(Oral)
1. Heard the learned counsel for the petitioner.
2. The petitioner alleges willful disobedience of the judgment and order dated 26.10.2016 passed in Writ Petition No. 25302 (S/S) of 2017 (Jyoti Nath Srivastava Vs. State of U.P. Through Principal Secretary, Irrigation Department, Lucknow and others). The order passed by this Court on 26.10.2017 is being quoted herein below:-
"Heard.
Let the petitioner's representation with regard to promotional pay scale from the date his junior have been granted the same but the same was not granted to him on account of non-inclusion in the seniority list, be considered and decided by reasoned and speaking order in accordance with law within three months from the date of submission of such representation. If, the petitioner is still aggrieved, he may approach the U.P. Public Services Tribunal in this regard.
The writ petition is disposed of."
3. The petitioner was given notional promotion w.e.f. 15.03.1999 on the post of Divisional Senior Clerk in the pay scale of Rs. 4000-6000 on 06.04.2018, in compliance of the orders passed by this Court. The petitioner did not challenge this order. He, however, moved a contempt petition. In the contempt petition itself an objection was filed by him to the compliance affidavit that his juniors Sri Chiraunji Lal and Sri Riyajuddin Siddiqui were being given higher pay scales than him from an earlier date.
4. This Court taking cognizance of the submission made by the learned counsel for the petitioner in its order dated 19.09.2018 directed that the position be clarified by the opposite parties by filing an affidavit as to whether any junior to the petitioner was granted promotional benefits from an earlier date as compared to the petitioner. The appearance of the Engineer-in-Chief, however, was exempted and a direction was issued that some other responsible officer may appear to assist the Court on the next date of listing.
5. When the contempt petition was listed on 04.10.2018, this Court directed that a specific affidavit be filed by the respondents explaining as to how the alleged juniors of the petitioner, namely, Sri Riyajuddin Siddiqui and Sri Chiraunji Lal had been given the benefit of higher/promotional pay scale while the petitioner has not been given the same.
6. In compliance of the order passed by this Court on 04.10.2018, the opposite party no.3 the Engineer-in-Chief, Irrigation and Water Resources filed an affidavit on 22.10.2018 in which in paragraph no.9, it has been stated that the petitioner was engaged on an ad hoc basic on 05.09.1973 on the post of Routine Grade Clerk in accordance with the provisions of Government Order dated 14.05.1979, i.e. the Rules for regularization of ad hoc appointments. The petitioner's regularization was done by an office memorandum dated 20.04.1983 w.e.f. 14.05.1979 i.e. the date of the issuance of the Rules for regularization. Therefore, the seniority of the petitioner has been fixed w.e.f. the said date. In the seniority list issued thereafter the petitioner's name was shown at Serial No.53, but this name was included in the seniority list only after his regularization. Had the petitioner been working regularly w.e.f. 1973 as alleged by him, his name would have found place in the seniority list of junior clerks issued on 31.05.1982. The petitioners name is not mentioned in the seniority list of 31.05.1982. His name has also not been included in the seniority list issued in the year 1988. He has not challenged the seniority list issued in 1982 and 1988.
7. Regarding parity being claimed by the petitioner with Sri Chiraunji Lal, the seniority list of unreserved category persons was examined and the petitioner's name finds place at Serial No.433, while the name of Sri Chiraunji Lal finds place at Serial No. 580, but in pursuance of a Government Order dated 20.08.1983, out of the total sanctioned post of divisional clerks, a prescribed quota was reserved for SC/ST category candidates and reserved category candidates were promoted earlier w.e.f. 01.09.1983. Sri Chiraunji Lal being a reserved category candidate, was promoted earlier to the petitioner and the petitioner cannot claim parity as both the candidates are not similarly or identically situated.
8. With regard to parity being claimed with Sri Riyajuddin Siddiqui, it has been submitted that Sri Riyajuddin Siddiqui was a retrenched employee and was absorbed w.e.f. 24.12.1973 while the petitioner was an ad hoc employee, although retrenched, and was regularized w.e.f. 14.05.1979. After the absorption of Sri Riyazuddin Siddiqui, a seniority list was issued thereafter, in which his name was included while the petitioner's name was not included as he was still working on ad hoc basis and had not been absorbed. The pay scale as was demanded by the petitioner of senior clerk w.e.f. 01.09.1983 could not be given to him, as it was given only to such senior clerks who were substantively holding the post of senior clerks while the petitioner was regularized w.e.f. 14.05.1979, only as Routine Grade Clerk. He was neither eligible nor entitled to claim the pay scale of the post of senior clerk w.e.f. 01.09.1983.
9. The petitioner has filed objections alongwith a supplementary counter affidavit to the affidavit filed by the Engineer-in-Chief. He has referred to some letters sent by the Superintendent Engineer, Nalkoop Mandal II, Faizabad dated 13.07.1995 requesting the Senior Staff Officer (Establishment Section 4 K) Irrigation Department to modify the seniority list issued for Senior Clerks and to include the name of the petitioner showing him to be regularized w.e.f. 05.09.1973. The learned counsel for the petitioner has also pointed out the order dated 30.04.1983, by which the petitioner was regularized which according to him refers to the date of his regularization as 05.09.1973.
10. This Court has carefully perused the order dated 30.04.1983. It only says that the Government has issued a Notification dated 14.05.1979 (i.e. the Regularization of ad hoc Appointment Rules). In terms thereof, the petitioner as well as three other employees were regularized. The dates of their joining the Department as ad hoc employees have been mentioned as 01.01.1965, 05.09.1973, 01.08.1974 and 27.09.1974 respectively for all the four employees.
11. However, on perusal of the order dated 30.04.1983, it is nowhere found that the regularization has been done w.e.f. the date of joining the Department. Even otherwise it could only have been w.e.f. from the date of issuance of the Regularization Rules that is w.e.f. 14.05.1979.
12. Since the petitioner is disputing the date of his regularization and the serial number of the petitioner in the seniority list issued in 1988 and thereafter, such disputed questions of fact cannot be adjudicated upon in contempt jurisdiction.
13. Looking into the fact that this Court by its order dated 26.10.2017 had disposed of the petition without adjudicating on the merits of the case at all, and the petitioner has been given his promotional benefits thereafter by the order dated 06.04.2018, and the difference in the case of the petitioner with Sri Chiraunji Lal and Sri Riyajuddin Siddiqui has been properly explained in the affidavit filed thereafter, this Court finds substantial compliance of the order passed by the Writ Court.
14. No case for willful disobedience of the orders passed by this Court is made out.
15. The contempt petition is dismissed.
Order Date :- 22.1.2019 Ashok Gupta