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2018 DIGILAW 445 (ALL)

RAM KISHORE BAJPAI v. STATE OF U. P.

2018-02-19

HARSH KUMAR, SUDHIR AGARWAL

body2018
JUDGMENT By the Court.—Heard Sri Satish Dwivedi, learned counsel for appellant and learned Standing Counsel for State-respondent 1 to 6. 2. This intra Court appeal under Chapter VIII Rule 5 of High Court Rules has arisen from judgment dated 12.5.2010 passed by learned Single Judge dismissing appellant’s Writ Petition No. 26838 of 2010. 3. Writ petition was filed by petitioner/appellant seeking a mandamus commanding respondents to post appellant on the post of Workshop Attendant in pay-scale of Rs. 2650-4000 and to quash the order posting appellant as Chaukidar in the pay-scale of Rs. 2550-3200. 4. Facts pleaded in writ petition are that appellant/petitioner was appointed on the post of Workshop Attendant on 24.2.1982. Principal, Government Industrial Training Institute, Saket, District-Meerut (hereinafter referred to as ‘Institute’) confirmed appellant as Workshop Attendant with effect from 1.10.1993 vide order dated 7.3.1996, which was passed pursuant to Directorate’s letter dated 2.2.1996. By same order, one Jagpal Singh was confirmed on post of Store Attendant with effect from 2.2.1996. 5. Earlier pay-scale of Workshop Attendant was Rs. 305-309, which was revised to Rs. 750-940 by 4th Pay Commission Recommendation. Pay-scale of Chaukidar was also at par with Workshop Attendant. However, with acceptance of recommendation of 5th Pay Commission, Workshop Attendant was placed in pay-scale of Rs. 2650-4000 while Chaukidar was placed in pay-scale of Rs. 2550-3200. 6. Appellant/petitioner was promoted by order dated 29.5.2001 as Junior Clerk (Class III) post with effect from 29.5.2001. Principal of Institute, however, by office order dated 28.6.2001, fixed pay of appellant on the post of Junior Clerk, but for that purpose treated appellant’s pay in Class IV in the pay-scale of Rs. 2610-3540 as on 29.5.2001 and thereafter determined it in the pay-scale of Rs. 3050-4590, applicable to Junior Clerk and fixed at Rs. 3350/-. 7. The said order then was cancelled and appellant was reverted back to work as Workshop Attendant. 8. Additional Director (Employment) published a seniority list of Workshop Attendant on 30.12.2002 in which appellant’s name was shown at serial number 89. Another seniority list of staffs working as Workshop Attendant was published on 17.4.2006 and therein appellant was shown at serial No. 74. On 5.10.2004, Principal of Institute cancelled order dated 26/27.5.1999 whereby appellant allegedly appointed as Class IV Employee (Chaukidar) was directed to continue to work as Workshop Attendant. By aforesaid order dated 5.10.2004, he was required to discharge duties of Chaukidar. 9. On 5.10.2004, Principal of Institute cancelled order dated 26/27.5.1999 whereby appellant allegedly appointed as Class IV Employee (Chaukidar) was directed to continue to work as Workshop Attendant. By aforesaid order dated 5.10.2004, he was required to discharge duties of Chaukidar. 9. Another order was passed on 4.12.2004, placing appellant under suspension contemplating a departmental enquiry and therein also, designation of appellant was shown as Class IV Employee (Chaukidar). Enquiry was conducted after serving charge-sheet dated 14.9.2005 and thereafter by order dated 28.8.2009, appellant was reinstated in service after imposing punishment of withholding two annual increments temporarily. Period of suspension was treated as on duty. Petitioner submitted joining report on 5.9.2009 which was accepted by Principal of Institute on the post of Chaukidar vide office order dated 5.9.2009. However, joining of petitioner was submitted under protest. He said in his letter dated 5.9.2009 that he has been illegally required to function as Chaukidar, since, he was already appointed as Workshop Attendant and has been made permanent employee on the said post and cannot be allowed to function on a lower status post. Nothing was done. Then petitioner/appellant submitted a reminder letter dated 14.9.2009. Thereafter, he approached this Court in writ petition seeking following reliefs : (i) Issue a writ, order or direction in the nature of mandamus commanding the respondents to post the petitioner on the post of Workshop Attendant in the pay-scale of Rs. 2650-4000 holding that the order whereby the petitioner was posted on the post of Chaukidar in the pay-scale of Rs. 2550-3200 is illegal and inoperative and the same may be quashed. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to provide the work and salary of the post of Workshop Attendant to petitioner and to fix his pay in the pay-scale of Rs. 2650-4000 and pay him arrears thereof with suitable interest. (iii) Issue a writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. (iv) Cost of petition be awarded to the petitioner.” 10. Learned Single Judge has dismissed writ petition on the ground that appellant has not brought on record appointment letter issued to him so as to examine on what post he was actually appointed. Further on the ground of delay and laches, learned Single Judge dismissed writ petition. 11. (iv) Cost of petition be awarded to the petitioner.” 10. Learned Single Judge has dismissed writ petition on the ground that appellant has not brought on record appointment letter issued to him so as to examine on what post he was actually appointed. Further on the ground of delay and laches, learned Single Judge dismissed writ petition. 11. We find from record that letter dated 7.3.1996 was already on record of writ petition whereby appellant was made permanent on the post of Workshop Attendant with effect from 1.10.1993. In absence of any other material, in our view, learned Single Judge ought to have treated appellant as appointed on the post of Workshop Attendant and it was for respondent to show otherwise and also as to how they treated appellant as having been appointed on post of Chaukidar. Appellant has also brought before this Court, a copy of order dated 8.1.1985, whereby appellant, working as Workshop Attendant in Industrial Training Institute, Meerut, was transferred to Industrial Training Institute, Barabanki, on a newly created post of Workshop Attendant, by Director, Training and Employment, U.P., Lucknow. 12. Counsel for appellant contended that original order of appellant’s appointment of 1982 was not available but all subsequent documents show that appointment of appellant was on the post of Workshop Attendant, hence, he could not have been treated to be a Chaukidar. 13. Learned Standing Counsel argued that appellant did not possess requisite prescribed qualification of Workshop Attendant, therefore, he was posted and treated to have been appointed as Chaukidar. 14. In absence of letter of appointment of appellant as Chaukidar and instead having a document on record showing that appellant was made permanent on the post of Workshop Attendant, in our view, there was no occasion to take any other view except that appellant was appointed as Workshop Attendant, but we still proceed to examine whether there was any defect or lack of qualification in the appointment of appellant as Workshop Attendant. 15. We required learned Standing Counsel to show as to what qualification is prescribed for appointment on post of Workshop Attendant in a Government Industrial Training Institute, when matter was heard on 2.1.2018. Learned Standing Counsel failed to place any Rules or Regulations in this regard. Hence, we passed following order on 16.1.2018 : “1. 15. We required learned Standing Counsel to show as to what qualification is prescribed for appointment on post of Workshop Attendant in a Government Industrial Training Institute, when matter was heard on 2.1.2018. Learned Standing Counsel failed to place any Rules or Regulations in this regard. Hence, we passed following order on 16.1.2018 : “1. On 2.1.2018, this Court has passed following order : “1.Petitioner-appellant’s claim to allow him to function as Workshop Attendant was denied on the ground that he did not possess requisite qualification to function as Workshop Attendant. 2. Let respondent No. 3 file an affidavit within ten days from today bringing on record relevant provisions showing as to what is the qualification prescribed for appointment on the post of Workshop Attendant in a Government Industrial Training Institute. 3. List thereafter.” 2. However, neither respondent No. 3 has filed any affidavit, as directed above, nor any reason has been conveyed as to why said affidavit has not been filed. 3. In view thereof, we have no option but to direct respondent No. 3 to appear before this Court on 5th February, 2018 alongwith requisite rules etc. showing qualification prescribed for appointment on the post of Workshop Attendant in a Government Industrial Training Institute. 4. List this matter on 5th February, 2018. 5. A copy of this order shall be communicated to the learned Chief Standing Counsel by day after tomorrow for communication to the concerned respondent and compliance.” 16. No such rules were brought to our notice, hence, by order dated 16.1.2018 we directed respondent 3 to appear alongwith relevant documents showing qualifications prescribed for the post of Workshop Attendant in Government Industrial Training Institute. 17. On 5.2.2018, Sri Ashok Kumar, Principal, Government Industrial Training Institute, Naini, Allahabad appeared and filed an affidavit placing on record copy of U.P. Government Industrial Training Institute (Workshop Attendant and Store Attendant) Service Rules, 1998 (hereinafter referred to as ‘Rules, 1998’) published by Notification dated 28.7.1998. Rule 2 of Rules 1998 makes it clear that aforesaid Rules were enforced with immediate effect. Thus, aforesaid Rules are prospective. The aforesaid Rules are not applicable to appellant, since, he was already appointed before enforcement of aforesaid Rules. Rule 2 of Rules 1998 makes it clear that aforesaid Rules were enforced with immediate effect. Thus, aforesaid Rules are prospective. The aforesaid Rules are not applicable to appellant, since, he was already appointed before enforcement of aforesaid Rules. It has also stated in para 8 of affidavit that as per Recruitment Rules, after 31.12.1995, Educational/Technical qualification was prescribed and according to it, educational qualification upto High School or equivalent alongwith Technical qualification of passing examination of National Trade Certificate became mandatory for Workshop Attendant. It is said that appellant did not possess technical qualification as per the recruitment rules. 18. However, Principal has simultaneously brought on record order dated 2.2.1996 issued by Director, Training and Employment, U.P., Lucknow addressed to all Principals etc. of Government Industrial Training Institutes, referring to its letter dated 9.11.1993. It was said therein that those employees, whose regular appointments as Workshop Attendant/Store Attendant had been made up to 31.12.1995, in their cases, condition of their passing ITI Examination, was being cancelled. Such employees who have completed satisfactory service shall be made permanent forthwith. It further says that after 31.12.1995 only those employees shall be appointed on regular basis as Workshop Attendant/Store Attendant, who have technical qualification. The relevant extract of order dated 2.2.1996 reads as under: ^^bl lEcU/k esa lwfpr djuk gS fd ftu deZpkfj;ksa dh fu;fer fu;qfDr;ka dk;Z'kkyk ifjpj ,oa Hk.Mkj ifjpj ds inksa fnukad 31-12-1995 rd dh tk pqdh gSA muds ekeyksa esa vkbZŒVhŒvkbZŒ ijh{kk mRrh.kZ dh yxkbZ xbZ 'krsZ rRdky izHkko ls lekIr fd;k tkrk gSA ,sls fu;fer deZpkfj;ksa ftUgksaus larks"ktud lsok iw.kZ dj yh gksA rks mUgsa dk;Z'kkyk ifjpj@Hk.Mkj ifjpj ds LFkk;h inksa rRdky LFkk;h dj fn;k tk;sA mDr ds vfrfjDr vkidks ;g funsZ'k fn;s tkrs gS fd fnukad 31 fnlEcj 1995 ds i'pkr dk;Z'kkyk ifjpj@Hk.Mkj ifjpj ds fjDr inksa ij mUgha vH;kfFkZ;ksa dh fu;fer fu;qfDr;ka dh tk;s tks fuEufyf[kr 'kSf{kd@izkfof/kd ;ksX;rk j[krs gks %& ¼1½ 'kSf{kd ;ksX;rk % gkbZLdwy ;k mlds le{k mRrh.kZA ¼2½ izkfof/kd ;ksX;rk % fdlh izkfof/kd O;olk; esa vf[ky Hkkjrh; O;lkf;d ijh{kk mRrh.kZA** “In this regard, it is to intimate that the conditions of qualifying I. T. I. Examination is abolished with immediate effect in case of such employees, who have been regularly appointed upto 31.12.1995 on the post of Workshop Attendant and Store Attendant. Such regular employees, who have completed satisfactory service, be immediately confirmed on the permanent post of Workshop Attendant/Store Attendant. Such regular employees, who have completed satisfactory service, be immediately confirmed on the permanent post of Workshop Attendant/Store Attendant. In addition to the above, you are hereby directed that after 31st December 1995, only such candidates be regularly appointed on the vacant post of Workshop Attendant/Store Attendant, who possess following education/technical qualification : (i) Educational Qualification : Passed High School or equivalent thereto. (ii) Technical Qualification : Passed National Trade Certificate in any technical trade.” (English Translation by Court) 19. The aforesaid letter also nowhere refers to any statutory Rules contemplating Technical qualification for appointment on the post of Workshop Attendant. So far as appellant is concerned, it is evident that he was appointed as Workshop Attendant in 1982 and continued to work as such. He was made permanent by order dated 7.3.1996 with effect from 1.10.1993. This order, passed by competent authority i.e. Principal of Institute, was never revoked or cancelled or set aside by any competent authority. Rules of 1998 are prospective and have no application to the case of appellant. In these circumstances, to suggest that appellant/petitioner did not possess requisite Technical qualification under Rules and was not qualified for appointment on post of Workshop Attendant, is patently erroneous, illegal and has no foundation or basis or support of any statutory provision. On the contrary, it is evident that appellant was appointed as Workshop Attendant and that being so, merely because at the time of appointment, pay-scale to Workshop Attendant/Store Attendant was same as Chaukidar, appellant could not have been shifted to the post of Chaukidar on which he was never appointed, moreso on account of the fact that subsequently post of Chaukidar has come in inferior scale than that of Workshop Attendant. 20. In view thereof, directions of respondents to allow appellant to work as Chaukidar, is patently unfounded, baseless and cannot be sustained. 21. Appeal is, accordingly, allowed. Judgment dated 12.5.2010 is hereby set aside. Respondents are directed to treat appellant as Workshop Attendant throughout and whatever deficient salary has been paid, that shall be computed in the pay-scale of Workshop Attendant and whatever arrears comes, shall be paid to appellant. It is also not in dispute that appellant has already retired on attaining age of superannuation in 2012 and has also died and substituted by legal heirs, therefore, the said payment shall be made to legal heirs of deceased-employee. It is also not in dispute that appellant has already retired on attaining age of superannuation in 2012 and has also died and substituted by legal heirs, therefore, the said payment shall be made to legal heirs of deceased-employee. The appellant shall also be entitled to cost which we quantify to Rs. 25000/-.