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2018 DIGILAW 151 (UTT)

Satya Prakash Thapliyal v. State of Uttarakhand

2018-04-03

SHARAD KUMAR SHARMA

body2018
JUDGMENT : Sharad Kumar Sharma, J. The petitioner has agitated a grievance against the impugned orders dated 16th February, 2009, 12th November, 2009 and 19th May, 2009 passed by respondent no. 2 annexed as Annexures 5, 7 and 9 respectively to the writ petition. Consequent to the impugned orders, petitioner had been declared not to be granted with the benefits of revised pay-scale as made applicable by the University Grant Commission (UGC) of Rs. 2200-4000 (as revised to Rs. 8000-13500) from the date when the petitioner acquired the qualification as contemplated under the Government Order dated 29th February, 1996. It has been held that only these librarian would be entitled for revised scale, who are eligible as per Appendix- d S No.3 prior to issuance of G.O. 29.02.1996. And since petitioner was not a Post Graduate prior to it he is not eligible for the scale of UGC on 29.08.1985. 2. Brief facts of the case are that the petitioner contends that he was appointed as a Library clerk in Guru Ram Rai (P.G.) College Dehradun, (hereinafter to be called as College) which is recognized and affiliated by H.N.B. Garhwal University, Srinagar and is receiving the financial aid from the State Government. Ever since 29th July, 1985 petitioner continued to discharge his responsibility as library clerk to the satisfaction of his employer till he was ultimately given charge of the Librarian, in the college as a consequence of the retirement of the regular Librarian Mr. S.P. Nautiyal and it is the case of the petitioner that ever since 2nd April 1994, he has been discharging his duties as a librarian in Guru Ram Rai P.G. College, Dehraun, but he was not paid salary as admissible to the said post, though he was discharging responsibilities of superior post. 3. The petitioner’s case is that since he was not paid the salary as admissible to the post of librarian which carried a higher scale then that of a librarian clerk, hence he sought the benefit of Regulation 22 of the Financial Handbook part 2 to 4, praying for that the salary compatible to the post on which he was working may be paid to him. When there was a denial by the respondent to pay the same to the petitioner, the higher salary as admissible to the post held by him, he filed a writ petition before this Court being, Writ Petition No.946 of 2001 (S/S) “Satya Prakash Thapliyal Vs. Director of Higher Education and others”. In the said writ petition, petitioner had specifically come up with a case that after handing over of the charge of librarian to him on 2nd April, 1994, thereafter the petitioner has acquired the qualification as contemplated under various Government Orders issued from time to time, in particular, Government Order dated 29.02.1996, which a librarian is supposed to have, to hold the post and hence the petitioner contends that since he was denied the higher scale, an appropriate direction may be issued to the respondent by way of mandamus to pay him the salary as admissible to the post of librarian from the date when he has acquired the qualification of the librarian. 4. The Writ Petition was contested by respondents on the ground that, the petitioner was never given charge of librarian, was given charge of books only. But, the certificate given by the Principal on 20.06.1998 showed and certified that petitioner was holding charge of librarian since 01.04.1994. 5. The coordinate Bench of this Court while considering the issue in the earlier writ petition of the petitioner vide judgment dated 2nd April, 2008 after considering the impact of Rule 22-B(1) of the Financial Handbook as well as the judgment of the Hon’ble Apex Court as reported in 2002 (1) SCC Pg.261, “Jashwant Singh Vs. Punjab Poultry Field Staff Association and others” had allowed the writ petition with the following direction:- “For the reason recorded above and in view of the settled proposition of law, the writ petition succeeds. The petitioner shall be paid the salary and allowances of the post of Librarian with effect from the date he is discharging the duties of the said post. No order as to costs.” 6. At this juncture, it is necessary to point out that while coordinate Bench of this Court was rendering the judgment dated 02.04.2008, the Court while granting the benefit of Rule 22-B(1) of the Financial Handbook was conscious of the fact that the petitioner had acquired the qualification after taking over the charge of the librarian on 2nd April, 1994. 7. At this juncture, it is necessary to point out that while coordinate Bench of this Court was rendering the judgment dated 02.04.2008, the Court while granting the benefit of Rule 22-B(1) of the Financial Handbook was conscious of the fact that the petitioner had acquired the qualification after taking over the charge of the librarian on 2nd April, 1994. 7. The judgment as rendered by the learned Single Judge was put to challenge by the respondent in SPA No. 205 of 2008. The Division Bench of this Court had dismissed the Special Appeal and affirmed the judgment as passed by the learned Single Judge. “After hearing the learned counsel for the appellant as well as the learned counsel appearing for respondent no. 1 and upon perusal of the impugned judgment dated 02-04-2008, we find that the learned Single Judge was right in issuing a mandamus directing the respondent no. 1 (writ petition) the salary and allowances of the post of Librarian for the period he discharged the functions of this post. We are convinced that the aforesaid direction contained in the aforesaid judgment does not suffer from any illegality or irregularity because indeed for some period, Respondent No. 1 (Writ Petition) was asked to perform the functions and discharge the obligations of Librarian after the retirement of Mr. Surya Prakash Nautiyal w.e.f. 2-04-1994. There is no merit in the appeal which is dismissed but without any order as to costs. (Dharam Veer, J) (V.K. Gupta, C.J.) 19.11.2008” 8. The two judgments as rendered by this Court have attained finality and has not been questioned before superior court. 9. As a consequence of the impact of the judgment passed by the Division Bench on 19th November, 2008, the respondent passed an order of payment of scale of Rs.2,000-3,200 as then admissible to the post of librarian to the petitioner from the date when the petitioner was given charge of the librarian in the College i.e. 02.04.1994. During the intervening period, the petitioner claimed for payment of scale of librarian in pay scale of Rs.2200-4000 as petitioner was qualified and was having Bachelor Degree in Library Science and was a post-graduate too in History, the degrees which he obtained in 1995 and 2001 respectively. Though the request of the petitioner was forwarded by management it is case of the petitioner that respondent no.2 has rejected the same by impugned order dated 16.02.2009. Though the request of the petitioner was forwarded by management it is case of the petitioner that respondent no.2 has rejected the same by impugned order dated 16.02.2009. By the impugned order respondent no.2 had proceeded to consider the case of the petitioner in the light of judgment of learned single judge dated 02.04.2008 and that of Division Bench dated 19.11.2008. Respondent no.2, while writing to the management observed that earlier Allahabad High Court vide its order dated 04.08.2000 passed in Writ Petition No.31459 of 2000 filed by the petitioner, had questioned the inaction of college as to why regular appointment is not been made. It based on that direction despite of there being positive direction passed by this court allowing Writ Petition, under the garb of order dated 04.08.2000 which had in fact lost its relevance has passed the order impugned dated 16.02.2009, thereby sat over the direction of the High Court. Admittedly, thereafter in compliance of the judgment dated 02.04.2008 of learned single judge and that of Divisoin Bench dated 19.11.2008 scale of rupees 2000-3200 was paid to the petitioner in terms of the Government Order dated 04.10.1989 as applicable to the relevant time and was made entitled for revision of scale w.e.f. 02.04.1995 subject to any disciplinary proceedings. In meantime, it is the case of the petitioner that U.G.C. revised the scale of librarian by GO dated 10.02.1996 according to the respondent for making a librarian eligible for the revised scale, he ought to have qualifications prescribed in Appendix- d it was case of the respondent that since petitioner is not qualified not entitled for scale of Rs.2200-4000 as revised by GO dated 10.02.1996. 10. In the meantime, by virtue of the Government Order No. 2-1007/10-17G-98 dated 10th July, 1998 the scale as admissible to the post of librarian was revised w.e.f. 1st January, 1996 and the revised scale which was payable was fixed as Rs. 6500-200-10500. Accordingly, the University Grant Commission (UGC) revised the scale as payable by the said Government Order to the post of Librarian subject to the condition that they fulfilled the eligibility as provided in Appendix A of the said Government Order, the petitioner was paid scale of Rs.6500-200-10500 w.e.f. 01.01.1996. 11. 6500-200-10500. Accordingly, the University Grant Commission (UGC) revised the scale as payable by the said Government Order to the post of Librarian subject to the condition that they fulfilled the eligibility as provided in Appendix A of the said Government Order, the petitioner was paid scale of Rs.6500-200-10500 w.e.f. 01.01.1996. 11. The case of the of the petitioner is that when the revised scale was not paid to the petitioner in pursuance to the revision made in the salary in the revised scale he submitted his representation and the same stood denied by the Director by the impugned order dated 16th February, 2009. This Court is of the considered view that the decision, which has been rendered by the Director dated 16th February, 2009 purportedly to be in compliance of the judgment rendered by the Division Bench of this Court dated 19th November, 2008, as a matter of fact would amount to sitting over the decision rendered by the Division Bench of this Court, while interpreting its impact and holding therein that the petitioner would not be entitled for the revised scale, ignorant of the fact that the court had allowed the Writ Petition. It would be deemed that the court had considered the interplay in fact of G.O. dated 10.02.1996 and 10.07.1998 while issuing mandamus allowing the scale of librarian to the petitioner. 12. The petitioner had further raised a claim before the respondent by filing representation dated 22.04.2010 that he may be granted the selection grade and scale as recommended by U.G.C. i.e. 2200-4000 revised to 8000-13500 as a consequence of the revision of the scale and the tenure of the service rendered by him which too had denied by the impugned order dated 12th November, 2009 and 19.05.2010 holding that entitlement would be only to those qualified as per G.O. which was not the case argued by respondents before Division Bench, hence they have acquiesced their rights. 13. 13. The ratio pertaining to entitlement of the petitioner for the grant of the scale as admissible to the higher post on which he was working on the basis of the order issued on 2nd April 1994 and being the Act which has been upheld by this Court vide its judgment of Division Bench dated 19th November, 2008 it would be deemed that the petitioner was entitled for the benefit as contemplated under Rule 22-B(1) of the Financial Handbook part 2 to 4. Once this Court by the judgment has upheld the proposition about the entitlement of the scale to the petitioner as a consequence of the services rendered by him on a superior post, the said ratio would still continue to be followed in its letter and spirits irrespective of the fact that the revision of the scale if at all made at any subsequent stage based on new criterion, will have no bearing on the entitlement of the higher scale as directed to be paid to the petitioner in pursuance to the judgment dated 19th November, 2008. Because as per petitioner he acquired qualification of post graduation contemplated by Appendix- d of the G.O., at least he would be entitled for revised scale of U.G.C. from the date he had acquired the qualification. 14. The rational behind it is that on a simple reading of the language of Rule 22-B(1) of the Financial Handbook part 2 to 4, it provides that irrespective of any provision of law or the rules as framed, any person, who is asked to discharge a responsibility attached to a superior post even on an officiating or temporary capacity, and since he discharges his duties and responsibility of greater importance attached to the post held by him and which carries the higher scale then what was admissible to him in his initial post would be entitled to the next higher post, to which he has been asked to discharge his duties. The same principle would continue to be followed, if there is a revision in the scale admissible to the higher posts as approved by the UGC. 15. In that view of the matter, the affect would be that the petitioner would be entitled for the revised scale as made subsequent to the post on which he was discharging his duties w.e.f. 2nd April, 1994. 15. In that view of the matter, the affect would be that the petitioner would be entitled for the revised scale as made subsequent to the post on which he was discharging his duties w.e.f. 2nd April, 1994. In that view of the matter, the impugned orders dated 16.02.2009, 12.11.2009 and 19.05.2010 are quashed. Mandamus is issued to the respondent to re-settle the pay-scale of the petitioner from the date of its revision as made applicable to the post of librarian but from date he acquired necessary qualification as per the G.O. dated 29.02.1996 and to pay all its arrears within a period of 6 weeks from today. 16. Subject to the above observations, the writ petition stands allowed. No order as to costs.