# Suit No. 272 of 1972 State of U.P v. Government of India and others are both set

- **Citation:** (2010) 3 ILRA 1053
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-31
- **Case number:** Writ Petition No. 4180 (S/B) of 1990
- **Bench:** D.P. Singh, Vedpal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suit-no-272-of-1972-state-of-u-p-v-government-of-india-and-others-are-both-set-41724
- **Pages:** 6

## Text

3 All] S.N.Taneja V. State of U.P. and others
1053
administration and the person instituting
the suit.

17. In view of the above decision of
the Supreme Court and its ratio decendai the
substantial question of law raised in this
appeal has to be answered in favour of the
plaintiff
appellant
and
against
the
respondents and it is held that the suit for
claim and damages based upon Section 80
of the Railways Act was maintainable
before the civil court and would not lie
before the Supreme Court.

18. Accordingly, appeal succeeds and
is allowed. The impugned judgment order
and decree of the lower appellate court
dated 25.2.1997 passed in Civil Appeal No.
240 of 1974 and that of the court of first
instance dated 4.10.1974 passed in Original
Suit No. 272 of 1972 State of U.P. Vs.
Government of India and others are both set
aside with no orders as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.08.2010

BEFORE
THE HON'BLE D.P. SINGH, J.
THE HON'BLE VEDPAL, J.

Writ Petition No. 4180 (S/B) of 1990

S.N. Taneja

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Constitution of India-Art. 14 and 16Parity
of
Pay
Scale-petitioner
after
retirement
from
Army-joined
as
Secretary Zila Sainik Board-denied the
same Pay given to the juniors who joined
much
after
petitioner-on
ground
petitioner not accepted working on
contractual basis-Tribunal rejected claim
with reasoning that for enforcement of
right of equality-only the High Court or
the
Apex
Court
can
entertain-helddifferent mode of recruitment can not be
ground for different Pay Scale in same
cadre post-petitioner entitled for same
Salary perk and status.

Held: Para 18

Accordingly, we are of the view that
respondents
have
no
right
to
discriminate with regard to payment of
salary and status between the petitioner
and subsequent appointees on the post
of Secretary because of the different
source of recruitment. The petitioner
seems to be entitled for payment of
same salary, perks and status.
Case law discussed:
1972 S.L.R. 832, (1999) 4 SCC 756, 2007 AIR
SC 2509, 1989 (1) SCC 121.

(Delivered by Hon'ble D.P. Singh, J)

1. We have heard learned counsel
for the petitioner as well as learned
Standing and perused the record.

Dispute giving rise to the present
controversy relates to payment of salary
to the petitioner on the post of Secretary
of Zila Sainik Board appointed through
different
sources.
Petitioner
claimed
parity in pay scale on the ground that the
persons appointed at later stage by
contractual assignment or otherwise have
been given higher pay scales.

2. The petitioner who is an officer of
Indian Army had joined as Emergency
Commissioned Officer on 30.6.1963, later
on released from Army on 15.8.1967.
Thereafter, he was appointed as Secretary
of Zila Sainik Board in 1971 in the pay
scale of Rs.400-750, on a non Gazetted
post.
He
was
posted
at
District
Shahjahanpur as Secretary Grade-I. Later
on
some
Emergency
Commissioned
Officers released from the Army were
1054 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
appointed by the Government on the post
of Secretary, Zila Sainik Board with
higher pay scale and status.

3. Admittedly, even persons junior
to the petitioners who were released from
the Army services, were appointed on the
post of Secretary in the year 1974 with
higher pay scale of Rs.550-1200 and
gazetted status.

4.

Petitioner
submitted
representation. His submission that there
cannot be two pay scales of the cadre of
Secretary and he is entitled for same pay
scale and status which are being enjoyed
by subsequent appointees of the post of
Secretary. Representation submitted by
the petitioner was decided by an order
dated 23.8.1981 and the Government had
refused to give higher pay scales of
Rs.650-1300.
Hence,
the
petitioner
approached the Tribunal for declaration
with regard to higher pay scale from 1974
and the scale of 650-1300 from 1975
when other Secretaries were appointed in
the Department availing the same pay
scales. The petitioner also prayed for the
pay scale of Rs.1100-1900 from July,
1979. So far as the Gazetted status is
concerned, the petitioner had prayed for
extending benefit w.e.f. 1975. It is also
stated by the petitioner before the
Tribunal that one additional increment for
every officer of Army services was
provided vide Government of India's
Circular dated 1.7.1972 and its benefit is
to be extended to the released Emergency
Commissioned Officers also.

5. The respondents contested the
case before the Tribunal with the
submission
that
the
petitioner
was
appointed in the pay scale of Rs.225-500,
revised to Rs.400-750 on the basis of the
Pay Commission's report of 1971-73. It
was admitted by the respondent-State
before the Tribunal that in the year 1974,
in the cadre of Secretary, 18 gazetted
posts were created in the scale of 5501100 on which the pension holders from
the Army were appointed. The benefit
was denied to the petitioner on the ground
that the petitioner is not a pension holder.
However, it is not disputed that the post
of Secretary constitutes one cadre, same
duties, liabilities and functioning. It is
further stated by the respondent-State that
the benefit of Government of India's
Circular (supra) did not epso facto apply
to the State Government.

6. It is also stated by the respondent
before the Tribunal that by a letter dated
23.3.1978, an offer was made to the
petitioner that if he is agreed to appear for
interview before the selection committee
for appointment on contract basis, then he
will be provided new higher pay scale to
which the petitioner has refused.

7. The Tribunal after considering the
rival submissions made before it, held that
the petitioner shall be abide by the
appointment letter and shall not be
entitled for pay scales given to the
subsequent appointees of the cadre. The
Tribunal further held that the principles
with regard to equality of pay can be
enforced by the High Court and Supreme
Court and not by the Tribunal. The
Tribunal further held that the respondent-
State had offered the petitioner to appear
before
the
selection
committee
for
appointment on contract basis for the
higher pay scale of 650-1300 but the
petitioner had not accepted the same,
hence it may not be made available by the
Tribunal. The Tribunal noted that in
response to the offer of the State
3 All] S.N.Taneja V. State of U.P. and others
1055
Government
with
regard
to
the
contractual appointment, the petitioner
took plea that if his lien is maintained in
the regular cadre of the post of Secretary,
only then he can accept the appointment
on contract basis. Government declined to
accept the petitioner's condition, hence
refused to call him for the appointment on
contractual basis.

8. Attention has been invited to
Section 4 of the U.P. Pubic Services
(Tribunal) Act, 1976, which is reproduced
as under :-

"4.Reference of claims to Tribunal.--
If any person who is or has been a public
servant claims that in any matter relating
to employment as such public servant his
employer or any officer or authority
subordinate to the employer has dealt
with him in a manner which is not in
conformity with any contract, or--

(a).in the case of a Government
servant, with the provisions of Article 16
or Article 311 of the Constitution or with
any rules or law having force under
Article 309 or Article 313 of the
Constitution ;

(b). In the case of a servant of a local
authority or a statutory corporation, with
Article 16 of the Constitution or with any
rules or regulations having force under
any Act of Legislature constituting such
authority or corporation ;

he shall refer such claim to the
Tribunal and the decision of the Tribunal
thereon shall, subject to the provisions of
Article 226 and 227 of the Constitution,
be final :

(Provided that no reference shall,
subject to the terms of any contract, be
made in respect of a claim arising out of
the transfer of a public servant.

Provided that no reference shall
ordinarily be entertained by the Tribunal
until the claimant has exhausted his
departmental remedies under the rules
applicable to him.

Provided also that where no final
order is made by the competent authority,
that is to say the State Government or
other authority or officer or other person
competent to pass such order with regard
to the appeal preferred or representation
made by the Claimant within one year
from the date on which such appeal was
preferred or representation was made, the
Claimant may by a written notice require
such competent authority to pass the
order and if the order is not passed within
one month of the service of notice the
Claimant shall be deemed to have
exhausted his departmental remedy.

9. A plain reading of the provision
contained in Section 4 of the Act shows
that a public servant may approach the
Tribunal in case in any matter relating to
his/her employment as a public servant
his employer or any officer or authority
subordinate to the employer has dealt with
him in a manner which is not in
conformity with any contract or in the
case of government servant, with the
provisions of Article 16 or Article 311 of
the Constitution or with any rules or law
having force under Article 309 or Article
313 of the Constitution of India. The
provisions contained in Section 4 of the
Act seems to make a case for interference
by the Tribunal. Article 16 of the
Constitution of India proclaims that there
1056 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
shall be equality of opportunity for all
citizens in matters relating to employment
or appointment to any office under the
State. It further provides that no citizen
shall, on grounds only of religion, race,
caste, sex, descent, place of birth,
residence or any of them, be ineligible
for, or discriminated against in respect of,
any employment or office under the State.

10. It is implicit in Clause (2) of the
Article 16 of the Constitution of India that
there cannot be any discrimination in the
matter
of
employment.
Employment
includes
all
related
matters
which
includes the payment of salary without
any discrimination. Article 16 protects the
employment in public office without any
discrimination. In case while filling the
post of Secretary of Zila Sainik Board
with same duties and functional liabilities,
the State treated differently because of the
different source of recruitment, it shall
amount to discrimination and Tribunal
could have adjudicated the matter while
deciding the claim petition. Findings
recorded by the Tribunal seems to be not
correct appreciation of law.

11. Now coming to the next limb of
controversy as to whether there can be
different salary or pay scale for the same
post or same cadre because of different
source of recruitment. Undisputedly, the
duty and functional liability of the post of
Secretary of petitioner vis-a-vis others
who appointed subsequently are the same.
There is nothing on record which may
reveal that the persons appointed on the
post of Secretary on contract basis or
retired army personnel getting regular
pension after joining on the post will have
different liabilities, duties and assignment
than the petitioner possess. Merely
because the source of recruitment is
different, the respondents could not treat
differently the petitioner vis-a-vis other
persons who had joined at later stage in
the cadre of Secretary of Sainik Board.

12. In a case reported in 1972 S.L.R.
832 : State of Mysore Vs. M.H.Krishna
Murthy (S.C.), Hon'ble Supreme Court
has held that because of integration of two
wings of service into one single cadre, it
shall not be open to the State to
discriminate the persons who become
members of the same cadre with regard to
further promotion from the integrated
cadre on the basis of the inquiry source of
recruitment to a particular wing. The rule
making power conferred on the State
under Article 309 of the Constitution
relating to recruitment and conditions of
service could not be used to validate
unconstitutional
discrimination
in
promotional chances of the government
servant belonging to same category.

13. Aforesaid proposition of law has
been reiterated by the Hon'ble Supreme
Court in the case reported in (1999) 4
SCC 756 : Kamlakar and others Vs.
Union of India and others. In the case of
Kamlakar(supra), their Lordships held
that once the person join a cadre from
more than one source like direct recruitee
and promotee, the distinction between the
direct recruitees and promotees disappears
at any rate so far as the equal treatment in
the same cadre for payment of pay scale
given is concerned. The birthmarks have
no relevance in this connection.

14. The Division Bench of this
Court in an under reported judgment
delivered in writ petition No.2007 (S/B)
of 1999 : Hamid Ali Qazi Vs. U.P.
Corporation Ltd. and others in which one
3 All] S.N.Taneja V. State of U.P. and others
1057
of us (Hon'ble Devi Prasad Singh,J) was a
member has observed as under :-

"In view of above it is not the source
of recruitment plays role in fixation of
salary, perks and other service benefits
but it is the service condition of the cadre
concern plays role in fixation of salary
perks and revised scale. Once an
incumbent joins a cadre whether as
promotee or as direct recruit, the persons
from both the categories shall be entitled
for same salary, perks and other benefits.

13. There is one other aspect of the
matter. It has not been disputed by the
parties' counsel that a person holding the
post of Assistant Engineer whether joins
the cadre by promotion or direct recruit
discharges same duties without any
difference. Whether it is promotees or
direct recruit after joining the cadre of
Assistant Engineering functions with equal
rights, duties and liabilities without any
difference. Accordingly any classification
made for the payment of time pay scale to
the Assistant Engineers as has been done
by the impugned circular so far as it
deprives the promotees from time pay scale
after 19 years of service is unreasonable,
unjust and improper and is violative of
Article 14 of the Constitution of India."

15. In a case reported in 2007 AIR
SC 2509 : Nehru Yuva Kendra Sansthan
Vs.
Rajendra
Kumar
Shukla, their
Lordships of Hon'ble Supreme Court has
held that because of different source of
recruitment, there cannot be a different pay
scale. In case the persons are discharging
the same duties and are paid salary and
other allowances, then there is no reason to
deny the same benefits to others who are
discharging the same duties and functions.
Otherwise also, there cannot be two
different pay scales for the persons
working in the same cadre without same
duty.

16. In the aforesaid case of Hamid
Ali Qazi (supra), the Division Bench has
further observed as under :-

"14.The object of Article 14 is wider
is to ensure fairness and equality of
treatment. Extending a benefit to one class
of an establishment and denying to the
other class enumerated in the same
provision shall be an incident of arbitrary
and bad law vide : 1974(4) SCC 3
E.P.Royappa Vs. State of Tamilnadu &
another : 1978(1) SCC 248 : Mrs. Menaka
Gandhi Vs. Union of India ; and Indian
Express Newspapers (P) Ltd. Vs. Union of
India (1995) Supp (4) SCC 758(para 13 to
15 and 20). Wherever there is denial of
equality, such action shall be arbitrary and
Article 14 of the Constitution of India
strikes at arbitrariness of State action in
any form. The classification made by the
state authorities whether by legislative
enactment or executive action may be
tested at touchstone of Article 14 of the
Constitution of India being arbitrary or
discriminatory vide, (1981) 1 SCC 722,
Ajay Hasia Vs. Khalid Mujib Sehravardi
(para 16 and 19) ; AIR 1979 SC 1628 :
Ramana Dayaram Shetty Vs. I.A.A.I.(para
10 and 21) ; AIR 1991 SC 101 Delhi
TRansport
Corporation
Vs.
D.T.C.
Mazdoor Congress (para 199, 244, 251,
262, 264, 267)."

17. Reliance placed by the learned
Standing Counsel in a case reported in
1989 (1) SCC 121 State of U.P. and others
Vs.
J.P.Chaurasia
seems
to
be
misconceived where the Hon'ble Supreme
Court had accepted the payment of
different pay scales for the persons
1058 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
working on the post of Bench Secretary,
Grade-I and Grade-II alongwith Section
Officers. The case of J.P.Chaurasia (supra)
seems not applicable in the facts and
circumstances of the present case as in the
present controversy, there appears single
post of Secretary of Zila Sainik Board and
persons appointed at later stage, were
appointed on the same post which the
petitioner was holding. It is a case where
discriminatory treatment was imparted by
the State Government with regard to the
payment of salary, perks and status. Once
the cadre is same, post is same, duties are
same, functions, and liabilities are the
same, then there cannot be two or more
pay scales merely because of source of
recruitment are different.

18. Accordingly, we are of the view
that
respondents
have
no
right
to
discriminate with regard to payment of
salary and status between the petitioner
and subsequent appointees on the post of
Secretary because of the different source of
recruitment. The petitioner seems to be
entitled for payment of same salary, perks
and status.

19. In view of the above, we are of
the view that the Tribunal has failed to
exercise the jurisdiction vested in it.

20. Accordingly, writ petition is
allowed. A writ in the nature of certiorari is
issued quashing the impugned order dated
29.11.1988 passed by the Tribunal, as
contained in Annexure No.2 is hereby
quashed. We also allow the claim petition
and grant relief as prayed by the petitioner
before the Tribunal with regard to the
parity in the pay scale, perks and status. A
writ of mandamus is also issued directing
the
respondents
to
take
decision
expeditiously for extension of benefit
keeping
the
observations
made
hereinabove, within a period of three
months from the date of receipt of present
judgment.

Recovery if any, made shall be
refunded to the petitioner forthwith.

With the aforesaid directions, the writ
petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.08.2010

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE RITU RAJ AWASTHI, J.

Writ Petition No. 4310 (MB) of 2010.

Smt. Vandana Dixit

 ...Petitioner
Versus
Visitor S.G.P.G.I. and others ...Respondents

Constitution of India-Art. 226 readwith
transplantation of Human Organs Rules
1995-Rule-6F(C) (xi)-Petitioner suffering
from
renal
failure
since
2004-after
getting
approved
from
state
level
committee
approached
the
Fortis
Hospital-who refused to operate as the
approval not obtained from Hospital
level
committee-held-illegal-no
such
statuary
requirement
after
having
approval from state level committee to
obtain
approval
from
hospital
level
committee-No hospital either Govt. or
Private can refused to go beyond Rulesdirection for prompt enforcement of
approval given subject to choice of
petitioner to either approach before
Fortis or P.G.I.

Held: Para 66

We, therefore, conclude with a note that
it is the responsibility of all the doctors
and hospitals to facilitate the treatment
in a deserving case to the patient who is