Allahabad High Court
Chaman Joshi vs State Of U.P. And Ors. on 16 January, 1995
Equivalent citations: [1995(70)FLR855], (1996)ILLJ52ALL, (1995)3UPLBEC1909
JUDGMENT A. Chakrabarti, J.
1. The case in brief in the present writ petition is that the petitioner was appointed in the post of Meter Reader in Nagar Palika, Dehradun on probation for a period of one year after working since April 3, 1972 on the temporary post of Meter Reader. The petitioner was confirmed on the said post on June 13, 1975. After constitution of Garhwal Jal Sansthan Dehradun the petitioner became its employee. On March 24, 1976 the petitioner was transferred to Jal Sansthan Mus-soorie in the post of Meter Reader. On April 27, 1978 the petitioner was appointed in the post of Assistant Meter Inspector for a period of three months upon successful participation in the interview and selection by the Selection Committee. On August 2, 1978 the respondent No. 2 appointed the petitioner in the post of Assistant Meter Inspector on probation for one year and by order dated October 10, 1980 the petitioner was confirmed in the post of Assistant Meter Inspector. Under a resolution dated May 16, 1981 the post of Assistant Meter Inspector was designated as Meter Inspector and the petitioners was directed to fill up the option form and accordingly he submitted duly filled up option form on August 14, 1981. The report of the Pay Commission was announced in July, 1979 wherein no pay-scale was shown for the post of Meter Inspector and the respondent No. 2 continued to pay salary to the petitioner in the scale as prescribed by the Kumaon Jal Sansthan upto April, 1980. The respondent No. 2 passed an order in contemplation of approval of the State Government giving pay scale of Rs. 340-350/-. On July 31, 1979 the petitioner made a representation to the Executive Engineer, Jal Sansthan, Mussoorie who forwarded the same to the respondent No. 2 and by such representation the petitioner contended that the Meter Inspector in Agra Jal Sansthan is getting pay scale of Rs. 400/695/-- and the respondent No. 2 recommended to the respondent No. 1 to grant salary to Meter Reader in the pay scale of Rs. 360-620/-. The respondent No. 1 issued revised pay- scale on February 14, 1990 for different posts including the Meter Inspector revising it from Rs. 485-860 to 1400-2300. As option forms were to be filed upon duly filling it up, the petitioner filed an application on May 16, 1990 before the Executive Engineer, Garhwal Jal Sansthan and on May 17, 1990 before the respondent No. 2 for issuance of option form and for granting pay scale to the petitioner at the revised rate but none of the reliefs was made available to him.
2. The petitioner further contended that he moved a writ petition on July 11, 1990 which was disposed of by this Hon'ble Court directing the respondent No. 2 to decide the representation within one month. Ultimately the representation was decided by the respondent No. 2 on August 13, 1990 but such decision, according to the petitioner, is arbitrary and illegal and as such the same was challenged in the present writ petition.
3. The respondents contested the proceeding filing a counter- affidavit. The respondents denied the promotion of the petitioner to the post of Meter Inspector. It has further been denied that there was either any post of Meter Inspector in the Jal Sansthan or it was created by the Jal Sansthan. The petitioner, according to the respondents, continued only as an Assistant Meter Inspector with an additional remuneration of Rs. 25/- per month for spot billing. The Pay Commission report for the Jal Sansthan in 1979 contained no pay scale of Meter Inspectors as there was no post of Meter Inspector in the Jal Sansthan. The Board Resolution dated May 16, 1981 was totally misinterpreted and the petitioner upon such misinterpretation refused to accept the pay scale of Assistant Meter Inspector. It has been contended that the petitioner should have filed his claim before the Conciliation Officer under the U.P. Industrial Disputes Act, 1947 because the petitioner is a workman under the provision of the said Act. The petitioner is entitled to the pay scale of Rs. 825-1400/- which has been meant for Assistant Meter Inspector as per the Pay Committee report.
4. The petitioner filed a rejoinder affidavit denying the material allegation on merits. But, as regards the status of the petitioner as workman and his remedy before the U.P. Industrial Disputes Act forum, though denied, no specific recitals have been made for an effective denial. Matter was heard on August 18, 1994 and August 31, 1994.
5. Learned counsel for the petitioner refers to the resolution at Annexure No. IV to the writ petition, option form at Annexure No. V and document at Annexure No. VI claiming that the post of Meter Inspector was there and that he was promoted to the said post. The learned counsel further contended that the impugned order rejecting the representation has not been passed giving reason. The contention of the petitioner is that the post of Meter Inspector is there and he is entitled to the said post and consequently the pay-scale was prescribed therefor. Learned counsel for the respondents contended that in the present case the details of the facts are to be ascertained before granting any relief to the petitioner and accordingly the alternative remedy available under Section 4(k) of the U.P. Industrial Disputes Act is more appropriate for the petitioner. In this connection the contention of the respondent in paragraph No. 9 of the counter affidavit and reply of the petitioner in paragraph No. 10 of the rejoinder affidavit have been referred to. The said pleadings show that the categorical assertion saying that the petitioner is a workman and as such the alternative forum provided under the U.P. Industrial Disputes Act is to be availed of. The reply of the petitioner is a bare denial not amounting to effective denial of the assertion. On merits the learned counsel for the respondents contended that no order of appointment or promotion to the petitioner in the post of Meter Inspector is existing. Statutory provision under Section 27 of the Water Supply and Sewage Act, 1975 does not cover such a post unless posts were created. The resolution dated May 16, 1981 could not create the post of Meter Inspector by-passing statutory provision. In support of the contention against the maintainability of the writ petition the learned counsel for the respondent referred to the case of Titaghur Paper Mills Co. Ltd v. State of Orissa AIR 1983 SC 603., the case of S. Jagdeesh v. A. N. S. A. College, 1983 (46) FLR 375 (SC)., and the case of Assistant Collector of Central Excise Chandan Nagar, West Bengal v. Dunlop India Ltd. AIR 1985 SC 330.
6. It has been consistently held in the aforesaid cases that the writ petition is not to be entertained when there is an effective alternative remedy. Such propositions of law have been reiterated repeatedly in various cases, including the case of State of U. P. v. Labh Chand (1993-II-LLJ-724) (SC) holding that a cause maintainable before the Tribunal under the U. P. Public Service is not maintainable before a court on the ground of alternative remedy. Similar findings have been arrived at in the case of Chandrama Singh v. Managing Director and Ors. 1991 (63) FLR 478 (Alld) (F. B.) wherein the alternative remedy provided before the forum under the U.P. Industrial Disputes Act is held to be efficacious alternative remedy and writ petitions on such causes are not to be entertained.
7. In the circumstances, on the ground of existence of alternative remedy, which has been urged, in the counter-affidavit itself, served upon the petitioner on May 3, 1991, the writ petition is not maintainable and is accordingly dismissed. I make it clear that the petitioner if approaches before the forum provided under the U.P. Industrial Disputes Act, the same will be considered on merits and other points considering the question of limitation sympathetically and leniently. There will be no order as to costs.