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Allahabad High Court · body

2012 DIGILAW 226 (ALL)

Gajraj Singh v. State of U. P. and others

2012-01-24

PRADEEP KANT, RAJIV SHARMA

body2012
Rajiv Sharma, J.;— Heard Sri Sandeep Dixit, learned Counsel for the petitioner and the Standing Counsel. 2. Counsel for the petitioner states that the impugned office-memorandum dated 27.1.2005 whereby the time-scale/promotional scale was allowed to the petitioner vide order dated 10.12.2001 has been cancelled is unjust, unwarranted apart from being in total breach of the principles of natural justice. It is stated that the petitioner, who was working as Senior Hydrologist in the Bhugarbh Jal Sarvekshan Sangathan, U.P.,Lucknow, was allowed time/promotional scale in the pay scale of `12000-16500 w.e.f. 1/9/1997 alongwith Sri N.K.Chaudhry, Sri C.S.Agarwal and Sri R.C. Saxena. He also pointed out that in the final seniority list circulated by the Department of Minor Irrigation and Rural Engineering Services including the persons working in the U.P. Ground Water Department, the petitioner was placed at serial no.3 whereas the aforesaid persons were at serial no. 5,6 and 7. Thus, the petitioner cannot be paid less emoluments/salary than his juniors. Placing reliance on the Government Order dated 31.12.1997, it has been contended that in no eventuality the senior persons would be allowed the salary in the revised scale of pay less than the junior employee. Taking all these grounds, the petitioner submitted a representation/reply but the same was rejected vide order dated 30.5.2005. 3. It has also been argued that before passing the impugned order dated 27.1.2005, no show cause notice was ever issued to the petitioner but in an attempt to fill the lacunae a show cause notice of the same date was issued to the petitioner which is wholly arbitrary and illegal. However, petitioner submitted reply pointing out the illegalities, but the same was rejected, as indicated above. 4. On behalf of the respondents, Standing Counsel submits that the Government Order dated 10.12.2001, by which the petitioner was allowed the personal pay scale of Rs. 12000-16500 w.e.f 22.1.1987, was issued taking into account the length of service rendered by him as Assistant Geologist in his previous department i.e. Directorate of Geology and Mining, U.P. but the same was cancelled after obtaining the opinion of the Finance Department as the Finance Department opined that service rendered by any personnel in previous department shall not be counted for sanction of time scale i.e. personal pay scale. Therefore, there is no illegality or infirmity in the impugned order. 5. Therefore, there is no illegality or infirmity in the impugned order. 5. Elaborating his arguments, learned Standing Counsel also states that in final seniority list issued by the Government vide Government Order dated 19.3.2003, the petitioner was placed at serial no.3 because his ad hoc services were regularized w.e.f. 11.1.1979 whereas services of S/Sri C.S. Agarwal, N.K.Choudhary and R.C.Saxena were regularized under the provisions of the U.P. Regularisation of Adhoc appointments ( on the post within the purview of Public Service Commission) Rules, 1979. Therefore, the petitioner cannot derive any benefit of the Government Order, referred to above. 6. Undisputed facts of the case are that the petitioner after being selected by the U.P. Public Service Commission (in short referred to as the "Commission') was appointed on the post of Assistant Geologist, a class II post in the Department of Geology and Mining, U.P. in the scale of pay of ` 550-1200. In 1973, a selection was conducted for appointment on the post of Assistant Geologist falling in U.P. Ground water Cell under the control of Irrigation Department, which is now a separate department known as U.P. Ground Water Department. The petitioner was recommended for appointment on the post of Assistant Geologist in U.P. Ground Water Department, Lucknow. It is relevant to point out that S/Sri N.K.Chaudhary, C.S. Agarwal and R.C.Saxena were already working on adhoc basis as Assistant Geologist in U.P. Ground Water Cell and they also participated in the selection process but candidature of all the three persons was rejected by the Commission. However, the State Government vide order dated 8.2.1980 regularized their services in terms of the provisions of U.P. Regularization of Adhoc Appointments (within the purview of the Public Service Commission) Rules, 1977. 7. As the petitioner was already working on the post of Assistant Geologist in the Mining Department, he was relieved on 31.8.1981 for joining on the post of Assistant Geologist in erstwhile U.P. Ground Water Cell. Petitioner, after being relieved, joined the Ground Water Department on 1.9.1981. It may be noted that in the Ground Water Department, his pay was also protected. Not only this, giving the benefit of the past services and counting the past services rendered on the post of Assistant Geologist in the previous department of Geology and Mining, the petitioner was promoted on the post of Senior Hydrologist in U.P. Ground Water Department. 8. Not only this, giving the benefit of the past services and counting the past services rendered on the post of Assistant Geologist in the previous department of Geology and Mining, the petitioner was promoted on the post of Senior Hydrologist in U.P. Ground Water Department. 8. It is surprising that the candidates, whose candidature was rejected by the Commission and their writ petition was also dismissed by the High Court, their ad hoc period of services have been counted for the purpose of granting time scale but the past services rendered by the petitioner in the previous department is not being counted and the same have been denied to the petitioner though the petitioner was also working since 22.1.1971 on the same post in same grade though in another department of State Government. Moreover, all these three officers have been placed much below to the petitioner in the seniority list. Therefore, there was no occasion for the respondents to deny the legitimate right and valid claim of the petitioner. In the circumstances, the impugned order is bad in law. 9. Apart from above, the impugned order is bad in law being in total breach of the principles of natural justice. Principles of natural justice enunciates the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while passing an order affecting those rights. In the instant case, the Standing Counsel has failed to establish that before issuance of impugned order any notice was issued to the petitioner. On the other hand, a show cause notice dated 27.1.2005, the date on which impugned order was passed, was issued to the petitioner to which reply was also submitted. The law is well settled that post decisional hearing would not suffice as it is common experience that once a decision has been taken there is a tendency to uphold it and a representation may not really yield any fruitful purpose. 10. At this juncture, it would be useful to mention that in State of U.P. and other vs. Maqbool Ahmad (2006)7 SCC 521 , which has been relied upon by the petitioner, the Apex Court observed that when there was no break of service and it remained continuous all throughout, there was no reason to deprive him of the selection grade of super time scale as per the government order. This case is fully applicable in the present case as there is no break of service and the petitioner was working on the same post in same grade in another department of State Government. In view of the law laid down in Maqbool Ahmad's case supra and Vijaya Kumar Shrotiya vs. State of U.P. and others (1998) 3 SCC 397 , the petitioner is entitled for the benefit of the service rendered by him in the Department of Geology and Mining as Assistant Geologist prior to his appointment on the post of Assistant Geologist in the U.P. Ground Water Department. 11. Taking the holistic view of the matter, we find that impugned orders dated 27.1.2005 and 30.5.2005 are not sustainable in the eye of law and are hereby quashed. On the facts of the case, we hold that as the petitioner was selected after due procedure of law through Commission and appointed on 1.9.1981, in the Ground Water Department and as such, the services so rendered cannot be excluded while extending the benefit of the Government Order dated 10.12.2001. It is also not disputed that giving the benefit of the past services and counting of the services rendered on the post of Assistant Geologist in the erstwhile department of Geology and Mining, the petitioner was also promoted on the post of Senior Hydrologist, a Class-I post in the erstwhile Ground Water Cell Department. 12. It may be noted that since the petitioner has attained the age of superannuation during the pendency of the instant writ petition, the opposite parties are directed to pay all the post- retiral dues including revised pension to the petitioner after fixation of salary in terms of the Government Order dated 10.12.2001. This exercise must be completed within a maximum period of four months from the date of production of certified copy of this order. 13. The writ petition stands allowed in above terms. _