Shyam Sunder Tripathi vs State Of U.P. And Others
2017 Latest Caselaw 8197 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 

 
Court No. - 26
 
Case :- WRIT - A No. - 24023 of 2011
 
Petitioner :- Shyam Sunder Tripathi
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Mahendra Singh
 
Counsel for Respondent :- C.S.C.,Rajeshwar Singh,Shyam Krishna Gupta
 
Connected with
 
Case :- WRIT - A No. - 24028 of 2011
 
Petitioner :- Ravindra Nath Srivastava
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Mahendra Singh
 
Counsel for Respondent :- C.S.C.,Rajeshwar Singh
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. The aforesaid two writ petitions have been filed by the petitioners, who are similarly situated and aggrieved by the orders dated 22.10.2010 passed individually in their cases by the Assistant Director of Basic Education, Allahabad. The petitioners being similarly situated and the question of law in both these writ petitions being the same, learned counsel for the petitioners has argued both the matters together.

2. It is the case of the petitioner Shyam Sunder Tripathi that he was initially appointed as Extension Teacher on 06.04.1971 at district Bahraich and was confirmed on the said post in 1973. On 21.03.1988 the petitioner was promoted on adhoc basis on the post of Sub-Deputy Inspector of Schools and he continued as such till he was regularised on the said post in 1995 and was given Selection Grade as well as Promotional Pay-Scale on the said post w.e.f. 09.05.1996 and 09.05.2002 respectively. Subsequently, the post of Sub-Deputy Inspector of School was re-designated as Assistant Basic Education Officer and petitioner Shyam Sunder Tripathi retired on the said post.

3. It is the case of petitioner that one Ram Nagina Singh, who was similarly situated was given the first Promotional Pay-Scale w.e.f. 20.04.1993 and one increment in the said first Promotional Pay-Scale w.e.f. 20.04.1996 and second Promotional Pay Scale w.e.f. 20.04.2001. Ram Nagina Singh was junior to the petitioner and therefore, the petitioner represented to the Authorities and his matter was referred by the Basic Education Officer, Deoria to the Assistant Director Basic Education, 7th Region Gorakhpur by his letter dated 16.06.2010. This reference letter has been filed as Annexure-7 to the writ petition.

4. The petitioner's contention is that Ram Nagina Singh was junior to the petitioner and was given first Promotional Pay Scale and increments in first Promotional Pay Scale, and second Promotional Pay-Scale much before the petitioner, but the case of the petitioner was arbitrarily refused on 20.10.2010 by the Assistant Director, Basic Education and even the benefit, which had been granted earlier by order dated 19.05.2003 was cancelled. As per the impugned order dated 20.10.2010, the petitioner was granted one additional increment w.e.f. 01.03.1995, the first Promotional Pay-Scale w.e.f. 01.01.2000 and one additional increment in first Promotional Pay Scale w.e.f. 01.01.2005 only. Against the said order, the petitioner has approached this Court in this writ petition.

5. Similarly, the petitioner Ravindra Nath Srivastava was initially appointed on the post of Extension Teacher on 05.04.1971 and was confirmed on 23.07.1973. After completion of more than 16 years of service as Extension Teacher, he was given Selection Grade on 08.04.1988 and later on promoted on adhoc basis on the Sub-Deputy Inspector of Schools in District Deoria. In 1995, the petitioner's services were regularised as Sub-Deputy Inspector of Schools, which post was later on redesignated as Assistant Basic Education Officer. On 19.05.2003, the petitioner was given Selection Grade w.e.f. 08.04.1996 and first Promotional Pay Scale w.e.f. 08.04.2002. However, one junior person similarly situated, Ram Nagina Singh was granted first Promotional Pay Scale on 20.12.1993, and one increment in the first Promotional Pay Scale w.e.f. 20.04.1996 and the second Promotional Pay Scale w.e.f. 20.04.2001. The petitioner approached the Authorities and his matter was referred by the District Basic Education Officer to the Directorate on 16.06.2010.

6. The Additional Director, Basic Education rejected the case of the petitioner Ravindra Nath Srivastava on 20.10.2010 and cancelled the order dated 19.05.2003 and directed for payment of one additional increment to Ravindra Nath Srivastava w.e.f. 01.03.1995 and the first Promotional Pay Scale w.e.f. 01.01.2000 and one additional increment in the first Promotional Pay Scale w.e.f. 01.01.2005 only.

7. Learned counsel for the petitioners at the time of argument in the aforesaid cases has relied upon two Government Orders, namely Government Order dated 20.08.2004 and Government Order dated 11.08.2008 filed along with the writ petition.

8. By the Government Order dated 20.08.2004, the Finance Department had issued certain clarifications with regard to earlier Government Orders providing for Time Scale Pay Scale and Selection Grade to government employees working in Pay Scales the maximum of which was less than Rs. 3500/- (later revised to Rs. 10,500/-). By the said Government Order dated 20.08.2004 time bound Pay Scale Scheme introduced by the Government Orders dated 08.03.1995, 05.02.1997 and 02.12.2000 was clarified to the extent that the time bound Pay Scale Scheme in operation before 01.03.1995, which provided for first Promotional Pay Scale and one increment thereon after completion of 16 years and 19 years of service would continue to apply uninterruptedly and in continuation of the said Scheme, after completion of 19 years of service whether first Promotional Pay Scale could be made available.

9. It was clarified that since the very Scheme of giving first Promotional Pay Scale/next Higher Pay Scale and one additional increment thereon after completion of 19 years of service came into effect only on 01.03.1995, the said benefit could be made available to incumbents on the post only if they completed 19 years of service on or after 01.03.1995 and not to those persons, who had completed their 19 years of service before 01.03.1995. Even such persons who had completed 19 years of service before 01.03.1995 would get the said benefit only on 01.03.1995 as the Scheme was introduced w.e.f. 01.03.1995.

10. Similarly, it was clarified that second Promotional Pay Scale/next Higher Pay Scale could be made admissible to an employee after completion of 24 years of continuous satisfactory service only on completion of five years of service after 01.03.1995, and thus, an incumbent, who completed 24 years of continuous satisfactory service could not be given the benefit of second Promotional Pay Scale before 01.03.2000.

11. With regard to calculation of 19 years and 24 years of service it was clarified that the benefit admissible on completion of 19 years of service cannot be given before 01.03.1995 and the benefit of 24 years of service could not be given before 01.03.2000.

12. With regard to certain other issues that were raised and on which clarifications were sought by the various Departments, it was clarified by the Government that only continuous satisfactory service that could be counted for the purpose of grant of Promotional Pay Scale, and additional increment thereon was to be given only with respect to service rendered on a particular post in one Department only.

13. Therefore, Time Scale Pay Scale would only become admissible where a person had worked on one post with a particular designation. Even if, the incumbent had worked on similar Pay Scales in two Departments, such service could not be counted for the purpose of grant of Time Scale Pay Scale. The benefit would be admissible only to such persons, who worked on various posts in the same cadre in the same Department, and on such posts which were transferable inter-se, and their seniority list was one with respect to consideration for promotion. Thus, even if a person worked in the same Department for a long time, but on different posts on different Pay Scales in different cadres, he would not be entitled to the benefit of Time Scale Pay Scale as provided in the various Government Orders issued from time to time by the Government.

14. Later on, the Government Order dated 20.08.2004 was modified by the Government by issuing the order dated 11.08.2008, to the extent that even if a person had worked in a different Department on a different post, but was having the same Pay Scale and his service was continuous and uninterpreted when he was transferred from one Department to his another Department, then his earlier service would be counted, subject only to the condition that the Pay Scale of both the posts in the two different Departments was the same.

15. It is the contention of the learned counsel for the petitioners that the petitioners had worked as Sub-Deputy Inspector of Schools w.e.f. 1988, which post was later on re-designated as Assistant Basic Education Officer in 1995, though it carried the same Pay Scale of Rs. 1400/- to Rs. 2300/- and this re-designation of post could not be construed by the State respondents in such a manner as to work out to the disadvantage of the petitioner. The Government Order dated 20.08.2004 being clarified by the Government by its order dated 11.08.2008 it was now clear that service rendered by the petitioners as Extension Teachers and later on as Sub-Deputy Inspectors had to be counted along with their service as Assistant Basic Education Officer for grant of first Promotional Pay Scale, one additional increment thereon, and then second Promotional Pay Scale.

16. Mr Shyam Krishna Gupta, learned counsel has appeared on behalf of the Basic Education Officer, Deoria and he has filed counter affidavit in both cases, wherein it has been submitted that initially the petitioners had been wrongly given Selection Grade w.e.f. 09.05.1996. As the petitioners were not regular employees and were promoted on adhoc basis only in 1988 as Sub-Deputy Inspector of Schools, their services rendered after regularisation w.e.f. 1995 alone could have been counted for the purpose of benefit of Time Scale Pay Scale and therefore, the mistake that had occurred inadvertently in calculating the service benefits of the petitioners was sought to be rectified by the respondents by issuing the order dated 20.10.2010 impugned in these writ petitions.

17. This Court is aware of the Time Scale Pay Scale Scheme introduced by the Government initially on 03.06.1989. By the Government Order dated 03.06.1989 issued for employees, whose pay in the revised pay structure was upto a maximum of Rs. 3500/-, it was provided that all such incumbents, who had been regularised and were continuously working on the same post shall become eligible for Promotional Pay Scale as personal Pay Scale after rendering six years of service in Selection Grade. The Selection Grade was made admissible earlier on completion of 10 years of continuous satisfactory service. Hence, after six years of additional service on the same post, the incumbents became entitled to the first Promotional Pay Scale. In case, there was no Promotional Post available in the cadre, then such an employee would become eligible for the next higher Pay Scale and not the Promotional Pay Scale.

18. This Government Order dated 03.06.1989 was later on superseded by Government Orders dated 08.03.1995 and 05.02.1997, which introduced w.e.f. 01.03.1995, a new/revised Scheme for grant of time bound Pay Scale/Selection Grade/Promotional Pay Scale. This new Scheme provided that after eight years of continuous satisfactory service on one post, an incumbent would became entitled to one increment in the Pay Scale in which he was working, and after completion of five years of addidtional service on the same post, he would become entitled to the first Promotional Pay Scale and after completion of another five years of continuous satisfactory service, such person would become entitled to one additional increment in the first Promotional Pay Scale/next higher Pay Scale, as the case may be, and after completion of another five years of service i.e. total of 24 years of service, the incumbent would become eligible for the second Promotional Pay Scale/next higher Pay Scale, as the case may be. This formula of 8 years + 5 years + 5 years + 5 years of service i.e. 8 years -14 years -19 years -24 years was uniformly applied to all Government Departments/Government employees, subject to the condition that the employee concerned should be working in a Pay Scale the maximum of which was less than Rs. 3500/- (later revised to Rs. 10,500/-).

19. It is the admitted case of the petitioners that initially the promotion of the petitioners from Extension Teachers to Sub-Deputy Inspector of Schools was adhoc in nature in 1988, and petitioners were regularised in 1995 only. The Scheme of Time Scale Pay Scale was admissible only to regular employees and not to adhoc employees, therefore, the petitioners could have been considered for grant of first Promotional Pay Scale only after rendering eight years of service as Regular Sub-Deputy Inspector of Schools/Assistant Basic Education Officer.

20. Since, the Scheme of first Promotional Pay Scale and one additional increment thereon was introduced w.e.f. 01.03.1995 only, the petitioners have been rightly given one additional increment in the Pay Scale of Assistant Basic Education Officer w.e.f. 01.03.1995 and the first Promotional Pay Scale on completion of five years of regular continuous service thereafter w.e.f. 01.01.2000 and one additional increment thereafter in the first Promotional Pay Scale by the impugned orders dated 20.10.2010.

21. The impugned orders dated 20.10.2010 although cancel the orders dated 09.05.1996 issued earlier wrongly giving Selection Grade and Promotional Pay Scale to the petitioners, it does not order any recovery in consequence of this rectification of administrative mistake, and therefore, is liable to be affirmed.

22. Correction of administrative mistake is permissible as per the law settled by the Hon'ble Supreme Court from time to time, which has been discussed by me in detail in my judgment rendered in Writ A No. 21145 of 2012 (Gopi Chand & another vs State of U.P. and others) decided on 24.10.2017.

23. Paragraphs 31, 32, 33, 34, 35, 36 and 38 of the judgment in Gopi Chand (supra) are being quoted herein-below:

31. The Hon'ble Supreme Court in the case of Ram Chandra Tripathi Vs. U.P. Public Services Tribunal & 4 others 1994 (5) SCC 180 has observed that the appellant therein was made permanent on the post of Junior Engineer, but subsequently it was discovered that the appellant's confirmation was contrary to a prohibitive interim injunction issued by the Allahabad High Court in a third party's writ petition. Hence in order to rectify the mistake, the respondent was de-confirmed by the impugned order, which treated his service as temporary. The Supreme Court observed "............. in our view, in such circumstances, the appellant was not required to be given any opportunity of being heard for correcting such mistake, because there was no occasion to take one view or the other in the matter of correction of said mistake, on the basis of representation to be made by the appellant ---------------"

32. In the case of Indian Council of Agricultural Research & another Vs. T.K. Suryanarayan & others 1997 (6) SCC 766, the Supreme Court observed that an erroneous promotion given departmentally by misreading of the Rules contrary to a judicial order did not confer any right on another similarly placed persons to similar benefit. The Supreme Court observed "---------- Even if in some case, erroneous promotions had been given contrary to the said Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee cannot base his claim in law courts for promotion contrary to the statutory services rules. Incorrect promotion either given erroneously by the department by misreading of the Service Rules or such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory service rules----------------- statutory service rules must be applied strictly in terms of interpretation of said Rules".

33. In the case of Maharashtra State Seeds Corporation Ltd. Vs. Hariprasad Drupadrao Jadhao & another 2006 (3) SCC 690, the Supreme Court has observed that although the Enquiry Officer had recommended certain punishment, and on the basis of said recommendation the Managing Director had issued show cause notice to the first respondent, and the first respondent filed his reply to the same, another show cause notice in supersession of the earlier show cause notice by the Managing Director could be issued on the ground that the charges which were proved against the first respondent, were serious in nature and having regard to the gravity thereof, punishment of dismissal could be imposed.

34. The Hon'ble Supreme Court held that "--------An Administrative order can be recalled. A mistake can be rectified. The Managing Director of the Corporation as a disciplinary authority did not lack inherent jurisdiction in relation thereto...............". "----------- as the Enquiry Officer had not jurisdiction to recommend any punishment to be imposed on the respondent by the disciplinary authority, the disciplinary authority acting thereupon at the first instance, could have corrected his mistake as the same was apparent on the face of the record. He, therefore, did not commit any illegality in issuing the show cause notice ---------------" "-------------He might have committed a mistake in issuing the first show cause notice but by reason thereof he cannot be held to he wholly precluded from issuing a second show cause notice as thereby he intended to rectify the mistake committed by him-------------".

35. In the case of Union of India & others Vs. Bikash Kuanar 2006 (8) SCC 192, the Supreme Court has observed thus "It is trite that if a mistake is committed in passing an administrative order, the same may be rectified. Rectification of a mistake, however, may in a given situation require compliance with the principles of natural justice. It is only in a case where the mistake is apparent on the face of the record; a rectification thereof is permissible without giving any hearing to the aggrieved party-------------".

36. In the case of Vividh Marbles Private Ltd Vs. Commercial Tax Officer 2007 (3) SCC 580, the Supreme Court has held thus "If the Authority committed a mistake in referring to 1987 Scheme and allowed 100% exemption in terms thereof, the State cannot suffer thereby. The Statutory Authorities are entitled to rectify their mistake when such mistakes are apparent on the face of the record even no opportunity of hearing is necessary--------------".

38. The Hon'ble Supreme Court in the case of R.R. Verma Vs. Union of India 1980 (3) SCC 402 has observed in paragraph 5 thus:-

"The last point raised by Shri Garg was that the Central Government had no power to review its earlier orders as the rules do not vest the Government with any such power. Shri Garg relied on certain decisions of this Court in support of his submission: Patel Narshi Thakershi Vs. Pradyumansinghji Arjunsinghji ; D.N. Roy Vs. State of Bihar and State of Assam Vs. J.N. Roy Biswas. All the cases cited by Shri Garg are cases where the Government was exercising quasi judicial powers vested in them by statute. We do not think that the principle that the power to review must be conferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature. To extend the principle to pure administrative decisions would indeed lead to untoward and startling results. Surely, any Government must be free to alter policy or its decision in administrative matters. If they are to carry on its their daily administration they cannot be hide-bound by the rules and restrictions of judicial procedure though of course they are bound to obey all statutory requirements and also observe the principles of natural justice where rights of parties may be affected. Here again, we emphasise that if administrative decisions are reviewed, the decisions taken after review are subject to judicial review on all grounds on which an administrative decision may be questioned in a Court. We see no force in this submission of the learned counsel. The appeal is, therefore, dismissed."

24. In view of the specific provisions of the Government Order dated 20.08.20004 as amended by the Government Order dated 11.08.2008, relied upon by the petitioners themselves, although their services as Assistant Basic Education Officer have to be counted along with their earlier service rendered as Sub-Deputy Inspector of Schools for the purpose of time bound Pay Scale Scheme as continuous service, such service would only qualify, if the same was rendered on a regular basis and not on an adhoc basis.

25. There is no illegality or infirmity in the orders impugned.

26. The writ petitions being devoid of merits are dismissed.

27. No order as to costs.

Order Date :-21.12.2017

Sazia