Dalel Singh And Ors vs State Of U.P Thru Prin Secy ...
2023 Latest Caselaw 19325 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:49409
 
Court No. - 7
 

 
Case :- WRIT - A No. - 3982 of 2016
 

 
Petitioner :- Dalel Singh And Ors
 
Respondent :- State Of U.P Thru Prin Secy Agriculture Deptt. Lko And Ors
 
Counsel for Petitioner :- Ashwani Kumar,Jitendra Narain Mishra
 
Counsel for Respondent :- C.S.C,N.C Mehrotra
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioners, learned Standing Counsel appearing for the State-respondent no.1 as well as Shri N.C. Mehrotra, learned counsel appearing for respondent nos. 2 & 3.

2. By means of this instant petition, the petitioner has prayed for following reliefs:

"(1) Issue a writ, order or direction in the nature of certiorari, quashing the impugned order dated 10.09.2015, passed by respondent no.2, as contained in Annexure no.1 to the petition.

(2) Issue a writ, order or direction in the nature of mandamus commanding the respondents to consider and grant the petitioners the benefits of the pay scale of Rs.2000-3500/- in the 5th Pay Commission w.e.f. 01.01.1996 as well as the pay scale of Rs.15600-39100/- in the 6th Pay Commission w.e.f. 01.01.2006 with Grade Pay of Rs.5,400/-, as have been given to the persons, who are admittedly juniors to the petitioners.

3. Brief facts of the case as set forth by the petitioner is that all the petitioners were appointed as Stenographers in Mandi Parishad on various dates between 1985-1987. In the year 2008, the petitioners were given time scale promotion in the pay scale of Rs.2200-4000/- w.e.f. from the date upon completion of 14 years of service.

4. On 24.05.2008, an office memorandum was issued granting benefit of selection grade to the petitioners upon completion of 19 years of service w.e.f. the due dates.

5. In the interregnum, a Writ petition No.2459(S/S) of 1996 was filed before this Court by some identically placed persons, including some juniors and seniors, seeking benefits of 5th & 6th Pay Commission. This Court vide judgment and order dated 20.01.2009 in Writ Petition No.9540(S/S) of 2006 in Re: Kamlesh Kumar Yadav and Others Vs. State of U.P. and Others directed the respondents to reconsider the case of the said petitioners for implementation of the recommendations of the 5th Pay Commission. The said order also required the respondents to deal with the matter taking into an account the pay scales allowed to similarly placed stenographers working in the other Head Quarters of the other Government Departments or in the Secretariat and due consideration will be given taking into account the pay scales allowed to the Ministerial employees of the Secretariat. A copy of order dated 20.01.2009 is Annexure no. B-7 to the counter affidavit.

6. Subsequent thereto upon an application for modification being filed, the writ Court vide order dated 15.09.2009, a copy of which is annexure no.B-9 to the supplementary counter affidavit dated 27.10.2016 considering that the said petitioners had submitted that in the Rajya Krishi Utpadan Mandi Parishad, the Stenographers were designated as Private Secretaries, the Court provided that the said petitioners, who were Private Secretaries in the Mandi Parishad, will be entitled for the benefits arising out of the judgment and order dated 20.01.2009 and in place of the Stenographers, the petitioners would be treated as Private Secretaries.

7. In compliance thereof, the respondents passed various orders dated 08.02.2014, a copy of which has been filed cumulatively as Annexure no.6 to the petition, whereby in pursuance of the directions issued by the writ Court dated 20.01.2009 and 15.09.2009, the benefit of the 5th & 6th Pay Commission were extended to the petitioners of the said writ petition.

8. The petitioners herein alleging themselves to be Seniors to some of the said persons who were extended the benefit of the judgment of the writ Court in Kamlesh Kumar Yadav and Others (supra) seeking the benefit of 5th & 6th Pay Commission approached this Court by filing Writ Petition No.1241(S/S) of 2015 in Re: Dalel Singh and Others Vs. State of U.P. and Others and this Court vide judgment and order dated 27.03.2015, a copy of which is annexure no.9 to the petition, disposed of the petition by directing the Director of the Mandi Parishad to take a decision in the matter of the petitioners as well in respect of their claim for grant of pay scale of Rs.2000-3500/- w.e.f. 01.01.1996 and further their placement in the pay scale of Rs.15600-39100/- w.e.f. 01.01.2006 with Grade Pay of Rs.5,400/-.

9. In pursuance thereof, the respondents have rejected the claim of the petitioners vide impugned order dated 10.09.2015, a copy of which is annexure no.1 to the petition.

10. Learned counsel for the petitioners argues that apart from the various grounds that have been taken by the respondents while rejecting the claim of the petitioners, what the respondents have categorically stated, as emerges from a perusal of para 7 of the order impugned, is that against the order of the writ court in Kamlesh Kumar Yadav (supra), the compliance had been made but subsequent thereto, the Parishad has filed a Special Appeal which is pending before this Court and further decision would be taken after decision in the said Special Appeal.

11. The argument of learned counsel for the petitioners is that when the similarly and identically placed persons which also includes the juniors of the petitioners, as per the categorical averment made in paragraph 19 of the writ petition which has not been specifically denied in paragraph 30 of the counter affidavit, have been given the said benefit rather the respondents have categorically admitted that the said benefit has been granted both to the juniors and seniors of the petitioners as per the specific averment made in paragraph 17 of the counter affidavit, consequently, as the Division Bench of this Court in the Special Appeal filed by the Mandi Parishad has not interfered with the judgment passed by the writ Court in the case of Kamlesh Kumar Yadav (supra), mere pendency of the Special Appeal cannot be a ground for depriving the petitioners of the benefit of the 5th and 6th Pay Commission.

12. The further argument of learned counsel for the petitioners is that a perusal of the orders which have been passed by the respondents themselves dated 08.02.2014, whereby the benefit of judgment of this Court in the case Kamlesh Kumar Yadav (supra) has been extended to the juniors, the seniors and similarly and identically placed persons, would indicate that the said order has been passed without making the said order subject to the decision of the Special Appeal meaning thereby that the respondents have complied with the order of the writ Court passed in the case of Kamlesh Kumar Yadav (supra) unconditionally and consequently, the ground now being sought to be taken by them by means of the impugned order dated 10.09.2015 that a decision is to be taken only after the decision of the Special Appeal which has been filed against the judgment of the writ Court in the case of Kamlesh Kumar Yadav (supra), cannot be considered to be a valid ground for non extension of the said benefit to the petitioners.

13. Thus, the contention of learned counsel for the petitioner is that once a similarly and identically placed persons have been granted the benefit of 5th & 6th Pay Commissions may be in pursuance of the order of the writ Court passed in the case of Kamlesh Kumar Yadav (supra), consequently there cannot be any reason for the respondents to not extend the benefit to the petitioners also, more particularly when there is no restraint order in the Special Appeal and neither the order of the writ Court has been stayed nor modified in the Special Appeal.

14. On the other Shri N.C. Mehrotra, learned counsel appearing for respondent Nos. 2 & 3 on the basis of averments contained in the counter affidavit as well as supplementary counter affidavit argues that it is not only that the juniors of the petitioners have been granted the said benefit, rather the seniors of the petitioners have also been granted the said benefit and consequently, merely because the seniors have been granted the said benefit, it cannot be a ground for extension of benefits to the petitioners.

15. The other argument of Shri Mehrotra is that once the Special Appeal is pending against the order of the writ Court dated 20.01.2009 in the case Kamlesh Kumar Yadav (supra) as such till such time the Special Appeal is not decided, it cannot be said that the order of the writ Court has attained finality and thus till the order of writ Court has attained finality, there cannot be any extension of the benefit of the said judgment to the petitioners.

16. Heard the learned counsel for the parties and perused the record.

17. From perusal of the record, it emerges that admittedly all the petitioners were working as Stenographers in the Mandi Parishad. They are aggrieved with not being extended the benefit of 5th & 6th Pay Commission as has been extended to the similarly and identically placed persons including the juniors of the petitioners. The fact that the juniors of the petitioners have been extended the benefit of 5th & 6th Pay Commission is apparent from a perusal of the orders dated 08.02.2014, which have been passed by the respondents in purported compliance to the order passed in the case of Kamlesh Kumar Yadav (supra). The ground for non extension of the said benefit to the petitioners as has been indicated in the order impugned dated 10.09.2015, apart from the other grounds, is that as the Special Appeal has been filed against the order of the writ Court dated 20.01.2009 as modified on 15.09.2009, consequently as and when the Special Appeal is decided, the Mandi Parishad would proceed accordingly. Admittedly, there is no stay order granted in the Special Appeal. At the same time, a perusal of the orders dated 08.02.2014 which have been passed by the respondents in purported compliance to the order passed by the writ Court in the case of Kamlesh Kumar Yadav (supra) would indicate that the respondents have extended the benefits of 5th & 6th Pay Commission to the said Stenographers w.e.f. 01.01.1996 and 01.01.2006. Perusal of the orders dated 08.02.2014 do not indicate that the same have been made subject to decision of the Special Appeal, and thus it is apparent that the respondents have complied with the order of the writ Court unconditionally.

18. Be that as it may the fact of the matter remains that in the Special Appeal which has been filed by the respondent being aggrieved against the order of the writ Court passed in the case of Kamlesh Kumar Yadav (supra), no stay order has been granted by the Division Bench of this Court neither the order of the writ Court has been modified. Thus, the ground taken by the respondents in the order impugned dated 10.09.2015 that a decision is to be taken by them only upon the final decision of the Special Appeal, cannot be considered to be a valid ground for denying the claim of the petitioners, more particularly when the juniors of the petitioners have already been extended the said benefit as per the specific averment made in paragraph 17 of the counter affidavit.

19. In this regard, it would be apt to refer to the judgment of the Apex Court in the case of Gurcharan Singh Grewal and Another Vs. Punjab State Electricity Board and Others 2009 (3) SCC 94 wherein the Apex Court has held that a senior cannot be paid a lesser salary than his junior.

20. In the instant case, admittedly, where the juniors of the petitioners have been extended the benefit of the 5th & 6th Pay Commission and are drawing higher salary than the petitioners, consequently the petitioners cannot be deprived of the said benefits.

21. For the sake of convenience, the relevant observations of the Apex Court in the case of Gurcharan Singh Grewal (supra) are reproduced as under:

"Something may be said with regard to Mr Chhabra's submissions about the difference in increment in the scales in which Appellant 1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid a lesser salary than his junior. In such circumstances, even if there was a difference in the incremental benefits in the scale given to Appellant 1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of Appellant 1 was also stepped up to that of Shri Shori, as appears to have been done in the case of Appellant 2."

22. Keeping in view of the aforesaid discussion, the writ petition is allowed.

23. A writ of certiorari is issued quashing the order dated 10.09.2015, a copy of which is annexure no.1 to the petition. A writ of mandamus is issued commanding the respondent no.2 to consider extending the same benefits as have admittedly been extended to the juniors of the petitioners as per the specific averment made in the para 17 of the counter affidavit i.e. a grant of benefit of the 5th & 6th Pay Commission.

24. Consequences to follow.

25. Let such decision be taken within a period of two months from the date of receipt of certified copy of this order.

Order Date :- 27.7.2023

S. Shivhare