Pawan Kumar Bora and others v. State of Uttarakhand and others) dealing
Case Details
Neutral Citation No. - 2025:AHC:142714 Court No. - 4 Case :- WRIT - A No. - 45489 of 2008
Legal Reasoning
Petitioner :- Dashrath Deen Yadav Respondent :- State of U.P. and Others Counsel for Petitioner :- Ajay Kumar Srivastava,Nikhil Kumar Counsel for Respondent :- C. S. C. Hon'ble Ajit Kumar,J. 1. Heard Shri Nikhil Kumar, learned counsel appearing for the petitioner and learned Standing Counsel for the State-respondent. 2. By means of this writ petition filed under Article 226 of the Constitution of India, petitioner has prayed for fixation of his pay in the pay scale of Rs. 4000-100-6000 w.e.f. July, 1997 when he came to be promoted on the post of Constable (M) from the post of follower. 3. Briefly stated facts of the case are that the petitioner was initially appointed in 1981 as Follower and upon his good conduct and service record, he came to be considered for promotion in the year 1996 on the post of constable (ministerial) and was promoted vide order dated 15.12.1996 as constable (ministerial) under the Uttar Pradesh Subordinate Officers Ministerial Staff (Direct Recruitment) Rules, 1985 (hereinafter referred to as 'The Rules, 1985'). His candidature was considered for selection and appointment by way of direct recruitment under the Rules, 1985. 4. It has been pleaded by learned counsel for the petitioner that petitioner participated in the written examination and having obtained qualifying marks and having possessed requisite qualification, was called for interview and thereafter select list which was prepared wherein he found place and hence came to be appointed on 08.05.2006. However, he was only paid fix pay of Rs. 3050/- whereas Rule 31 of the Rules prescribed for pay scale at a time of commencement of Rs. 345-10-425-EB-10-454-12-514-EB-12-550 which later on came to be revised w.e.f. 01.01.1996 as Rs. 4000-100-6000. 5. There arose dispute in the case regarding anomaly in pay and ultimately the State Government made admissible pay scale to the Constable (M) only w.e.f. 08.05.2006. 6. It is argued on behalf of petitioner that the pay anomaly was for absolutely 2 WRIA No. 45489 of 2008 discriminatory and arbitrary act and conduct of respondent. It is claimed that the petitioner was appointed on the post of Constable (M) taking recourse to the relevant Recruitment Rules, 1985 which prescribed pay scale and which ought to have been allowed to the petitioner since very beginning, which met subsequent revisions and finally fixed on pay scale of Rs. 4000-100-6000 w.e.f. 1996. Learned counsel for the petitioner has placed reliance upon the judgment of the Division Bench of the Uttarakhand High Court in Special Appeal No. 432 of 2012 (Pawan Kumar Bora and others v. State of Uttarakhand and others) dealing with identical matter and in which the Court held that any government order prior to coming into force of 1985 stood automatically superseded by statutory rules framed by the State Government in purported exercise power under the proviso 309 of the Constitution. The relevant paragraph nos. 2, 3, 4 and 5 of the judgment, are reproduced thereunder:- "2. In the writ petition, petitioners, seventeen in number, prayed for many a reliefs, amongst which, they had prayed for payment of their salary in the time-scale, as applicable to them by the Rules governing the field. The fact remains, which is not in dispute, that the petitioners were appointed as Constables (M). There appears to be no dispute that Constables (M) are governed by provisions of the Subordinate Officers, Ministerial Staff (Direct Recruitment) Rules, 1985. The said Rules were made in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, and in suppression of all the existing Rules and Orders on the subject. Rule 2 of the said Rules made those Rules applicable to the Ministerial posts of the lowest grade, in all subordinate offices excluding some but the Police Department was not excluded. Constables (M) are ministerial posts of the lowest grade in the Police Department. Rule 5 of the said Rules, amongst others, directed that the strength of ministerial staff in a particular Department / Office and of each category of posts therein shall be, as may be determined by the Government from time to time. Sub-rule 1 of Rule 31 of the said Rules authorized the persons appointed in various categories of posts in the Department / Office to the time-scale of pay to be determined by the Government from time to time. Sub-rule 2 of Rule 31 prescribed the scale of pay at the time of commencement of the Rules at Rs. 345 – 550. The said Rules came into force on 16.03.1985. Prior thereto, the remunerations of Constables (M) were governed by the Government Order dated 06.09.1966, in terms, whereof a person, appointed on the post of Constable (M) was only entitled to get a consolidated pay. Even after coming into force of the said Rules, the appellants continued to receive consolidated pay. In the writ petition, they amongst others, prayed for upholding their right to receive remuneration on the time-scale prescribed in the said Rules and revised, subsequent thereto, from time to time, in terms of the mandate of Rule 31 thereof. 3. A learned Single Judge of this Court while dealing with the writ petition though noticed Sub-rule 1 of Rule 31 but did not notice Sub-rule 2 thereof and accordingly, proceeded to hold that though the appellants were entitled to the admissible scale of pay, to be determined by the Government from time to from time to time, but since the same has not been determined as yet, the Government Order dated 06.09.1966 would remain applicable. 4. In the present appeal, by an order dated 04.01.2013, a Division Bench of this Court directed the Government to indicate as to how the Government Order of 1966 continued to govern the subject when statutory the Rules were made in 1985. The same was to be indicated in the counter affidavits to be filed. State of Uttarakhand has filed an affidavit where it has not indicated as to how Government Order of 1966 could survive, even after the Rules of 1985 came into force. On 04.01.2013, the State 3 WRIA No. 45489 of 2008 of Uttar Pradesh was also given a similar opportunity but it has chosen not to file any affidavit. In the counter affidavit filed by the State of Uttarakhand, it has not made any attempt to justify as to how the Government Order of 1966 continued to be effective, even after the Rules of 1985 came into force. Furthermore, as aforesaid, while making the said Rules, all the existing Rules and Orders on the subject were suppressed.
Decision
5. In the circumstances, the conclusion would be that the appellants were entitled to the pay scale, as was prescribed in Sub-rule 2 of Rule 31 of the said Rules, as stood altered, subsequently, from time to time, from the date of their substantive appointments. We, accordingly, allow the appeal and set aside the judgment under appeal and at the same time, allow the writ petition to the extent that the appellants / writ petitioners, shall be entitled to the pay scale mentioned in Subrule 2 of Rule 31 of the said Rules, as stood altered subsequently, from time to time, from the date of their substantive appointments. Writ petitioners / appellants shall be entitled to receive and the State of Uttar Pradesh shall be obliged to pay the difference, on that account until 08.11.2000 and State of Uttarakhand shall be obliged to pay the difference from 09.11.2000. It is hoped and expected that amount due, on the above score, would be calculated and released by the respective Governments, as quickly as possible, but not later than three months from the date of service of a copy of this order upon the Home Secretary of each of the Governments.' 7. On the contrary, learned Standing Counsel submits that petitioner was on fix pay ever since 1996 while he came to be appointed as Constable (M) until the post stood sanctioned with the fixation of pay of such Constable (M) in the pay scale of Rs. 4000-100-6000. Learned Standing Counsel has placed having reliance upon paragraph no. 6 and 11 of the supplementary counter affidavit wherein stand has been taken by the State Government that there were posts of A.S.I. (M) and Constable (M) limited in number and since the excess appointments were made, matter got referred to the State Government and State Government issued necessary government order sanctioning posts w.e.f. 08.05.2006 and it is, therefore, ever since then all such Constable (M) have been awarded pay in regular pay scale. 8. In a nut shell the argument on behalf of the State is that earlier it was a fixed pay with limited number of vacancies and therefore, only fixed pay was being provided. 9. I have compared these averments made in the supplementary counter affidavit with the counter affidavit and find stand taken in paragraph nos. 6 and 11 of the supplementary counter affidavit almost similar to the one taken in paragraph nos. 8 and 13 of the counter affidavit but it is very interesting to notice that in paragraph nos. 8 and 13 of the counter affidavit to a large extend and paragraph no. 6 of the supplementary counter affidavit too reference is to the excess appointments made on compassionate basis for which supernumerary posts were created to adjust such appointees. 10. The legal issue that requires consideration of this Court I think has stood answered in the judgment of the Uttarakhand High Court wherein the Court 4 WRIA No. 45489 of 2008 has very category held that whatever the government order prescribed for pay for such employees holding the post of Constable (M) and ASI(M) in terms of fix pay, it stood overridden with the framing of regular recruitment rules which came into effect in the year 1985. In relevant paragraph of the judgment reproduced hereinabove, in earlier part, that Court has held that the relevant Rule 31 prescribed a pay scale for such constables in the year 1985 itself and hence direct recruitments were made on the post of Constable (M), ASI(M), so there was no occasion for the respondent to have awarded them fixed pay only. It is settled legal principle that every government circular which is in the nature of subordinate legislation stands superseded by statutory rules framed taking recourse to proviso of Article 309 of the Constitution. 11. Besides the above, I do not find any such averment coming in any of the paragraphs of the counter affidavit or the short counter affidavit which could establish that the petitioner was not appointed directly under the 1985 rules. Even in terms of the appointment order of the petitioner he was appointed on the post of Constable (M) which was a payable post though initially for the six months he was appointed as a trainee. It is for this reason that petitioner had to undergo training to serve out the probation period, petitioner has not set up claim since prior to July, 1997. 12. In view of the above discussion, I see justification in the claim set up by the petitioner for entitlement to regular pay scale as admissible to the Constable (M) under the 1985 Rules ever since the date of his initial appointment after he served out the period of probation as a trainee. Accordingly writ petition is succeeds and is allowed. 13 The respondents are directed to award petitioner pay scale of the Constable (M) as admissible to him under Rule 31 of the 1985 Rules amended and modified from time to time w.e.f. 01.07.1997 until regular pay scale was awarded to him on 08.05.2006 and the the consequential pay increments and other service benefits including pensionary benefits and revised gratuity. Entire arrears shall be calculated and be paid to the petitioner within a maximum period of two months of presentation of the certified copy of this order. Any delay in the matter would entail enhanced interest @ 12% right of from the date of expiry of the period of two months till actual payment is made. Order Date :- 20.8.2025 Sharad/- Digitally signed by :- SHARAD KUMAR SRIVASTAVA High Court of Judicature at Allahabad