Satya Prakash Sharma & Others vs The State Of U.P. Thr. Its Prin. ...
2019 Latest Caselaw 2185 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 

 
Case :- SERVICE SINGLE No. - 4127 of 2007
 

 
Petitioner :- Satya Prakash Sharma & Others
 
Respondent :- The State Of U.P. Thr. Its Prin. Sec. Home Deptt & Others
 
Counsel for Petitioner :- Rajendra Prasad Shukla
 
Counsel for Respondent :- C S C
 

 
Hon'ble Manish Mathur,J.

Heard Sri Rajendra Prasad Shukla learned counsel for the petitioners and the learned State Counsel appearing on behalf of the opposite parties.

The present petition has been filed seeking quashing of the impugned orders dated 11th July, 2007, 13th July, 2007 and 5th July, 2007 whereby the higher scale of Rs. 4000-6000 has been refused. A further prayer not to recover the amount already paid to the petitioners in lieu of higher pay scale has been made along with other related prayers.

As per the averments made in the writ petition, the petitioners are working on the post of Tubewell Operator/Pump Operator/Switch Board Attendants and were granted the pay scale of Rs. 4000-6000 in pursuance of an audit report. Subsequently by means of the impugned order dated 5th July, 2007 while mentioning the fact that the petitioners are working on Class IV posts for which there is no essential academic qualification required, they were wrongly given pay scale of Rs. 4000-6000 and therefore the recovery of the same was issued. Against the aforesaid orders, the present writ petition has been filed in which interim protection had been granted to the petitioners by means of the interim order dated Ist August, 2007. Subsequently, the petition was allowed by means of the judgment and order dated 17th December, 2012 against which Special Appeal (Defective) No. 897 of 2013 was filed which was allowed by means of judgment and order dated 3rd January, 2014 and the matter was remitted, although it was provided that till a final decision in the writ petition subsequent to the remand, no recovery shall be effected from the respondents. Vide judgment and order dated 3rd January, 2014, the Special Appeal had been allowed and the matter remanded primarily on the question as to whether the posts held by the petitioners required the eligibility criteria of High School with ITI certificate or some lower qualification in view of the fact that the higher pay scale of Rs. 4000-6000 would be admissible only if the qualification required for the post held by the petitioners required the eligibility qualification of High School with ITI certificate irrespective of the actual qualifications of the petitioners. It is an admitted fact that at the time of appointment of the petitioners on the said posts in the year 70's no service rules pertaining to the posts held by the petitioners in the department had been framed, due to which no eligibility or qualification was prescribed for the post which were held by the petitioners.

The judgment passed in special appeal clearly indicates the fact that the central issue would be required to be seen in terms of the Clause 26(4)(Ka) of the Government Order dated 8th October, 2002 in which it has been provided that higher pay scale would be admissible only in case the qualifications required for a particular post to be filled in by direct recruitment is High School with ITI certificate.

The learned counsel for the petitioner has submitted that in the absence of any specific service rules governing the aforesaid posts, in practical applicability, the posts were being filled up only only as per the qualification of High School with ITI certificate as would be evident from the advertisements which were issued by the department from time to time pertaining to the filling up of the said posts. He has drawn attention to an advertisement dated 26th July, 1997 filed along with the supplementary affidavit in which the post of Switch Board Attendant which is at par with the Hand Pump Attendant has been advertised with the qualification of High School with ITI certificate being indicated. He has submitted that in terms of the aforesaid it would be evident that the post of Switch Board Operators which is equivalent to the post of Pump Attendant therefore clearly requires the qualification of High School with ITI certificate and therefore would be covered by the provisions of paragraph 26(4)(Ka) of the said Government Order dated 8th October, 2002.

The learned State Counsel countering the averments made on behalf of the petitioners' counsel submits that the arguments advanced on behalf of the petitioners are misplaced in view of the fact that even if there were no service regulations pertaining to the post which were held by the petitioners, the provisions of Group 'D' Employees Service Rules, 1985 would be applicable in which again there is no requirement for the qualification of High School with ITI with regard to the post held by the petitioners. As such, he has submitted that there is no provision under which the qualification of High School with ITI is required for the post held by the petitioners and therefore the impugned orders have been correctly passed.

I have heard learned counsel for the parties and have perused the record.

It is an admitted fact that at the time of appointment of the petitioners on the post of Tubewell Operator/Pump Operator/Switch Board Attendants, there were no service regulations pertaining to the same in operation in the department. It is also admitted that the enhanced pay scale of Rs.4000-6000 was granted to the petitioners only in pursuance of the audit report and the provisions of Government Order dated 8th October, 2002. It is also an admitted situation that the aforesaid provisions of the Government Order dated 8th October, 2002 clearly provides for enhanced pay scale only in case the particular post requires the qualification of High School with ITI certificate. In my opinion, the learned State Counsel is correct to the effect that in case of absence of any specific service rules pertaining to the post of Tubewell Operator/Pump Operator/Switch Board Attendant, the general rules of Group D employees Service Rules, 1985 would thus be applicable upon the petitioners. However a perusal of the aforesaid Rules of 1985 and particularly Sub Rule 5 of Rule 10 of the said Rules provides as under:-

'No person shall be eligible for appointment as cyclostyle operator or any other post requiring technical knowledge, unless he is found to possess the requisite technical knowledge and has good experience pertaining to the particular job.'

A bare perusal of the aforesaid provision clearly indicates the requirement of technical knowledge as a requisite qualification for holding a particular post in terms of the aforesaid Rules of 1985. It is pertinent to note that the provision of Sub Rule 5 of Rule 10 clearly indicates the requirement of a person to have 'technical' knowledge for holding a particular post as differentiated from mere knowledge of a particular post.

In my opinion, a tubewell, pump or a switch board being electrical/electronic devices, the operation of the same would definitely require technical knowledge and therefore the aforesaid posts of Tubewell Operators/Pump Operators/Switch Board Attendants would definitely be covered by the provisions of sub Rule 5 of Rule 10 of the Rules of 1985.

So far as Clause 26(4)(Ka) of the Government Order dated 8th October, 2002 is concerned, a perusal of the same would indicate that the pay scale of Rs. 4000-6000 would be admissible for such posts which are to be filled up either by direct recruitment with the basic educational qualification of High school with ITI certification or a certificate in the relevant field with two years experience from an institution recognized by the Government or posts which are to be filled up by people who apart from their normal work also execute some technical work with such posts being filled in from people holding the posts with the pay scale of Rs.3050 to 4090.

In the present case, it is to be seen that as per the advertisement issued by the department, the posts in question were advertised to be filled up by direct recruitment and therefore the present posts would be covered by the very first clause of the said provision of the Government Order dated 8th October, 2002.

So far as the matter pertains to the extent to which reliance can be placed on the advertisement issued by the department for filling up the said posts is concerned, it is relevant fact that the said advertisement has been brought on record by means of a supplementary affidavit filed by the petitioner but the same has not been controverted by the department. Thus the genuineness of the advertisement can be safely assumed. Although the Rules of 1985 do not prescribe the qualification of High School with ITI certificate as a requirement for holding the posts in question, the advertisement issued by the department clearly prescribes the aforesaid qualification.

A Constitution Bench of the Hon'ble Supreme Court in the case of Sant Ram Sharma versus State of Rajasthan and others reported in AIR 1967 SC 1910 has clearly held that if the service rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules or with the Act. The aforesaid reasoning has been followed subsequently in the cases of Union of India versus H.R. Patankar reported in 1985 (1) SCR 400 and in the case of M. Sriniwasa Prasad and others versus Comptroller and Auditor General reported in 2008 (1) SCC (LS) 1095 to the same effect.

Applying the aforesaid judgments of the Hon'ble Supreme Court, we can gather that since the Rules of 1985 did not prescribe any specific technical qualification for the posts in question except for indicating a technical requirement for holding the posts, the department itself by means of the aforesaid advertisement has clearly filled in the lacunae by prescribing the qualification of High School with ITI certificate as a requisite qualification for holding the posts in question. Although no order of the department is on record requiring the aforesaid qualification with regard to the posts in question but the same can safely be inferred from the advertisement issued by the department itself which has not been controverted.

In view of the aforesaid, it can be safely assumed that the department itself has filed in the lacunae of explaining the technical knowledge required for holding the posts which was generally stated in Rules of 1985.

In view of the above, I am of the opinion that the advertisement read with the aforesaid provision of the Rules of 1985 clearly prescribe the qualification of High School with ITI certificate as an essential qualification for holding the post of Tubewell Operator/Pump Operator/Switch Board Attendant in the department and would therefore be fully covered by the provisions of Clause 26(4)(Ka) of the Government Order dated 8th October, 2002 and hence the said pay scale was correctly given to the petitioners earlier and the impugned orders therefore have been passed on a misreading of the relevant provisions.

In view of the above, a writ in the nature of Certiorari is issued quashing the orders dated 11th July, 2007, 13th July, 2007 and 5th July, 2007 and a writ in the nature of Mandamus is issued directing the opposite parties to continue to pay the aforesaid pay scale of Rs. 4000-6000 as revised from time to time.

In terms of the above, the writ petition stands allowed.

Order Date :- 1.4.2019

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