P K MALIK Vs. STATE OFU P

JUDGEMENT

(1.) The short order of reference made to us, is set out below:

(2.) commence from the very dates of their respective appointment. It is in this background that the Hon'ble Division Bench has sent the questions to us for determination. So far as the first question is concerned, we answer it in the affirmative. It is our opinion that it was possible for the Government, as the substantial employer, who issued the order dated 17.10.1998 to treat Instructors and Lecturers as equivalent even though they have great differences in the matter of selections and eligibility. It is possible in law for the employer to treat the apparent unequals as equals and grant them identity of designation and pay. If there is any discrimination, then and in that event, it is for the employee to bring that fact before the Court. So long as that is not done, on the basis of basic power of the employer, who passed the orders for the purposes of equalisation of different types or grades, cannot be doubted or disputed. The power of Government to issue orders dated 17.10.1998 was of a plenary nature. So far as the second question is concerned, we are of the opinion that even without bracketing both the posts i.e. Instructor and Lecturers, the Government could issue the order dated 17.10.1998, subsequently for the equalisation of benefits of the two posts. It is again for the employers in the first place to consider and determine whether the persons with different channels of entry will be entitled to enter, so to speack, in the same room or in the same house, and thereby be entitled to the same benefit and rights and liabilities which will be substantially equal amongst themselves. Again, if there is any discrimination, that is to be gone into expressly only in appropriate proceedings filed by the aggrieved section of employees, if at all there is ever such litigation, it is not for the Court suo motu to consider the matter of discrimination. It should, on the other hand, accord full validity and effect to the order passed by the employer government. The third question by the Hon'ble Division Bench is, in our respectful opinion, to be taken up along with the implicit question which is about the correctness of the decision of Swantra Bala's case. Just before the Government Order dated 17.10.1998 had come to be promulgated, a Full Bench decision had been in the offing which was delivered immediately after the promulgation of the order dated 17.10.1998. This was the decision given in the case of Dr. Ajay Kumar Jaitley, which is reported at 1999 (1) UPLBEC 388. In paragraph 29 of the said judgment, the Court was careful to point out that the Government Order dated 17.10.1998 was not before it. From the wording of the said order dated 17.10.1998, and also on the basis of materials on record presented before the Division Bench, it is clear that the Division Bench did go on to lay down certain poacquiedints of inequality existing, according to it, as between Instructors and Lecturers. After the order of 17.10.1998 was promulgated, came the decision in Swatantra Bala's case, which was delivered by a Division Bench on 17.9.1999. In the paper book before us, the said judgment is to be found set out from page 24 and at page 35 thereof and internal page 13 of the said judgment, the following sentence occurs:-

(3.) In the ordering portion, the Division Bench directed the respondents to treat the petitioner as Lecturer from the date of initial appointment as Instructor on 29.12.1980, and to give her arrears of balance of salary, if any as Lecturer from the said date. The monetary importance of making the operation of the Government order retrospective can easily be seen. The Division Bench referring the matter to us, has seen it fit to doubt the decision given in Swatantra Bala's case.