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Judgment
D. K. Seth, J.—The petitioners were granted the payscale of Rs. 20003200 on revision of stales on the basis of pay commission report and pay rationalisation committee. Subsequently it was found that the same was clone by inadvertence or mistake. Accordingly, the same was corrected by an order dated 30194 being Annexure2 to the writ petition by which the petitioners were granted the scale of Rs. 16002660. It is this order that has been challenged by the petitioners in the present writ petition.
Shri M.D. Misra, learned Counsel appearing for the petitioners contends relying on paragraph 10 of the Government Order dated 3689 being report of the pay rationalisation committee on the basis of the pay commission report that by reason of the provisions contained therein the petitioners should have been granted the payscale of Rs. 20003200. He also contends that the petitioners are entitled to the said scale by reason of their right for being considered to be promoted to the Deputy Librarian which bears the scale of Rs. 20003200.
In the writ petition, the only prayer that has been made are as follows:
"(i) a writ, order or direction in the nature of certiorari quashing the impugned order dated 301 94 which is AnnexureII.
(ii) writ, order or direction in the nature of mandamus directing the respondents not to interfere in the scale of petitioner i.e. Rs. 20003200 and continue to pay the same.
(iii) any writ, order or direction as this Hon''ble Court may deem tit and | roper in the circumstances of the ease.
(iv) to award the cost of the petition to the petitioners against the respondents."
Thus it appears that the question of promotion was not thought of at the time when the writ petition was moved. In the pleadings also no such case was made out. During the course of argument, Shri Misra, learned Counsel for the petitioners insisted that because of paragraph 10 of the Government Order dated 3689, petitioners'' scale should be fixed at the next higher promotional post being Rs. 20003200. He also contends that he filed an application for amendment which should be allowed.
Mr. Anil Tiwari, learned Counsel for the respondent University, on the other hand, contends that fixation of the scale of Rs. 20003200 was done by mistake since paragraph 10 of the Government Order dated 3689 clearly indicates that in case there is no scope for promotion in that event the scale is to be given at the next higher scale to revised scale to be fixed under the said Government Order. The next higher scale in the revised scale to be fixed for the petitioners is scale No. 16, in asmuch as the petitioners'' revised scale was scale No. 14, instead his pay was fixed wrongly at pay scale No. 18.
I have heard Shri M.D. Misra, learned Counsel for the petitioners at length and Shri Anil Tiwari, learned Counsel for respondent University.
In the application for amendment, the following statements have been made:
"That the petitioner''s real grievance is that his right to promotion to the post of Deputy Librarian in the Library of the respondent University and right to receive the salary and other allowance had been infringed and curtailed by the University authorities in arbitrary manner and out of mala fides and the excesses committed against the petitioner No. 1 climbed to its climax when the impugned order dated 30194 by virtue of which the pay scale of the petitioner No. 1 was reduced to 16002660 from 20003200 and the petitioner No. 1 filed the abovenoted writ petition in a haphazardous manner seeking the relief of quashing of the order dated 30194 and the specific prayer for promotion to the post of Librarian and the revised payscale and other allowance as such could not be made in the writ petition which is the backbone of the claim of the petitioner"
It appears from the statement made therein that the petitioners had been claiming promotion right from the beginning which according to them reached its climax when their scale was reduced to 16002660 but the writ petition was filed in "haphazardous manner" seeking the relief of quashing of the order dated 30194 and the specific prayer for promotion to the post of Deputy Librarian and the revised pay scale and other allowances were not included. In the amendment application also there is no attempt to incorporate any statement with regard to the claim of promotion as is appearing from the application itself though certain statements were sought to be incorporated in the supporting affidavit.
Be that as it may, from the fact it appears that the petitioners were aware of their position even before the order dated 30194 was passed but they did not think it proper to claim the said relief and bring the relevant material at the initial stage. On the other hand, though the affidavits were exchanged earlier, the application for amendment was only made on 31096. No sufficient ground has been made out for the delay in making the said application. The very use of words that the applicant filed the writ petition in a "haphazardous manner" indicates that the petitioners were not diligent and they are not free from guilt of laches. Even if the said amendment is allowed, it will make out inconsistent case. Inasmuch as on one hand the petitioners are claiming their right under paragraph 10 of the said Government Order which presupposes that such right is available to a person only when there is no promotional avenue is open to them. On the other hand, now they claim that they are entitled to the said scale because of promotion available to them in the post of Deputy Librarian. These two claim cannot go together. The petitioners have to put their claim on to one or the other. At this stage, Mr. Misra, learned Counsel for the petitioners submits that he is making out an alternative case. Inasmuch as in case the petitioners are not entitled under paragraph 10 of the Government Order to the scale claimed by them, in that event, they are entitled to the same alternatively by reason of their eligibility for promotion to the said post.
The question of promotion by now is a settled principle. It is not a matter of right. It is only a right to be the considered depending on the availability of the vacancy and the eligibility of candidature. It has not been pointed out as to whether any vacancy on the post of Deputy Librarian or to on which post the petitioners claim for being so considered. No particulars are available to that end. Whether the petitioners were eligible for promotion to the said post on the date namely 30194 is not on record, though sought to be claimed by the petitioners.
Learned Counsel for the petitioners however relies on a decision of the Civil Court which was decreed in their favour. In case they press their claim on the basis of the said decree, the remedy is execution of the decree. By means of a writ petition, this Court cannot be converted into an executing court for executing a decree passed by the civil court. In case the petitioners had any right pursuant to the said decree, it is for them to execute the same in the manner provided for execution thereof before the Civil Court.
As rightly contended by Mr. Anil Tiwari, learned Counsel for respondent University, it appears from paragraph 10 (Annexure1 to the writ petition) that in case of a person where there is no scope for promotion he should be given the next higher scale from the scale in which his revised pay is to be fixed. He demonstrated his contention by giving an example that in case a person''s revised scale is fixed at 12002040 and there is no scope for promotion for him in that event he should be given the scale 13502200. A perusal of the scales mentioned in the said Government Order shows that the scale beginning with Rs. 1200 is scale No. 9 and the scale beginning with Rs. 1350 is scale No. 11. In the present case, the petitioners'' revised pay was to be fixed in scale No. 14 being scale 140026M. Whereas by mistake they were given scale No. 18 which was Rs. 20003200 instead of scale No. 16 which is Rs. 16002660. An examination of the said scales clearly indicates that the next higher scale in terms of paragraph No. 10 from scale No. 14 is scale No. 16 and not the scale No. 18, therefore, the fixation cannot be said to be unreasonable.
Be that as it may, Mr. Misra, learned Counsel for the petitioners contends that before reducing the scale, the petitioners were not given any opportunity of hearing. Since the order is vitiated with civil consequence, therefore, the petitioners are entitled to a hearing. An examination of the provision of the Government Order and the scales clearly indicate that there is no illegality or infirmity in the order of rejection but since the petitioners'' claim that no opportunity was given to them, though it appears that the petitioners have been given sufficient opportunity to justify their claim before this court even on merit, then again the respondent may give post decisional opportunity to the petitioners as early as possible preferably, within a period of two months from the date of production of certified copy of this order before the concerned respondent.
On the basis of the pleadings made in this court, it is not permissible to go into the question of petitioners right to be considered for promotion. If the petitioners have sufficient ground, in that event, they may make a fresh representation which may also be considered simultaneously within the same period.
In that view of the matter, I do not find any infirmity in the order and therefore, I am not inclined to interfere with the same, subject to the observation made above and that Ihe said order would be subject to the post decisional hearing or subject to the result of consideration of the petitioners'' representation with regard to the question of promotion to them.
With these observations/directions this writ petition stands disposed of.