State of U.P. & Ors Vs.
Dr. Om Prakash Singh  Insc 513 (3 September 2004)
Arijit Pasayat & B.P.
Singh (Arising out of Slp) No. 13580/2004) Arijit Pasayat, J Leave Granted.
The State of U.P. calls in question legality of judgment rendered by a Division
Bench of the Allahabad High Court at Lucknow, by which the High Court affirmed
the order passed by the State Public Service Tribunal, Lucknow (in short the
Background facts necessary for disposal of the appeal are essentially as
Respondent was appointed in the U.P. State Horticultural Produce, Marketing
and Processing Corporation Ltd. (in short the 'HORTICO'). The said Corporation
was closed w.e.f. 15.7.1990. At the time of closure, respondent was drawing pay
in the pay scale of Rs.900-1770 and was drawing a basic pay of Rs.1060/-. On
26.4.1991 the Government issued an order providing for appointment of
retrenched employees of HORTICO on posts available for direct employment and
which are outside the purview of U.P. Public Service Commission (in short the
'Commission') as a compassionate measure. The Government order dated 26.4.1991,
inter alia, provided that the last pay drawn by the concerned employee of
HORTICO would be protected. On 1.10.1991, respondent was given temporary appointment
and posted as Deputy Jailor in the U.P. Jail Services. He was placed in the pay
scale of Rs.1400-2300. By order dated 3.10.1997 the Government fixed pay of the
respondent at Rs.2250 in the pay scale of Rs.1400-2300 with a view to protect
his pay. On 16.3.1998 the respondent made a representation stating that he
should be covered by the revised pay scale of Rs.2200-4000 w.e.f. 1.1.1986 in
HORTICO and pursuant to the decision of the State Government his last pay
should be protected in that scale. The representation was rejected by the State
Government on 24.8.1999. It was noted that the revised pay scale was not
adopted by the HORTICO. In any event, HORTICO having been closed the question
of accepting the prayer of the respondent did not arise.
Respondent filed a writ petition before the High Court which dismissed the
same on the ground that there was an alternative remedy provided before the
Tribunal. A Claim Petition No.586/2000 was filed by the respondent before the
Tribunal which held that the last pay protection would be in the revised scale.
The respondent was being given Rs.1060/- which was in the corresponding pay
scale of Rs.515-860 and, therefore, illegal. It was held that the pay
protection as envisaged by the Government order was not done. The State of U.P.
and its functionaries filed a writ petition before the High Court which by the
impugned order dismissed the same. It was, inter alia, observed as follows:
"From the record, it is evident that the scale of Rs.900-1770 stood
revised and respondent No.2 became entitled for the revision of the pay scale
with effect from 1.1.1986. His claim for the revision of pay scale could not be
defeated simply because actual revision of pay scale was not done for couple of
years and in the meantime closure of the corporation was declared. It is not
the case of the petitioners that the pay revision or the revised pay scale
could not be given to the petitioner for want of funds for any other valid
reason, or that the said benefit of revision of pay scale was not given to any
other employee of the Hortico".
Learned counsel for the appellants submitted that when the revised pay scale
was not adopted by HORTICO, the question of extending benefits of the revised
pay scale did not arise. The basic pay of Rs.1060/- as per the pay scale
operative at the time of closure of the Corporation was given to the
respondent. By a hypothetical conclusion the Tribunal came to hold that the
same was relatable to the revised pay scale of Rs.515-860. The High Court's
reasoning that closure of the Corporation was irrelevant cannot be maintained
Per contra, learned counsel for the respondent submitted that the pay
protection in respect of last pay drawn was assured by the Government. The
natural corollary is that when the pay scale was revised the same should have
been made applicable to the respondent and, therefore, the conclusions of the
Tribunal and the High Court do not suffer from any infirmity.
We find that both the Tribunal and the High Court have fallen in grave error
by overlooking the basic fact that at no point of time HORTICO had adopted the
revised scale of pay. Mere prescription of a revised scale of pay is really of
no consequence unless adopted by the concerned employer.
In the instant case as found by both the Tribunal and the High Court revised
scale of pay was not adopted by the time the Corporation was closed. That being
so, the claim of the respondent that he is entitled to the revised scale of pay
is clearly untenable. The Tribunal seems to have proceeded on the basis that
the basic pay of Rs.1060/- as was given to the respondent is relatable to the
revised scale of pay of Rs.515-860. This is clearly erroneous. Unless the
revised scale of pay was adopted the question of such presumptuous conclusion
is indefensible. The High Court's conclusion that mere closure of the
Corporation would not deprive the respondent of the revised scale of pay is
equally unsustainable. It has to be noted that the respondent's services were
terminated on the closure of HORTICO. He was given compassionate appointment
subsequently. When the Additional Inspector General (Jail), U.P., Lucknow
brought to the notice of the U.P. administration about the claim of respondent
it was clearly indicated in reply that the revised pay scale was not applicable
to the Corporation and, therefore, the question of salary fixation in the
revised scale does not arise. It further appears from records that the pay
scale of Deputy Jailor was revised from 25.11.1994 and the same was made
Rs.1400-2600. The respondent benefited from the fixation of pay scale and his
salary was fixed at Rs.2420/- w.e.f. 1.10.1995.
In accordance with the recommendations of the subsequent Pay Commission the
pay scale of Deputy Jailor stood revised to Rs.5000-8000 w.e.f. 1.1.1996 and
consequently the pay of respondent was fixed at Rs.7850/- w.e.f.
1.1.1997. The benefit of another pay enhancement w.e.f. 1.10.1998 was
extended to the respondent and his basic pay was fixed at Rs.8000/-. The
respondent has thus been granted various benefits as available in law after his
appointment as Deputy Jailor in the Jail Department of the State.
In the aforesaid background, the inevitable conclusion is that both the
Tribunal and the High Court had not considered the controversy in the proper
perspective and their conclusions cannot be sustained. The orders of the
Tribunal and the High Court are set aside. The appeal is allowed with no order
as to costs.