Kunwar Singh vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Vinoda Nand Barthwal, learned counsel for the appellant and Mr. S.S. Chaudhary, learned Brief Holder for the State of Uttarakhand.

The application seeking condonation of the delay of 44 days, in preferring this Appeal, is not opposed by Mr. S.S. Chaudhary, learned Brief Holder for the State of Uttarakhand, and the delay is, therefore, condoned. Delay Condonation Application No.15441 of 2019 stands disposed of.

This appeal is preferred against the order passed by the learned Single Judge in WPSS No. 2062 of 2019 dated 02.09.2019. The appellant herein invoked the jurisdiction of this Court by way of the said writ petition seeking a writ of mandamus to grant him the enhanced Grade Pay of Assistant Development Officer of Rs. 4600/- w.e.f. 01.11.2013; and for a writ of mandamus commanding the respondents to grant all consequential benefits to him.

Facts, as noted in the order under appeal, are that the appellant-writ petitioner was initially appointed as Mali (Gardner) on 03.09.1980 in the Rajkiya Udhyan Sachal Kendra Vidyani, Tehsil Kotdwar, District Pauri Garhwal. He was promoted to the post of Horticulture Specialist (Group-IIIrd) in November, 2006. He was again promoted to the post of Assistant Development Officer (Group-IInd) on 20.10.2016, and subsequently retired from service on 31.03.2018 as a Supervisor (Non-Gazetted Officer).

In support of his claim to be extended a higher grade pay, the appellant-writ petitioner placed reliance on a Government order dated 07.09.2015, in terms of which enhanced Grade Pay would be payable to employees in lieu of the benefits under the Assured Career Progression Scheme. The benefit of the ACP scheme was available only to those employees who were denied the benefit of promotion, and were stagnating in the very same post. For such employees, the Government Order dated 07.09.2015 stipulated that, instead of being given ACP benefits, such employees should be extended the benefit of a higher grade pay.

As noted hereinabove, the petitioner was promoted from the post of Mali to the post of Horticulture Specialist (Group IIIrd) in November, 2006, and thereafter again as an Assistant Development Officer (Group IInd) on 20.10.2016. He was, therefore, not entitled to be extended the ACP benefits, and since the Government Order dated 07.09.2015 provides for payment of enhanced Grade Pay in lieu of ACP benefits, it is only if an employee is entitled for ACP benefits would he be entitled to claim the benefit of enhanced Grade Pay in lieu of ACP benefits.

The appellant-writ petitioner was not entitled for the ACP benefits, and consequently the Government Order dated 07.09.2015 is inapplicable to him. Though the petitioner retired from service on 31.03.2018, he claims the benefit of the enhanced Grade Pay w.e.f. 01.11.2013 i.e. from a date six years prior to the date on which he invoked the jurisdiction of this Court. The learned Single Judge has non-suited the appellant both on merits and on the ground of inordinate delay and laches. The only explanation submitted by the appellant-writ petitioner, for the inordinate delay and laches, is that he was regularly visiting the office and seeking intervention of the authorities. No evidence is placed on record in support of such a plea.

Mr. Vinodanand Barthwal, learned counsel for the appellant, would place reliance on the order of the learned Single Judge in WPSS No.118 of 2016 and batch dated 27.02.2017, and in WPSS No. 136 of 2019 and batch dated 11.01.2019, to contend that orders similar to the one sought in the present writ petition, were granted therein. In WPSS No.118 of 2016 and batch dated 27.02.2017 the learned Single Judge has merely directed the Secretary, Horticulture Department to hear the matter, and determine whether or not such an employee was entitled to Grade Pay. This order was followed in WPSS No.136 of 2019 and batch dated 11.01.2019. The question whether employees, similarly situated as that of the appellant-writ petitioner herein, were entitled for a higher Grade Pay was not considered in those two batch of cases. The said judgments would not, therefore, constitute a precedent binding on a coordinate bench.

Interference in an Intra-Court Appeal is justified only if the order under appeal suffers from a patent illegality. We are satisfied that the order under appeal does not suffer from any such infirmity. The Special Appeal fails and is, accordingly, dismissed. No costs.