Hon'ble Jaspreet Singh,J.
1. Cause shown is sufficient. Delay of 108 days in filing the present special appeal is condoned. The delay condonation application no. 99747 of 2019 is hereby allowed.
2. Heard Sri Gopal Kumar Srivastava, learned Standing Counsel for the appellants and Sri R.P. Shukla, learned counsel for the respondents.
3. This special appeal arises out of judgment and order of learned writ court dated 01.04.2019 passed in Writ Petition No. 4127 of 2007 (S/S), by which learned writ court has held that the respondents are entitled to the promotional pay scale of Rs. 4000-6000/- and has consequently quashed the order, by which they were held to be ineligible for pay scale and direction of recovery of amount paid in excess was issued and further directed the appellants to continue to to pay the pay scale of Rs. 4000-6000/- as revised from time to time.
4. The respondents-writ petitioners were initially appointed on class IV post as pump attendant on 30.07.1976, 01.09.1997 and 12.12.1988 respectively. According to them, they are working on the post of Tubewell Operator/Pump Operator/Switch Board Attendants and were granted the pay scale of Rs. 4000-6000 in pursuance of an audit report. By order dated 5th July, 2007 the recovery of same was issued on the ground that for class IV posts there is no essential academic qualification is required and they were wrongly given pay scale of Rs. 4000-6000/-. The aforesaid orders were challenged by filing writ petition on the ground that under the Government Order dated 08.10.2002, if an employee possess High School certificate together with I.T.I. and were given pay scale of Rs. 3050-4590/- and is not disqualified otherwise, he would be entitled for promotional pay scale of Rs. 4000-6000/-. On 17.12.2012 the writ petition was allowed. The appellant-State challenged the said order by filing Special Appeal (Defective) No. 897 of 2013, which was allowed by means of the judgment and order dated 03.01.2014 and the matter was remitted to the learned Single Judge for consideration afresh. The relevant part of the order reads as under:-
"We find merit in the contention which has been urged on behalf of the appellants that this would not be a correct interpretation of the Government Order dated 8 October 2002. What the Government Order dated 8 October 2002 refers to is that the minimum educational qualification as prescribed for direct recruitment must be what is prescribed therein, namely the holding of a high school certificate together with a certificate from a recognized ITI of two years or the discharge of supervisory functions in the pay scale of Rs.3050-4590. Therefore, the central issue is as to whether in respect of the post which was held by the respondents, the qualification for direct recruitment was as prescribed in Clause 2.6(4)(Ka) of the Government Order dated 8 October 2002. This aspect has not been considered in the impugned judgment of the learned Single Judge. The learned Single Judge has, with respect, proceeded on the erroneous basis that the mere holding of the qualification as referred in Clause 2.6(4)(Ka) would entitle an employee to the promotional pay scale which would not be correct reading of the relevant Government Order. The correct test is as to what is the prescribed eligibility criterion for direct recruitment to the post.
Since this aspect has not been considered in the impugned judgment of the learned Single Judge, we allow the appeal and set aside the impugned judgment dated 17 December 2012. In consequence, we restore the writ petition filed by the respondents to the file of the learned Single Judge for consideration afresh having due regard to the observations contained herein above.
Since, in the meantime, it is common ground that the respondents are in receipt of the promotional pay scale of Rs.4000-6000, we direct that pending further orders by the learned Single Judge, no recovery shall be effected from the respondents.
The appeal is accordingly allowed. There shall be no order as to costs."
5. The Special Appeal had been allowed and the matter remanded primarily on the question as to whether the posts held by the writ petitioners required the eligibility criteria of High School with I.T.I. certificate or some lower qualification in view of the fact that the higher pay scale of Rs. 4000-6000 would be admissible only if the qualification required for the post held by the writ petitioners required the eligibility qualification of High School with I.T.I. certificate irrespective of the actual qualifications of the petitioners. It is not in dispute that at the time of appointment of the writ petitioners, no service rules pertaining to the posts held by the writ petitioners in the department had been framed, due to which no eligibility or qualification was prescribed for the post which were held by the writ petitioners. In absence of any specific service rules governing the aforesaid posts, the posts were being filled up only as per the qualification of High School with I.T.I. certificate as would be evident from the advertisements which were issued by the department from time to time pertaining to the filling up of the said posts. It is also not disputed that the post of Switch Board Attendant which is at par with the Hand Pump Attendant has been advertised with the qualification of High School with I.T.I. certificate being indicated. The enhanced pay scale of Rs.4000-6000/- was granted to the writ petitioners only in pursuance of the audit report and the provisions of Government Order dated 8th October, 2002. It is also admitted fact that the provisions of the Government Order dated 8th October, 2002 clearly provides for enhanced pay scale only in case the particular post requires the qualification of High School with I.T.I. certificate.
6. In absence of any specific service rules pertaining to the post of Tubewell Operator/Pump Operator/Switch Board Attendant, the general rules of Group D employees Service Rules, 1985 would be applicable upon the writ petitioners.
7. Sub-rule 5 of Rule 10 of said Rules, 1985 reads as under:
"No person shall be eligible for appointment as cyclostyle operator or any other posts requiring technical knowledge, unless he is found to possess the requisite technical knowledge and has good experience pertaining to the particular job."
8. The requirement of technical knowledge as a requisite qualification for holding a particular post in terms of the aforesaid Rules of 1985, the provision of Sub Rule 5 of Rule 10 clearly indicates the requirement of a person to have technical knowledge for holding a particular post as differentiated from mere knowledge of a particular post.
9. Learned writ court, relying upon the aforesaid provisions, has held that a tubewell, pump or a switch board being electrical/electronic devices, the operation of the same would definitely require technical knowledge and therefore the aforesaid posts of Tubewell Operators/Pump Operators/Switch Board Attendants would definitely be covered by the provisions of sub Rule 5 of Rule 10 of the Rules of 1985.
10. Clause 26 (4) (Ka) of the Government Order dated 8th October, 2002 is relevant and reads as under:-
26¼4½ ¼d½ ,sls in ftudh lh/kh HkrhZ gsrq U;wure 'kSf{kd izkfof/kd vgZrk gkbZLdwy ds lkFk jk"Vªh; O;olkf;d esa izf'k{k.k ifj"kn vFkok 'kklu }kjk ekU;rk izkIr fdlh led{k laLFkk ls nks o"khZ; izek.k i= rFkk lEcfu/kr {ks= dk vuqHko vko';d gS vFkok ,sls in ftuds in/kkjd vius HkkSfrd dk;Z ds lkFk lkFk dqN i;Zos{kh; dk;Z Hkh djrs gks vkSj :0 3050&4590 ds osrueku esa dk;Zjr in/kkjdksa ls in fjDr gksdj fu;qDr gksrs gS mUgs :0 4000&6000 dk osrueku vuqeU; djk;k tk;A bl Js.kh ds ,sls in/kkjd ftUgs orZeku esa mDr osrueku ls mPp osrueku vuqeU; gks jgk gS rFkk mUgs og osrueku oS;fDrd :i ls vuqeU; jgsxkA osru lfefr dh laLrqfr;ksa ls ;g lfefr lger gSA A perusal of the aforesaid would indicate that the pay scale of Rs. 4000-6000/- would be admissible for such posts which are to be filled up either by direct recruitment with the basic educational qualification of High school with ITI certification or a certificate in the relevant field with two years experience from an institution recognized by the Government or posts which are to be filled up by people who apart from their normal work also execute some technical work with such posts being filled in from people holding the posts with the pay scale of Rs.3050 to 4090/-.
11. Learned writ court, after appreciating the provisions of Sub Rule 5 of Rule 10 of the Rules, 1985 and Clause 26 (4) (Ka) of the Government Order dated 8th October, 2002 came to the conclusion that the advertisement read with the aforesaid provision of the Rules of 1985 clearly prescribe the qualification of High School with I.T.I. certificate as an essential qualification for holding the post of Tubewell Operator/Pump Operator/Switch Board Attendant in the department and would therefore be fully covered by the provisions of Clause 26(4)(Ka) of the Government Order dated 8th October, 2002 and hence the said pay scale was correctly given to the writ petitioners earlier and the impugned orders therefore have been passed on a misreading of the relevant provisions and quashed the order impugned in the writ petition and directed the appellant to continue to pay the aforesaid pay scale of Rs. 4000-6000/- as revised from time to time. The relevant part of the order dated 1.4.2019 reads as under :-
"In the present case, it is to be seen that as per the advertisement issued by the department, the posts in question were advertised to be filled up by direct recruitment and therefore the present posts would be covered by the very first clause of the said provision of the Government Order dated 8th October, 2002.
So far as the matter pertains to the extent to which reliance can be placed on the advertisement issued by the department for filling up the said posts is concerned, it is relevant fact that the said advertisement has been brought on record by means of a supplementary affidavit filed by the petitioner but the same has not been controverted by the department. Thus the genuineness of the advertisement can be safely assumed. Although the Rules of 1985 do not prescribe the qualification of High School with ITI certificate as a requirement for holding the posts in question, the advertisement issued by the department clearly prescribes the aforesaid qualification.
A Constitution Bench of the Hon'ble Supreme Court in the case of Sant Ram Sharma versus State of Rajasthan and others reported in AIR 1967 SC 1910 has clearly held that if the service rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules or with the Act. The aforesaid reasoning has been followed subsequently in the cases of Union of India versus H.R. Patankar reported in 1985 (1) SCR 400 and in the case of M. Sriniwasa Prasad and others versus Comptroller and Auditor General reported in 2008 (1) SCC (LS) 1095 to the same effect.
Applying the aforesaid judgments of the Hon'ble Supreme Court, we can gather that since the Rules of 1985 did not prescribe any specific technical qualification for the posts in question except for indicating a technical requirement for holding the posts, the department itself by means of the aforesaid advertisement has clearly filled in the lacunae by prescribing the qualification of High School with ITI certificate as a requisite qualification for holding the posts in question. Although no order of the department is on record requiring the aforesaid qualification with regard to the posts in question but the same can safely be inferred from the advertisement issued by the department itself which has not been controverted.
In view of the aforesaid, it can be safely assumed that the department itself has filed in the lacunae of explaining the technical knowledge required for holding the posts which was generally stated in Rules of 1985.
In view of the above, I am of the opinion that the advertisement read with the aforesaid provision of the Rules of 1985 clearly prescribe the qualification of High School with ITI certificate as an essential qualification for holding the post of Tubewell Operator/Pump Operator/Switch Board Attendant in the department and would therefore be fully covered by the provisions of Clause 26(4)(Ka) of the Government Order dated 8th October, 2002 and hence the said pay scale was correctly given to the petitioners earlier and the impugned orders therefore have been passed on a misreading of the relevant provisions.
In view of the above, a writ in the nature of Certiorari is issued quashing the orders dated 11th July, 2007, 13th July, 2007 and 5th July, 2007 and a writ in the nature of Mandamus is issued directing the opposite parties to continue to pay the aforesaid pay scale of Rs. 4000-6000 as revised from time to time.
In terms of the above, the writ petition stands allowed."
12. Learned Standing Counsel for the State appellant has submitted that the Government Order dated 8th October, 2002 was not applicable to the writ petitioners as they were appointed as pump attendant which did not require the minimum qualification of High School plus I.T.I. Diploma/Certificate. The writ petitioners were not engaged in any supervisory capacity in the pay scale of Rs. 3050-4590/- nor they were promoted, therefore, inadvertently the pay scale of Rs. 4000-6000/- was given to the writ petitioners vide letter no. 3/ka-313-97 dated 02.11.2002. Said pay scale was granted without taking the consent from the Government, which was not in consonance with the Government Order dated 08.10.2002. It is also submitted that the writ petitioners are working as pump attendant/switch board attendant for which post no minimum qualification was required and only requirement was that the incumbent should have working knowledge of Devnagari and some experience. No certificate in any field was required. Learned writ court has wrongly interpreted the clause 26 (4) (Ka) of the Government Order dated 08.10.2002 and did not consider the observations made by the Division Bench in the judgment and order dated 03.01.2014 passed in special appeal filed by the appellants. He has lastly submitted that the advertisement dated 26.07.1997 was issued to fill up the post of pump attendant/switch board of which educational qualification was required as class V passed or equivalent qualification and said Government Order dated 08.10.2002 would not be applicable to them as neither the writ petitioners were getting pay scale of Rs. 3050-4500/- nor were promoted on the said pay scale and they were getting the pay scale of Rs. 2610-60-3150-65-3450/- and were not having the eligibility as per clause 26 (4) (Ka) of the Government Order dated 08.10.2002.
13. It is admitted fact that Group D employees Service Rules, 1985 did not prescribe any specific technical qualification for the posts in question except for indicating a technical requirement for holding the posts. The department itself by means of the aforesaid advertisement has clearly filled in the lacunae by prescribing the qualification of High School with I.T.I. certificate as a requisite qualification for holding the posts in question. The law on the question is well settled. The Hon'ble Apex Court has clearly held that if the service rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules or with the Act. Here in the present case the instruction/Government Order dated 08.10.2002 clearly provides enhancement of pay scale only in case the particular post requires the qualification of High School with I.T.I. certificate. As per Clause 26 (4) (Ka) of the Government Order dated 08.10.2002, which we have reproduced in the preceding paragraph, the first part of the same would be clearly admissible to the case of writ petitioners. The learned writ court has rightly interpreted the aforesaid Clause and has held that pay scale was correctly given to the writ petitioners earlier and has not committed any legal error in quashing the orders impugned in the writ petition and directing the appellants continue to pay the aforesaid pay scale of Rs. 4000-6000/- as revised from time to time.
14. The special appeal filed by the State has no merit and is, accordingly, dismissed.
(Jaspreet Singh, J.) (Pankaj Kumar Jaiswal, J.) Order Date :- 30.8..2019 Ashish