Allahabad High Court
Diensh Kumar Trivedi vs State Of U.P. Thru Secy. Industrial ... on 5 September, 2019
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. 6 /Reserved Case :- SERVICE SINGLE No. - 4042 of 2012 Petitioner :- Dinesh Kumar Trivedi Respondent :- State Of U.P. Thru Secy. Industrial Development Deptt. & Ors Counsel for Petitioner :- Ramesh Kumar Srivastava Counsel for Respondent :- C.S.C.,Sudeep Sheth Hon'ble Rajnish Kumar,J.
1. The petitioner has preferred this writ petition challenging the order dated 23.04.2012 by which the representation of the petitioner in compliance of the order dated 11.10.2011 passed by this court in Writ Petition No.7326 (S/S) of 2000 has been rejected. The petitioner has further prayed for a direction to the respondent no.3 to pay the pay-scale of Rs.2000-3200 w.e.f 1989 and the pay-scale of Instructor of Rs.2200-4000 w.e.f 1999 to the petitioner.
2. The facts, in brief, as culled out from the pleadings are that the petitioner was initially appointed on the post of Semi Skilled Worker (Operator Grade-2) in the pay-scale of Rs.425-10-545 w.e.f 23.09.1989 in the Institute of Tool Room Training, U.P. (here-in-after referred as ITTUP). He was promoted on the post of High Skilled Machinist in the pay scale of Rs. 1230-2080 by the order dated 05.01.1993.
3. After promotion of the petitioner a letter dated 24.12.1993 was issued to the petitioner seeking his option for fixing pay in the pay-scale of Rs.490-760 (1230-2080) w.e.f 11.10.1989, in pursuance of the recommendations of the Public Enterprises Bureau dated 13.08.1985 and accordingly fixing his pay at Rs.1350 up to 31.12.1993.
4. The Public Enterprises Bureau, vide its letter dated 13.08.1985, had recommended revised pay-scale for the posts mentioned in the table including the post of High Skilled Operator. As per the recommendations the revision of pay-scale of High Skilled Operator was recommended from Rs.625-1240 to 690-1420.
5. It appears that in pursuance of the recommendations of the Bureau an amended policy was drafted by the ITTUP which was placed before the Board of Directors in its meeting held on 03.11.1993 which had directed for getting the recommendations examined through Bureau.
6. The petitioner had submitted an objection / reply dated 05.01.1994 in response to the letter dated 24.12.1993 to the effect that the pay-scale of High Skilled Machinist is Rs.690-1420 (2000-3200) which has been made applicable w.e.f 13.08.1985 on the basis of recommendations of Bureau of Public Enterprises and he also demanded the pay-scale of Rs.2000-3200 as revised pay-scale of Rs.690-1420 w.e.f 11.10.1989. In pursuance of the recommendations of the Public Enterprises Bureau regarding revision of pay-scales w.e.f 13.08.1985 and the decision of the Board of Directors a settlement was entered into between the Management of the ITTUP and Employees Union on 07.01.1994 which was duly registered in the office of Deputy Labour Commissioner, Lucknow. As per the said settlement the employees of the ITTUP are liable to be paid revised pay-scale in terms of the settlement and it was also agreed that all the anomalies in respect to revised pay-scale and dispute arising there from were resolved.
7. It appears that the petitioner was not being paid salary therefore he preferred a Writ Petition No.7326 (S/S) of 2000 (Dinesh Kumar Trivedi Vs. State of U.P. and Others) before this court. The said writ petition was disposed of by means of the order dated 11.10.2011 with liberty to the petitioner to make a representation to the Principal Secretary, Industrial Development Department who shall look into the matter and take a decision on the petitioner's representation in regard to non-payment of salary expeditiously. In pursuance of the order passed by this court the petitioner preferred a representation on 02.11.2011 which has been disposed of and rejected by means of the office memorandum dated 23.04.2012, after hearing the petitioner. Hence the present writ petition has been filed.
8. Learned counsel for the petitioner submitted that the petitioner was initially appointed as Semi Skilled Worker in the year 1989 and on promotion w.e.f 11.10.1991, by means of the order dated 05.01.1993 in the pay-scale of Rs.1230-2080, consent was sought from the petitioner by means of the letter dated 24.12.1993 for fixing his pay in pursuance of the recommendations of the Public Enterprises Bureau dated 13.08.1985 in the pay-scale of Rs.1230-2080. The petitioner had not submitted his consent and submitted his objection dated 05.01.1994 to the effect that the pay-scale, as fixed, is not in accordance with the recommendations of the Public Enterprises Bureau dated 13.08.1985 which have been accepted by the Board and Governors in its 41st meeting held on 03.11.1993 and claimed the revised pay-scale of Rs.690-1420 as Rs.2000-3200 as per the post that is High Skilled Machinist / High Skilled Technician / High Skilled Operator but the same objection has not been considered till date despite being raised in the representation dated 02.11.2011.
9. He further submitted that there were two units in the Institute of Tool Room Training; one unit was known as Production Unit and the other as Training Unit. By means of the order dated 07.06.2000 the petitioner was retained in Training Unit and since then he is working as Instructor therefore he is entitled the salary for the post of Instructor to the tune of Rs.2200-4000. In this regard he relied on a list of the employees signed by the in-charge training dated 07.06.2000 in which the name of the petitioner is mentioned at Sl. No.17, contained in Annexure No.6 to the writ petition and a list indicating monthly salary liability of 27 employees to be retained by the ITTUP in which the name of the petitioner is mentioned at Sl. No.10 in the list of Instructors and the Government Order dated 22.07.2005 and no dues clearance certificate of final year training of Mohd. Imran Khan in which the name of the petitioner is mentioned at Sl. No.8 in the list of Instructors.
10. Learned counsel for the petitioner further submitted that he is entitled for the dearness allowance in accordance with the State Government employees but the same are not being paid to the petitioner.
11. Learned counsel for the petitioner also submitted that a number of employees were given the higher pay-scale which was recommended by the Public Enterprises Bureau vide letter dated 13.08.1985 such as Shri Ajeet Kumar Srivastava, Smt. Ajay and Shri Ashok Kumar. But the petitioner has not been given the same while his case also rests on similar footing. The petitioner being General Secretary of the Union had also demanded the pay-scales recommended by the Public Enterprises Bureau vide letter dated 30.10.1996 and the General Manager of the ITTUP had informed that the needful will be done by means of the letter dated 13.12.1996, 19.12.1996 and 01.02.1997 and thereafter various employees were given pay-scale as recommended by the Public Enterprises Bureau dated 13.08.1985 w.e.f the initial date of appointment by means of the order dated 17.12.1996 but the petitioner has not been given.
12. Learned counsel for the petitioner further submitted that on 13.05.2013 the petitioner was transferred to Store due to non-availability of students of the first year in the Institute however after advertisement for admission on 03.09.2013 the petitioner has preferred a representation on 09.09.2013 and 16.12.2013 for giving him the duty of the training of the Institute.
13. Lastly he submitted that the ground of financial constraint taken by the respondent no.3 for not giving recommended pay-scale with effect from the date of promotion is misconceived and not tenable because as per information given to the petitioner under Right to Information Act on 16.08.2014 as per balance sheet dated 31.03.2012 the bank has a fixed deposit of about Rs.8,00,00,000/-.
14. On the basis of above, and relying on the judgment in the case of Santosh Kumar Mishra Vs. U.P. Madhyamik Shiksha Seva Ayog, Allahabad and Others; (2012) 4 UPLBEC 3300 and Chintamani Upadhayay Vs. State of U.P and Others; (2016) 4 UPLBEC 2795, learned counsel for the petitioner submitted that the impugned order is not tenable in the eyes of law and is liable to be quashed and the writ petition is liable to be allowed.
15. Learned counsel for the respondent no.3 submitted that the petitioner was initially appointed by means of the order dated 23.09.1989. As per Clause-7 of the appointment order, the petitioner was required to discharge such duties and responsibilities as may be assigned to him by the Management from time to time. As per Clause-8, the other terms and conditions of his services will be covered by the rules and orders of the Institute which may be issued from time to time. He was promoted on the post of High Skilled Machinist w.e.f 11.10.1991 by means of the order dated 05.01.1993 in the pay-scale of Rs.1230-2080 and it was mentioned in paragraph-3 of the order that the petitioner would draw such allowance as admissible and sanctioned from time to time and in paragraph 4 it is mentioned that other terms and conditions of his acceptance will remain unchanged. The petitioner accepted the aforesaid terms and conditions without any protest and joined on the post of High Skilled Machinist.
16. He further submitted that the petitioner was neither appointed nor promoted on the post of Instructor so he is not entitled for the pay-scale of the said post. As per own admission of the petitioner he was retained in the training unit which does not give any right to the post and salary to the petitioner.
17. In regard to the recommendation dated 13.08.1985 he submitted that they are merely a recommendation in which operator is mentioned at Sl. No.7. The said recommendations were considered by the Board of Governors in its 41st meeting held on 03.11.1993 but it was not accepted and the Board directed the General Manager to furnish a report of the detailed exercise being worked out by the Committee constituted by the General Manager to Shri D.D.Goyal for his examination and submitting report to the Chairman and requested the Chairman to approve the same for its implementation so that the anomalies existing in the Institute are mitigated to the great extent. Similarly directed for recasting the recruitment and promotion policy with the help of Shri D.D.Goyal and till then recruitment and promotion policy was kept in abeyance.
18. The consent of the petitioner for the pay-scale of Rs.1230-2080, in pursuance of the recommendation dated 13.08.1985, was sought by means of the letter dated 24.12.1993 and he submitted his reply / objection dated 05.01.1994. Thereafter a settlement was arrived between the Management of the ITTUP and the employees Union regarding implementation of the recommendations and it was also resolved that all the disputes regarding anomalies in revised pay-scales have been completely removed therefore all the disputes regarding pay anomalies have come to end. The said settlement was duly registered in the office of Deputy Labour Commissioner, Lucknow. Accordingly, the revised pay-scale of the post of petitioner was fixed as Rs.1230-2080 at Sl. No.3 annexed with the settlement. By means of the 42nd meeting of the Board of Governors held on 07.09.1994 the Board directed to keep the ITTUP Recruitment and Promotion Rules in abeyance due to low internal generation of Institute. Accordingly the petitioner was paid the pay-scale of Rs.1230-2080 who is now being paid the current pay-scale of Rs.1350-2200 for the post of High Skilled Machinist alongwith 170% dearness allowance, as is being paid to the similar employees of the cadre.
19. Learned counsel for the respondent no.3 further submitted that in compliance of the order dated 11.10.2011 passed by this court in Writ Petition No.7326 (S/S) of 2005 filed by the petitioner, the petitioner had preferred the representation on 02.11.2011. In the said representation in paragraph-14 he has admitted that he was getting dearness allowance at the rate of 170%.
20. He further submitted that in compliance of the order passed by this court the representation of the petitioner has been duly considered and disposed of in accordance with law by a reasoned and speaking order dated 23.04.2012. In the said order it is specifically mentioned in paragraph-3 that the post of the petitioner is Highly Skilled Machinist and he has never been appointed / promoted on the post of Instructor by any competent authority (appointing authority) therefore he is not entitled for the pay-scale of Rs.2000-3200 of the said post. In regard to the promotion of the petitioner it has been mentioned that the promotion has been granted as per policy. So for as the claim of petitioner for 193% dearness allowance on the basis of the Government Order dated 07.03.2013, he submitted that the same was conditional and subject to the internal financial capacity therefore the same can not be claimed as a matter of right. Due to bad financial condition of the ITTUP a VRS Scheme was launched and 52 employees had been granted VRS. In regard to the employees to whom the pay-scale has been given learned counsel for the respondent no.3 submitted that they were working since 1988-1989 on a fixed monthly salary. Two of the employees were granted pay-scale of helpers / Sweeper and Gardener in view of financial hardship of the Institute and Shri Ajeet Kumar Srivastava was granted in compliance of the order passed by this court w.e.f 01.04.2012.
21. On the basis of above, learned counsel for the petitioner submitted that the pay-scale demanded by the petitioner vide letter dated 05.01.1994 stands decided between the Management of ITTUP and Employees Union in the settlement arrived on 07.01.1994 and the matter stands clinched therefore the writ petition filed by the petitioner is misconceived and not tenable and is liable to be dismissed.
22. I have considered the submissions of learned counsel for the parties and perused the material available on record.
23. The petitioner was initially appointed on the post of Semi Skilled Worker in the pay-scale of Rs. 425-10-545 by means of the order dated 23.09.1989. He was promoted on the post of High Skilled Machinist w.e.f 11.10.2001 in the pay-scale of Rs.1230-2080 by means of the order dated 05.01.1993 and the consent of the petitioner was sought for the said pay-scale by means of the letter dated 24.12.1993. The petitioner submitted objection on 05.01.1994 claiming the pay-scale as recommended by the Public Enterprises Bureau by means of the letter dated 13.08.1985 on the ground that the same have been approved by the Board of Governors in its 41st meeting held on 03.11.1993. The Board, in the said meeting, directed the General Manager to furnish a report of the detailed exercise being worked out by the Committee constituted by the General Manager to Shri D.D.Goyal for his examination and submitting report to the Chairman. The Board also requested the Chairman to consider the report submitted by Shri D.D.Goyal and if deem fit, to approve the same, for its implementation so that the administrative anomalies in the Institute are mitigated to the great extent. Therefore the contention of the petitioner that the recommendations were already approved is not acceptable and repelled.
24. Thereafter a settlement was arrived between the Management of the ITTUP and the Union of Employees on 07.01.1994 regarding implementation of the recommendations of Public Enterprises Bureau dated 13.04.1985 and it was made applicable w.e.f. 03.12.1993. It was also resolved in the settlement that all the disputes arising on account of anomalies in regard to the revised pay-scale have been removed and all the disputes regarding pay anomalies have come to end. The persons who were appointed in the pay-scale of Rs.425-10-545 (Rs.1020-1300) have been deemed to be appointed / promoted in the pay-scale of Rs.490-760 (Rs.1230-2080) w.e.f. the date of their promotion on the basis of recommendation of the Public Enterprises Bureau. Accordingly the objection of the petitioner stands decided by means of the settlement dated 07.01.1994 which was registered also in the office of Deputy Labour Commissioner, Lucknow.
25. The Public Enterprises Bureau had recommended the revision of pay-scales of the various posts by means of the letter dated 13.08.1985. The recommendations can not be binding unless it is accepted and approved. From the material available on record, the recommendations were not approved rather the General Manager was directed to furnish the report of the detailed exercise being worked out by the Committee constituted by the General Manager and after examination of the same, if approved by the Chairman, was to be implemented as per the consensus arrived in the meeting of the Board of Governors of ITTUP held on 03.11.1993. No decision of the Government or ITTUP has been brought on record regarding implementation of the recommendation dated 13.08.1985 except a settlement dated 07.01.1994 arrived between the Management of ITTUP and Union of Employees by which a settlement was arrived as per Annexure-1 and it was resolved that all the disputes regarding anomalies regarding revised pay-scales stands completely resolved. Therefore all the disputes regarding pay anomalies have come to an end. The said settlement was registered in the office of Deputy Labour Commissioner, Lucknow. As per the Annexure No.1 to the said settlement the employees appointed / promoted in the pay-scale of Rs.425-10-545 (Rs.1020-1300) have been granted the pay-scale of Rs.490-760 (Rs.1220-2080) w.e.f. their appointment / promotion in pursuance of the recommendations of the Bureau therefore the matter in this regard stands decided, which was not challenged.
26. So far as the claim of the petitioner for pay-scale of Rs.2000-2300 admissible to the post of Instructor is concerned, the petitioner has failed to bring on record or substantiate that he was ever appointed / promoted on the post of Instructor in accordance with law. However he has brought on record a list of employees to be retained by the training department signed by the in-charge training in which name of the petitioner is mentioned at Sl. No.17. On the basis of the same, the petitioner claimed that he was selected on the post of Instructor but that does not indicate that the petitioner was selected / appointed / promoted on the post of Instructor. Therefore even if the petitioner had worked on the post of Instructor due to any eventuality and signed any document as Instructor that does not give any right to the petitioner to claim salary of the said post unless he is appointed/promoted on the said post in accordance with law and the rules because as per initial appointment order dated 23.06.1989, the petitioner was required to discharge such duties and responsibilities as assigned to him by the Management from time to time, which remained unchanged even on promotion by means of the order dated 05.01.1993 as the said terms and conditions were accepted by the petitioner.
27. The designation of the petitioner is mentioned as Highly Skilled Machinist at Sl. No.23 in the list of 27 employees to be retained to run training activity annexed with the Government order dated 22.07.2005 by which the budgetary support was provided by the Government and regarding VRS of 52 employees. Admittedly the petitioner was transferred to store and after advertisement for admission on 03.09.2013, he had preferred a representation for giving him the duty of training but nothing has been brought before the Court to show that it has been given and he has been appointed/promoted on the said post in accordance with law. Therefore this court is of the view that the petitioner is not entitled for salary of the post of Instructor.
28. So far as the claim of the petitioner on the basis of representation of the petitioner dated 30.10.1996 as General Secretary of the Union is concerned, the same is not acceptable because he has claimed on the basis of pay-scale of HST, Store Assistant, Accountant-cum-Cashier, Librarian etc. while the petitioner was promoted and working on the post of High Skilled Machinist.
29. The claim of the petitioner regarding dearness allowance to the tune of 193% on the basis of Government Order dated 07.03.2013 is also misconceived because the same is conditional and there is no ground and prayer made in the writ petition in this regard therefore the same is not admissible. The petitioner has also admitted in paragraph-14 of his representation dated 02.11.2011 that he was paid dearness allowance at the rate of 170% and as per order dated 23.04.2012 the dearness allowance @ rate of 170% is applicable w.e.f. 01.03.2010 and accordingly the same is being paid.
30. The judgments relied by the learned counsel for the petitioner are not applicable on the facts and circumstances of the present case. The case of Santosh Kumar Mishra Versus U.P. Madhyamik Shiksha Seva Ayog, Allahabad (Supra) is in regard to the termination of services. In the other judgment relied by the learned counsel for the petitioner i.e. Chintamani Upadhyay Versus State of U.P. and others (Supra) this Court has held that the representation was rejected in violation of principles of natural justice. In the present case the representation of the petitioner was considered in compliance of order passed by this Court and after affording opportunity of personal hearing to the petitioner, the representation of the petitioner has been decided by a reasoned and speaking order. This court also finds that while disposing of the writ petition filed by the petitioner this court had granted liberty to the petitioner to make a representation with a direction to the Principal Secretary, Industrial Development Department to look into the matter and take a decision on the representation with regard to non payment of the salary. In pursuance thereof the petitioner raised various grounds including his pay fixation which stands decided in the year 1994 also. However, the same has been considered and the representation has been disposed of by a reasoned and speaking order.
31. In view of above this court is of the considered opinion that the representation of the petitioner has rightly been considered and disposed of in accordance with law. There is no illegality or error in the impugned order. The writ petition has been filed on misconceived grounds, which lacks merit.
32. The writ-petition is dismissed. No order as to costs.
......................... ..(Rajnish Kumar,J.) Order Date :- 05.09.2019 Haseen U.