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2014 DIGILAW 316 (ALL)

Mohd. Zafrul Hasan v. State of U. P.

2014-01-27

D.Y.CHANDRACHUD, DILIP GUPTA

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JUDGMENT Dilip Gupta, J. The learned Single Judge has dismissed the petition filed by the appellant under Article 226 of the Constitution of India to challenge an order dated 28 February 2013 passed by the Director of Treasuries (respondent no. 2) rejecting his request for the payment of arrears of salary. The appellant sought a mandamus for the payment of arrears in the amount of Rs.3,27,600/- for the period between 1 January 1986 and 30 June 2006. While dismissing the petition, the learned Judge held that since the appellant was promoted on the post of Assistant Treasury Officer only on 26 March 1997, he could not be granted arrears of salary with effect from 1 January 1986 and hence there was no patent irregularity in the order. 2. From the records, it emerges that a counter affidavit was filed on behalf of the State contending that the claim of the appellant for payment of arrears could be considered only upon the decision of certain writ petitions which were pending before the Lucknow Bench of this Court. The relevant averment in that regard is as follows. "The correct fact is that the petitioner has been paid all retiral benefits but the petitioner is claiming arrears based on claim of 80: 20 w.e.f. 1.1.1986 which could be considered only when the writ petition no. 6441/SS/2005 Uttar Pradesh Treasury Staff Association Up Sangh Vs. State of U.P. and others and writ petition no. 1455/SS/2006, Uttar Pradesh Treasury Staff Association Vs. State of U.P. and others are decided finally by the Hon'ble High Court at Lucknow Bench." 3. The contention of the appellant is that the Chief Treasury Officer had, in a communication dated 22 February 2013 (Annexure-8), opined that the arrears could not be paid to the appellant for want of adequate budgetary allocation. However, in the order dated 28 February 2013 (Annexure-9) that was assailed in the writ petition, it was held that the appellant was not entitled to the revised pay-scale. 4. In our view, having regard to the nature of the controversy which was raised in the writ proceedings, the learned Single Judge has erred in dismissing the petition on the ground which weighed to the Court, as noted above. 4. In our view, having regard to the nature of the controversy which was raised in the writ proceedings, the learned Single Judge has erred in dismissing the petition on the ground which weighed to the Court, as noted above. The tenability of the claim has not been evaluated having due regard to the applicable order in regard to pay fixation nor has the defence as set out in the counter been evaluated. Hence, we are inclined to allow the special appeal and to remit the matter before the learned Single Judge for afresh consideration. 5. We clarify that we keep all the rights and contentions of the parties open to be urged before the learned Single Judge and this judgement would not be regarded as a final expression or opinion on merits of the tenability of the claim of the appellant for payment of arrears of salary. We, accordingly, set aside the order dated 5 December 2013 and restore the Writ-A No. 23832 of 2013 to the file of the learned Single Judge for fresh disposal. 6. The special appeal is, accordingly, disposed of. There shall be no order as to costs.