Dismissed

Sanjay Kumar v. State of U.P. and 3 Others

Allahabad HC9 Jul 2020WRIA/5231/2020

Case brief

AI extract

What is this about?

The Court dismissed the petitioner's writ petition seeking pay protection of Rs.4600 Grade-pay. Relying on the transfer policy and Supreme Court precedent, the Court held that the petitioner voluntarily opted for a lower grade to join a district of his choice, thus losing the right to claim higher pay protection. Allegations regarding a forged Last Pay Certificate were flagged for separate crimina

What did the court decide?

Petition dismissed; no pay protection granted. Allegations of LPC forgery directed to be forwarded to Economic Offences Wing via Chief Secretary.

Sanjay Kumar Vs State of U.P. and 3 Others — Pension and Retirement Benefits | Allahabad HC (2020)

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Court No. - 38

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Case :- WRIT - A No. - 5231 of 2020

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Petitioner :- Sanjay Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Neeraj Shukla Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh

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Hon'ble Vivek Agarwal,J.

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Heard Sri Neeraj Shukla, counsel for the petitioner and Sri Arun Kumar, counsel for the respondents.

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Petitioner has filed this petition claiming therein that petitioner was earlier working in Junior High School, Shastrinagar, Block-Pooranpur, District-Pilibhit on 11.05.2011. On 27.05.2013, State Government issued a transfer policy for transferring the teachers of the Institutions run by Basic Shiksha Parishad in pursuance of the transfer policy dated 27.05.2013. Petitioner was transferred to District- Fatehpur vide order dated 11.07.2013. It is petitioner's contention that he was informed by the District Basic Education Officer, Fatehpur that the batchmates of the petitioner functioning in the District-Fatehpur at that time were not promoted and, therefore, petitioner has to go to his district from where he was transferred or he will have to work on a demoted post as an Assistant Teacher available at that time in district-Fatehpur. Petitioner in para-10 of the writ petition has mentioned that he was left with no other option but to approach his district i.e. Pilibhit for the required order as per the direction issued by the District Basic Education Officer, Fatehpur. Petitioner's contention is that since transfer has been made in terms of the policy, therefore his Grade-pay could not have been reduced from Rs.4600 to Rs.4200. Petitioner is entitled to pay protection.

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In support of this contention, petitioner has placed reliance on the order dated 06.12.2018 passed in Writ-A No.25804 of 2018 and order dated 08.08.2019 passed inn Writ-A No.14899 of 2019 and has sought a relief that he be paid salary with Gradepay of Rs.4600 as he was getting before his transfer to DistrictFatehpur.

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Sri Arun Kumar, learned counsel appearing for respondent nos.3 and 4 submits that case of the petitioner is different from what has been canvassed by the petitioner and petitioner is not entitled to any relief.

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It is submitted that as per the transfer policy dated 27.05.2013 as contained in Annexure-3, there is a specific provision that persons seeking transfer will be transferred in the desired district only when in the concerned district where a person is seeking transfer, persons of his batch are working on the equal post. It is submitted that admittedly in District-Fatehpur where petitioner sought transferred, his batcmates were not promoted to the Grade-pay of Rs.4600 and petitioner was given an option to either revert back to the district from where, he was transferred i.e. district-Pilibhit or in the alternative except the position as was obtaining in relation to his batch-mates.

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At this stage, learned counsel submits that with a view to enjoy his transfer to District-Fatehpur, petitioner had gone back to district-Pilibhit, got himself reverted in the Grade-pay of Rs.4200 as is apparent from Annexure-10, which is a Last Pay Certificate issued by Block Education Officer, Pooranpur, Pilibhit and thereafter joined at Fatehpur in the Grade-pay of Rs.4200.

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In view of such facts, now at this distance of time it is not open to the petitioner to claim relief and these facts have not

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been appreciated or were not brought to the notice of the coordinate bench when orders were passed in Writ-A No.25804 of 2018 and Writ-A No.14899 of 2019.

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At this stage, Sri Shukla submits that under similar facts and circumstances, Secretary, U.P. Basic Education Council, Allahabad has passed orders and has allowed pay protection. He has drawn attention of this court to order no. Basic Shiksha Parishad/5468/2018-19 dated 23.07.2018, relevant portion of the order is reproduced hereinunder:-

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“;kphx.kksa }kjk izLrqr izR;kosnu ,ao vki }kjk izLrqr vk[;k ds voyksduksijkUr ;g rF; izdk’k esa vk;k fd ;kphx.kksa dk vUrtZuinh; LFkkukUrj.k izns’k ds fofHkUu tuinksa ls tuin tkSuiqj ds fy, ifj"kn ds fofHkUu vkns’kksa }kjk fd;k x;kA pwafd ;kphx.kksa dh inksUufr vius dk;Zjr tuin esa gks pqdh Fkh vkSj ml cSp ds fu;qfDr f’k{kdksa dh tuin tkSuiqj esa inksUufr ugha gq;h Fkh] ,slh fLFkfr esa ;kphx.kksa }kjk vius dk;Zjr tuinksa ls viuk inkour ysdj tuin tkSuiqj esa dk;ZHkkj xzg.k fd;kA ;kphx.kksa dk dFku gS fd budk osru ,y0ih0lh0 ds vk/kkj ij u fu/kkfjr djrs gq, inkuour in dk fu/kkZj.k fd;k x;kA tcfd c<+k gqvk osru fdlh Hkh n’kk esa de ugha fd;k tk ldrk gSA

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mDr ds lEcU/k esa lwP; gS fd ;kphx.kksa dks Pay Protection dk ykHk fn;k tkuk pkfg;sA

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vr% ,y0ih0lh0 (vfUre osru izek.k i=) ds vk/kkj ij u;s tuin esa osru dk vkx.ku dj Pay Protection ds fu;eksa dk ikyu fd;k tkuk pkfg,A

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mDr ds lEcU/k esa vkidks funsZf’kr fd;k tkrk gS fd ;kphx.kksa dks vfUre osru izek.k i= (,y0ih0lh0) ds vk/kkj ij osru vkWx.ku dj Pay Protection ds fu;eksa dk ikyu djrs gq, osru Hkqxrku djus dh dk;Zokgh dj ek0 mPp U;k;ky; ds vkns’k dk vuqikyu lqfuf’pr djsaA"

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At this stage, learned counsel for the respondent nos.3 & 4 submits that under similar facts and circumstances in Writ-A No.5213 of 2020, this Court has taken note of L.P.C. and passed orders. This case is similar to that case. This fact is further corroborated from the fact that petitioner is seeking restoration of

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higher Grade-pay of Rs.4600 which goes to show that petitioner was promoted in lower Grade Pay of Rs.4200.

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A bare perusal of the L.P.C. enclosed in this case as Annexure10, which is depicted as revised L.P.C. “सशोधि�त L.P.C.” reveals that there is a manipulation in the L.P.C.. There is overwriting of the Grade-pay. The basic pay has been shown total of Grade-pay and Band-pay but when to Basic pay which has been arriving by computing Grade Pay at Rs.4600/- and Band-pay of Rs.10580/totalling Rs.15180/, D.A. of Rs.12144/- is added and interim relief of Rs.670/- is added then total which is shown as Rs.28244/- is not made out but total infact comes to Rs.27994.

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This calls for an enquiry at the highest level as to how Block Education Officer, Pilibhit and District Basic Education Officer, Pilibhit so also other officials whose seal is not clear have issued such a concocted L.P.C. so to favour the petitioner. This calculation mistake in the L.P.C. as is available on page-56 of the petition needs to be sent to the Economic Offences Wing of the State of Uttar Pradesh through the Chief Secretary of the State of U.P. so to scrutinize the case of L.P.C. available on record in regard to the petitioner-Sanjay Kumar, Assistant Teacher as to how a fraud was committed while issuing incorrect L.P.C.

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Learned Additional Advocate General through Standing Counsel, Sri Vikram Bahadur Singh is directed to forward a copy of this order along with a copy of L.P.C. as obtaining on page-56 of the writ petition to the Chief Secretary for the necessary action.

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This action is being taken inasmuch as learned counsel for the petitioner, Sri Neeraj Shukla is not in a position to explain the manipulation and forgery of the L.P.C. which is not only in

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the shape of overwriting but there is resultant calculation error in the L.P.C. prima facie exposing the forgery so to favour the petitioner.

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However, the fact is that this concocted fabricated and forged L.P.C. will not create any right in favour of the petitioner and it is evident that petitioner himself had furnished an affidavit before the B.S.A. and vide order dated 22.07.2013, petitioner was demoted and then his pay was fixed in the Grade-pay of Rs.4200. Thus, there is no question of any pay protection because once petitioner sought transfer in a district of his own choice and decided to forego his promotion in the district where he was functioning on account of the fact that his batchmates were not promoted in the district of his choice where he sought his transfer, therefore, in terms of the order dated 27.05.2013 Clause6 which reads as follows:

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“6. स्थानान्तरण चाहने वाले अध्यापकों का उनके द्वारा वांछि�त जनपद में केवल उसी स्थिस्थधित में स्थानान्तरण किकया जायेगा जबकिक उस जनपद में सम्बस्थिन्�त अध्यापक के बैच के अध्यापक भी समान पद पर काय+रत हों।"

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In view of the aforesaid clause, petitioner was not entitled to any pay protection because he had voluntarily foregone the promotion in the Grade-pay 4600 and opted for his demotion in the Grade-pay of Rs.4200 so that he could have been accommodated in the district of his own choice and also there is no challenge to the L.P.C. which contains a note regarding the motion.

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Law in regard to protection of pay is well settled as has been laid down in case of Comptroller and Auditor General of India Vs. Farid Sattar as reported in (2000) 4 SCC 13 wherein, it has been held that where a person on his own violation sought

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transfer on certain terms and conditions accepted by him and the terms and conditions of unilateral transfer are very clear and there is no ambiguity in it. The terms and conditions provided that the respondent on transfer could be appointed to a post which is lower to the post which he was occupying prior to his transfer in such a situation, the pay of the respondent had to be fixed with reference to the lower pay scale and not with reference to the pay drawn by him in the higher posts. In para-6, it has been specifically mentioned that under the terms and conditions of the transfer the pay which the respondent was drawing on the higher post was not required to be protected when he joined the lower post of accountant.

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The facts of this case decided by Hon’ble Supreme Court are applicable in all force to the facts of the present case and once the petitioner himself had foregone promotion in the Gradepay to Rs.4600 and opted for his promotion in the Grade-pay of Rs.4200, he is estopped from claiming dual advantage of transfer to a district of his own choice and drawing of higher Grade-pay from which he was demoted in terms of the policy so to be accommodated in the district of his own choice.

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Thus, the orders on which petitioner has placed reliance are of no relevance for the present and the principles of pay protection will not be applicable in the case of the petitioner because once he was demoted then he was not drawing the salary in the Grade-pay of Rs.4600.

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Accordingly, petitioner has failed to make out a case for pay protection and, therefore, petition fails and is dismissed. Order Date :- 9.7.2020 Ashutosh

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Sanjay Kumar v. State of U.P. and 3 Others

Case brief

What is this about?

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Sanjay Kumar v. State of U.P. and 3 Others

Case brief

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