Allahabad High Court
Surendra Prasad Barnwal vs The State Of U.P. And Others on 6 February, 2020
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 81 Case :- WRIT - A No. - 64094 of 2011 Petitioner :- Surendra Prasad Barnwal Respondent :- The State Of U.P. And Others Counsel for Petitioner :- Virendra Kumar,V.K. Gupta Counsel for Respondent :- C.S.C.,A.K.Mehrotra Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner. Although contesting respondent nos.2 to 8 are duly represented, none has appeared on their behalf even when the matter is taken up in the revised call.
The petitioner is aggrieved by the order of 01 July 2011 in terms of which his claim for appropriate fixation of the third time scale in accordance with the Government Order of 26 September 2010 has come to be negatived.
As is evident from the recitals appearing in the impugned order and on which there is no dispute, the petitioner was appointed initially as an LT Grade Teacher on 01 September 1977 and confirmed in the Inter College on that post on 01 April 1981. He was thereafter promoted to the post of Lecturer (Science) on 17 July 1987. The respondents paid him the time scale on completion of 9, 14 and 19 years. The case of the petitioner however was that various juniors had been granted benefit of the revised third time scale while the petitioner was deprived of those benefits. Details of such employees were also set forth in the representation which was made on 02 June 2011. Additionally the petitioner sought to draw support from the Circular issued by the respondents on 27 December 2016 in which it was clarified that in case, such an anomaly did arise, it was imperative for the respondents to ensure that the senior was placed at par with his juniors. The Government Order of 26 September 2010 has noticed that so far as teachers in the LT Grade are concerned who were initially granted the third time scale of 8550-13500 would be eligible to draw and be placed in the time scale of 10560-15200. The respondents have taken the position that while the petitioner was promoted in the cadre of Lecturer, the juniors who were conferred that benefit were direct recruits and consequently he could not claim any parity with them. It is in that context that learned counsel places reliance upon a decision rendered by a Division Bench of this Court in Hamid Ali Qazi and others Vs. U.P. Power Corporation LTD. and others, 2007 (25) LCD 1487, where in a similar factual scenario, the Division Bench held as under:-
"11. Petitioner's counsel has relied upon the cases reported in (1999) 4 SCC 756, Kamlakar and others v. Union of India and others and (2007) 6 SCC 9, Nehru Yuva Kendra Sangathan v. Rajesh Mohan Shukla and others.
In the case of Kamalakar (Supra) Hon'ble Supreme Court proceeded to held as under:
"12. We have considered the limited issue. We are of the view that all these appellants should get the same relief as the appellants in the Civil Appeal which arose out of Special Leave Petition No. 16646 of 1995. Once they were all in one cadre, the distinction between direct recruits and promotees disappears at any rate so far as equal treatment in the same cadre for payment of the pay scale given in concerned. The birthmarks have no relevance in this connection. If any distinction is made on the question of their right to the post of Data Processing Assistants they were holding and to its scale- which were matters common to all of them before the impugned order of the Government of India was passed on 2.7.1990, then any distinction between Data Processing Assistants who were direct recruits and those who were promotees, is not permissible. We, therefore, reject the respondent's contention. We have examined the record and the common points arising in this case and those in Civil Appeal which arose out of Special Leave Petition 16646 of 1995 and we are unable to find any lawful distinction between the appellants and those in the other appeal which has been allowed."
In the case of Nehru Yuva Kendra Sangathan (Supra), Hon'ble Supreme Court had held as under:
"9. ?......... We find that the nature of duties being discharged by the Youth Coordinators who have come on deputation and have been absorbed as such and those who were directly recruited on fixed terms are discharging the same duties. The only difference is their source of recruitment. Once the deputationists are discharging the same duties and are being paid salary and other allowances then there is no reason to deny the same benefits(sic to those) who are discharging the same duties and functions. Those deputationists now absorbed obtained the order from this Court but the direct recruits did not approach this Court, they were treated as a class apart because of their source of recruitment. Once these persons are already working for more than two decades discharging the same functions and duties then we see no reason why the same benefit should not be given to the respondents. Looking to the nature and duties of these respondents we are of opinion that there is no reason to treat them differently. ?...................... Therefore, there is no reason not to grant them the same scale of pay and as such this Court at the time of admission has confined the relief that why it should not be granted from the date of the filing of the writ petition in the High Court. Accordingly, we dispose of these civil appeals with a direction that the same benefits as were being given to the Youth Coordinators who were initially on deputation and were absorbed, should be given to the respondents from the date of filing of the writ petition in the High Court of Allahabad."
The judgment of Hon'ble Apex Court relied upon by the petitioner's counsel squarely covers the present controversy.
12. In view of the above it is not the source of recruitment plays role in fixation of salary, perks and other service benefits but it is the service condition of the cadre concern plays role in fixation of salary perks and revised scale. Once an incumbent joins a cadre whether as promotee or as direct recruit, the persons from both the categories shall be entitled for same salary, perks and other benefits."
The Court notes that in Hamid Ali Qazi it has been unequivocally held that once promotees and direct recruits come to constitute members of a single cadre, they cannot be discriminated insofar as the issue of pay scale is concerned. Viewed in that light, the Court finds substance in the submissions addressed and consequently finds itself unable to sustain the impugned order.
Accordingly the writ petition is allowed. The impugned orders dated 23 April 2011 and 01 July 2011 are hereby quashed. The matter shall in consequence stand remitted to the fourth respondent who shall deal with the claim of the petitioner afresh and in light of the observations made hereinabove. The exersixe may be concluded with expedition and preferably within three months from the date of presentation of a certified copy of this order.
Order Date :- 6.2.2020 Vivek Kr.