Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1608 (S/S) of 2006 Ranveer Singh Khati, Retired Sr. Account Clerk, R/o Khati General Store Block Road Chamba, Tehri Garhwal. …………………..Petitioner. Versus (1) State of Uttaranchal through Commissioner Gramya Vikas Evam Panchayati Raj, Uttaranchal, Pauri. (2) State of U.P. through Commissioner Gramya Vikas Evam Panchayati Raj, U.P. Lucknow. (3) District Development Officer, Tehri Garhwal. ………..……..Respondents. Sri Dinesh Gahatori, Advocate for the Petitioner. Sri P.S. Bist, Standing Counsel, for respondents no. 1 and 3. Smt. Bina Pande, C.S.C. (U.P.), for respondent no. 2. Hon’ble Prafulla C. Pant, J. By means of this writ petition, filed under Article 226 of the Constitution of India, the petitioner has sought writ in the nature of mandamus directing the respondents to fix the pension of the petitioner on the pay scale of Rs.1400-2600 (Revised to Rs.5000-8000) i.e. the last pay scale drawn by the petitioner at the time of retirement. A further mandamus 2 has been sought for refund of Rs.17,936/-, recovered from the petitioner’s Gratuity. (2) Brief facts of the case, as narrated in the writ petition, are that the petitioner was appointed in the year 1977 on the post of Junior Clerk in the department of the respondents in regular pay scale of Rs.200-320 per month. After satisfactory service of about six years, the petitioner was promoted to the post of Senior Account Clerk in the department in the pay scale of Rs.430-685 per month. The said pay scale was revised to Rs.1200-2040 w.e.f. 01.01.1986 vide letter No. 5075/38-1-21-G/88 dated 8th August 1989 (copy Annexure – 3 to the writ petition) issued by the Government of Uttar Pradesh to the Commissioner, Gramya Vikas in pursuance of Government Order No. Vey. Aa. – 1 - 1739 / DUS – 4 / (M) / 89 dated 19.05.1989. Again, Government of Uttar Pradesh vide letter No. Pa. Ma. Ni. – 356 / DUS – 22 (M) / 97 dated 23.12.1997 (copy Annexure – 4 to the writ petition), pay scale of Rs.1200-2040 was revised to Rs.4000-6000 w.e.f. 01.01.1996. The pay scale of Senior Account Clerk (Rs.430- 685) and that of the Assistant Accountant (Rs.470-735) were merged and made equal i.e. Rs.1200-2040 per month. As per the Government Order dated 08.03.1997 (copy Annexure - 5 to the writ petition) of the Government of Uttar Pradesh read with Government Letter No. Vey. Aa. – 1 – 84 / DUS – 12 / (M) / 95 dated 05.02.1997, the employees, on completion of 14 years of satisfactory service were entitled to time scale / promotion scale. On the basis of said Government Order, the petitioner was given time scale / promotion scale of Rs.1400- 3 2600 (revised Rs.5000-8000) in the year 1997-98. On 20.05.2000 (copy Annexure-6 to the writ petition) Commissioner, Gramya Vikas Evam Panchayati Raj, Uttaranchal Pauri (respondent no. 1) wrote a letter to District Development Officer, Tehri Garhwal, whereby it was directed that the petitioner’s (Sr. Account Clerk) promotion post was Assistant Accountant (Rs.1200-2040). Misinterpreting the same with Government Order dated Pun. 4709 / pension / 2000 dated 20.06.2000, issued by the Commissioner Gramya Vikas of State of Uttar Pradesh, respondents cancelled the time scale of the petitioner vide order dated 26.04.2000 and passed an order for recovering Rs.17,936 from the gratuity of the petitioner. Challenging the said order, this writ petition has been filed. (3) A counter affidavit has been filed on behalf of respondents no. 1 and 3 wherein it has been admitted that the petitioner was initially appointed as Junior Clerk and was promoted to the post of Senior Account Clerk. It is also admitted in the counter affidavit that he was getting revised pay scale of Rs.1200—2040 w.e.f. 01.01.1986. It is also admitted that said scale was revised to Rs.4000-6000 w.e.f. 01.01.1996. However, it is stated that by mistake pay scale of Rs.5000-8000 was given to the petitioner on continuous service of 14 years. It is further stated in the counter affidavit that pension matter of the petitioner was sent to the Commissioner, Rural Development, U.P., but the Commissioner Rural Development, U.P., objected to the 4 grant of promotional pay scale to the petitioner and ordered for recovery of the payment made to the petitioner. (4) Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit along with the annexures annexed thereto. (5) The short question for consideration before this Court is whether, the pay scale of Rs.5000-8000 sanctioned earlier to the petitioner, has wrongly been cancelled? (6) Admittedly, the petitioner was appointed initially as Junior Clerk with the respondent No. 3 in the pay scale of Rs.200-320 and later promoted as Senior Account Clerk in the pay scale of Rs.430-685 per month. It is also admitted that the said pay scale i.e. Rs.430-685 was revised to Rs.1200-2040 per month w.e.f. 01.01.1986 and later again revised to Rs.4000-6000 w.e.f. 01.01.1996. It is also not disputed that the petitioner was getting said pay scale of Rs.4000-6000 before he was sanctioned the impugned pay scale of Rs.5000-8000. The only dispute relates to the fact, whether the petitioner was entitled to time scale / promotion scale of Rs.5000-8000 on completion of his 14 years of service w.e.f. the date he was earlier sanctioned or not, and it is also to be seen if the cancellation of sanction of said scale is wrong in the eyes of law? (7) In view of the Government Orders, copies of which are annexed with the writ petition, it is not disputed that the pay 5 scale of Assistant Accountant and that of the Senior Account Clerk were merged to Rs.1200-2040 which were revised to Rs.4000-6000 w.e.f. 01.01.1996. Para 9 of the Government Order No. Vey. Aa.- 2 – 560 / 10 – 45 (M) - 99 dated 2nd December 2000, reads as under:- “,sls ekeyksa esa tgka fdlh deZpkjh@vf/kdkjh dh inksUufr mlh osrueku esa gksrh gS] tks mls fnukad 1&1&1996 ;k mlds ckn ls le;eku osrueku ds vUrxZr oS;kDrd izksUurh; osrueku ds :Ik esa fey jgk gSA rks ,sls in ij mldk osru foRrh; fu;e laxzg [k.M&2] Hkkx&2 ls 4 ds ewy fu;e&22 , ¼1½ esa fufgr izfdz;kuqlkj vxys mPp izdze ij fu/kkZfjr gksxk vkSj blesa ewy fu;e 22&ch ds izkfo/kku ykxw ugha gksxsaA 'kklukns’k la[;k ioek0fu0&357@nl&21¼,e½&97] fnukad 31 fnlEcj 1997 ds izLrj 8¼1½ rFkk izLrj 8¼2½ fujLr le>s tk;saA” From the above para of the Government Order, it is clear that the next higher scale is admissible to an employee on his promotion only to such post of which pay scale is equal to the one he was drawing. In the circumstances, this para needs to be read with the relevant portion of para 2 of the same Government Order, which reads as under: “mi;qZDr Js.kh ds ,sls vf/kdkjh@deZpkjh ftUgksus lsysD’ku xzsM ds ykHk dh frfFk ls 6 o"kZ dh vuojr lUrks"ktud lsok lfgr dqy 14 o"kZ dh vuojr lUrks"ktud lsok iw.kZ dj yh gks vkSj lEcfU/kr in ij fu;fer gks pqds gksa] dks izksUufr dk vyx osrueku 6 O;fDrd :Ik ls vuqeU; fd;k tk;sA ,sls laoxZ@in ftuds fy, izksUufr dj dk dksbZ in ugha gS] mudks ml osrueku ls vyx osrueku O;fDrd :Ik ls ns; gksxkA” It is this para 2 as quoted above on the basis of which petitioner at the time of completion of 14 years of service was earlier sanctioned the next higher scale of Rs.5000-8000 as there was no other scale between said scale and the scale of Rs.4000-6000 which was being drawn by him at the time disputed scale was given. That being the position, it cannot be said if the petitioner was wrongly allowed pay scale of Rs.5000-8000 on completion of 14 years of service by him. The Government Order No. 400 / XI / 01 / 55 (43) /2004 dated 21st August, 2004 which is issued by Government of Uttaranchal, during the pendency of this writ petition, shows that the post of Account Clerk has been merged with that of the Assistant Accountant in the pay scale of Rs.4000-6000, as such post of Assistant Accountant is not promotional post of Account Clerk. In this Government Order, it is further provided that on completion of three years service and passing out the departmental examination, the Senior Account Clerk / Assistant Accountant can be promoted to the post of Accountant in the pay scale of Rs.5000-8000. From this Government Order, it is also clear that there is no pay scale between pay scale of Rs.4000-6000 and Rs.5000-8000. This also corroborates that on completion of 14 years of service, the only time scale / promotion scale which can be given to the employees who were drawing Rs.4000-6000 per 7 month in Gramya Vikas Vibhag, is Rs.5000-8000. As such, cancellation of the sanction of the said scale to the petitioner appears to be illegal and the same not in accordance with law and the spirit of the Government Order. (8) Therefore, the writ petition deserves to be allowed. The writ petition is accordingly allowed. The Respondents are directed to fix the pension of the petitioner on the pay scale of Rs.1400-2600 (revised to Rs.5000-8000), i.e. the last pay scale drawn by the petitioner at the time of retirement. Also, the petitioner shall be entitled to the refund of Rs.17,936/-, recovered from him, from his Gratuity. (Prafulla C. Pant, J.) Dt.07.07.2008 NS