Allowed

Anand Singh Rawat v. State of Uttarakhand through Principal Secretary, Food and Civil Supplies

Uttarakhand HC3 Aug 2022WPSS/100/2016

Case brief

AI extract

What is this about?

The High Court of Uttarakhand allowed a writ petition challenging the rejection of a claim for enhanced grade pay. The Court held that the Commissioner lacked competence to review and withdraw her own earlier decision granting financial benefits under a Government Order without statutory power of review.

What did the court decide?

Impugned orders dated 16.11.2015 setting aside the revised pay scale were set aside; petitioner entitled to continue receiving benefits per earlier order.

Anand Singh Rawat Vs State of… — Pension and Retirement Benefits | Uttarakhand HC (2022)

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HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition (S/S) No. 100 of 2016

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Anand Singh Rawat ……Petitioner

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Vs.

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State of Uttarakhand & Others ..… Respondents

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Advocates : Mr. Subhash upadhyay, Advocate, for the petitioner.

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Ms. Indu Sharma, Brief Holder for the State.

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Mr. I.D. Paliwal, Addl. Chief Standing Counsel (U.P.Govt.), for respondent Nos.. 5 & 6.

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Hon’ble Sharad Kumar Sharma, J.

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Brief facts as contended by the learned counsel for the petitioner, in the present Writ Petition are, that the petitioner was initially inducted into the services, with the respondents as a Typist way back on 12.02.1973, and owing to his service credentials and considering the unblemished service record, he was considered and promoted as Clerk in the pay scale, as it was taken applicable on the date of promotion i.e. 01.11.1973. Later on, by the act of the respondents, the promotion as it was granted to the petitioner on the post of the Clerk was confirmed w.e.f. 01.01.1981.

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Subsequently, the petitioner was considered and promoted, as a Senior Assistant, on 01.08.1992. The effect of the consequential promotion granted to the petitioner, on the post of Senior Assistant, the inference, which would be drawn is that ever since 1973, i.e. the year of his induction into the services, till he was granted promotion as a Senior

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Assistant in 1992, there was nothing adverse against the petitioner, which could be found in the service records of the petitioner.

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The State was created, and consequent to it, since the petitioner being a permanent resident of the territory falling in the State of Uttarakhand he had opted out to be allocated to the State of Uttarakhand, and he was ultimately allotted State of Uttarakhand by the order passed by the Government of India on 11.11.2005, and as a consequence thereto, he was relieved from the State of Uttar Pradesh and joined the services with the competent authorities of the State of Uttarakhand on 07.04.2006. The resultant affect of the final allocation of the petitioner to the State of Uttarakhand was, that he was permitted to join on the post of Senior Assistant in the Office of the Food Commissioner, Dehradun, and he worked therein ever since 20.04.2006.

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Owing to the administrative exigency, the organisational structure of the respondents Department had undergone a change; resulting into a restructuring of the cadre of the department by the Office Memorandum of 14.09.2006, and consequence to the restructuring of the Department, one post of Administrative Officer, Grade-1, was created and made available and sanctioned to be filled in by way of promotion from amongst the feeding cadre of Senior Assistant, who had the requisite qualification and experience to be considered for promotions as Administrative Officer Grade-I.

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The petitioner since was fulfilling all the laid down requisite qualification, as it was prescribed by the Office Memorandum of 14.09.2006, while creating the post of Administrative Officer Grade-1, the Selection Committee, thus constituted for the consideration of promotion, the petitioner was considered with others and was promoted on the aforesaid post of Administrative Officer, Grade-1; by an office order of 21.11.2006, and he was placed in the scale of Rs.5,500-9,000. He worked in the said capacity till he ultimately attained the age of superannuation on 30.09.2010.

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Owing to the fact that despite of having attained the age of superannuation from the post of Administrative Officer Grade-1; the post on which, he was promoted on 21.11.2006, since he was not being given the requisite financial benefit, as it was anticipated to be enforced by the Government Order of 23.09.2013 to be made payable. However, considering the implications of the Government Order, as it was enforced from time to time revising the scale and grade pay, the petitioner was accorded with the Grade pay of Rs. 4200/- by an order of 23.12.2010, which was made payable to the petitioner w.e.f. 01.08.2006, and consequently, the direction was also issued to the respondent Nos. 3 and 4, to ensure to pay the arrears of salary, as a consequence of the enhancement of the scale of Grade pay of Rs. 4200/- which was made effective w.e.f. 01.08.2006.

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With the enforcement of the Government Order of 25.09.2013, the petitioner contended, that in view of the notification, which was issued by the State Government,

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revising the Grade pay and the pay scale, which would be payable to the State Government employees, the petitioner prayed for, that his salary and the Grade pay of the petitioner may also be revised in accordance with the stipulations contained in the Government Order of 25.09.2013. Consequent to the claim raised by the petitioner for deriving his benefits of the Government Order No. 732/XXVII(7)40(2)/2010 dated 25.09.2013, praying for that he too may be placed at a higher Grade Pay of Rs. 4600/w.e.f. 01.01.2006, on a notional basis or till the actual benefit was determined to be made payable to the petitioner. The claim of the petitioner was considered by the then Commissioner, to the Food and Civil supplies Department, who vide his official letter No. 662/689/2014 dated 11.08.2014, had granted the revised grade pay scale to the petitioner in pay band No.2 of Rs. 9300-34800, with the admissible grade pay of Rs. 4600/-.

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What is remarkable to be pointed out at this juncture herein is, that while placing the petitioner in the aforesaid Grade pay, by an order of 11.08.2014, and as it has been argued by the learned counsel for the petitioner too that, based on the observations, which has been made in the note clause of the said office memorandum, the entitlement and the extension of benefit of the revised Grade pay and the pay scale, in pursuance to the Government Order of 23.09.2013, it was a conscious decision which was taken by the Commissioner, and that too after the said decision; being later on also stood ratified by the Finance Department and even by the Directorate of Pension; the relevant observations

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which were made in the order of extension of benefit to the petitioner and its appropriate later approval which has been granted by the competent authorities is extracted hereunder:-

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“1- िव� िनयं्ቔक, खा� एवं नाग�रक आपूित� िवभाग, उ�राख� द े हराद ू न को इस िनद � श क े साथ िक व स ं शोिधत व े तन िनधा � रण क े अन ु सार ्ቦ ी आन� िस ं ह रावत स े ०िन०. ्ቚ शासिनक अिधकारी को व े तन व ृ �� का ए�रयर आह�रत कर भ ु गतान करना स ु िनि�त कर � । 2- िनद े शक, ल े खा एव ं हकदारी, उ�राख� द े हराद ू न को उनक े प ्ቔ ाक- 9776 / िन0ल ं े 0ह0 / प � शन / UCI/102 / 17035 िदना ं क 4-102010 क े स ं दभ � म � इस अन ु रोध क े साथ िक क ृ पया ्ቦ ी आन� िस ं ह रावत स े ०िन० ्ቚ शासिनक अिधकारी क े उपरो� व े तन िनधा � रण क े फल��प उनके उपादान (xs z P;wVh) रािशकरण तथा प�शन का संशोिधत आदेश िनग�त करने का क� कर�। ”

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The controversy started germinating, when the petitioner has raised a claim in the revision of scale, which was already being paid to him; by seeking its further enhancement and when he represented the matter before the Commissioner for considering his claim for the payment of the enhanced Grade Pay of Rs. 4800/-. Raising his claim, the petitioner has also simultaneously agitated his claim before the Commissioner Food and Civil Supplies, by filing a representation on 26.05.2015, for extension of benefit of the Order No. 3000/Commissioner /2010 dated 13.09.2011, whereby, the Grade pay of Rs. 4600/- was directed to be made admissible, as amongst and over the cadre of employees, to which the petitioner belonged. Instead of deciding the representation of the petitioner as per the terms of the relevant Government Order referred hereinabove, the Commissioner rather sat over his own earlier decision, and consequently, had rejected the representation of the petitioner by the Order No. 1859/689 dated 16.11.2015, holding thereof that petition would be disentitling, the petitioner to be

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accorded with the Grade pay of Rs. 4600/-, which was made affective to be made payable w.e.f. 01.08.2006, as it was claimed by him in his representation, which was rejected by the Commissioner by the order of 16.11.2015, which has been impugned in the present Writ Petition.

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It has been argued by the learned counsel for the petitioner, that this action of the respondent/Commissioner Food and Civil Supplies, would be arbitrary and irrational too, because at the stage, when the petitioner has invoked the competence of Commissioner; to decide the issue of the petitioner’s entitlement for being paid with the enhanced Grade pay from 4200 to 4600, was being agitated by him by filing a representation, at the most the Commissioner could have rejected the representation itself and should have limited to that extent only, meaning thereby, the consequential affect of the rejection of the representation, would have been that the right which has already been otherwise accrued and stood granted to the petitioner by the decision of 11.04.2014, would have been continued to be maintained and to be paid to him i.e. in the Grade pay of Rs. 4200/-.

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The issue of the petitioner’s claim for higher grade pay could have been laid to rest, with the decision of 16.11.2015, itself which will have a consequential affect of the Commissioner’s decision upholding its earlier decision of 11.08.2014, of granting the Grade pay of Rs. 4200/- to the petitioner. But the controversy was not laid to rest at this stage itself, rather the Commissioner, had whimsically proceeded further and that too without adherence of principal

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of natural justice, and he had proceeded to pass the impugned order on 16.11.2015, itself being Order No. 1860/689, and as a consequence to it, the scale which was made determined to be made payable to the petitioner by the decision of 11.08.2014, that itself has been withdrawn, and the analogy and rational which has been drawn by the Commissioner for disentitling the petitioner for extension of the benefit of the Government Order of 25.09.2013, was on the ground that the Government Order of 25.09.2013, contemplating and containing the revision of payability of a scale and a Grade pay will not be applicable to the post of clerical cadre, hence, the order of 16.11.2015, was alleged to be justified. The learned counsel for the petitioner has argued that there are four fold contentions and arguments to assail the order of the Commissioner being Order No. 1860, on the grounds that :

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I. The earlier decision of 11.08.2014, would be a conscious decision which was taken by the Commissioner, keeping in view the embargoes which was contained in the Government Order of 25.09.2013. In that eventuality, the Commissioner at a subsequent stage, and that too when the petitioner has raised a claim for enhancement of the Grade pay of Rs. 4600/-, she couldn’t have rescrutinized its earlier order by way of exercising of power of review, which is not otherwise vested with her, in the exercise of her executive powers, and hence, the order would be bad and without competence in law, as executive authorities are

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not vested with the powers of review, over their administrative decisions.

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II. Secondly, he submits that if the decision of 11.08.2014, itself is taken into consideration, rather it was a composite and a conscious decision which was taken by the competent authority including the Commissioner, the department of Directorate of Pension, Finance Department of the State and the other departments, who were ultimately were liable to face the financial liability of enhanced payment of Grade pay as it was made admissible by an order of 11.08.2014, when they have not raised their any contentions to the contrary, there could’ not have been a unilateral decision which could have been taken by a Commissioner himself to over ride the effect of the Government Order of 25.09.2013, without there being any prior Government Order issued by the State Government to the controversy, because the decision of the Commissioner dated 16.11.2015, would amount to sitting over, the State’s competence to issue a Government Order of 25.09.2013, by interpreting it in a manner as if that the same would not be applicable to the Clerical Cadre employees. Hence, the order itself would be without competence because till the life of the Government Order of 25.09.2013, was subsisting and the state has not withdrawn or modified it, the

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Commissioner on her own unilaterally couldn’t have taken a contrary view, then to what has been prescribed in the Government Order of 25.09.2013.

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III. The learned counsel for the petitioner had further submitted, that even for the time being, if it is presumed though without there being any admission, on his part, that the Government Order of 25.09.2013, was at all creating any embargo in extension of the payment of the revised Grade pay of Rs. 4200/- as made payable to the petitioner by a decision of 11.08.2014, the Commissioner ought to have provided an opportunity of hearing to the petitioner, because the effect of the impugned order of 06.11.2015, of withdrawing the order of 11.08.2014, by virtue of which, the enhanced scale was determined to be made payable to the petitioner, if at all it was being withdrawn by the order impugned, it will have a civil consequences, and it cannot be sustained until and unless, the person who is likely to be effected or whose civil rights are affected or he is deprived of it, he has to be heard by the Commissioner.

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IV. Apart from it, lastly it has been argued that the interpretation which has been given to the Government Order of 25.09.2013, would be bad in the eyes of law because if the Government Order in itself is read in its totality, there is no such

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classification which has been ever laid down, in the Government Order of disentitling the persons working under the Clerical Cadre of extension of benefit of the pay scale given by the Government Order of 25.09.2013, as made admissible to the petitioner by the decision of 11.08.2014, and in that eventuality, the Commissioner herself on her own violation couldn’t have interpreted the earlier government order beyond the scope or stipulations, which had been provided in the Government Order of 25.09.2013, itself.

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12. Apart from it, this Court is of the view, that when other authorities of the State, who were compositely responsible in the decision making process for the payment of the enhanced scale as settled to be paid by the order of 11.08.2014, have not raised any grievances to the contrary as such, with regard to the decision making process arrived at by the decision of 11.08.2014, the Commissioner merely, because of being prejudiced by the filing of the representation and the decision taken by her on it, couldn’t have recalled her own order, for which, she was not competent, as it would amount to reviewing of an order on her own wisdom, which is not a power which is vested under law with the Commissioner, until and unless a power of review or recall is vested by a Statute with the Commissioner, who was exercising his executive powers, as being a Commissioner with the Department of Food and Civil supplies.

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13. In that eventuality, and for the reason assigned above, the Writ Petition is allowed. The impugned orders No. 1859/689 dated 16.11.2015 (Annexure-11 to the writ petition) and the order No. 1860/689 dated 16.11.2015, are hereby set aside and the consequential effect of the quashing of the impugned orders would be, that the petitioner would be continued to be extended with the revised scale as already settled to be paid to him in pursuance to the decision of 11.08.2014, as rendered by the Commissioner, in the light of the conditions of Government Order dated 25.09.2013.

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14. Accordingly the Writ Petition stands allowed.

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(Sharad Kumar Sharma, J.) 03.08.2022

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Nahid

Anand Singh Rawat v. State of Uttarakhand through Principal Secretary, Food and Civil Supplies

Case brief

What is this about?

What did the court decide?

Anand Singh Rawat v. State of Uttarakhand through Principal Secretary, Food and Civil Supplies

Case brief

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What did the court decide?

What the court decided

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