Court No. - 30
Case :- WRIT - A No. - 16572 of 2011 Petitioner :- Ram Kumar Verma Respondent :- U.P. Power Corporation Ltd. And Others Counsel for Petitioner :- Vinod Sinha,Mahesh Sharma Counsel for Respondent :- Pankaj Kumar Shukla,Nripendra Mishra,S.C.
Hon'ble Vivek Kumar Birla,J.
Heard Sri Mahesh Sharma, learned counsel for the petitioner and Sri Priyvrat Tripathi holding brief of Sri Nripendra Mishra, learned counsel appearing for the respondents.
Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties present petition is being decided at this stage itself.
Present petition has been filed with the following prayer:-
"a) Issue a writ, order or direction in the nature of certiorari quashing the order dated 17.2.2011 passed by the respondent no. 2.
b) Issue a writ order or direction in the nature of mandamus directing the respondents to correctly fix the salary of petitioner and pay hm arrear alongwith interest and pension being paid to petitioner may also be revised accordingly.
c) ......
d) "
A supplementary counter affidavit has been filed pursuant to the order dated 4.10.2017. The aforesaid order dated 4.10.2017 is quoted as under:-
"Learned counsel for the respondent Nos.3 and 4 prays for and is granted two weeks' time to file supplementary counter affidavit annexing therewith copies of relevant Government Orders/ Rule/ Notification including those referred in paragraph-13 of the counter affidavit as well as in the impugned order dated 17.02.2011. The aforesaid respondents shall also specifically state in the supplementary counter affidavit as to whether one Sri Raj Kumar Gupta and the petitioner were posted in the same Circle at the time of retirement of the petitioner and whether seniority is determinable at the Division/ Circle Level or at the State Level. Relevant Rules/ Notification/ Government orders in this regard, shall also be filed along with the supplementary counter affidavit.
List immediately after expiry of two weeks."
Pursuant to the order dated 4.10.2017 a supplementary affidavit has been filed annexing therewith a copy of the circular dated 12.12.1988.
By the impugned order the petitioner has been denied benefit of same pay as was being paid to one Ram Kumar Gupta on the ground that the seniority and the pay is to be determined circlewise and the petitioner cannot be extended the said benefit.
Submission of learned counsel for the petitioner is that since the petitioner and Ram Kumar Gupta belong to the same cadre of Routine Grade Clerk, there can be no difference in salary.
Referring to various paragraphs of the counter affidavit and the circular letter dated 12.12.1988 submission of learned counsel appearing for the respondent is that Ram Kumar Gupta retired on 30.9.1989 and was not working with the petitioner in the same circle, where the petitioner was working and retired. Submission, therefore, is that in view of the circular dated 12.12.1988, the claim of the petitioner is not liable to be considered.
While disputing the claim of the petitioner a reference has also been made to Rule 22-B (2) of the Fundamental Rules and the circular dated 12.12.2008.
I have considered the rival submissions and have perused the record.
The contents of the counter affidavit, insofar as working of the petitioner and Ram Kumar Gupta in different circle, has been categorically denied by stating that Ram Kumar Gupta and the petitioner were working in the same circle and therefore, the petitioner is entitled for same pay and even Rule 22-B (2) of the Fundamental Rules and the circular dated 12.12.1988 talks about stepping up of the pay of a person if his junior is being paid higher salary. Thus, there appears to be a factual dispute regarding actual working of the petitioner with Ram Kumar Gupta in the same circle. That part, alongwith supplementary counter affidavit only circular dated 12.12.1988 has been annexed, wherein it has provided that the concerned officer must ensure strict compliance of the provisions laid down in office memo dated 16.2.1982 and office memo dated 14.5.1988 for the purpose of deciding the case that stepping up the pay of a senior employee vis-a-vis his junior counterpart. The same have not been annexed with the supplementary counter affidavit although in the order dated 4.10.2017 of the court it was specifically provided that copies of the relevant Government Orders / Rules / Notifications including those referred paragraph 13 of the counter affidavit of the counter affidavit shall be annexed.
In the facts and circumstances of the case, when the petitioner has retired in the year 2006, almost 12 years have lapsed, no fruitful purpose would be served by granting further time to place the same on record and it would be appropriate that all such factual aspects and the effect of the office memo dated 16.2.19872 and 14.5.1988 be looked into by the authority concerned afresh.
In such view of the matter, the matter is remitted back to the respondent no. 4-Superintendent Engineer, Electricity Distribution Circle, Bagpat for decision afresh on its own merits. However, it is made clear that since no final findings have been recorded, the impugned order shall be subject to fresh orders passed by the respondent no. 4, who shall consider the claim of the petitioner preferably within a period of four months from the date of production of a certified copy of this order before him.
With the aforesaid observations, present writ petition stands disposed of.
Order Date :- 23.3.2018 Lalit Shukla