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2013 DIGILAW 147 (UTT)

PAWAN KUMAR BORA v. STATE OF UTTARAKHAND

2013-03-18

Alok Singh, Barin Ghosh

body2013
JUDGMENT Hon’ble Barin Ghosh, C.J. (Oral) 1. There is some delay in preferring the appeal, and accordingly, an application for condonation of delay in preferring the appeal has been filed. Respondents, seeking to oppose the application, had sought time to file objection but no objection has been filed. We have considered the averments made in the application and being satisfied, allow the application. 2. In the writ petition, petitioners, seventeen in number, prayed for many a reliefs, amongst which, they had prayed for payment of their salary in the time-scale, as applicable to them by the Rules governing the field. The fact remains, which is not in dispute, that the petitioners were appointed as Constables (M). There appears to be no dispute that Constables (M) are governed by provisions of the Subordinate Officers, Ministerial Staff (Direct Recruitment) Rules, 1985. The said Rules were made in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, and in suppression of all the existing Rules and Orders on the subject. Rule 2 of the said Rules made those Rules applicable to the Ministerial posts of the lowest grade, in all subordinate offices excluding some but the Police Department was not excluded. Constables (M) are ministerial posts of the lowest grade in the Police Department. Rule 5 of the said Rules, amongst others, directed that the strength of ministerial staff in a particular Department / Office and of each category of posts therein shall be, as may be determined by the Government from time to time. Sub-rule 1 of Rule 31 of the said Rules authorized the persons appointed in various categories of posts in the Department / Office to the time-scale of pay to be determined by the Government from time to time. Sub-rule 2 of Rule 31 prescribed the scale of pay at the time of commencement of the Rules at Rs. 345 – 550. The said Rules came into force on 16.03.1985. Prior thereto, the remunerations of Constables (M) were governed by the Government Order dated 06.09.1966, in terms, whereof a person, appointed on the post of Constable (M) was only entitled to get a consolidated pay. Even after coming into force of the said Rules, the appellants continued to receive consolidated pay. The said Rules came into force on 16.03.1985. Prior thereto, the remunerations of Constables (M) were governed by the Government Order dated 06.09.1966, in terms, whereof a person, appointed on the post of Constable (M) was only entitled to get a consolidated pay. Even after coming into force of the said Rules, the appellants continued to receive consolidated pay. In the writ petition, they amongst others, prayed for upholding their right to receive remuneration on the time-scale prescribed in the said Rules and revised, subsequent thereto, from time to time, in terms of the mandate of Rule 31 thereof. 3. A learned Single Judge of this Court while dealing with the writ petition though noticed Sub-rule 1 of Rule 31 but did not notice Sub-rule 2 thereof and accordingly, proceeded to hold that though the appellants were entitled to the admissible scale of pay, to be determined by the Government from time to time, but since the same has not been determined as yet, the Government Order dated 06.09.1966 would remain applicable. 4. In the present appeal, by an order dated 04.01.2013, a Division Bench of this Court directed the Government to indicate as to how the Government Order of 1966 continued to govern the subject when statutory the Rules were made in 1985. The same was to be indicated in the counter affidavits to be filed. State of Uttarakhand has filed an affidavit where it has not indicated as to how Government Order of 1966 could survive, even after the Rules of 1985 came into force. On 04.01.2013, the State of Uttar Pradesh was also given a similar opportunity but it has chosen not to file any affidavit. In the counter affidavit filed by the State of Uttarakhand, it has not made any attempt to justify as to how the Government Order of 1966 continued to be effective, even after the Rules of 1985 came into force. Furthermore, as aforesaid, while making the said Rules, all the existing Rules and Orders on the subject were suppressed. 5. In the circumstances, the conclusion would be that the appellants were entitled to the pay scale, as was prescribed in Sub-rule 2 of Rule 31 of the said Rules, as stood altered, subsequently, from time to time, from the date of their substantive appointments. 5. In the circumstances, the conclusion would be that the appellants were entitled to the pay scale, as was prescribed in Sub-rule 2 of Rule 31 of the said Rules, as stood altered, subsequently, from time to time, from the date of their substantive appointments. We, accordingly, allow the appeal and set aside the judgment under appeal and at the same time, allow the writ petition to the extent that the appellants / writ petitioners, shall be entitled to the pay scale mentioned in Sub-rule 2 of Rule 31 of the said Rules, as stood altered subsequently, from time to time, from the date of their substantive appointments. Writ petitioners / appellants shall be entitled to receive and the State of Uttar Pradesh shall be obliged to pay the difference, on that account until 08.11.2000 and State of Uttarakhand shall be obliged to pay the difference from 09.11.2000. It is hoped and expected that amount due, on the above score, would be calculated and released by the respective Governments, as quickly as possible, but not later than three months from the date of service of a copy of this order upon the Home Secretary of each of the Governments.