Lal Ji Yadav Pno No.03000248 And ... vs State Of U.P.Through Prin.Secy. ...
2023 Latest Caselaw 4802 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 4
 

 
Case :- WRIT - A No. - 9888 of 2020
 

 
Petitioner :- Lal Ji Yadav Pno No.03000248 And Ors.
 
Respondent :- State Of U.P.Through Prin.Secy. Home And Ors.
 
Counsel for Petitioner :- Amit Kumar Gupta,Pooja Pal,Santosh Kr. Yadav Warsi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Chaudhary,J.

Heard learned counsel for the petitioners and learned Standing Counsel for the State.

Petitioners who were successful for recruitment held for the post of Sub Inspector (Civil Police), were sent for training and during the training period instead of stipend they were paid salary. The impugned order dated 08.05.2020 was passed against the petitioners for recovery of the said amount from their salary which was wrongly paid to them.

Learned counsel for the petitioners places reliance upon the judgment and order dated 08.09.2021 passed in Special Appeal No.169 of 2020 (Alok Kumar and 5 others Vs. State of U.P.). In the said case, petitioners had approached the court claiming that they are entitled for salary instead of stipend while they were in training as Sub Inspector (Civil Police).

Learned counsel for the petitioners submits that petitioners are entitled for benefits as provided by order dated 08.09.2021 passed in Special appeal No.169 of 2020. The order of the Special Appeal reads as follows:

"Heard counsel for the parties.

By this appeal, challenge is made to the judgment dated 15.11.2019 whereby the writ petition preferred by the petitioner-appellants was dismissed.

The writ petition was filed to seek a direction for leave salary/allowances in addition to stipend admissible to the petitioner-appellants pursuant to the Government Order dated 16.09.1965 and circular dated 03.11.1979 issued by Deputy Director General of Police.

It is a case where the petitioner-appellants were initially appointed on the post of constable. While serving on the said post, they applied for their recruitment to the post of Sub-Inspector (Civil Police). The petitioner-appellants remained successful in the selection and thereby sent for training before appointment on the post of Sub-Inspector. In order to send the petitioner-appellants for training, an order was issued on 31.10.2019. By the aforesaid order, the petitioner-appellants were allowed benefit of stipend for the period of training. The petitioner-appellants questioned the aforesaid in reference to the circular issued by the respondents on 16.09.1965 followed by another circular dated 03.11.1979. The government order of the year 1965 provides for grant of extraordinary leave in relaxation of subsidiary Rule 157A (4) to the extent of leave otherwise admissible under the rules.

In view of the above, the petitioner-appellants have claimed leave salary for the period of leave admissible to them with allowance in addition to the stipend admissible to the police cadets. The aforesaid was denied mainly on the ground that petitioner-appellants were direct recruitees on the post of Sub-Inspector thus, they were not entitled to the benefit of the Government Order of 1965 and circular of 1979. According to the respondents, those circulars were admissible on those who are promoted to the post of Sub-Inspector under a limited department examination and not for the direct recruitees. The learned Single Judge accepted the plea and accordingly dismissed the writ petition.

We find that the issue aforesaid was considered by the Apex Court in Transfer Case No. 123 of 2017 decided by the judgment dated 28.08.2019. The aforesaid judgment was referred by the learned Single Judge but has not been applied mainly on the ground that a direct recruitee gets an order of appointment on completion of the period of training thus, cannot seek benefit of leave salary. It is by ignoring the circular of the government of the years 1965 and 1979. Relevant portion of those circulars are quoted herein for ready reference:

"I. The incumbent of a temporary post should be relieved on his duties on a written application form him and extra ordinary leave in relaxation of subsidiary Rule 157-A (4) to the extent the leave otherwise admissible under the rules falls short of the required period of training be granted to him provided:-

a) the post on which he is working in likely to last till the date of his return and,

b) the training for which he is to be sent is certified to be in the public interest."

"?????? ?? ???? ??? ?? ?? ??? ??? ???????? ??? ?? ????? ???? ??? ??????? ???, ?? ?? ???? ????? ?????? ??????????? ?? ??????? ??? ???????? ???? ??? ??? ????????? ?? ??? ??? ????? ???? ???? ????????? ?? ???? ?? ??? ????????? ?? ???? ???, ????? ??? ???? ????????? ??????? ?? ???? ???? ?? ????? ??? ???? ????? ???????? ??????? 5134/??-?-2000(30)1963 ?????? 16.09.1965 ????? ????????? ???? ??????? ???? ?????? ??, ?? ?? ??????? ???? ???? ??, ?????? ????? ?????????? ???? ??? ??????????? ?? ???????? ???? ??????? ???? ????? ????? ????????? ???? ?????????? ???? ?????? ??? ???? ?? ??????????? ?? ??????????? ?? ???? ????? ???? ?????? ?? ???? ?????? ???? ?? ??? ??? ?????? ?? ?????? ????? ???? ????? ???????"

The perusal of the circular does not make distinction between direct recruitment and promotion by limited department examination to the post of Sub-Inspector. Para 3 of the circular of 1979 makes it clear that many candidates apply for the post of Sub-Inspector by direct recruitment and when they are selected, tender resignation. It was clarified that resignation is not required to be accepted rather the candidate should be sent on training so that they may get the benefit of leave salary. The circular of 1979 makes it clear that the period of training would be treated to be towards the leave to the extent it is available in the credit of the employee.

Learned Single Judge, however, decided the writ petition on the premises different than required to be considered. It is no doubt that the appointment on the post of Sub-Inspector was to be given after successful completion of training but for that reason alone, the circular of year 1965, as clarified in the year 1979, could not have been ignored. It is more so when the Apex Court has directed to extend the similar benefit to the appointee on the post of Sub-Inspector though it was out of the limited department examination but the respondents having not made any difference in the direct recruitment and limited department examination, the petitioner appellants should have been extended the benefit of the circular of 1965 and 1979.

Accordingly, we set aside the judgment of the learned Single Judge and direct the respondents to extend the benefit, as envisaged in the Government Order of 1965 followed by circular of 1979 which otherwise has been allowed by the Apex Court in its judgment dated 28.08.2019. The petitioners case would be considered in the light of the Government Order of 1965 followed by the circular of 1979 without being guided by the subsequent clarified order dated 22.12.2015. The said circular runs counter to the circular of the year 1979. Without its supersession, this cannot be applied.

The appeal is allowed."

Learned counsel for the petitioner and learned Standing Counsel agree that present petitioners are also entitled for the benefits as provided in the aforesaid Special Appeal.

In view thereof, the impugned order dated 08.05.2020 is modified to the extent that the respondent authorities shall grant benefit to the petitioners as provided in the Special Appeal No.169 of 2020 (Alok Kumar and 5 others Vs. State of U.P) decided on 08.09.2021.

With the aforesaid direction, writ petition is allowed.

.

[Vivek Chaudhary J.]

Order Date :- 14.2.2023

-Amit K-