Sushil Kumar Srivastava And Another vs State Of Uttarakhand And Another

Ramesh Ranganathan, CJ

Heard Mr. B.D. Pande, learned counsel for the petitioners, Mr. S.S. Chaudhary, learned Brief Holder for the State of Uttarakhand and Mr. N.S.

Pundir, learned Standing Counsel for the second respondent-Corporation.

The petitioners have invoked the jurisdiction of this Court seeking a writ of certiorari to quash the order dated 09.06.2016; and for a mandamus

directing and commanding the respondents to pay arrears of the difference of salary in the pay-scale of Rs. 9300-34800 with a pay-band of Rs. 4600/-

w.e.f. 01.01.2006, as is being paid to similarly situated employees of other Government departments, as per the recommendations of the Sixth Pay

Commission, and the direction contained in the Government Order dated 18.05.2011 issued by the first respondent.

Facts, to the limited extent necessary, are that the Sixth Pay Commission recommendations were adopted by the Government of Uttarakhand w.e.f.

01.01.2006. In the light of the recommendations of the Sixth Pay Commission, certain pay anomalies arose, and the State Government issued

Government Order dated 18.05.2011 directing all Public Sector Undertakings/Corporations to consider rectifying the anomalies in the pay-structure.

Pursuant thereto, the Board of Directors of the second respondent-Corporation resolved to rectify the anomalies and sought approval of the State

Government, since the Government Order dated 18.05.2011 obligated the second respondent-Corporation to do so. Contending that, despite receipt of

such a proposal, no action was being taken by the State Government, the petitioners invoked the writ jurisdiction of this Court by filing Writ Petition

(S/B) No. 21 of 2016 and a Division Bench of this Court, by its order dated 08.01.2016, permitted the petitioners to make a representation in this

regard within a period of two weeks; and directed the first respondent to take a decision in accordance with law within a period of two months from

the date of receipt of the representation.

Consequent on a representation being made again by the petitioners, Office Order dated 09.06.2016 was issued by the State Government. On

03.05.2016 the State Government sought information from the second respondent regarding its financial condition and, on the second respondent

informing the State Government by its letter dated 09.05.2016 that its financial condition was weak and that they were ready and willing to extend the

benefits to the petitioners in case funds were provided by the State Government, Office Order dated 09.06.2016 was issued by the State Government

informing the petitioners that, in the light of the weak financial condition of the second respondent-Corporation, it was not possible to grant them the

benefit of the pay-scale claimed by them. Aggrieved thereby, the present Writ Petition.

Mr. B.D. Pande, learned counsel for the petitioners, would submit that, since the second respondent-Corporation had taken a decision in its meeting

to rectify the anomalies, the mere fact that the financial condition of the second respondent-Corporation was poor, during the relevant time, is no

justification for denying the petitioners the said relief; the decision of the Board of Directors is unconditional and is not made subject to availability of

funds; and, having taken a decision to extend the benefits, it is not open to the second respondent-Corporation, or the State Government, to now turn

around and hold that such a benefit cannot be extended because of the poor financial condition of the second respondent-Corporation. Learned

counsel would further state that the financial condition of the second respondent-Corporation has since improved and they are now financially sound.

On the other hand, Mr. N.S. Pundir, learned Standing Counsel for the second respondent-Corporation, would submit that the Government Order

dated 18.05.2011 required a proposal to be made by the second respondent-Corporation to the State Government; the resolution of the Board of

Directors was only to extend, the petitioners the benefit, in principle; approval of the State Government was sought evidently with the hope that funds

would be provided by the State Government; the second respondent-Corporation had in fact, by its letter dated 09.05.2016, informed the State

Government that it was willing to extend the petitioners the benefit in case the State Government provided funds to them; even today the financial

condition of the second respondent-Corporation is extremely weak; they are on the verge of being wound up; they are not even able to pay the

salaries of its staff; and, in the light of its poor financial condition, it would not be proper to direct the second respondent-Corporation to make payment

to the petitioners.

The Sixth Pay Commission revised pay-scales would apply to employees of the second respondent-Corporation only if the said pay-scales are

adopted by them. In terms of the Government Order dated 18.05.2011 a decision to revise the pay-scales/rectify the anomalies was required to be

taken by the second respondent-Corporation, and approval thereof was required to be sought and obtained from the State Government. In the light of

the subsequent letter dated 09.05.2016, it does appear that the in principle acceptance by the Board of Directors of the second respondent-

Corporation, and a proposal being made to the State Government by them pursuant thereto, was with the hope that the State Government would

provide funds to them.

Pursuant to the order passed by this Court, in Writ Petition (S/B) No. 21 of 2016 dated 08.01.2016, the State Government sought information from

the second respondent-Corporation regarding its financial condition to which the second respondent-Corporation replied, by its letter dated 09.05.2016,

that its financial condition was weak; and they were willing to extend the monetary benefits to the petitioners in case funds were provided by the State

Government. That the State Government was unwilling to provide funds is evident from the Office Order dated 09.06.2016, whereby the

petitioners’ request, for rectification of the anomalies in the pay-scale, was rejected on the ground that the financial condition of the second

respondent-Corporation was weak.

While we find no illegality in the order passed by the State Government on 09.06.2016 and would have, ordinarily, dismissed the Writ Petition, the

submission of Mr. B.D. Pande, learned counsel for the petitioners, that the financial condition of the second respondent-Corporation has since

drastically improved, cannot be brushed aside.

While Mr. N.S. Pundir, learned Standing Counsel for the second respondent-Corporation, would contend to the contrary and claim that the second

respondent-Corporation is on the verge of being wound up, we see no reason to undertake the task of determining whether or not the second

respondent-Corporation is now financially sound.

Suffice it, in such circumstances, to dispose of the Writ Petition directing the Board of Directors of the second respondent-Corporation to consider

the petitioners’ request for rectifying the anomalies bearing in mind its financial condition, and take an appropriate decision regarding extending the

petitioners the monetary benefits sought by them, with utmost expedition and, in any event, within three months from the date of production of a

certified copy of this order.

We make it clear that we have not expressed any opinion on whether or not the second respondent-Corporation should extend such monetary

benefits to the petitioners, for these are all matters for the Board of Directors of the second respondent-Corporation to consider in accordance with

law.

The Writ Petition is, accordingly, disposed of. No costs