Hon'ble Raghvendra Kumar,J.
Heard Sri Adarsh Bhushan, learned counsel for the appellant, who has very ably assisted the Court and the learned Standing Counsel for the State and Sri R. P. Singh for the respondent no.1 to 4.
The appeal has been preferred questioning correctness of judgment of the learned Single Judge dated 19.4.2000 whereby the appellant's writ petition, praying for quashing of reduction in the pay scale by the respondents in violation of principles of natural justice, has been dismissed.
The appellant is admittedly an employee of the Nagar Maha Palika, Agra. He came to be transferred to the college in question, which is an educational institution established by the Nagar Maha Palika known as Nagar Maha Palika Girls Inter College, Gur Ki Mandi, Chitranjan Park, Agra. Learned counsel for the appellant has invited the attention of the Court to the order of the Nagar Maha Palika authority by which the appellant came to be transferred to the college dated 24.7.1993, which is Annexure-4 on the records of the writ petition.
The petitioner-appellant was getting his pay scale as it had been available to him as an employee of the Nagar Maha Palika and was refixed in the scale of Rs.1200 to 1560 E. B-40-2040 w.e.f. 1.1.1992 as per G. O. dated 10.2.1992 under recommendation of the Principal under orders of the U. P. Nagar Adhikari of the Nagar Mahapalika and countersigned by the District Inspectress of Girls School Agra, but by the order dated 5.11.1993 of the Chief Executive Officer, Nagar Maha Palika, Agra, his pay scale was again fixed at Rs.1130/- and was subsequently approved on 4.12.1993, which was communicated by the Accounts Officer to the appellant vide order dated 13.12.1993. The writ petition giving rise to this appeal was filed praying for quashing of these orders with a further prayer of mandamus to fix the pay scale of the petitioner-appellant in the grade of Rs.1200-2040 as per Annexure-3 to the writ petition and to pay the balance of salary that may be admissible accordingly. For this the petitioner-appellant claimed parity of the same pay scale that was extended to a Clerk (Class III employee) of an aided educational institution governed by the provisions of U. P. Intermediate Education Act 1921 and the Payment of Salary Act 1971 under the Government Order dated 10.2.1992. A copy of the said G. O. is Annexure-1 to the record of the writ petition.
The appellant contends that the appellant was given the said benefit, but subsequently the same has been withdrawn and, therefore, the action of respondent Nagar Maha Palika being erroneous, the impugned orders deserve to be quashed. The main thrust of the argument of Sri Bhushan is to the effect that the said orders have been passed ex parte to the petitioner-appellant without giving him any notice or opportunity and, therefore, this is in violation of principles of natural justice. He further submits that the fixation has to be done as claimed by the petitioner-appellant keeping in view the fact that the Payment of Salary Act 1971 would continue to apply to the appellant and for that Sri Bhushan has invited the attention of the Court to the provisions of Section 13 of the 1971 Act as well as the provisions of Section 16 G and 16 H (2) as well as the notifications issued in pursuance thereof and the schedules appended to such notifications.
He contends that the said placement of the appellant in the Intermediate College was in accordance with Section 73 of the U. P. Municipalities Act 1916 and since the appellant was functioning as a Class III employee (Clerk) in the institution, he was entitled to the same pay scale as per the G. O. referred to hereinabove. He, therefore, submits that in view of the aforesaid legal position that emerges and the fact that Class III & Class IV employees of the institution would not be governed by the provisions of 1921 Act, but at the same time would be entitled to payment of salary at par with employees of aided institutions, the relief claimed ought to have been granted, which has gone unnoticed by the learned Single Judge, while dismissing the writ petition. Sri Bhushan, therefore, submits that the impugned judgment be set aside and a direction be issued to the competent authority to fix the pay scale as claimed by the petitioner-appellant and restore the same as per the G. O. dated 10.2.1992 with all consequential benefits.
It may be relevant at this stage to put on record that the appellant in his rejoinder affidavit to the writ petition has stated his age to be 49 years in the year 1998. It is, therefore, obvious that the appellant has already retired from service as on date.
The question of fixation of pay scale would be clearly dependent upon the cadre of the service to which the appellant belongs to. The fact that the appellant was an employee of Nagar Maha Palika remains undisputed. The pay scale and the finances governing emoluments to be received by the appellant would, therefore, be governed by the rules and regulations applicable to Nagar Maha Palika employees. His placement in an educational institution maintained by Nagar Maha Palika would also not make any difference keeping in view the provisions of Section 16 G and 16 H of the U. P. Intermediate Education Act 1921 as per the notifications issued from time to time namely, 13.6.1979 and 12.7.1982 as well as the schedules appended thereto, which has been placed before us by the learned counsel for the appellant.
In view of aforesaid legal position, the appellant being an employee of the Nagar Maha Palika, Agra, he would not be governed by the provisions of 1921 Act and, therefore, would not be entitled to the benefit of the G. O. dated 10.2.1992 which is only in respect of aided, recognized and privately managed institutions.
The issue of applicability of the 1971 Act may be relevant only in so far as disbursement of salary is concerned, but the issue of fixation of pay scale has to be made in the cadre to which the appellant belongs and he, therefore, cannot claim as a matter of right the same pay scale which is awarded to a Class III employee of an aided educational institution established and governed by the provisions of 1921 Act. Consequently, the case of the appellant falls in different class and he cannot claim benefit of the G. O. dated 10.2.1992.
There are some more facts which deserve to be noticed from the records of the writ namely, the supplementary counter affidavit of Sri S. K. Srivastava, Law Assistant, Law Department which indicates a reply to the amendment application that was filed on behalf of the petitioner-appellant during the pendency of the writ petition.
The relevant paragraphs of the said supplementary counter affidavit are extracted hereinunder :
"4. That the contents of para 2 of affidavit are not correct as stated and are denied. Petitioner was appointed on 3.12.1975 in Nagar Nigam, Agra as IInd Grade Clerk. From 1.1.1986 pay scale was revised being 950-1550. As petitioner is the employee of Nagar Nigam, Agra. The Service rules and pay scale admissible in Nagar Nigam is applicable to the petitioner and pay scale 1200-2040 is not applicable in Local Bodies including Nagar Nigam, Agra, so there was no question of fixation of salary of the petitioner in pay scale 1200-2040.
5. That with pay scale 950-1550 applicable from 1.1.1986 was continued till 31.12 1995. From 1.1.1996 this scale was revised being 3050-4590.
6. That the salary of the petitioner was fixed on 1.1.1996 on Rs.3725/- per month in pay scale 3050-4590. A photostat copy of form of fixation of salary of the petitioner is marked as Annexure-1 and 2 of this affidavit.
7. That petitioner himself filled up option form on 13.10.1998 accepting pay scale 3050-4590. A photostat copy of option form is filled and marked as Annexure-3 of this affidavit.
8.That now petitioner is in pay scale 3050-4590 and at present getting Rs.3950/- p.m. basic salary plus D. P. 32 %, House Rent and City Allowances etc. from 1.1.1999.
9. That the contents of Paragraph 3 of the affidavit are denied.
10. That in reply to the contents of para 4 of the affidavit, it is stated that in view of revision scale of petitioner and further in view of his own ofference of option on 13.10.1998 there remains nothing in writ petition controversy for the present amendment of the writ petition. Hence the writ petition and his application is liable to be rejected.
11. That the contents of para 5 (21-A) of this affidavit need no reply.
12. That in reply to the contents of para 5 (21-B) of the affidavit it is stated that petitioner was appointed on 3.12.1975. It is stated further that petitioner is a regular confirmed employee of Nagar Nigam. In the various school and colleges, Clerk of Nagar Nigam are sent for preparation of salary bill of the teachers and other staff of the college. These employees of Nagar Nigam are transferred one school to another and also in the Office of Nagar Nigam. These Clerks of Nagar Nigam are not the staff of the school.
13. In reply to the contents of para 5 (21-C), (21-D), (21-E), (21-G) it is stated that petitioner is not an employee of college and school, not an employee of Education Department. As petitioner is employee of Nagar Nigam, so the pay scale of local bodies is admissible to him. He has accepted the same by filling options on 13.10.1998.
14. That in reply to contents of para 5 (21-H), it is stated in the Government Order dated 10.2.1992 is not applicable to the employees of Nagar Nigam. There is no pay scale of 1200-2020 in Nagar Nigam so there is no question of his fixation in this scale.
15. That in reply to contents of Para 5 (21-I), it is stated that the petitioner was not entitled in pay scale 1200-2040 not applicable to Nagar Nigam. Petitioner who was preparing bills of the teacher and other staff of this college submitted various papers in between the papers his own documents was there and U. P. Nagar Adhikari put his signature on the belief of the petitioner. This act of the petitioner is itself an act of loss of confidence. By this document which is apparently against the service rule cannot be given any benefit. It is further submitted that there is no recommendation by Mukhya Nagar Adhikari.
16. That in reply to the contents of paragraph No.5 (21-J) of the affidavit, it is stated that by placing incorrect facts petitioner was got himself scale which was not admissible in Nagar Nigam. Mukhya Nagar Lekha Parrichhak on 4.11.1993 submitted report before Upper Mukhya Nagradhikari. A true copy of report dated 4.11.1993 is filed and marked as Annexure-4 to this affidavit.
That on the aforesaid report Uppar Nagar Mukhya Adhikari submitted his report to Mukhya Nagar Adhikari on 5.11.1993. Mukhya Nagar Adhikari passed an order accepting the recommendation and explanation was sought.
That on 13.12.1993 the mistake was filed and in 1993 petitioner salary was fixed on Rs.1130/-. A true copy of the order dated 13.12.1993 passed by Lekha Adhikari is filed as Annexure-5 to this affidavit."
The arguments, which have been advanced by the learned counsel for the appellant, also finds a complete answer in the aforesaid paragraphs and the facts that led to the incorrect signatures on the documents on the basis whereof the appellant has claimed fixation of his pay scale.
We do not find any material on the record of the special appeal contradicting the aforesaid position. Consequently, for all the aforesaid reasons in addition to the reasons given by the learned Single Judge, we do not find any merit in this appeal, which is hereby dismissed as we do not find any prejudice having been caused to the appellant on account of violation of principles of natural justice. Consequently, the judgment cited by the learned counsel for the appellant in the case of Bhagwan Shukla v Union of India and others, AIR 1994 SC 2480, therefore, also does not come to his aid.
Order Date :- 20.4.2016 Manish Himwan