IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 386 of 2006 Nandan Ram Tamta ……… Petitioner. Versus State of Uttar Pradesh and others .………. Respondents. Mr. P.C. Bisht, Advocate for the petitioner. None for respondent No. 1. Mr. H.M. Raturi, Advocate for respondent No. 2. Ms. Indu Sharma, Advocate for respondent Nos. 3 and 4. Date of Judgment: 30-04-2010 JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. (Oral) The petitioner is an erstwhile employee of the Uttar Pradesh State Road Transport Corporation, in as much as he was inducted in the employment of the Corporation as a conductor, and was thereafter promoted as a booking clerk. On the reorganization of the composite State of Uttar Pradesh, the petitioner was allocated to the successor State of Uttarakhand. In the State of Uttarakhand, the petitioner continued as a booking clerk in the employment of the Uttaranchal State Road Transport Corporation. 2. On 20.07.1993 the petitioner underwent a vasectomy operation. He had been allured to undergo the aforesaid operation on the basis of a Government Order issued by the State of Uttar Pradesh dated 23.02.1980. By the aforesaid order one increment by way of special pay was assured to all Government employees, who undertook the said operation, with the object of restricting their children to less than three. 3. Having undergone the aforesaid surgery, the petitioner commenced making representations to the respondents, claiming one increment as a matter of special pay. The matter was considered at various administrative levels of the Uttar Pradesh State Road Transport Corporation, and eventually, the claim raised by the petitioner was declined. A perusal of the order by which the claim of the petitioner was 2 denied would reveal, that he was found ineligible for grant of increment as a matter of special pay, on the basis of the conditions incorporated in the Government Order dated 23.02.1980. 4. In fact, the earlier Government Order dated 23.02.1980 was reiterated by a subsequent Government Order dated 25.08.2000, wherein the same conditions were reincorporated. 5. Through the instant writ petition, the petitioner assails the action of the respondents by asserting, that the petitioner cannot be barred from the release of one increment as a matter of special pay for the vasectomy operation undergone by him on 20.07.1993. In order to examine the claim of the petitioner, we will first refer to the conditions depicted in the Government Orders dated 23.02.1980 and 25.08.2000. Translated in English, the conditions imposed were that the benefit of an increment as a matter of special pay would not be available to an employee, who: - (i) has been subjected to departmental proceedings, in as much as departmental proceedings have been initiated against him, or (ii) who has been placed under suspension, on account of contemplated departmental proceedings, or (iii) who has been subjected to the punishment of stoppage of increments. 6. The contention of the learned counsel for the respondents is, that by an order dated 31.01.1991 the petitioner was imposed the punishment of stoppage of one increment for a period of one year. It is, therefore, the contention of the learned counsel for the respondents, that the petitioner could not be released one increment as a matter of special pay, on account of the vasectomy operation undergone by him on 20.07.1993. 7. We have given our thoughtful consideration to the contention advanced by the learned counsel for the respondents. We, however, find no merit therein. It is not the case of the respondents, that any disciplinary action had been initiated against the petitioner. As such, it cannot be accepted, that the first conditional clause was the basis of denial of one increment as a matter of special pay to the petitioner. It is also not a matter of dispute, that the petitioner had not been placed under 3 suspension, on account of contemplated disciplinary proceedings as such, the second condition incorporated in the aforesaid Government Order could also not have been the basis of denial of one increment as a matter of special pay to the petitioner. The third condition incorporated in the Government Order under reference is liable to be interpreted in terms of the first two conditions. In our considered view, only such an employee who is under the currency of punishment of stoppage of increment, would not be entitled to one increment as a matter of special pay under the Government Orders dated 23.02.1980 and 25.08.2000. Any other interpretation of the aforesaid clause would render the aforesaid clause arbitrary and unconstitutional. Our instant determination can be expressed through an illustration. The benefit of one increment as a matter of special pay under the aforesaid Government Order cannot be denied to an employee who is subjected to the punishment of reversion to the lower rank, just because the Government Order does not depict the same as one of the conditions. It however cannot be disputed, that the punishment of reversion to a lower rank is more severe than the punishment of stoppage of increments. While the punishment of reversion in rank is a major punishment, the punishment of stoppage of increments without cumulative effect is a minor punishment. Therefore, it cannot stand to logic, that an employee who has been subjected to a harsher punishment would be entitled to an increment under the Government Orders under reference, but a person subjected to a lighter punishment can be denied of the same. Such an interpretation would be arbitrary, and as such, would be violative of the provision of Article 14 of the Constitution of India. The Government Order and the conditions under reference would, however, be legal and constitutionally valid if the third condition is read to mean that an individual who is under the currency of the punishment of stoppage of increment would not be entitled to the benefit of the said Government Orders. We shall, therefore, read the third condition in the manner stated above. 8. Viewed in the backdrop of the interpretation placed by us on the third condition referred to in the Government Orders dated 23.02.1980 and 25.08.2000, we will endeavour to determine whether or not the petitioner was under the currency of punishment of stoppage of one 4 increment inflicted upon him on 31.01.1991, when he underwent the vasectomy operation on 20.07.1993. The factual position depicts, that the punishment of stoppage of one increment for one year was inflicted upon the petitioner on 31.01.1991. The aforesaid punishment would subsist till 31.01.1992. From the period commencing from 31.01.1991 upto 31.01.1992 the petitioner was admittedly under the currency of the punishment of stoppage of one increment for one year. The currency of the aforesaid punishment ended on 31.01.1992. The petitioner underwent vasectomy operation on 20.07.1993, i.e. after the currency of the punishment under reference. As such, we are satisfied, that the third condition depicted in the Government Orders dated 23.02.1980 and 25.08.2000, was not applicable to the case of the petitioner so as to deprive him of one increment as a matter of special pay for undergoing vasectomy operation, under the aforesaid Government Orders. 9. It would be unfair to the learned counsel for respondent Nos. 3 and 4 if we do not take into consideration one of the submissions advanced by her during the course of hearing, namely, that the petitioner had not expressly assailed the orders issued by the respondents, whereby he was denied one increment as a matter of special pay on the basis of the vasectomy operation undergone by him on 20.07.1993. Although the aforesaid assertion made at the hands of learned counsel for respondent Nos. 3 and 4 is factually correct, the same has no legal effect, in as much as, the denial of one increment as a matter of special pay in the orders issued by respondent Nos. 3 and 4 were based on Government Orders dated 23.02.1980 and 25.08.2000, whereas the claim of the petitioner in the instant writ petition is based on the aforesaid Government Orders themselves. This technical defect in overlooking to make a specific prayer so as to impugn the said orders, in our view, is cured by the second prayer made in the writ petition, namely, the claim of a writ in the nature of mandamus, commanding respondent Nos. 3 and 4 to give the benefit of one increment as a matter of special pay to the petitioner, on the basis of Government Orders dated 23.02.1980 and 25.08.2000. We, therefore, find no merit in the instant contention advanced by the learned counsel for respondent Nos. 3 and 4. 5 10. Based on the conclusions recorded by us in the foregoing paragraphs, we are satisfied, that denial of one increment as a matter of special pay to the petitioner for having undergone vasectomy operation on 20.07.1993 under the Government Orders dated 23.02.1980 and 25.08.2000 was wholly unfair and unreasonable. The action of the respondents in denying the petitioner the aforesaid benefit is, therefore, liable to be set aside. The same is accordingly set aside. The respondents are directed to grant all consequential benefits, including monetary benefits, due to the petitioner under the Government Orders dated 23.02.1980 and 25.08.2000 by treating him as eligible for one increment as a matter of special pay, on account of the vasectomy operation undergone by him on 20.07.1993. 11. The instant writ petition stands allowed in the aforesaid terms. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 30.04.2010 30.04.2010 Amit