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2022 DIGILAW 142 (UTT)

Chandan Singh Jeena v. State of Uttarakhand

2022-06-15

SHARAD KUMAR SHARMA

body2022
JUDGMENT : A set of six Instructors, including the Junior Instructors, who were working in the Government Industrial Training Institutions respectively, situated at Pines, Nainital, District Nainital, had earlier preferred a writ petition, before this Court being Writ Petition (S/S) No. 1136 of 2006, Prakash Chandra Arya and others Vs. State of Uttarakhand and another, wherein, the petitioners therein have contended, that the ITI concerned, in which they were working, and as it was established as back as in the year 1955, by the then State of Uttar Pradesh, now presently falling within the territorial jurisdiction of the State of Uttarakhand, they have contended that the Department of Labour and Employment, had fixed different pay-scales, which were made payable to the Instructors ever since 1996, and at that relevant point of time, the petitioners contended that they were getting a pay-scale of Rs. 3200-4900/-, though their counterparts in other IITs were being paid with the higher pay-scale of Rs. 5800-8000/-. Hence, they contended that there was a disparity of payment of the pay scale which was payable to them with effect from 1st January 1996, as it was made admissible to the other similarly placed ITI of the State. 2. At that relevant point of time, when the writ petition was preferred on 11.10.2018, petitioner Nos. 1 & 3, who were appointed as Instructors in the Government Industrial Training Institute, Pines, Nainital, were in services, whereas petitioner No. 2, had already been retired from his services way back in 2013. 3. The coordinate Bench of this Court, in a judgement rendered on 4th May 2012, rendered in Writ Petition (S/S) No. 1136 of 2006, in which the petitioners were also one of the petitioners of the said writ petition being petitioner No. 2, 1 & 5 respectively therein, ought to have been extended with the same benefit in view of a writ of mandamus, which was issued by the judgement dated 4th May 2012, as observed in the operative portion of the judgement, rendered by the coordinate bench of this Court, which is extracted hereunder:- “5. A mandamus is issued to the State Government to give forthwith the pay-scale of Rs. 5000-8000/- to the petitioners, as being increased by the State Government from time to time including all the arrears on the said pay-scale within a period of three months from today.” 4. A mandamus is issued to the State Government to give forthwith the pay-scale of Rs. 5000-8000/- to the petitioners, as being increased by the State Government from time to time including all the arrears on the said pay-scale within a period of three months from today.” 4. Since the said judgment was not complied with, and since the same was not made effective, one of the petitioners therein i.e. the petitioner in the Writ Petition (S/S) No. 1136 of 2006, Mr Abhay Kumar Shrivastava, was constrained to file a writ petition being Writ Petition (S/S) No. 88 of 2016, which came up for consideration before the coordinate bench of this Court, and the co-ordinate bench of this Court, while considering the stand taken by the respondents in their counter affidavit disposed of the writ petition, with the directions to the State of Uttar Pradesh, to grant the benefit of the pay scale of Rs. 5800-8000/- with effect from 1st January 1996, till the creation of the State of Uttarakhand, and all other dues, as admissible under law. The relevant observations which had been made by the coordinate Bench of this Court vide its judgement dated 3rd May 2017, is extracted hereunder:- “It has come in the counter of the State of Uttarkahand that the petitioner has been paid his dues w.e.f. 9.11.2000 but between 1.1.1996 till 8.11.2000, it is to be paid by the State of Uttar Pradesh. Accordingly, the petition is disposed of with the direction to the State of Uttar Pradesh to grant the benefit of pay scale of Rs.5000-8000 to the petitioner w.e.f. 1.1.1996 till 8.11.2000 within ten weeks from today.” 5. Based on the aforesaid judgement, the learned counsel for the petitioner had, in para 13 and 14 of the writ petition has pleaded, that the directions, as given by the coordinate Bench of this Court rendered in Writ Petition (S/S) No. 88 of 2016, which was based upon an earlier judgement, which was rendered in Writ Petition (S/S) No. 1136 of 2006, Mr Abhay Kumar Shrivastava, has already been extended with the benefit of the revision of the pay-scale of Rs. 5000-8000/-, which has been made applicable in his case with effect from 1st January 1996, though the present petitioners have been deprived of the same despite the fact that they too stand on the same footing. 6. 5000-8000/-, which has been made applicable in his case with effect from 1st January 1996, though the present petitioners have been deprived of the same despite the fact that they too stand on the same footing. 6. In response to the pleadings, as it has been raised by the petitioners in para 13 and 14 of the writ petition, if the counter affidavit, as it has been preferred by respondent No. 2, under the affidavit of Major Yogendra Yadav, the then Director of Social Welfare Department, Uttarakhand, Haldwani, District Nainital, if that is taken into consideration, in fact, there was no specific denial with regards to the averments which had been made by the petitioner in para 13 and 14 of the writ petition, as would be apparent from the contents of para 15 and 16 of the counter affidavit. 7. The learned Standing Counsel for the State, while opposing the present writ petition, had submitted, that the petitioners would not be entitled for being paid with the payscale of Rs. 5000-8000/-, with effect from 1st January 1996, owing to the stand which had been taken by them in their counter affidavit in para 11, wherein they have referred, that the admissibility of the said pay-scale since had been made effective with effect from 9th November 2000, in pursuance to the Government Order dated 7th December 2012, the petitioner would not be entitled for the payment of the increased pay-scale, as claimed by them with effect from 1st January 1996, rather, if at all, there was any entitlement for them, it would be with effect from the date as referred in the Government Order dated 7th December 2012. 8. The respondents submitted, that since the petitioners have not given challenge to the Government Order dated 7th December 2012, they would not be entitled for the grant of scale of Rs. 5000-8000/-, with effect from 1st January 1996. 8. The respondents submitted, that since the petitioners have not given challenge to the Government Order dated 7th December 2012, they would not be entitled for the grant of scale of Rs. 5000-8000/-, with effect from 1st January 1996. This disparity, which the learned Standing Counsel for the State, has tried to press upon while opposing the writ petition is not acceptable by this Court, for the reason and logic being, that when the co-ordinate Bench of this Court has already rendered the judgement dated 3rd May 2017, in fact, the Government Order dated 7th December 2012, was pre-existing at that point of time, and in fact, the stand taken in judgement, which had been rendered on 3rd May 2017, as well as that of 4th May 2012 in Writ Petition (S/S) 1136 of 2006, in fact, in these cases too the petitioners of each of the writ petitions had never sought to put a challenge to the Government Order dated 7th December 2012, which has been referred to in para 11 of the counter affidavit. 9. Hence, at this belated stage, and particularly, under the changed circumstances, when in pursuance to the judgement rendered on 4th May 2012, in Writ Petition (S/S) No. 1136 of 2006, and the judgement rendered on 3rd May 2017, in Writ Petition (S/S) No. 88 of 2016, in relation to Mr Abhay Kumar Srivastava, who was similarly placed as the co-petitioner, of the petitioner in Writ Petition (S/S) No. 1136 of 2006, no disparity, as such, could now be artificially created by the learned Standing Counsel in view of the averments, which he has made in para 11 of the counter affidavit, with the logic of due to lack of challenge given to the Government Order dated 7th December 2012, because it was not a stand which was ever taken by the learned Standing Counsel in the earlier phases of litigation before the Court, when the writ of mandamus was issued to the respondents for the payment of scale of Rs. 5000-8000/-, to the petitioner/Instructors and the Joint Instructors, working in their respective ITIs, this new exception, which has been carved out by the learned Standing Counsel, for the first time, now in the present writ petition, in order to deny the benefit of the payment of the enhanced pay scale of Rs. 5000-8000/-, to the petitioner/Instructors and the Joint Instructors, working in their respective ITIs, this new exception, which has been carved out by the learned Standing Counsel, for the first time, now in the present writ petition, in order to deny the benefit of the payment of the enhanced pay scale of Rs. 5000-8000/-, in relation to the petitioners herein, who were also the petitioners of the earlier Writ Petition (S/S) No. 1136 of 2006, along with Mr Abhay Kumar Srivastava, in that eventuality, the distinction, which has been sought to be made by the respondents, is not acceptable by this Court. 10. Hence, this writ petition too, would stand allowed in terms of the judgement rendered on 3rd May 2017, in Writ Petition (S/S) No. 88 of 2016, granting the pay scale of Rs. 5000-8000/-, to the petitioner therein, with effect from 1st January 1996 till 8th November 2000 i.e. till the creation of the State of Uttarakhand. 11. Since both the judgements i.e. the judgement dated 4th May 2012, and 3rd May 2017, as rendered in the two writ petitions, had attained finality, since the State has not preferred any Special Appeal, against the two judgments, and rather to the contrary, they had proceeded to extend the benefit to the petitioner of (S/S) No. 88 of 2016, in that eventuality, the petitioners’ case would fall to be well within the zone of consideration, as per the principles already complied with by the respondents in view of the judgement dated 3rd May 2017, and the benefit, which has been extended to Mr Abhay Kumar Srivastava, since the petitioners are placed on a common pedestal, as that of Mr Abhay Kumar Shrivastava, the petitioners too would be entitled for the grant of the same increased pay scale of Rs. 5000-8000/-, with effect from 1st January 1996, till the creation of the State of Uttarakhand i.e. till 8th November 2000. The respondents would ensure to comply with the same as per the time schedule, as it has been prescribed in the judgement dated 3rd May 2017, including the payability of arrears as a consequence of an escalation of their pay-scale, as the consequence of this judgment, and the two judgments referred hereinabove. 12. The respondents would ensure to comply with the same as per the time schedule, as it has been prescribed in the judgement dated 3rd May 2017, including the payability of arrears as a consequence of an escalation of their pay-scale, as the consequence of this judgment, and the two judgments referred hereinabove. 12. Accordingly, this writ petition too would stand disposed of in terms of the judgement dated 4th May 2012, to be read with the judgement dated 3rd May 2017, rendered in Writ Petition (S/S) No. 88 of 2016, and the respondents are hereby directed by way of writ of mandamus to do the needful within a period of 10 weeks from today. 13. Subject to the aforesaid, the writ petition stands allowed. A writ of mandamus is issued to the respondents, to pay the scale of Rs. 5000-8000/-, to the petitioners with effect from 1st January 1996, till 8th November 2000, as directed by the judgement rendered by the coordinate Benches of this Court. Accordingly, the writ petition stands disposed of.