HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 39 Case :- WRIT - A No. - 24814 of 2010 Petitioner :- Surendra Kumar Singh Rathore And Others Respondent :- State Of U.P. And Others Petitioner Counsel :- Siddharth Khare,Sri. Ashok Khare Respondent Counsel :- C. S. C. Hon'ble V.K. Shukla,J.
Petitioners have rushed to this Court for following reliefs:
"issue-
(I) a writ, order direction in the nature of certiorari quashing the Government Order dated 12.03.2010 (Annexure-9 to the writ petition);
(ii) a writ, order or direction of a suitable nature commanding the respondents to sanction one increment to the petitioners as on 01.01.1996 in fixing salary in the revised pay-scale effective from 01.01.1996 in accordance with paragraph 4 (2) of the Government Order dated 31.12.1997 and to give regular payments of monthly salary accordingly; (iii) a writ, order or direction of a suitable nature commanding the respondents to disburse arrears arising on such account within a period to be specified by this Hon'ble Court; (iv) issue a writ, order or direction in the nature of which this Hon'ble Court may deem fit and proper under the circumstances of the case; (v) award cost to the humble petitioners throughout of the present writ petition."
Petitioners, who are four in number have been posted in Police Radio Control Room at various establishments. They started claiming that in the matter of fixation of pay scale, they have been discriminated. The State Government considered the request of petitioners and other similarly situated various candidates and issued Government Order removing the discrepancies and modifying the revised pay scale as enforced with effect from 01.01.1996, but the dame was made effective with effect from the date of issue of Government Order dated 30.04.2004. With regard to the aforesaid grievance for not extending the benefit from retrospective effect, the petitioners were impelled to file writ petition No.67340 of 2005, Anand Kumar Mishra and others vs. State of U.P. and others, and this Court on 24.10.2005 gave direction to the State Government to decide the matter. The State Government thereafter considered the matter and rejected the claim of the petitioners on 11.05.2006. Aggrieved, petitioners filed writ petition No.44344 of 2006, Anand Kumar Mishra and others vs. State of U.P. and others and writ petition No.67825 of 2006, Surendra Kumar Singh and others vs. State of U.P. and others before this Court. During pendency of the aforementioned writ petitions, with similar grievance writ petition No.5902 (SS) of 2005 had been filed before Lucknow Bench of the Court, and the Lucknow Bench of the Court vide judgment and order dated 21.08.2008 allowed the writ petition. In the light of the said judgment, the writ petitions pending at Allahabad were also finally decided on 04.09.2008 allowing the claim of petitioners. Aggrieved against the aforesaid judgments, the State Government preferred Special Appeal, which was dismissed on 06.08.2009. Thereafter, the State Government issued Government Order, on 24.10.2009, whereby the earlier Government Order was modified and permission was accorded for implementation of revised pay scale as mentioned in the Government Order dated 31.12.1997 with effect from 01.01.1996, and thus the pay scale of the petitioners stood revised with effect from 01.01.1996. Grievance of the petitioners is that the respondents have failed to follow up the directives contained in the Government Order dated 31.12.1997, especially in the matter of fixation of salary in revised pay scale with effect from 01.01.1996. Petitioners at this juncture have rushed to this Court questioning the validity of decision dated 12.03.2010, wherein communication has been sent declining to sanction the benefit referred to in communication dated 10.11.2009.
Counter affidavit has been filed and therein stand has been taken that at the point of time when revised pay scale was enforced with effect from 01.01.1996 in pursuance of Government Order dated 31.12.1997 benefit had already been extended and thereafter up-gradation had to be in consonance with the Government Orders dated 30.10.2004 and 24.10.2009 and nothing beyond the same, as such writ petition deserves to be dismissed.
Rejoinder affidavit has been filed disputing the averments made in the counter affidavit and reiterating the same set of facts as mentioned in the writ petition.
After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.
Sri Ashok Khare, Senior Advocate, assisted by Sri Sidharth Khare, Advocate, contended with vehemence that in the present case revised pay scale, which has been accorded since 01.01.1996 was not commensurate to their counter parts and in this background representation was made and ultimately in place of scale of Rs.4000-6000/-, the scale of Rs.5000-8000/- had been given, and in this background qua the same fixation also ought to have been made accordingly, and as per Government Order dated 31.12.1997, and in case any benefit had been given in accordance with the said Government Order, same should be adjusted and the request made by accepted.
Countering the said submissions learned standing counsel, on the other hand has contended that rightful view has been taken in the matter, and the petitioners are not entitled to the benefit under the Government Order dated 31.12.1997, as this was case of up gradation of pay scale and not fixation of pay scale.
After respective arguments have been advanced, factual situation, which has so emerged in the present case, is that the petitioners had been working in the wireless wing of the Police Department and they had been agitating their claim that they were entitled to revised pay scale in pursuance of the report of the Equivalence Committee constituted in pursuance of the Pay Commission Report with effect from 01.01.1996. Initially, pay fixation of the petitioners had been done in the pay scale of Rs.4000-6000/-, and this much has been accepted by the petitioners that the same was done with effect from 01.01.1996 and in consonance with the Government Order dated 31.12.1997 fixation has also been made. The fact of the matter is that the petitioners as well as other similarly situated employees had been insisting that the said pay scale was not commensurate to their post and they were entitled to be fitted in the pay scale of Rs.5000-8000/-. This request of the petitioners had been accepted in principle by Government Order dated 30.10.2004, but the same was made effective from the date of the Government Order dated 30.10.2004 and not from 01.01.1996. Said contention of the petitioners had been subject matter of challenge in writ petition No.5902 (SS) of 2005 before Lucknow Bench of the Court. The Court did not approve of the action of the Government and mentioned that it was incumbent upon the respondents to pay the revised pay scale to the petitioners and other similarly situated employees with effect from 01.01.1996, and the State Government was not justified in deviating from grant of revised pay scale in pursuance of Circular dated 16.08.2001, and thus writ petition was allowed. Following the ratio of the said judgment, writ petition No. 44344 of 2006, Anand Kumar Mishra and others vs. State of U.P. and others and writ petition No.67825 of 2006, Surendra Kumar Singh and others vs. State of U.P. and others, had been allowed. Special Appeal No.870 of 2009 preferred against the aforesaid judgments had been dismissed on 06.08.2009. The Special Appeal Bench had clearly taken the view that simply because decision in regard to those employees was taken later, will not give a right to the State Government to give them scale of pay from the date decision was taken, and the judgment of learned Single Judge had been affirmed. Thereafter Government Order dated 24.10.2009 had been issued for according revised pay scale with effect from 01.01.1996. At this juncture issue is being sought to be raised in respect of fixation of pay scale as per Government Order dated 31.12.1997.
The Government Order dated 31.12.1997 proceeds to fix the procedure in respect of fixation of pay scale qua the incumbents whose pay scale had been revised with effect from 01.01.1996 and nothing beyond the same. In the present case, it is true that in earlier recommendation of the Pay Commission salary of the petitioners had been fixed in the pay scale of Rs.4000-6000/-, and thereafter fixation had been made as per Government Order dated 31.12.1997. But once in principal State Government had accepted this request that the petitioners were entitled to pay scale of Rs.5000-8000/-, then in such a situation once again State Government will have to make fixation with effect from 01.01.1996 and for making fixation the parameter provided for in consonance with the Government Order dated 31.12.1997 has to be adhered to with the rider that if the benefit had been extended in the past on account of revision of pay scale with effect from 01.01.1996 in the pay scale of Rs.4000-6000/- in consonance with the Government Order dated 31.12.1997 the same has to be rescinded and adjusted accordingly. Thus, the view of the State Government in this background is not being approved of.
Consequently, writ petition succeeds and the same is allowed. The order dated 12.03.2010 is hereby quashed and set aside. The respondents are directed to consider the claim of petitioners for grant of one increment to the petitioners with effect from 01.10.1996 after fixing the salary in revised pay scale of Rs.5000-8000/- with effect from the said date in accordance with the directives contained in paragraph 4 (2) of the Government Order dated 31.12.1997, and further fixation which has been made in the pay scale of Rs.4000-6000, qua the same, it is hereby directed that whatever payment has been made pursuant to the same, same be adjusted before proceeding to extend benefit accordingly.
No order as to costs.
Order Date :- 5.12.2011 SRY