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2016 DIGILAW 2086 (ALL)

STATE OF U. P. v. BAIJ NATH SHARMA

2016-05-30

DEVENDRA KUMAR ARORA

body2016
JUDGMENT Hon’ble Dr. Devendra Kumar Arora, J.—Heard learned Standing Counsel for the review petitioners and Mr. Rakesh Kumar Singh, learned Counsel for the respondents. 2. State authorities have preferred the aforecaptioned review petition, seeking review of the judgment and order dated 19.2.2015 passed in writ petition No. 286 (SS) of 2015 : Baij Nath Sharma and others v. State of U.P. and others., whereby the writ Court, on placing reliance upon the judgment rendered in Special Appeal No. 445 of 2011 : Bhuneshwar Rai v. State of U.P. and others, decided on 18.9.2014, allowed the writ petition in terms of judgment and order dated 18.9.2014 passed in Bhuneshwar Rai (supra) and quashed the orders impugned in the writ petition i.e. orders dated 3.11.2014 and 3.9.2014. 3. Learned Standing Counsel appearing on behalf of the review petitioners submits that the Assured Career Progression (hereinafter referred to as the “ACP”) has been enforced by the State Government vide Government Order dated 4.5.2010, whereby, on completion of 10 years, 18 years and 26 years satisfactory services, the benefit of 1st ACP, 2nd ACP and 3rd ACP are admissible. Subsequently, vide Government Order dated 22.12.2011, the benefit of 2nd ACP has been made admissible on completion of 16 years services in place of 18 years services. His submission is that after regularization, when the ACP was enforced in the year 2010, the writ petitioners/respondents were claiming the benefit of ACP by counting their services, which they rendered in the Work-Charge Establishment but as the benefit of ACP is admissible on the basis of satisfactory substantive services and since the writ petitioners/respondents were the employees working in the Work-Charge Establishment, therefore, the benefit of ACP cannot be extended to them. Perhaps these facts could not be brought to notice of this Court while passing the order under review. 4. Perhaps these facts could not be brought to notice of this Court while passing the order under review. 4. Elaborating his submission, learned Standing Counsel submits that judgment rendered in Special Appeal No. 445 of 2011 : Bhuneshwar Rai v. State of U.P. and others, as relied by this Court while passing the order under review, was not applicable in respect of the writ petitioners, for the reason that after regularization, Shri Bhuwaneshwar Rai completed required satisfactory services under the regular establishment, while in the matter in hand, writ petitioners/respondents’ case is quite different as they have not completed the required satisfactory services provided in the relevant Government Order dated 4.5.2010 read with Government Order dated 22.12.2011, wherein there is no provision for counting the services rendered in the work-charged establishment for grant of benefit of ACP. 5. Learned Standing Counsel further submits that a Division Bench of this Court in State of U.P. and 6 others v. Mohan Prasad (Runner) and 13 others (Special Appeal Defective No. 634 of 2015), decided on 14.9.2015, while relying upon the judgment of the Apex Court in Punjab State Electricity Board and others v. Naratha Singh : (2010) 4 SCC 417; and this Court’s judgment in Jai Prakash v. State of U.P. and others : 2014(2) ADJ 169 including the case of Bhuneshwar Rai (supra), has observed that it is not possible to sustain the directions issued by the learned Judge for counting the period of service rendered by the petitioner in a work charged establishment for the purpose of determining the grant of ACP. Furthermore, recently, a Full Bench of this Court in Babu @ Babu Ram v. State of U.P. and 3 others (writ-A No. 60352 of 2015), decided on 18.2.2016, has propounded that the period of service spent in a work-charged establishment is not liable to be counted for the purposes of computing qualifying service and the law in this regard stands correctly declared and elucidated in Jai Prakash (supra), Navrang Lal Srivastava v. State of U.P. and others (special appeal No. 1306 of 2013, decided on 16th July, 2015) and State of U.P. and others v. Ram Nagina Lal Srivastva : 2015(8) ADJ 405 (DB). The Full Bench has further held that the decision in State of U.P. and others v. Panchu (Special Appeal Defective No. 842 of 2013, decided on 2.12.2013) and other judgments of this Court which have followed the line of reasoning adopted therein shall accordingly stand overruled. In these backgrounds, submission is that order under review is liable to be set-aside and the writ petition is liable to be dismissed. 6. Per contra, Mr. Rakesh Kumar Singh, learned Counsel for the writ petitioners/respondents has submitted that review petitioners themselves have given benefit of ACP to so many persons, therefore, the writ petitioners cannot be discriminated. He submits that the issue before the Full Bench of this Court in Babu @ Babu Ram (supra) was with respect to the promotion and not with respect to the grant of ACP. 7. I have heard learned Standing Counsel appearing on behalf of review petitioners and learned Counsel for the writ petitioners/respondents. 8. A perusal of the order under review reveals that writ petition No. 286 of 2015 (S/S) was allowed in terms of Bhuneshwar Rai (supra) on the submission of the learned Counsel for the writ petitioners that controversy involved in the writ petition has already been settled by a Division Bench of this Court in Bhuneshwar Rai (supra) and the learned Standing Counsel does not dispute the assertion of the Counsel for the petitioner. 9. It is not in dispute that the issue involved in the writ petition was with respect to counting of services rendered in the work charged establishment for the purpose of grant of ACP. This issue has already been answered by the Full Bench of this Court in Babu @ Babu Ram (supra), wherein the Full Bench has held as under : “We therefore hold that the period of service spent in a work charged establishment is not liable to be countenanced for the purposes of computing qualifying service. The law in this regard stands correctly declared and elucidated in Jai Prakash, Navrang Lal Srivastava and Ram Nagina. The decision in Panchu and the other judgments of this Court which have followed the line of reasoning adopted therein shall accordingly stand overruled.” 10. The law in this regard stands correctly declared and elucidated in Jai Prakash, Navrang Lal Srivastava and Ram Nagina. The decision in Panchu and the other judgments of this Court which have followed the line of reasoning adopted therein shall accordingly stand overruled.” 10. From perusal of the aforesaid judgment of the Full Bench of this Court, it is crystal clear that the period of service spent in a work charged establishment is not liable to be countenanced for the purposes of computing qualifying service. Therefore, the plea of the writ petitioners/respondents is not sustainable and, accordingly, the order under review is liable to be recalled. 11. For the reasons aforesaid, the review petition is allowed. The judgment and order dated 19.2.2015 is recalled. The writ petition lacks merit and is, accordingly, dismissed. 12. Costs easy. —————