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2017 DIGILAW 2194 (ALL)

SYED FARHAT ALI v. STATE OF U. P.

2017-09-18

SANGEETA CHANDRA

body2017
JUDGMENT Hon’ble Mrs. Sangeeta Chandra, J.—This writ petition has been filed by the petitioner challenging the order dated 27.8.2014 passed by the Respondent No. 4, Vice Chairman, Allahabad Development Authority, Allahabad in purported compliance of the order passed by this Court in Writ - A No. 66050 of 2013 decided on 24.7.2014. A prayer has been made by the petitioner further to make payment of arrears of salary calculating the difference as paid to his juniors alongwith pension and gratuity paid to them and interest thereon. Prayer has further been made to issue a mandamus to the Respondent Nos. 4 and 5 to revise the pay of petitioner w.e.f. 1.8.1975 and grant further revision as admissible w.e.f. 1.1.1996 to 31.10.2008 under 6th Pay Commission Report and refix the pension of petitioner and make payments accordingly to him. 2. It is the case of the petitioner that he was earlier working in Nagar Mahapalika, Allahabad and a Selection Committee was constituted on 20th of December, 1974 by the Administrator of Nagar Mahapalika, Allahabad and the said Committee selected 18 persons as Clerk Grade-I. The name of petitioner finds place in the select list dated 20th of December, 1974 alongwith that of S/S Badri Nath Shukla, Fareed Ahmad and Shyam Sunder Swarnkar at serial Nos. 12, 13, 16 and 17 respectively. Before any promotion could be granted, Allahabad Development Authority, Allahabad was constituted under Section 4 of the U.P. Urban Planning and Development Act, 1973 and as per Section 59 (3) of the said Act, 1973 all employees and officers of Nagar Mahapalika, Allahabad were transferred to Allahabad Development Authority, Allahabad and it was further provided that the services rendered under Nagar Mahapalika shall be deemed to be services rendered under the Allahabad Development Authority, Allahabad. 3. It is the case of the petitioner that the petitioner was working in the Development Section of Nagar Mahapalika, Allahabad which was subsequently converted into ADA and thereafter services of the petitioner alongwith post was transferred to the ADA by order dated 24.6.1975 of the then Administrator, Nagar Nigam/Vice Chairman of ADA. By an order dated 2.5.1977 passed by the Vice Chairman of the ADA several other Clerks mentioned in the select list dated 20th of December, 1974 were promoted as Clerk Grade-I including the junior to the petitioner, namely Shri Badri Nath Shukla. By an order dated 2.5.1977 passed by the Vice Chairman of the ADA several other Clerks mentioned in the select list dated 20th of December, 1974 were promoted as Clerk Grade-I including the junior to the petitioner, namely Shri Badri Nath Shukla. The case of the petitioner for promotion as Clerk Grade-I alongwith them was ignored and eventually, promotion was granted to him only on 1.5.1981 as is evident from the extract of Service Book filed by the petitioner at page No. 73. 4. On 12.9.1996 a Selection Committee was constituted which proposed promotion/confirmation of service of five employees of non-centralized service including the petitioner and one Janardan Datt Pandey who came from some other Nagar Mahapalika and not from the Development Section of Nagar Mahapalika, Allahabad. 5. It is evident from a perusal of the table mentioned in paragraph 9 of the writ petition that Shri Badri Nath Shukla who stood at serial No. 13 of the select list dated 20.12.1974 was given promotion as Clerk Grade-I on 12.3.1979. The petitioner who stood at serial No. 12 was given promotion only on 1.5.1981. Shri Janardan Pandey was given promotion as Clerk Grade-I on 2.5.1981. But in the report the date of promotion of Janardan Datt Pandey and the petitioner namely Syed Farhat Ali has been shown as same i.e. 2.5.1981. The report of the Selection Committee dated 12.9.1996 has been filed as Annexure 5 to the writ petition. 6. It has been pointed out by the learned counsel for the petitioner from the extract of the Service Book filed at Page No. 73 of the Paper Book that the Service Book clearly mentioned the date of promotion of the petitioner as Clerk Grade-I as 1.5.1981 and not as 2.5.1981. Due to the petitioner being treated at par with Shri Janardan Datt Pandey by the Committee, the petitioner felt aggrieved and therefore, he filed a representation before the Authority concerned and the Allahabad Development Authority referred the matter to its Standing Counsel for legal opinion. The concerned Standing Counsel gave the legal opinion on 21.6.2000 in favour of the petitioner advising the Authorities to undo the wrong and to give the petitioner his seniority and notional promotion with effect from the date his juniors were promoted. The concerned Standing Counsel gave the legal opinion on 21.6.2000 in favour of the petitioner advising the Authorities to undo the wrong and to give the petitioner his seniority and notional promotion with effect from the date his juniors were promoted. The Allahabad Development Authority, Allahabad by an order dated 22.8.2001 allowed the notional seniority to the petitioner w.e.f. 2.5.1977 on the post of Clerk Grade-I. With regard to the consequential benefits like arrears of salary on objection being made by the Chief Accounts Officer, the same however were not given and the promotion was treated as proforma promotion only. The salary was being given to the petitioner actually only with effect from 2.5.1981. 7. The petitioner being aggrieved made several representations and a detailed mention of this has been made by this Court in its judgment and order dated 24.7.2014. These representations and efforts made by the petitioner having been noted in the earlier judgment and order dated 24.7.2014 and it also being noted by this Court that ADA had not given any specific reply to the paragraphs No. 15 and 25 of the writ petition giving details of payments due to the petitioner, this Court had disposed of the matter directing the petitioner to make a detailed representation before the Vice Chairman, ADA which was to be decided by a reasoned and speaking order. 8. The petitioner thereafter filed a detailed representation, a copy of which has been filed by the petitioner as Annexure 26 to the writ petition. It has been further mentioned in the writ petition in paragraphs 13 and 16 that not only was the petitioner entitled to notional seniority and promotion w.e.f. 2.5.1977, but he was also entitled to grant of first promotional Scale as his personal Pay on rendering 16 years of satisfactory service on the post of Clerk Grade-I which was to be calculated w.e.f. 2.5.1977 and not w.e.f. 2.5.1981 as was done by the authorities. 9. Several allegations have been made in the writ petition with regard to the mala fide intention of the Respondents which need not be referred to herein because there is no specific denial by the Respondent Nos. 4 and 5 (Allahabad Development Authority) in their counter-affidavit. Allegations made in the writ petition relate to Respondent Nos. 6 and 7 and no notice having been issued individually to the Respondent Nos. 4 and 5 (Allahabad Development Authority) in their counter-affidavit. Allegations made in the writ petition relate to Respondent Nos. 6 and 7 and no notice having been issued individually to the Respondent Nos. 6 and 7, it would serve no purpose to refer to such allegations by this Court in this order. 10. It is the case of the petitioner that despite the matter being referred by this Court to the Authority concerned to decide in accordance with law, the representation of the petitioner was decided arbitrarily on 27.8.2014 by only referring paragraphs 15 and 25 of the writ petition as mentioned in the judgment and order dated 24.7.2014. 11. It has been informed by the learned counsel for the petitioner that a calculation of pay given to the petitioner has been given in the form of a chart in the order impugned, which shows that notional promotion was given to the petitioner as Clerk Grade-I w.e.f. 2.5.1977, and thereafter his pay was fixed in the promotional grade which was later on revised as per the recommendation of the Pay Commission w.e.f. 1.8.1979, 1.1.1986, 1.1.1996 to 31.10.2008 but as is evident, the first promotional Pay-scale was not given to the petitioner in time and was made admissible only on 2.5.1981. The second promotional Pay-scale similarly was delayed and was actually given on 2.5.2001 although it was admissible five years earlier. The pay of the petitioner being wrongly calculated, his pension and gratuity also was calculated wrongly on the basis thereof. 12. The counsel for the ADA Mr. Pradeep Kumar Yadav has pointed out from the counter-affidavit and the supplementary counter-affidavit filed on behalf of the ADA that the petitioner was offered promotion in 1978 itself but he had refused to avail of such promotion and hence he cannot now turn around and say that first Promotional Pay-scale was not given to him. It is settled position in law that if the promotion once offered is refused, it would dis-entitle the employee to promotional Pay-scale thereafter. 13. In that regard, the counsel for ADA has pointed out page 11 and page 14 of the Supplementary Counter-affidavit filed by him and the averments made in paragraph 3 thereof. 14. It is settled position in law that if the promotion once offered is refused, it would dis-entitle the employee to promotional Pay-scale thereafter. 13. In that regard, the counsel for ADA has pointed out page 11 and page 14 of the Supplementary Counter-affidavit filed by him and the averments made in paragraph 3 thereof. 14. The counsel for petitioner has pointed out that such promotion/appointment was being offered on the post of Accounts Clerk which is a separate Cadre altogether and which requires minimum educational qualification of B.Com with Accountancy. The petitioner does not possess the qualification of B.Com with Accountancy and he could not have been promoted on the said post of Accountant, therefore, the offer of the promotion was illusory and illegally made ignoring the Rules with regard to the minimum eligibility qualification. The petitioner should have been offered promotion in his own Cadre which is a General Office Cadre of Regular Routine Grade Clerk Grade-I and as Office Assistant and Office Superintendent thereafter, which promotions were not given to the petitioner nor offered at any time. Had such regular promotion been given and then refused, then alone the Respondent Authority could have taken this plea that first Promotional Pay-scale was not admissible to him on refusal of promotion. 15. Having considered the rival submissions, I am of the view that offering promotion on a post which was outside the Cadre and admittedly in a separate Cadre without the petitioner being qualified educationally for the said post, was only offering a temptation to the petitioner and it was completely illusory. The petitioner should have been offered promotion in his own Cadre and then alone, it could be said that on refusal of the petitioner to take such promotion in the regular Cadre, the petitioner lost the right to agitate for grant of promotional Pay-scale in the absence of promotion being actually granted. 16. It is evident from the order impugned in this writ petition that the same has been passed under some misconception of law, and also on a misreading of the judgment and order dated 24.7.2014 passed by this Court in Writ Petition No. 66050 of 2013. 16. It is evident from the order impugned in this writ petition that the same has been passed under some misconception of law, and also on a misreading of the judgment and order dated 24.7.2014 passed by this Court in Writ Petition No. 66050 of 2013. The specific contentions advanced by the petitioner in the earlier writ petition having not been specifically replied in the said writ petition, therefore, this Court instead of keeping the writ petition pending, had remanded the matter to the Authority concerned to take an appropriate decision after full consideration of the facts of the case, such decision was not taken. Instead, reference was made to only paragraphs 15 and 25 of the writ petition mentioned in the judgment and order dated 24.7.2014 and it was further said that such objections as raised by the petitioner in the said paragraphs have already been replied to by giving information to the petitioner under Right to Information Act and the same were being reiterated. The reply given to the petitioner under Right to Information Act has not been mentioned in the decision taken on 27.8.2014 anywhere, therefore, this Court cannot apply its mind to the facts which are not before it. 17. In view of what has been said herein above, the order impugned dated 27.8.2014 is liable to be set aside and is hence, set aside. The matter is remanded to the Vice Chairman, Allahabad Development Authority, Allahabad to consider afresh in the light of the observations made herein above and in accordance with law. Such exercise shall be completed by the Vice Chairman within a period of eight weeks from the date a certified copy of this order is produced before him. 18. The petitioner is granted liberty to make a fresh representation stating all the facts clearly and the Authority concerned is directed to apply its mind to each and every aspect of the matter before passing a fresh order thereon. 19. The writ petition is allowed to this extent.