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Sadanand v. State Of U.P. And Others - WRIT - A No. 22674 of 2003  RD-AH 13024 (4 August 2006)
CIVIL MISC. WRIT PETITION NO.22674 OF 2003
State of U.P. and others
HON. SHISHIR KUMAR, J.
The present writ petition has been filed for quashing the order-dated 5.5.2003. Further prayer is for issuing a writ of mandamus directing the respondents to declare the cut of date of Government Order dated 12.6.1998 as ultra virus. Further prayer is also for issuing a writ in the nature of mandamus directing the respondents to pay the salary protecting benefit of last basic salary drawn as Rs.1590/-in earlier department from the date of joining to the petitioner.
The petitioner was appointed as a Junior Engineer, P.W.D. through examination conducted by U.P. Public Service Commission on 24.9.1991. A list of selected persons was issued on 15.2.1990 in which the name of the petitioner was at serial no. 35. While the supplementary list was also issued containing the list of some persons who were placed at waiting list after the joining of service of the petitioner. The petitioner has been continuously working on the said post without any interruption. Prior to the selection in the Public Works Department the petitioner had worked in the U.P. Sahkari Chini Mills Ltd. U.P. from 4.1.1984 to 23.9.1991 and when the petitioner joined the service in the Public Works Department, the last basic pay of the petitioner was Rs.1590/-. The employees who had worked in the different departments were not given the benefit of their earlier service; hence the matter was considered on the basis of resentment by various persons. Then by G.O. dated 12.6.1998 it has been provided that the persons who have worked in the Public Department Corporations, Universities and thereafter if they join the service of the State of U.P., will be given the last salary protection. A copy of the said order has been filed as Annexure-1 to the writ petition.
Since the petitioner has already worked in the Sahkari Chini Mills Ltd., Aurai district-Varanasi, hence the petitioner has submitted an application for the aforesaid benefit under the aforesaid Government Order. The other persons who have been selected through Public Service Commission in the Public Works Department and earlier they have served the different Corporations are being paid salary protection under the Government Order dated 12.6.1998, but the petitioner has been denied the said benefit. The petitioner states that the petitioner was selected by the Selection List dated 15.2.1990 issued by the Public Service Commission and joined the service on 24.9.1991 and he was at serial no.35 of the said list. The persons who were lower in the selection list as well as who were in waiting list in the same selection had joined in the year 1992 and 1993, are getting the benefit of salary protection in view of the G.O. dated 12.6.1998. Hence, the aforesaid discrimination on the basis of cut of date i.e. 1.2.1992 is against Article 14 of the Constitution of India. The petitioner for example submits that one Sri Mohd. Sajid who appeared along with the petitioner before the U.P. Public Service Commission and was placed in the waiting list and hence, he got joined in the year 1992 but he is being given the benefit of salary protection. A document giving the said benefit to Modh. Sajid regarding salary protection has been filed as Annexure-2 to the writ petition. The petitioner also submitted an application before the respondent no.2 and requested for the said benefit stating therein that though the petitioner had joined the said post, after the cut of date mentioned in the G.O. dated 12.6.1998 that the said G.O. will be applicable from 1.2.1992 relating to pay protection. It has also been stated in the said representation that the persons selected in the same selection, but they were lower in merit list and, therefore, they have joined subsequent to the date mentioned in the G.O. dated 12.6.1998 but they have been given the said benefit but the petitioner has been denied in spite of the fact that the petitioner was higher in select list and has been given appointment and joined the service on 24.9.1991. The selection is the same but the persons lower in merit list and waiting list has been given benefit, therefore, it has been submitted that this cannot be done and the action of the respondent is wholly discriminatory.
If the selection would have been different then the question is otherwise. But in the present case the selection is the same by the Public Service Commission but the persons who were lower in merit and in the waiting list has been given benefit in spite of the fact that the selectees who were in the merit list of the select list have been denied the pay protection. When the representation of the petitioner was not decided the petitioner has approached this Court by way of Writ Petition No.41077 of 2002. The said writ petition was disposed of finally with a direction to respondent to decide the representation of the petitioner. In spite of the aforesaid order of this Court, the representation of the petitioner was not decided then the petitioner filed a contempt petition as Contempt Petition No.163 of 2003 and immediately after the filing of the contempt petition and issuance of the notice the order impugned has been passed rejecting the claim of the petitioner only on the ground that as the petitioner has joined the services on 24.9.1991 and in view of the G.O. dated 12.6.1998, it has been made effective only from 1.2.1992, therefore, the petitioner is not entitled for the relief of pay protection.
It has further been submitted on behalf of the petitioner that this Hon'ble Court has directed to decide the matter in the light of the G.O. dated 12.6.1998 as well as the decision in the case of Sri B.K. Pandey, it has also been submitted that the G.O. dated 12.6.1998 itself states that it will be effective from 1.2.1992. It does not say that the persons who have been appointed prior to 1.2.1992 will not be entitled to get the benefit of the G.O. It does not say that the persons appointed prior to 1.2.1992 will not be entitled for pay protection. The respondents have misinterpreted the G.O. and has passed several orders canceling the benefit of pay protection of the persons who had joined before 1.2.1992. In case of B.K. Pandey the order of cancellation has been stayed by this Court. A copy of the same has also been filed with the writ petition.
It has been argued on behalf of the petitioner that the G.O. dated 12.6.1998 is clear regarding giving the protection of last drawn salary of previous salary to the employees who have joined the services of the U.P. Government. The Government order has wrongly been interpreted by the respondents. As the juniors to the petitioner who have joined the service subsequent to the petitioner in the said select list are getting the benefit of last salary protection of earlier service but the petitioner who is on top in the order of merit list is being discriminated by the respondents. The said action of the respondent is violative to Article 14 of the Constitution of India.
A counter affidavit has been filed on behalf of the respondents and the respondents only wanted to justify that as the Government Order clearly states that it is applicable from 1.2.1992, therefore, the persons appointed and joined prior to 1.2.1992, are not entitled for the benefits of salary protection as they have joined the government service after the cut of date i.e. 1.2.1992. As regards Sri Mohd. Sajid's case, a reply has been given that as he has joined the post after cut of date mentioned in the G.O. dated 12.6.1998 as such he has been given salary protection. As regards Sri B.K. Pandey, an explanation has been given in the counter affidavit that the order has been cancelled and he has filed a writ petition in which the interim order has been granted.
I have heard the learned counsel for the petitioner Sri Shyamal Narain and Sri Hemant Kumar Srivastava who appears for the respondents and have also perused the record.
From the record it is clear that the petitioner who was an employee of Sahkari Chini Mills Ltd. on the basis of the advertisement appeared in the said examination held by the Commission and was selected and his name was at serial no.35 but the petitioner joined the said post on 24.9.1991. It is also apparent from the record that the G.O. dated 12.6.1998 was made effective from 1.2.1992. From perusal of the aforesaid order it is clear that the employees who were working in different Corporations and Universities, if they have been selected in the service on the basis of the selection held by the Commission, they will be entitled for pay protection which they were getting in the earlier employment. Certain other conditions have been mentioned. From the aforesaid Government Order it does not appear that it put a rider that the persons appointed prior to 1.2.1992 will not be entitled for the benefit of protection. It is also clear from the record that various other persons selected from the same list from which the petitioner has been selected, are being given the said benefit of the Government Order, which gives the pay protection. But the petitioner has not been given the said benefit only on the ground that his appointment is prior to 1.2.1992. The respondents have not been able to satisfy the court that in spite of the fact that one Sri Mohd. Sajid who has also been appointed in the same selection but was in the waiting list, therefore, he has been given appointment after the exhaustation of the select list and has been given the benefit of pay protection only on the ground that as his appointment is after 1.2.1992. The position would have been different if there are two selections on the different dates. But in the present case the candidates who are lower in merit has been given benefit. Even the candidate in the waiting list, legally though they have no right to be appointed, but it appears that due to non-joining of various selected candidates, the candidates in the waiting list of the same selection have been offered appointment. Now the question is whether the similarly situated persons who have been given appointment on the basis of the same selection by the Commission can be discriminated. The respondents have not taken into consideration while rejecting the claim of the petitioner on the aforesaid ground. The respondents have to see while denying the claim of the petitioner that whether the persons selected from the waiting list can be placed on better footing. Admittedly, the benefit given to one Sri Mohd. Sajid who has been given appointment from the waiting list, has been given the benefit of salary protection. The reason given by the respondent in the order dated 5.5.2003 is only that as the petitioner have been given appointment prior to 1.2.1992, therefore, he is not entitled for benefit of salary protection as the cut of date is mentioned as 1.2.1992. The respondents have not taken into consideration the fact that the candidates who have been denied the benefit and the candidates who have been given the benefit are from one and the same select list. As the petitioner was higher in merit; therefore, he has been offered appointment immediately after the declaration of the select list. But the certain persons have been given appointment only on the basis that though they have not been selected but their names were included in the waiting list due to non-joining of certain selected candidates, they have been offered appointment, then whether the principle laid down and reasoning given by the respondents can be justified? In the said circumstances it clearly appears that in spite of the fact that the petitioner is on the better footing but has been denied the benefit of the Government Order dated 12.6.1998 only on the ground that the date mentioned for the said benefit is 1.2.1992.
In view of the aforesaid fact I am of opinion that the order passed by respondent no.2 cannot be sustained in the eye of law as such is hereby quashed and the matter is remitted back to respondent no.2 to pass appropriate orders taking into consideration the observations made above. The respondent no.2 will pass a detailed and reasoned order according to law preferably within three months from the date of production of a certified copy of this order before him.
With these observations the writ petition is disposed of. No order as to costs.
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