# Munish Kumar Sharma and another v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 107
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-19
- **Case number:** Civil Misc Writ Petition No. 45303 of 2006
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munish-kumar-sharma-and-another-v-state-of-u-p-and-others-39639
- **Pages:** 4

## Headnote

Constitution of India, Article 226-salaryBifurcation
of
Pay
Scale
by
G.O.
16.03.1998-Quashed-became
finalsubsequent G.O. Dated 03.06.2000-again
bifurication
in
garb
of
5th
Pay
Commission-automatically
became
lifeless-held-petitioner entitled for every
consequential benefits of salary from the
date of his substantive appointmentwithin specified period.

Held: Para 16 and 17

It is also notable that it is not the stand
of the state government that against the
order dated 22.11.2001 quashing the
order dated 16.3.1998 bifurcating the
cadre, the State government has taken
legal recourse by way of filing special
appeal
or
special
leave
to
appeal
meaning thereby the said order has
become final.

Taking note of that, the writ petition
succeeds and is allowed and writ of
mandamus
is
issued
directing
the
respondent no. 1 to ensure the payment
of salary to the petitioner in the scale of
950-1500 with further revision of this
scale in view of the subsequent report of
Pay Commission. The entire exercise has
to be done within a period of four
months from the date of receipt of
certified copy of the order of this Court

## Text

1 All] Munish Kumar Sharma and another V. State of U.P. and others
107
ORIGINAL JURISDICTION
CIVIL SIDE
DATED; ALLAHABAD 19.01.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc Writ Petition No. 45303 of 2006

Munish Kumar Sharma and another

 ...Petitioner
Versus
State Of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Prabhakar Sinha
Sri Swarn Kumar Srivastava
Sri Kamal Kumar Singh
Sri Indra Raj Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226-salaryBifurcation
of
Pay
Scale
by
G.O.
16.03.1998-Quashed-became
finalsubsequent G.O. Dated 03.06.2000-again
bifurication
in
garb
of
5th
Pay
Commission-automatically
became
lifeless-held-petitioner entitled for every
consequential benefits of salary from the
date of his substantive appointmentwithin specified period.

Held: Para 16 and 17

It is also notable that it is not the stand
of the state government that against the
order dated 22.11.2001 quashing the
order dated 16.3.1998 bifurcating the
cadre, the State government has taken
legal recourse by way of filing special
appeal
or
special
leave
to
appeal
meaning thereby the said order has
become final.

Taking note of that, the writ petition
succeeds and is allowed and writ of
mandamus
is
issued
directing
the
respondent no. 1 to ensure the payment
of salary to the petitioner in the scale of
950-1500 with further revision of this
scale in view of the subsequent report of
Pay Commission. The entire exercise has
to be done within a period of four
months from the date of receipt of
certified copy of the order of this Court

(Delivered by Hon'ble Ran Vijai Singh,J. )

1. Initially this writ petition was
filed with by the two petitioners out of
which petitioner no. 1 has passed away on
23.1.2010. The abatement application has
been allowed and the writ petition stands
abated so far as it relates to the petitioner
no.1.

2. This writ petition has been filed
with the following prayers:-

(a) Issue a writ order or direction in
the nature of mandamus commanding the
respondent no. 3 to grant revised pay
scale to the petitioner Rs. 3050-75-395080-4590.

(b) Issue a writ order or direction in
the nature of mandamus commanding the
respondents to pay arrears of revised pay
scale.

(c) Issue any other writ, order or
direction as this Hon'ble Court may deem
fit and proper under the circumstances of
the case.

(d) Award the cost of the petition to
the petitioner.

3. The petitioner was working on
daily wage basis with the respondents
since 1980 and on 1st November, 1984 he
was made member of the work charge
establishment and thereafter his services
were
regularised
on
the
post
of
Amin/Surveyor vide order dated 20th
108 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
January, 1998 passed by Superintendent
Engineer,
Public
Work
Department,
Rampur Division, Rampur in the scale of
Rs. 950 to 1500.

4. It appears after Fifth Pay
Commission report, the salaries of the
State government employees were revised
with effect from 1.1.1996 and it is
thereafter a government order dated
16.3.1998 was issued by the State
government bifurcating the cadre of Class
III employees in two categories, one in
the scale of Rs.825 to Rs.1200 and
another Rs.950 to Rs.1500. On revision of
pay scale of 950-1500 changed Rs.3050
to 4590 whereas pay scale of Rs.825 to
Rs.1200 was changed from Rs.2750 to
Rs.4400. The post of amin has been
categorised under the scale of Rs.825-
Rs.1200. In pursuance of the aforesaid
government order, the salary of the
petitioner was reduced vide order dated
3.6.2000.

5. Learned counsel for the petitioner
submits
that
the
validity
of
the
government order dated 16.3.1998 was
challenged through various writ petitions
and those writ petitions were allowed
after quashing the Government Order
dated 16.3.1998, copy of one such order
has been brought on record of this writ
petition as Annexure 5. It is contended by
learned counsel for the petitioner that
once the government order which was the
basis for bifurcating the cadre of Class III
employees and reducing their pay scale
was quashed by this Court, the order
dated 3.6.2000 has automatically come to
an end. He has also submitted that in this
regard, various representations have been
filed before the competent authority but
no decision has been taken thereon.
Hence the petitioner has filed present writ
petition.

6. In the submissions of learned
counsel for the petitioner, the action of the
State government is violative of Article
14 of the Constitution of India as the
government cannot discriminate its own
employees working in the same cadre. In
his further submissions, the stand taken in
the counter affidavit that the petitioner has
not challenged the order dated 3.6.2000
by which the salary was reduced therefore
no relief can be granted to the petitioner,
is unsustainable in the eye of law.

7. Refuting the submission of
learned counsel for the petitioner, learned
Standing Counsel has submitted that this
writ petition has been filed in the year
2006 much after the order dated 3.6.2000
in persuance whereof his salary was
refixed, therefore it ought to have been
challenged by the petitioner while filing
the
present
writ
petition.
In
his
submissions, without challenging the
order dated 3.6.2000 by which the salary
of the petitioner was reduced, no relief
can be granted to the petitioner unless the
order dated 3.6.2000 is quashed by this
Court.

8. I have heard Sri Indra Raj Singh,
learned counsel for the petitioner and
learned Standing Counsel for the State
respondents
and
considered
their
submissions after perusing the record.

9. The controversy in this case is to
consider, the effect of bifurcation of the
cadre, after the Fifth Pay Commission and
the
consequential
order
of
State
Government dated 16.3.1998. It is not in
dispute that the petitioner was appointed
in substantive capacity against the post of
1 All] Munish Kumar Sharma and another V. State of U.P. and others
109
amin/surveyor and in the year 1998 and
his salary was paid in scale of 950-1500.
However after the revision of pay scale
with effect from 1.1.1996, the State
government bifurcated the cadre of Class
III employee in two scales Rs.950 -
Rs.1500 and Rs.825- Rs.1200 through
government order dated 16.3.1998, which
later on has been quashed by this Court on
22.11.2001 passed in Writ Petition No.
34315 of 1999. The order dated 3.6.2000
admittedly was passed in consequence of
the order dated 16.3.1998.

10. The meaning of word 'quash' in
The New Lexicon Webster's Dictionary
Encyclopedic Edition has been given as
under :-

Quash means to annual and to put
down.

11. In Concise Oxford English
Dictionary, Indian Edition the meaning
of word quash has been defined as under
:-

Quash means reject as not valid
and suppress.

12. Looking into the meaning of word
'quash' it is apparent that the order dated
16.3.1998
has
been
annulled/put
down/declared as invalid by this Court.
Meaning thereby whatever its existence was
prior to its quashing has now become
ineffective
and
infact
disappeared.
Therefore, any order passed on the
ineffective/annulled, order has become
meaningless and has died to its automatic
death.

13. The matter may be examined from
another angle also. The Pay Commission
has submitted its report with regard to the
revision of the pay scale of the particular
categories of the employees considering
their conditions of service and needs for
revision of pay scale, therefore after the
submission of Pay Commission report, it
was not open to the State government to
bifurcate the cadre, which submitted its
report after considering the necessary major
for revision of salary. Needless to say that
although the report of the Pay Commission
is not binding upon the State Government
but once it has been accepted then it was to
be given effect in full swing and not to
bifurcate the cadre, which in fact would
amount the circumventing of the report
adversely affecting the right of a particular
category of employees.

14. I am of the view that once the
basis of bifurcation of cadre and refixation
salary i.e. the government order 6.3.1998
was quashed by this Court, the leg of the
16.3.2000 has broken and it fallen down on
earth and has died to its automatic death as
the life of government order dated 6.3.2000
was the order dated 16.3.1998. Therefore
the stand of State government that since the
petitioner has not challenged the order dated
6.3.2000 therefore he cannot be given
benefit of quashing of the order dated
16.3.1998 become unsustainable in the eye
of law.

15. The matter may be examined from
another angle also. The State government is
the biggest employment generating agency
and it has got number of category of
employees who are getting their salaries
from the State exchequer in lieu their
performance of duty and if any government
order applicable to the employees becomes
subject matter of challenge before the Court
of law and the Court quashes the same, in
that eventuality, the pious duty of the State
government
is
to
treat
all
the
110 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
employees/incumbent on equal footing
without there being any discrimination.
Otherwise it will lead to dissatisfaction
amongst the employees and inspire the
litigation and it is none else except the State
Exchequer which will be burdened to meet
out litigation expense, apart the engagement
of its officers in contesting the litigation.
The
State
government
being
modle
employer is expected to act fairly without
any discrimination. Further it should not
promote the litigation
and drag its
employees in litigation unless it is very
necessary and the payment is going to be
made contrary to the rules, no chance
should be given to employee to knock the
door of Courts.

16. It is also notable that it is not the
stand of the state government that against
the order dated 22.11.2001 quashing the
order dated 16.3.1998 bifurcating the cadre,
the State government has taken legal
recourse by way of filing special appeal or
special leave to appeal meaning thereby the
said order has become final.

17. Taking note of that, the writ
petition succeeds and is allowed and writ of
mandamus
is
issued
directing
the
respondent no. 1 to ensure the payment of
salary to the petitioner in the scale of 9501500 with further revision of this scale in
view of the subsequent report of Pay
Commission. The entire exercise has to be
done within a period of four months from
the date of receipt of certified copy of the
order of this Court

18. Needless to say that the petitioner
shall be paid salary from the date of his
entitlement subject to his working in the
department.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN,J.
THE HON'BLE MRS. SUNITA AGARWAL,J.

Civil Misc. Writ Petition No. 65428 of 2006

Harijinder Singh

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri U.K. Purwar
Sri Pramod Kumar Srivastava
Sri Abhishek Misra
Sri Ravindra Kumar
Sri Manoj Saxena
Sri Vishnu Sahai
Sri B.Dayal

Counsel for the Respondents:
Sri A.P. Srivastava
Sri Vivek Saran
Sri Ashish Kumar Singh
Sri Ajay Kumar Singh
Sri A.S. Rana
Sri M.K. Gupta
C.S.C.

Land
Acquisition
Act-Section-48-Land
Acquired for housing Scheme by Awas
Vikas
Parishad-compensation
determined-symbolic possession taken-
.reference proceeding for enhancement
going
on-adjoining
plot
exemptedrepresentation by petition rejected-heldnot proper-direction to consider and
decide
representation
for
exemption
within time bound consideration-till then
stay in terms of SLP to continue.

Held: Para 32 and 33

In view of the law as laid down by the
Apex Court as above, the respondents
are obliged to consider the claim of land
holders for exemption uniformly on a