- (1.) PRAFULLA C. Pant, J. By means of this petition, moved under Article 226 of the Constitution of India, the petitioner has sought writ in the nature of certiorari quashing order dated 30-4-2003, whereby the respondent No. 2, allegedly a junior to the petitioner, has been given promotional pay scale of Rs. 1,940-2,900 w. e. f. . 20-8- 1996 treating hint senior over the petitioner and two others namely A. K. Bose and D. S. Negi.
(2.) BRIEF facts of the case, as narrated in the writ petition, are that; petitioner was appointed as Assistant Manager with respondent No. 1' Garhwal Mandal Vikas Nigam (hereinafter referred as the Nigam) in the pay scale of Rs. 515-865 vide order dated 16-6-1986. According to the petitioner, the post of the Assistant Manager is senior to that of the post of Catering In-charge, held by the respondent No. 2. It is further stated in the writ petition that the petitioner was given promotional pay scale vide order dated 20-8-1996 of Rs. 1,940-2,900, after examining his service records. Respondent No. 2 Rajeev Nautiyal, made a representation on 11-2-2002, seeking promotional pay scale of Rs. 1,400-2,300 from a back date claiming himself to be senior to the petitioner. Alleging that the impugned order was passed by the authorities after hatching conspiracy and under the grab of report of the Secretary Law and L/r, the respondent No. 2 was given promotional pay scale from the back date, treating him senior over the 2 Create PDF with GO2pdf for free, if you wish to remove this line, click here to buy Virtual PDF Printer This Software is licensed to: :-REg Copyright Capital Law Infotech petitioner, while the actually he is said to be junior to the petitioner and two others, namely A. K. Bose and D. S. Negi. Challenging the continuance of respondent No. 2 in service, it is alleged that he is continuing in service on the basis of an interim order passed in Writ Petition No. 8578 of 1991. Petitioner's case is, that a person (respondent No. 2) who is on artificial oxygen under the interim order; can neither be given senior nor can be given a promotion pay scale in the manner it is done so, by respondent No. 1. Further alleging that the impugned order on the face of it, is wrong, it is stated by the petitioner that the respondent No. 2 is falsely said to have been drawing pay scale of Rs. 1,025-1,720 in tine year 1980, as Catering In-charge, while actually his pay scale was Rs. 360-550, even in the year 1986. Respondent Nos. 1 and 2 filed their separate counter- affidavits and, contested the writ petition. In the counter- affidavit filed on behalf of respondent No. 1, Mr. J. K. Sood, Office Superintendent of the Nigam has stated that, though, the pay scale of Catering In-charge was initially Rs. 230-385, but it was later revised to Rs. 1,025-1,720 w. e. f. 1-1-1986. It is also stated in the counter-affidavit filed on behalf of respondent No. 1 that, though, the petitioner was appointed Assistant Manager on a higher pay scale, but merely for that reason he cannot claim seniority over respondent No. 2. It is further stated in the counter-affidavit that under the order dated 23-5-1988 of the Labour Court, which was result of the dispute raised by respondent No. 2, he was given pay scale of Rs. 1,400-2,300. It is also stated in the counter-affidavit of respondent No. 1 that respondent had not preferred any departmental appeal. In tine counter-affidavit filed on behalf of respondent No. 2 Rajeev Nautiyal, it is stated that he was appointed on a permanent vacancy of Sampark Sahayak (Liaison Assistant) on 4-7- 1981 in the pay scale of Rs. 300-500, but was given a lower pay scale of Rs. 230-385, which was applicable to the lower post of Receptionist/care Taker, as such, according to respondent No. 2 he raised industrial dispute before the Labour Court, which ultimately directed the employer to pay the pay scale of Rs. 300- 500 to the answering respondent. The said award of the Labour Court was challenged by the Nigam in Writ Petition No. 19519 of 1988, wherein an interim stay order was passed by the Allahabad High Court. However, according to the respondent No. 2, since, the condition of said order was not complied with by the Nigam, as such, the award became absolute, and the respondent No. 2 filed Contempt Petition No. 893 of 1992 before the Allahabad High Court and succeeded in getting the pay scale as ordered by the Labour Court. It is admitted to respondent No. 2 in his counter- affidavit that pay scale of Assistant Manager was Rs. 515-865, which was later revised to Rs. 1,400-2,300. Alleging that the writ petition is devoid of merits, it is alleged that the answering respondent No. 2 was being deprived of his seniority, till the impugned order was passed. Defending the impugned order, it is stated that the same is passed in accordance with law.
(3.) ADMITTEDLY, the petitioner Gyaneshwar Kimothi was appointed as Assistant Manager with respondent No. 1 in the pay scale of Rs. 515-865, vide order dated 15th June, 1986. It is also not disputed that the Create PDF with GO2pdf for free, if you wish to remove this line, click here to buy Virtual PDF Printer This Software is licensed to: :-REg Copyright Capital Law Infotech respondent No. 2 was appointed as catering In- charge before the petitioner entered in service. But, here the question is of the seniority and the entitlement of the pay scale given to respondent No. 2. Annexure 1 to the writ petition, which is appointment letter of the petitioner itself shows that in the year 1986, the pay scale of Assistant Manager was Rs. 515-865 and in that year post of Catering In- charge carried the pay scale of Rs. 360-550. After certain years service, the Catering In-charge was entitled to the pay scale of Rs. 440-630, and after further certain years service the Catering In-charge was to get Rs. 540- 705. These pay scales are evident from Annexure-1 to the writ petition issued by the Managing Director of the Nigam. As such, even if, the respondent No. 2 entered in service in the year 1980-81, he cannot claim that he was entitled to any pay scale higher to that of the petitioner. Therefore, the stand taken by respondent No. 2 is untenable. Not only this opening sentence of the impugned order dated 30- 4-2003. reads as under : which means, the impugned order is passed treating respondent No. 2 Rajeev Nautiyal drawing pay scale of Rs. 1,025-1,072, since 1980-81. This very foundation of the impugned order gets belied by paragraph 5 of the counter-affidavit filed by respondent No. 1, which clearly show that pay scale of Catering In-charge was revised to Rs. 1,025-1,720, only w. e. f. 1-1-1986. This is yet another glaring factor which makes it fundamentally clear how the respondent No. 2 has been given illegal seniority over the petitioner and other two, namely A. K. Bose and D. S. Negi.;