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2006 DIGILAW 1297 (ALL)

SHAKUNTALA SINGH v. STATE OF UTTAR PRADESH

2006-05-08

NARAYAN SHUKLA

body2006
JUDGMENT Hon’ble Shri Narayan Shukla, J.—Heard Mr. Santosh Kumar Tripathi and Mr. Gaurav Mehrotra, learned Counsels for the petitioner as well as the learned Standing Counsel for the respondents. 2. By means of the present writ petition the petitioner has challenged the orders dated 23.4.2002, 19.6.2004 and 28.6.2004, contained in Annexurers 1, 2 and 3 respectively to the writ petition. 3. The brief facts of the case are that the petitioner was appointed on the post of Sewing Teacher-cum-Home Assistant in pay scale of 100-4-120 in Government Labour Welfare Centre, District Gonda by Assistant Labour Commissioner Gorakhpur on 12.2.1973. On 25th of December, 1979 the petitioner was confirmed on the aforesaid post. At one point of time vide order dated 24.4.1992 the Government Labour Welfare Centre, Gonda was closed and the petitioner was adjusted in the office of the Deputy Labour Commissioner district Faizabad as junior clerk and thereafter she was attached with the office of the Assistant Labour Commissioner, district Gonda in the pay scale of 950-1500 instead of pay scale of Rs. 1200-1800, which was the pay scale of her original post. The petitioner made several representations to the Labour Commissioner, State of U.P., district Kanpur for posting her on original post of appointment in any place where the post is vacant in the pay scale of Rs. 1200-1800. The Deputy Labour Commissioner, Faizabad also forwarded his case to the Labour Commissioner, Uttar Pradesh, Kanpur to post the petitioner on the post of Sewing Teacher-cum-Home Assistant, which was her original post. Considering her representations she was posted at Gorakhpur on her original post of appointment in the pay scale of 1200-1800 and was attached in the office of Assistant Labour Commissioner, district Gonda vide order dated 28.2.1998, passed by the Additional Labour Commissioner, Uttar Pradesh, which is on record as Annexure 9 to the writ petition. The Labour Commissioner, Uttar Pradesh, Kanpur i.e. opposite party No. 2 also issued a direction to the opposite party No. 3 i.e. the Deputy Labour Commissioner, district Gorakhpur to draw the salary of the petitioner from any equivalent or higher vacant post. In pursuance whereof the opposite party No. 3 issued an order providing the pay scale to the petitioner i.e. Rs. 1200-1800 with effect from 15.7.1998 and since then the petitioner had been discharging her duties on the post of Sewing Teacher-cum-Home Assistant. In pursuance whereof the opposite party No. 3 issued an order providing the pay scale to the petitioner i.e. Rs. 1200-1800 with effect from 15.7.1998 and since then the petitioner had been discharging her duties on the post of Sewing Teacher-cum-Home Assistant. However, by way of order impugned dated 23.4.2002, the petitioner has been removed from the post of Sewing Teacher-cum-Home Assistant. The petitioner is submitting that the sole reason given for passing of the order dated 23.4.2002 is that the decision of placing the petitioner on her original post of appointment in 1998 was taken without obtaining the permission from the State Government and that is why she reverted from the original post to the post of Junior Clerk. In pursuance of the order impugned dated 23.4.2002 the Deputy Labour Commissioner, district Gorakhpur issued a letter dated 19.6.2004 to the Deputy Labour Commissioner, District Faizabad to take necessary steps for reverting the petitioner from the post of Sewing Teacher-cum-Home Assistant to the post of Junior Clerk and also to recover the amount paid as excess salary from her from 1998 till date and thereafter in pursuance of the order impugned dated 19.6.2004 the Deputy Labour Commissioner. Faizabad i.e. the opposite party No. 4 issued the impugned order dated 28.6.2004 asking the Deputy Labour Commissioner, Gorakhpur i.e. the opposite party No. 3 to take necessary steps to revert the petitioner and recover the amount paid as excess salary from 1998 onwards. The petitioner further submits that the appointing authority of the petitioner is the Deputy Labour Commissioner and he is duly empowered to confirm the said appointment. It has nowhere been provided that the prior permission is required from the government for that purpose. The petitioner further submits that the appointing authority of the petitioner is the Deputy Labour Commissioner and he is duly empowered to confirm the said appointment. It has nowhere been provided that the prior permission is required from the government for that purpose. The petitioner has further submitted that the petitioner was appointed on Sewing Teacher cum Home Assistant in the year 1973 and she has continuously worked on the said post till 1992 for about more than 19 years and subsequently in the year 1992 she was placed on the post of Junior Clerk, which is a lower pay scale post inspite of the fact that there were vacant posts of Sewing Teacher-cum-Home Assistant, therefore there was no reason at all to revert the petitioner on the post of Junior Clerk when by way of order dated 28.2.1998 passed by the Additional Labour Commissioner Uttar Pradesh she was posted on the post of Sewing Teacher cum Home Assistant vacant in the office of the Assistant Labour Commissioner, Gonda. which Is on record as Annexure 9 to the writ petition, thus the petitioner has submitted that there was no occasion at all for the respondents to revert the petitioner on the post of Junior Clerk and accordingly submits that the orders impugned are not sustainable in the eye of law and are liable to be quashed. 4. The learned Counsel for the petitioner also assailed the orders impugned on the ground that the orders have been passed in violation of principles of natural justice as before passing of the orders impugned no opportunity was provided to the petitioner and in support of his contention he has relied upon a judgment rendered by the Hon’ble Supreme Court in the case of Bhagwan Shukla v. Union of India and others, 1994 (6) SCC 154 , in which the basic pay scale of the appellant was reduced on the ground that the same had been wrongly fixed initially and that position had continued due to administrative lapses for about twenty years, when it was decided to rectify the mistake. The Hon’ble Supreme Court has held that the appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. The Hon’ble Supreme Court has held that the appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law and thus, held that there has been a flagrant violation of principles of natural justice and the appellant has been made to suffer huge financial loss without being heard and accordingly allowed the appeal and set aside the order impugned. 5. In the present case also from a perusal of the orders impugned it does not appear that before passing of the orders impugned the petitioner was provided any opportunity of hearing. 6. A counter affidavit has been filed on behalf of the respondents submitting therein that initially the petitioner was appointed on the post of Sewing Teacher-cum-Home Assistant in pay scale of 100-180 on 12.2.1973 at Rajkiya Shram Hitkari Kendra, Goda by the opposite party No. 3 and she was confirmed on the said post on 25.12.1979. However, due to abolition of the Centre at Gonda she was finally absorbed on the post of Junior Clerk vide order dated 28.5.1992 issued by opposite party No. 2 in the pay scale of Rs. 950-1500. It has further been submitted that the Additional Labour Commissioner, i.e. opposite party No. 2 erroneously and illegally appointed the petitioner on the post of Sewing Teacher-cum-Home Assistant vide order dated 28.2.1998 in the pay scale of Rs. 1200-1800 as this order was passed without any prior permission/sanction of the State Government. 7. The petitioner has filed a rejoinder affidavit controverting the facts of the counter affidavit. 8. After hearing the learned Counsel for the parties and from a perusal of the records it is obvious that admittedly initially the petitioner was appointed on the post of Sewing Teacher cum Home Assistant on 12.2.1973 and subsequently she was confirmed also on the said post on 25.12.1979. However, due to abolition of the Centre at Gonda she was absorbed on the post of Junior Clerk in the year 1992. However, due to abolition of the Centre at Gonda she was absorbed on the post of Junior Clerk in the year 1992. It appears that the petitioner submitted a representation against the aforesaid absorption on the lower pay scale, accepting which she was posted on the original post i.e. Sewing Teacher-cum-Home Assistant in the pay scale of Rs. 1200-1800 as there was no reason at all to absorb her in the lower pay scale and that too when the department was functioning the activities at the different centers. She could have been adjusted only against the equivalent post without affecting her right of status and salary as after abolition of center at Gonda her services were not terminated but she was allowed to work on the different centers then there was no reason at all to absorb her in the lower pay scale. 9. Under the circumstances I am of the view that the orders impugned dated 23.4.2002,19.6.2004 and 28.6.2004, contained in Annexures 1, 2 and 3 to the writ petition, are not tenable in the eye of law and are liable to be quashed. 10. Accordingly, the orders impugned dated 23.4.2002, 19.6.2004 and 28.6.2004, contained in Annexures 1, 2 and 3 to the writ petition, are hereby quashed by issuing a writ of certiorari and further a writ of mandamus is issued to the respondents to post the petitioner on her original post of Sewing Teacher-cum-Home Assistant and allow her to continue as such with all consequential benefits. 11. In view of the aforesaid observations and directions the writ petition is allowed. No order as to costs. Petition Allowed. ———