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2019 DIGILAW 510 (UTT)

MUKESH BAILWAL v. STATE OF UTTARAKHAND

2019-09-20

ALOK KUMAR VERMA, RAMESH RANGANATHAN

body2019
JUDGMENT Ramesh Ranganathan, C.J. (Oral) This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No. 3560 of 2017 and batch dated 14.08.2019. 2. The appellants-writ petitioners invoked the jurisdiction of this Court seeking the benefit of the minimum of the pay-scale of the post of Junior Assistant, which they claim they are entitled to. Relying on the judgment of the Supreme Court, in State of Punjab and others v. Jagjit Singh and others : (2017) 1 SCC 148 , the learned Single Judge allowed Writ Petition (S/S) No. 3560 of 2017, by his order dated 14.12.2017, at the stage of admission. 3. In his order, in Writ Petition (S/S) No. 3560 of 2017 dated 14.12.2017, the learned Single Judge recorded that the learned counsel for the respondents did not dispute that the facts, which had been brought out in the Writ Petition, were covered by the decision of the Supreme Court in State of Punjab and others v. Jagjit Singh and others : (2017) 1 SCC 148 . Thereafter, the learned Single Judge observed that, since the Writ Petition could be decided on law point only, it was being decided at the stage of admission with the consent of the learned counsel for the parties with a direction to the second respondent to grant minimum of the pay-scale of the post of Junior Assistant to the appellants-writ petitioners. 4. 4. A recall application was filed, in Writ Petition (S/S) No. 3560 of 2017, along with an affidavit, wherein it is stated that, while the counsel was present at the time of arguments at the stage of admission, the Court had, because of some mis-communication, mentioned that the counsel for the University did not dispute the fact that the matter was covered by the judgment of the Supreme Court; in State of Punjab and others v. Jagjit Singh and others : (2017) 1 SCC 148 , there is not even a whisper regarding extension of the benefit of the minimum of the pay-scale to employees engaged through outsourcing agencies; since the appellants-writ petitioners were engaged through outsourcing agencies, they were not entitled to get the minimum of the pay-scale in the light of the judgment of the Supreme Court in State of Punjab and others v. Jagjit Singh and others : (2017) 1 SCC 148 ; in State of Punjab and others v. Jagjit Singh and others : (2017) 1 SCC 148 it was held that contractual employees/ad-hoc employees were entitled to get the minimum of the pay-scale, after scrutiny of the fact whether they were contractual employees discharging the same duties; and, in the present case, the employees who were working with the respondent-University were engaged through an outsourcing agency and were, therefore, not entitled to the benefit of the minimum of the pay-scale of the post of Junior Assistant. 5. While the submission of Mr. Shailendra Nauriyal, learned counsel for the respondent-University, that the judgment of the Supreme Court, in State of Punjab and others v. Jagjit Singh and others : (2017) 1 SCC 148 , would not apply to employees engaged through outsourcing agencies, cannot be said to be without merit, it would be inappropriate for us, in an intra-Court appeal preferred against the order passed by the learned Single Judge recalling the earlier order, to expresss any opinion on merits. 6. 6. By the order under appeal, the learned Single Judge has recalled the earlier order on the ground that the Writ Petition was disposed of at the stage of admission; the burden to make payment lay with the State Government; by merely sending a recommendation, the University could not defeat the claim of the State Government to contest the Writ Petition; the recall application was filed on the ground that the order, recall of which was sought, was passed under a mis-conception; the fact remained that a counter-affidavit was not called at the time of granting the relief as prayed for; and, while deciding the Writ Petition, no reasonable opportunity was granted to the respondents by the co-ordinate Bench. The recall application was allowed, and the earlier order was recalled. Aggrieved thereby, the present Special Appeal. 7. Mr. Amar Murti Shukla, learned counsel for the appellants-writ petitioners, would submit that, while the Writ Petition was no doubt disposed of at the stage of admission on the date of its first listing, and the respondents were not afforded an opportunity to file their counter-affidavit, the order passed in the Writ Petition was on a question of law; the respondents had not disputed that the subject matter of the Writ Petition was covered by the judgment of the Supreme Court in State of Punjab and others v. Jagjit Singh and others : (2017) 1 SCC 148 ; the learned Single Judge had also recorded the consent of the counsel for the parties for the disposal of the Writ Petition on the question of law; and, since the Writ Petition was disposed of with the consent of the counsel for the parties, the recall application should have been dismissed as not maintainable. 8. The question which fell for consideration in the Writ Petition was whether employees, engaged through an outsourcing agency, were entitled to be granted the minimum of the pay-scale of the post of Junior Assistant, and other regular posts, in the respondent-University. 8. The question which fell for consideration in the Writ Petition was whether employees, engaged through an outsourcing agency, were entitled to be granted the minimum of the pay-scale of the post of Junior Assistant, and other regular posts, in the respondent-University. In the recall application, the respondent-University has specifically stated that the judgment of the Supreme Court, in State of Punjab and others v. Jagjit Singh and others : (2017) 1 SCC 148 , related to employees engaged on a contractual or on an ad-hoc basis, and did not relate to employees engaged through outsourcing agencies; in State of Punjab and others v. Jagjit Singh and others : (2017) 1 SCC 148 , the Supreme Court has recorded a finding that the duties and responsibilities, discharged by temporary employees in the case before it, were the same as were discharged by regular employees; and this was a question of fact which could only have been decided after a counter affidavit was filed. The learned Single Judge was, in our view, justified therefore in recalling the order passed by the learned Single Judge earlier allowing the Writ Petition at the stage of admission, without giving the respondent-State and the University an opportunity of filing their counter-affidavits. 9. In this context, it is also necessary to note that the financial burden of making payment, of the minimum of the pay-scale in the post of Junior Assistants and other regular posts, to the appellants-writ petitioners, would fall on the public ex-chequer, for it is only from out of the funds sanctioned by the State Government, can payment be made to the applicants by the University. As the applicability of the judgment of the Supreme Court, in State of Punjab and others v. Jagjit Singh and others : (2017) 1 SCC 148 , is itself put in issue and it does appear that the question, whether the appellants-writ petitioners were discharging the same functions as were being discharged by regular employees of the respondent-University, necessitated examination in the Writ Petition, before the relief sought for could be granted, we are satisfied that the learned Single Judge was justified, in the facts and circumstances of the present case, in recalling the order, and in giving the respondents an opportunity of filing their counter affidavit. 10. 10. In an intra-Court appeal, under Chapter VIII Rule 5 of the Allahabad High Court Rules, interference is justified only if the order under appeal suffers from a patent illegality. We find no such infirmity in the order under appeal necessitating interference. 11. Mr. Amar Murti Shukla, learned counsel for the appellants-writ petitioners, would submit that, despite time having been granted by the learned Single Judge, the respondents are yet to file their counter-affidavits. 12. Both Mr. Shailendra Nauriyal, learned counsel for the respondent-University and Mr. B.S. Parihar, learned Standing Counsel for the State Government, submit that their respective counter-affidavits shall be filed latest by 15.10.2019. 13. Suffice it, while dismissing the Special Appeal, to observe that it is open to the learned counsel for the appellants-writ petitioners, any time after 15.10.2019, to request the learned Single Judge to take up the Writ Petition for admission and hearing; and it would then be open to the learned Single Judge to decide the Writ Petition on its merits, even if no counter-affidavit is filed by the respondents by then. 14. The Special Appeal fails and is, accordingly, dismissed. No costs.