The appellant is aggrieved by that part of the order which, according to him, the learned Single Judge did not decide. According to the appellant, the controversy involved in the writ petition was cancellation of the first promotional pay scale and reduction to a lower pay scale. This issue, it is submitted, has not been decided. Apart from that, it is submitted that the impugned order cancelling the first promotional pay scale was passed without giving an opportunity of hearing to the appellant.
2. We may now refer to some facts relevant for deciding the controversy involved in the matter. The appellant was appointed as Foreman in the pay scale of Rs.400-750, which was subsequently revised to Rs.1600-2600 in the year 1986 and thereafter to Rs.5000-8000 in the year 1996. The appellant, on 14.07.1997 was granted the benefit of one increment after 10 years in the pay scale of Rs.1600-2600.
3. There are no promotional posts in the Department in which the appellant is serving, though there are similar posts in other Departments. The appellant was granted one increment after 10 years in the pay scale of 1600-2600 by order dated 22.07.1997. By order dated 27.1.1999 with effect from 01.03.1995 after completion of 14 years of service, the appellant was granted first promotional pay scale of Rs.1640-2900. The petitioner made representation and was granted the promotional pay scale of Rs.2200-4000. The Director, Horticulture and Food Processing, by order dated 1.7.2002 cancelled the first promotional pay scale and reduced it to Rs.1640-2900 and consequently also sought recovery of the amount paid in excess.
4. The appellant is working in the Department of Horticulture and Food Processing. Earlier this department was part and parcel of the Department of Agriculture and later on, it has been separated from the Agriculture Department. There are promotional pay scales from the post of Foreman in the Agriculture Department.
5. The appellant further states that in the Department of Horticulture and Food Processing, there were two departments (cadres), namely; (i) Plain Cadre and (ii) Hill Cadre. The appellant was admittedly appointed to the post of Foreman in the Plain Cadre.
6. The U.P. Horticulture and Food Processing Subordinate Service Rules, 1993 (hereinafter referred to as '1993 Rules') have been framed by the Governor under the proviso to Article 309 of the Constitution of India. Rule 4 thereof, provides for two cadres namely, Hill and Plain. Appendix-A, which relates to the Plain cadre provides for four posts of Electrical and Mechanical Foreman in the pay scale of Rs.1600-2600 under the Engineering Section. Similarly, Appendix-B, which relates to the Hill cadre provides for two posts of Electrical & Mechanical Foreman in the pay scale of Rs.1600-2600. It also provides for one post of Junior Engineer (Civil) in the pay scale of Rs.1400-2300.
7. The U.P. Horticulture and Food Processing Group-B Service Rules, 1993 (hereinafter referred to as 'the Group-B Rules') have also been framed by the Governor under the proviso to Article 309 of the Constitution of India. Rule 4 thereof, provides for two cadres, namely, Plain and Hill. Appendix-A, which relates to Plain cadre does not contain any post under the Engineering Section. Appendix-B, which relates to Hill cadre provides for a post of Assistant Engineer in the pay scale of Rs.2200-4000. Rule 5 thereof, which provides for source of recruitment under category-F, which relates to engineering, provides for promotion to the tune of 50% from amongst substantively appointed Foreman (Electrical, Mechanical and Refrigeration) or Junior Engineer (Civil) belonging to subordinate service who have completed 5 years continuous service by the U.P. Public Service Commission. 50% posts have to be filled up through direct recruitment by the competitive examination by the U.P. Public Service Commission.
8. The persons belonging to the Hill cadre were posted in 8 districts of erstwhile Uttar Pradesh and after creation of State of Uttarakhand, these posts have been allocated to the State of Uttarakhand. The State of Uttarakhand came into being on 9th November, 2000. The appellant claimed his entitlement to the promotional post in the pay scale of Rs.2200-4000 w.e.f. 01.03.1995.
9. The appellant in the writ petition had prayed for various reliefs, which included quashing of the order dated 01.07.2002 cancelling the promotional pay scale granted to him in the pay scale of Rs.2200-4000, revised pay scale of which is Rs.8000-13500 and placing the appellant in the pay scale of Rs.1640-2900 including the order for making recovery from the salary of the appellant. Prayer clause-b seeks a writ of mandamus to restore the promotional pay scale of Rs.2200-4000 to the appellant and consequent pay scale pursuant to pay revision.
10. A learned Single Judge, by the impugned judgment and order, was pleased to note the submission of the learned counsel for the writ petitioner that in spite of the fact that the writ petitioner was fully eligible for promotion to the post of Assistant Engineer from the post of Foreman, the opposite parties had not considered the case of the writ petitioner for promotion to the post of Assistant Engineer. Further submission noted by the learned Single Judge was that the interest of justice would suffice, if the respondents are directed to consider the case of the writ petitioner for promotion to the post of Assistant Engineer in accordance with the Government Orders dated 05.02.1997 and 02.12.2000, to which learned Standing Counsel gave no objection. Accordingly, the direction was so issued. As may be pointed out and as per the grievance made by the appellant, the main relief for quashing the order cancelling his promotional pay scale, was not considered. The learned Single Judge, further directed that no recovery shall be made against the writ petitioner in pursuance to the order dated 01.07.2002.
11. The stand of the respondents-State is that the writ petitioner was not eligible for the pay scale of Rs.2200-4000, as there was no promotional post in the Plain Cadre carrying the said pay scale. It is their contention that in terms of the Government Order dated 05.02.1997, in case where there is no such promotional post available, the employee is entitled to the next higher pay scale, which the appellant has been granted.
12. At the hearing of the appeal, on behalf of the appellant, learned counsel has made the following submissions:-
(i). It is submitted that the order dated 01.07.2002, cancelling the promotional pay scale of Rs.2200-4000 and reducing to the pay scale of Rs.1640-2900, suffers from vice of arbitrariness as the appellant was not given any opportunity to show cause as to why the order should not be withdrawn considering that the appellant had been given the said pay scale on 27.01.1999 and continued to draw salary in the said pay scale until the order dated 01.07.2002 was passed.
(ii). It is next submitted that the Department of Horticulture was earlier part and parcel of the Department of Agriculture and in the Department of Agriculture, there are promotional posts from the post of Foreman, which carries the pay scale of Rs.2200-4000. It is the submission of the learned counsel for the appellant that a fortuitous circumstance of the appellant being in the Department of Horticulture should not deprive the appellant of the pay scale to which he is entitled to merely because in his Department, there is no promotional post.
(iii) It is next submitted that though the appellant belongs to the Plain Cadre in terms of 1993 Rules, nonetheless insofar as the Group-B Rules are concerned, there was no bar on a person from the Cadre for being considered for promotion to the Hill cadre, considering that the rules are common rule and Rule-5 provides for promotion of persons belonging to subordinate service. The appellant belongs to subordinate service and consequently, he ought to have been granted promotional pay scale of Rs.2200-4000.
(iv) It is also submitted that once there are promotional posts in the government service, though not in the appellant's department, then to that extent G.O. Dated 05.02.1997 would not be applicable, as that would only be applicable in the event there is no promotional post and in that event only, an employee would be entitled for the next higher pay scale and not the promotional pay scale.
13. We have heard learned counsel for the parties.
In our opinion, on the first ground itself, the writ petition ought to be allowed. It is the respondents, who after considering the case of the appellant had given him the promotional pay scale of Rs.2200-4000 considering that at the relevant time, in the Department of Horticulture in Hill Cadre, the promotional post from the Foreman carries the pay scale of Rs.2200-4000. The order to the extent that it did not give any opportunity to the appellant to show cause as to why his promotional pay scale ought not to be reduced, is violative of Article 14 of the Constitution of India, as it affects the appellant's civil right. The appellant ought to have been given an opportunity of being heard. We are clearly of the opinion that the order to that extent is liable to be set aside, as it results in civil consequences.
14. Be that as it may, the question is whether the respondents were right in granting the pay scale of Rs.2200-4000 to the appellant. In the first instance, we may note that the appellant under 1993 Rules is working in the Plain Cadre. In the Plain Cadre, there is no promotional pay scale, though in the Hill Cadre there were promotional pay scales. The appointment to the post in the Hill Cadre was from the subordinate service, which includes the appellant's service. In other words, there was a promotional post, which carried the pay scale of Rs.2200-4000. Apart from that, in the Department of Agriculture from which the Department of Horticulture was bifurcated, there were promotional posts of Foreman, which carry the pay scale of Rs.2200-4000. In other words, it is not a case, where there was no promotional post, though in his Cadre, i.e. Plain Cadre, there was none. Once in respect of similar post in other Departments, there are promotional avenues, which include the appellant's own Department, as it stood on the date the appellant was entitled to be considered, we see no reason as to why the appellant should be denied the benefit of promotional pay scale of Rs.2200-4000. In spite of that, the appellant was reduced to the pay scale of Rs.1640-2900, which was next promotional pay scale from the post carrying pay scale of Rs.1600-2600. We are clearly of the opinion that the appellant, who is eligible for promotion to the next promotional post, cannot, in the guise that there is no promotional post, be denied the benefit of next higher pay scale. On this count, the writ petition deserves to be allowed.
15. The third question, which arises for consideration, is whether the appellant was eligible for consideration to the higher pay scale in the Hill Cadre though he belonged to the Plain Cadre. As has been pointed out, under the Group-B Rules, promotion was from the subordinate service. The appellant was holding a post of subordinate service. The appellant was eligible for being considered and, therefore, for being promoted though in the Hill Cadre. Once the appellant was eligible to be considered for the next promotional pay scale, which was Rs.2200-4000, the subsequent allocation of post to the State of Uttarakhand would not come in way at all. The case has to be considered in the context as to on the date of the appellant's eligibility, was there any promotional avenue. In our opinion, there was and once, that be the case, we see no reason as to why the appellant was not considered and granted the promotional pay scale. In our opinion, on this count also, the writ petition deserves to be allowed.
16. Considering the above, the impugned order of the learned Single Judge is modified to that extent. The appellant-writ petitioner's petition is allowed in terms of prayer clauses-A and B. The respondents are directed to comply with the directions, at any rate, not later than three months from today.
17. The appeal is allowed, accordingly. No order as to costs.
Dt/-22.09.2010 RKK/-
(F.I. Rebello, CJ) (Pradeep Kant, J) Hon'ble Ferdino I. Rebello, CJ.
Hon'ble Pradeep Kant, J.
Allowed.
For orders, see order of date passed on separate sheets.
Dt/-22.09.2010 RKK/-(S.A.682/10) (F.I. Rebello, CJ) (Pradeep Kant, J) Civil Misc. Application No.97370 (C) of 2010 In:
Special Appeal No.682 of 2010 Maya Ram Yadav Vs. State of U.P. & Another.
Hon'ble F.I. Rebello, CJ.
Hon'ble Pradeep Kant, J.
This is an application for condoning the delay in filing the appeal.
Considering the cause shown in the affidavit filed in support of the application for condonation of delay, the delay in filing the appeal is condoned. Application stands allowed.
Office to register the appeal.
Order Date:-22.9.2010 RKK/-