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JATA SHANKER MISHRA versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Jata Shanker Mishra v. State Of U.P. & Another - WRIT - A No. 26752 of 2004 [2005] RD-AH 2230 (1 September 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Court No. 53

Civil Misc. Writ Petition No.  26752 of 2004

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Jata Shanker Mishra .............. Petitioner

Versus

State of U.P. and others      ...............   Respondents

Hon. Arun Tandon,J.

Heard Sri Sanjiv Mishra, Advocate on behalf of the petitioner, Sri K.R. Sirohi, Advocate, on behalf of the respondent no.2, and learned Standing Counsel on behalf of the respondent no.1.

The petitioner, Jata Shanker Mishra, was initially appointed as Stenographer (Hindi) in  judgeship of Banda in the  pay-scale of Rs. 470-735 on 4th February, 1981. The petitioner was confirmed on the  post of Stenographer Grade- II  in the pay-scale of Rs. 470-735 w.e.f. 1st March, 1986 and thereafter he was absorbed in the pay-scale of Rs. 515-860 w.e.f. 16th December, 1986. While the petitioner was working as Stenographer Grade II in the judgeship of Banda, he moved an application for being transferred from the judgeship at Banda  to the judgeship at Allahabad. The application so filed by the petitioner was allowed by the High Court vide order dated 15th April, 1987 on administrative side. As a consequence thereto the petitioner was transferred to the judgeship at Allahabad and the District Judge, Allahabad vide order dated 12th June, 1987 directed that the petitioner will be posted as Stenographer in the pay-scale lastly drawn by him in  Judgeship at Banda, however, he will not be entitled to benefit of seniority  qua his service at Banda.

According to the petitioner his salary was fixed in the pay-scale of Rs. 470-735 in place of Pay-scale of Rs. 515-860 and placed at the bottom of the seniority list, against the said order of the District Judge, Allahabad the petitioner filed Civil Misc. Writ Petition No.  14616 of 1988 before this Court. The writ petition was finally disposed of vide judgment and order dated 15th October, 1997. The operative portion of the said judgment and order of the learned Single judge reads as follows:

"The writ petition is finally disposed of with the direction that the petitioner shall continue to get the same pay as he was getting at Banda with consequential benefits.

The District Judge, Allahabad shall ensure payment of the arrears and difference of salary of the petitioner at an early date."

Being aggrieved against the aforesaid judgment and order of the learned Single Judge of this Court, the petitioner preferred Special Appeal No. 942 of 1997 before the Division Bench of this Court. The appeal was dismissed by the Division Bench of this Court vide judgment and order dated 8th May, 2003 with the finding that the petitioner shall be placed at the bottom of the list of existing stenographers  (Hindi) in the judgeship of Allahabad. However, he shall continue to get the same pay as he was getting at Judgeship of Banda with all consequential benefits. The petitioner accordingly filed a representation before the District Judge, Allahabad for re-fixation of his salary as per the salary which the petitioner had last drawn at Judgeship of Banda with all consequential benefits. Simultaneously, the other Stenographers (Hindi) working in the judgeship of Allahabad and others, who were placed above to the petitioner in the seniority list (because of the order of transfer) set up a claim for being granted the same pay-scale as has been granted to the petitioner, only on the strength of their being placed above the petitioner in the seniority. The petitioner had also made a representation dated 5th April, 2004 before the District Judge, Allahabad seeking seniority over other stenographers.

In order to resolve the aforesaid controversy the District Judge, Allahabad constituted a committee comprising of three judicial officers (Additional District and Session's Judges) of Allahabad Judgeship. The committee so constituted vide its report dated 15th May, 2005 made its recommendations and submitted that Sri Jata Shanker (petitioner) was entitled to the salary which he has last drawn at Judgeship of Banda and further he would be entitled to the annual increments and other consequential benefits flowing therefrom. Therefore,  his salary may be revised accordingly. The Committee has further submitted that that the claim of the petitioner for seniority had been rejected by the Hon'ble High Court, he was not entitled to the seniority over the other employees. On the other hand the claim of the other stenographers (Hindi) has been turned down by the Committee with reference to issue nos. 2 and 3.

The District Judge, Allahabad by means of the order dated 18th June, 2004 has agreed with the findings recorded by the Committee in respect of issue nos. 2 and 3, which has become final, as no person aggrieved by the same has raised any dispute.

So far as the recommendations made by the Committee in respect of issue no.1 is concerned, the District Judge, Allahabad disagreed with the recommendations made by the Committee and by means of the impugned order, has come to the conclusion that the petitioner, Jata Shanker would continue to draw the salary in the pay-scale of Rs. 515-860, which was  revised in the year 1986, revised to Rs. 1400-2300/- without any annual increments, so long as the persons placed above Sri Jata Shanker in the seniority do not reach at par with the salary drawn by Sri Jata Shanker. It was further provided that in case any excess amount has been paid to Sri Jata Shanker (petitioner), the same may be recovered from the salary of the petitioner. It is against this order that the present writ petition has been filed.

On behalf of the petitioner it is contended that the order passed by the learned District Judge, Allahabad dated 18th June, 2004, disagreeing with the recommendations of the three judicial officers' Committee is based on complete non-consideration of the order of this Court dated 15th October, 1997 passed in the writ petition no. 14616 of 1988, which has been affirmed by the Division Bench of this Court vide judgment and order dated 8th May, 2003 passed in Special Appeal No. 942 of 1997.

Learned counsel for the petitioner has submitted that  the words 'with all consequential benefits' admits of no two opinion and the petitioner is entitled to  the annual increments as per the pay-scale applicable.  Even otherwise, withholding of annual increments is a minor penalty with reference to the provisions of U.P. Government Servant (Discipline and Appeal) Rules, 1999.

employee on his having worked for the requisite length of period on a particular pay-scale in the grade. It is further submitted that learned District Judge  has misdirected himself that the petitioner is entitled the same pay as was last drawn by him at Judgeship of Banda.

Sri Amit Sthaleker on behalf of the District Judge, Allahabad has stated that the order of District Judge is in conformity with law and no interference with the said order of the District Judge  is called  for.

I have heard counsel for the parties and have gone through the records of the writ petition.

It is not in dispute that the petitioner prior to his transfer from the judgeship of Banda to the Judgeship   of Allahabad was in fact being paid salary in the pay scale of Rs. 515-860/-. This Court vide judgment and order dated 15th October, 1997 passed in Civil Misc. Writ Petition No.  14616 of 1988, has specifically held that the petitioner shall  continue to get the same pay-scale as he was getting at the judgeship of Banda with all consequential benefits. The Division Bench of this Court vide judgment and order dated 8th May, 2003 passed in Special Appeal No. 942 of 1997 has also reaffirmed the aforesaid directions. Thus this Court had specifically held that the  petitioner would be entitled to the same pay as he was getting at the judgeship of Banda with all consequential benefits, the three judicial officers' Committee constituted by the District Judge, Allahabad  in its report dated 15th May, 2003 (a copy whereof has been enclosed as Annexure-5 to the writ petition) has rightly recorded that the words 'with all consequential benefits'  necessarily meant, addition of annual increments, as an when they fall due in the pay-scale admissible. The three judicial officers' Committee therefore, has rightly held that the petitioner shall be entitled to the  annual increments in the pay-scale on which he had last drawn his salary in the judgeship of Banda. The learned District Judge under the impugned order has completely lost sight of the impact of the words 'with all consequential benefits'  while holding that the petitioner still continued to get the same pay-scale which was getting at the judgeship of Banda. The finding recorded in the impugned order to the effect, that because the petitioner had agreed to the placement at the bottom of the list of existing stenographers  (Hindi) in the judgeship of Allahabad, it is to be presumed to forgone that he had the  addition of annual increments as per  the pay-scale admissible, is totally misconceived. The placing of the petitioner at the bottom of the seniority on transfer of the petitioner would effect his seniority in the grade of Stenographer in the judgeship of Allahabad and  would mean that although the petitioner would in fact get higher salary then the persons placed above tot he petitioner, he shall forgo his  seniority, In other words the petitioner shall have no right to claim  seniority above of other stenographers, who were already working in the judgeship of Allahabad since prior to the transfer of the petitioner on the strength of his higher salary. Forgoing the seniority by the petitioner while seeking transfer  cannot be read so as to suggest that the petitioner has forgone his right of annual increments.

As already held herein above placement at the bottom of the seniority has effect that the transferred teachers will not claim the seniority over the persons working at the transferred place since prior to the transfer of the person concerned, although the transferred person may draw higher salary than the persons already working. The transferred employee only forgoes his seniority.

In such circumstances the order passed by the learned District Judge  dated 18th June, 2004 cannot be legally sustained and is hereby quashed. The respondents are directed to determine the salary payable to the petitioner in the pay-scale admissible in the light of the judgment and order of this Court dated 15th October, 1997, which has since been affirmed by the Division Bench of this Court in Special Appeal No. 942 of 1997  vide judgment and order dated 8th May, 2003 after adding annual increment and to pay difference of the salary to the petitioner accordingly at the earliest possible.

The writ petition is allowed accordingly.

01.09.2005

Sushil/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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