Rajesh Sharma vs State Of U.P. & Others
2018 Latest Caselaw 2378 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 6
 

 
Case :- WRIT - A No. - 8175 of 2001
 

 
Petitioner :- Rajesh Sharma
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- V.S.Dwivedi,C.S. Garg,D.S.P.Singh,G.S.Garg,H.N. Sharma,S.F.A. Naqvi,Sant Ram Sharma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashok Kumar,J.

Heard the learned counsel for the petitioner and Sri A.C. Tripathi, learned Standing Counsel for the respondents.

This petition is filed by the petitioner for quashing of the orders dated 09.01.2001 and 09.02.2001 as well as the order dated 31.03.2000. The petitioner has further prayed for writ of mandamus directing the respondent opposite party to pay the salary to the petitioner since 08.03.2000, which the petitioner claims the date of appointment.

This petition is pending since 2001 in which counter and rejoinder affidavits are exchanged as well as supplementary counter affidavit and supplementary rejoinder affidavit. This Court on 05.05.2011 has passed the following order.

"Learned Standing Counsel may advice its officers properly so as to correct the scale of the petitioner which as wrongly been fixed at Rs. 255.00.

The contention of learned counsel for the petitioner is that even according to the admitted case of the opposite parties the petitioner was regularized in the year 2000 and he was working on Class IV post. His further contention is that the petitioner is being paid in the initial pay scale of the year 2000 and whatever increments due up0 till now have not been paid to him.

Since it appears that some discrepancy has occurred while fixing scale of the petitioner and the authorities have committed illegality.

In these circumstances, the competent authority is directed to look into the matter and pass fresh order within a period of two months."

According to the learned counsel for the parties, the order dated 05.05.2011 creates little confusion. Further, vide order dated 31.03.2014 this Court has clarified the issue and from perusal of the order dated 31.03.2014, it is crystal clear that the petitioner has claimed that he is entitled for the post of Junior Clerk/Cashier which was initially allotted to the petitioner vide order dated 08.03.2004.

According to the petitioner, the order of appointment dated 08.03.2000 was specifically recalled by the authority by passing the fresh order dated 31.03.2000. Against the said order dated 31.03.2000 the instant writ petition is filed.

For the convenience, the order passed by this Court dated 31.03.2014 as quoted hereinbelow.

"The main grievance of the petitioner is that he was initially appointed on the post of Junior Clerk/Cashier vide order dated 08.03.2000. However, the said order was recalled on the ground that the cadre of Junior Clerk/Cashier are different and petitioner having different minimum qualification. However, it is not filed by the State that what are the minimum qualification prescribed for the post of Junior Clerk/Cashier.

Hence, learned counsel for the State prays for and is granted two weeks' time to collect the information regarding minimum qualification for the post of Junior Clerk/Cashier.

List immediately after two weeks.

Office is directed to provide a certified copy of this order to the learned Standing Counsel for compliance of the order."

Since 2014 till date this petition was listed on several occasions but one pretext or other the matter was got adjourned.

Today the submissions of the counsel for the respective parties are heard at length.

Learned Standing Counsel has pointed out the contents of the supplementary counter affidavit filed on 30.03.2018 particularly, the contents of para 4, 5 and 6 are referred which are quoted here in below.

"4.That the State Government formulated Service Rules 1986 for clerical staff of the Rural Engineering Services know as U.P. Rural Engineering Clerical staff Service rules 1986. Later on the department of Rural Engineering Services was designated as Rural Engineering Department. These rules came in force with effect from 07.08.1987. A copy of the aforesaid rules is being filed here with and marked as Annexure No. S.C.A. 1 to this Supplementary Counter Affidavit.

5.That for the purpose of qualification of Junior clerk/Cashier, the rules relating to Rural Engineering Clerical Services Staff 1986 have adopted the qualification prescribed for clerk under Subordinate Officer Ministerial staff (Direct Recruitment) rules 1975. The aforesaid adoption of the qualification for clerk had been stated in Annexure serial-4 column -6 dealing with the appointment of Junior/Clerk Cashier. In the Rural Engineering Clerical Staff Service Rule 1986.

6.That for the perusal of this Hon'ble court contesting respondent is filing the aforesaid rules known as Subordinate Officer Ministerial Staff (Direct Recruitment) Rules 1975 Rule 12 of 1975 rules provides for the educational qualification for the post of junior clerk/cashier which is intermediate or any equivalent Degree. A photocopy of the aforesaid Subordinate officers Ministerial Staff (Direct Recruitment) Rules 1975. Is being file herewith and marked as Annexure No. S.C.A. 2 to this Supplementary Counter Affidavit."

Learned Standing Counsel has pointed out that in view of the averments made in the supplementary counter affidavit the minimum qualifications for the post of Junior Clerks/Cashier is of intermediate from U.P. Board as is required by the Niyamavali, 1975.

Learned Standing Counsel has placed reliance on Rule 12 of Niaymavali, 1975 which is quoted herein below.

"12. ??????? ?????????- ???? ????? ?? ???? ???????? ?? ???????? ?????? ?????? ????? ?????? ?? ??????????? ??????? ?? ???????? ?????? ???? ?????? ????? ???? ??????? ??? ???????? ???? ??????

????????? ?? ?? ?? ???? ?? ?? ?? ???? ???????? ?? ?????? ???? ??? ????? ???? 25 ???? ?? ??? ?? ???? ??????"

Per contra, learned counsel for the petitioner has placed reliance on certain documents which are enclosed along with supplementary rejoinder affidavit filed to the supplementary counter affidavit which was filed by the learned Standing Counsel.

Learned Counsel for the petitioner has relied on a marksheet which has been issued by the Madhymik Shiksha Parishad (U.P. Board) related to the Intermediate examination which was held in the year 1983 and the marksheet issued in favour of the petitioner 'Rajesh Sharma' indicates the enrollment No. 200563 which is signed on 14.06.1983 and is enclosed as Annexure 1 (Page 7) of the supplementary rejoinder affidavit as well as the certificate issued by the Madhyamik Sikhsha Parishad, U.P. Board in favour of the petitioner which is dated 10.06.1983, enclosed as Annexure 1(Page 8) with the supplementary Rejoinder affidavit.

The petitioner has also enclosed the character certificate and date of birth certificate issued by D.A.V. Inter College, Banda which is enclosed has Annexure 1 to the supplementary rejoinder affidavit (page 9).

Apart from the aforesaid Marksheet of Intermediate qualification the petitioner has also enclosed a copy of the marksheet issued by the Bundelkhand University, Jhansi confirming the qualification of the petitioner as Bachelor of Art (B.A. Degree) and from the perusal of the said documents it is clear that the petitioner did his B.A. (Hons.) from Bundelkhand University, Jhansi in the year 1992.

Apart from the aforesaid educational qualifications the counsel for the petitioner has also relied upon a certificate which is issued by one 'Ideal Typing Centre,' Banda, certifying therein that the typing speed of the petitioner in Hindi is 25 w.p.m. and in English 30 w.p.m. (words per minute).

Learned counsel for the petitioner, therefore, has relied upon the aforesaid documents and has submitted that in view of the aforesaid documents, which are issued in favour of the petitioner, the petitioner fulfils all the requisite conditions of Niyamavali,1975. Apart from aforesaid, learned counsel for the petitioner has also placed reliance upon a Duty Chart issued by the Chief Development Officer, Banda certifying therein that the petitioner service as a typist is being utilized since 1999.

Based on the aforesaid, the petitioner claims that the petitioner is fully and legally entitled and is illegible for the post of Junior Clerk/Cashier  whereas the petitioner services are continuously taken by the respondents and the respondents are paying only Rs. 2000 per month since April, 2000.

Learned Standing Counsel has disputed the said submission/statements with respect of payment of salary and has placed reliance on compliance affidavit filed by the respondent claiming that the petitioner is being paid regular salary, which the counsel for the petitioner disputes.

In my view, it would be appropriate and in the interest of justice that the matter be relegated to the respondent no. 4 to consider all the evidence/documents which are referred hereinabove and if the petitioner is entitled and fulfils the illegibility conditions as required under Niyamavali of 1975, the services of the petitioner be regularized on the said post.

It is further directed that while deciding the above issue the respondent no. 4 must consider the claim of the petitioners with respect of arrears of his salary.

The Respondent No. 4 is directed to complete all the proceedings within one month from the date the certified copy of this order is produced by the petitioner.

The writ petition is disposed of.

Order Date :- 7.9.2018

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