Court No. - 13
Case :- WRIT - A No. - 3416 of 2008 Petitioner :- Rajendra Bharti Respondent :- State Of U.P. And Others Counsel for Petitioner :- Vatsal Srivastava,Sanjay Agrawal,Sanjeev Singh Counsel for Respondent :- C.S.C.,Abhishesk Mishra
Hon'ble Ajit Kumar,J.
1. Heard learned counsel for the petitioner and Sri H.R. Mishra, learned Senior Counsel assisted by Sri C.S. Garg, learned counsel for the respondent nos. 4 and 5 as well as learned Standing Counsel for the State.
2. The facts of the case are that the petitioner who was selected in the selection held in the year 1999 on the post of Workshop Instructor (Fitting) could not be offered appointment on account of the cancellation order of the selection being passed on 6th August, 1999 by the Director of Technical Education, U.P., Kanpur. The petitioner challenged the order before this Court vide Writ Petition No. 53334 of 1999 questioning the validity of the order on account of discrimination and arbitrariness as one appointment was approved and was subjected to inquiry whereas the appointment of the petitioner was canceled without any inquiry.
3. The Court found the order to be illegal and unsustainable and accordingly the writ petition was allowed by this Court vide order dated 20th May, 2004 quashing the order dated 6th August, 1999 and 22nd November, 1999, the consequential order also. Resultantly, the petitioner was reinstated in service by means of an order dated 7th July, 2004, whereby the approval was granted to the selection of the petitioner on the post of Workshop Instructor (Fitting). Consequently, the petitioner was issued appointment order by the Chairman, Committee of Management D.N. Polytechnic, Meerut on 12.7.2004/ 16.7.2004 and the petitioner reported for joining. Since the very selection and appointment of the petitioner was valid and was wrongly annulled by the Director, Technical Education, U.P., Kanpur, the petitioner made representation to the competent authority for restoration of seniority, pay and all other service benefits.
4. In view of the appointment being offered to him as a writ petition being allowed, the Assistant Director of Education on behalf of the Director of Education passed an order impugned herein this writ petition dated 16th October, 2007, whereby the petitioner's seniority has been restored as a consequence to the order of approval being granted to his very selection in following terms:-
^^mi;qZDr vkns'kksa ds Øe esa Jh jktsUnz Hkkjrh dk p;u lfefr }kjk fnukad 16-04-99 lk{kkRdkj ds vk/kkj ij ek0 mPp U;k;ky; ds vkns'k ds Øe esa fd;k x;k gSA tcfd Jh fczts'k gfjr dk ;pu lfefr }kjk fnukad 20-07-2000 dks lk{kkRdkj ds vk/kkj ij fd;k x;k gSA vr% Jh jktsUnz Hkkjrh ds p;u frfFk fnukad 16-04-99 ds i'pkr laLFkk esa gq;s p;u ds ifj.kke Lo:i fu;qfDr deZpkjh ls ofj"B ekus tk;sxsaA Jh jktsUnz Hkkjrh dks laLFkk esa fu;qfDr frfFk fnukad 16-07-99 ds iwoZ ek0 mPpre U;k;ky; }kjk izfrikfnr vkns'k ^^uks odZ uks is** ds vuqlkj Jh Hkkjrh dks fdl izdkj dk osru ;k osru fu/kkZj.k dk ykHk ns; ugha gksxkA —i;k rn~uqlkj vfxze dk;Zokgh iw.kZ djus dk d"V djsaA** “In pursuance of the aforesaid orders, selection of Sh. Rajendra Bharti has been made by the selection committee on the basis of interview held on 16.04.99 in compliance of the Hon'ble High Court's order, whereas selection of Sh. Brijesh Harit has been made by the committee on the basis of his interview dated 20.07.2000. Hence, Sh. Rajendra Bharti shall be taken to be senior to the employees appointed through selection in the organization subsequent to his appointment date 16.04.99. Any benefit of pay or pay fixation prior to appointment date of Sh. Rajendra Bharti shall not be payable to him in view of the order “No work no pay” passed by the Hon'ble High Court. Hence, further action may please be taken accordingly.”
(Translated by the Court)
5. Now, the grievance of the petitioner is that in spite of being conferred upon with seniority as on the date of selection, he is being paid salary less than Brijesh Harit, who was given appointment in the year 2000 itself, as consequence to the selection held in the year 2000.
6. To buttress the argument, learned counsel for the petitioner has drawn the attention of the Court to the salary bills of teaching staffs of the month of December, 2007 in which the petitioner has been placed at Serial No. 22 whereas Brijesh Harit has been placed at serial No.20, two position above him and the salary emolument that are drawn by Brijesh Harit is Rs.13,791/- whereas the petitioner is being paid only Rs.12382/-. Even the basic pay fixation of the petitioner is less than that of Brijesh Harit as Brijesh Harit is granted basic 6050 whereas the petitioner's basic pay is of Rs.5450 only.
7. On pointed query being made to the learned Senior counsel, he could not justify these anomalies in the pay-scale. He also could not justify as to under what circumstances, the seniority of the petitioner has been restored as relating back to the year 1999 with all notional benefits when he was placed below in subsequent incumbent and under what circumstances pay-scale has been fixed at lower grade to that of Brijesh Harit. Once the petitioner has been given seniority from the back date, it means his notional pay scale will be fixed considering the period of service from that very earlier date, may be he is not paid any salary on no work no pay basis. In all circumstances, the petitioner's pay-scale should have been at par with those staffs of his rank and cadre who were appointed in the year 1999 or at least before 2000.
8. Under the circumstances, I find no reason for the petitioner not getting salary basic pay at par of Brijesh Harit, who was admittedly selected and appointed subsequent to the petitioner. Accordingly, it is held that the petitioner is entitled to basic pay of the post of Workshop Instructor (Fitting) as admissible in the year, 1999 and subsequent notional increase of pay and accordingly pay fixation on the date he was reevaluated.
9. The writ petition is allowed with the direction that the necessary orders will be passed by the concerned respondent in the light of observations made hereinabove with all consequential benefits on account of refixation taking his basic pay as fixed in the year, 1999 and arrears accrued to him w.e.f. the date of his retirement. Entire exercise shall be carried out within three months from the date of production of certified copy of this order.
Order Date :- 28.5.2018 Atmesh