Court No. - 43
Case :- WRIT - A No. - 11442 of 2014 Petitioner :- Ravindra Kumar Srivastava Respondent :- State Of U.P. Thru Secy. And Another Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
1. Petitioner was initially appointed as a Stenographer in the office of Secretary, Madhyamik Shiksha Parishad, U.P., Allahabad on 26.8.1985. The appointment order of petitioner is on record as Annexure – 1. By this order a total number of five persons were appointed as Stenographer. Petitioner was placed at Serial No. 4. The appointment order also discloses that Stenographers were placed in two scale of pay namely Rs. 515-860 & Rs. 470-735. Petitioner was placed in the pay-scale of Rs. 515-860 and was initially deputed to work in the regional office at Bareilly. It is not in dispute that the pay-scale stood revised vide Government Order dated 14.8.1989 w.e.f. 1.1.1986. The pay-scale of the Stenographer in Junior Grade of Rs. 470-735, stood revised to the pay-scale of Rs. 1200-2040, while the pay-scale of Senior Grade i.e. Rs. 515-860, stood revised to Rs. 1400-2300.
2. On 2.8.1995 the cadre of Stenographer underwent a restructuring and cadre was then trifurcated into three pay scales, namely pay-scale of Rs. 1200-2040, Rs. 1400-2600 and pay-scale of Rs. 2000-3200. According to petitioner he was already placed in pay-scale of Rs. 1400-2300 w.e.f. 1.1.1986 and at the time when the restructuring took place in 1995, he was already drawing salary in the Grade of Rs. 4500-7000. The authorities, however, while implementing the restructuring carried out in the cadre, placed the petitioner in the Grade of Rs. 4000-6000. This determination made vide order dated 13.6.2007 was subjected to challenge by the petitioner in his earlier Writ Petition No. 52199 of 2007. This writ petition was disposed of vide following order passed on 10.9.2013:-
“Considered the submissions of counsel for the parties. The case of the petitioner is that he is not claiming the promotional pay grade. When there was restructuring of the grade, the petitioner was entitled to the grade of Stenographer Senior Grade (I). However, he was placed in Stenographer Grade II and even who were juniors or getting higher grade. However, even if they have been promoted and services of the petitioner were not satisfactory, then at least he was entitled to get same and decide his representation grade which he was getting before restructuring of the grade of Stenographer Grade (I). He was already getting pay scale of Rs.4500-7000. Subsequently he was placed in the grade of Rs.4000-6000/- and also placed in the category of stenographer II, in place of Stenographer Grade I and as such the impugned order issued on 13.6.2007 in respect of the petitioner whose name is at serial number 7 is hereby set aside.
The petitioner at least was entitled for the same grade which he was getting if he was not place in higher grade. However, impugned order issued by the office of the respondent no.3 his grade has been reduced to the grade of Stenographer (Junior Grade), though subsequently he has also been promoted on 9.10.2012 but due to reduction of grade he had suffered pecuniary loss and was placed as Stenographer (Grade-II).
Hence the respondents are directed to consider the claim of the petitioner as expeditiously as possible preferably within a period of two months after furnishing certified copy of this order.”
3. It is pursuant to the aforesaid directions, issued by this Court, that the Secretary of the Board has proceeded to reject petitioner's claim by the order impugned in the writ petition dated 8.1.2014. This order records that w.e.f. 1.1.1996, pursuant to the restructuring of the cadre, two posts were created in the pay-scale of Rs. 4000- 6000, eight posts in the pay-scale of Rs. 4500-7000 and one post in the pay-scale of Rs. 5000-8000. However, pursuant to Government Order dated 7.11.2006, the number of posts in the Stenographer cadre were redetermined and while five posts existed in the stenographer Grade -II category, three posts existed in the Stenographer Grade – I. The scale of pay for Stenographer Grade – II was Rs. 4000-6000, while for Stenographer Grade – I, it was 5000-8000. The Secretary has rejected petitioner's claim for being placed in pay-scale of Rs. 5000-8000, essentially on the ground that six adverse entries were given to the petitioner for the year 1987- 88, 1988-89, 1997-98, 1998-1999, 1999-2000 and the year 2005-
06 and, therefore, petitioner's services were not satisfactory. The order further records that for such reasons, the petitioner would not be entitled to benefit of selection grade and promotional grade. The order further records that placement of petitioner in the pay-scale of Rs. 4000-6000, as modified from time to time alone would be admissible to the petitioner. It has been observed that since petitioner is presently placed in the pay-scale of Rs. 9300-34800 in Grade Pay of Rs. 4200, he would not be entitled to any relief.
4. The aforesaid order is challenged on the ground that none of the adverse entries, which have been relied upon for denying benefit of appropriate restructuring was immediately communicated and that representation made against those adverse entries have not been decided by the authority concerned. Reliance is placed upon Rule 5 of the U.P. Government Servants (Disposal of Representation Against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995, to submit that once representations made against the adverse entries have not been decided within a period of four months, then such material cannot be treated adverse to petitioner for the purposes of grant of any of the service benefits. It is also submitted that the authorities have remained under a wrong belief that placement of petitioner pursuant to restructuring would amount to grant of selection grade or promotional pay-scale, inasmuch as, the placement of petitioner upon restructuring in appropriate scale of pay would have to be determined in accordance with the petitioner's seniority viz-a-viz other stenographers in the department and not on any other material. It is stated that petitioner was otherwise drawing salary in the scale of pay of Rs. 4500-7000 and, therefore, while implementing any restructuring of cadre, the salary of the petitioner could not have been unilaterally reduced. Petitioner has also placed reliance upon initial order passed against him on 13.6.2007, which has been quashed in the earlier writ petition for referring to the date of appointment of different stenographers. It is clearly shown that persons placed at Serial Nos. 5 & 6, who have been allowed salary in the Stenographer Grade-I (Rs. 5000-8000), were infact appointed after the petitioner, inasmuch as, their date of appointment is 28.11.1987 and 1.12.1987 respectively. Submission is that as a result of restructuring, the petitioner could not have been placed in a scale of pay, below his juniors.
5. A counter affidavit has been filed in which the averments made in the order impugned has been reiterated.
6. Learned Standing Counsel, however, submits that the representations made by the petitioner against three adverse entries awarded to him are still pending consideration before the appropriate authority.
7. When the matter was heard on 24th April, 2019, this Court proceeded to pass following orders:-
“Submission is that the adverse entries which were relied upon against the petitioner could not be read against him inasmuch as representations made against it have remained pending, without any decision taken upon it. Rules of 1995 have also been relied upon in that regard. It is also submitted that the petitioner being senior was also liable to have been placed on higher scale of pay and was also to be adjusted against the post carrying higher scale of pay but it has not been done. It is further submitted that the petitioner is not claiming the benefit of selection grade but the issue is of re-fixation of pay scale, consequent upon the restructuring of the cadre.
Learned Standing Counsel may obtain instructions in the matter. Put up on 26.4.2019.”
8. Learned Standing Counsel has obtained instructions from the Secretary of the Board, as per which, adverse entries were awarded to the petitioner for different years. As per instructions, however, petitioner's integrity was certified in all of such years. It is pointed out that for the years 1987-88 and 1988-89, petitioner's representation against the adverse entry has already been rejected on 28.1.2013, while in respect of adverse entries for the other years, the representation of the petitioner is pending.
9. I have heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare for the petitioner and Sri Rajesh Mishra, learned Standing Counsel for the respondents.
10. Perusal of the record would go to show that authorities have not examined the matter in correct perspective. Perusal of the first order, which has already been quashed by this Court in Writ Petition No. 52199 of 2007 as well as the order impugned in this petition dated 8.1.2014 would go to show that authorities were under an impression that while placing the petitioner in the respective scale of pay, consequent upon restructuring of the cadre, they were actually granting benefit of selection grade or promotional pay-scale. This premise is found to be wholly fallacious and misconceived. It would be worth clarifying that for the purpose of grant of selection grade and promotional pay-scale an employee is required to render satisfactory service for specified number of years as per the applicable rule/government order. This exigency, however, would not be attracted in the facts of the present case, inasmuch as, the authorities were not extending the benefit of selection grade or promotional pay-scale to the petitioner.
11. The issue herein is with regard to the placement of the petitioner in the relevant scale of pay, consequent upon restructuring of the cadre of stenographer itself. It is not in issue that petitioner was appointed in the year 1985 vide order dated 26.8.1985. The order of appointment clearly shows that petitioner was placed in the senior scale of pay, meant for stenographer in the department concerned. As a matter of fact, by the same order of appointment, five persons were appointed and the first four persons i.e. upto petitioner, were placed in the pay-scale of Rs. 515-860. The last person i.e. Rajkumar Swarnkar was the only person, was placed in the Junior Pay Scale meant for stenographer i.e. Rs. 470-735.
12. The scale of pay of petitioner as was originally sanctioned to him i.e. Rs. 515-860 was subsequently modified in accordance with the Government Order that came to be issued from time to time. It is not in issue that petitioner was already placed in pay-scale of Rs. 4500-7000 at the time of restructuring of cadre. It is also admitted on record that persons junior to petitioner i.e. Laksham Singh Supyal and Kamlesh Kumar have been granted benefit of higher pay-scale i.e. Rs. 5000-8000.
13. At the time when restructuring of cadre was being implemented by the respondents, they were expected to place persons in the respective scale of pay, as per their seniority, and by considering their initial placement in the pay-scale. Petitioner was placed in the senior pay-scale i.e. Rs. 515-860. He was, therefore, liable to have been placed in the corresponding senior scale of pay, after restructuring, meant for stenographer i.e. Rs. 5000-8000, particularly when persons junior to him were already granted such benefit. The misconceived notion on the part of the authorities that they were granting benefit of selection grade and promotional pay- scale appears to have been the reason that prevailed with them for denying placement of petitioner in appropriate scale of pay as per his seniority/placement in the cadre.
14. As has already been observed above, the concept of satisfactory working or awarding of adverse entry, was not a relevant consideration for placing the petitioner in the respective scale of pay, when the cadre itself was being restructured. The authorities also appear to have ignored the order passed by this Court on 10.9.2013 whereby this Court clearly observed that petitioner could not have been placed in a scale of pay, below the scale he was already getting at the time of restructuring of the cadre. It is admitted on record that petitioner was placed in the pay- scale of Rs. 4500-7000, at the time of restructuring of the cadre. After the cadre has been restructured, there is no pay-scale of Rs. 4500-7000, which was admissible to a stenographer and, therefore, the petitioner had to be placed in the admissible pay-scale of Rs. 5000-8000, particularly when persons junior to him had already been granted such benefit.
15. In that view of the matter, the Secretary of the Board has not correctly examined the claim of the petitioner as was expected in terms of earlier order passed by this Court. Consequently, the order dated 8.1.2014 cannot be sustained and is quashed. The writ petition is allowed.
16. Authorities are directed to pass a fresh order keeping in view the observations made above within a period of two months from the date of presentation of a certified copy of this order. All benefits which are found due and payable to the petitioner, on account of re- determination of his pay-scale in terms of aforesaid order, would be released to the petitioner within a further period of three months thereafter. The respondents while redetermining the petitioner's scale of pay, consequent upon restructuring of the cadre, would ensure that petitioner is not placed below any of his juniors and his initial appointment under the senior scale of pay, meant for stenographer, would be maintained. The benefit of higher scale of pay as per the restructuring of cadre would be granted from the date, such benefit has been granted to others.
Order Date :- 26.4.2019 Ranjeet Sahu