Raj Kapoor Malviya And Another vs State Of U.P. Through Prin. Secy. ...
2022 Latest Caselaw 14313 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 5
 

 
Case :- WRIT - A No. - 5526 of 2015
 

 
Petitioner :- Raj Kapoor Malviya And Another
 
Respondent :- State Of U.P. Through Prin. Secy. Irrigation Deptt. Lko. And O
 
Counsel for Petitioner :- Anand Mani Tripathi,Neha Dhanwani,Prince Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Shekhar Kumar Yadav,J.

Heard Ms. Neha Dhanwani, learned counsel for petitioner, Mr. Ashwani Kumar Ojha, learned Standing Counsel for the State and perused the material available on record.

The present writ petition has been filed challenging the impugned orders dated 31.08.2015, 03.09.2014 and 07.08.2015 passed by respondent nos. 4 and 3.

Brief facts of the case are that the petitioner was initially appointed under the work charge establishment in the Irrigation Department on the post of Chaukidar and Supervisor in the pay-scale of Rs.305-390 and 950-1500. While discharging duties petitioner no. 1 Raj Kapoor Malviya was promoted to the post of Supervisor in the pay-scale of Rs.950-1500 w.e.f.01.08.1995. The services of both the petitioners were regularized on the post of Sinchpal w.e.f. 20.03.2004 and 29.05.2007 respectively in the pay scale of Rs.3050-4590.

Since the petitioner were performing their duties very diligently and honestly, after enforcing the new pay scale revised w.e.f.t 01.01.2006 they were getting pay band of Rs.5200-20200 with grade pay of Rs.1900/-. The respondents after consulting the committee for the purposes of providing ACP in view of the Government Order as well as order passed by the Finance Controller provided the benefit of ACP to the petitioners on 26.12.2013 pursuant to the Government Order dated 29.09.2010 with effect from 01.12.2008. Thereafter the benefit of ACP granted to the petitioner was cancelled by means of order dated 03.09.2014 and 07.08.2015 passed by the Finance Controller and Engineer-in-Chief (Lekha Anubhag)/Finance Controller, Irrigation Department, Lucknow. Feeling aggrieved with the aforesaid impugned orders, the petitioners filed present writ petition before this Court.

On 18.09.2015 this Court passed the following orders:-

"Heard Shri Anand Mani Tripathi, learned counsel for the petitioners, learned Standing Counsel and perused the record.

Learned counsel for the petitioners, for the purpose of interim relief submits that petitioners who are working on the post of Class-IV employee in the Irrigation Department, U.P., Lucknow has been granted the benefit of pay-scale by order dated 14.07.2014, the same has been withdrawn in view of the order dated 03.09.2014 without providing any opportunity to them.

It is further submitted by learned counsel for the petitioners that the order dated 03.09.2014 has already been quashed by this Court. In support of his argument, he has placed reliance on the judgment and order dated 11.11.2014passed by this Court at Allahabad in Writ 59622 of 2014 which on reproduction reads as under :-

"The petitioners are stated to be working as Class IV employees on different posts under the respondents in the work charge employees establishment, Irrigation Department. They were initially engaged as work charge employees and their services were regularized on different dates. Their claim is that after the regularization the period of service as work charge employee is liable to be counted for the purposes of increment, grant of selection grade, promotional pay scale pension benefits and post retiral dues such as admissible to a regular employee.

According to the petitioner this controversy has already been settled by a Division Bench in the Special Appeal No. 445 of 2011 (Bhuneshwar Rai Vs. State of U.P. and others) decided on 18.9.2014. The petitioners are also claiming the grant of ACP in view of the judgment of the Division Bench in the case of Bhuneshwar Rai (supra).

The learned standing counsel does not dispute the legal position as settled by this Court in the case of Bhuneshwar Rai (supra).

In view of the above, the impugned order dated 3.9.2014 passed by the respondent no. 2 is quashed and the writ petition is allowed in terms of the judgment and order dated 18.9.2014 passed in the case of Bhuneshwar Rai (supra)."

As well as by order dated 29.05.2015 passed by this Court in Writ Petition No.3172 (SS) of 2015 which reads as under :-

"Heard learned counsel for parties and perused the record.

Petitioners are stated to be working as Class IV employees on different posts under the respondents in the work-charge employees establishment , Irrigation Department. They were initially engaged as work charge employees and their services were regularized on different dates. Their claim is that after regularization the period of service as work charge employee is liable to be counted for the purpose of increment, grant of selection grade, promotional pay scale, pension benefits and posts retiral dues such as admissible to a regular employee.

According to the petitioners, this controversy has already been settled by a division bench in the Special Appeal No. 445 of 2011 (Bhuneshwar Rai Vs. State of U.P. and others ) decided on 18.09.2014. The petitioners are also claiming the grant of ACP in view of the judgment of the division bench in the case of Bhuneshwar Rai (supra).

Learned standing counsel does not dispute the legal position as settled by this court in the case of Bhuneswar Rai (supra).

In view of the above, the impugned order dated 3.11.2014 and 03.9.2014 (Annexures No. 8 & 9) , passed by the opposite parties no. 2 & 4, respectively,are quashed and the writ petition is allowed in terms of the judgment and order dated 18.9.2014 passed in case of Bhuneshwar Rai (supra)."

Accordingly, it is submitted by learned counsel for the petitioner that the impugned orders dated 31.08.2015, 03.09.2014 and 07.08.2015 as contained in Annexure Nos.1 to 4 passed by opposite party nos.4 and 3 are liable to be stayed.

After hearing learned counsel for the parties and going through the records, prima facie, the submission made by learned counsel for the petitioners appears to be correct, as such, till the next date of listing, further operation and implementation of the impugned orders dated 31.08.2015, 03.09.2014 and 07.08.2015 as contained in Annexure Nos.1 to 4 passed by opposite party nos.4 and 3 shall remain stayed.

Learned Standing Counsel prays for and is granted four weeks' time to file counter affidavit, rejoinder affidavit, if any, may be filed within two weeks thereafter.

List thereafter."

Mr. Ashwani Kumar Ojha, learned Standing Counsel for the State has submitted that initially the petitioner no. 1 was appointed in the work charge establishment on daily wage basis on the post of Chowkidar w.e.f. 29.06.1980. Likewise, the petitioner no. 2 on the post of Supervisor w.e.f. 02.07.1999 respectively. Pursuant to the Government Order dated 07.02.1997 their services were regularized on the post of Sinchpal w.e.f. 20.03.2004 and 31.05.2007 respectively. Further submission is that prior to the regularization, the services of the petitioners were not counted. Their services were counted when they were regularized in service, therefore, they are not entitled for the third ACP.

Learned counsel for the petitioners has submitted that aforesaid controversy has been settled by the Division Bench of this Court in Special Appeal No. 445 of 2011 (Bhuneshwar Rai Vs. State of U.P. and others) decided on 18.09.2014.

Further learned counsel for petitioners are claiming for grant of ACP in view of the judgment of this Court passed in Special Appeal No. 152 of 2021 (State of U.P. and others Vs. Bhanu Pratap) decided on 14.07.2021. Operative portion of the judgment reads as under:-

"Admittedly, the petitioner was appointed on 10.05.1989 as work charge employee at Azamgarh. His services were however regularised on 15.6.2011. The regularisation of service was against the permanent post and it is not that his initial appointment was not in accordance to service Rules.

In light of the aforesaid, period spent in service may be on temporary basis while working as a work charge employee, proceeded with regularisation, benefit of past services cannot be denied.

The impugned order when tested on the anvil of above analysis cannot be faulted with.

In view whereof no indulgence is caused.

Consequently, appeal fails and is dismissed. No costs."

Further learned counsel for petitioners relied upon a judgment of this Court passed in Writ-A No. 15308 of 2008 decided on 3.4.2018, which was disposed of with the directions to the respondents to consider the claim of the petitioners in the light of the judgment of Division Bench of this Court passed in bunch of Special Appeals leading one being Special Appeal No. 520 of 2011 vide order dated 09.102.017 has clearly observed as under:-

"3. Government order dated 02.12.2000 nowhere shows that service rendered in work-charge will not count for the purpose of employees concerned for grant of time-bound pay-scale/promotional pay-scale. The parity with Article 370 of Civil Service Regulations (hereinafter referred to as "CSR") which hold Work-charge Establishment not pensionable will not apply for the purpose of considering question whether such service will count for the purpose of considering employees concerned for benefit of Government order dated 02.12.2000 as no distinction in this regard has been recognized by said Government order. The purpose of granting promotional or time-bound scale is to avoid stagnation in the service of employees concerned. Therefore, there is no logic to deny work-charge service rendered by them for the purpose of considering benefit of Government order dated 02.12.2000."

Further submission of learned counsel for petitioners is that against the said order the State approached before the Division Bench of this Court by means of Special Appeal No. 5050 of 2020, which was dismissed by this Court vide judgment and order dated 07.09.2020. Against the order of writ court and order dated 07.09.2020 passed in Special Appeal, the State Government preferred an S.L.P. No. 413 of 2022 before the Apex Court, which was also dismissed by the Apex Court and the order of learned Single Judge attained finality.

In support of his submission learned counsel for petitioner has also relied upon a judgment of Apex Court in the case of State of U.P. and others Vs. Bhanu Pratap passed in Special Leave to Appeal (C) No(s) 10381 of 2022.

In view of the aforesaid discussion and taking into consideration the judgment relied upon by the learned counsel for petitioner, this petition succeeds and is hereby allowed. Impugned orders dated 31.08.2015, 03.09.2014 and 07.08.2015 passed by respondent nos. 4 and 3 are set aside.

The respondents are directed to consider the claim of the petitioner in view of the judgment of this Court as well as Hon'ble Apex Court referred above within a period of two months from the date a certified copy of this order is produced before him.

.

(Shekhar Kumar Yadav, J.)

Order Date :- 19.10.2022

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