IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 274 of 2008 Harsh Wardhan Kala .……… Appellant. Versus State ofUttar Pradesh & Others .………. Respondents Present: Mr. Rakesh Thapliyal, Advocate for the appellant. Mr. B.K. Gupta, Advocate for respondent nos. 3 and 4. Date of decision: 18-02-2010 JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. (Oral) CLMA No. 9059 of 2008 (Delay Condonation Application in time barred SPA) We have heard learned counsel for the rival parties on the issue of condonation of delay. For the reasons recorded in the application, we are satisfied, that the delay in filing the instant Special Appeal deserves to be condoned and the same is, accordingly, condoned. Special Appeal No. 274 of 2008 Harsh Wardhan Kala was undisputedly appointed as Laboratory Assistant in 1988. On the basis of Government Order dated 29.03.1989, he was placed in the sanctioned pay scale of Rs. 570-1100. On the recommendation of Samta Samiti, Uttar Pradesh, a Government Order dated 19.07.1989 was issued, whereby the pay scale of Laboratory Assistant was revised to Rs. 1400-2600. In order to claim salary in the pay scale of Rs. 1400-2600, he approached the High Court at Allahbad by filing Civil Misc. Writ Petition No. 12822 of 1992. The aforesaid writ petition was disposed of by a learned Single Judge on 30.07.1997. A perusal of the order dated 30.07.1997 reveals, that the respondents were directed to consider and determine the claim of the petitioner for being placed in the pay scale of Rs. 1400-2600. Consequent upon the directions issued by the High Court at Allahbad, respondent no. 2 passed an order dated 09.06.1998, declining the claim of the petitioner for being placed in the pay scale of Rs. 1400-2600. 2 2. In order to assail the order dated 09.06.1998, as also in order to claim the pay scale of Rs. 1400-2600, the petitioner again approached the High Court at Allahabad by filing Civil Misc. Writ Petition No. 1846 of 1999. On the creation of the successor State of Uttarakhand, Civil Misc. Writ Petition No. 1846 of 1999 was transferred to this Court, whereupon, it was re-numbered as Writ Petition (S/S) No. 1598 of 2001. By an order dated 25.03.2008, a learned Single Judge of this Court dismissed the aforesaid writ petition. The order passed by the learned Single Judge is being extracted hereunder: “The petitioner’s claim for parity of pay scale is based on the ground that he is discharging the same duties and functions. According to the counter affidavit, the petitioner was appointed in a different pay scale in hill sub cadre. The parity has been claimed with the persons working in the plain cadre. After the creation of separate State of Uttarakhand both the cadres have merged. Thus, the claim of the parity of the petitioner is misconceived. The writ petition is dismissed. No order as to costs.” 3. The aforesaid order has been assailed by Harsh Wardhan Kala by filing the present Special Appeal. During the course of hearing, learned counsel for the appellant invited this Court’s attention to the factual position depicted in paragraph no. 26 of Writ Petition (S/S) No. 1598 of 2001. Paragraph no. 26, relied upon by the learned counsel for the appellant, is being extracted hereunder: “26. That as the said scheme is functioning in the plain area as well as in the hill area and as such the duties and liabilities of Lab Assistant are similar in nature and as such no any differentiation in the pay scale can be made by the respondents.” The response to the averments made in paragraph no. 26 of the writ petition, are contained in paragraph no. 28 of the counter affidavit, filed on behalf of the respondents. Paragraph no. 28 of the counter affidavit is also being extracted hereunder: “28. That with regard to the contents of paras 24 to 26 of the writ petition, it is stated that since the petitioner is a member of Hill Cadre as the said, the post reserved for plain cadre and the petitioner cannot get the benefit of the same.” 4. From the assertions made in the writ petition, as also the reply thereto at the hands of the respondents, it clearly emerges, that it was the categoric case of the appellant before the learned Single Judge, that he 3 had been inducted into the service of the respondents, wherein he was promoted against the post of Laboratory Assistant in 1988. It was also his categoric case, that the duties and responsibilities of the post of Laboratory Assistant in the entire State of Uttar Pradesh, irrespective of the hill or the plains cadre, were the same, and as such, there was no question for the respondents to discriminate between the Laboratory Assistants posted in the hill cadre or in the plains cadre. The grant of the pay scale of Rs. 570-1100 for Laboratory Assistants posted in the hill cadre, as against the pay scale of Rs. 1400-2600 for those posted in the plains cadre according to the learned counsel for the appellant is unacceptable in law. Despite the aforesaid categoric assertion, there was no denial at the hands of the respondents, as is apparent from the relevant extract of the counter affidavit reproduced hereinabove, that the posts of Laboratory Assistants were available both in the hill cadre as well as in the plains cadre, as also the fact, that the duties and responsibilities of the Laboratory Assistants, posted in the hill cadre, were the same as those posted in the plains cadre. In the aforesaid view of the matter, in our considered view, there would be hardly any justification at the hands of the respondents to determine different pay scales for persons posted against the same post, in the same Department, but on different cadres. The stance adopted by the respondents in the counter affidavit before the learned Single Judge was plain and simple, namely, that Laboratory Assistants posted in the hill cadre could not be equated with the Laboratory Assistants posted in the plains cadre. We find no justification, whatsoever, in the instant stand adopted at the hands of the respondents. Obviously some justification could have been made, in case the duties and responsibilities of the Laboratory Assistants were distinguishable. In a situation where duties and responsibilities were distinguishable, being more/ or less arduous when compared with the other, different pay scales may be permissible. That however is not so in the present case. We are therefore of the view, that the State Government erred in passing the impugned order dated 09.06.1998, denying salary to the appellant in the scale of Rs. 1400-2600. The impugned order is, accordingly, set aside. A direction is hereby issued to the respondents to pay salary to the appellant in the scale of 1400- 4 2600 w.e.f. the date when the aforesaid scale was introduced and made applicable to the Laboratory Assistants. 5. With the said observation, the instant appeal is allowed. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 18.02.2010 18.02.2010 Amit