Uttarakhand High Court
State Of Uttarakhand And Others vs Vikas Babu on 14 February, 2018
Equivalent citations: AIRONLINE 2018 UTR 242
Author: Alok Singh
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 693 of 2017
With
Delay Condonation Application No. 11429 of 2017
State of Uttarakhand & others. ............ Appellants
Versus
Vikas Babu. .............. Respondent
Mr. S.S. Chauhan, Deputy Advocate General for the State of Uttarakhand / appellants.
Mr. Anil Anthwal, Advocate for the respondent / writ petitioner.
JUDGMENT
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Alok Singh, J.
Dated: 14th February, 2018 K.M. JOSEPH, C.J. (Oral) There is delay of 139 days in filing the appeal. Having heard the learned counsel for the parties, we are of the view that the delay should be condoned. Accordingly, the delay will stand condoned and the Application for condonation of delay will stand allowed.
2. Appellants are the respondents in the writ petition. The writ petition was filed seeking the following reliefs:
"(i) a writ order or direction in the nature of certiorari quash the impugned order dated 3.10.2014 the respondents no. 3.
(ii) a writ order or direction in the nature of mandamus commanding the respondents to pay the petitioner, grade pay (ACP) of Rs. 4200/- according to the Government Order No. 872XXVII(7)Na-Prati-/2011 dated 8.3.2011 for which the petitioner is entitled."
3. The writ petitioner, apparently, was visited with minor penalty of censure vide Annexure No. 3 order. The writ petition was filed complaining that the adverse entry in the service record will not have effect after three years. The writ petitioner made a representation and the 2 said representation was rejected by the impugned order dated 03.10.2014. It is, therefore, challenging the said order that the writ petition was filed.
4. The learned Single Judge disposed of the writ petition as follows:
"Mr. C.S. Rawat, Advocate for the petitioner. Mr. Vikas Pande, Standing Counsel for the State. Heard.
Petitioner was appointed as Fireman in the respondent- department. He was posted at Almora. The petitioner was assigned the duty at Kumbh Mela w.e.f. 07.01.2010.
However, the fact of the matter is that the petitioner joined his duties after three days but in the meantime, he has submitted his medical leave. The penalty of censure was imposed upon the petitioner, which was annexed as Annexure No. 3 of the writ petition.
In view of this, the petitioner was not granted the benefit of nd 2 Assured Career Progression Scheme for grade pay of Rs. 4200/- as on 17.07.2013.
However, as per the order dated 17.07.2010, the effect of minor punishment is only for a period of one year. Thus, the petitioner was required to be granted benefit of 2nd Assured Career Progression Scheme for grade pay of Rs. 4200/- after expiry of period of one year of the imposition of penalty.
Accordingly, the writ petition is allowed. The respondents are directed to grant benefit of 2nd Assured Career Progression Scheme as grade pay of Rs. 4200/- to the petitioner, as per the Govt. Order No. 872XXVII (7) Na-Prati/2011 dated 08.03.2011, within a period of four weeks from today."
5. We have heard Mr. S.S. Chauhan, learned Deputy Advocate General for the State / appellants and Mr. Anil Anthwal, learned counsel appearing for the respondent / writ petitioner.
6. We notice that this is a case, where pleadings were exchanged, namely, a counter affidavit was filed by the State and the writ petitioner had also filed a rejoinder affidavit. In the writ petition, we may notice that the specific case of the writ petitioner in Ground (a) is as follows:
"a) Because the act of the respondent is illegal and improper.
The respondents failed to considered that the affect of adverse entry will be end after 3 years therefore after 17-11- 2013 the petitioner is entitled to get grade pay of Rs. 4200/-."
37. We notice, however, that the learned Single Judge, in the judgment, proceeds on the basis that, as per Annexure No. 3 order, the effect of censure will not exist after one year. This is not even the case pleaded by the writ petitioner, as can be noticed from the contents of Ground (a). Furthermore, we notice that in paragraph 16 of the counter affidavit, the appellants have set out the following case:
"16. That in reply to the contents of para 17 & 18 of the writ petition it is submitted that the ACP is granted on the post filled by direct recruitment and the services are to be regular and satisfactory from the date of initial appointment. Although the petitioner have served in the department for 16 years but the petitioner has been punished several times for different charges and further the petitioner has also been suspended for remaining absent without availing leave. The petitioner however, has been granted first ACP in the grade pay of Rs. 2400/- on 17.07.2013. If the petitioner's further services are satisfactory then according to the Government Order no. 589/XXVII(7)40(IX)/2011 Dated 01.07.2013 after completing 16 years of services on 16.07.2019 the petitioner would be granted second ACP from 17.07.2019 in the grade pay of Rs. 4200/-."
8. The reply to the above paragraph 16 in the rejoinder affidavit is as follows:
"16. That the contents of the paragraph no. 16 of the counter affidavit are not admitted as stated. It is submitted that once the department issued a letter dated 3.10.2014 by which the department found the service record of the petitioner satisfactory but beyond this the respondents are failed to grant the Grade Pay of Rs. 4200/- to the petitioner, the act of the respondents are dubious in nature. The petitioner is entitled to get the higher grade pay."
9. Learned Deputy Advocate General would also submit that the learned Single Judge has not even set aside the impugned order.
410. We would think that the learned Single Judge has not considered the aspects, which were referred to by the appellants in their counter affidavit and, therefore, the judgment passed by the learned Single Judge cannot be sustained and the matter should be remitted back.
11. Accordingly, the impugned judgment is set aside; the matter is remitted back; the writ petition will stand listed on 5th March, 2018 before the learned Single Judge in the Daily Cause List; and we request the learned Single Judge to dispose of the matter at the earliest and, if possible, within a period of one month from 5th March, 2018. We make it clear that we have not expressed any view regarding the merits of the contentions of the parties. The appeal is, accordingly, disposed of.
(Alok Singh, J.) (K.M. Joseph, C. J.)
14.02.2018 14.02.2018
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