IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 61 of 2005 Dugdh Utpadak Sahkari Sangh Ltd. Dehradun through its General Manager Sri B.K.Bist ……. Appellant. Vs. Sri D.K. Jain S/o Late Sri H.C.Jain.. Respondent. WITH Special Appeal No. 65 of 2005 Sri D.K. Jain S/o Late Sri S.C. Jain .. Appellant. Vs. Dugdh Utpadak Sahkari Sangh Ltd. Dehradun through its General Manager Sri B.K.Bist … Respondent. Sri S.N. Babulkar, Senior Advocate, assisted by Sri Tumul Nainwal, Advocate for Dugdh Utpadak Sahkari Sangh Ltd. Sri Ashok Agarwal, Advocate for Sri D.K. Jain. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble B.C. Kandpal, J. B.C. Kandpal, J. Both these special appeals arise out against the same judgment dated 19-07-2005, passed by learned Single Judge of this Court in Writ Petition No. 750(S/S) of 2001, D.K. Jain Vs. Dugdh Utpadak Sahkari Sangh Ltd. Dehradun and another, therefore, these appeal are being decided by this common judgment. 2- The relevant facts of the case are that Sri D.K. Jain preferred writ petition No. 750 (S/S) of 2001 before this Court, with the prayer to issue a writ in the nature of mandamus commanding the respondent No.2 Veer Pal Singh, owner of Dugdh 2 Utpadak Sahkari Sangh Ltd. to pay the salary to the petitioner to the post of Assistant Manager with effect from 17-10-1994. The petitioner case is that he was appointed as transport incharge by General Manager Dugdh Utpadak Sahkari Sangh Ltd. Dehradun (hereinafter referred as ‘Society’) on 1.1.1985. On 21.3.1986 considering this fact that the post of transport incharge is not available in the staffing pattern with the Department, the Manager issued an order to appoint the petitioner as Assistant Accountant on the pay scale which is at present Rs. 4000-6000.On 16-01-1989 the Management Committee of ‘Society’ passed resolution to the effect that the petitioner is eligible to the post of Assistant Manager. On 8-9-1993, the Chairman, Managing Committee passed an order appointing the petitioner as Assistant Manager in pursuance of the resolution passed by the Managing Committee. However, the appointment was subject to the approval of Regional Dairy Development Officer, Srinagar. The Regional Dairy Development Officer did not accord approval indicating that certified copy of the resolution has not been produced and, as such, the petitioner cannot be appointed as Assistant Manager. In the year 1995, the petitioner filed a claim petition before the Labour Court under Section 33-C(ii) of the Industrial Disputes Act for arrears of salary from 16-01-1992 onwards, on the grounds that he was working on the post of Assistant Manager and he was being paid salary to the post of Assistant Accountant. The Labour Court vide order dated 11- 06-1996 rejected the claim of the petitioner holding that neither there exists any post of Assistant Manager, nor he was ever appointed as Assistant 3 Manager, as such, he cannot be paid the arrears which he has claimed as difference of salary of the post of Assistant Accountant and that of Assistant Manager. Against the order of Labour Court, the petitioner filed writ petition No. 23230 of 1996. The Allahabad High Court vide order dated 23-07-1996, directed the respondents to pass fresh order in accordance with law. Thereafter, the respondents passed a detailed order on 12-08-1996 rejecting the claim of the petitioner holding that the resolution was void. Against the order dated 12-08-1996, the petitioner again moved the High Court by filing writ petition No. 34190 of 1996. In the meantime the Chief Dairy Development Officer passed an order on 29-01-1998, holding that the petitioner cannot be treated to be promoted on the post of Assistant Manager and his claim can be considered only when the writ petitions before the High Court are withdrawn. The petitioner, therefore, withdrew his both the writ petitions on 15-05-1998. Thereafter the petitioner moved a representation. The Chief Dairy Development Officer directed the Managing Committee to take fresh decision in the matter. The Managing Committee again passed a resolution in favour of the petitioner for appointment on the post of Assistant Manager and the said resolution was approved by the Milk Commissioner and the same is final. Therefore, the claim of the petitioner was that he has already been promoted to the post of Assistant Manager in the pay scale of 5000-8000 with effect from 26-4-2003. 3- The learned Single Judge after hearing learned counsel for the parties and perusing the pleadings of parties, directed the respondents to 4 permit the petitioner to join as Assistant Manager forthwith and salary of the post of Assistant Manager be given to him from the date, he assumes charge of the post of Assistant Manager. 4- Feeling aggrieved, the ‘Society’ filed Special Appeal No.61/2005 and Sri D.K. Jain also preferred the Special Appeal No. 65 of 2005 before this Court. 5- We have heard learned counsel for the parties and perused the record. 6- The record reveals that the learned Single Judge has failed to evaluate the documents filed by the respondent, Dugdh Utpadak Sahkari Sangh in the writ petition. Annexure-2 filed by the Society in writ petition On 750(S/S) of 2001, D.K. Jain Vs. Dugdh Utpadak Sahkari Sangh Ltd., reveals that a meeting was conducted by the Society on 16-1-1989 and in that meeting it was resolved vide resolution no.6, that D.K. Jain was to be given the fitment on the post of Assistant. The resolution nowhere indicates that the petitioner had been ever given fitment on the post of Assistant Manager. Annexure- 4, annexed with the Special Appeal No. 61 (S/S) of 2005, indicates that the Regional Dairy Development Officer, U.P. Srinagar Garhwal, vide order dated 12-8-1996, set aside the resolution No. 6, dated 16.1.1989, which pertains to the petitioner for giving the fitment to the post of Assistant Manager. The order dated 12.8.1996 was passed by the aforesaid authority in compliance to the direction issued by the Hon’ble Allahabad High Court in writ petition No. 23220/1996, dated 5 23.7.1996, in which Allahabad High Court directed the Regional Dairy Development Authority, U.P. Srinagar Garhwal to decide the matter afresh on issue No.6, of the resolution passed by the Management Committee on 16-01-1989. The record further reveals that the petitioner D.K. Jain, any how, could succeed to get an order in his favour by the Chief Dairy Development Officer, U.P. on 07.11.2000, and this order indicates that the authority sanctioned the benefit of salary to D.K. Jain for the post of Assistant Manager with effect from 17.10.1994. It is pertinent to mention that the aforesaid order was issued in favour of Sri D.K. Jain only two days earlier from the date when a new State of Uttarakhand came into existence. However, Annexure No.8, filed by the Society with the Special Appeal further indicates that the order passed by the Chief Dairy Development Officer, Uttar Pradesh was stayed by the Chief Dairy Development Officer, Uttarakhand, Srinagar Garhwal vide order dated 08.12.2000. The authority in the aforesaid letter/order has made it clear that no cognizance of the letter/order dated 07.11.2000 should be taken and no benefit also should be extended to the beneficiary on the basis of the aforesaid order dated 07.11.2000. It is, therefore, quite clear that the aforesaid all the documents were not taken into consideration by the learned Single Judge, while passing the impugned judgment and order dated 19-07-2005 in Writ Petition No. 750 (S/S) of 2001. The observation made by the learned Single Judge that the resolution for the appointment of the petitioner on the post of Assistant Manager, which was subsequently approved by the Milk Commissioner, is not sustainable on the basis of 6 material available on record, as the record speaks otherwise hence we are of the definite view that the petitioner D.K. Jain had never been given any fitment to the post of Assistant Manager by the resolution dated 16.01.1989 and in case if any benefit was given to the petitioner by the Chief Dairy Development Officer/ Additional Milk Commissioner vide order dated 07.11.2000, then the same was stayed by the Chief Dairy Development Officer, Uttarakhand vide order dated 08.12.2000 and in the light of all these materials, it is abundantly clear that the petitioner had never worked on the post of Assistant Manager and he was rightly denied by the Department from giving any benefit on the post of Assistant Manager. There is also no material available on record, which may suggest that the Registrar, Cooperative Societies, being the highest approving authority in the Cooperative Society, has given any approval to the appointment of the petitioner on the post of Assistant Manager at any point of time. We have, therefore, no hesitation in coming to the conclusion that the learned Single Judge could not appreciate the matter in the correct perspective in the light of the material available on record and thus the impugned judgment cannot legally stand in the eye of law, and thus, is liable to be set aside. 7- For the reasons recorded above, the special appeal No. 61 (S/S) of 2005, filed by the Society is allowed and the judgment and order dated 19-07-2005, passed by the learned Single Judge in Writ Petition No.750 (S/S) of 2001, D.K. Jain Vs. Dugdh Utpadak Sahkari Sangh Ltd, is set 7 aside. We, accordingly, dismiss the aforesaid Writ Petition filed by the respondent Sri D.K. Jain. 8- In the light of discussion made by us in Special Appeal No. 61 (S/S) of 2005, we are also of the view that the Special Appeal No. 65(S/S) of 2005, preferred by Sri D.K. Jain, is liable to be dismissed and the same is, accordingly, dismissed. (B.C. Kandpal, J.) ( J.S. Khehar, C.J.) 09-12-2009 ISB