Allahabad High Court
Mukesh @ Munesh Kumar vs State Of U.P. And 2 Others on 24 September, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- WRIT - A No. - 14621 of 2019 Petitioner :- Mukesh @ Munesh Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Pankaj Srivastava Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
This petition is directed against an order dated 22.05.2018, whereby petitioner's claim for being paid minimum of pay scale has been rejected.
Petitioner claims to be working in the Forest Department since 01.08.1998. He earlier approached this Court by filing Writ Petition No. 36667 of 2017, which was disposed off vide following orders passed on 01.09.2017:-
"Learned counsel for the parties agree that the facts of the present case are identical to one in Writ Petition No. 29977 of 2017 (Balram Singh and 2 others Vs. State of U.P. and others) which has been disposed of on 13.7.2017.
Order dated 13.7.2017 reads as under:-
"Heard learned counsel for the petitioners and the learned Standing Counsel appearing for the State-respondents.
The petitioners are the daily wagers working with the Forest Department. They are claiming wages equivalent to the minimum of the pay scale of Class-IV employee in the Forest Department as enumerated by the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Jagjit Singh and others reported in (2017) 1 SCC 148 and by a Division Bench judgment of this Court in the case of Vinod Kumar Vs. The Divisional Forest Officer and others (Special Appeal No.48 of 2012) dated 2.1.2017.
The writ petition is disposed of with the direction to the authority concerned to consider the claim of the petitioners and pass appropriate orders in accordance with law, as far as possible, within a period of two months from the date a certified copy of this order is presented before the authority concerned".
This writ petition is also disposed of on the same terms."
His claim has been considered and rejected by the order impugned. The authority concerned has relied upon a Division Bench judgment of this Court dated 24.09.2015 which has already been set aside by the Apex Court in the case of Sabha Shanker Dube Vs. Divisional Forest Officer and others, Civil Appeal No. 10956 of 2018 (arising out of SLP (Civil) No. 1045 of 2016), decided on 14.11.2018.
Learned counsel for the petitioner further places reliance upon a judgment of this Court in Gopal and 4 others Vs. State of U.P. and 2 others in Writ Petitin No. 6281 of 2019 decided on 07.08.2019, whereby an identical order has been quashed by this Court with a direction upon the authorities to pass a fresh order in light of the law laid down by the Apex Cour:-
"Petitioners had earlier approached this Court for a direction to the respondents to release them minimum of pay-scale, relying upon a judgment of the Apex Court in State of Punjab and others Vs. Jagjit Singh and others, (2017) 1 SCC 148. A direction was also issued to the respondents to examine petitioners' claim in that regard.
The Principal Chief Conservation of Forest, vide his order dated 15th November, 2017, has rejected claim of the petitioners by observing that earlier adjudication by the Apex Court in the case of State of U.P. & Others Vs. Putti Lal reported in 2006 (9) SCC 337, was only for the petitioners before the Supreme Court and that the direction therein cannot be extended to other persons by relying upon the judgment of the Apex Court in the case of State of Punjab and others Vs. Jagjit Singh and others (supra). Certain observations have also been made by the concerned officer questioning the direction of this Court in applying the law laid down in Jagjit Singh's case (supra) upon other employees.
Learned counsel for the petitioners submits with vehemence that the officer concerned has no jurisdiction to question the wisdom of the orders passed by the constitutional Courts, nor can it proceed to make observations which may amount to sitting in appeal over the orders passed by the Court. It is also submitted that the issue has otherwise been settled by the Apex Court now in Sabha Shanker Dube Vs. Divisional Forest Officer and others, Civil Appeal No. 10956 of 2018 (arising out of SLP (Civil) No. 1045 of 2016), decided on 14.11.2018. It is also pointed out that to similar effect has been a judgment of this Court in Writ Petition No. 11964 of 2018 (Mohan Swaroop and another Vs. State of U.P. and 3 others). The judgment of this Court was put to challenge by the State in Special Appeal Defective No. 231 of 2019, which has also been disposed of on 14.3.2019. It is submitted that in view of the adjudication by the Apex Court in the case of Sabha Shanker Dube (supra) as followed by this Court in Mohan Swaroop (supra) and Special Appeal Defective No. 231 of 2019, the impugned decision of the authority concerned cannot be sustained.
While entertaining the writ petition time was granted to the learned Standing Counsel to obtain instructions on 23rd April, 2019. On 16th May, 2019, again the matter was directed to come up as fresh on 5th July, 2019, so that learned Standing Counsel may obtain instructions. The matter thereafter has been placed before the Court on 5th July, 2019 and following orders have been passed:-
"Despite grant of repeated opportunity, learned Standing Counsel has not been able to obtain instructions.
Learned counsel for the petitioners submits that the controversy raised in the present writ petition has otherwise been answered by this Court in Writ Petition No.11964 of 2018 (Mohan Swaroop and another vs. State of U.P. and others) decided on 17.11.2018, against which a Special Appeal Defective No.231 of 2019 filed has also been disposed of partially modifying the order of learned Single Judge. Submission is that since petitioners are identically placed, the authorities are illegally withholding the benefits.
In such circumstances, learned Standing Counsel is allowed three weeks' time to file counter affidavit. Rejoinder affidavit may also be filed within a week, thereafter.
List this matter on 6.8.2019. In case counter affidavit is not filed by then, the concerned Divisional Forest Officer, Social Forestry Division, Aligarh shall remain personally present before the Court."
Despite specific directions of the Court, neither any counter affidavit has been filed, nor the Divisional Forest Officer has appeared before the Court. The matter was again adjourned on 6.8.2019 to enable the learned Standing Counsel to obtain instructions. Learned Standing Counsel states that repeated letters have been sent by his office but none has responded.
The manner in which authorities have proceeded to ignore the directions of the Court to file a counter affidavit, and even letters of the State Counsel have not been responded, I am of the considered opinion that no further opportunity is required to be given to the respondents to file a reply in the matter. The adjudication of causes brought before this Court cannot be kept pending only because the officers choose not to file a reply. The Court otherwise is not impressed by the use of expression by the officer concerned in his order impugned which virtually questions the wisdom to issue direction for payment of minimum of pay-scale. Such order, therefore, must not be allowed to stand any further, particularly as it is otherwise in derogation of the orders passed by this Court and contrary to the law settled by the Apex Court.
Consequently, the writ petition succeeds and is allowed. The order impugned dated 15th November, 2017, passed by the respondent no. 2, stands quashed. A direction is issued to the respondents to consider the claim of the petitioners for being paid minimum of pay-scale keeping in view the specific directions of the Apex Court in the case of State of Punjab and others Vs. Jagjit Singh and others (supra), Sabha Shanker Dube Vs. Divisional Forest Officer and others, Civil Appeal No. 10956 of 2018 (arising out of SLP (Civil) No. 1045 of 2016), as also the judgment of this Court in Writ Petition No. 11964 of 2018 (Mohan Swaroop and another Vs. State of U.P. and 3 others) and Special Appeal Defective No. 231 of 2019. Specific order in that regard would be passed by the respondent no. 2, within a period of six weeks from the date of presentation of a certified copy of this order before him."
Learned Standing Counsel states that the authority concerned shall take an appropriate decision, in accordance with law.
Since the order impugned is found to be in teeth of the observations of the Hon'ble Supreme Court in the case of Sabha Shanker (supra), and the Division Bench Judgment relied upon in the order impugned since has been quashed by the Apex Court in the case of Sabha Shanker (supra), this petition is also disposed of in terms of the order dated 07.08.2019, passed in Writ Petition No. 6281 of 2019. Required consideration would be made within a period of two months from the date of presentation of certified copy of this order.
The writ petition is, accordingly, disposed of.
Order Date :- 24.9.2019 M. ARIF