1. Heard learned counsel for the petitioner and the learned Standing Counsel.
2. The petitioner being aggrieved with the order dated 22.6.2015 passed by the District Magistrate, Gonda, a copy of which has been filed as Annexure-1 to the writ petition, by which the claim of the petitioner for grant of second promotional pay scale has been rejected, is before this Court. A further prayer is for a mandamus directing the respondents to accept the service of the petitioner since 1999 to 31.1.2007 for 9 years as satisfactory service on the basis of the Government Order dated 30.6.1993 and for payment of second promotional pay scale along with arrears.
3. The case set forth by the petitioner is that he was appointed on the post of Regular Collection Amin in Tahsil Sadar, District Gonda on 14.11.1979. The petitioner was given the first promotional pay scale on 1.2.1995. The said promotional pay scale was granted subject to decision of Special Appeal No.83 of 2001. Meanwhile, the petitioner retired on attaining the age of superannuation on 31.1.2007. The pending special appeal was dismissed by the Division Bench of this Court on 29.8.2014. As the petitioner was not given the benefit of second promotional pay scale, he preferred Writ Petition (S/S) No.1384 of 2015 which was disposed of by this Court vide judgment and order dated 2.4.2015 with the direction to the respondent No.2 to reexamine the matter for grant of second promotional pay scale to the petitioner within two months. In pursuance thereof, the claim of the petitioner for grant of second promotional pay scale has been rejected on the ground that his services have not been found satisfactory.
4. Learned counsel for the petitioner, while seeking to challenge the impugned order of rejection dated 22.6.2015, contends that though the petitioner was awarded with major penalty through the order dated 1.7.1998 of withholding of one increment permanently and for not being entitled for any amount except subsistence allowance during the period of suspension, yet taking into consideration the provisions of Paragraph 2(2)(Ya) of the Government Order dated 30.6.1993, a copy of which has been filed as Annexure-3 to the writ petition, which pertains to "satisfactory service", it was the duty of the respondents to consider the case of the petitioner carefully and pass an order for grant of second promotional pay scale. It is further contended that grant of promotional pay scale is governed by the Government Order dated 3.9.2001, a copy of which has been filed as Annexure RA-1 to the rejoinder affidavit which categorically provides that second promotional pay scale is to be granted after completion of 24 years of satisfactory service or from 1.3.2000 whichever is later and the petitioner having satisfactorily completed 24 years of service is entitled for grant of second promotional pay scale and the respondents while rejecting the claim of the petitioner have patently erred in law. Thus, it is prayed that the impugned order dated 22.6.2015 be set-aside with the further direction to the respondents to grant the second promotional pay scale to the petitioner from the date of his entitlement.
5. This Court on 18.4.2019 had passed the following order:-
"By means of this writ petition the petitioner has come to this Court with a grievance that before his retirement he was entitled to second promotional pay scale under the personal promotion scheme after completion of 24 years of satisfactory service.
The petitioner was granted first personal promotion pay scale from 1.12.1995 and the second personal promotion pay scale would be applicable upon 24 years of satisfactory service which the petitioner completed in 2003 having been appointed in 1979. The said second personal promotion pay scale was not given to the petitioner on the ground that the petitioner was awarded punishment and in the year 1998 with the punishment of withholding of one annual increment and the salary for the period of suspension.
Learned counsel for the petitioner argues that in view of the Government Order dated 30.6.1993, after five years from the date of punishment the effect of punishment vain off for consideration satisfactory service.
It is to be noted that personal promotion scheme is a kind of incentive given to the petitioner against stagnation and clear cut contemplation that his service should be satisfactory. So far as, Government Order of 1993 is concerned, it relates entries in the service record for grant of time scale or for retirement purposes as contemplated in Regulation 470 of the Civil Service Regulation. The government order specifically recites the provisions of Regulation 470 of the Civil Service Regulation. The personal promotion scheme is not contemplated under the Regulation 470 of the Civil Service Regulation. Therefore, whether the benefit of 1993 Government Order can be given to the petitioner or not is a question which needs to be clarified. Therefore, learned Standing Counsel prays for and is allowed three weeks' time to file supplementary counter affidavit.
list thereafter."
6. In pursuance thereof, the respondents have filed a supplementary affidavit dated 2.7.2019.
7. Learned Standing Counsel, on the basis of averments contained in the counter affidavit and the supplementary counter affidavit, argues that reliance placed by the learned counsel for the petitioner of the provisions contained in the Government Order dated 30.6.1993 would not be applicable in its entirety as the same only pertain to censure entry and according to the said Government Order the censure entry existing on the character roll of an employee shall be ignored for the purpose of determination of satisfactory service in case nothing adverse such as adverse entry or punishment etc. exists against the said employee in next five years from the date of incident against which the censure entry has been awarded to the said employee. Learned Standing Counsel argues that in the present matter, admittedly, the petitioner has been visited with a major penalty of withholding of one increment permanently. The petitioner also did not prefer any appeal against the said punishment order meaning thereby he has accepted the said punishment order. Thus as the sine qua non for grant of second promotional pay scale in terms of the Government Order dated 3.9.2001 is "satisfactory service" which "satisfactory service" has been defined in the Government Order dated 30.6.1993, consequently it is the prerogative of the employer to consider all aspects of the matter and pass an order in this regard as provided in Paragraph 2(2)(Ya) of the Government Order dated 30.6.1993. It is also contended that the competent authority has considered all aspects of the matter but considering that the petitioner has been imposed with a major penalty, consequently his services do not fall within the ambit of "satisfactory service" so as to entitle the petitioner for grant of second promotional pay scale. Thus it is contended that there is no illegality or infirmity in the impugned order dated 22.6.2015 and the same merits to be affirmed.
8. Heard learned counsel for the contesting parties and perused the record.
9. From a perusal of record, it is clear that the petitioner has been visited with a major penalty. The Government Order dated 3.9.2001, which pertains to grant of promotional pay scale, specifically provides that the second promotional pay scale is to be granted after completion of 24 years of satisfactory service. The words "satisfactory service" have been explained in the Government Order dated 30.6.1993. As per the said Government Order dated 30.6.1993, the case of the petitioner would fall within the ambit of Paragraph 2(2)(Ya) which specifically provides that in case there is any major penalty against an employee then evaluation of satisfactory service is to be done by the competent authority on the basis of service record and appropriate decision is to be taken accordingly.
10. From a perusal of the order dated 22.6.2015, it comes out that the competent authority has considered all aspects of the matter but rejected the claim of the petitioner on the ground that as the petitioner has been punished with a major penalty of withholding of one increment permanently and for not being entitled for payment of any amount except subsistence allowance during the period of suspension, as such, he has not completed satisfactory service so as to render the petitioner eligible for being granted the second promotional pay scale. The order dated 22.6.2015 being based on objective satisfaction of the competent authority on the basis of material on record, is in full conformity with the Government Order dated 30.6.1993 more particularly paragraph 2(2)(Ya) of the said Government Order. In this view of the matter, this Court does not find any illegality or infirmity in the impugned order dated 22.6.2015 by which the claim of the petitioner for grant of second promotional pay scale has been rejected.
11. Consequently, the writ petition being misconceived, is dismissed.
Order Date :- 26.8.2019 Rakesh (Abdul Moin, J.)