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2008 DIGILAW 1498 (ALL)

RITESH MALVIYA v. STATE OF UTTAR PRADESH

2008-08-04

ARUN TANDON, ASHOK BHUSHAN

body2008
JUDGMENT By the Court—Petitioner-appellant before this Court is employed as Assistant Treasury Accountant in District Kaushambi. This intra Court appeal has been filed by the writ petitioner against the judgment and order of the learned Single Judge dated 27.11.2006 passed in Writ Petition No. 43109 of 2004. The learned Single Judge under the impugned judgment has been pleased to dismiss the writ petition being devoid of substance. 2. Facts in brief relevant for deciding this Special Appeal are as follows : Petitioner-appellant was appointed as an Assistant Treasury Accountant. He joined on 28.10.1999 in District Kaushambi and has been continuously working as such. 3. The State Government took a policy decision dated 6/8/1998 that in terms of the recommendation of the Equivalence Committee (Samata Samiti) of the year 1989, the posts of Treasury Accountants and Assistant Accountants existing on date in a particular District may be so adjusted as to maintain a ratio of 80:20 with effect from 1.1.1986. Subsequently, a clarification was issued by the State Government on 12.5.2000, which provided that grant of higher pay scale for maintaining the ratio of 80:20 will not amount to promotion to the post carrying the higher pay scale. From the aforesaid Government Order, it logically follows that persons who were appointed as Assistant Accountants in the Accounts Department of District Treasury were to be sanctioned higher pay scales applicable to the post of Accountants created upto 1.1.1996 so as to maintain the ratio of 80:20, meaning thereby that 80 per cent of the incumbents would draw the salary applicable to the post of Accountant while 20 percent incumbents would draw the salary applicable to the post of Assistant Accountant. 4. The petitioner along with other incumbents is said to have been appointed in the District Treasury, Kaushambi against the newly created posts in the year 1999. A list for maintaining the ratio of 80:20 was prepared in the District Kaushambi on 21/6/2001 and in the said list the name of the petitioner-appellant finds mentioned at Serial No. 9. Persons up to Serial No. 8 of the said list were granted higher pay scale i.e. pay scale admissible to the post of Accountant with reference to the aforesaid Government Order for maintaining 80:20 ratio from the date of their initial appointment vide order dated 14.12.2004. Persons up to Serial No. 8 of the said list were granted higher pay scale i.e. pay scale admissible to the post of Accountant with reference to the aforesaid Government Order for maintaining 80:20 ratio from the date of their initial appointment vide order dated 14.12.2004. The aforesaid persons had neither completed three years of service with reference to the relevant Government Order nor they had passed the departmental examination on the date from which such higher pay scale has been granted to them. 5. The State Government however came out with another Government Order dated 22.5.2003 whereby the grant of higher pay scale to Assistant Accountants who did not fulfil the required terms and conditions of the Government order dated 1.1.1986 was protected. 6. This became the cause for the petitioner to approach this Court with a plea that if the petitioner had also been granted higher pay scale applicable to the post of Accountants for maintaining the ratio of 80:20 as has been done in the case of persons mentioned at Serial Nos. 4 and 8 of the list prepared for the purpose his grant would also have been similarly protected under the Government Order dated 22.5.2003. In the alternative, petitioner questions the Government Order dated 22.5.2003 on the plea that it is discriminatory as it creates a class among class. Since his representations for the purpose were not being considered he filed Writ Petition No. 43109 of 2004. 7. The claim of the petitioner was contested by the State respondents and it was submitted that the Government Order dated 22/5/2003 protected the incorrect grant only against the posts which were created upto to 1.1.1996. A different criteria had been provided for granting higher pay scale of Accountant. Under the Government Order dated 22.5.2003, for posts created subsequent to 1.1.1996. Only a substantively appointed Assistant Accountant, on completing 3 years of service and further on his clearing the departmental examination becomes entitled for grant of the pay scale of Accountant with a further stipulation that in no case the total number of persons drawing the pay scale applicable to the post of Accountants in a District would not exceed 80 per cent. 8. 8. Learned Single Judge after hearing the counsel for the parties and after examining the relevant Government Orders issued from time to time came to the conclusion that the Government Order dated 22.5.2003 was in accordance with law and it was within the discretion of the State employer to lay down the condition for grant of higher pay scale, therefore, such conditions cannot be termed to be arbitrary or discriminatory as suggested by the petitioner. Learned Single Judge, therefore, proceed to dismiss the petition. It is against the said judgment the present Special Appeal has been filed. 9. Shri G.K. Singh, learned counsel for the appellant reiterated the arguments which were raised before the learned Single Judge and further brought to our notice that the petitioner-appellant has also been granted the pay scale admissible to the post of Accountant with effect from 16.5.2005 under an order dated 1.7.2006. However, such scale has been granted to the petitioner-appellant from the date he fulfilled all the requirements of the Government Order dated 22.5.2003 namely; that he had completed 3 years of service as Assistant Accountant and had also cleared the departmental examination which was held in the year 2005 thus it is with reference to the date of passing the said departmental examination that the petitioner has been granted higher pay scale applicable to the post of Accountant. However, he contends that such higher pay scale should have been granted to him from the date of initial appointment as has been done qua the candidates at Serial Nos. 4 to 8 of the list dated 21.6.2001. 11. After hearing learned Counsel for the appellant and the learned Standing Counsel at length, we are of the considered opinion that the Government order dated 22.5.2003 which lays down various criterias for grant of higher pay scale admissible to the post of Accountants to the Assistant Accountants working in a particular district for maintaining the ratio of 80:20, (in respect of the posts which have been created subsequent to 1.1.1996) i.e. on completion of 3 years of service on a substantive post and after passing of the departmental examination cannot in anyway be said to be arbitrary. It is for the Government to lay down the norms on which higher pay scale is to be provided to incumbents appointed on a post carrying a lower pay scale. It is for the Government to lay down the norms on which higher pay scale is to be provided to incumbents appointed on a post carrying a lower pay scale. No employee can claim a right for higher pay scale contrary to the terms and conditions mentioned in the Government Order providing for grant of such higher pay scale. In our opinion prescribing of minimum years of working on a substantive post and passing of the departmental examination for grant of a higher pay scale are fair and just. 11. We, therefore, not only approve the judgment and order of the learned Single Judge whereunder the plea raised by the petitioner-appellant questioning the Government Order dated 22.5.2003 has been rejected, we further record that Government Order dated 22.5.2003 does not violate Article 14 of the Constitution of India in any manner, by laying down the norms for grant of higher pay scale in respect of posts created subsequent to 1.1.1996 qua of which earlier Government Orders had no application. The Government Order dated 22.5.2003, is therefore upheld. 12. At this stage Shri G.K. Singh, learned counsel for the appellant vehemently contended that persons mentioned at Serial Nos. 4 to 8 of the list dated 21.6.2001 prepared in respect of District Kaushambi for grant of higher pay scale admissible to the post of Accountant had been conferred the benefit from the date they were initially appointed. He submits that the petitioner-appellant should have also been similarly treated and should have been sanctioned the higher pay scale admissible to the post of Accountant at par with the aforesaid persons from the date he was initially appointed. He submits that aforesaid persons had not completed three years service nor they had passed the departmental examination with reference to the date from which they had been granted the benefits of higher pay scale i.e. from the date of their initial appointment. 13. Normally, we would have examined as to whether the grant of such higher pay scale to the persons at Serial Nos. 13. Normally, we would have examined as to whether the grant of such higher pay scale to the persons at Serial Nos. 4 to 8 was in accordance with the Government Orders which was applicable on the relevant time and would have thereafter proceeded to determine the fate of the petitioner also, however, such an exercise is not being entered into in view of the Government Order dated 22.5.2003 which has protected the grant of higher pay scale to the incumbents who did not fulfil the requisite conditions mentioned in the Government Orders applicable at the relevant time. Thus, the Government itself has created a situation wherein persons who did not fulfil the required condition for grant of higher pay scale have been protected. 14. We feel that in the aforesaid background interest of substantial justice would be served if liberty is granted to the appellant-petitioner to approach the State Government for similar protection and benefits as has been provided for to the applicants mentioned at Serial Nos. 4 to 8 of the list dated 21.6.2001. 15. However, we leave it open to the State Government to examine as to whether grant of higher pay scales in favour of respondent Nos. 4 to 8 of the list dated 21.6.2001 under order dated 14.12.2004 is in accordance with law and in accordance with the terms and conditions of the Government Order dated 22.5.2003 or not and as to whether it can be protected. The State Government may also examine the entitlement of the petitioner-appellant for similar protection in the light of the Government Orders applicable on the subject and may take a uniform and appropriate decision expeditiously, preferably within a period of four months, after affording opportunity of hearing to the persons concerned. 16. Subject to the observations made above, the Special Appeal is disposed of. ———