Allahabad High Court
Smt. Jyotsana Pandey And Others vs State Of U.P. And Others on 25 September, 2013
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 34
Case :- WRIT - A No. - 54616 of 2010
Petitioner :- Smt. Jyotsana Pandey And Others
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- Vijay Gautam
Counsel for Respondent :- C. S. C.
Hon'ble Sudhir Agarwal,J.
1. The petitioners are aggrieved by Government Order (Demi Official Letter) dated 28.06.2010 whereby it has been clarified pursuant to a query made by Police Headquarter vide letter dated 04.05.2009 that "Incentive Allowance" (Protsahan Bhatta) should not co-relate with pay scale if a police official is getting promotional pay scale but it would be justified that it should be co-related with post of officer concerned and further action, therefore, be taken accordingly.
2. It is contended that aforesaid letter is a correspondence between Government and Inspector General of Police (Budget), U.P. Police Headquarters, Allahabad and is not a Government Order (hereinafter referred to as the "G.O.") laying down policy in respect of grant of certain benefits conferring a right upon the beneficiaries and, therefore, would have no effect of amending the G.O. dated 28.11.2007. In the alternative it is submitted that aforesaid clarification runs contrary to what actually has been said in the G.O. dated 28.11.2007 and so long as the statutory G.O. dated 28.11.2007 referable to Section 2 of Police Act, 1861 (hereinafter referred to as the "Act, 1861") is amended with the concurrent of Finance Department, the above clarification, to the extent it runs contrary to G.O. dated 28.11.2007, is illegal and liable to be set aside. Learned counsel for the petitioners also pointed out that the G.O. dated 28.11.2007 confers benefit of Incentive Allowance and it was issued in consultation with Finance Department but the present letter dated 28.06.2010 shows an opinion of a particular authority in the department, in interpretation of aforesaid G.O. reflecting opinion/view of the individual officer. He submitted that condition given in the G.O. dated 28.06.2010 is inconsistent to the provisions contained in G.O. dated 28.11.2007 and, therefore, the G.O. dated 28.06.2010 is illegal. Lastly, it is contended that, in any case, the impugned letter dated 28.06.2010 cannot operate retrospectively and, therefore, whatever has been done pursuant to G.O. dated 28.11.2007 and prior to 28.06.2010, cannot be reviewed, recalled, reduced or curtailed so as to cause civil consequences to the extent of recovery upon petitioners.
3. Learned Standing Counsel, on the contrary, said that the impugned order dated 28.06.2010, in fact, is a clarificatory G.O. and, therefore, is retroactive. It makes the intention of Government clear and, therefore, there is no question of any inconsistency.
4. Learned counsel for the parties, at the outset, admitted that in respect of interpretation of G.O. dated 28.11.2007 and considering other aspects of the matter this Court has already decided issues in detail in its judgment, of date, passed in Writ Petition No.7960 of 2010 (Brijesh Chandra and others Vs. State of U.P. and others), which is squarely applicable to the present case.
5. However, the only additional issue raised in this matter is, whether by issuing an order at the level of Government, can have the effect or import of G.O. dated 28.11.2007, be restricted, reduced or confined, by reading the same in a manner which is not otherwise permissible, since the intent of Government is clear from a plain reading of G.O. dated 28.11.2007. Therefore, only this aspect of the matter need be considered in the present case.
6. The clarification given in letter dated 28.06.2010 is clear. As a subsequent thought, without making any change or amendment in the G.O. dated 28.11.2007, an attempt has been made to rationalize it with reference to rank and not the pay scale so as to reduce the amount of Incentive Allowance drastically which was otherwise admissible to police officers of subordinate rank, posted in Intelligence. In my view, it is unjust, invalid and illegal.
7. The purpose of Incentive Allowance was to encourage police officers of subordinate rank to come in Intelligence Wing. The rate of Incentive Allowance is with reference to basic pay and dearness allowance which the particular officer is receiving. It goes without saying that if an officer is getting salary in a promotional pay scale, his basic pay and dearness allowance must be in the promotional pay scale and not the pay scale attached to the post he is substantively appointed. It would be wholly arbitrary to impute such an unjust intention upon the rule framing authority that on the one hand it decided to pay Incentive Allowance with reference to basic pay and dearness allowance with reference to pay scale presently applicable to the officer concerned, irrespective whether it is initial pay scale attached to the post or promotional pay scale, but simultaneously it should be drastically cut by providing maximum amount and that too with reference to his pay scale initially attached with substantive post. This interpretation and reading of G.O. makes it self contradictory, irrational and otherwise against the spirit and purpose for which G.O. dated 28.11.2007 has been issued. In my view, reading and interpretation given by letter dated 28.06.2010 is neither correct, nor in conformity with the plain reading of G.O. dated 28.11.2007, nor is otherwise just and valid.
8. Moreover, the impugned order dated 28.06.2010, at the best, is an executive order and will not have the effect of influencing the interest of beneficiaries of G.O. dated 28.11.2007, adversely, with retrospective effect, and, therefore, it may change the consequences of G.O. dated 28.06.2010 only prospectively so as not to allow respondents to give effect to any recovery from beneficiaries for the period prior to 28.06.2010.
9. In this view of the matter and also for the reasons stated in my judgment of date passed in Brijesh Chandra (supra), and in the same terms, this writ petition is allowed. The impugned order dated 28.06.2010, in view of findings given hereinabove, particularly, with reference to its rationality and validity, is hereby quashed. No costs.
Order Date :- 25.9.2013
AK
