Allahabad High Court
Jagdamba Prasad And 5 Others vs State Of U.P. Thru. Its Prin. Secy. ... on 21 October, 2022
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- WRIT - A No. - 6977 of 2022
Petitioner :- Jagdamba Prasad And 5 Others
Respondent :- State Of U.P. Thru. Its Prin. Secy. Home Dept. Lko. And 2 Others
Counsel for Petitioner :- Rakesh Kumar Srivastava
Counsel for Respondent :- C.S.C.
Hon'ble Alok Mathur,J.
1. Heard Sri Rakesh Kumar Srivastava, learned counsel for petitioner as well as learned Standing Counsel for the respondents.
2. With the consent of parties, the case is being disposed of at the admission stage itself.
3. It has been submitted by learned counsel for petitioners that petitioners were initially appointed in a government company in Uptron India Ltd. on the post of Technical Assistant on various dates from 1986 to 1988.
4. It has further been stated that the petitioners were subsequently appointed in U.P. Police Computer Centre after facing selection process and were appointed against 154 vacant posts of Sub-Inspector (Ministerial)/Stenographers. Subsequently their services were absorbed in pursuance of the U.P. Computer Staff Non-Gazetted Service Rules, 2002 on the post of Assistant Programmer and are working on the said post till date.
5. The petitioners are aggrieved by the order dated 29.09.2022 by which the ACP granted to the petitioners on successful completion of 10 years services has been unilaterally withdrawn by the respondents and the excess amount paid to the petitioners has been sought to be recovered. The said ACP was granted after due consideration on 28.11.2015 and are receiving enhanced pay on that account till passing of the order dated 29.09.2022. The impugned order has been passed relying upon the government Order dated 14.06.2022 according to which ACP can be granted only to the persons who hold post within the cadre and is not admissible for the persons who are holding ex-cadre post. Assuming that he petitioners are working on the ex-cadre post, the impugned order has been passed.
6. Learned counsel for petitioners has placed reliance upon the judgment passed by this Court in the case of State of Uttar Pradesh Vs. Jai Prakash and others, Writ Petition No. 1691 (SB) of 2012 where similarly situated employees of the respondents and the Court had recorded the fact that petitioners were appointed against vacant post lying in the department.
7. Learned counsel for petitioners has submitted that had the petitioners been granted opportunity prior to passing of the impugned order holding they are not eligible for grant of ACP, they would have shown relevant rules and the judgment of this court to demonstrate that they were in fact holding post within the cadre, and therefore denial of opportunity of hearing ha prejudiced them immensly.
8. From the perusal of the impugned order, it is clear that no opportunity has been given to the petitioners prior to passing of the said order and it is submitted that there is no other order giving any reasons for withdrawing the ACP of the petitioners. This Court is of the considered view that opportunity of hearing should have been granted to the petitioners before withdrawing the ACP which were not granted to them in 2015, as the petitioners have been deprived of a vested right.
9. Needless to say the service benefits which has been granted was availed by the petitioners for the last 7 years and became a vested right duly protected under Article 300-A of the Constitution of India and consequently it was incumbent upon the respondents to give a show cause notice or any opportunity of hearing before passing of the said order.
10. In light of the above, the impugned order 29.09.2022 is clearly illegal and arbitrary under Article 14 and 16 of the Constitution of India and consequently is set aside. The mater is remitted back to the competent authority to pass afresh order in accordance with law after giving opportunity of hearing the petitioners.
11. Let the said exercise be done expeditiously, say within a period of two months from the date a certified copy of this order is produced before him. It shall be open for the respondents to pass a suitable order once a fresh order is passed in terms of observations made hereinabvoe.
12. The writ petition is allowed.
13. Supplementary affidavit filed today is taken on record.
(Alok Mathur, J.)
Order Date :- 21.10.2022
Ravi/
