# Prem Chandra Srivastava v. The State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 919
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-24
- **Case number:** Service Bench No.563 of 2012
- **Bench:** Devi Prasad Singh, Ashok Pal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-chandra-srivastava-v-the-state-of-u-p-and-ors-42647
- **Pages:** 6

## Headnote

Constitution of India- Art. 14, 226Financial Hand Book Vol. II Part(2 to 4)
Para 49- Higher pay scale-petitioner
being confirmed employee as passenger
tax superintendent-allowed to work on
higher post of ARTO-keeping in view of
recommendation dated. 08.07.2010 by
Transport
Commissioner-about
27
similarly situated persons given higher
pay excluding the petitioner-held-action
of state govt. wholly unjustified-equal
can not be treated unequal-petition
allowed with cost of Rs. 2 lac.

Held: Para-12
Thus, the action of the State Government
is not only violative of statutory right of
the petitioner to avail the benefit of
higher pay-scale in pursuance to the
provisions contained in Financial Hand
Book but it is also discriminatory since
others have been granted benefit of
salary of the officiating post, hence hit
by Art. 14 of the Constitution of India.

Case Law discussed:
[2009(27) LCD 1013]; 1993 Vol. 3 SCC 677;
1990 (2) SCC 715; 2003 Vol. 2 SCC 673; AIR
1988 SC 130; AIR 1980 SC 2841; (2005) 6
SCC 344

## Text

2 All] Prem Chandra Srivastava Vs. The State of U.P.and Ors.
919
sale shall stand rescinded in terms of
Section 28 of Specific Relief Act.

21. If the aforesaid amount is
deposited within two months then notices
must immediately be issued to the
defendants to execute the sale deed and
on their failure to do so, sale deed shall be
executed by the executing court. The
deposited amount shall be paid to the
defendants after the execution of the sale
deed and delivery of possession to the
plaintiff. Till then, the amount shall be
kept by the executing court in some good
interest bearing account with some
nationalized bank for one year renewable
for the same period after every year.
When ever it is paid to the defendants; it
shall be paid along with accrued interest.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.05.2013

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ASHOK PAL SINGH, J.

Service Bench No.563 of 2012

Prem Chandra Srivastava ...Petitioner
Versus
The State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Jagdish Prasad Maurya

Counsel for the Respondents:
C.S.C.

Constitution of India- Art. 14, 226Financial Hand Book Vol. II Part(2 to 4)
Para 49- Higher pay scale-petitioner
being confirmed employee as passenger
tax superintendent-allowed to work on
higher post of ARTO-keeping in view of
recommendation dated. 08.07.2010 by
Transport
Commissioner-about
27
similarly situated persons given higher
pay excluding the petitioner-held-action
of state govt. wholly unjustified-equal
can not be treated unequal-petition
allowed with cost of Rs. 2 lac.

Held: Para-12
Thus, the action of the State Government
is not only violative of statutory right of
the petitioner to avail the benefit of
higher pay-scale in pursuance to the
provisions contained in Financial Hand
Book but it is also discriminatory since
others have been granted benefit of
salary of the officiating post, hence hit
by Art. 14 of the Constitution of India.

Case Law discussed:
[2009(27) LCD 1013]; 1993 Vol. 3 SCC 677;
1990 (2) SCC 715; 2003 Vol. 2 SCC 673; AIR
1988 SC 130; AIR 1980 SC 2841; (2005) 6
SCC 344

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.
Since affidavits have been exchanged,
with the consent of the parties' counsel,
the writ petition is being finally disposed
of at admission stage.

2. The petitioner has approached this
Court under Art. 226 of the Constitution
of India claiming salary of the higher post
of A.R.T.O on the ground that he has
officiated on the said post for about five
years. The petitioner has staked his claim
in view of the provisions contained in
Financial Hand Book.

`
3. The petitioner has joined on the
post of Passenger Tax Superintendent on
27.3.1985. He is a permanent employee
duly selected in accordance with rules for
the post of Passenger Tax Superintendent.
On 13.6.2003, the petitioner was directed
to discharge duty of the post of A.R.T.O.
920 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
by office memorandum of the said date, a
copy of which has been filed as Annexure
No.3 to the writ petition. While permitting
the petitioner to discharge duty on the
post of A.R.T.O., it was provided that the
petitioner shall not claim any financial
gain as well as seniority of the said post.
The petitioner continued on the post of
A.R.T.O. Upto 31.12.2008.

4. According to the petitioner's
counsel,
since
the
petitioner
has
continuously discharged duty on the post
of
A.R.T.O
from
13.6.2003
to
31.12.2008, he is entitled for payment of
salary of the said post. It is submitted that
though the officiating promotion was
done on 13.6.2003 for a short period but
since, in exigency of service, he had
continued for about five years, the
respondents should have paid salary of the
post of A.R.T.O..

5. Earlier, the petitioner had filed a
writ petition No.1828(S/B) of 2011 which
was decided by judgment and order dated
18.10.2011. While deciding the writ
petition, this Court directed the Transport
Commissioner, U.P and the Finance
Controller, U.P., Lucknow to look into the
matter with regard to payment of arrears
of salary in the revised pay-scale in
accordance with law, by passing a
speaking and reasoned order within three
months and refer the matter to the State
Government, if necessary. In pursuance to
the order of this Court, by the impugned
order, the petitioner's representation has
been rejected on the ground that the
petitioner shall not be entitled for
payment of salary of the higher post.
While passing the impugned order, the
Principal Secretary of the government has
relied upon a Division Bench judgment of
this Court dated 24.3.2011, passed in writ
petition No.63740 of 2006 Subhash
Chandra Kushwaha and others versus
State of U.P. and others. Relevant portion
from the judgment has been reproduced in
the impugned order.

6. A plain reading of the relevant
portion of the judgment, reproduced in the
impugned order reveals that it does not
relate to payment of salary with regard to
officiating post.

7. Learned counsel for the petitioner
has invited attention of this Court another
Division Bench judgment, of which one
of us (Hon'ble Devi Prasad Singh, J) was
a member, reported in [2009(27) LCD
1013] Subhash Chandra Kushwaha
versus The State of U.P and others
(Writ Petition No.1448(S/B) of 2012
decided on 20.10.2008), which relates to
payment of salary during the period when
the incumbent officiates on higher post. In
the case of Subhash Chandra Kushwaha,
relied upon by the petitioner's counsel, the
incumbent discharged duty on the post of
A.R.T.O
and
after
considering
the
provisions contained in para 49 of the
Financial Hand Book, it has been held
that the incumbent shall be entitled for
payment of salary of the higher post.
Relevant portion from the judgment of
Subhash Chandra Kushwaha (supra) is
reproduced as under :

"4. From the plain reading of the
provisions contained in Para 49 of
Chapter VI of Financial Hand Bood. Vol.
II (Parts II to IV), it is evident that a
government servant who is formally
appointed to hold full charge of the duties
of a higher post in the same office as his
own and in the same cadre/line of
promotion, in addition to his ordinary
duties, shall be paid the pay admissible to
2 All] Prem Chandra Srivastava Vs. The State of U.P.and Ors.
921
him, if he was appointed to officiate in the
higher post, unless his officiating pay is
reduced under Rule 35 but no additional
pay shall be allowed for performing the
duties of a lower post. The provisions
contained in Rule 49 of the Financial
Hand Book seem to provide that a
government servant who officiates on the
higher post shall be entitled for payment
of pay-scale admissible to such higher
post. For convenience, Para 49 of Chapter
VI of the Financial Hand Book, Vol. II
(Parts II to IV) is reproduced as under :

"CHAPTER VI- COMBINATION
OF APPOINTMENTS

49. The Government may appoint a
Government servant already holding a
post in a substantive or officiating
capacity to officiate, as a temporary
measure, in one or more of other
independent posts at one time under the
State Government. In such cases, his pay
is regulated as follows :

(i)where a Government servant is
formally appointed to hold full charge of
the duties of a higher post in the same
office as his own and in the same
cadre/line of promotion, in addition to his
ordinary duties, he shall be allowed the
pay admissible to him, if he were
appointed to officiate in the higher post,
unless his officiating pay is reduced under
Rule 35 but no additional pay shall be
allowed for performing the duties of a
lower post.

ii) where a Government servant is
formally appointed to hold dual charge of
two posts in the same cadre in the same
office carrying identical scales of pay, no
additional
pay
shall
be
admissible
irrespective of the period of dual charge;

Provided that if the Government
servant is appointed to an additional post
which carries special pay, he shall be
allowed such special pay,

(iii) where a Government servant is
formally appointed to hold charge of
another post or posts which is or are not
in the same office, or which, though in the
same office, is or are not in the same
cadre/ line of promotion, he shall be
allowed the pay of the higher post, or the
highest post if he holds charge of more
than two posts, in addition to ten percent
of the presumptive pay of the additional
post or posts, if the additional charge is
held for a period exceeding thirty days but
not exceeding ninety days :

Provided that if in any particular
case, it is considered necessary that the
Government servant should hold charge
of another post or posts for a period
exceeding ninety days, the concurrence of
the State Government in the Finance
Department shall be obtained for the
payment of the additional pay beyond the
period of ninety days.

(iv) No additional pay shall be
admissible to a Government servant who
is appointed to hold current charge of the
routine duties of another post or posts
irrespective of the duration of the
additional charge.

(v) If compensatory or sumptuary
allowances are attached to one or more of
the posts the Government servant shall
draw such compensatory or sumptuary
allowances as the State Government may
fix :

Provided that such allowances shall
not exceed the total of the compensatory
and sumptuary allowances attached to all
the posts."
922 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

In the case of Subhash Chandra
Kushwaha(supra), the provision contained
in para 49 Chapter VI of the Financial
Hand Book has been reproduced and
relied upon which reveals that where a
Government servant is formally appointed
to hold full charge of the duties of a
higher post in the same office , he shall be
allowed to pay salary admissible to him of
the higher post.

8. The provision contained in
Financial Hand Book has got statutory
force. Any condition contained in the
officiating
order
contrary
to
the
provisions contained in the Financial
Hand Book which confers statutory right
on the employees shall not be sustainable
and suffers from vice of arbitrariness.

9. Apart from above, in para 8 of the
writ petition, the petitioner has given the
names of as many as many as 8 persons
who were working on the post of
Passenger Tax Officer and officiated on
the post of A.R.T.O. They were given
salary of the post of A.R.T.O for the
period when they have officiated in
compliance of the provisions contained in
Financial Hand Book.

10. In the counter affidavit, a vague
assertion has been made by the State
Government and the contents of para 8 of
the writ petition have not been denied
with regard to payment of higher payscale to the officiating officers. For
convenience, para 8 of the counter
affidavit is reproduced as under :

"That the contents of paragraphs 6, 7
and 8 of the writ petition as stated are not
admitted. The Government vide its order
dated 25.1.2011 had directed and the
office of the Transport Commissioner
vide its order dated 31.01.2011 has issued
consequential order that all similar kinds
of arrangements as a Stop Gap Measure
giving additional charge of the post of
Assistant Regional Transport Officer
should be terminated forthwith. Any
officer still working on additional charge
of Assistant Regional Transport Officer
has been doing so only on the strength of
orders granted by this Hon'ble Court in
writ petition filed by him."

11. In case the pleading of the writ
petition is not denied and a vague and
illusive reply is given, then an adverse
inference may be drawn with regard to
correctness of the pleading contained in
the writ petition. Hence, it may be
assumed that similarly situate persons
have been given higher pay-scale of the
post of A.R.T.O by the State.

12. Attention has been invited by the
petitioner's counsel to the letter dated
8.7.2010
(Annexure-8)
sent
by
the
Transport Commissioner to the Principal
Secretary, Transport which contains the
names of 29 persons including the
petitioner with recommendation that the
officers officiating on the higher post for
long time may be paid salary of the post
of A.R.T.O. However, out of the
recommendation sent by the Transport
Commissioner, except the petitioner, all
others have been paid higher pay-scale.
At the face of record, while deciding the
representation in pursuance to the order
passed
by
this
Court
(supra),
the
government has imparted discriminatory
treatment while dealing with the subject
matter. Thus, the action of the State
Government is not only violative of
statutory right of the petitioner to avail the
benefit of higher pay-scale in pursuance
to the provisions contained in Financial
2 All] Prem Chandra Srivastava Vs. The State of U.P.and Ors.
923
Hand Book but it is also discriminatory
since others have been granted benefit of
salary of the officiating post, hence hit by
Art. 14 of the Constitution of India.

13. It is well settled proposition of
law that equals cannot be treated
unequally vide 1993 Vol. 3 SCC 677
Venkeshwar Theatre versus State of
Andhra Pradesh, 1990 (2) SCC 715,
Direct Recruit Class II Engineer Vs. State
of Maharashtra , 2003 Vol. 2 SCC 673
Onkar Lal Bajaj versus Union of India,
AIR 1988 SC 130 Velur Educational
Trust versus State of Andhra Pradesh,
AIR 1980 SC 2841 J.P. Kulshreshtra
versus Allahabad University.

`
Since 28 officiating A.R.T.Os have
been given salary of the officiating post, it
is unjustifiable on the part of the State
Government to deny the same benefit to
the petitioner.

14.The impugned order seems to be
an incident of arbitrary exercise of power,
that too under the teeth of judgment of
this Court. In case the court directs the
State
Government
to
decide
a
representation in accordance with law by
passing a speaking and reasoned order,
then it shall be incumbent on the State
Government and the authority concerned
to adjudicate the controversy after taking
into
account
the
entire
facts
and
circumstances and the provisions of law.
The petitioner claims salary of the higher
post not only in pursuance to the
judgment of this Court (supra) but also
claiming parity of the higher pay-scale on
the ground that similarly situate persons
were given the salary of officiating post.
While passing the impugned order, why
the Principal Secretary has not considered
the plea raised by the petitioner in the writ
petition is not borne out. Learned
Standing Counsel also failed to satisfy
why similarly situate persons have been
granted salary of the higher pay-scale but
the petitioner has been denied. Counter
affidavit also does not seem to give a
specific reply with regard to applicability
of Financial Hand Book (supra).

Since it is for the second time the
petitioner has been compelled to approach
this
Court
and
having
retired
on
31.8.2012, coupled with the fact that the
petitioner has suffered mental pain, agony
and financial loss, it is a fit case where
exemplary cost should be awarded in
view of law settled by Hon'ble Supreme
Court in the case reported in (2005) 6
Supreme Court Cases 344, Salem
Advocate Bar Association (II), Vs.
Union of India.

15. In view of above, the writ
petition deserves to be and is hereby
allowed. A writ in the nature of certiorari
is issued quashing the impugned order
dated 24.2.2012 (Annexure No.1) with all
consequential benefits. A writ in the
nature of mandamus is issued directing
the respondents to pay difference of salary
as well as arrears for the period when the
petitioner discharged duty and officiated
on the post of A.R.T.O, expeditiously, say
within a period of two months from the
date of receipt of a certified copy of the
present judgment.

Cost is quantified to Rs.2 lacs which
shall be deposited in this court within two
months. Out of the cost of Rs.2 lacs, the
petitioner shall be entitled to withdraw
Rs.1 lac and the remaining Rs.1 lac shall
be remitted to the Medication Centre,
Lucknow. In case the cost is not
deposited, it shall be recovered as arrears
924 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
of land revenue. However, it shall be open
for the Chief Secretary, Government of
U.P to recover the cost from the
concerned authorities who have passed
the impugned order.

Registry to take follow up action.

The
writ
petition
is
allowed
accordingly.
---------
APPELLATE JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 27.05.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Second Appeal No. 570 of 2001

Jhurai

 ...Appellant
Versus
Ram Bali

 ...Respondent

Counsel for the Petitioner:
Sri
R.K.
Chitragupt,
Sri
Siddharth
Srivastava

Counsel for the Respondents:
...

U.P. Zamindari Abolution & Law Reform
Act 1951-Section 134- Cancellation of
sale deed-on ground when sale deed
executed-the executer had no right-as
before conversion of status from 'Sirdar'
to bhumidhar made as after despite-she
died-held-status stood change only on
date of deposit of 20 time revenue-date
of declaration immaterial-court below
rightly dismissed the suit-no substantial
question
of
law
involved-appeal
dismissed.

Held: Para-5
However,
this
view
has
not
been
approved by Apex Court in Deo Nandan
and another Vs. Ram Saran and others,
AIR 2000 SC 1192 wherein it has been
held that Bhumadhari rights will accrue
to a Sirdar on the date of deposit of
twenty times land revenue and rest of
the act is only ministerial. In view of
aforesaid decision of Apex Court in Deo
Nandan (supra) it cannot be said that the
law laid down by this Court in Bharat
Singh (supra) is a good law and,
therefore,
the
reliance
placed
on
aforesaid
decision
is
totally
misconceived. In Deo Nandan (supra)
the Apex Court has construed Section
134 of Act, 1951

Case Law discussed:
AIR 2000 SC 1192; 1971 RC 371; 1981 A.L.J.
402; 2012(5) ADJ 678

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Siddharth Srivastava,
learned counsel for the appellant.

2. The plaintiff instituted Original
Suit No. 37 of 1984 for cancellation of
sale deed dated 20.09.1974 on the ground
that vendor, Smt. Mohra had died before
the date of alleged execution of sale deed;
she was only a Sirdar on the date when
sale deed was allegedly executed and has
no right to transfer the same by sale; and
Section 43 of Transfer of Property Act,
1882 (hereinafter referred to as the "Act,
1882") has no application in the case in
hand.

3. From the record, however, it
cannot be disputed that Smt. Mohra
deposited twenty times of land revenue as
required under Section 134 of U.P.
Zamindari Abolition and Land Reforms
Act, 1951 (hereinafter referred to as the
"Act, 1951") on 20.09.1974 and thereafter
the sale deed was executed. It was a
registered deed. The courts below have
found
that
Smt.
Mohra
died
on
28.09.1974.