claimed that post merger there
existed just one class of Instructors in the
ITI, regardless whether they came from
GITI or had been, since before, in the ITI,
therefore they were entitled to the same
pay scale. It appears that prior to filing
Writ A No. 5163 of 2003, the writ
petitioners, seeking pay parity, had filed
Writ A No. 6619 of 2002 in this Court
which was disposed off, vide order dated
15.02.2002, with a direction to the
authorities to consider and decide the
representation of the writ petitioners made
in that regard. Pursuant to the direction
given in that writ petition, by order dated
29.11.2002,
the
Principal
Secretary,
Labour Department, on behalf of the
State, took a decision that under the
present set of service rules, as amended in
the year 1994, there is no provision for
enhancement / up-gradation in salary of
an Instructor payable in the pay scale of Rs.
3200-4900 to that of Trade Instructor
payable in the pay scale of Rs. 5000-8000
because the post of Trade Instructor is a post
which is to be filled by direct recruitment and
the eligibility qualifications of an Instructor
are different from that of Trade Instructor
and as such it is not legally permissible to
place the writ petitioners, who were
appointed as Instructors in the pay scale of
Rs. 3200-4900, in the pay scale of Rs. 50008000 admissible to Trade InstructOrs.

4. Assailing the order dated
29.11.2002, the writ petitioners (the
respondents herein) filed Writ A No. 5163
of 2003 claiming that as GITI got merged
with ITI and the Instructors in GITI
continued as Instructors in the ITI and
there being no separate cadre of Trade
Instructor in the service rules, which
speaks of only one cadre, that is of
Instructors, the writ petitioners who were
performing same duties and functions
were entitled to same pay scale. It was
urged that in the year 1991, U.P.
Industrial Training Institutes (Instructors)
Service Rules, 1991 (for short Service
Rules, 1991) were framed and notified by
the Governor in exercise of powers
conferred by the proviso to Article 309 of
the Constitution of India. In those rules,
which
are
applicable
to
the
writ
petitioners, there is just one cadre, that is
of Instructors, and no distinction has been
drawn between an Instructor and a Trade
Instructor. Hence, the writ petitioners who
are performing same duties and functions
as any other Instructor and hold Diploma
in Wood Working, are entitled to the
same scale of pay as payable to the socalled
Trade
Instructors
in
the
establishment.

5. In paragraph 5 of the counteraffidavit filed in Writ A No. 5163 of
2003, the stand taken by the respondents
(appellants herein) in the writ petition was
that before merger between GITI and ITI
in the year 1989, there were two types of
Instructor, one, lower grade instructor,
who were working in GITI in the pay
scale of Rs.3200-4900 (old Rs.200-320),
and the other, an Instructor, working in
ITI in the higher pay scale of Rs. 50008000 (old Rs.1400-2600). It was claimed
that the pay scale of Rs.5000-8000 is
admissible only to those Instructors who
were working as Trade Instructor. It was
also claimed that qualification of lower
grade instructor is just a certificate/
diploma whereas for appointment as
Trade Instructor one is required to
complete course from NCVT apart from
other qualifications. It was claimed that
1 All. State of U.P. & Ors. Vs. Mohd. Ramjan & Anr.
673
the writ petitioners have not completed
the course from NCVT.

6. In a nutshell, the stand of the
appellants
(respondents
in
the
writ
proceedings) before the writ court was
that the higher pay scale was admissible
only to the Trade Instructors whose
qualifications were higher and not to the
writ petitioners as they did not possess
those qualifications.

7. The learned Single Judge found that
as it was not in dispute that the two sets of
institutes, namely, GITI and ITI, got merged,
and the Service Rules, 1991 did not draw a
distinction between the lower grade instructor
and the higher grade instructor, as claimed by
the state-respondents, and, in fact, the Service
Rules, 1991 provided for a solitary cadre of
Instructor, denial of the same pay scale to the
erstwhile GITI Instructors is arbitrary and
violates Article 14 of the Constitution of India.

8. We have heard Sri Ghanshyam
Dwivedi, learned Standing Counsel for
the
appellants;
Sri
Sunil
Kumar
Srivastava
for
the
writ
petitioners
(respondents) and have perused the
record.

9. The learned counsel for the
appellants contended that the learned Single
Judge has failed to consider that the post of
Trade Instructor is to be filled by direct
recruitment, under the Service Rules, 1991,
and,
to
hold
that
post,
minimum
qualifications are prescribed which are
higher than those possessed by the writ
petitioners, therefore the writ petitioners,
who were not eligible to be appointed on the
post were not entitled to the pay scale
admissible to the post of Trade InstructOrs.
Therefore, the order of the learned Single
Judge is liable to the set aside.

10. Per contra, the learned counsel
for the writ petitioners (the respondents
herein) submitted that in paragraph 5 of
the writ petition it has been specifically
stated by the writ petitioners that they
were fully qualified and they possess
certificate of diploma in Wood Working
and were selected and appointed only
after interview by a Selection Committee.
It has been urged that there is no specific
denial
of
the
averments
made
in
paragraph 5 of the writ petition though, in
an ambiguous manner, in paragraph 7 of
the counter affidavit, it is stated that the
averments made in paragraph 5 of the writ
petition are not admitted as stated
inasmuch as the Director had made
appointment in lower grade. It has been
urged that the assertion of the writ
petitioners that they possess certificate of
Diploma in Wood Working (Craft) has
not been denied. It has also been urged on
behalf of the writ petitioners that the
learned Single Judge has examined all
aspects and has correctly held that as it is
not in dispute that the Service Rules, 1991
provide for a solitary cadre post of
Instructor and no distinction between
higher and lower grade Instructor has
been drawn in the service rules, and all
kind of Instructors qua their trade are
performing the same duties, the claim for
pay parity is justified.

11. Having heard the rival submissions,
at the outset we may observe that the learned
counsel for the appellants has not questioned
the observation made by the learned Single
Judge in paragraph 54 of the judgment, which
is extracted below:-

"54. When questioned, learned
Standing Counsel could not dispute that
prior to 1991 there were no service rules,
as
such
applicable,
to
Instructors
674 INDIAN LAW REPORTS ALLAHABAD SERIES
appointed in G.I.T.I. and I.T.I. He also
could not dispute that two sets of
institutes when merged together, all
Instructors working therein were treated
as a single lot and their sanctioned
strength was noticed in Rule 4 of Rules,
1991 as 1931 permanent and 1011
temporary, total 2942. This strength has
now been reduced by Second Amendment
Rules, 2003 to 1597 permanent and 1168
temporary i.e. 2765 in total. He also
could not dispute that in the work, duties
and responsibilities of petitioners qua
other Instructors, there is no distinction.
It may be noticed that Instructors, who
were appointed in I.T.I. prior to 1989, as
a matter of fact, may have possesses
Certificate
or
Diploma
or
other
qualification, but, the fact remains that at
the time of merger in 1989, when two
Institutes were merged, no distinction was
carved out by State between persons
working as 'Instructor' in these Institutes
since all were discharging same duties."

12. Further, upon careful perusal of the
record as also the Service Rules, 1991, as
amended from time to time, we find that Rule
4 of the Service Rules, 1991 provides for the
cadre of service. Sub-rule (2) of Rule 4
provides for the strength of the service and the
number of posts therein. It discloses the name
of the post as Instructor of which the number
of posts, that is strength of the cadre, is given
in sub-rule (2) of Rule 4. There is no mention
of Lower Grade Instructor or Higher Grade
Instructor in the Service Rules, 1991. Rule 8
of the Service Rules, 1991 provides for the
academic qualifications. It provides the
qualifications for different trades relating to
the post of Instructor, not for higher or lower
grade. At Serial No.7, which is now at Serial
No.6, post amendment in the year 2003,
Carpenter is enlisted as one of the Trades for
the
post
of
Instructor.
The
essential
qualification for the post of Instructor in the
Trade of Carpenter is Diploma in Wood
Working. The Rule 8 of Service Rules, 1991,
as
was
initially
notified
(prior
to
amendments), is extracted below:-

"8. Academic Qualification - A
candidate for recruitment to a post in the
service must possess the following
qualifications:

(A) Essential- (1) Educational-

(i) Must have passed Intermediate
Examination from the Board of High School
and Intermediate Education, Uttar Pradesh or
an
examination
recognised
by
the
Government as equivalent thereto.

(ii) Must have obtained a
certificate in the respective trade from the
National
Council
for
Training
in
Vocational Trades.

Or

Must have obtained National
Apprenticeship
Certificate
in
the
respective trade;

Or

Must
have
obtained
the
following
diploma
relating
to
the
respective trade from Board of Technical
Education, Uttar Prdesh or from any other
Institution recognised by the Government:
Sr. No.
Trade
Desirable
Diploma

1. (A) Radio/T.V. Mechanic

: Diploma in Electronics.

(B) Electronics Mechanic

:
Diploma in Electronics.

2. (A) Stenographer English

: Diploma in Secretarial Practice.

(B) Stenographer Hindi

:
Diploma in Secretarial Practice.
1 All. State of U.P. & Ors. Vs. Mohd. Ramjan & Anr.
675

3.
 (A) Surveyor

:Diploma in Civil Engineering

(B) Draftsman Civil

 : Diploma in Civil Engineering

4. Refrigeration
and
Air
Conditioning

Mechanic

: Diploma in Refrigeration and

Air conditioning Engineering.

5. Diesel Mechanic

:Diploma in Automobile

Engineering.

6.
 Draftsman Mechanical :
Diploma in Drafting (Mechanic) and

Designing.

7. Carpenter

 :
Diploma in Wood working.

8.
 Cutting Tailoring
 :
Diploma in Costume Design and Dress

making.

9. Engineering Drawing

 :
Diploma
in
Mechanical
Engineering or

Diploma in Draftsman from

Industrial Training Institute.

10. Workshop Calculation

 :
Diploma
in
Mechanical
or
Electrical

Engineering.

Note: The candidate must have
passed the National Council for Training
in
Vocational
Trades
or
National
Apprenticeship Certificate Examination
or Diploma Examination in First Division.

2. Experience-

The
candidate
must
have
experience of not less than five years
including the training period spent in
National Trade Certificate or National
Apprenticeship
Certificate
or
Apprenticeship
in
any
registered
industrial concern for a period not less
than three years or Diploma in the
appropriate branch in the trade concerned.

3. Other-

Working knowledge of Hindi.

(B) Preferential- Successful
training from Central Training Institute in
respective Trade."

13. A perusal of the extracted Rule 8
of Service Rules, 1991 would reveal that a
certificate in the respective Trade from
National Council for Vocational Trade
(NCVT) is one of the three alternative
qualifications. The service rules that were
applicable in the year 1991 would be
relevant for the petitioners because they
were appointed prior to it and the merger
of GITI with ITI took place prior to 1991,
that is in 1989, as would be clear from
paragraph 5 of the counter affidavit filed
by the appellants in the writ proceedings.

14. We find that in paragraph 5 of
the writ petition it has been specifically
stated by the writ petitioners that they
hold diploma in Wood Working. In the
counter-affidavit filed to the writ petition,
the reply of paragraph 5 is given in
paragraph 7 of the counter-affidavit where
there is no specific statement that the writ
petitioners do not hold diploma in Wood
Working though, in paragraphs 5 and 9 of
the counter affidavit, the eligibility of the
petitioners for appointment as Instructor
in the Trade of Carpenter is challenged by
claiming that the writ petitioners do not
possess certificate for the course from
NCVT.
676 INDIAN LAW REPORTS ALLAHABAD SERIES

15. As we have found that in Rule 8
of the Service Rules, 1991, as applicable
at the relevant time, one of the alternative
essential qualifications was diploma from
Board of Technical Education, Uttar
Pradesh or from any other Institution
recognised by the Government in the
trades specified, non possession of
certificate in the respective trade / course
from the National Council for Training in
Vocational Trade would not be fatal to
their appointment on the post of Instructor
if they hold the alternative eligibility
qualification. We further find that the
trade of Carpenter is one of the Trades
enlisted in Rule 8 for which a diploma in
Wood Working is required. The writ
petitioners in paragraph 5 of the writ
petition claimed that they possess diploma
in Wood Working of which there is no
specific denial in the counter affidavit, as
noticed above. Under the circumstances,
the argument of the learned counsel for
the appellants that the writ petitioners do
not possess the necessary qualification for
the post has no legs to stand.

16. Otherwise, it is not in dispute that
the two institutes, namely, GITI and the
ITI were merged in the year 1989 and a
solitary cadre of Instructors, though in
different trades, in the ITI was created as
would be clear from Rule 4 of the Service
Rules, 1991. The Service Rules, 1991 do
not carve out higher and lower grade for
the post of Instructor. Further, at the time
of merger of GITI and ITI, admittedly, the
writ petitioners were in service as
Instructors in GITI, therefore, post merger,
when the Service Rules, 1991 provided a
solitary cadre of Instructors, they cannot be
deprived of the pay scale attached to the
post of Instructors, by artificially carving
out distinction, when there exists none,
particularly, when it has not been
demonstrated that their initial appointment
was in any way illegal or that the duties
assigned to them are functionally different
from that of the other InstructOrs.

17. For all the reasons recorded
above, we are of the view that the learned
Single Judge was justified in allowing the
writ petition and providing pay parity to
the writ petitioners. The appeal is
dismissed.

18. There is no order as to costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Government Appeal No. 309 of 2019

State of U.P. ...Appellant.
Versus
Prem Kumari @ Gayatri And Ors.
 ...Respondents.

Counsel for the Appellant:
G.A.

Counsel for the Respondents:

A. IPC. Section 306-Abetment of suicide-
merely
because
of
registration
of
criminal case, no prudent man would
commit suicide. Condition precedent is
abetment. The intention of the accused
to aid or instigate or abet the deceased
to commit suicide is necessary. Requires
an active act or direct act, which lead the
deceased to commit suicide. (Para-4)

B. IPC. Section 107 of I.P.C - Abetment
of a thing - active participation for
commission of offence of abetment given
Held:- The basic constituents of an offence
punishable under section 306 I.P.C. are