Decided on August 01,2012

Uttarakhand Jal Sansthan Appellant


BARIN GHOSH,.J. - (1.) SRI Rakesh Kumar Uniyal approached the Public Services Tribunal in 2004 with two principal prayers, namely, to change his seniority position in the seniority list and to accord him salaries of Assistant Engineer less salaries of Junior Engineer for the period between 5th December, 1985 to 8th February, 2000. The Tribunal has rejected the claim for change of seniority of Sri Uniyal but has accepted his claim for payment of salary to the extent and for the period as mentioned above. Being aggrieved thereby, while Uttarakhand Jal Sansthan has filed a writ petition challenging that part of the order of the Tribunal, whereby the Tribunal has directed Uttarakhand Jal Sansthan to pay the aforementioned salaries to the extent and for the period, as mentioned above, to Sri Uniyal, similarly Sri Uniyal has filed a writ petition challenging that part of the judgment of the Tribunal, whereby his claim for change of his seniority has been rejected. In the circumstances, both the writ petitions were heard together.
(2.) UNDISPUTED facts of the case are that Uttar Pradesh Water Supply and Sewerage Act, 1975 authorised establishment of Jal Sansthans. The State of Uttar Pradesh established, amongst others, Jal Sansthan known as Garhwal Jal Sansthan. In Garhwal Jal Sansthan, Sri Uniyal joined as a Junior Engineer on 4th May, 1977. On 12th December, 1983, Section 27 -A was inserted in the said Act and, thereby, the State Government became entitled to provide for creation of one or more services of such officers and servants as the State Government may deem fit common to Jal Sansthans or to Jal San, Nagar Mahapalikas and Nagarpalikas in the State, but of course by Rules. The said section also authorized the State Government to prescribe the method of recruitment and conditions of service of persons appointed to any such service. Section 27 -A of the Act was, therefore, only an enabling provision and, in terms thereof, by making Rules, the State Government could do what it had been authorized to do by and under the said Section. The fact remains that until 3rd December, 1985, the State Government did not make any Rules and, accordingly, did not exercise its enabling power under Section 27 -A of the Act.
(3.) ON 3rd December, 1985, General Manager of the Garhwal Jal Sansthan asked Sri Uniyal to discharge the duties of Assistant Engineer as and by way of stop gap arrangement. There is no dispute that Fundamental Rules applicable to State Government employees were also applicable to the employees of Garhwal Jal Sansthan. Inasmuch as, Sri Uniyal was asked to discharge the duties of a higher post, i.e. that of the post of Assistant Engineer, while he was still a Junior Engineer, in terms of U.P. Fundamental Rules (Financial Hand Book Volume II), he became entitled to salary / remuneration payable for the post of Assistant Engineer. In the letter, by which Sri Uniyal was asked to discharge the duties of Assistant Engineer, it was mentioned that salaries of Assistant Engineer will be paid to him on the approval of the State Government. Garhwal Jal Sansthan approached the State Government for obtaining such approval. The Government did not disclose its mind to Garhwal Jal Sansthan in regard to its request for granting approval. Therefore, there was neither any approval, nor disapproval on the part of the Government in the matter of request made to it by Garhwal Jal Sansthan for permitting it to pay salaries of Assistant Engineer to Sri Uniyal. Sri Uniyal continued to discharge his duties attached to the post of Assistant Engineer. The said state of affairs clearly indicates that the Government despite knowing that Sri Uniyal, a substantially appointed Junior Engineer, has been asked by the General Manager of Garhwal Jal Sansthan to discharge the duties of Assistant Engineer, did not interfere in discharge of such duties by Sri Uniyal. At the same time, the State Government did not give approval to pay Assistant Engineers salary to Sri Uniyal. In 1986, the Government of Uttar Pradesh made Rules in exercise of its power under Section 27 -A of the Act. While making the said Rules, no attempt was made to address the situation, as was prevalent in the instant case. The said Rules did not specifically deal with seniority questions. In the circumstances in 1990, the Government of Uttar Pradesh issued a Circular and, thereby, indicated that seniority will be counted from the date the person starts getting salary in the post, for which seniority is to be determined.;

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