- (1.) The short order of reference made to us, is set out below: " This writ petition has been filed seeking the benefit of the Government Order dated 17.10.1998 for making those Instructors as Lecturers who had been performing the duties of Lecturer, even though they had never applied for the post of Lecturer or faced any selection process for the said post. In view of the law laid down by the Hon'ble Apex Court in Ram Ganesh Tripathi & Ors. Vs. State of U.P. & Ors, AIR 1997 SC 1446, we doubt the power of the Government to issue the said Government Order dated 17.10.1998. More so, placing reliance upon the said Government Order, the Division Bench of this Court had given retrospective effect to the said Government Order, though such terms were not retrospective effect to the said Government Order, though such terms were not incorporated therein, in writ petition No. 32098 of 1999, Dr. Swatantra Bala Sharma Vs. State of Uttar Padesh & Ors., decided on 17th September, 1999. The said petitioner namely Dr. Swatantra Bala Sharma had earlier filed a writ petition for the same relief prior to the commencement of the said Government Order dated 17.10.1998 which had been dismissed and the Special Leave Petition filed against the same had also been dismissed by the Hon'ble Apex Court. We doubt the correctness of the judgment given by the Division Bench of this Court in Writ Petition No. 32098 of 1999, Dr. Swatantra Bala Sharma Vs. State of Uttar Pradesh & Ors., decided on 17th September, 1999 and request the Hon'ble Chief Justice to refer the matter to a Larger Bench on the following issues: "(1) Whether the Government could issue the Government Order dated 17.10.1998 treating theInstructors as Lecturers, though they had never applied for the said post nor they had been appointed as Lecturer when the process of selection and eligibility etc. is entirely different on the post of Lecturers and teacher includes only Professor, Reader 2 and Lecturer? (2) Whether without bracketing both the posts, i.e. Instructors and Lecturers, the government could issue the Government Order dated 17.10.1998 treating the Instructors as Lecturers? (3) Whether in the absence of any provision in the said Government Order to give effect to the said order with retrospective effect, the Division Bench could grant the relief that they shall be deemed to have been appointed as Lecturers from the date of initial appointment as Instructors?" The referred questions are three in number. In our opinion, with great respect and due deference to the Hon'ble Division Bench, there are in fact four questions. The fourth implicit question is given below: (4) Whether the judgement given by the Division Bench in writ petition No. 32098 of 1999, Dr. Swatantra Bala Sharma Vs. State of U.P. and others was the correct judgment in law?' The facts giving rise to this writ petition before us are regarding the persons who were holding the post of Instructors in the University. Several of them have come before the Court from time to time claiming substantial equality with Lecturers. The claims have been made that they should have been given designation as Lecturer and also be paid salaries as Lecturer from the very dates of their appointment as Instructors. The matter received very large scale attention from the State Government when the order dated 17.10.1998 was passed wherein it was provided that the Instructors, in any department, would be given designation and pay as Lecturers from the date of promulgation of the said Government Order. However, the Instructors have not felt satisfied with that. They, 1998, claimed before the Courts, for this additional benefit, i.e. that the Instructor should get designation and pay as Lecturer from even before 1998, and such benefit should
(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:- "In our opinion, there is clear discrimination against the petitioner because the Instructors who were in other departments were given designation and pay of lecturers from the date of the initial appointment as Instructors". Then again on the next page, the Division Bench said: "In our opinion since the Instructors of other departments were given benefits of the appointment of the Lecturers from the date of their initial appointment as Instructors, hence there cannot be discrimination against the petitioner otherwise, Article 14 of the Constitution will be violated"
(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.;