# / v. Anand Kumar Mishra and others

- **Citation:** (2009) 2 ILRA 713
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-06
- **Case number:** Special Appeal (D) No. 870 of 2009
- **Bench:** C.K. Prasad, C.J. A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/v-anand-kumar-mishra-and-others-41438
- **Pages:** 4

## Headnote

Constitution of India-Art. 14 & 21Benefits of Vth Pay Commission-given to
all
the
employees
w.e.f.
1.1.1996petitioner/Respondent working in U.P.
Police Radio department given such
benefit
w.e.f.
30.10.2004-highly
discriminatory, arbitrary without any
basis-single
Judge
committed
no
illegality
by
placing
reliance
on
Ghanshyam
Singh
case-warrant
no
interference-appeal
misconceived-
dismissed.

Held: Para 8 & 9

It is not in dispute that other employees
of the State Government on the very
same
recommendation
of
the
Pay
Revision Committee and Equivalence
Committee, have been given the benefit
of revised pay-scale with effect from
1.1.1996. Simply because the decision in
regard to these employees was taken
later on, it will not give a right to the
State Government to give them the scale
of pay from the date the decision is
taken. We do not find any justification
714 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

for giving the benefit of the revised scale
of pay to the employees from the date
the decision was taken for extending
such benefit and not to give it from
1.1.1996.

We
are
of
the
opinion
that
the
consideration of the matter by the
learned Single Judge does not suffer
from any error calling for interference in
this appeal.

## Text

2 All] Mahendra Kumar Gond V. D.I.O.S., Azamgarh and others

713
held that it applied to initial appointments.
The operation of a roster, for filling the
cadre strength, by itself ensures that the
reservation remains within the 50% limit.
In substance the court said that presuming
that 100% of the vacancies have been
filled, each post gets marked for the
particular category of candidate to be
appointed against it and any subsequent
vacancy has to be filled by that category
candidate. The Court was concerned with
the possibility that reservation in entire
cadre may exceed 50% limit if every year
half of the seats are reserved. The
Constitution (Eighty-first Amendment)
Act, 2000 added Article 16 (4B) which in
substance gives legislative assent to the
judgement in R.K. Sabharwal."

15. Therefore, we do not find any
substance in the submission of Mr. Singh.

Mr. Singh, lastly attempted to assail
the appointment of the appellant. As the
selection of the appellant is under
consideration of the Regional Committee,
we do not want to express any opinion in
this regard. However, we hasten to add
that the writ petitioner-respondent no.5, is
not a member of the Scheduled Caste
category and, therefore, is not eligible to
be promoted to the post, which has been
reserved
for
the
Scheduled
Caste
category. This is an additional reason why
we are not inclined to entertain the said
submission.

16. In the result, the appeal is
allowed, the impugned order dated
29.6.2009 passed by the learned Single
Judge is set aside. However, there shall be
no order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2009

BEFORE
THE HON'BLE C.K. PRASAD, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal (D) No. 870 of 2009

State of U.P. and others

...Appellants/Respondents
Versus
Anand Kumar Mishra and others

...Opposite Parties

Counsel for the Appellants:
Sri M.C. Chaturvedi
C.S.S.

Counsel for the Opposite Parties:
Sri Amit Srivastava

Constitution of India-Art. 14 & 21Benefits of Vth Pay Commission-given to
all
the
employees
w.e.f.
1.1.1996petitioner/Respondent working in U.P.
Police Radio department given such
benefit
w.e.f.
30.10.2004-highly
discriminatory, arbitrary without any
basis-single
Judge
committed
no
illegality
by
placing
reliance
on
Ghanshyam
Singh
case-warrant
no
interference-appeal
misconceived-
dismissed.

Held: Para 8 & 9

It is not in dispute that other employees
of the State Government on the very
same
recommendation
of
the
Pay
Revision Committee and Equivalence
Committee, have been given the benefit
of revised pay-scale with effect from
1.1.1996. Simply because the decision in
regard to these employees was taken
later on, it will not give a right to the
State Government to give them the scale
of pay from the date the decision is
taken. We do not find any justification
714 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

for giving the benefit of the revised scale
of pay to the employees from the date
the decision was taken for extending
such benefit and not to give it from
1.1.1996.

We
are
of
the
opinion
that
the
consideration of the matter by the
learned Single Judge does not suffer
from any error calling for interference in
this appeal.

(Delivered by Hon'ble C.K. Prasad, C.J.)

1.

Respondents-appellants,
aggrieved by the order dated 4.9.2008
passed by a learned Single Judge in Civil
Misc. Writ Petition No. 44344 of 2006,
have preferred this appeal under Rule 5
Chapter VIII of the High Court Rules.

2. Writ petitioners-respondents are
employed
in
U.P.
Police
Radio
Department.
In
the
light
of
the
recommendation of the Pay Commission
followed by the report of the Equivalence
Committee, their pay-scale has been
revised but the benefit of the said payscale was given from the date of issuance
of Government Order dated 30.10.2004
and not from 1.1.1996 as given to other
employees of the State Government. They
filed writ petition no. 67340 of 2005
before this Court and by order dated
24.10.2005, the writ application was
disposed of with a direction to the
appellants herein to take decision in
accordance with law within stipulated
period. In the light of the aforesaid
direction
of
this
Court,
the
State
Government
by
its
memo
dated
11.5.2006, rejected their claim and held
that they shall not be entitled to the
revised pay-scale from 1.1.1996. While
doing so, it was observed that the State
Government had taken a policy decision
to give the revised scale of pay from the
date of the Government Order. Writ
petitioners-respondents
challenged
the
aforesaid order, which has given rise to
the impugned order.

3. The learned Single Judge relying
on an earlier decision of this Court dated
21.8.2008 passed in Writ Petition No.
5902 (S/S) of 2005 (Ghanshyam Singh
and another vs. State of U.P. and
others) disposed of the writ application
with a direction to take appropriate
decision in the light of the aforesaid
decision.

4. As the direction of the learned
Single Judge is founded on the reasoning
of this Court in the case of Ghanshyam
Singh (supra), we deem it expedient to
reproduce the same, which reads as
follows:

"The revision of the pay-scale in
pursuance to the report of the Pay
Commission, followed by the report of
the Equivalence Committee is done from
the date noticed by the Equivalence
Committee. A perusal of the order
(Annexure-2) reveals that the revised payscale has been enforced from 1.1.1996.
Once the Equivalence Committee in
pursuance to the Pay Commission's report
has decided the revision of the pay-scale
from 1.1.1996, then the grant of revised
pay-scale to the petitioners from the date
of the issuance of the impugned order
dated 30.10.2004 appears to be an
arbitrary act on the part of the State
Government. Right to livelihood is a
fundamental right guaranteed under Art.
21 of the Constitution of India. In case,
the Pay Commission has revised the payscale and the same has been considered
by the Equivalence Committee, then that
should be implemented equally for all the
2 All] State of U.P. and others V. Anand Kumar Mishra and others

715
employees from the specified date. The
State Government has no right to revise
the pay-scale from a different date that
what has been recommended by the
Equivalence Committee.
It has not been disputed that most of
the
employees
of
the
Wireless
Department have been given the revised
pay-scale in pursuance to the report of the
Equivalence Committee w.e.f. 1.1.1996.
Accordingly,
there
appears
to
be
discriminatory treatment having been
done against the petitioners while issuing
the impugned order dated 30.10.2004. It
was incumbent on the respondents to pay
the revised pay-scale to the petitioners
and other similarly situated persons from
1.1.1996. Virtually, the earlier circular
dated 16.8.2001 (Annexure-2) seems to
have been passed in conformity with law
on the subject keeping in view the report
of the Equivalence Committee. The State
was not justified in deviating from the
grant of revised pay-scale in pursuance to
the circular dated 16.8.2001 (Annexure2). In view of the above, the order dated
30.10.2004 seems to be an arbitrary act on
the part of the State and does not survive."

5. Mr. Piyush Shukla appearing on
behalf of the appellants submits that when
the State Government decided not to grant
the scale of pay with effect from 1.1.1996,
the learned Single Judge ought not to
have interfered with the same. He points
out that it is for the State Government to
decide as to from which date the benefit
of pay-scale shall be given to its
employees and the impugned direction of
the learned Single Judge is in breach of
the said policy, which is not permissible
in law.

6. We do not find any substance in
the submission of Mr. Shukla.
7. It is well settled that every State
action has to be founded on valid reason.
A State action which is unreasonable and
arbitrary, strikes at the very root of Article
14 of the Constitution of India. Testing
the decision of the State Government on
the aforesaid anvil, we find that it is
absolutely arbitrary.

8. It is not in dispute that other
employees of the State Government on
the very same recommendation of the Pay
Revision Committee and Equivalence
Committee, have been given the benefit
of revised pay-scale with effect from
1.1.1996. Simply because the decision in
regard to these employees was taken later
on, it will not give a right to the State
Government to give them the scale of pay
from the date the decision is taken. We do
not find any justification for giving the
benefit of the revised scale of pay to the
employees from the date the decision was
taken for extending such benefit and not
to give it from 1.1.1996.

9. We are of the opinion that the
consideration of the matter by the learned
Single Judge does not suffer from any
error calling for interference in this
appeal.

10. In the result, we do not find any
merit in the appeal and it is dismissed
accordingly.
---------
716 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2009

BEFORE
THE HON'BLE C.K. PRASAD, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal (Defective) No.[864] of
2009

Zila Basic Shiksha Adhikari, Kanpur
Nagar

...Appellant
Versus
Smt. Dhoopa Devi & anr. ...Respondents

Counsel for the Appellant:
Sri K. Shahi

Counsel for the Respondents:
Sri Shri Kant Shukla
Sri Praveen Kumar

Uttar
Pradesh
Junior
High
School
(Recognised Basic Schools) Junior High
School (Recruitment and condition of
Service of Ministrial Staff and Group-D
Employees)
Rules
1984-Rule
13Cancellation of appointment without
show cause notice without opportunity
of hearing-appointment on the post of
Maharajin/Sevika-without advertising in
News
papers
without
following
the
provision contained in Rule 14 & 15illegal-grant of approval of no use if
appointment
itself
illegal-cancellation
held
proper-order
passed
by
Single
Judge-set-a-side.

Held: Para 6

There is nothing on record to show that
the writ petitioner - respondent No.1
was appointed in accordance with the
said rules. Neither the advertisement nor
the averments regarding constitution of
the Selection Committee has at all been
pleaded.
In
absence
thereof
the
appointment of Respondent No.1 was
absolutely illegal and once it is held so,
nothing prevented the Basic Education
Officer to rescind the same after it had
come to his notice. The contention that
the order of cancellation was in violation
of principles of natural justice does not
hold
water
as
even
otherwise
no
material has been brought forth before
us to demonstrate that the appointment
was valid and in accordance with the
rules applicable.

(Delivered by Hon'ble C.K. Prasad, C.J.)

1. Respondent No.1 - appellant,
aggrieved by the order dated 12.05.2009
passed by a learned Single Judge in Civil
Misc. Writ Petition No.30 of 1996, has
preferred this Appeal under Rule 5
Chapter VIII of the Allahabad High Court
Rules, 1952.

2. Short facts giving rise to the
present Appeal are that writ petitioner -
respondent
No.1
was
engaged
as
Maharajin/Sevika in Bal Niketan Balika
Junior High School, Jajmau Colony,
Kanpur Nagar. The appointment was
made in pursuance of a resolution of the
Committee of Management of the said
institution. While appointing respondent
No.1, it was resolved to seek approval of
the Basic Education Officer, Kanpur
Nagar. The approval was granted by the
Basic Education Officer in May, 1994.
Thereafter,
by
order
dated
22nd
November, 1995, the Basic Education
Officer cancelled the appointment inter
alia on the ground that earlier approval
for
appointment
was
taken
on
misrepresentation
of
facts
and
her
appointment was absolutely illegal.

3. Respondent No.1 challenged the
aforesaid order in the writ petition which
has given rise to the present appeal. The
learned Single Judge allowed the writ