Brij Bihari Sharma vs State Of U.P. Thru' Secry. And 3 ...
2017 Latest Caselaw 6737 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 37
 

 
Case :- SPECIAL APPEAL No. - 1798 of 2013
 
Appellant :- Brij Bihari Sharma
 
Respondent :- State Of U.P. Thru' Secry. And 3 Others
 
Counsel for Appellant :- T.N. Tiwari,Kapoor Chandra Vishwakarm
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Saral Srivastava,J.

Heard learned counsel for the appellant and the learned Standing Counsel.

The appellant was a Lekhpal in the Revenue Department and he filed a writ petition claiming second promotional pay scale that had been denied to him by the order of the District Magistrate dated 14.06.2010 relying on a report of the Sub Divisional Magistrate dated 24.05.2010. The learned Single Judge dismissed the writ petition holding that the report of the Sub Divisional Magistrate was sufficient for the District Magistrate to have arrived at the conclusion in the impugned order which did not call for any interference as neither there was any factual error nor any legal error so as to exercise a writ of certiorari.

Aggrieved the appellant is before us in this Special Appeal and learned counsel for the appellant contends that the order of the District Magistrate does not disclose any independent reasons that ought to have been recorded as to why the explanation of the appellant as against the report of the Sub Divisional Magistrate was not sustainable. He further submits that the appellant was not given any opportunity by the District Magistrate prior to the passing of the impugned order and, therefore the same is also in violation of principles of natural justice which aspect has been over-looked by the learned Single Judge while dismissing the writ petition. It is, therefore, submitted that not only there is a procedural violation but there is a substantive error inasmuch as the learned Single Judge also did not enquire into the status of the entries which had lost their efficacy even if they were adverse to the appellant. The appellant had completed twenty four years of continuous satisfactory services and therefore, he was entitled to the benefit of the second promotional pay scale as per the Government Order dated 10.04.2006. Learned counsel submits that the Government Order dated 30.06.1993 explains the word "satisfactory services" and prescribes guidelines to be followed by the Authorities which does not appear to have been adhered to either by the Sub Divisional Magistrate or by the District Magistrate while passing the impugned order. The contention, therefore, is that all these aspects having gone unnoticed, the judgment of the learned Single Judge can not be sustained and the appeal deserves to be allowed. The impugned order in the writ petition also deserves to be quashed with a direction to extend the benefit of second promotional pay scale to the appellant as prayed for.

Learned Standing Counsel on the other hand contends that there was sufficient material in order to affirm the report of the Sub Divisional Magistrate as has been done in the present case and therefore the order of the District Magistrate impugned in the writ petition has been justifiably sustained by the learned Single Judge which does not call for any interference under the exercise of powers under Article 226 of the Constitution of India. It is submitted that the Government Orders as referred to by the learned counsel for the appellant do not come to his aid in as much as the appellant had not completed twenty four years of continuous and uninterrupted satisfactory services which is required under the relevant Government Order for grant of second promotional pay scale.

We have considered the submissions raised and what we find is that so far as independent reasons in the order of the District Magistrate are concerned, it was sufficient for the District Magistrate to have called for a report and after examining the report which did contain the material that was required to be assessed, the satisfactory services of the appellant were taken into account. Not recording of any other independent reasons will not vitiate the order unless it is proved that the same is perverse.

On the other hand, what we find in the writ petition is that the appellant/petitioner in paragraph no.21 has come up with a case that the entries that were made prior to 30.03.1994 should not have been taken into account, keeping in view the Government Order dated 30.06.1993. Thus in paragraph no.21 of the writ petition it is clearly reflected that there were adverse entries against the appellant which were on record and the same have been taken into account by the Sub Divisional Magistrate in his report that has been relied upon by the District Magistrate. In our considered opinion, the said entries can-not be ignored keeping in view the provisions of the Government Order dated 10.04.2006.

Clause (2) of the said Government Order is extracted hereinunder :

" 2& ys[kikyksa dks 24 o"kZ dh vuojr larks"ktud lsok ds vk/kkj ij f}rh; oS;fDrd izksUurh; osrueku ds :i esa uk;c rglhynkj in dk osrueku :0 5500&9000 vuqeU; gksxkA"

It is the same Government order on which the appellant also relies on to urge, that so far as satisfactory services are concerned, the said Government Order has to be guided by the parameters prescribed in the Government Order dated 30.06.1993. The Government Order dated 30.06.1993 is extracted hereinunder that has been filed along with a Supplementary Affidavit.

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	mRrj izns'k 'kkluA
 
dkfeZd vuqHkkx&1 					y[kuÅ] fnukad 30 twu]1993
 
	fc"k; %& ^^ larks"ktud^^ lsok dk fu/kkZj.kA
 
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A conjoint reading of the two Government Orders would therefore reflect that twenty four years of continuous uninterrupted satisfactory services are required for grant of second promotional pay scale. The Government Order dated 30.06.1993 itself prescribes that satisfactory services can be counted on the basis of the entries made which is a pure subjective exercise of the Authority competent to grant any such benefit. After prescribing the guidelines on which heavy reliance has been placed by the learned counsel for the appellant, Clause (4) of the Government Order clearly states that these are to be ordinarily observed only as guidelines and not as a binding rule. It also clarifies that in case there are rules applicable then these guidelines would not in any way impede the same or supercede it. It categorically recites that it does not confer any right on any employee to question the wisdom or satisfaction of the Competent Authority.

Having considered the submissions raised, what we find is that the Government Order dated 10.04.2006 has been issued for applying the second promotional pay scale which is an Executive Instruction in order to implement the grant of a service benefit clearly prescribing and qualifying satisfactory services with the word "uninterrupted". The word "uninterrupted" has not been in any way diluted by the Government Order dated 30.06.1993. The phrase "continuous/uninterrupted satisfactory service" emphasises, not just continuity of service but continuity of satisfactory service as against instances of unsatisfactory service interrupting a span of twenty four years. In other words the period of twenty four years of service should not be disrupted by any instances of unsatisfactory services. In the aforesaid circumstances, the stand taken in paragraph no.21 of the writ petition that such adverse entries falling within the twenty four years of services, that is prior to 30.03.1994 should not be taken into account, is an argument which can only be noted for being rejected on account of the discussions made hereinabove. The services of the appellant were interrupted by instances of unsatisfactory performance during twenty four years.

Consequently learned counsel for the appellant is not correct in his submission that the entries awarded prior to 30.03.1994 get diluted. We may clarify that we are making these observations only in the context of the Government Order dated 10.04.2006 on which reliance has been placed and not as a matter of any general principle. We have interpreted Clause (2) of the said Government Order and consequently applying the same and having discussed the impact of the Government Order dated 30.06.1993 what we find is that neither the District Magistrate nor the learned Single Judge have ultimately committed any error in arriving at a conclusion declining to grant the relief of second promotional pay scale to the appellant.

There is no merit in the appeal. The appeal is accordingly dismissed.

Order Date :- 13.11.2017

R./