Ap Trivedi vs State Of U.P. And Another
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Allahabad High Court

Ap Trivedi vs State Of U.P. And Another on 5 November, 2024

Bench: Vivek Kumar Birla, Yogendra Kumar Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:172575-DB
 
Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 529 of 2024
 

 
Appellant :- Ap Trivedi
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Adya Prasad Tewari
 
Counsel for Respondent :- C.S.C.,Vivek Saran
 

 
Hon'ble Vivek Kumar Birla,J.
 

Hon'ble Dr. Yogendra Kumar Srivastava,J.

1. Heard Sri Adya Prasad Tewari, learned counsel for the appellant, Sri Vivek Saran, learned counsel appearing for the respondent-Corporation and the learned Standing Counsel appearing for the respondent-State of U.P.

2. The present special appeal has been preferred against the judgment and order dated 12.04.2024, passed by a learned Single Judge in Writ - A No. - 14706 of 2014 [A.P. Trivedi Vs. State of U.P. and Another].

3. An order dated 13.12.2013 was passed by the Managing Director, U.P. Rajya Nirman Nigam Limited, Lucknow, in view of the judgment of this Court dated 25.07.2013 in Writ Petition No. 28703 of 1996 [A.P. Trivedi Vs. State of U.P. and Others], directing the respondents to consider the claim of the petitioner with regard to regularization and modification of the order dated 27.03.1997, after according an opportunity to the petitioner in light of the judgment passed in the writ petition filed by Satya Prakash Srivastava, which was allowed by this Court vide order dated 11.04.2000. It was noticed that Special Appeal No. 1061 of 2009 [Managing Director U.P.R.N.N. Ltd. and Another Vs. Satya Prakash Srivastava and Another], filed against the judgment passed in the case of Satya Prakash Srivastava in Writ - A No. - 6536 of 1996 [Satya Prakash Srivastava Vs. Managing Director, U.P. Rajkiya Nirman Nigam Limited, Lucknow and Others], was pending and that although the payscale was given but the original post of Sri Satya Prakash Srivastava continuted to be that of the Office Assistant Grade -II, the grant of the such payscale was made subject to the final order to be passed in the aforesaid special appeal which was pending at that point of time.

4. It is not disputed that Special Appeal No. 1061 of 2009 was dismissed as infructuous on the ground of the order having been complied with.

5. We may notice that it was not the withdrawal of the writ petition by the Corporation but the same was dismissed as having become infructuous by this Court, in view of the compliance of the order of the writ court.

6. Learned Single Judge has recorded its findings in Paragraphs 23 to 27 of the order and dismissed the writ petition by the order impugned herein dated 12.04.2024. The aforesaid paragraphs read as under:

"23. A perusal of the impugned order shows that the petitioner has been denied regularization on the post of an Office Assistant Grade-I, amongst others, on the ground that the post of Office Assistant Grade-I is a promotion post. It cannot be filled up by direct recruitment, or for that matter, by regularization. The petitioner's prayer for regularization as an Office Assistant Grade-I has also been declined, repelling his case of discrimination, vis-a-vis the 40 employees, who had raised an industrial dispute, because their rights were determined in terms of the award and whatever was the fate of challenge to that award by the respondents. The petitioner was not a party to the award passed by the Labour Court. Likewise, the benefit of the judgment and order passed in case of Satya Prakash Srivastava in Writ-A No.6536 of 1996 was denied to the petitioner because in Srivastava's case, he was granted Grade-I, pursuant to a judicial order, that was enforced through contempt. By the time the impugned order was passed, it was recorded for a fact that the respondents had assailed the judgment of the learned Single Judge passed in Satya Prakash Srivastava's case in an appeal before the Division Bench, that was still pending. This appeal, of course, has now come to be dismissed. Still another reason why the petitioner's plea has been declined is the fact that the order dated 27.03.1997, granting regularization to the petitioner, was accepted by him, when he put in his joining report, without reservation. It is on the aforesaid premise, in the main, that the impugned order has been passed rejecting the petitioner's claim.

24. A careful look at the order dated 25.02.1989, by which the cadre structure in the Personnel Section was changed, shows that the former posts of Head Assistant and Senior Office Assistant were re-designated as Office Assistant Grade-I and Office Assistant Grade-II. This decision was taken by the Corporation's Board in a meeting held on 21.01.1899 in deference to a Government Order dated 18.03.1987. Appendix B to the order dated 25.02.1989, which really implements the Corporation Board's resolution and has been passed by the Managing Director, shows in Column 5, the source of recruitment to the post of Office Assistant Grade-I as direct/ promotion. The eligibility is shown in Column 7 and the description of the feeding cadre is given in Column 8. The eligibility shown is three years and the description of the feeding cadre is Office Assistant Grade-II. Column 7, which mentions three years, carries a description of particulars in the said column, on head of it, in the following words: "qualification and experience in the next lower post for eligibility for promotion'. Though a reading of Column 5 might create that doubt, where one would think that the source of recruitment to the post of Office Assistant Grade-I is both, direct and promotion, but that is dispelled upon a conjoint reading of Column 5 with Columns 7 and 8. Since Column 7 speaks exclusively about the number of years of eligibility in the next lower post and Column 8 describes the feeding cadre as Office Assistant Grade-II, there is nothing to indicate that there could be a direct recruitment to the post of an Office Assistant Grade-I.

25. It is true that for an ex-cadre, serving on the muster roll, whatever be the length of his engagement, regularization, in the context of a first appointment into the regular cadre, can only be on the entry level post. It is difficult to visualize a first time regularization for a muster roll employee on a promotion post. In fact, the post of Office Assistant Grade-I, being exclusively a promotion post, where the eligibility is three years' service in the feeding cadre of Office Assistant Grade-II, it is almost impossible to regularize an employee from the muster roll on the promotion post. Regularization essentially is a facet of power to appoint and not the power to promote. Bearing that principle in mind as well, the petitioner's contention cannot be accepted. The principle is not to be confounded with those cases, where a person is officiating on a promotion post, while being the member of a post in the feeding cadre and is then made permanent on the promotion post by adopting whatever kind of nomenclature the employer may choose.

26. The next submission urged on behalf of the petitioner is about discrimination practiced by the respondents in regularizing the services of Satya Prakash Srivastava on the post of an Office Assistant Grade-I, while denying that benefit to the petitioner. The services of Satya Prakash Srivastava were regularized in compliance with the judgment and order dated 11.04.2000 passed in Writ-A No.6536 of 1996. This Court vide judgment and order dated 11.04.2000 modified the order dated 27.03.1997 in case of Satya Prakash Srivastava and ordered him to be placed on the post of an Office Assistant in the pay scale of Rs.1350-2200/-, that is an Office Assistant Grade-I, at least from the date of the aforesaid order. For the second petitioner in Satya Prakash Srivastava, a mandamus was differently issued, directing the respondents to consider regularization of his services and in case he was found fit, may be given the pay scale of Rs.1350-2200/- from the date of this Court's order passed in Satya Prakash Srivastava. The judgment in Satya Prakash Srivastava has now been upheld in appeal by the Division Bench as well. For the reasons given in Satya Prakash Srivastava, a mandamus to place him on the post of an Office Assistant in the pay scale of Rs.1350-2200/- from the date of the order dated 27.03.1997 was issued, modifying it. It was a mandamus not to consider, but to place or regularize Satya Prakash Srivastava in the higher grade. It is on that account that Satya Prakash Srivastava came to be regularized in the higher grade. It is well-known for a principle that no plea of discrimination can be founded in respect of actions of the State done for an individual in compliance with a judicial command. Therefore, the submission of the petitioner that there is a hostile discrimination practiced in not regularizing the petitioner's services on the post of an Office Assistant Grade-I on one hand and doing so in case of Satya Prakash Srivastava on the other, is clearly untenable.

27. The other case about the 40 muster roll employees, who were regularized pursuant to an award of the Labour court, if they have, in fact, been placed on the post of Office Assistant Grade-I, would likewise not attract a plea of hostile discrimination, because the petitioner was not a party to the industrial dispute or the Labour Court's award. Whatever is done in terms of the Labour Court's award, is not the respondents' act, but compliance with a judicial verdict, of which the petitioner is not a beneficiary."

7. Although learned counsel for the appellant has sought to argue the case on merits by drawing the attention of the Court to the various grounds taken in the present petition, the crux of the argument remains that since the Corporation has complied with the order in the case of Satya Prakash Srivastava (supra), the petitioner is also entitled to the same relief.

8. We have heard learned counsel for the parties at length, however, we do not find that the appellant could demolish the findings on merits so recorded by the learned Single Judge in the order impugned herein.

9. We do not find any legal infirmity in the order impugned herein. Each and every aspect in respect of the nature of the post held and under what circumstances such scale was granted to Satya Prakash Srivastava, has been dealt with and considered by the learned Single Judge.

10. We, therefore, do not find any good ground to persuade us to take a different view than that of the view taken by the learned Single Judge.

11. Accordingly, the special appeal being devoid of merit is dismissed.

Order Date :- 5.11.2024

Arun K. Singh