NARENDER SINGH Vs. STATE PUBLIC SERVICES TRIBUNAL
LAWS(UTN)-2013-7-64
HIGH COURT OF UTTARAKHAND
Decided on July 05,2013

NARENDER SINGH Appellant
VERSUS
STATE PUBLIC SERVICES TRIBUNAL Respondents

JUDGEMENT

BARIN GHOSH,.J. - (1.) ON 29th July, 1989, the Government gave effect to the recommendations of the 4th Pay Commission. In that, it was indicated that with effect from 1st January, 1986 or with effect from the date of creation of the posts mentioned in the Schedule annexed thereto, the pay scale of the posts mentioned in Column -2 will be that of those mentioned in Column -8 thereof. At Serial No. 23 of the said Schedule in Column -2, the post of Senior Assistant was mentioned and in Column -8, it was mentioned that Senior Assistants will be entitled to the pay scale of '1400 -2300. On 28th July, 1990, in relation to a Scheme, certain posts were created. One of them was of the Senior Assistant. In terms of the decision of the Government dated 28th July, 1990, the post of Senior Assistant created by the said Government Order dated 28th July, 1990 was to carry a scale of Rs. 1200 -2040. The posts created by the said Government Order dated 28th July, 1990 were created in the office of Chief Dairy Development Officer / Nodal Officer, Sri Nagar. Petitioner was appointed as a Junior Assistant in the year 1990 in the office of Chief Dairy Development Officer / Nodal Officer, Sri Nagar, Garhwal. In 1994, he was promoted, under the U.P. Dairy Development Department, Ministerial Service Rules, 1981, to the post of Senior Assistant. When he was so promoted, he was given the pay scale of Rs. 1200 -2040 and not the pay -scale of '1400 -2300. This led to the dispute, claim, representation, rejection of representation and unsuccessful approach by the petitioner to the Tribunal. It was contended by the State Government before the Tribunal, which contention appears to have been accepted by the Tribunal, that the post of Senior Assistant, as was available in the office of Chief Dairy Development Officer, Sri Nagar, Garhwal, was created by the Government Order dated 28th July, 1990 and, in terms thereof, the Senior Assistant was entitled to the pay scale of Rs.1200 -2040 and not the pay scale of Rs.1400 -2300. The fact remains that every Senior Assistant, working in the State of Uttar Pradesh, became entitled to the pay scale of Rs.1400 -2300 prior to 28th July, 1990. On 28th July, 1990, the State of Uttar Pradesh had no authority in law to create a post of Senior Assistant in the cadre of the State Government carrying same or similar responsibility but compelling such Senior Assistant to draw salary in a lesser scale of Rs.1200 -2040. The State Government could not do so and it also did not do so. A look at the order of the Government dated 28th July, 1990 will make it amply clear that the posts, thus created, were for a Scheme. The order indicated that such posts are being created beyond the Government. A permanent government employee, as the petitioner was, could not be appointed beyond the Government under a Scheme. The fact remains that the petitioner was given a promotion under the U.P. Dairy Development Department, Ministerial Service Rules, 1981 and, in terms thereof, he became entitled to be promoted to a post available in the Government and not under a Scheme. In law, therefore, petitioner was promoted to the post of Senior Assistant available in the Government and, accordingly, became entitled to draw the salary in the scale of Rs.1400 -2300. It was unjustly and illegally construed by the Government that the petitioner, on being promoted, was adjusted in a post available in a Scheme drawing a lesser scale of pay. While the State, therefore, committed such illegality, the Tribunal did not appreciate the legal right of the petitioner, a government employee, on being promoted in the cadre, to which he belongs and, accordingly, erred.
(2.) WE , therefore, interfere; allow the writ petition; set aside the judgment of the Tribunal impugned in the writ petition; and, at the same time, quash the order of the Government dated 6th October, 2006 along with orders dated 27th October, 2004 and 1st November, 2004; and declare that the petitioner, on being promoted to the post of Senior Assistant, became entitled to the pay scale of Rs. 1400 -2300, with a direction upon the Government to give to the petitioner the benefit of the said scale and the difference payable to the petitioner as quickly as possible, but not later than three months from today.;


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