Smt. Joshoda @ Joshadiya And Anr. vs State Of U.P. And 3 Ors.
2024 Latest Caselaw 16341 ALL

Allahabad High Court

Smt. Joshoda @ Joshadiya And Anr. vs State Of U.P. And 3 Ors. on 9 May, 2024

Author: Salil Kumar Rai

Bench: Salil Kumar Rai

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Neutral Citation No. - 2024:AHC:84008

Case :- WRIT - A No. - 23374 of 2015

Petitioner :- Smt. Joshoda @ Joshadiya And Anr.

Respondent :- State Of U.P. And 3 Ors.

Counsel for Petitioner :- N.L. Srivastava,Deepak Kumar Jaiswal,Kailash Pati Singh Yadav,Sheo Prasad Yadav

Counsel for Respondent :- C.S.C.

Hon'ble Salil Kumar Rai,J

The dispute in the present petition relates to the date from which time scale of Rs.3000-4500/- was to be granted to one Shri B.D.Singh who retired from the post of Assistant Engineer in the Public Works Department, U.P. B.D.Singh retired on 28.2.2001 and order dated 3.10.2003 and subsequently order dated 24.11.2014 was passed altering the date from which B.D.Singh was to be given time scale of Rs.3000-4500/-. Shri B.D.Sing died in December 2006. The present petition has been filed by the wife and the son of Shri B.D.Singh challenging the said order. B.D.Singh shall be referred as 'deceased' in the present petition.

The deceased was appointed as Overseer (subsequently re-named as Junior Engineer)l in Public Works Department on ad hoc basis with effect from 7.10.1965 and was subsequently regularized as Junior Engineer in Public Works Department U.P., w.e.f., 01.04.1975. The deceased was granted ad hoc promotion on the post of Assistant Engineer w.e.f., 10.01.1980 for a period of one year or till a candidate selected by the Public Service Commission was appointed. Subsequently, a list of 89 persons recommending them for appointment/promotion as Assistant Engineer in Public Works Department was forwarded by the Public Service Commission to the State Government. The aforesaid list contained the name of 34 Assistant Engineers who had earlier been given ad hoc promotion and were already working as Assistant Engineers. The other 55 Assistant Engineers, who had earlier been given ad-hoc promotion but were not included in the list forwarded by the Public Service Commission were reverted to their original post of Junior Engineer. The ad hoc Assistant Engineers who were reverted filed Writ Petition No. 37 of 1984 which was allowed by the Lucknow Bench of this Court vide its order dated 03.08.1984 and the recommendations made by the Public Service Commission were set aside.

Against the order dated 3.8.1984 passed by this Court, the selected candidates filed Civil Appeal No. 3868 of 1984 (Govind Prasad Vs. R.G. Prasad and Ors.) before the Supreme Court which was decided by the Supreme Court vide its judgment and order dated 02.11.1993. The judgment of the Supreme Court is reported in (1994) 1 SCC 437. The appeals were allowed and the judgment of the High Court was set aside. The Supreme Court while allowing the appeal issued certain directions which are reproduced below:-

"14. As a result of the above discussion we allow the appeals and set aside the impugned judgment of the High Court. We order as under:

1. The selection made by the State Government in the year 1983 was in accordance with law and as such is upheld. The select list notified in the memorandum dated November 5, 1983 is declared valid and operative.

2. All the selected candidates listed in the office memorandum dated November 5, 1983 shall be deemed to have been appointed, if not already appointed, to the posts of Assistant Engineers with effect from the respective dates when they were to be appointed, in the ordinary course, on the basis of the said selection.

3. The memorandum did not lay down conditions of service in respect of Electrical and Mechanical branches. The memorandum was a document showing the policy decisions of the Government to be implemented in future.

4. The Junior Engineers who are holding the posts of Assistant Engineers on ad hoc basis shall be treated as having been appointed as ad hoc Assistant Engineers from the dates when they would have completed ten years of service as Junior Engineers and this shall be the relevant date for the purposes of paras 5 and 6 hereafter.

5. The Junior Engineers who are holding the posts of Assistant Engineers on ad hoc basis shall be considered for regularization in terms of the Uttar Pradesh Regularisation of Ad hoc Promotions (on posts within the purview of the Public Service Commission) Rules, 1988 (Regularisation Rules).

6. The ad hoc promotees, who do not come within the purview of the Regularisation Rules, shall be considered for regular appointment through the process of selection to be held by the State Government in accordance with the rules and the executive instructions governing the conditions of service of the two branches of the Public Works Department. Those selected shall be appointed on regular basis from the dates they were appointed on ad hoc basis. We further direct that the process of selection be completed within four months of the receipt of this judgment and status quo shall continue till then."

In light of observations made in paragraph no.14(6) of the judgment of the Supreme Court, selections for promotion to the post of Assistant Engineer were held. Subsequently, by order dated 11.10.1994, the promotion of the deceased and other 53 Assistant Engineers who were regularized under the U.P. Regularization of Ad hoc Promotions (on posts within the purview of the Public Service Commission) Rules, 1988 (Regularization Rules).

By order dated 20.6.1996 passed by the Chief Engineer, Public Works Department, the deceased was granted time scale w.e.f., 1.1.1986 treating to have been promoted as Assistant Engineer w.e.f. 10.1.1980. The deceased retired from service on 28.2.2001. By order dated 3.10.2003 passed by the Executive Engineer, the salary of the petitioner was again re-fixed, the order dated 20.6.1996 was nullified and the deceased was granted time scale w.e.f., 1.1.1996. The deceased challenged the said order in Claim Petition No.716 of 2003 before the State Public Service Tribunal, Indira Bhawan, Lucknow. The Tribunal vide its order dated 30.5.2013 allowed the Claim Petition and quashed the order dated 3.10.2003 and other consequential orders and directed that the claim of the deceased be re-considered within a period of three months in light of the judgement of the Supreme Court in Govind Prasad(Supra). The amount recovered from the deceased as a consequence of the order dated 3.10.2003 was also directed to be refunded to the deceased with 8% simple interest.

The matter was re-considered by the Principal Secretary, Public Works Department, Anubhag-4, Government of U.P vide his order dated 24.11.2014. In his order dated 24.11.2014, the Principal Secretary has affirmed the order dated 3.10.2003 and has held that the petitioner was not entitled to time scale of Rs.3000-4500 w.e.f., 1.1.1986 but was rightly granted time scale w.e.f., 1.1.1996. The order dated 24.11.2014 has been challenged in the present writ petition.

It has been argued by the counsel for the petitioner that in view of the judgment of the Supreme Court in Govind Prasad(Supra), the deceased was to be treated as having been promoted as Assistant Engineer w.e.f., 10.1.1980 and therefore, entitled to time scale of Rs.3000-4500 w.e.f., 1.1.1986 and the opinion of the Principal Secretary as recorded in his order dated 24.11.2014 that the deceased was entitled to the aforesaid scale from 1.1.1996 because his promotion as Assistant Engineer was regularized under the Regularization Rules by order dated 11.10.1994, is contrary to law. It was argued that the aforesaid order of the Principal Secretary violates the directions of the Supreme Court as incorporated in sub-paragraphs 4, 5 and 6 of paragraph no.14 of the judgment of the Supreme Court in Govind Prasad(Supra). It was argued that for the aforesaid reasons, the orders dated 3.10.2003 and 24.11.2014 are violative of Articles 14 & 16 of the Constitution of India and are illegal and contrary to law and liable to be quashed and the retiral dues and other consequential service dues of the deceased have to be recalculated and recomputed on the basis that the deceased was entitled to time scale of Rs.3000-4500 w.e.f., 1.1.1986 and paid to the petitioners who are the heirs of the deceased.

Rebutting the arguments of the counsel for the petitioners, the Standing Counsel representing the respondents has supported the order dated 24.11.2014 and the reasons given in the same and has argued that the deceased was wrongly given time scale of Rs.3000-4500 w.e.f., 01.01.1986 which he was not entitled to, because his promotion as Assistant Engineer was regularized under the Regularization Rules,1988 by order dated 11.10.1994 and, therefore, the deceased was entitled to the time scale of Rs.3000-4500 only w.e.f., October, 1999. It has been argued by the Standing Counsel that the deceased was not entitled to time scale of Rs.3000-4500/- even from 1.1.1996. It has been further argued by the Standing Counsel that sub para (6) of paragraph no. 14 of the judgment of the Supreme Court in Govind Prasad (supra) is not applicable in the case of the deceased.

I have considered the submissions of the counsel for the parties.

It is the admitted case of both the parties that the deceased was appointed as Junior Engineer w.e.f., 07.10.1965. The services of the deceased was regularized as Junior Engineer w.e.f., 01.04.1975 and he was given ad hoc promotion as Assistant Engineer w.e.f., 10.01.1980.

By virtue of paragraph no. 14 (5) of the judgment of the Supreme Court in Govind Prasad (supra), the deceased was to be considered for promotion under the Regularization Rules, 1988 and was so considered by the authorities and the order dated 11.10.1994 was passed regularizing the promotion of the deceased as Assistant Engineer. Those candidates who did not come within the purview of the Regularization Rules were to be considered for regular appointment through a Selection Committee. In light of paragraph 14 (6) of the judgment of the Supreme Court, the selected candidates were to be appointed on regular basis with effect from the dates they were promoted on ad hoc basis. The ad hoc Assistant Engineers mentioned in paragraph no. 14(6), after their selection, had to be treated as regularly appointed with effect from the date on which they were promoted on ad hoc basis. The rider in Paragraph 14(6) that 'those selected shall be appointed on regular basis from the dates they were appointed on ad hoc basis' is not restricted only to the candidates included in paragraph no.14(6), but the same is also to be applied on the candidates who were regularized under the Regularization Rules, 1988 in pursuance to the directions of the Supreme Court incorporated in paragraph no. 14 (5). However, they have to be treated as appointed as Assistant Engineers on ad hoc basis only from the date the said Assistant Engineers had completed ten years of service as Junior Engineers. A composite reading of sub-paras (4), (5) and (6) of paragraph no. 14 of the judgment also supports the aforesaid conclusions. Denying the Assistant Engineers who were appointed on ad hoc basis but were within the purview of the Regularization Rules, the benefits referred in paragraph no.14(6) would result in an anomalous situation and would also be discriminatory. There will be inter-se discrimination between the Assistant Engineers included in paragraph no. 14 (5) and those in paragraph no. 14 (6) of the judgment of the Supreme Court.

The deceased had already completed 10 years of service as Junior Engineer by 10.1.1980 when he was given ad hoc promotion as Assistant Engineer.

In view of the aforesaid, the appointment/promotion of the deceased as Assistant Engineer after regularization shall be treated as regular w.e.f., 10.1.1980 and the deceased was rightly given time scale of Rs.3000-4500 w.e.f., 1.1.1986 by order dated 20.6.1996.

For the aforesaid reasons, the order dated 24.11.2014 passed by the Principal Secretary and all consequential orders are contrary to law and are liable to be quashed and are hereby quashed. The consequential benefits accruing to the deceased including the arrears of salary, pension and other retiral dues and also the family pension of petitioner no.1 shall be re-calculated on the basis that the deceased was entitled to time scale of Rs.3000-4500/- w.e.f., 1.1.1986 and the arrears due as a result of re-calculation shall be paid to the petitioner no.1 within a period of four months from today and in any case by 30.9.2024. The arrears shall be paid and the amount, if any, recovered from the petitioners or the deceased shall be refunded to the petitioner no.1 by 30.9.2024 alongwith 6% simple interest per annum.

With the aforesaid directions the petition is allowed.

Order Date :- 9.5.2024

IB