Ram Surat Ram (Maurya),JJ. For the Petitioner Gautam Bahgel, A. K. Srivastav, Shamimul Hasnain For the Respondent C. S. C. ORDER 1. Heard Miss Suman Sirohi, Standing Counsel for the respondents and Sri Gautam Baghel, for the petitioners in the aforementioned review application. 2. The writ petition was decided on 23.02.2012, on the basis of admission in Supplementary Counter Affidavit of Sri Ashfak Ahmad, Deputy Commissioner (Administration) Commercial Tax, Allahabad, filed on behalf of the respondents, wherein, in paragraph-11, it has been stated that decision in the matter of the petitioners could not be taken due to lac of time and it shall be taken very soon. The fourteen years promotional scale of Rs. 5500-9000 shall be awarded with all allowances to the petitioners. In view of the aforesaid admission the writ petition has been allowed and respondent-4 was directed to decide the matter for grant of promotional pay scale to the petitioners within a period of two months. 3. Now the Review Application has been filed along with delay condonation application on 24.05.2012, on behalf of the respondents. In support of the Review Application, an affidavit of Gopal Ji Gupta, Deputy Commissioner, Commercial Tax, Allahabad has been filed. In paragraph-3 of this affidavit, various grounds for review have been taken. In ground No. 3-B and C, it has been stated that in the Supplementary Counter Affidavit, a wrong impression has been given that the claim of the petitioners had been accepted by the respondents. The Standing Counsel was misguided by this Supplementary Counter Affidavit at the time of hearing and could not brought to the notice of the Court that the claim of the petitioners had already been rejected by order dated 21.06.2007, by the Competent Authority as stated in the Counter Affidavit. It has been further stated that State of U.P. has also rejected the similar claims of parity in pay scale of the Collection Amins in Revenue departments by orders dated 14.01.2009 and 31.10.2011, copies whereof have also been filed along with Review Application. It has been stated that the petitioners have deliberately concealed these facts from the Court at the time of deciding the writ petition. 4. The learned Standing Counsel submitted that in the Counter Affidavit filed in the writ petition, it had been stated that claim of the petitioners was considered and rejected by the order dated 21.06.2007 by respondent-4. Sri Ashfak Ahmad, Deputy Commissioner (Administration) Commercial Tax, Allahabad filed the aforesaid Supplementary Affidavit without approval of Head of Department and he without disclosing the aforesaid facts, wrongly stated that decision in the matter of the petitioners could not be taken due to lack of time and it shall be taken very soon. The fourteen years promotional scale of Rs. 5500-9000 shall be awarded with all allowances to the petitioners. She submitted that the services of the petitioners are governed by Statutory Rules and Deputy Commissioner was not competent to give any concession contrary to the Rules as well as contrary to the decision of the Government. The judgment is based upon unauthorised and incorrect admission. Accordingly the Review Application be allowed in the interest of justice and the writ petition be heard on merits. 5. The petitioners have filed Counter Affidavit to the affidavit filed in support of the Review Application. In which the petitioners have stated order dated 21.06.2007 has been challenged by the petitioners, amending the writ petition. Orders dated 14.01.2009 and 31.10.2011 have been passed in connection with Collection Amins of other district and were never communicated to the petitioners nor it was brought on record by the respondents as such the petitioners could never know about these orders of the State Government. The allegations of concealment of facts by the petitioners are wrong. By the Supplementary Counter Affidavit of Sri Ashfak Ahmad, Deputy Commissioner (Administration) Commercial Tax, Allahabad, who was the competent authority, has admitted the claim of the petitioners. In view of the subsequent admission of the respondents, it was not necessary for the petitioners to agitate the grievances on merit. The respondents are now taking a contradictory stand in the Review Application and are trying to with draw an admission after decision in the writ petition. The respondents have taken any action against Sri Ashfak Ahmad, rather promoted him. The petitioners are being harassed in an illegal manner. The Review application is liable to be rejected. 6. I have considered the arguments of the counsel for the parties and perused the record. On behalf of the respondents, Counter Affidavit has been filed in the writ petition, in which claim of the petitioners has been denied and it has also been stated that their representation had been rejected by the competent authority by order dated 21.06.2007. In the meantime, State Government also by orders dated 14.01.2009 and 31.10.2011, rejected similar claims of the Collection Amins of other districts. After the order of State Government, it was not possible for Deputy Commissioner (Administration) Commercial Tax, Allahabad to grant any relief to the petitioners. The writ petition has been allowed on the basis of admissions in the Supplementary Counter Affidavit without examining the case on merits, which was an incompetent and inadvertent admission without noticing the order of the State Government. 7. Supreme Court in Oriental Insurance Co. Ltd. v. Gokulprasad Maniklal Agarwal, (1999) 7 SCC 578, held as follows - Learned counsel drew our attention to the General Insurance (Conduct, Discipline and Appeal) Rules, 1975 and we find that Rule 23 of the said rules clearly describes reduction to a lower timescale or to a lower stage in a timescale as a major penalty. Obviously, the learned counsel who appeared for the Insurance Company had committed a mistake while describing it as a minor penalty. When this mistake was pointed out to the High Court it should have really reviewed its earlier order. 8. Supreme Court again in Indian Charge Chrome Ltd. v. Union of India, (2005) 4 SCC 67, held as follows - To support the contention that there are errors apparent on the face of the record, we have been taken through the judgment to show that the aforesaid contention was urged. It appears clearly that the contention was made but there has been omission to consider it. The approval was, inter alia, based on the clarification given in the letter dated 30-6-2001. At this stage, the only question is as to an error apparent on the face of the record having occurred in non-consideration of this nature of contention and not on its merit or demerit. The validity of the approval was in question in the transferred case as also in the civil appeals wherein reliance was sought to be placed on the invalidity of the approval as a subsequent event. There is another error apparent, namely, the reliance upon the aforenoted order of the Chief Minister dated 14-1-1999 while dealing with the third question and rejecting the contention about non-existence of special reasons in terms of Section 11(4) or sub-section (5) now without any opportunity to supply a copy of the order dated 14-1-1999, or to deal with it. It is not on record. So far even we have had no opportunity to peruse it. It is also not referred to in the recommendation of the State Government dated 28-1-1999. 9. Supreme Court again in Commissioner of Customs v. Hongo India Private Limited, (2009) 5 SCC 791, held as follows - The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, the High Court has not only the power, but a duty to correct any apparent error in respect of any order passed by it. This is the plenary power of the High Court. If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record. 10. Supreme Court again in S. Thilagavathy v. State of Tamil Nadu, (2011) 6 SCC 365,, held as follows - However, we have noticed that the learned Judges of the Division Bench have not dealt with the case of the appellant insofar as her appeal arising out of Writ Petition No. 4318 of 1997 is concerned, wherein the appellant had challenged her reinstatement on Grade II post and had preferred the appeal clearly contending that she should have been reinstated on Grade I post on which she initially claimed to have been appointed in the year 1986. But it appears that this plea has not been dealt with by the Division Bench at all, which amounts to non-consideration of the appeal directed against the order passed in Writ Petition No. 4318 of 1997. However, since the learned Judges of the Division Bench have not passed any order in the writ appeal dealing with this plea of the appellant arising out of Writ Petition No. 4318 of 1997, we leave it open to the appellant to approach the Division Bench by way of a review petition pointing out the error apparent on the face of the record to the effect that her appeal directed against the order in Writ Petition No. 4318 of 1997 has not been dealt with at all and has been dismissed without indicating any reason whatsoever. If a review petition to that effect is filed, the same shall be dealt with in accordance with law. Subject to this liberty, we dismiss this appeal but in the circumstance without any order as to costs. 11. Supreme Court, in Alil Mollah Vs. State of West Bengal, (1996) 5 SCC 369, M.S. Ahlawat Vs. State of Haryana, (2000) 1 SCC 278, Nirmal Jeet Kaur Vs. State of M.P., (2004) 7 SCC 558 has propounded a new principle that to perpetuate an error is no virtue but to correct it is the mandate of judicial conscience. 12. Thus from the facts stated above, it is apparent that the Court while deciding the writ petition has not gone to the controversy involved in the writ petition and was misguided by the Supplementary Counter Affidavit of Sri Ashfaq Ahmad, who ignoring the earlier order of the Department as well as order of State Government has given an impression that claim of the petitioners being genuine would be given although after decision of the State of U.P. in similar matters, he was not competent do allow the claim of the petitioners. The conduct of Sri Ashfaq Ahmad, who was posted on such a high post was not proper. However earlier judgment dated 23.02.2012 suffers from error apparent on the face of record and is liable to be recalled/reviewed. The purpose of justice will not be served by rejecting the Review Application and perpetuating the error again. The writ petition is liable to be decided on merits. 13. For the aforesaid discussion the Review Application is allowed and order dated 23.12.2012 is recalled. Writ -A No. 53510 of 2008 1. Heard Sri Gautam Baghel, for the petitioners and Miss Suman Sirohi, Standing Counsel for the respondents in the writ petition. 2. The writ petition has been filed for mandamus directing the State Government to grant promotional pay scale of Rs. 5500-9000/- to the petitioner after completion of their 14 years service, as being provided to the Collection Amins in the Revenue department. Subsequently the writ petition was amended and the prayer for quashing the order dated 21.06.2007 passed by Joint Commissioner (Karya Palak) Trade Tax, Allahabad, rejecting the representation of the petitioners, has been added. 3. The admitted facts are that petitioners were appointed as Collection Amins in Collectorate, Allahabad on permanent posts. Their date of appointment and date of confirmation as given in the chart supplied by the Standing Counsel are as follows - Name of the petitioner Date of appointment Date of confirmation Shamsher Ali, P-7 04.12.1976 -Rs. 200-320 03/11/88 Rajendra Prasad PandeyP-5 22.02.1978 -Rs.354-454 05/17/95 Balram Pandey, P-6 21.10.1982 -Rs.354-454 12/30/88 Inam Ullah, P-2 04.08.1983 -Rs.354-454 09/05/86 Lakshmi Kant SrivastavP-4 04.08.1983 -Rs. 354-454 09/05/86 Fateh Bahadur Singh, P-1 05.09.1985 -Rs. 354-454 10/06/88 Surendra Bahadur Singh P-3 07.08.91 -Rs.950-1500 09/30/95 It has been stated that the petitioners were appointed on the permanent posts of Collection Amin in Collectorate Allahabad, according to the provisions of U.P. Collection Amins Service Rules, 1974. Later on, they were sent on deputation to the Trade Tax department. State of U.P. decided to form a permanent cadre of the Collection Amins in Trade Tax department and framed U.P. Trade Tax Collection Amins Service Rules, 1995 under Proviso to Article 309 of the Constitution by the notification dated 29.03.1995. Subsequently, by U.P. Trade Tax Collection Amins Service (Second Amendment) Rules, 2007 (published in gazette on 20.06.2007), the petitioners and other Collection Amins working on deputation were permanently absorbed as Trade Tax Collection Amins w.e.f. 29.03.1995. At the time, when the petitioners were sent on deputation, they were given same pay scale which they were getting in the Revenue department. 4. On the basis of the report of Pay Commission, pay scale of Collection Amins in Revenue department was revised as Rs. 950- 1550 and promotional pay scale as Rs. 1600-2300/- w.e.f. 01.01.1986. Thereafter on the basis of report of Pay Rationalization Committee, State of U.P. by Government Order dated 03.06.1989, refixed the pay scale of Collection Amins in Revenue Department as Rs. 975- 1660 and promotional pay scale as Rs. 1640-2900/-. Inadvertently, the benefits of Government Order dated 03.06.1989 revising the pay scale was not given to the Collection Amins who were working on deputation in Trade Tax department. Subsequently Deputy Secretary, Revenue Department, Government of U.P. by circular dated 12.04.1990, rescinded Government Order dated 03.06.1989 and directed to recover the additional amounts paid in pursuance of the Government Order dated 03.06.1989. The circular dated 12.04.1990 was challenged in Writ Petition No. 4964 (SS) of 1990 and other connected writ petitions before Lucknow Bench of this Court. This writ petition was allowed by judgment dated 09.08.2000 and circular dated 12.04.1990 was quashed and it was held that pay fixation done by Government Order dated 03.06.1989 was correct. It may be mentioned that during pendency of the writ petition, State of U.P. through Government Order dated 03.09.1994 again granted pay scale of Rs. 975- 1660 and promotional pay scale as Rs. 1640-2900/- to the Collection Amins in Revenue department. In compliance of the aforesaid order of this Court, State of U.P. issued another Order dated 31.07.2006 giving pay scale of Rs. 975- 1660 and promotional pay scale as Rs. 1640-2900/- to the Collection Amins in Revenue Department. This pay scale has been revised on the basis of report of Pay Commission w.e.f. 01.01.1996 as Rs. 1640- 2900 and promotional pay scale as Rs. 5500-9000/- 5. As stated above, at the time of sending the petitioners on deputation, they were getting pay scale as given in the Revenue department. However under Rule-23 of the U.P. Trade Tax Collection Amins Service Rules, 1995, pay scale of Rs. 950-1500/- has been prescribed for the Collection Amins in Trade Tax department. Promotional pay scale was Rs. 1600-2300 has been prescribed. When the anomaly was brought to the notice of the Government, State of U.P. by the Government Order dated 03.12.1994 refixed the pay scale to Rs. 975-1660/- but subsequently this benefits has been withdrawn. The pay scale Rs. 950-1500/- has been revised on the basis of the report of Pay Commission as Rs. 3200-4900 and promotional pay scale as Rs. 4000-6000 w.e.f. 01.01.1996. The Collection Amins in Trade Tax department began to demand the pay scale of the Revenue department. Ultimately by the Government Order No. K.Ni.-4-1458/11-2003-400(57)2003 dated 27.09.2003, the claim has been accepted and they were provided pay scale of Rs. 975-1660/ w.e.f. 27.09.2003 (as mentioned in the representation dated 23.08.2006). Now their demand is for the arrears from 01.01.1986. The Trade Tax Collection Amins Unions of Allahabad submitted representations in this respect on 23.08.2006 and 17.10.2006 (Annexures-9 and 10). When nothing was done then this writ petition has been filed. The petitioners have stated that they were initially appointed as Collection Amins, in Revenue department, they were sent on deputation in Trade Tax department where they were permanently absorbed by notification dated 20.06.2007. Minimum qualification, mode of recruitment, nature of work and duties and degree of responsibility of the Collection Amins, in Revenue department and Collection Amins, in Trade Tax department are same as such the petitioners are also entitled to the same pay scale and promotional pay scale. The writ petition has been amended by adding grounds and prayer for quashing the order dated 21.06.2007 passed by Joint Commissioner (Karya Palak), Trade Tax Allahabad by which the representations of the petitioners has been rejected. 6. In the Counter Affidavit filed in the writ petition no specific ground has been given except that the services of the petitioners are governed by a different Service Rules and that their claim has been rejected by the order dated 21.06.2007. In the order dated 21.06.2007 the reason for rejecting the representation of the petitioners has been given that in the Revenue department, next promotional post of Naib Tahsildar is available to the Collection Amins but in Trade Tax department no such promotional avenue is available as such promotional pay scale cannot be given to the petitioners and that the Collection Amins in Revenue department are given benefits provisionally under the order of High Court passed in writ petition against which Special Appeal was pending. The same reason has been given in the order of State Government dated 14.01.2009 while no reason has been given in the order dated 31.10.2011. During arguments, the learned Standing Counsel submitted that as in the Trade Tax department, there is no channel for promotion to the Collection Amins as such promotional pay scale cannot be given to them. The Standing Counsel, however supplied a chart during arguments showing that the petitioners were given selection grade, promotional grade on completion of 14 years service, next higher grade on completion of 18 years service and next higher grade on completion of 26 years service. Thus the reasons given in the impugned orders are false. 7. I have considered the arguments of the parties and examined the record. In this writ petition, two questions arise for consideration namely (i) Whether the petitioners who were sent on deputation from the Revenue departments, entitled to the same pay scale and other benefits as being provided to the Collections Amins of the Revenue department? and (ii) Whether minimum qualification, mode of recruitment, nature of work and duties and degree of responsibility of the Collection Amins, in Revenue department and Collection Amins, in Trade Tax department are same and employer is the same as such the petitioners are also entitled to parity in pay scale and promotional pay scale? 8. Rule 22 of U.P. Fundamental Rules provides as follows Rule-22 - The initial substantive pay of a Government Servant who is appointed substantively to a post on a time scale of pay is regulated as follows (a) If he holds on a lien a permanent post, other than a tenure post, or would hold a lien on such a post had his lien not been suspended- (i) ........... (ii) (a) When the appointment to the new post does not involved such assumption of duties and responsibilities of grater importance he shall draw as initial pay, the stage of time scale which is equal to his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis. 9. Under Rule-13 of U.P. Fundamental Rules, government servant has lien on his original post, in case he is send on deputation. Admittedly the petitioners were appointed as the Collection Amins in Collectorate, Allahabad on permanent posts, from where they were send on deputation to Trade Tax department, Allahabad on the same post of the Collection Amins having same duties and responsibilities as such under Rule-22 (a) (ii) (a) of U.P. Fundamental Rules they are entitled to the salary equal to their original posts which was held by them on regular basis. Supreme Court in Ashok Kumar Ratilal Patel v. Union of India, (2012) 7 SCC 757 held as follows For appointment on deputation in the services of the State or organisation or State within the meaning of Article 12 of the Constitution of India, the provisions of Article 14 and Article 16 are to be followed. No person can be discriminated nor is it open to the appointing authority to act arbitrarily or to pass any order in violation of Article 14 of the Constitution of India. A person who applies for appointment on deputation has an indefeasible right to be treated fairly and equally. 10. Thus from the facts as mentioned in the writ petition, representations of the petitioners as well as the chart supplied by the Standing Counsel at the time of arguments, it is proved that at the time of sending the petitioners on deputations, they were given same salary, which they were drawing in Collectorate. The anomaly in salary has occurred for the first time due reasons that on the basis of report of Pay Rationalization Committee, by Government Order dated 03.06.1989 the pay scale of Collection Amins in Revenue department was refixed as Rs. 975- 1660 and promotional pay scale as Rs. 1640-2900/- but same benefits has not been given to the Collection Amins in Trade Tax department. In the Rules of 1995, pay scale of Rs. 950- 1500 and promotional pay scale of Rs. 1600-2300 has been fixed. The petitioners were absorbed in Trade Tax Department by the notification dated 20.06.2007 as such prior to 20.06.2007, they had lien to their original posts and were entitled to pay scale of Rs. 975- 1660 and promotional pay scale as Rs. 1640-2900/- as given to the Collection Amins in the Revenue department by Government Order dated 03.06.1989 and 03.09.1994. The petitioners have been illegally discriminated without any basis. 11. Respondent-4 in the impugned order dated 21.06.2007 and the Government in the orders dated 14.01.2009 and 31.10.2011 have given a totally strange and false reason that as in the Trade Tax department, there is no promotion avenue for the Collection Amins as such they were not entitled to the promotional pay scale. From the chart supplied by the Standing Counsel, it is proved that the petitioners are given Selection Grade, Promotional Grade and Next Higher Grade. Thus there was totally non application of mind at the time of passing the impugned order and impugned order is based upon false reasons. 12. So far as the other question that minimum qualification, mode of recruitment, nature of work and duties and degree of responsibility of the Collection Amins, in Revenue department and Collection Amins, in Trade Tax department are same and employer is the same as such the petitioners are also entitled to parity in pay scale and promotional pay scale is concerned, the counsel for the petitioners relying upon Article 14 and 39 (d) of the Constitution as well as judgments of Supreme Court in Randhir Singh Vs. Union of India, (1982) 1 SCC 618, State of Karnataka Vs. Karnataka State Patel Sangh (2007) 4 SCC 207, Union of India Vs. Dineshan K.K. (2008) 1 SCC 586, Haryana State Minor Irrigation Tube-wells Corporation Vs. G.S. Utpal, (2008) 7 SCC 375 and State of Kerala Vs. B. Renjith Kumar (2008) 12 SCC 219 submitted that the Constitution costs a duty upon the State to provide equal pay for equal work under Article 39 (d). The petitioners have fundamental right under Article 14 of the Constitution for equal treatment. Minimum qualification,................VAT and Sales Tax - Case Law
More...