Uttarakhand High Court
SPA/26/2021 on 11 November, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE NARAYAN SINGH DHANIK
SPECIAL APPEAL NO. 202 OF 2018
11TH NOVEMBER, 2021
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Pan Singh Bisht & others ....Respondents.
With
SPECIAL APPEAL NO. 109 OF 2018
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Ratan Singh Negi & others ....Respondents.
With
SPECIAL APPEAL NO. 185 OF 2018
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Lokmani Pathak & others ....Respondents.
With
SPECIAL APPEAL NO. 186 OF 2018
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Bhawani Dutt Joshi & others ....Respondents.
With
SPECIAL APPEAL NO. 230 OF 2018
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Nandan Singh Bora & others ....Respondents.
With
SPECIAL APPEAL NO. 232 OF 2018
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Maukhi Singh & others ....Respondents.
With
SPECIAL APPEAL NO. 240 OF 2018
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Bhagwan Dass & others ....Respondents.
With
SPECIAL APPEAL NO. 320 OF 2018
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Ratan Singh & others ....Respondents.
With
SPECIAL APPEAL NO. 257 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Leela Tiwari & others ....Respondents.
With
SPECIAL APPEAL NO. 305 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Shiv Prasad Semwal & others ....Respondents.
With
SPECIAL APPEAL NO. 306 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Jay Veer Singh & others ....Respondents.
With
SPECIAL APPEAL NO. 307 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Khem Karan & others ....Respondents.
With
SPECIAL APPEAL NO. 308 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Smt. Shakuntala Gupta & others ....Respondents.
With
SPECIAL APPEAL NO. 313 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Khayali Ram Pandy & others ....Respondents.
With
SPECIAL APPEAL NO. 314 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Smt. Ganga Devi & others ....Respondents.
With
SPECIAL APPEAL NO. 315 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Smt. Bhageshwari Kala & others ....Respondents.
With
SPECIAL APPEAL NO. 316 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Smt. Durga Devi & others ....Respondents.
With
SPECIAL APPEAL NO. 317 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Satyawati Chauhan & others ....Respondents.
With
SPECIAL APPEAL NO. 318 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Kaali Pad Mandal & others ....Respondents.
With
SPECIAL APPEAL NO. 320 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Harish Chandra Srivastava & others ....Respondents.
With
SPECIAL APPEAL NO. 356 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Smt. Garima Gairola & others ....Respondents.
With
SPECIAL APPEAL NO. 357 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Smt. V.J. Saramma & others ....Respondents.
With
SPECIAL APPEAL NO. 358 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Tota Krishan Uniyal & others ....Respondents.
With
SPECIAL APPEAL NO. 363 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Purnanand Nautiyal & others ....Respondents.
With
SPECIAL APPEAL NO. 364 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Swadesh Verma & others ....Respondents.
With
SPECIAL APPEAL NO. 365 OF 2020
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Smt. Nadri Bisht & others ....Respondents.
With
SPECIAL APPEAL NO. 22 OF 2021
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Khasti Bajeli & others ....Respondents.
With
SPECIAL APPEAL NO. 23 OF 2021
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Kusum Lata Pal & others ....Respondents.
With
SPECIAL APPEAL NO. 24 OF 2021
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Tara Datt Bhatt & others ....Respondents.
With
SPECIAL APPEAL NO. 25 OF 2021
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Smt. Digri Devi & others ....Respondents.
With
SPECIAL APPEAL NO. 26 OF 2021
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Smt. Hema Bisht & others ....Respondents.
With
SPECIAL APPEAL NO. 28 OF 2021
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Janardan Prasad Kothari & others ....Respondents.
With
SPECIAL APPEAL NO. 32 OF 2021
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Smt. Geeta Pal & others ....Respondents.
With
SPECIAL APPEAL NO. 33 OF 2021
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Maheshwar Prasad Purohit & others ....Respondents.
With
SPECIAL APPEAL NO. 38 OF 2021
BETWEEN:
State of Uttarakhand & others .....Appellants.
And
Smt. Savita Gurung & others ....Respondents.
Counsel for the Appellants : Mr. Anil K. Bisht, learned
Additional Chief Standing Counsel
with Mr. Vikas Pande, learned
Standing Counsel for the State.
Counsel for the respondents : Mr. B.M. Pingal, Mr. Prabhakar
Joshi, and Mr. B.S. Negi, learned
counsel for the private
respondents-petitioners.
Mr. Gopal K. Verma, learned
Additional Chief Standing Counsel
for the State U.P.
The Court made the following:
COMMON JUDGMENT:(per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)
Since common question of law and facts are
involved in the above-numbered special appeal, the same are
being taken up together and adjudicated by this common
judgment.
2. The State of Uttarakhand has challenged the
legality of the order, dated 11.04.2017, passed by a learned
Single Judge in a batch of writ petitions.
3. By the impugned order, the learned Single Judge
had directed that the revised salary shall be paid to the
petitioners w.e.f. 01.05.1995 till 08.11.2000 by the State of
Uttar Pradesh, and by the State of Uttarakhand w.e.f.
09.11.2000 till 30.06.2010. The learned Single Judge had
further directed that the judgment shall apply to all the
similarly situated employees. Moreover, the persons who
have already retired from their service, their pension shall be
re-fixed after granting the actual monetary benefit w.e.f.
01.05.1995 to 30.06.2010.
4. Mr. Anil K. Bisht, the learned Additional Chief
Standing Counsel appearing for the State-appellants, submits
that the State of Uttar Pradesh had revised the pay-scales in
the year 2009. Since the State of Uttarakhand was created on
09.11.2000, the benefit of revised pay-scale cannot be given
to those persons who are working under the State of
Uttarakhand. In order to buttress his plea, the learned
counsel has relied upon the cases of Jagdish Prasad
Sharma & others vs. State of Bihar and others, [(2013)
8 SCC 633], and State of Manipur & another vs.
Takhelmayum Khelendro Meitei & others, [(2019) 3
SCC 331]. According to him, this contention was raised
before the learned Single Judge. However, the said
contention does not find any reflection in the impugned order.
5. On the other hand, the learned counsel for the
respondents-writ petitioners, submits that the stand being
taken by the learned Additional Chief Standing Counsel for
the State, is highly misplaced. For, the post of Health Worker,
was re-designated as Medical Assistant. After re-designation
of the post, the pay-scale was enhanced by the then the
State of Uttar Pradesh. Since the benefit of revised pay-scale
was not being granted to the Medical Assistants, some of
them had filed a writ petition before the Hon'ble Allahabad
High Court, namely Writ Petition No.15904 of 1983. By order
dated 01.03.1988, the Hon'ble Allahabad High Court had
directed the State of Uttar Pradesh to grant the benefit of
revised pay-scale to the Medical Assistants. The order dated
01.03.1988, passed by the Hon'ble Allahabad High Court was,
subsequently, challenged by the State of Uttar Pradesh before
the Hon'ble Supreme Court. However, the Hon'ble Supreme
Court had dismissed the SLP. Consequently, the petitioners
were granted arrears of the revised pay-scale from 1979 to
01.05.1995, and thereafter, w.e.f. 01.07.2010.
Secondly, since the petitioners in the present cases
were not granted the arrears of the revised pay-scale, they
had filed a batch of writ petitions before the learned Single
Judge.
Thirdly, according to the learned counsel, it is an
admitted fact that the petitioners were working in the State of
U.P. till 2000. They were entitled to the revised pay-scale,
and the arrears thereto till the year 2000.
Fourthly, according to Section 74 of the U.P.
Reorganization Act, 2000, the service conditions cannot be
changed. Therefore, according to the learned counsel for the
respondents-writ petitioners, the petitioners could not have
been denied the arrears from 1995 to 2010. Hence, the
learned counsel for the respondents-writ petitioners, has
supported the impugned order.
6. A bare perusal of the impugned order clearly
reveals that the only defence taken by the State of
Uttarakhand before the learned Single Judge with regard to
the payment of arrears is that the arrears could not be paid
to the petitioners as the State was facing "a financial crunch".
No other contention seems to have been raised before the
learned Single Judge. The only contention raised by the State
finds reflection in the impugned order. Since the said
contention was not raised orally before the learned Single
Judge, a new contention based on facts cannot be raised
before the Appellate Court. Furthermore, if the said
contention were taken in the pleadings, but not raised orally
before the learned Single Judge, the only option for the State
was to immediately file a review petition after the impugned
order was passed by the learned Single Judge. However,
despite the lapse of four years, no such review petition has
been filed before the learned Single Judge. Hence, the
contention raised by the learned Additional Chief Standing
Counsel appearing for the State of Uttarakhand, is clearly
untenable and unacceptable.
7. The contention being raised by the learned
Additional Chief Standing Counsel for the State that the pay-
scale was changed in the year 2009, prima facie, seems to be
factually incorrect for the simple reason that the story and
the dispute had already begun in the year 1983 when some
of the Medical Assistants had approached the Hon'ble
Allahabad High Court by filing Writ Petition No.15904 of 1983.
8. Admittedly, the petitioners were paid the arrears till
1995. Furthermore, once they joined the State of
Uttarakhand, according to Section 74 of the U.P.
Reorganization Act, 2000, their service condition cannot be
changed to their detriment. Therefore, the State of Uttar
Pradesh and the State of Uttarakhand are duty bound to pay
they arrears from 01.05.1995 till 08.11.2000 by the State of
U.P., and from 09.11.2000 till 30.06.2010 by the State of
Uttarakhand. Hence, the learned Single Judge was justified in
passing the valid directions to both the States.
9. Of course, the learned counsel for the State has
relied on the case of Jagdish Prasad Sharma & others
(supra), and on the case of Takhelmayum Khelendro
Meitei & others (supra). However, both the cases are
inapplicable to the present case. For, the issue raised in the
case of Jagdish Prasad Sharma & others (supra) was in
case of a conflict between the laws enacted by the State
Government, and the regulations framed by the University
Grants Commission, which would have the primacy?
However, the said issue has not been raised in the present
case.
10. In the case of Takhelmayum Khelendro Meitei &
others (supra), the issue was whether the State has the
power to cancel the selection made earlier, and banned
further recruitment, or not? Even the said issue was not
involved in the present case. Therefore, none of the cases
relied upon by the learned counsel for the State, come to the
rescue of the State.
11. Moreover, in catena of cases, the Hon'ble Supreme
Court has observed that the financial difficulty of a State is
not a valid argument on behalf of the State to deny salaries
to its employees. [Refer: Kapila Hingorani vs. State of
Bihar & others, (2003) 6 SCC 1].
12. This Court is further informed by Mr. B.M. Pingal,
the learned counsel for the respondents-writ petitioners, that
the State of Uttar Pradesh had already challenged the order
dated 11.04.2017, passed by the learned Single Judge in
Special Appeal No.789 of 2018. However, by order dated
27.10.2018, the same has been dismissed by a learned
Coordinate Bench of this Court.
13. Since the present special appeals are equally
covered by the said judgment passed by a learned Coordinate
Bench of this Court, this Court does not find any merit in
these special appeals.
14. The special appeals are, hereby, dismissed.
(RAGHVENDRA SINGH CHAUHAN, C.J.)
(N.S. DHANIK, J.)
Dated: 11th November, 2021
NISHANT
