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2012 DIGILAW 184 (ALL)

MUNISH KUMAR SHARMA v. STATE OF U. P.

2012-01-19

RAN VIJAI SINGH

body2012
JUDGMENT Hon’ble Ran Vijai Singh, J.—Initially this writ petition was filed with by the two petitioners out of which petitioner No. 1 has passed away on 23.1.2010. The abatement application has been allowed and the writ petition stands abated so far as it relates to the petitioner No. 1. 2. This writ petition has been filed with the following prayers : (a) Issue a writ order or direction in the nature of mandamus commanding the respondent No. 3 to grant revised pay scale to the petitioner Rs. 3050-75-3950-80-4590. (b) Issue a writ order or direction in the nature of mandamus commanding the respondents to pay arrears of revised pay-scale. (c) Issue any other writ, order or direction as this Hon’ble Court may deem fit and proper under the circumstances of the case. (d) Award the cost of the petition to the petitioner. 3. The petitioner was working on daily wage basis with the respondents since 1980 and on 1st November, 1984 he was made member of the work charge establishment and thereafter his services were regularised on the post of Amin/Surveyor vide order dated 20th January, 1998 passed by Superintendent Engineer, Public Work Department, Rampur Division, Rampur in the scale of Rs. 950 to 1500. 4. It appears after Fifth Pay Commission report, the salaries of the State Government employees were revised with effect from 1.1.1996 and it is thereafter a Government order dated 16.3.1998 was issued by the State Government bifurcating the cadre of Class III employees in two categories, one in the scale of Rs. 825 to Rs. 1200 and another Rs. 950 to Rs. 1500. On revision of pay-scale of 950-1500 changed Rs. 3050 to 4590 whereas pay-scale of Rs. 825 to Rs. 1200 was changed from Rs. 2750 to Rs. 4400. The post of amin has been categorised under the scale of Rs. 825- Rs. 1200. In pursuance of the aforesaid Government order, the salary of the petitioner was reduced vide order dated 3.6.2000. 5. Learned counsel for the petitioner submits that the validity of the Government order dated 16.3.1998 was challenged through various writ petitions and those writ petitions were allowed after quashing the Government Order dated 16.3.1998, copy of one such order has been brought on record of this writ petition as Annexure 5. 5. Learned counsel for the petitioner submits that the validity of the Government order dated 16.3.1998 was challenged through various writ petitions and those writ petitions were allowed after quashing the Government Order dated 16.3.1998, copy of one such order has been brought on record of this writ petition as Annexure 5. It is contended by learned counsel for the petitioner that once the Government order which was the basis for bifurcating the cadre of Class III employees and reducing their pay scale was quashed by this Court, the order dated 3.6.2000 has automatically come to an end. He has also submitted that in this regard, various representations have been filed before the competent authority but no decision has been taken thereon. Hence the petitioner has filed present writ petition. 6. In the submissions of learned counsel for the petitioner, the action of the State Government is violative of Article 14 of the Constitution of India as the Government cannot discriminate its own employees working in the same cadre. In his further submissions, the stand taken in the counter-affidavit that the petitioner has not challenged the order dated 3.6.2000 by which the salary was reduced therefore no relief can be granted to the petitioner, is unsustainable in the eye of law. 7. Refuting the submission of learned counsel for the petitioner, learned Standing Counsel has submitted that this writ petition has been filed in the year 2006 much after the order dated 3.6.2000 in persuance whereof his salary was refixed, therefore it ought to have been challenged by the petitioner while filing the present writ petition. In his submissions, without challenging the order dated 3.6.2000 by which the salary of the petitioner was reduced, no relief can be granted to the petitioner unless the order dated 3.6.2000 is quashed by this Court. 8. I have heard Sri Indra Raj Singh, learned counsel for the petitioner and learned Standing Counsel for the State respondents and considered their submissions after perusing the record. 9. The controversy in this case is to consider, the effect of bifurcation of the cadre, after the Fifth Pay Commission and the consequential order of State Government dated 16.3.1998. It is not in dispute that the petitioner was appointed in substantive capacity against the post of amin/surveyor and in the year 1998 and his salary was paid in scale of 950-1500. It is not in dispute that the petitioner was appointed in substantive capacity against the post of amin/surveyor and in the year 1998 and his salary was paid in scale of 950-1500. However after the revision of pay scale with effect from 1.1.1996, the State Government bifurcated the cadre of Class III employee in two scales Rs. 950 -Rs.1500 and Rs. 825- Rs. 1200 through Government order dated 16.3.1998, which later on has been quashed by this Court on 22.11.2001 passed in Writ Petition No. 34315 of 1999. The order dated 3.6.2000 admittedly was passed in consequence of the order dated 16.3.1998. 10. The meaning of word ‘quash’ in The New Lexicon Webster’s Dictionary Encyclopedic Edition has been given as under : Quash means to annual and to put down. 11. In Concise Oxford English Dictionary, Indian Edition the meaning of word quash has been defined as under : Quash means reject as not valid and suppress. 12. Looking into the meaning of word ‘quash’ it is apparent that the order dated 16.3.1998 has been annulled/put down/declared as invalid by this Court. Meaning thereby whatever its existence was prior to its quashing has now become ineffective and infact disappeared. Therefore, any order passed on the ineffective/annulled, order has become meaningless and has died to its automatic death. 13. The matter may be examined from another angle also. The Pay Commission has submitted its report with regard to the revision of the pay scale of the particular categories of the employees considering their conditions of service and needs for revision of pay-scale, therefore after the submission of Pay Commission report, it was not open to the State Government to bifurcate the cadre, which submitted its report after considering the necessary major for revision of salary. Needless to say that although the report of the Pay Commission is not binding upon the State Government but once it has been accepted then it was to be given effect in full swing and not to bifurcate the cadre, which in fact would amount the circumventing of the report adversely affecting the right of a particular category of employees. 14. 14. I am of the view that once the basis of bifurcation of cadre and refixation salary i.e. the Government order 6.3.1998 was quashed by this Court, the leg of the 16.3.2000 has broken and it fallen down on earth and has died to its automatic death as the life of Government order dated 6.3.2000 was the order dated 16.3.1998. Therefore the stand of State Government that since the petitioner has not challenged the order dated 6.3.2000 therefore he cannot be given benefit of quashing of the order dated 16.3.1998 become unsustainable in the eye of law. 15. The matter may be examined from another angle also. The State Government is the biggest employment generating agency and it has got number of category of employees who are getting their salaries from the State exchequer in lieu their performance of duty and if any Government order applicable to the employees becomes subject-matter of challenge before the Court of law and the Court quashes the same, in that eventuality, the pious duty of the State Government is to treat all the employees/incumbent on equal footing without there being any discrimination. Otherwise it will lead to dissatisfaction amongst the employees and inspire the litigation and it is none else except the State Exchequer which will be burdened to meet out litigation expense, apart the engagement of its officers in contesting the litigation. The State Government being modle employer is expected to act fairly without any discrimination. Further it should not promote the litigation and drag its employees in litigation unless it is very necessary and the payment is going to be made contrary to the rules, no chance should be given to employee to knock the door of Courts. 16. It is also notable that it is not the stand of the state Government that against the order dated 22.11.2001 quashing the order dated 16.3.1998 bifurcating the cadre, the State Government has taken legal recourse by way of filing special appeal or special leave to appeal meaning thereby the said order has become final. 17. Taking note of that, the writ petition succeeds and is allowed and writ of mandamus is issued directing the respondent No. 1 to ensure the payment of salary to the petitioner in the scale of 950-1500 with further revision of this scale in view of the subsequent report of Pay Commission. 17. Taking note of that, the writ petition succeeds and is allowed and writ of mandamus is issued directing the respondent No. 1 to ensure the payment of salary to the petitioner in the scale of 950-1500 with further revision of this scale in view of the subsequent report of Pay Commission. The entire exercise has to be done within a period of four months from the date of receipt of certified copy of the order of this Court Needless to say that the petitioner shall be paid salary from the date of his entitlement subject to his working in the department. ——————