# State of U.P. and others v. Chandrika Prasad

- **Citation:** (2010) 3 ILRA 1283
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-09
- **Case number:** Special Appeal No. 207 of 2007
- **Bench:** Pradeep Kant, Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-chandrika-prasad-41772
- **Pages:** 4

## Text

3 All] State of U.P. and others V. Chandrika Prasad
1283

10. In the circumstances of the case,
there shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.11.2010

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE RITU RAJ AWASTHI, J

Special Appeal No. 207 of 2007

State of U.P. and others ...Petitioners
Versus
Chandrika Prasad
 ...Respondent

Constitution of India-Art.-226-Parity of
Pay Scale-petition working as laboratory
Assistant in Govt. Homeopathic Collegeclaimed the benefit of G.O. 19.09.1979denial by the authorities even of the
direction given by the Director-learned
Single judge allow the petition with
direction to given same benefit-as being
given to Mr. 'A' and 'B' similarly situated
employees-highly time barred appealCourt
expressed
its
great
concern
regarding
practice
of
filing
Special
Appeal without considering the bonafide
merit of cases0poor Respondent died
without getting fruit of judgment-such
practice
not
appreciated-appeal
dismissed with cost of Rs.10000.

Held: Para 18

The State Government ought to have
been careful while filing the special
appeal as we notice that the special
appeals
are
filed
without
even
considering as to whether appeal at all
would be successful or not and whether
there is any ground for appeal against
the order passed by the learned Single
Judge. What is happening is that almost
against every order, which is passed by
the
learned
Single
Judge,
may
be
interlocutory or final, a challenge is
made in the special appeal, and many a
time at a belated stage namely, when
contempt petitions are filed for noncompliance of the order, usually at the
sweet will or whims of the department
concerned. The forum of special appeal is
not meant for such persons including the
State Government, who does not take
the orders passed by the learned Single
Judge in the correct perspective and
avoid implementation of these orders,
under the pretext of filing the special
appeals.

(Delivered by Hon'ble Pradeep Kant, J.)

1. Heard learned counsel for the
appellants Sri A.K. Bhatnagar. None
appeared for the respondent nor there is
any request to adjourn or pass over the
case.

2. This special appeal has been filed
with delay of more than eight months and
twenty six days. It has been noticed that
the
affidavit
filed
along
with
the
application for condonation of delay not
only contains vague and bald explanation,
but also incorrect dates. Time was granted
to the State to file better affidavit, but the
so called affidavit does not explain
anything for not filing the special appeal
within time.

3. However, since the matter relates
to the financial burden upon the State
Government, we have considered the
special appeal on merits.

4. The facts of the case are that the
respondent was appointed on 4.12.1958,
as Laboratory Assistant in the pay scale of
Rs.
45-100.
Later
on
the
State
Government took over the National
Homoeopathic Medical College and the
pay of the respondent was fixed in the pay
scale of Rs. 100-160 from January, 1972,
which was later on revised in the pay
scale of Rs. 200-320.
1284 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

5. The State Government vide its
order dated 19.9.1979, fixed the pay scale
of Rs. 230-385 w.e.f. 1.10.1975, to all
such Laboratory Assistants, who had
passed High School or matric and had
experience of more than seven years, but
the respondent was placed in the pay scale
of Rs. 200-320, despite the fact that he
was
possessing
the
High
School
qualification and was having experience
to his credit of more than seven years.
Thereafter the pay scale of Rs. 200-320
was revised to Rs. 354-550 and the pay
scale of Rs.230-385 was revised to Rs.
400-615. Since the respondent was kept in
the pay scale of Rs.200-320, hence his
pay scale was revised only to Rs. 354-550
instead of 400-615. The respondent was
granted accordingly selection grade of Rs.
454-600, though he was entitled for
selection grade of Rs.470-735 in the light
of
the
Government
Order
dated
19.9.1979.
Again
as
per
the
recommendation of the Samta Samiti, the
pay scale of Rs. 354-550 was revised to
Rs. 950-1500 and the pay scale of Rs.
400-615 was revised to Rs. 1320-2040.

6. When the respondent was not
given the later pay scale, he moved a
representation on 9.3.1989, before the
Director, Homoeopathic, U.P. , who wrote
a letter to the Principal, National
Homoeopathic
Medical
College
and
Hospital, Lucknow, for giving the benefit
of the Government Order dated 19.9.1979
and other consequential benefits, but
despite the reminders being sent time and
again the grievance of the respondent
remained unattended, which compelled
him to file a writ petition.

7. The record reveals that even in
the year 1972, when the respondent was
given the pay scale of Rs. 100-160, he
approached the Public Services Tribunal,
Lucknow, claiming the pay scale of Rs.
200-320. The claim petition preferred by
the respondent was partly allowed,
allowing the pay scale of Rs. 200-320
w.e.f. 1.8.1972. This order was passed on
14.10.1983. It was thereafter that the
matter regarding fixation of pay scale was
again considered in the year 1979, but the
respondent was not placed in the pay
scale to which he was entitled, namely,
Rs. 230-385 w.e.f. 1.10.1975, but was
given the pay scale of Rs. 200-320, as a
result of which the respondent was being
placed in the lower pay scale. By
subsequent revision in the pay scale also,
he was kept in the reduced pay scale
including the grant of selection grade
which was awarded to the respondent.

8. Learned counsel for the appellants
first tried to impress upon the Court that
the claim of the respondent for the
aforesaid revised pay scale from 1975
already stands adjudicated upon by the
Tribunal in the claim petition preferred by
the respondent himself where his claim
has been rejected and, therefore, he is not
entitled to any such enhanced pay scale,
but on being confronted with the aforesaid
judgment, he conceded that it was a case
where the claim by the respondent was
made with respect to the fixation of pay in
the year 1972 i.e. when he was placed in
the pay scale of Rs. 100-160 instead of
Rs. 200-320. Thus, the judgment passed
by the Public Services Tribunal, Lucknow
in the year 1983, is not at all relevant for
the revision of the pay scale done in
pursuance of the Government Order dated
19.9.1979 w.e.f. 1.10.1975.

9. The learned State counsel,
therefore,
next
pleaded
that
the
respondent
was
since
working
in
3 All] State of U.P. and others V. Chandrika Prasad
1285
Government Homoeopathic College not
in a Allopathic Medical College to which
the government order applies, therefore,
the judgment passed by the learned Single
Judge can not be sustained.

10. The aforesaid plea firstly does
not flow from the Government Order
dated 19.9.1979, and secondly the own
conduct
of
the
State
Government
(appellants) in granting the aforesaid pay
scale to other similarly situated persons
and denying the same to the respondent, is
hostile discrimination and can not be
allowed to subsist.

11. The plea of Sri A.K. Bhatnagar
that the benefit of the pay scale of Rs.
230-385 w.e.f. 1.10.1975 in pursuance of
the order passed by the State Government
on 19.9.1979, was only available to the
Laboratory
Assistants
of
Allopathic
Medical Colleges, is not correct. It is
simply a misreading of the aforesaid
order.

12. The aforesaid order which has
been brought on record only says that in
all State medical colleges and affiliated
hospitals and in all the Government
hospitals, all such Laboratory Assistants
who
have
passed,
(1)
Intermediate
(Science) and possess diploma, (2) who
have passed Intermediate (Science) and
having experience of 3 years, (3) who
have passed High School (Science) and
are in possession of diploma and
experience of 2 years or, (4) who have
passed High School or Matric with an
experience of 7 years or more, be given
the pay scale of Rs. 230-385.

13. The aforesaid Government Order
does not clarify or classify the said pay
scale for Laboratory Assistants, only for
Government Allopathic Hospitals and
Colleges. In fact, it covers all the State
Medical Colleges with their associated
hospitals and all other Government
Hospitals.

14. Sri A.K. Bhatnagar, does not
dispute
that
National
Homoeopathic
Medical College is a Government College
with the associated hospital. He also does
not dispute that the respondent was High
School pass and was having experience of
more than 7 years to his credit. Since all
the conditions of the Government Order
dated 19.9.1979, stood fulfilled by the
respondent, denial to him the pay scale as
aforesaid can not be sustained.

15. Apart from this the learned
Single Judge has taken note of the fact
that
the
respondent's
two
other
colleagues,
namely,
Sri
Parmanand
Mishra and Shri M.S. Siddiqui, who were
similarly situated, were provided the pay
scale of Rs. 400-615 w.e.f. 1.7.1979,
which was later on revised to Rs. 13202040 w.e.f. 1.1.1986, but the respondent
was denied the said pay scale.

16. We are, thus, satisfied that the
order passed by the learned Single Judge
does not call for any interference. The
respondent who was denied the desired
pay scale for so many long years for no
valid reason and the said illegal action of
the appellants compelled him to approach
the Tribunal first in the year 1979, where
he continued his fight upto 1983, for
getting the pay scale of Rs. 200-320
instead of 100-160 and thereafter again he
was denied the pay scale of Rs. 230-385
w.e.f. 1.10.1975 and when he was placed
in the lower pay scale, it again compelled
him to file the present writ petition in the
year 1999, which could be decided only
1286 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
on 3.7.2006 but, the State Government
instead of complying with the aforesaid
order, preferred to file a highly time
barred special appeal that too with no
proper explanation for delay, and thus
delayed the compliance of the order
passed by the learned Single Judge.
Unfortunately the benefit of the same was
not given to the respondent during his life
time, due to pendency of this litigation.

17. The substitution application filed
by the legal heirs of the respondent has
been allowed by us.

18. The State Government ought to
have been careful while filing the special
appeal as we notice that the special
appeals are filed without even considering
as to whether appeal at all would be
successful or not and whether there is any
ground for appeal against the order passed
by the learned Single Judge. What is
happening is that almost against every
order, which is passed by the learned
Single Judge, may be interlocutory or
final, a challenge is made in the special
appeal, and many a time at a belated stage
namely, when contempt petitions are filed
for non-compliance of the order, usually
at the sweet will or whims of the
department concerned. The forum of
special appeal is not meant for such
persons including the State Government,
who does not take the orders passed by
the learned Single Judge in the correct
perspective and avoid implementation of
these orders, under the pretext of filing
the special appeals.

19. In the instant case, a person
appointed in the year 1958, has been
continuously fighting for the pay scale to
which he was legally entitled but was
arbitrarily denied, and despite the orders
passed by the Court, he could not get the
advantage of the orders passed in his
favour, as he died during pendency of the
litigation at one stage.

20. This practice can not be
appreciated.
Principal
Secretary
(Judicial)/Legal
Remembrance,
is
supposed
to
properly
advise
the
Government in matters of filing the
special appeals, as filing of uncalled for
appeals not only adversely affect the
interest of the parties/litigants, but also
increases the pendency in the Court.

21. We, therefore, dismiss the
special appeal with a cost of Rs. 10,000/-.
---------