Girja Shanker Mishra vs State Of U.P. Thru. Prin. Secy./ ...
2023 Latest Caselaw 22677 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 



 

 
Neutral Citation No. - 2023:AHC-LKO:55653-DB
 

 
Court No. - 1
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 610 of 2023
 

 
Appellant :- Girja Shanker Mishra
 
Respondent :- State Of U.P. Thru. Prin. Secy./ Legal Remembrancer, Deptt. Of Law, Lucknow And 5 Others
 
Counsel for Appellant :- Gaurav Mehrotra,Akber Ahmad
 
Counsel for Respondent :- C.S.C.
 

 

 
Hon'ble Attau Rahman Masoodi,J.

Hon'ble Om Prakash Shukla,J.

C.M.A. No.1 of 2023 (Application for condonation of delay)

1. Heard Shri Akber Ahmad, learned Counsel for the appellant and Shri Amitabh Rai, learned Additional Chief Standing Counsel for the State.

2. The present special appeal instituted under Chapter VIII Rule 5 of the High Court Rules is delayed by 86 days.  The appeal is accompanied with an application for condonation of delay supported by an affidavit.

3. Learned Additional Chief Standing Counsel for the State-respondent does not have any objection if delay of 86 days in filing the special appeal is condoned.

4. Cause shown being sufficient and in absence of any objection, the application for condonation of delay is allowed and the delay in filing the appeal is condoned.

Order on Appeal

5. This special appeal is directed against the judgment/order dated 24.04.2023 passed by learned Single Judge in Writ- A No.5766 of 2022 whereby the claim of the appellant-petitioner for the grant of second Assured Career Progression (hereinafter referred to as 'ACP') and third ACP w.e.f. 01.12.2008 and 11.01.2011 respectively in terms of the government order dated 05.11.2014 has been rejected by the learned Single Judge vide order dated 24.04.2023 giving rise to the present intra-court appeal.

6. The claim for second and third ACP was previously agitated by the appellant-petitioner in Writ Petition No.16025 (S/S) of 2019, which was disposed of on 30.05.2019 directing the competent authority to consider his representation by a speaking and reasoned order. The said order passed by the Writ Court was carried out with the issuance of order dated 05.11.2019 wherein admissibility of second and third ACP was not found admissible w.e.f. 01.12.2008 and 11.01.2011 respectively. This position is evident from paragraph 5 of the order passed by the competent authority. The appellant-petitioner feeling aggrieved against the said order approached this Court again by means of Writ- A No.787 of 2020 and the same was disposed of vide order dated 23.03.2022. The operative part of the order passed on 23.03.2022 reads as under :-

"Learned counsel for petitioner submits that petitioner was appointed on ad-hoc basis in the year 1985 and regularized in the year 1990. He was also given promotion to the post of private secretary in the year 2005. As per the government order dated 03.06.1989 he was given first increment on completion of ten years of service, thereafter first promotional pay scale on completion of 14 years of service and second increment on completion of 19 years of service while counting his services to be w.e.f. 1985. He submits that thereafter A.C.P. scheme was introduced in the State of U.P. Though the scheme was introduced w.e.f. 01.12.2008 but to various difficulties faced a detailed government order dated 05.11.2014 was issued with the approval of Governor clarifying the entire A.C.P. scheme again and made effective from 01.12.2008. Clause-3 of the said A.C.P. scheme provided applicability of A.C.P. upon persons who were not given any pay benefit under the earlier scheme. Petitioner's case is admittedly not covered by the same as petitioner was granted benefit under the earlier scheme which was introduced by government order dated 03.06.1989. Case of petitioner was covered by clause-4 of scheme which provided applicability of A.C.P. to persons who were earlier having benefit of time pay scale. Since, petitioner was earlier given benefit of time pay scale, therefore, his case is covered by said clause-4. While considering the representation of petitioner in paragraph-4, case of petitioner is wrongly considered under clause-3A of the A.C.P. scheme dated 05.11.2014. There is no reason given in the impugned order as to how clause-3 is applicable on the petitioner. Learned Additional Advocate General also could not dispute the said mistake which has occurred in the impugned order."

7. It is amply clear from the order extracted above that the appellant-petitioner was held entitled to the benefit of ACP in terms of Clause 4 of the government order dated 05.11.2014. It appears that the competent authority once again proceeded to consider the claim of the appellant-petitioner and passed a further order on 17.06.2022 reiterating the stand as had been taken in the earlier order passed on 05.11.2019. The order passed by the competent authority on 17.06.2022 gave rise to a further Writ -A No.5766 of 2022, which has been dismissed by means of the impugned order giving rise to the present intra-court appeal.

8. Learned Counsel for the appellant has argued that once this Court had made a specific observation to the effect that the appellant-petitioner was entitled to be considered for the purposes of grant of ACP as per the mandate of Clause 4 of the government order dated 05.11.2014, there is no reason as to why such a mandate ought to have been deviated from by the executive authority or for that matter the final judgment passed by this Court ought not to have been overlooked by the executive as well as by this Court while dismissing the subsequent writ petition. Learned Counsel for the appellant-petitioner in order to support his argument has placed reliance upon the judgment of Hon'ble Supreme Court in the case of S. Kasi Vs. State Through Inspector of Police, Samaynallur Police Station, Madurai District, reported in (2021) 12 SCC 1 and inviting attention of this Court to paragraph 35 and 36, it is argued that once an order passed by this Court attained finality, the judicial discipline requires that the former judgments having attained finality are not open to be unsettled in the subsequent proceedings.

9. We have heard learned Counsel for the parties at length.

10. Shri Amitabh Rai, learned Additional Chief Standing Counsel for the State, on the contrary has argued that even if the judgment passed by this Court in the earlier Writ -A No.787 of 2020 is construed to be a binding precedent between the parties, yet Clause 4 of the government order placed reliance upon when read carefully clearly makes out that it is a government employee not having been extended any benefit under "old time bound promotional pay scale" who is covered under the new ACP as per the government order dated 05.11.2014 and in fact the government has rightly applied Clause 3-Ka by reading the principle embodied under paragraph 4 of the government order dated 05.11.2014. The relevant part of paragraph 4, for a ready reference is extracted hereinbelow :-

"4. ऐसे पदधारक जिन्हें समयमान वेतनमान की पूर्व व्यवस्था में लाभ मिल चुके हैं, को ए०सी०पी० का स्वीकृत किया जाना-ऐसे कार्मिक जो दिनाँक 01 दिसंबर, 2008 को समयमान वेतनमान की पूर्व व्यवस्था के अन्तर्गत कोई लाभ वैयक्तिक रूप से प्राप्त कर रहे हैं अथवा उक्त लाभ प्राप्त करने के उपरान्त उनकी वास्तविक पदोन्नति निम्न वेतनमान में होती है अथवा दिनाँक 01 दिसम्बर 2008 के पश्चात उसी वेतनमान/उच्च वेतनमान में होती है तो ए०सी०पी० की व्यवस्था के अन्तर्गत देय लाभ दिनाँक 1 दिसम्बर 2008 अथवा उसके उपरान्त निम्नानुसार अनुमन्य होंगे।"

11. It is on the premise of the opening sentence of paragraph 4 that Clause 3-Ka has been applied in the case of the appellant-petitioner which according to him does not suffer from any illegality.

12. It is not in dispute between the parties that the appellant-petitioner was actually promoted on the post of Personal Secretary in the year 2005. It is equally not in dispute that the appellant-petitioner was not accorded any benefit under the "old time bound promotional scale" on the said post, i.e. Personal Secretary after the date of his promotion in the year 2005. That being so, the relevant extract of paragraph 4 mentioned above was not applicable in the case of the appellant-petitioner on the post held by him, therefore, the applicability of paragraph no.3 (ka) as per his entitlement was rightly applied.

13. This distinction according to learned Additional Chief Standing Counsel was not noticed in the earlier judgment rendered on 23.03.2022 which had attained finality and against which the State had also failed to file any special appeal. According to the learned Counsel for the State, the executive action on the contrary remained in line with the policy of the State as was issued on 05.11.2014. The resultant conflict in the judicial orders arising as a result of lack of assistance cannot be viewed by way of any judicial indiscipline, but is rather a correction of an illegality for which the appellant himself has approached this Court in the subsequent writ petition wherein he ought to have given up the stand not supported by law. The appellant in the subsequent writ petition had sought nothing but enforcement of a right which never accrued to him except for the judgment. It must be understood always that a remedy is for a right, in absence of which, a decree or order is void ab initio. The judgment rendered by this Court on 23.03.2022 does not deal with the government order in its true scope and meaning, hence an anomaly that had crept in was rectified within the true meaning of para- 4 of the government order. Rectification of such mistakes cannot be raised to the level of judicial indiscipline and once corrected ought to allow the controversy set at rest.

14. The submissions put forth by the learned Additional Chief Standing Counsel are convincing and are a moderate reply to the attractive ground raised by the appellant. On a critical analysis of the issue, since the Court is satisfied that the illegality has been rectified by the impugned judgment, thus, we are not inclined to interfere in exercise of our appellate jurisdiction under Chapter VIII Rule 5 of the High Court Rules. The judgment rendered by the learned Single Judge, therefore, does not suffer from any error calling for interference, hence the appeal fails and is hereby dismissed.

       (Om Prakash Shukla, J.)    (Attau Rahman Masoodi, J.) 
 
Order Date :- 22.08.2023
 
Anand Sri./-