Uttarakhand High Court
Madhwa Nand Gahtori vs State Of Uttarakhand & Others on 5 September, 2018
Author: Lok Pal Singh
Bench: Rajiv Sharma, Lok Pal Singh
1
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 348 (S/B) of 2012
Madhwa Nand Gahtori ........... Petitioner
versus
State of Uttarakhand & others ............. Respondents
Mr. M.C. Pant, Advocate for the petitioner.
Mr. Anil Kumar Bisht, Standing Counsel for the respondent State.
Mr. Vinay Kumar, Advocate for respondent nos. 3 to 5.
Coram : Hon'ble Rajiv Sharma, A.C.J.
Hon'ble Lok Pal Singh, J.
[Per: Hon'ble Lok Pal Singh, J.] By means of present writ petition, the petitioner seeks following reliefs:
1A. Issue a writ, rule or direction in the nature of certiorari quashing the impugned judgment and order dated 21.08.2012 after calling the entire record from the respondents along with its effect and operation also along with the finding recorded by the Tribunal to this effect that the petitioner is a workmen.
1B. Issue writ rule or direction in the nature of mandamus directing the respondents to treat the petitioner as Stenographer Grade I keeping in view of their own order dated 23.10.2002 and the entry recorded in the service book of dated 01.06.2003 and also allow all the benefit of promotion on the post of Personal Secretary and other consequential benefits w.e.f. same date when the same was given to the private respondents and further to direct the respondents to placed the petitioner 2 at the appropriate place in the seniority list of Stenographer Grade I and deleting his name from the seniority list dated 20.10.09 of Stenographer II which is contained as Annexure no. 10 to the writ petition and further to quash the impugned entry recorded in service book of dated 01.06.05 by which the petitioner is shown as Stenographer II along with its effect operation also.
2. Issue writ rule or direction in the nature of certiorari quashing the impugned order dated 28.07.2009 along with its effect and operation also and further to redraw the seniority list by placing the petitioner at the appropriate place above the private respondents.
3. Issue writ rule or direction in the nature of mandamus to allow the claim petition no. 18/2010 had it been the impugned order was never in existence and further direct the respondents to consider the case of the petitioner for promotion to the post of Personal Assistant Grade I w.e.f. 24.03.2005 and further direct the respondents to consider and promote the petitioner to the post of Personal Secretary from the date when the other persons who were treated to be equivalent to the petitioner (on their own request) have been promoted i.e., w.e.f. October 2008 with all consequential benefits treating the petitioners as Stenographer Grade I had it been the impugned orders are never in existence.
4. Issue writ rule or direction in the nature of mandamus directing the State Government to take effective steps for bringing appropriate amendments in the U.P. Public Service (Tribunal) Act, 1976 (Act no. XVII of 1976) in consonance with the provisions of the Administrative Tribunal Act 1985 for providing efficacious and appropriate remedy for all employees of government and those employees serving under the government corporations for the redressal of their service grievances and further to declare that the repugnancy so far as baring a group of employees to approach Public 3 Service Tribunal under the State Law being repugnant to the Administrative Tribunal Act 1985 is unreasonable and liable to be struck down.
5. Issue any other writ rule or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
6. Award cost of the petition.
2) Factual matrix of the case, as narrated in the writ petition, are that the petitioner was initially appointed as Steno- typist in then pay scale of Rs. 490-760 w.e.f. 20.10.1986 in Uttar Pradesh Laghu Jal Vidyut Nigam Limited at Pithoragarh (for brevity here-in-after referred to as 'UPLJVNL'). The minimum qualification for appointment on the post of Steno-typist fixed as Bachelor Degree with shorthand speed of 80 w.p.m. (English) and shorthand speed of 60 w.p.m. (Hindi). The petitioner possessed the minimum qualification at the time of his appointment.
3) Petitioner was promoted to the post of Stenographer in the pay scale of 1400-2600 w.e.f. 01.06.1995 and transferred to the office of Superintending Engineer, U.P. Laghu Jal Vidyut Nigam Limited, Dehradun on probation for a period of one year. The educational qualification for appointment on the post of Stenographer Grade III, by direct recruitment, in UPLJVNL is Intermediate. The petitioner was promoted on the post of Stenographer in his earlier department w.e.f. 01.06.1995, after completing 9 years of service in the pay scale of 1400-2600 (revised pay scale Rs.5000-8000). The pay scale of Stenographer II is Rs.4500-7500 in UPLJVNL, which means that the petitioner is having the higher pay scale then the Stenographer II.
4) It is averred in the writ petition that there are three cadre posts in Stenographer cadre in U.P. Power Corporation. The same are as under:
4 Post Pay scale w.e.f. 14.01.2000
Stenographer Grade 3 Rs. 4200-6400
Stenographer Grade 2 Rs.4500-7500
Stenographer Grade 3 Rs. 5300-8600
In the earlier department of the petitioner the post structure in stenographer cadre is as follows:
Steno Typist : By direct recruitment on the result of a competitive examination.
Stenographer : (a) by direct recruitment on the result of a competitive examination 66.67%
(b) by promotion from amongst regular Steno-typist 33.33%
5) In the year 2000, in pursuance to the U.P. Electricity Reforms Transfer Scheme 2000, U.P. State Electricity Board was divided into three parts:
(i) U.P. Power Corporation Limited.
(ii) U.P. Jal Vidyut Nigam Limited
(iii) U.P. Transmission Limited.
6) It is also averred that the U.P. Laghu Jal Vidyut
Nigam Ltd. after change of its name was renamed as U.P. Jal Vidyut Nigam Ltd. and after creation of New Corporation, the employees of Laghu Jal Vidyut Nigam Ltd. were amalgamated to U.P. Jal Vidyut Nigam Ltd.
7) After the new State of Uttarakhand was carved out from the erstwhile State of Uttar Pradesh, the Uttarakhand Jal Vidyut Nigam Ltd. came into existence on 12.02.2001 and the Board of Directors of Uttarakhand Jal Vidyut Nigam Ltd., in its meeting dated 06.08.2002, had taken a decision to adopt the Rules, Regulations, Orders and service conditions, as applicable to the erstwhile U.P. State Electricity Board and U.P. Jal Vidyut Nigam Ltd. The petitioner, being a permanent resident of the State of Uttarakhand, opted and allotted the Uttarakhand Jal Vidyut Nigam Ltd. It is categorically stated that as per the decision taken by the 5 U.P. Jal Vidyut Nigam Ltd. the personnel, who were allocated to Uttarakhand Jal Vidyut Nigam Ltd., their services should be treated as transferred and Uttarakhand Jal Vidyut Nigam Ltd. has no power to convert their service conditions, pay scale or grading.
8) The case of the petitioner is that after completing 7 years of service in the cadre of Stenographer, which is equivalent to Stenographer II, the petitioner was promoted to the post of Stenographer Grade I on 29.10.2002, vide Office Order no. 1144-
G-M dated 08.11.2002 and allowed the revised pay scale of Stenographer Grade I, i.e., 5300-150-8600. On coming to know of said fact, Subhash Chander Sarpal, Guru Bachan Singh and Krishan Gopal Gandhi (non-respondents), who were Stenographer Grade II in the pay scale of Rs. 4500-7500, have made a representation dated 07.04.2003 to the effect that petitioner is getting higher pay scale and claimed parity with the petitioner on the ground of their appointment.
9) It is specifically stated by the petitioner that the above named persons are not equal to the petitioner as the petitioner was getting higher pay scale at the time of amalgamation of the services of the employees of the erstwhile U.P. Jal Vidyut Nigam Ltd. and the above named persons were the employees of the U.P. State Electricity Board and have been absorbed in the department on deemed deputation after creation of the Uttarakhand Jal Vidyut Nigam Ltd.
10) It is contended that above named employees were further promoted to the post of Personal Assistant on 24.03.2005. However, they were working in lower scale. Feeling aggrieved, petitioner made a representation to the respondent authorities with a request to promote the petitioner on the post of Personal Assistant, inasmuch as, petitioner was also having requisite qualifying service for promotion. To the utter surprise of the 6 petitioner, the respondents in spite of giving promotion, reverted him to Stenographer Grade II w.e.f. 01.06.2005 and made entry in the service book of the petitioner by manipulating the record. It is contended that by interpolation in the record of the petitioner, he has been reverted from Stenographer Grade I to Stenographer Grade II without affording him any opportunity of hearing. Petitioner sought information under Right to Information Act and came to know from the photocopies of service book supplied to him under RTI that his service book is interpolated.
11) Thereafter the respondent department constituted a committee for review of designations, pay scales and time scales in respect of employees originally appointed under UPJVNL. The Committee submitted its report on 01.08.2008 and opined that the pay scale which has been drawn by the petitioner is higher than the pay scale of Stenographer Grade II in UPSEB and, as such, the petitioner be treated to be equivalent to the post of Stenographer Grade II of UPSEB w.e.f. 09.06.1995. Whereas the petitioner was treated to be Stenographer Grade II of UPSEB w.e.f. 09.06.1995, he was getting pay scale of Stenographer Grade I.
12) Feeling aggrieved by the said report of the Committee, petitioner submitted objections to the respondents. Thereafter, respondents constituted a review committee to resolve the issue. Instead of taking decision on the representation of petitioner, the respondent authorities again promoted the above named employees to the post of Personal Secretary ignoring the claim of the petitioner and without waiting for the decision of the review committee constituted for the promotion of the petitioner.
13) It is further stated in the writ petition that despite the fact that the petitioner has filed his objections against above mentioned report of the committee, the review committee has not paid any heed and did not submit its report, as such, the petitioner 7 was constrained to file a writ petition, being Writ Petition no. 185 of 2009 (S/S) before this Court. This Court vide judgment and order dated 29.06.2009 pleased to dispose of the writ petition directing the petitioner to file fresh representation and directed the respondent no. 5 to consider and decide the same by a speaking and reasoned order within a period of four weeks from the date of production of certified copy of the order.
14) In compliance of said order, the petitioner submitted his detailed representation on 02.07.2009 against the report of the committee. The respondent authority rejected the representation of the petitioner vide order dated 28.07.2009 and issued tentative seniority list of Stenographer Grade II, wherein the name of the petitioner figured at serial No. 7. Being aggrieved by the rejection of representation and putting him under category 'Stenographer Grade II', the petitioner again approached this Court by filing Writ Petition no. 11 of 2010 (S/S). The said writ petition was dismissed by this Court vide order dated 16.02.2010 as under:
"Heard learned counsel for the petitioner. The petitioner has challenged the final seniority list. In my opinion, the appropriate remedy for redressal of this factual controversy can only be decided expeditiously before the Public Service Tribunal. The writ petition is dismissed on the ground of alternative remedy."
15) Thereafter, the petitioner approached the Public Service Tribunal and filed Claim Petition no. 18 of 2010. The Public Services Tribunal by its order dated 21.08.2012 dismissed the claim petition. It has been held by the Public Services Tribunal that the petitioner is workman, therefore, claim petition is not maintainable. Relevant paragraphs of said decision are excerpted here-in-below for convenience:
"Admittedly petitioner seeks parity with the employees of U.P. Electricity Board, which has been 8 held "Industry" by Hon'ble Supreme Court. Admittedly, the petitioner is an employee as stenographer in the UJVNL which cannot be said to be supervisory or administrative post. Therefore, the principle laid down for typist / clerk by the Hon'ble Supreme Court is fully applicable to the petitioner's case.
Therefore, we are of the considered opinion that the claim petitioner is not maintainable under Section 1(e) of Public Services Tribunal Act, 1976. In view of the aforesaid discussion, it would be futile to consider the case on merit.
The claim petition is dismissed, as this Tribunal has no jurisdiction to decide the controversy in the nature of Industrial Dispute in respect of workman under Section 1(e) of U.P. Public Services Tribunal Act, 1976."
16) Feeling aggrieved with the decision of the Tribunal, the petitioner has preferred present writ petition.
17) We have heard learned counsel for the parties and perused the entire material available on record.
18) The first limb of argument of Mr. M. C. Pant, learned counsel for the petitioner is that as the regular services of the petitioner stood amalgamated in to Uttarakhand Jal Vidyut Nigam Ltd. w.e.f. 01.01.2003, the Uttarakhand Jal Vidyut Nigam Ltd. is not empowered to apply any other rule regulations which adversely affect the petitioner but on the contrary respondent Corporation has placed the petitioner lower in the grading vis-à-vis the personnel lower in grade to the petitioner at the time of creation of Uttarakhand Jal Vidyut Nigam Ltd. Learned counsel for the petitioner would submit that due to this illegal and unlawful action the petitioner landed in the position where he was 20 years back, 9 ignoring the fact that the petitioner has got one promotion on the higher post in 1995. The performance of the petitioner was throughout adjudged as very good, excellent and outstanding in service, despite this he has been reverted to a lower post out-rightly overlooking his claim to be designated as Stenographer Grade I and wrongfully ignoring his due promotion to the post of Personal Assistant, Grade I in the pay scale of Rs. 5850-9400, as his juniors have been promoted w.e.f. 24.03.2005. The second limb of argument of learned counsel for the petitioner is that there is violation of Section 67 read with Section 74 of the U.P. Reorganization Act, in the case of the petitioner.
19) Admittedly, the petitioner has been working as Stenographer in the pay scale of Rs.5000-8000 since the date of his promotion, i.e., 14.06.1995, whereas his juniors till 27.03.2003, were working as Stenographer II in the pay scale of Rs. 4500-7500 and within the period of only two years brought to the pay scale of Rs. 5858-9400. A committee was constituted vide order dated 29.07.2003 to examine the cases of designation, pay scale, time pay scale etc. for those employees, who were absorbed in the corporation and were original employees of Laghoo Jal Vidyut Nigam Ltd., later on named as U.P. Jal Vidyut Nigam Ltd. The committee submitted its report on 04.11.2004. In said repot case of the petitioner was left out holding that cases of those steno-typist appointed prior to 23.03.1988 would be considered later. It is an admitted fact that the appointment date of the petitioner is 20.10.1986. In this way, the petitioner was discriminated in order to deny him promotion to the next higher posts.
20) A conjoint reading of Section 67 read with Section 74 of the Uttar Pradesh Reorganization Act, 2000 would reveal that service conditions which were made applicable prior to appointed day shall not be varied to the disadvantage of any employee except with the previous approval of Central Government. It is true that 10 the provisions of Section 74 generally construe in respect of State Government employees, but the language of the section also includes the service conditions of persons serving in connection with affairs of the Union or any State. On a conjoint reading of these sections, the necessary interpretation would be that the statutory corporations will governed with the directions of Central Government. In the instant case the respondents have utterly failed to show any direction of the Central Government empowering them to affect the existing rights, which were accrued to petitioner. Thus, the action of the respondents altering the status of the petitioner in respect of seniority, reduction in scale and not giving the benefits cannot sustain in the eyes of law. Apart from this, the impugned orders passed by the respondents changing the designation and cadre of the petitioner cannot be justified without giving any opportunity of hearing to him and the same is violative of principle of natural justice. The impugned order is contrary to the statutory provisions of U.P. Reorganization Act. Moreover, the findings of the committee are perverse. Even the representation made by the petitioner against the decision of the committee has not yet been decided.
21) Mr. M.C. Pant, learned counsel for the petitioner drew attention of this Court toward a judgment rendered by Hon'ble Apex Court in Union of India vs H.R. Patankar, AIR 1984 SC 1587. Relevant paragraph of said judgment is reproduced here-in- under:
"12. We are of the considered opinion that sub- rule (2) of Rule 5 is the relevant rule relating to the determination of the seniority of the officers recruited to the service under sub-rule (1) of Rule 5 of the Central Administrative Tribunal (Group B and C Miscellaneous Posts) Recruitment Rules, 1989. The seniority of such recruited officers is required to be determined with reference to the dates of their regular appointment to the posts. The proviso to sub-rule (2) shall cover the case of such officers whose seniority cannot be determined under sub-rule (2) as is the present case of the persons appointed / recruited on the same date. In such a case the 11 seniority of the officers recruited from the same source has to be determined by giving them the benefit of the equivalent post held by them in their parent departments. Sub-rule (2) and its proviso is based upon the general principle of service jurisprudence. It is not correct to say that the rules do not provide any method of determining the seniority of the persons recruited to the service and that in the absence of there being a specific rule, resort be had to be official memorandum relied upon by the respondents. Seniority is a relevant (sic) term having reference to the class, category and the grade to which the reference is made. Length of service is a recognised method of determining the seniority.
Such length of service shall have reference to the class, category or grade which the parties were holding at the relevant time. It, therefore, follows that total length of service is not relevant for determining the seniority but length of service to a particular class, category or grade is relevant consideration for the purpose of counting the period with respect to length of service for the purpose of determining the seniority. In other words, the period of holding of the equivalent post in the parent department would be the relevant period to be taken not of for the purposes of determining the seniority under Rule 5(2) and it proviso. Any other interpretation would be against the settled rules of service jurisprudence and is likely to create many anomalies resulting in failure of justice and defeating the acquired rights of the civil servants based upon their length of service. A perusal of the rule does not, in any way, show and rightly so that the rule-making authority had ever intended to take away the benefit of the length of service of a person in his parent department before his deputation and absorption in the service."
22) Attention of this Court in also drawn towards the judgment rendered by Hon'ble Supreme Court in Bangalore Development Authority vs Vijaya Leasing Ltd. and others, (2013) 14 SCC 737. On the strength of said judgment, learned counsel for the petitioner would submit that the Hon'ble Court can annul or declare any instrument or even rule to provide justice to the parties even if there is no specific challenge, by moulding the relief. Relevant paragraph of said judgment is extracted hereunder:
"17. Therefore, while exercising the extraordinary jurisdiction under Article 226 of the Constitution, the learned Single Judge came across 12 the above incongruities in the proceedings of the Hon'ble Ministry which resulted in the issuance of denotification dated 05.10.1999. We fail to note as to how the ultimate order of the learned Single Judge in setting aside such a patent illegality can be held to be beyond the powers vested in the constitutional court. The conclusion of this Court in Gujarat Steel Tubes Ltd. vs Mazdoor Sabha, (1980) 2 SCC 593 that judicial daring is not daunted when glaring injustice demands even affirmative action and that authorities exercising their powers should not exceed the statutory jurisdiction and correctly administer the law laid down by the statute under which they act are all principles which are to be scrupulously followed and when a transgression of their limits is brought to the notice of the Court in the course of exercise of its powers under Article 226 of the constitution, it cannot be held that interference in such an extraordinary situation to set right an illegality was unwarranted.
23) The first principal question before this Court is -
whether the impugned judgment and order dated 21.08.2012, passed by the Public Services Tribunal, Uttarakhand, Dehradun, dismissing the claim petition of the petitioner, holding that the petitioner is a workmen is correct, or not?
24) The question posed here was decided by the Hon'ble Apex Court in the case of D.K. Yadav vs J.M.A. Industries Ltd., (1993) 3 SCC 259. Paragraphs no. 7 to 12 of the said judgment are relevant in the context of present case. The same are reproduced here-in-blow:
"The principal question is whether the impugned action is violative of principles of natural justice. In A.K Kraipak v. Union of India, 1969 2 SCC 262, a Constitution Bench of this Court held that the distinction between quasi-judicial and administrative order has gradually become thin. Now it is totally eclipsed and obliterated. The aim of the rule of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules operate in the area not covered by law validly made or expressly excluded as held in Col. J.N Sinha v. Union of India, 1971 1 SCR 791. It is settled law that certified standing orders have statutory force which do not expressly exclude the application of the principles of natural justice. Conversely the Act made exceptions for the application of principles of natural 13 justice by necessary implication from specific provisions in the Act like Sections 25-F; 25-FF; 25-FFF etc. The need for temporary hands to cope with sudden and temporary spurt of work demands appointment temporarily to a service of such temporary workmen to meet such exigencies and as soon as the work or service is completed, the need to dispense with the services may arise. In that situation, on compliance with the provisions of Section 25-F resort could be had to retrench the employees in conformity therewith. Particular statute or statutory rules or orders having statutory flavour may also exclude the application of the principles of natural justice expressly or by necessary implication. In other respects the principles of natural justice would apply unless the employer should justify its exclusion on given special and exceptional exigencies.
8. The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person.
9. It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill v. Chief Election Commissioner, 1978 1 SCC 405, the Constitution Bench held that 'civil consequences' covers infraction of not merely property or personal right but of civil liberties, material deprivations and non- pecuniary damages. In its comprehensive connotation every thing that affects a citizen in his civil life inflicts a civil consequence. Black's Law Dictionary, 4th edn., page 1487 defined civil rights are such as belong to every citizen of the state or country ... they include ... rights capable of being enforced or redressed in a civil action.... In State of Orissa v. (Miss) Binapani Dei, 1967 2 SCR 625, this Court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice.
10. In State Of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284, per majority, a seven-Judge Bench held 14 that the rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. In Maneka Gandhi v. Union of India, 1978 1 SCC 248 another Bench of seven Judges held that the substantive and procedural laws and action taken under them will have to pass the test under Article 14. The test of reason and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice.
11. The law must therefore be now taken to be well- settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both.
12. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness 15 despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable."
25) Therefore, what follows from the decision rendered in D.K. Yadav's case (supra) is that it is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. Fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence.
26) Admittedly, the petitioner has been working as Stenographer in the pay scale of Rs. 5000-8000 since the date of his promotion, i.e., 14.06.1995 whereas, his juniors till 27.03.2003 were working as Stenographer Grade II in the pay scale of Rs. 4500-7500 and within the period of only two years brought to the pay scale of Rs. 5850-9400 were the petitioner by their illegal and unlawful action landed in the position where he was 20 years back, even without giving the effect that the petitioner has got one promotion on the higher post in 1995. Though the performance of the petitioner was above the mark, ignoring the same, he has been reverted to a lower post, whereas he was aspiring for his claim of designation as Stenographer Grade I and due promotion to the post of Personal Assistant I in the pay scale of Rs. 58500-9400 as his juniors have been promoted w.e.f. 24.03.2005.
1627) The respondent authorities have totally failed to take into consideration the decision taken by the U.P. Jal Vidyut Nigam Ltd. in its Board meeting dated 06.08.2002 to the effect that the personnel who were allocated Uttarakhand Jal Vidyut Nigam Ltd. have been transferred and to be treated as they were working with U.P. Jal Vidyut Nigam Ltd. and Uttarakhand Jal Vidyut Nigam Ltd. has no power to convert their service conditions, pay scale or grading. Respondent have also failed to consider the report submitted by the committee on 01.08.2008, wherein it has opined that the pay scale which has been drawn by the petitioner is higher than the pay scale of Stenographer Grade II in U.P.S.E.B. It is also an admitted fact that the respondents have approved the pay scale and grade of the petitioner on 08.11.2002, hence the seniority of the petitioner could not be fixed with the persons of lower grade, i.e., Stenographer Grade II and his seniority shall be recounted in the cadre of Stenographer Grade I from the date of his absorption as Stenographer Grade I. It is not the case of respondents that the petitioner has placed wrong facts on record for getting his earlier promotion and in fixation of his salary. Some of the stenographers have been conferred designation of Stenographer Grade I on the ground of parity of scale drawn by the petitioner much later, inasmuch as the petitioner was already working as Stenographer Grade I, ignoring the claim of the petitioner for the next promotion and others have been promoted twice since then. This act on the part of the respondent authority amounts to infringement of the fundamental right of the petitioner, i.e., right of equality. Such an act of respondents is arbitrary, unfair, biased and unconstitutional.
28) Since the petitioner is working on the post of Stenographer he cannot be considered a workman. Assuming for the sake of argument that the petitioner is a workman then, it was incumbent upon the respondents to make a reference to the Labour Court for redressal of his grievance, but the same has not been 17 done. It is trite that no one should be left remediless. When the writ petition was dismissed by the court on the ground of alternative remedy available to the petitioner to approach the P.S.T. and objections were not raised by the respondents that the claim petition before the P.S.T. is not maintainable.
29) The act of the respondent authorities depriving the petitioner of his promotion is a clear cut violation of Article 14 of the Constitution of India. Since the Stenographers working in the same department have been given the benefit of promotion, therefore, the petitioner is also entitled for the same relief. The respondent authorities have got no authority to change the criteria of the fixation of salary and promotion to the petitioner, which were prevailing in the Uttarakhand Jal Vidyut Nigam Ltd. The respondent Nigam cannot change the service condition of the petitioner after his allocation to the said Nigam from U.P. Jal Vidyut Nigam Ltd. (parent department) ignoring the provisions contained in U.P. Reorganization Act and the amalgamation scheme issued by the Government. It is apparent from the record that the petitioner has been discriminated by depriving him from his due promotions.
30) For the foregoing reasons, the writ petition is allowed. The order impugned passed by the Public Services Tribunal, Uttarakhand is hereby set aside. The claim petitioner of the petitioner stands allowed. The impugned order dated 28.07.2009 along with its effect and operation is also quashed. A writ of mandamus is issued directing the respondents to treat the petitioner as Stenographer Grade I keeping in view their own order dated 23.10.2002 and the entry recorded in his service book dated 01.06.2003. The petitioner shall, accordingly, be promoted to the post of Personal Assistant Grade I w.e.f. 24.03.2005 and subsequently to the post of Personal Secretary from the date when the other persons, who were treated equivalent to him have been 18 promoted, i.e., w.e.f. October 2008 along with all consequential benefits. Respondents are also directed to place the petitioner at the appropriate place in the seniority list of Stenographer Grade I, amending the impugned entry recorded in service book dated 01.06.2005, wherein the petitioner is shown as Stenographer Grade II. The above benefits shall be granted to the petitioner within a period of three months from the date of receipt of certified copy of this order before the authority concerned. No order as to costs.
(Lok Pal Singh, J.) (Rajiv Sharma, A.C.J.) Dt. September 05, 2018. Negi 19 20 21