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2013 DIGILAW 2669 (ALL)

Chandrika Prasad v. State of U. P.

2013-10-28

ANIL KUMAR

body2013
JUDGMENT Anil Kumar,J.: - Heard Sri L.K. Pathak, learned counsel for the petitioner , learned Standing counsel and perused the record. 2. Petitioners were initially appointed on the post of Machine Assistant Letter Press in the Government Press , Aishbagh, Lucknow in between the years 1973 to 1987. While working and discharging their duties on the post in question, the Government took a decision to upgrade the machines and offsets so by the Government Order dated 20.8.1994, the persons working as Machine Assistant (Letter Printing) shall be given training thereafter to be allowed to work against the post of Machine Assistant( Offset). Accordingly, the petitioners were given training and allowed to work on the post of Machine Assistant (Offset). 3. It is further submitted on behalf of the petitioners that in the year 1995 a rule came into existence known as "Uttar Pradesh Printing and Stationery Technical Services Rules 1995". Thereafter, Government Order dated 31.7.1996 has been issued by which pay scale in respect to persons, who are working on the post of Machine Assistant Offset has been upgraded as Rs. 1200-1800. However, petitioners have not been paid the said pay scale although they are working and discharging their duties on the said post and in this regard a decision has also been taken on 18.9.1997, a copy of which has been annexed as annexure no.9 to the writ petition. 4. On behalf of the petitioners it is also submitted that some other co employee who were working alongwith the petitioners from the post of Machine Assistant letter printing were reverted and also not given the benefit of the Government Order dated 31.7.1996, so they approached this Court for redressal of their grievances by filing Writ Petition No 2790 (SS) of 1998 (Kapoor Chand and others Vs. State of U.P. and others , allowed by means of order dated 21.3.2005, the relevant portion of the judgment is quoted as under: - "It was also submitted that the petitioners have been appointed directly on the post of Machine Assistant Offset and by means of the present G.O., the petitioners are designated as Offset Machine parichar from which post after serving for three years will be entitled for promotion to the post of Machine Assistant Offset, the post on which they are directly recruited between 1992-93. Thus, it amounts the reversion. Thus, it amounts the reversion. On the other hand, learned Standing Counsel submits that the cadre has been revised on account of anomalies on various posts in the Government Press. It has also been stated that the persons have not been reverted in so far as the persons who have been working on Machine Assistant Offset and are senior has been placed on 81 post in the pay scale of Rs.1200-1500/- and the remaining persons who are junior in seniority list have been placed on the remaining 82 in the pay scale of Rs.950-1400/-. After hearing the rival submission of parties and on perusal of the records, I find force in the submission advanced by learned counsel for the petitioner that the rules cannot be substituted by means of an executive order and further the change of designation in case of the petitioner amounts to reversion and admittedly, no opportunity was afforded to the petitioner prior to passing of the order dated 12.6.1998 issued the Government Order dated 31.7.1996. Under the above facts and circumstances, writ petition is allowed and order dated 12.6.1998 and the Government Order dated 31.7.1996 is quashed insofar it relates to the petitioner. It is further provided that the petitioner who was appointed as Machine Assistant Offset shall continue as such and are entitled to the pay scale of Rs. 1200-1800/-." 5. Aggrieved by the said order official respondents filed Special Appeal bearing no. 942 of 2006, State of U.P. and others Vs. Kapoor Chand and others, dismissed by order dated 5.5.2008, the relevant portion is being quoted as under: - "The re-structuring in the cadre of service would not allow the State Government to frame any policy to the disadvantage of the government servant. Of course the chance of promotion if are disturbed to some extent by merger of cadre, it would not be a ground for holding the merger bad or the policy decision is illegal, but the substantive right of a government servant to work on the post, to which he was appointed, cannot be taken away by placing him to a lower category of post and not to allow the benefit of his appointment on the post, on which he was appointed and working. The situation becomes more discriminatory as even in such cadre of service, few are retained in the same cadre which has now become a higher cadre than the cadre where the respondents have been directed to fit in and they required to work on the lower post. Such a situation would be in gross violation of principles of equality as enshrined in Article 14 and 16 of the Constitution. We do not find any illegality in the order passed by the learned Single Judge, while protects the interest of the respondents and like persons and direct that they will be treated to continue to work as Machine Assistant Offset and shall be paid salary accordingly. So far the re-structuring of service otherwise is concerned, we find that the learned Single Judge has not given his opinion, so also we refrain ourselves from entering into such questions with respect to other posts. This order would work only for Machine Assistant Offset and the Machine Offset Attendant. Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel has lastly prayed that for compliance of the aforesaid order and for making the necessary payments, the State may be granted four weeks time, during which they shall comply with the orders. Sri L.K. Pathak has objected to the said time being granted to the State, as contempt proceedings are already in progress, but we, considering the prayer made by the learned Additional Chief Standing Counsel, give one opportunity to comply with the orders and for that matter, we direct that the order shall be compiled with within a period of four weeks form the date of receipt of a certified copy of this order. The special appeal is dismissed." 6. The said order dated 5.5.2008 passed in Special Appal No. 942 of 2006 has been challenged by the official respondents before Hon'ble the Apex Court by filing Special Leave to Appeal , dismissed by means of order dated 8.8.2008. 7. In view of the said developments, petitioners have raised their grievance in respect to consider their case for payment of their salary in the pay scale of Rs. 1200-1800 in view of the Government Order dated 31.7.1996 as they are working and discharging their duties on the post of Machine Assistant Offset. However, the said grievance has not been considered in spite of the recommendation made by opposite party no.2 to the State Government . 1200-1800 in view of the Government Order dated 31.7.1996 as they are working and discharging their duties on the post of Machine Assistant Offset. However, the said grievance has not been considered in spite of the recommendation made by opposite party no.2 to the State Government . In this regard , reliance has been placed on the documents as contained in annexure no.A-1 to the application bearing no. 60393 of 2013 filed alongwith affidavit dated 11.7.2013, hence a request has been made that opposite party no.1 may be directed to absorb the services of the petitioners on the post of Machine Assistant Offset created by Government Order dated 20.8.1994 from the date they are discharging their duties under opposite party no.2. 8. Thus , after hearing learned counsel for the parties, going through the record and also taking into consideration that in identical circumstances a Writ petition No. 8072 (SS) of 2008 (Vakeel Vs. State of U.P. and others) was filed before this Court, was disposed of by means of order dated 9.2.2011, on reproduction reads as under: - "Heard learned counsel for the petitioners as well as learned Standing Counsel and perused the records. The writ petition has been filed for a direction to the opposite parties to absorb the petitioners on the post of Machine Assistant (Offset) in the pay-scale of Rs. 4000-6000/-. The petitioners have also challenged the Government Order dated 31.7.1996 and the seniority list dated 17.11.2003. However, the petitioners confine their prayer that they shall be considered for absorption on the post of Machine Assistant (Offset). Learned counsel for the petitioners submits that the petitioners were initially appointed on the post of Machine Assistant (Letter Printing) in the year 1985 to 1990. Subsequently, the Government took a decision to upgrade the machines and offsets were introduced and a decision was taken by the Government Order dated 20.8.1994 that the persons working as Machine Assistant (Letter Printing) shall be given training and allowed to work against the post of Machine Assistant( Offset). The petitioners were given training and thereafter they have been allowed to work on the post of Machine Assistant (Offset). However, they have not been absorbed on the post in question. The petitioners were given training and thereafter they have been allowed to work on the post of Machine Assistant (Offset). However, they have not been absorbed on the post in question. It is further submitted by the learned counsel for the petitioners that the opposite parties had then taken a decision that no fresh appointment would be made against the said post and till date the petitioners are working and performing their duties on the post of Machine Assistant (Offset). Learned Standing Counsel, on the basis of counter affidavit, submits that the petitioners have no right to be absorbed on the post in question as they were appointed on a different post and the anomalies in the pay-scale of the two posts have been removed and the petitioners while working on the post of Machine Assistant (Letter Printing) have been given the same pay-scale, as admissible on the post of Machine Assistant (Offset). Learned counsel for the petitioners submits that the State Government has abolished the post of Machine Assistant (Letter Printing) by the Government Order dated 20.8.1994. In view of above, the writ petition is disposed of finally with the direction that the opposite parties shall consider the absorption of the petitioners on the post of Machine Assistant (Offset), which have been created by Government Order dated 20.8.1994, in case the said posts are still available and no appointments have been made against the said post." 9. Needless to mention herein that during the pendency of writ petition , a C.M. Application no.56486 of 2013 for withdrawal of the writ petition has been moved on behalf of petitioner no.10 supported by an affidavit filed by petitioner no.10 (Nibhas Chandra Das), same was allowed and by means of order dated 3.7.2013. 10. Thus, keeping in view the above said facts, In the interest of justice, the petitioners no. 1 to 9 and 11 to 15 are permitted to make a fresh representation individually to opposite party no.1/ Principal Secretary , Industries Department, Anubhag-2, Civil Secretariat, Annexe Bhawan, Lucknow within a period of three weeks from the date of receiving the certified copy of this order annexing all the relevant documents and materials in support of their case and after receiving the same opposite party no.1 shall consider and dispose of by way of speaking and reasoned order in accordance with law within a further period of eight weeks thereafter. 11. 11. With the above observation, the writ petition is finally disposed of.