Shiv Sagar Mishra vs State Of U.P. Thru' Secry. And 3 ...
2017 Latest Caselaw 6488 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on 26.10.2017
 
Judgment Delivered on 08.11.2017
 
Court No. - 37
 

 
Case :- SPECIAL APPEAL No. - 1380 of 2013
 

 
Appellant :- Shiv Sagar Mishra
 
Respondent :- State Of U.P. Thru' Secry. And 3 Others
 
Counsel for Appellant :- Sharda Vishwakarma,Awadhesh Kumar Sharma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Saral Srivastava,J.

(Delivered oral by Hon'ble Saral Srivastava, J.

Heard Ms. Sharda Vishwakarama, learned counsel for the appellant and the learned Standing Counsel.

The present appeal questions the correctness of the judgment and order dated 03.09.2013 passed by learned Single Judge dismissing the writ petition of the appellant, wherein petitioner has prayed for writ of certiorari for quashing the order dated 27.05.2013 passed by the District Magistrate, Allahabad, rejecting the representation of petitioner for grant of benefit of increment, selection grade, super selection grade, notional promotion and Assured Carrier Promotion i.e. A.C.P.

The appellant filed the writ petition on the ground that he was appointed in the Consolidation Department and thereafter was absorbed on the post of Junior Clerk, and joined duty on the said post on 23.12.1975. In the writ petition, he further pleaded that he has been awarded several adverse entries and was terminated by the District Magistrate by an order dated 17.08.1998, which was set-aside by the Appellant Authority/ Commissioner, Allahabad Division vide order dated 14.09.1998 with a direction to the District Magistrate, Allahabad for conducting a disciplinary inquiry by issuing charge-sheet and affording opportunity of hearing to the appellant/ petitioner. The appellant/petitioner further pleaded that after the order of Commissioner dated 14.04.1998 an inquiry was conducted and he was awarded punishment of withholding two annual increments permanently. The Disciplinary Authority also awarded censure to the appellant/petitioner.

The appellant/petitioner further set up a case that after finalization of the departmental proceedings, he submitted a representation to the District Magistrate, Allahabad praying for notional promotion and when the claim of the petitioner was not considered, he preferred writ petition no. 649541 of 2011, seeking a direction to the District Magistrate, Allahabad to decide the claim of the appellant/petitioner. This Court vide order dated 15.11.2011 directed the District Magistrate, Allahabad to consider the claim of the petitioner.

From the record, it transpires that in compliance of the judgment of this Court in Writ Petition No. 64954 of 2011, the District Magistrate, Allahabad vide order dated 27.05.2013 rejected the claim of the petitioner/appellant by a reasoned order. The order of the District Magistrate dated 27.05.2013 was challenged in the writ petition which was dismissed by this Court by an order dated 03.09.2013 which is impugned in the present appeal.

In this appeal the State has filed a counter affidavit on behalf of the respondent nos. 2 to 4, stating therein that the petitioner/appellant was not entitled for his claim for promotional pay-scale etc., inasmuch as, the District Magistrate, Allahabad, after considering the entire material and service record of the petitioner/appellant has rejected his claim.

The counsel for the appellant has submitted that the District Magistrate while rejecting the claim of the petitioner for benefits of increment, selection grade, super selection grade, notional promotion and Assured Carrier Promotion i.e. A.C.P. etc. has failed to consider the relevant Government Orders which entitles the petitioner/appellant for benefits claimed by him. The submission of the counsel for the appellant that since this relevant aspect was not considered by the learned Single Judge, while dismissing the writ petition, therefore order of learned Single Judge is not sustainable in law.

On the other hand, the learned Standing Counsel has submitted that the order passed by the District Magistrate, Allahabad is a detailed and well reasoned order which has been passed after considering relevant Government orders and the entire material on record. In this regard, the learned Standing Counsel has taken us through the entire order of the District Magistrate, Allahabad to demonstrate that each and every aspect has been considered by the District Magistrate while rejecting the claim of the appellant/petitioner. It would be appropriate to extract the last paragraph of the order of the District Magistrate herein below to appreciate the reason for rejecting the claim of the petitioner:

"bl izdkj vfHkys[kksa ds vuqlkj Jh f'ko lkxj feJ ds fo:) o"kZ 1980&81] 1986&87 rFkk 1998 esa izfrdwy izfof"[email protected] ds vkns'k] o"kZ 2011 esa HkRlZuk rFkk 2 osruo`f) LFkkbZ :i ls jksds tkus ds vkns'k gqvk Fkk] tks lHkh cjdjkj jgs rFkk vihy esa ;k mPp Lrj ij fujLr ugh gq,A blds vfrfjDr o"kZ 1980 esa xcu o dwVjpuk esa vkijkf/kd okn] 1985 esa iqu% vU; vkijkf/kd okn rFkk 1988 esa VªSi dsl esa vkijkf/kd okn ntZ gqvkA iqu% orZeku esa dwVjpuk }kjk vfu;fer :i ls vU; deZpkjh ls lEcfU/kr th0ih0,Q0 [kkrs ls /kujkf'k vkgfjr fd;s tkus o vius th0ih0,Q0 [kkrs ls Hkh dbZ yk[k :i;k vfrfjDr vkgj.k ds vkjksiksa esa foHkkxh; dk;Zokgh izpfyr gS rFkk ljdkjh /kujkf'k dh olwyh dk vkns'k Hkh izHkkoh gSA Jh feJ ds fo:) mijksDrkuqlkj lEiw.kZ lsokdky esa fu;fer vUrjky ij izfrdwy izfof"V o n.Mkns'k ikfjr gksrs jgs gS rFkk vkijkf/kd okn Hkh ntZ jgs gSa] ftl dkj.k lsok ds lUrks"ktud gksus dk fu/kkZj.k ugh fd;k tk ldrk] pwafd Jh f'ko lkxj feJ }kjk vius mijksDr izR;kosnuksa esa vfrfjDr osruo`f)] le;eku osrueku o foRrh; LrjksUu;u rFkk uks'kuy izksUufr dh ekax dh x;h gS] tks lHkh ml fLFkfr esa ns; gS tc fdlh deZpkjh dh lsok;sa lUrks"ktud gksa] tks fd Jh feJ ds ekeys esa ugh gSa] tSlk fd mijksDrkuqlkj fn;s x;s fooj.k ls Li"V gSA vr% mijksDr foospuk ds dze esa Jh f'ko lkxj feJ ds izR;kosnuksa dze'k% fnukad 25-03-2011] 14-09-2011 o 20-10-2011 dks rn~uqlkj fuLrkfjr fd;k tkrk gSA"

Learned Standing Counsel has also taken us through the counter affidavit filed by the State, and has drawn attention of the court to paragraph 30 of the counter affidavit, wherein it has been stated that the petitioner has been awarded punishment by the District Magistrate by an order dated 28.09.2013 for committing financial irregularities. The penalty order dated 28.09.2013 has been extracted in paragraph no. 30 of the counter affidavit which is extracted in extenso herein under:

"30. That the contents of para No. 36 and 37 of the affidavit under reply as stated are not admitted hence denied. In reply it is respectfully submitted that regarding the illegal withdrawal from the G.P.F. Accounts by the writ petitioner, the then Ziladhikari appointed the Additional Ziladhikari Nazool Allahabad as inquiry officer vide order dated 24.04.2013. It is further submitted that the writ petitioner was suspended vide order dated 19.06.2013 passed by the then Ziladhikari considering the report dated 18.06.2013 submitted by Additional City Magistrate-II/In-Charge Officer (Political Pension) and also the manipulation in the records, financial irregularities, non-submission of charge even after order etc. It is is further submitted that in the departmental proceeding the inquiry officer, the Additional Ziladhikari Nazool Allahabad submitted the inquiry report dated 17.07.2013 and 12.09.2013. After receiving the report of the Inquiry Officer, the writ petitioner was served the charge sheet and opportunity was given to submit the representation. After considering the report submitted by the inquiry officer and also the representation submitted by the writ petitioner, the then Ziladhikari Allahabad passed the order dated 28.09.2013 bearing Order No. 821/GC by which the writ petitioner was awarded the penalty as under:-

1- tkap vf/[email protected] ftykf/kdkjh ¼utwy½ us tkap vk[;k fnukad 17-07-2013 esa vkjksi la[;k 01 o 04 vipkjh deZpkjh ij vkaf'kd :i ls fl) ik;k gSA tkap vf/kdkjh us vfrfjDr vkjksi ds lEcU/k esa viuh tkap vk[;k fnukad 12-09-2013 esa vkjksi la[;k 02 dks vipkjh deZpkjh ij iw.kZ :i ls fl) ik;k gSA mDr rhuksa vkjksi vf/kdkfj;ksa dks vfHkys[k miyC/k u djkus] ofj"B vf/kdkfj;ksa ds vkns'kksa dh vogsyuk] vuq'kklughurk o vius iVy dk pktZ u fn;s tkus ds lEcU/k esa gSA vipkjh deZpkjh Jh f'kolkxj feJ ds bl d`r ds fy;s mudh ?kksj [email protected] dh tkrh gSA

2- tkap vf/kdkjh us viuh tkap vk[;k fnukad 17-07-2013 es vkjksi la[;k 02 o 03 iw.kZ :i ls fl) ik;k gS rFkk vfrfjDr vkjksi ds lEcU/k es izsf"kr tkap vk[;k fnukad 12-09-2013 esa vkjksi la[;k 01 dks iw.kZ :i ls fl) ik;k gSA mDr vkjksi th0ih0,Q0 iklcqd esa dwV jpuk dj QthZ :i ls yxHkx :- 80]00][email protected]& dk vkgj.k djus ls lEcfU/kr gSA vkSj tkap vf/kdkjh us bl vkjksiksa dks vipkjh deZpkjh ij fl) ik;k gSA bl lEcU/k esa vkns'k fn;s tkrs gSa fd Jh f'kolkxj feJ ds lsokfuo`Rr ds QyLo:i mudh ns; /kujkf'k esa ls mDr /kujkf'k dks olwy dj ls fu;ekuqlkj lEcfU/kr ys[kk 'kh"kZd esa tek djk;k tk;A

3- Jh f'kolkxj feJ dks fuyafEcr vof/k dk osru ns; ugh gksxkA

4- vkjksi deZpkjh ij th0ih0,Q0 iklcqd esa vksojjkbfVax o dwV jpuk fd;s tkus dk vkjksi tkap vf/kdkjh us viuh tkap vk[;k fnukad 17-07-2013 os tkap vk[;k fnukad 12-09-2013 es fl) ik;k gSA vr% tkap vf/kdkjh dh tkap vk[;k ds ifjizs{; esa vipkjh deZpkjh ds mDr d`R; ds fy;s mlds fo:) lqlaxr /kkjkvksa ds vUrxZr izFke lwpuk ntZ djk;h tk;A

In compliance of the order dated 28.09.2013 passed by the then Ziladhikari, the first information report bearing Case Crime No. 808 of 2013 under Section 218/409/419/420/467/468/471 I.P.C. Has been registered with the police station Colonelganj.

Learned Standing Counsel further submitted that in compliance of the order dated 28.09.2013 passed by the then District Magistrate, Allahabad, the First Information Report bearing case crime no. 808 of 2013, under Sections 218, 409, 419, 420, 467, 468, 471 I.P.C. has been registered with the Police Station Colonelganj. The learned Standing Counsel further submitted that the facts stated in paragraph no. 30 of the counter affidavit have been replied by the petitioner in paragraph no. 25 of the rejoinder affidavit, and a perusal of the same indicates that the facts stated in paragraph no. 30 of the counter affidavit have not been specifically denied by the appellant, rather in a usual and mechanical manner petitioner has reiterated the contents of paragraph nos. 36 and 37 of the affidavit of Special Appeal. He further submitted that in paragraph nos. 36 and 37 of the affidavit in support of the stay application filed by the appellant no where disputes the averments in paragraph no. 30 of the counter affidavit.

Thus, the submission of the learned Standing Counsel is that considering the fact stated in paragraph no. 30 of the counter affidavit and detailed reason given by the District Magistrate in its order dated 27.05.2013 rejecting the claim of the appellant, the claim of the appellant/petitioner for special pay, A.C.P. etc. is misconceived.

We have heard counsel for the appellant and State and perused the record. We have gone through the order of District Magistrate, and we find that the District Magistrate, after considering the entire material on record and the service record of the petitioner, has given reasons in detail for rejecting the claim of petitioner/appellant. Learned counsel for the appellant could not point out any illegality in the order of the District Magistrate. He has also failed to demonstrate as to how various Government Orders annexed with the memo of appeal as well as the writ petition could help the petitioner/appellant to get his claim for promotional pay-scale, A.C.P etc.

Considering the entire material on record and conduct of the petitioner as stated in paragraph no. 30 of the counter affidavit extracted herein above and also the fact that an F.I.R. against the petitioner has been registered very lately in the year 2013, we find that appellant/petitioner was rightly found not entitled for any promotional pay-scale benefit of A.C.P. etc. as his services were unsatisfactory. Accordingly, we affirm the judgment dated 03.09.2013 passed by the learned Single Judge dismissing the writ petition of the petitioner/appellant. The appeal lacks merit and is, accordingly, dismissed.

There shall be no orders as to costs.

Order Date :- 08.11.2017

Ishan