PARESH YADAV Vs. STATE OF U P

JUDGEMENT

(1.) In the writ proceedings out of which this reference to the Full Bench arises, the seven petitioners seek a mandamus directing the State and its officers to allow to them the scale of pay admissible to Assistant Regional Transport Officers for the period during which they discharged the duties of Assistant Regional Transport Officers, prior to their substantive appointment to the post.

(2.) The case of the petitioners is that they were regularly promoted on the post of Assistant Regional Transport Officer (ARTO) in 2003 from the lower post. On 18 July 2003, an order was issued by the Principal Secretary in the Transport Department in the name of the Governor, promoting the petitioners on the post of ARTO. They claim that between 1996 to 2003, they were required to discharge the duties of the post of ARTO. Hence, for instance, by an order dated 13 June 1997, a direction was issued by the Commissioner of Transport, requiring some of the petitioners, who were working as Regional Inspectors (Technical) to discharge the duties of ARTO, though in the substantive post of Regional Inspector (Technical). Relying on the provisions of Para 49(i) of Chapter VI of the Financial Handbook, Volume II (Parts II to IV), the petitioners claim to be entitled to the payment of salary of the higher post, while holding a dual charge. Two earlier writ petitions (Writ-A No. 51469 of 2012 and Writ-A No. 55030 of 2012) were filed under Article 226 of the Constitution, on the ground that the request of the petitioners for the grant of salary in the higher post of ARTO for the period during which they were holding two posts has not been considered. By orders dated 4 October 2012 and 17 October, 2012, the State Government was directed to examine the grievance of the petitioners individually on the basis of a decision rendered by this Court at Lucknow in Subhash Chandra Kushwaha Vs. The State of U.P. & Ors.(Writ Petition No. 1448 (S/B) of 2002 decided on 20 October 2008). The State Government, by an order dated 16 January 2013, rejected the request of the petitioners. The State Government held that the claim of the petitioners for the payment of salary in the higher post, for having discharged the duties of two posts is not covered by Para 49 of Chapter VI of the Financial Handbook, Volume II (Parts II to IV), on the ground that they had not initially been appointed to a higher post but were only called upon to look after the work of a higher post. The State was of the view that the petitioners did not raise any grievance in regard to the payment of their salary during the relevant period and, hence, it was too late in the day to accept their requests for the payment of salary of the post of ARTO for the period from 1996 to 2003, when they held charge of the post.

(3.) The foundation of the case of the petitioners is two decisions of the Division Benches of the Court at Lucknow in Prem Chandra Srivastava Vs. State of U.P. & Ors.(Service Bench No. 563 of 2012 decided on 24 May 2013) which relied upon an earlier decision in Subhash Chandra Kushwaha . The decision in Prem Chand Srivastava was carried in appeal to the Supreme Court and resulted in an order dated 4 September 2013 to which, we will shortly advert.