Uttarakhand High Court
SPA/263/2018 on 4 December, 2023
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari, Vivek Bharti Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 4TH DAY OF DECEMBER, 2023
BEFORE:
JUSTICE SHRI MANOJ KUMAR TIWARI
AND
JUSTICE SHRI VIVEK BHARTI SHARMA
Special Appeal No. 263 OF 2018
BETWEEN:
State of Uttarakhand & others ... Appellants
AND:
Manohar Gururani ... Respondent
Petitioner
(By Mr. J.C. Pandey, Advocate)
Respondents
(None present for the respondent)
JUDGMENT
1. Despite opportunity, objection to the delay
condonation application has not been filed. For the
facts and reasons indicated in the delay condonation
application, the same (CLMA No. 5116 of 2018) is
allowed and delay in filing the special appeal is
hereby condoned.
2. This intra court appeal is filed by State of
Uttarakhand challenging the final order dated
29.03.2017 passed by learned Single Judge in WPSS
No. 2474 of 2016. By the said order, writ petition
filed by respondent was disposed of in terms of
judgment rendered in WPSB No. 66 of 2008.
Operative portion of the said judgment reads as
under:-
"Learned counsel for the petitioner fairly submits
that the present lis is squarely covered by the judgment
rendered by the Division Bench of this Court in WPSB
No. 66 of 2008 on 25.03.2010.
Accordingly, the writ petition is disposed of in the
terms of the judgment cited hereinabove.
Pending application, if any, also stands disposed
of."
3. It is not in dispute that respondent was
appointed as Psychologist in Government Ashram
Padhati Vidhyalaya under Tribal Welfare Department
of the State Government in the year 2004. According
to respondent, persons serving as Psychologist in
Tribal Welfare Department are performing same
functions and teaching same subjects as their
counterparts in Education Department, therefore,
they are entitled to pay parity with Psychologist
serving in School Education Department. Since
Psychologist serving in Ashram Padhati Vidhyalaya,
run by Tribal Welfare Department, were paid salary
in lower pay scale, therefore, respondent filed WPSS
No. 2474 of 2016, seeking the following relief:-
I. Issue a writ, order or directions in the nature of
mandamus commanding and directing to
respondents to treat the post of psychologist
working under Ashram Paddhwati Vidylayas as
equivalent to the post of psychologist under
Education department and grant equivalent pay
scale with effect from the same date from when,
it is being paid to their counter parts of education
department.
II. Issue a writ, rule order or directions in the nature
of mandamus commanding and directing to
respondents fix the salary of the post of
psychologist on appropriate pay band i.e. 15600-
39100 / grade pay 5400, as is being paid to their
counter parts psychologist of education
department and accordingly pay the salary and all
other consequential benefits to the petitioner. It
is also prayed to this Hon'ble court to issue
necessary directions to impost exemplary
penalty, upon the respondent, for the in-
exorbitant, unreasonable delay in providing the
benefit of aforesaid government orders and also
award 18% interest to the petitioner since the
date of applicability of the aforesaid orders.
4. A counter affidavit is filed by Mr. B.R.
Tamta, Director, Tribal Welfare Department,
Government of Uttarakhand, Dehradun. In para 5 of
the said counter affidavit, it is stated that the post of
Psychologist in the Office of Regional Additional
Director of Education was equivalent to the post of
Lecturer, and both the posts were earlier having pay
scale of Rs. 6500-200-10500, which was revised to
Rs. 9300-34800, Grade Pay Rs. 4800, pursuant to
6th Pay Commission Report. It is further stated that
the post of Psychologist in Tribal Welfare
Department, is a much lower non-teaching post and
petitioner was appointed to the said post in the pay
scale of Rs. 4500-7000, while the post of
Psychologist in Education Department was carrying
pay scale of Rs. 6500-10500 at the relevant point of
time. It is further stated that post of Assistant
Psychologist and Psychologist in Education
Department have been abolished. In para 10 of the
counter affidavit, it is stated that in Ashram Paddhati
Vidhyalaya, students from Class 6th to Class 10th are
not having Psychology as a subject, thus there is no
question of petitioner teaching them.
5. Learned State Counsel submits that the
stand taken by Tribal Welfare Department against
respondent's claim for pay parity has not been
considered at all by learned Single Judge, while
deciding the writ petition. He further submits that
the decision rendered by Division Bench in WPSB No.
66 of 2008 was on a different issue altogether,
therefore, the writ petition filed by respondent could
not have been decided in terms of said judgment.
6. We have gone through the judgment
rendered in WPSB No. 66 of 2008. In that case, writ
petitioner was serving as Principal in Government
Ashram Paddhwati Vidhyalya and he was given pay
parity with Principal serving in School Education
Department w.e.f. 01.07.2001. The only dispute was
as to whether benefit of 5th Pay Revision has to be
given to him w.e.f. 01.07.2001 or 01.12.2005.
State Government had granted benefit of pay
revision to petitioner in the said writ petition w.e.f.
01.12.2005 and coordinate Bench of this Court held
that the said benefit has to be given to him w.e.f.
01.07.2001. Thus, the question of pay parity, as
raised by respondent in his writ petition, was not in
issue in WPSB No. 66 of 2008.
7. From reading of the impugned order, we
find that learned Single Judge has not dealt with the
contention raised on behalf of respondent. The
impugned order is a non-speaking order, which
cannot be sustained in the eyes of law.
8. We accordingly allow the special appeal
and set aside the judgment and order dated
29.03.2017 passed by learned Single Judge. The
matter is remitted back to learned Single Judge for
decision afresh, after considering the stand taken by
the departmental authorities in their counter
affidavit.
_______________________
MANOJ KUMAR TIWARI, ACJ.
______________________
VIVEK BHARTI SHARMA, J.
4th December, 2023
ASWAL
