Dismissed

Ajay Kumar Srivastava and Others v. Principal Secy. Finance Govt. of U.P. Lkn. and Others

Allahabad HC6 Apr 2018WRIA/62455/2009

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a State order denying pay increments to Judicial Officers appointed to temporary Fast Track Court positions. The Court held that service on a lower post could not be aggregated for increments on a higher post in the absence of specific rules, noting the temporary nature of the appointments.

What the court decided

AI extract

Ajay Kumar Srivastava and Others Vs… — Pension and Retirement Benefits | Allahabad HC (2018)

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Reserved on 12.01.2018 Delivered on 06.04.2018

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Case :- WRIT - A No. - 62455 of 2009

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Petitioner :- Ajay Kumar Srivastava & Others Respondent :- Principal Secy. (Finance), Govt. Of U.P. Lkn. & Others Counsel for Petitioner :- Ram Gopal Tripathi Counsel for Respondent :- C.S.C.,Ashish Mishra,Yashwant Verma

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Hon'ble Pankaj Mithal,J. Hon'ble Saral Srivastava,J.

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(Delivered by Hon'ble Saral Srivastava, J.)

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1. Heard Sri Ram Gopal Tripathi, learned counsel for the petitioners, learned Standing Counsel for the State and Ms. Bushra Maryam, learned counsel for the High Court.

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2. The petitioners are Judicial Officers. They have assailed the order dated 23.10.2007 passed by the Special Secretary, State of U.P., denying the benefit of increment to them on the post of Additional District and Sessions Judge, Fast Track Court.

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3. The petitioners have prayed for the following reliefs in the writ petition:-

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“(i) Issue a writ, order or direction in the nature of Certiorari for quashing the impugned order dated 23.10.2007(Annexure No.6 to the writ petition) issued by the State Government.

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(ii) Issue a writ, order or direction in the nature of Mandamus commanding the respondents to ensure the payment of two annual increments of pay to the petitioner nos. 1 to 7 treating the service rendered in Nyayik Sewa after disbanding of Fast Track Courts on 28.02.2005 till their reappointment in June, 2005 alongwith interest as Additional District & Sessions Judge, Fast Track Courts as service rendered in the U.P. Higher Judicial Service Cadre for the purpose.

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(iii) Issue a writ, order or direction in the nature of mandamus commanding respondents to ensure the payment of one annual increment of pay to the petitioner no.8 treating the service rendered in Nyayik Sewa after disbanding of Fast Track Courts on 28.02.2005 till his reappointment in June, 2005 alongwith interest as Additional District & Sessions Judge, Fast Track Courts as service rendered in the U.P. Higher Judicial Service Cadre.

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(iv) Issue a writ, order or direction in the nature of mandamus

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commanding respondents to compute the services of petitioners rendered as Civil Judge (Senior Division) during the period of their reversion as services rendered in U.P. Higher Judicial Service Cadre.

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(v) Issue any other writ, order or direction in favour of the petitioners as this Hon'ble Court may deem fit and proper in the present facts and circumstances of the case.

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(vi) Award the cost of the petition in favour of the petitioners.”

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4. The petitioners belong to 1985 Batch of U.P. Civil (Judicial) Service and joined as Munsif Magistrates in the year 1987 at their respective places of posting in different districts. It appears that 242 Fast Track Courts were established by the Government Orders dated 23.03.2001, 26.12.2001 and 21.01.2003 on the recommendation made by the Eleventh Finance Commission.

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5. The petitioners were given promotion as Additional District and Sessions Judge, Fast Track Court under the amended (Fourth) Rule 22 (3) of the U.P. Higher Judicial Service Rules, 1975 on temporary basis.

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6. The petitioners no. 1 to 7 performed their duties as Additional District and Sessions Judge, Fast Track Court w.e.f. 09.05.2003 to 28.02.2005, and the petitioner no.8 performed his duties as Additional District and Sessions Judge, Fast Track Court, Mainpuri w.e.f. 15.05.2004 to 28.02.2005.

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7. It transpires from the record that the State Government decided to abolish the Fast Track Courts in Uttar Pradesh in the month of February, 2005. Consequent upon abolition of Fast Track Courts, the petitioners were reverted to their substantive post of Civil Judge (Senior Division) by notification dated 28.02.2005.

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8. The action of the State, abolishing the Fast Track Courts came to be challenged. The Apex Court in Brij Mohan Lal Vs. Union of India and others AIR 2002 SC 2096 directed for extension of Fast Track Courts.

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9. Following the direction of the Hon'ble Apex Court, the State

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Government again notified the constitution of Fast Track Courts, and consequently, the petitioners were again promoted and were posted as Additional District and Sessions Judge by notification dated 04.06.2005 but the petitioners were denied the benefit of increment on the post of Additional District and Sessions Judge which, according to them was due in the month of May, 2005.

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10. The petitioners feeling aggrieved by the denial of increment represented to the State Government who vide order dated 23.10.2007 rejected the claim of the petitioners on the ground that the service rendered on the lower post cannot be counted for the purpose of grant of benefit of increment on the higher post.

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11. A counter affidavit has been filed by the State of U.P. contending therein that the petitioners were appointed on the post of Additional District and Sessions Judge, Fast Track Court which was to be extended year to year and the Fast Track Courts were continued till 28.02.2005. It was further stated that the establishment of Fast Track Courts was 100% Government of India Sponsored Scheme and the Government of India neither provided the necessary fund for continuing the said scheme nor gave any assurance in this regard. Therefore, the functioning of the Fast Track Courts could not be extended thereafter. Later on, in compliance of the order dated 31.03.2005 passed by the Apex Court in Brij Mohan Lal (supra) the functioning of Fast Track Courts was extended. There was no fault on the part of the State Government in not extending the tenure of the Fast Track Courts for the period from 01.03.2005 to 04.06.2005.

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12. It is further pleaded that the pay fixation on the higher post is made in accordance with Rule 22 of the Financial Hand Book (Vol. II, Part II to IV) and there is no provision in the Financial Hand Book for computing the period of service rendered on lower post for the purpose of payment of increments on the higher post and as such the petitioners were not entitled for the relief claimed.

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13. The High Court has also filed a counter affidavit stating

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therein that the decision with regard to the grant of annual increment to the petitioners treating their services rendered as Civil Judge after disbanding of Fast Track Courts on 28.02.2005 till their reappointment in June, 2005 as Additional District and Sessions Judge, Fast Track Court has to be taken by the State Government. It was further pleaded that in view of the recommendations of the High Court, the petitioners are entitled to the relief sought in the writ petition.

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14. Learned counsel for the petitioners challenging the order dated 23.10.2007 has contended that the petitioners were promoted in accordance with law. His further contention is that the Apex Court found the action of the State in disbanding the Fast Track Courts illegal and directed for extension of the same. Hence, the reversion of the petitioners from the post of Additional District and Sessions Judge to their parent cadre of Civil Judge (Senior Division) after disbanding of Fast Track Courts was illegal, and they should have been treated to be continued on the said post till their reappointment on the said post in June, 2005.

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15. The submission of the learned counsel for the petitioners is that break in service on the post of Additional District and Sessions Judge, Fast Track Court was on account of arbitrary and illegal action of the State for which they should not suffer and the period of working on the post of Civil Judge (Senior Division) due to their illegal reversion should be condoned.

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16. Learned counsel for the petitioners contends that the respondent authority while rejecting the claim of the petitioners has illegally relied upon Rule 22 of the Financial Hand Book (Vol. II, Part II to IV). He submits that the petitioners are entitled for the increment due to them in May, 2005 and the action of the State in denying the same is illegal and arbitrary.

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17. Learned counsel further contends that increment granted to the petitioners in May, 2004 on the post of Additional District and Sessions Judge cannot be withdrawn without following due

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procedure in law.

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18. Countering the aforesaid submission, the learned Standing Counsel has contended that the petitioners were reverted to their parent cadre on the post of Civil Judge after disbanding of Fast Track Courts w.e.f. 01.03.2005; they were reappointed on the said post w.e.f. 04.06.2005. In between they worked as Civil Judge (Senior Division). He submits that the service period rendered by the petitioners on the lower post cannot be counted for the purpose of grant of increment on the higher post i.e. post of Additional District and Sessions Judge inasmuch as there is no provision in the Financial Hand Book under which the service rendered on lower post can be counted for grant of increment on the higher post.

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19. We have heard rival submission of the parties and perused the record.

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20. It is not in dispute that the petitioners were appointed on the post of Additional District and Sessions Judge, Fast Track Court on temporary basis which was extended from year to year. Thus, it follows that the appointment of the petitioners was subject to the extension of post. It is the specific case of the State Government that creation of Fast Track Courts was under 100% Central Government Scheme and all the Fast Track Courts were disbanded w.e.f. 28.02.2005 by the State Government. In compliance of the decision of the Apex Court in Brij Mohan Lal (supra) , the Fast Track Courts were again established and consequently the petitioners were reappointed as Additional District and Sessions Judge on the said post w.e.f. 04.06.2005.

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21. One important fact which needs to be noticed in the present case is that the petitioners did not challenge their reversion from the post of Additional District and Sessions Judge, Fast Track Court to the parent cadre i.e. Civil Judge, and as such they have acquiesced to their reversion on the parent cadre. Thus, the reversion of the petitioner’s to their parent cadre was in accordance with law. It is only on account of the judgment of the Apex Court in Brij Mohan

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Lal (supra) , the State Government re-established the Fast Track Courts and consequently the petitioners got their reappointment on the said post w.e.f. 04.06.2005.

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22. The petitioners while assailing the impugned order have not pointed out any provision in the Financial Hand Book wherefrom it can be inferred or demonstrated that the services rendered on the lower post can be counted for the purpose of grant of increment on the higher post. Thus, the aforesaid contention of the counsel for the petitioners is not sustainable for two reasons; firstly, the petitioners had never assailed their reversion on the post of Civil Judge (Senior Division) after disbanding of Fast Track Courts. Secondly, there is no provision in the Financial Hand Book which permits the counting of service rendered on lower post for the purpose of grant of increment on higher post. Thus, in our considered opinion the claim of the petitioners was rightly rejected by the respondents.

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23. With regard to the contention of the learned counsel for the petitioners that one increment granted to the petitioners on the post of Additional District and Sessions Judge cannot be withdrawn after they were reverted to the post of Civil Judge (Senior Division), it is also without any basis inasmuch as there is no pleading with regard to the fact that after reversion on the post of Civil Judge, the increment granted to them on the post of Additional District and Sessions Judge, Fast Track Court was withdrawn.

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24. Thus, for the reasons stated hereinabove, the writ petition lacks merit and is accordingly dismissed. There shall be no order as to costs.

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Order Date :- 06.04.2018 S.Sharma

Ajay Kumar Srivastava and Others v. Principal Secy. Finance Govt. of U.P. Lkn. and Others

Case brief

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What the court decided

Ajay Kumar Srivastava and Others v. Principal Secy. Finance Govt. of U.P. Lkn. and Others

Case brief

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