Hon'ble Ajai Kumar Srivastava-I, J.
(C.M. Application No.80384 of 2020)
1. Having heard the learned counsel representing the State-appellants and Sri Ganga Prasad Srivastava, learned counsel representing the respondent and perused the averments made in the application seeking condonation of delay, we are satisfied that the delay has sufficiently been explained.
2. Accordingly, the application is allowed and the delay in preferring the present Special Appeal is hereby condoned.
Order on Memo of Appeal
3. Heard learned Standing Counsel representing the State-appellants and Sri Ganga Prasad Srivastava, learned counsel representing the sole respondent.
4. By instituting these proceedings under Chapter VIII Rule 5 of the Rules of the Court, in this intra-court appeal the State-appellants have challenged the judgment and order dated 13.02.2020 passed by learned Single Judge whereby the Writ Petition No.5162 (SS) of 2012 filed by the respondent was allowed and the order dated 05.02.2012 whereby the petitioner's entitlement to higher pay scale was denied, has been quashed.
5. The learned Single Judge has also issued a direction commanding the opposite parties to grant the benefit of next higher pay scale of Rs.1400-2600 as revised from time to time notionally with effect from 01.07.1988. Further direction has been issued that arrears of pension be also paid to the respondent after computing the same on the basis of next higher pay scale of Rs.1400-2600 as revised from time to time with effect from 25.09.2009.
6. Submission of the learned State Counsel while pressing this Special Appeal is that there was no illegality in the order dated 05.02.2012, which was addressed to the Commissioner Rural Development whereby it was observed that in case an employee is not entitled to be placed in the next promotional pay scale, he shall be given benefit of one increment in the next pay scale which will remove the anomaly in a situation where the pay scale of the feeding post/cadre and that of the promotional post is the same. He has further stated that the respondent has retired on 31.01.1996 and as such the claim laid by him by filing Writ Petition No.5162 (SS) of 2012 after long 16 years, was not maintainable in absence of any plausible explanation for approaching the Court with such delay and latches.
7. On the other hand, Sri Ganga Prasad Srivastava, learned counsel representing the respondent has submitted that the order dated 13.02.2020 passed by learned Single Judge does not warrant any interference by this Court for the reason that it is based on correct and the only possible interpretation of the provisions contained in clause 3(10) of the Government Order dated 03.06.1989. He has further argued that the submission of learned State Counsel is highly misconceived for the reason that the respondent while working on the post of Accountant did not have any further promotional avenues as such the question of consideration of his case for making admissible the next higher promotional pay scale did not arise; rather he was entitled to be placed in the next higher pay scale in the same cadre of Accountant. He has stated that the authority concerned, thus, while passing the order dated 05.02.2012 has completely not only erred in law but has also misinterpreted; rather did not take into account the provisions contained in clause 3(10) of the Government Order Dated 03.06.1989. In this view, the submission is that this Special Appeal does not call for any interference in the order dated 13.02.2020 passed by the learned Single Judge whereby the writ petition filed by the respondent has been allowed.
8. Having heard the rival submissions made by learned counsel representing the respective parties and also having gone through the record available before us, what we notice is that the authority concerned while passing the order/ writing the letter dated 05.02.2012 appears to have assumed that there is only one pay scale admissible to the incumbents holding the post of Accounts Clerk whereas the learned Single Judge has traced the history as to how the pay scale admissible to the Accounts Clerk have been revised and as to how the two cadres of Assistant Accountant and the Accounts Clerk were merged in the single cadre of Accountant. The order/letter dated 05.02.2012 has, thus, observed that in a situation where the promotional pay scale is not available, the benefit of one increment of the next higher pay scale will be made available to the incumbents concerned, however, while providing for the same, it clearly appears that fact regarding merger of the cadres and admissibility of two different scales of pay, namely, Rs.1200-2040 and Rs.1400-2600 has not been taken into account. Learned Single Judge, as noted above, has clearly given a finding in respect of the merger of posts and availability of two different pay scales to the incumbents working in the same cadre, that is, in the cadre of Accountant.
9. What we find in this case is that the respondent was initially appointed on 29.08.1957 on the post of Junior Clerk and thereafter, he was promoted as a Senior Clerk. He was also granted the selection grade and his pay was further revised with effect from 01.01.1986 in the pay scale of Rs.1200-2040. It is on record that with effect from 01.01.1996, the post of Accounts Clerk was merged with the post of Assistant Accountant. Subsequently, the post of Assistant Accountant was also merged with the post of Accountant and the new post was known as Accountant and in this newly merged cadre of Accountant, 20 per cent posts were to be filled in from amongst the Assistant Accountants with the pay scale of Rs.1200-2040 and rest of the 80 per cent posts were to be filled in from amongst the Accountants in the pay scale of Rs.1400-2600. Thus, it is clear from the record, as has been held by the learned Single Judge, that the same cadre of Accountant carried two pay scales available to the members of the said cadre. 20 per cent of the members of the said cadre of Accountant were made available the pay scale of Rs.1200-2040 and rest 80 per cent members of the cadre of Accountant were made available the pay scale of Rs.1400-2600. It is not in dispute that the respondent was placed in the cadre of Accountant in the pay scale of Rs.1200-2040.
10. Learned Single Judge has, thus, recorded a finding on the basis of correct interpretation of clause 3(10) of the Government Order dated 03.06.1989 that it was a case where there was no promotional avenue available to the petitioner from the pay scale of Rs.1200-2040 to another post carrying the pay scale of Rs.1400-2600 rather it was a case where the higher scale of pay of Rs.1400-2600 was available to the incumbents working in the same cadre of Accountant on competition of certain period of service in the pay scale of Rs.1200-2040.
11. Thus, in terms of the provisions contained in clause 3(10), after completion of period of six years from the date of grant of selection grade, the incumbent concerned is entitled to be placed in the next higher scale of pay and not in the next higher promotional scale of pay. The distinction between these two needs to be noticed. When an incumbent working in a lower scale of pay is placed in a higher scale of pay, such incidence is different that placement of an incumbent in the promotional scale of pay. Placement in the promotional scale of pay would mean placement of the incumbent in a pay scale which is available to next higher promotional post. This distinction has clearly been expressed in the Government Order dated 03.06.1989 and, thus, learned Single Judge after appropriate interpretation in the same has passed the judgment and order dated 13.02.2020.
12. It is also worth noticeable that the respondent was in fact placed in the higher scale of pay of Rs.1400-2600 vide order dated 10.09.2010 which is available on record, however the actual financial benefit which accrued to the respondent on the basis of said order has not been made available to him.
13. So far as the submission made by learned counsel appearing for the State-appellants that the respondent had approached this Court after sixteen years from the date of his retirement, we may only indicate that it is in the year 2010, to be specific on 10.09.2010, that the respondent was made available the benefit of next higher pay scale of Rs.1400-2600 by means of an order passed to the said effect from the said date by the District Development Officer, Gonda. It is only that the respondent was not given the actual financial benefit which accrued to him on the basis of the said order dated 10.09.2010. In these circumstances, it cannot be said that the respondent approached the Court with unexplained delay.
14. In view of what we have recorded above, we find ourselves in complete agreement with the judgment and order dated 13.02.2020 passed by learned Single Judge allowing the writ petition filed by the respondent and, accordingly, we find that this special appeal is highly misconceived, which is hereby dismissed.
15. The learned Single Judge had granted four months' time to provide the actual benefits on the basis of the said judgment dated 13.02.2020. However, now since the Special Appeal has been dismissed, we direct that the necessary ministerial work and actual payment to the respondent shall be made by the authorities concerned within three months from the date certified copy of this order is produced before him.
16. Costs are made easy.
Order Date :- 24.08.2021 cks/-