- (1.) JAGDISH Bhalla, J. By means of this writ petition the petitioners have challenged the validity of the cut off date i. e. 1st January, 1975 fixed by Section 18 of the Uttar Pradesh Trade Tax Collection Amins Service Rules, 1995.
(2.) THE petitioners were appointed on the post of Collection Amins in the erstwhile Sales Tax Department (now Trade Tax Department) by order dated 26-8-1974 passed by the Collector, Lucknow who was then the appointing authority of the petitioners under the Collection Amins Service Rules, 1974 which came into force with effect from 5-8-1974. THE appointment of the petitioners on the posts of Collection Amins in the said department was made after being selected by a duly constituted selection committee. THEreafter the petitioners continued to work on their respective posts of Collection Amins in the said department for about 21 years i. e. till 6-8-1995 when they were transferred from the Trade Tax Department to different tehsils of Lucknow district by the District Magistrate, Lucknow by the impugned order, contained in Annexure 11 to the writ petition. Meanwhile, in September, 1984 a list of temporary Collection Amins working in the Revenue Department was published wherein the names of the Collection Amins including the petitioners, working in the Sales Tax Department were not included. At that time since the service rules for the Collection Amins of the Sales Tax Department were not framed, their services were governed by the Collection Amins Service Rules, 1974. THE petitioners made representations for their regularization and confirmation in the service but no orders were passed on their representations. THEreafter they filed Writ Petition No. 5492 of 1986 praying for issue of a writ of mandamus commanding the opposite parties to include their names in the seniority list of confirmed Collection Amins. This writ petition was allowed by this Court by order dated 12-9-1991 which is quoted below : - "a writ in the nature of mandamus is issued commanding the opposite parties to include the names of the petitioners in the seniority list of Collection Amins and to regularize and confirm them on the posts from the date juniors to them have been regularized and confirmed. THE petitioners would be entitled to the consequential benefits. " The said order dated 12-9-1991 passed by this Court in the above writ petition has not been complied with by the opposite parties till date as the services of the petitioners have neither been regularized nor they have been confirmed. Their seniority has also not been fixed. Thereafter by order dated 6-8-1995 the petitioners were transferred in different tehsils of Lucknow district in the Revenue Department. Against the said transfer order the petitioners filed Writ Petition No. 3446 of 1995. The said writ petition was dismissed by this Court by order dated 14-9-1995 on the ground that no interference was warranted in transfer matter and in case of non-compliance of the order dated 12-9-1992 passed by this Court in Writ Petition No. 5492 of 1986 it was open for the petitioners to proceed on contempt side. In the meantime the Commissioner, Trade Tax directed of regularization of the Collection Amins, other than the petitioners working in the Trade Tax Department against the vacancies existing in different districts. In compliance of the aforesaid order of the Commissioner Trade Tax the Collection Amins, other than the petitioners and juniors to them, working in the Trade Tax Department have been confirmed vide order dated 15-4-1995, contained in Annexure 16 to the writ petition. On 29th March, 1995 the State Government framed the service rules for the Collection Amins of the Trade Tax Department, namely "the Uttar Pradesh Trade Tax Collection Amins' Service Rules, 1995" vide Notification No. Vya-Ka-3-789/11-95-70 (90)/89, dated 29-3-1995. Rule 18 (1) of the said service Rules provides that the Collection Amins who have been appointed under the Uttar Pradesh Collection Amins Service Rules, 1974 on or after 1st January, 1975 shall be merged and deemed to have been substantively appointed under the Trade Tax Collection Amins' Service Rules, 1995 and they will cease to be in the service of the Revenue Department from the said date i. e. 1st January, 1975. It is the cut off date i. e. 1st January, 1975 occurring in Section 18 of the Uttar Pradesh Trade Tax Collection Amins Service Rules, 1995 (hereinafter referred to as the Service Rules of 1995) the validity of which has been questioned through the instant writ petition. Heard learned Counsel for the parties. Learned Counsel for the petitioner has submitted that had the cut off date not been prescribed in Section 18 of the Service Rules of 1995 the petitioners would have been merged in the services of the Trade Tax Department, therefore, the said cut off date is arbitrary, irrational and illegal. By fixing the cut off date the petitioners have been arbitrarily distinguished with the similarly situated persons appointed after 1st January, 1975. The petitioners had joined the Sales/trade Tax Department as Collection Amins on 26-8-1974 under the U. P. Collection Amins Service Rules, 1974 which came into force from 5-8-1974. It has been further submitted that the persons similarly situated and juniors to the petitioners have been given the benefit of the Service Rules of 1995 while the petitioners have been deprived of the same. There is no valid reason to fix an arbitrary date i. e. 1st January, 1995 as no useful purpose can be achieved by fixing the aforesaid date. It has further been submitted by the learned Counsel for the petitioners that the distinction by fixing the aforesaid cut off date has been made only with a view to oust certain persons including the petitioners from the services of the Trade Tax Department. Since the petitioners had filed a Writ Petition No. 5492 of 1986 against the opposite parties which was allowed by this Court by order dated 12-9-1991 and thereafter due to non-compliance of the said judgment and order passed by this Court the petitioners had to file a Contempt Petition, the authorities concerned got annoyed with the petitioners and in order to take revenge from the petitioners the cut off date has been deliberately and intentionally fixed to oust the petitioners from the services of the Trade Tax Department. He has further submitted that the purpose of framing the Service Rules, 1995 is to separate the cadre of Collection Amins working in the Trade Tax Department from the cadre of the Collection Amins of the Revenue Department but the classification of the Collection Amins appointed before and after the 1st January, 1975 is absolutely arbitrary and illegal as it has no valid ground for its sustenance and no useful purpose would be served by making such a classification. If the opposite parties intended to separate the cadre of the Collection Amins into two cadres i. e. the Collection Amins of the Trade Tax Department and the Collection Amins of the Revenue Department, a provision should have been made that those who were initially recruited and appointed for the Sales/trade Tax Department would form the cadre of the Collection Amins of the Trade Tax Department while those Collection Amins who were initially recruited and appointed for the Revenue Department would form the cadre of the Collection Amins of the Revenue Department. There was no necessity for fixing a cut off date in Section 18 of the said Service Rules, of 1995. The petitioners were appointed and had joined on the post of Collection Amins in the Trade Tax Department after enforcement of the U. P. Collection Amins Service Rules, 1974 and therefore, they cannot be deprived of the benefit of the Service Rules 1995. According to learned Counsel for the petitioners the classification could be made between those employees who were working before the enforcement of the U. P. Collection Amins Service Rules, 1974 and the employees who were appointed after enforcement of the said Service Rules of 1974 but fixing cut off date as 1st January, 1975 is wholly illogical. He has further submitted that the petitioners were appointed against substantive vacancies in the Trade Tax Department and they have lien against the said posts in the Trade Tax Department. Under the Confirmation Rules, 1991 the petitioners have to be deemed as confirmed on the post of Collection Amins in the Trade Tax Department. In case the petitioners are not given the benefit of the Service Rules of 1995 and they are absorbed in the Revenue Department they will lose their seniority in the Trade Tax Department. The Collection Amins who are juniors to the petitioners and are working in the Trade Tax Department have been promoted while due to the said cut off date the petitioners have not even been regularized and confirmed what to say of their promotion. Therefore, according to the learned Counsel for the petitioners the said cut off date i. e. 1st January, 1975 is wholly illegal, arbitrary, discriminatory and mala fide and is liable to be quashed. In support he has placed reliance on the case of D. S. Nakara and others v. Union of India, (1983) 1 Supreme Court Cases 305. This was a case wherein 31st March, 1979 was fixed as a cut off date for giving certain benefits to pensioners. The liberalized formula of commutation of pension was made applicable to those Government servants who retired on or after 31st March, 1979 but the said formula was not made applicable to the Government servants who retired before 31st March, 1979. In this case the Hon'ble Supreme Court held as under : - "in the present case Article 14 the wholly violated inasmuch as the pension rules being statutory in character, the amended rules, since the specified date accord differential and discriminatory treatment to equals in the matter of commutation of pension. It would have a traumatic effect on those who retired just before that date. This division which classified pensioners into two classes is artificial and arbitrary, is not based on any rational principle and whatever principle, if there be any has not only no nexus to the objects sought to be achieved by liberalizing the pension rules but is counter-productive and runs counter to the whole gamut of the pension scheme. Further there is not a single acceptable or persuasive reason for this division. Therefore, the classification does not stand the test of Article 14. "
(3.) HE has also placed reliance on a Division Bench decision of this Court rendered in the case of Lucknow University Retired Teachers Association v. State of U. P. and others, Writ Petition No. 10107 of 1989, herein a cut off date of retirement, i. e. 1st January, 1984, was fixed for the purposes of extending the benefits of pension etc. The Division Bench while allowing the writ petition held as under : "the State Government discriminated the petitioners by ordering benefit, for teachers of Degree Colleges and ignoring the University Teachers though they were also entitled for the same benefit. There was no justification for not considering the case of retired teachers of the University while considering the similar question in regard to the teachers of the Degree Colleges. We, therefore, allow the writ petitions and hold that the fixing of the date 1-1-84 in GO dated 24-12- 1983, Annexure 7 to the supplementary affidavit, is discriminatory and arbitrary and that part of the GO is thus struck down and the opposite parties are directed to give benefit of the pension scheme to all retired teachers of the Universities irrespective of date of their retirement as is available to the Teachers of the Degree Colleges. " Learned Standing Counsel appearing on behalf of the opposite parties has argued that the controversy has already been adjudicated by this Court in Writ Petition No. 5492 of 1986 filed by the petitioners wherein the opposite parties have been directed to include the names of the petitioners in the seniority list of Collection Amins, to regularize and confirm them on the posts from the date juniors to them have been regularized and confirmed and to give all consequential benefits. The judgment and order dated 12-9-1991 passed by this Court in the above mentioned writ petition has been relied upon by the learned Standing Counsel actually has not been complied with rather it has been flouted and disobeyed by the opposite parties themselves. The opposite parties have done nothing except transferring the petitioners from the Trade Tax Department to various tehsils of Lucknow district. Neither the seniority of the petitioners in the Revenue Department has been fixed nor they have been promoted from the date their juniors have been promoted in the Revenue Department. Therefore, the opposite parties cannot claim the benefit of the judgment which they themselves have not complied with so far. Learned Standing Counsel has admitted that at the time when the recovery scheme was launched in the Trade Tax Department and the petitioners were substantively appointed on the posts of Collection Amins in the year 1974 there were no service rules for appointment of Collection Amins in the Sales/trade Tax Department and the U. P. Collection Amins Service Rules, 1974 were applicable to the Collection Amins of the Sales/trade Tax Department. The parent department of the petitioners is the Sales/trade Tax Department where they were appointed as Collection Amins in the year 1974 and served as such till 1995 i. e. for about 21 years whereafter they were transferred to different tehsils.;