Decided on July 25,2012

Prakash Chandra Khanduri Appellant
Garhwal Anushuchit Janjati Vikas Nigam Ltd. Respondents


- (1.) The petitioner was appointed as an Office Assistant in the year 1982 on daily wage basis. In 1984, the petitioner was given a regular appointment on the post of Office Assistant in the pay scale 360-550 per month. On 22nd May, 1985, the General Manager of Garhwal Anushuchit Janjati Vikas Nigam Limited issued an order directing the petitioner to do the additional work of a Senior Clerk in addition to the work of an Office Assistant. Since then, the petitioner was also discharging the duty of a Senior Clerk. The petitioner thereafter made a representation requesting the authority to promote him on the post of Senior Clerk or pay the salary of a Senior Clerk since he was discharging his duties as a Senior Clerk. The matter remained pending and eventually on 10th April, 1990 the Board of Directors, in their 39th Meeting, resolved to promote the petitioner on the post of Senior Clerk and pay the scale to him permissible on that post. Since then the petitioner was working on the post of Senior Clerk, but for reasons best known to the respondents, the salary of the post of Senior Clerk was not being paid to the petitioner. Instead, the salary of Office Assistant was being paid. The petitioner made representation, which fell on deaf ears. On 5th October, 1995, the post of Office Assistant was abolished, pursuant to a decision taken in the 56th Meeting of the Board of Directors. Consequently, the petitioner could not be given the pay scale of an Office Assistant after this date, i.e., 5th October, 1995. Being continuously harassed and not getting its dues, the petitioner raised an industrial dispute before the Labour Court under section 33C(2) of the Industrial Disputes Act, praying that the employer should be directed to give the petitioner the pay scale of 490-760, which is the pay scale for the post of Senior Clerk. The Labour Court, by its Award dated 19th May, 1999, dismissed the claim of the petitioner on the ground that the matter is one of promotion which is in the exclusive domain of the employer and the Labour Court cannot direct the employer to pass orders of promotion. The Labour Court also observed that the Resolution of the Board of Directors dated 10th April, 1990 was subsequently kept in abeyance by the Board itself.
(2.) The petitioner, being aggrieved, thereafter filed the writ petition in the year 2001, which was disposed of by an order of 22nd May, 2008, directing the respondents to pay the pay scale of Senior Clerk to the petitioner. A review application was filed by the respondents, which was rejected by an order of 10th February, 2010. Subsequently, the respondents filed the Special Appeal, which was allowed by a decision dated 27th December, 2010, directing the writ court to consider the question as to whether, in law, the pay scale of the post of Senior Clerk could be denied to the petitioner on the ground of financial crisis. The said appellate court accordingly remitted the matter back for a fresh decision and that is how the matter has come up again before this Court.
(3.) When the case was taken up for hearing, a supplementary affidavit was filed by the respondents, which has been taken on record.;

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