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Shri Jalpa Prasad Mishra & Another v. State Of U.P. & Others - WRIT - A No. 1840 of 2001  RD-AH 9812 (22 May 2007)
Court No. 10
Civil Misc. Writ Petition No. 1840 of 2001
Jalpa Prasad Mishra
State of U.P. & others
Hon'ble Anjani Kumar, J.
Hon'ble Sudhir Agarwal, J.
The Petitioners, by means of this writ petition have sought the following relief :
"a) to issue a writ, order or direction in the nature of certiorari quashing the order dated Ist April, 2000 (Annexure-8 to the writ petition).
b) to issue a writ, order or direction in the nature of mandamus commanding the respondents to grant the petitioners the benefit of the pay-scale of lecturer and also be pleased to direct the respondents to fix the pension of the petitioners accordingly as revised from time to time as per the Rules so that justice be done.
c) to issue any other and further writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case.
d) to award cost of the writ petition to the petitioners.
Learned counsel for the petitioner submitted that the Government Order dated 17.10.1998 came up for consideration before a Division Bench of this Court in Dr. Swatantra Bala Sharma Vs. State of U.P. & others, 1999 (3) ESC 2404 wherein this Court held that the benefit of the said Government Order would be applicable from the date of the initial appointment. Subsequently, the correctness of the judgment of Division Bench in Dr. Swatantra Bala Sharma (supra) was considered by a Full Bench in P.K. Malik Vs. State of U.P. & others, 2005 (4) ESC (All.) 2404 wherein the said decision has been upheld holding that the Court can grant relief from the back date if the Government itself fails to do so and in para-1 of the judgment, the Full Bench held as under :
"In this view of the matter the third question is also answered. Thus the Division Bench in Swatantra Bala's case (supra) had rightly held that the Court can grant relief by way of making a Government Order, particularly the Government Order dated 17.10.1998 retrospective in operation. If the Government had failed to do so by itself, it would be an exercise by the Court in removing unconstitutionality. The way, we read question No. 3 referred by the Division Bench before us, it appears to us that the question is not one in regard to correctness of the decision of the Swatantra Bala's case (supra), but it is a question with regard to the Court's power which can be exercised under Article 14, for this the sky is the limit, but that though the limit is so high the Court must only very carefully exercise the powers of enforcing equality, never acting cursorily."
Learned standing counsel appearing for the State of U.P. and University could not dispute the legal position.
In view thereof, it is evident that this matter requires to be reconsidered by the respondents in the light of the law laid down by this Court in Dr. Swatantra Bala Sharma (supra) and P.K. Malik (supra). The writ petition is, therefore, allowed. The order dated 1.4.2000 (Annexure-8 to the writ petition) is hereby quashed. The respondents are directed to reconsider the matter in view of the law laid down by this Court in Dr. Swatantra Bala Sharma (supra) and P.K. Malik (supra) and to pass a fresh order by giving reasons expeditiously preferably within three months from the date of production of certified copy of this order. In case, the respondents find that the petitioner is entitled for designation and pay scale of lecturer, and consequently some amount is found payable to him, the same shall be determined and paid to the petitioner within a period of six months thereafter.
There shall be no order as to costs.
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