Shravan Kumar vs State of U. P. and others

Hon''ble Devendra Kumar Arora, J.—The above two writ petitions have been filed by the petitioner, Shravan Kumar, raising almost the same grievance and, as such, both the writ petitions are being decided together.

Heard Sri Shravan Kumar, petitioner, in person, Sri Sudeep Seth, learned counsel for opposite party no. 2 and Sri Prashant Kumar, learned counsel for opposite party no. 3.

In Writ Petition No. 5836 (SS) of 2005, the petitioner sought the following reliefs:

to issue writ, order or direction in the nature of mandamus commanding the opposite parties no. 3 & 5 to grant appropriate D.A. and annual increment to the petitioner with retrospective effect and also decide the representations filed as Annexures No. 5,6,7,8,10 & 11.

to issue writ, order or direction in the nature of mandamus commanding the opposite party no. 4 to pay transfer T.A., D.A. and composite grant etc. of the petitioner as per annexures no. 5 & 6 to the writ petition and not to deduct L.I. Amount and refund the deducted amount of it.

to issue writ, order or direction in the nature of mandamus commanding the opposite parties no. 3 & 5 to protect the seniority of the petitioner for assigning the officiating charge of Project Manager, whenever Project Manager is out of station for whatsoever reasons.

be pleased to quash the order dated 15.2.2005 of opposite party no. 3, Annexure No. 2 to the writ petition. (through amendment).

Whereas in Writ Petition No. 6877 (SS) of 2007 the petitioner has prayed for the following reliefs:

to quash illegal and arbitrary Advisory Note dated 30.10.2006 (Annexure No. 5) and Advisory Note dated 19.5.2007 (Annexure No. 7), issued by opposite party no. 4.

to issue writ, order or direction to the opposite parties no. 2 & 3 to protect the usual salary of the petitioner which was being regularly paid upto December, 2006 as per Annexure -11 of writ petition.

to issue writ, order or direction in the nature of mandamus commanding opposite parties no. 2 and 3 to transfer the petitioner from Noida to Lucknow as per the resolution and agenda point no. 2 of the Governing Committee of ITTUP (NGNW), as contained in Annexure No. 14 to the writ petitioner and also decide the representation (Annexure No. 15).

Facts of the case, in nutshell, are that petitioner is a Design Assistant in the Design and Development Section in the Institute of Tool Room Training U. P. (herein after referred to as ''ITTUP'' ) at Noida. ITTUP is an instrumentality of the ''State'' within the meaning of Article 12 of the Constitution of India. It is governed by the Rules of Discipline, Conduct and Appeals of the Institute of Tool Room Training, U. P., Lucknow (opposite party no. 2). The ITTUP (NGNW) (Opposite Party No. 3) is a wing of ITTUP, Lucknow (Opposite Party No. 2) and their establishment is the same.

As per contents of Writ Petition No. 5836 (SS) of 2005, in compliance of the order, passed by this Court in Writ Petition No. 3253 (SS) of 2000, petitioner was transferred from ITTUP Lucknow to ITTUP Noida vide order dated 25.7.2003. After transfer, petitioner submitted his claim for T.A. & D.A. vide letter dated 3.10.2003 separately which is still pending for disposal with the opposite parties no. 4 & 5. Petitioner has not been granted any increment since 2002 which is in violation of Government Order dated 06.2.1995 and after his transfer from ITTUP, Lucknow to ITTUP Noida-Greater Noida, the A.D.A. applicable in his case has been reduced from 61% to 43% by the opposite party no. 3 arbitrarily and the fixed D.A. has also been reduced from Rs. 5950/- to Rs. 5180/-. The reasons explained in para 4 of disposal order dated 15.2.2005 are illogical. The petitioner further submitted that prior to his transfer he was not a member of G.S.L.I. as the same was not applicable in his case at Lucknow and he never opted for it, but after joining his duties at Greater Noida without his consent and option, the opposite party no. 5 has started deducting huge amount from salary of the petitioner towards L.I. Apart from it, petitioner has also raised grievance with respect to not maintaining the seniority and being the senior most in the organisation he was entitled for officiating charge of the post of Project Manager which was given to his junior namely, Sri R. K. Das thereby compelling the petitioner to work and comply the orders of his junior. The petitioner submitted various representations for redressal of his grievance to the authority concerned but the same were not taken care of and finally in pursuance of the directions issued by this Court dated 08.12.2004, passed in Writ Petition No. 7248 (SS) of 2004, the opposite party no. 3 decided the petitioner''s representation by means of order dated 15.2.2005 (Annexure No. 2 to the Writ Petition). In the order dated 15.2.2005, the opposite party no. 3 shifted his responsibility upon opposite parties no. 2 & 4 and directed the petitioner to get redressed his grievance by approaching them. It is also submitted by the petitioner that initially Rs. 10,000/- was paid to him in advance on 26.7.2003 against the T.A. and composite grant but that amount was deducted from his salary on 14.9.2007.

In W. P. No. 6877(SS) of 2007, the petitioner has prayed for quashing of the Advisory Notes dated 30.10.2006 (Annexure No. 5) as well as dated 19.5.2007 (Annexure No. 7). In this regard, petitioner also made a representation to the Project Manager, ITTUP on 13.11.2006 (Annexure No. 4) but the same was not forwarded to the competent authority. As such, he preferred an appeal on 05.12.2006 (Annexure No. 6) for constitution of an independent inquiry on account of denial of onwards submission of representation despite his reminders.

On 22.5.2007, the opposite party no. 4 served a show cause notice dated 19.5.2007 (Annexure No. 7) through speed post at the residence of the petitioner at Lucknow although he was on duty at ITTUP, Noida. The petitioner requested opposite party no. 4 vide his explanation dated 29.5.2007 (Annexure No. 8) that the matter may be forwarded to the Chairman (Opposite Party No. 3) with his comments for enquiry in the matter.

Further submission of petitioner is that he was transferred to Noida on total salary of Rs. 15,056.65 per month as on 25.7.2003 and, as such, he is entitled to get stagnation increment with effect from the year 2003. However, his salary has been reduced to Rs. 14,482/- per month whereas the opposite parties no. 3 & 4 have admitted in counter affidavit that petitioner is getting Addl. D. A. @ 45% with effect from 25th July, 2003.

Counter Affidavit has been filed on behalf of ITTUP, Lucknow (opposite party no. 2), stating therein the status of the institute that the Institute of Tool Room Training U. P., Lucknow (ITTUP) was bifurcated into two parts by the State Government in the meeting dated 03.7.1998, held under the chairmanship of the Chief Secretary. Half of the manpower and machinery was transferred from Lucknow to Noida and, as such, Noida Wing came into existence which is being governed by a separate governing committee comprising of Noida and Greater Noida Authorities. The Noida and Greater Noida Authorities exercise administrative and financial control over the Noida and Greater Noida Wing of the ITTUP and there is no control of the Lucknow Wing upon the affairs of Noida wing of ITTUP. Thus, both the wings of ITTUP are working in an independent manner.

It has further been averred in the counter affidavit that the petitioner in compliance of the order dated 16.6.2000 passed in Writ Petition No. 3253 (SS) of 2000, was transferred from Lucknow to Noida and Greater Noida Wing of the ITTUP alongwith his post vide transfer order dated 25.7.2003 (Annexure No. C-4). Since ITTUP Lucknow was facing financial crises, petitioner could not be paid his salary and then the petitioner filed several contempt petitions and the dispute with regard to the arrears of salary for the period July, 1997 to 24th July, 2003 was finally disposed of vide judgment & order dated 19.9.2007 (Annexure No. C-5). Accordingly, an amount of Rs 2,91,843.80 was paid to the petitioner by the ITTUP Lucknow. The contempt proceedings were accordingly dismissed and notices were discharged. Since the petitioner had been transferred to the Noida Wing of the ITTUP on 25.7.2003, salary for the subsequent period was to be paid by the Noida Wing of ITTUP and no responsibility lies on Lucknow Wing of ITTUP. It has been further submitted by learned counsel for the opposite party no. 2 that since the Lucknow Wing of the ITTUP has been rehabilitated by the State Government with the strength of 27 identified employees, it is not feasible for the Lucknow Wing of the ITTUP to recall Shri Shravan Kumar (the petitioner) at Lucknow.

Opposite Party No. 3 has also filed Counter Affidavit stating therein that there is no Design and Development Section in ITTUP Noida Wing. As such, petitioner was assigned theory teaching work only. In reply to the contents of paras 14 & 15 of the writ petition, it was submitted that the Joint Secretary, Government of Uttar Pradesh vide letter dated 15th December, 2006 asked several informations regarding ITTUP Noida and enquired how the employees of ITTUP Noida are being paid more D.A. as compared to the employees of ITTUP Lucknow and if it is so then same should be recovered. After receipt of said letter, payment of employees of ITTUP, Noida was stopped till meeting of the Governing Committee of the Wing. The Project Manager, ITTUP Noida Wing through Office Order dated 21/24.4.2007 (Annexure No. CA-20) informed that D.A. as applicable to Institute of Tool Room Training U.P, Lucknow shall be paid to Wing''s employees as per decision of the Governing Committee. Now, the employees of the Wing including the petitioner are being paid D. A. @ 148% and 111% and A. D. A. @ 37%. Petitioner is in non-officer cadre and his educational qualification is only ITI in Draftsmanship.

Sri M. K. Srivastava, opposite party no. 4 has also filed a short counter affidavit stating therein that neither he is disciplinary authority nor is the Appointing Authority of the petitioner. As such, he has no concern with the reliefs sought by him. However, being a Project Manager, Chief Executive of ITTUP, Noida-Greater Noida Wing, he is controlling officer of every subordinate employee of the wing including the petitioner. He is also the leave sanctioning authority of the employees of the wing. The petitioner never got his leave sanctioned by the opposite party no. 3. The advisory note dated 30.10.2006 is perfectly legal as petitioner shouted and threatened the deponent when he came to know that his medical leave on the ground of not feeling well, was not sanctioned.

A supplementary affidavit has been filed on behalf of the opposite party no. 2 stating therein that presently in ITTUP there is no incumbent posted as Chairman of the ITTUP. As such, it is not possible to file any affidavit on his behalf.

Supplementary Counter Affidavit has been filed on behalf of opposite party no. 2, stating therein that the post of Design Assistant does not exist at present in ITTUP, Lucknow as petitioner was transferred to Noida alongwith his post. As such, it is not possible for the Lucknow Wing of the ITTUP to call back the petitioner to Lucknow. It has been further mentioned in the supplementary counter affidavit that the State Government in its meeting held on 3.7.1998 bifurcated the ITTUP into two parts, one wing at Lucknow and other wing at Noida having a separate and independent existence with no control of Lucknow Wing upon the affairs of the Noida wing and the same is also evident from the minutes of the meeting dated 27.10.2006. Both the wings are still registered as a single society under the Societies Registration Act, 1860 and the State Government exercise its control over both the wings.

Further, a short counter affidavit has been filed on behalf of opposite party no. 2 stating therein that ITTUP Noida is governed by the separate governing committee comprising of Noida and Greater Noida authorities. The Noida and Greater Noida Authorities exercise administrative and financial control over the Noida and Greater Noida Wing of the ITTUP. Both the wings of ITTUP are working in an independent manner. Only the State government is authorised to take a decision with respect to ITTUP, Noida and Greater Noida Wing. Petitioner was transferred to Noida alongwith his post in compliance of the order passed by this Court. The dispute with regard to the arrears of salary for the period July, 1997 to 24th July, 2003 has been finally decided and petitioner has been paid Rs. 2,91,943.90 through cheque. Since the petitioner had been transferred to Noida on 25.7.2003, salary for the subsequent period was to be paid by the Noida Wing of ITTUP. The Lucknow Wing of the ITTUP has been rehabilitated by the State Government vide G.O. Dated 22.7.2005. Out of 79 employees who were working in Lucknow Wing of the ITTUP, 52 employees had been retired voluntarily alongwith benefits. Only 27 marked employees have been retained for the training programs. The State Government sanctions and releases budget for payment of salary only to 27 marked employees which does not include the petitioner. As such, the answering opposite party would not be able to pay any salary to the petitioner or to take work from him. The answering opposite party is not responsible for payment of salary to the petitioner as he is an employee of Noida Wing of ITTUP.

In rejoinder affidavit to the short counter affidavit filed on behalf of opposite party no. 4, the petitioner, in person, has mentioned that admittedly opposite party no. 4 is neither Disciplinary Authority nor Appointing Authority of the petitioner but he has issued advisory notes dated 30.10.2006 (Annexure No. 5) and 19.5.2007 (Annexure No. 7) which are illegal.. The petitioner further submitted that opposite party no. 4 under Right to Information Act has given information on 20.1.2007 that since 01.7.1999 till 2002 only seven instalments of Dearness Allowance has been paid to the petitioner and rest of the instalments of D. A. for the years 2003, 2004, 2005 and 2006 (total eight instalments) is due to be paid. Further, in rejoinder affidavit to the counter affidavit filed on behalf of opposite party no. 3 the petitioner submitted that the Government has not issued any order or direction to opposite parties no. 3 & 4 to reduce the salary of the petitioner and petitioner''s representation dated 19.6.2007 has not been disposed of by the opposite party no. 3. In rejoinder affidavit to short counter affidavit filed by opposite party no. 2. It is submitted that both the wings at Lucknow and Noida is a single unit and the responsibility to run them rests upon the governing body of the Society. ITTUP Lucknow being parent unit of Noida-Greater Noida wing of ITTUP is responsible for payments and policy decisions and the same has already been exercised by the opposite party no. 2. The petitioner is covered with the statutory provisions of E.P.F. & M.P. Act, 1952 as an employee of opposite party no. 2 as evident from perusal of correspondences between opposite party no. 3 and the parent department of the deponent is Design & Development Department which is existing at ITTUP, Lucknow and petitioner is liable to be transferred back to his own department.

Sri Sudeep Seth, learned counsel for opposite parties no. 2 and 4, apart from reiterating the status of ITTUP, Lucknow and ITTUP, Noida -Greater Noida, submitted that both the units are working independently and, as such, no decision with respect to affairs of ITTUP Noida and Greater Noida Wing can be taken by ITTUP Lucknow and only the State Government is authorised to take a decision with respect to ITTUP Noida and Greater Noida Wing. It is also submitted that the petitioner is a habitual litigant as during the period 1993 to 2003 he has filed number of writ petitions.

The petitioner preferred a Writ Petition No. 3253 (SS) of 2000 for being posted at Noida and vide interim order dated 16.6.2000 this Court directed the opposite parties to post the petitioner at Noida or at any other appropriate place. When the said order was not complied with, the petitioner preferred contempt petition no. 1591 (c) of 2000 and then in pursuance of the contempt proceedings petitioner was transferred to Noida and Greater Noida Wing of the ITTUP alongwith his post vide order dated 25.7.2003 (Annexure No. C-4). Petitioner was also granted Rs. 10,000/- as advance Transfer Allowance and composite grant by the ITTUP, Lucknow which was deducted/adjusted on 14.9.2007. The petitioner preferred several contempt petitions against ITTUP, Lucknow for payment of arrears of salary etc. and vide judgment & order dated 19.9.2007 (Annexure No. C-5) all the contempt petitions were decided finally and the dispute with regard to the arrears of salary for the petitioner July, 1997 to 24th July, 2003 was finally decided and he was paid Rs. 2,91,943.90 as arrears by the ITTUP, Lucknow. Now the petitioner is posted at ITTUP, Noida and, as such, Lucknow Wing of ITTUP has no concern after the period of 25.7.2003.

Shri Sudeep Seth further submitted that ITTUP Travelling and Daily Allowance Rules are silent regarding admissibility of T.A. and composite grant, where the transfer is made on the request of the concerned official. However, Rule 19 provides that whenever the Institute''s Rules are silent, State Government Rules will be applicable to the Government Undertakings as notified by Bureau of Public Enterprises. Further, where such Rules are also silent, Rules of Government of India for Government Officers will be applicable. Apart from it, Chapter V, Rule 42 a (c) of the Financial Hand Book provides (Annexure No. C-10) that the T.A. and composite grant of transfer is admissible to the State Government employee only if he has been transferred due to administrative exigency and not on personal request.

So far as T.A. Bills of the petitioner are concerned, ITTUP Lucknow had granted Rs. 10,000/- as advance to the petitioner and the petitioner submitted bill of Rs. 6,025/- which was highly exaggerated. So far as Dearness Allowance is concerned, the same is being paid to the petitioner @ 43%. Further, petitioner had reached the maximum of his pay scale in the year 2002 itself, as such, he was not entitled for release of any further increment.

The terms and conditions of service including pay and allowances of every employee of ITTUP are determined by the Managing Committee/Board. The Managing Committee has frozen the Dearness Allowance @ 43% and every employee is being paid D.A. @ 43% and there has been no discrimination with the petitioner. However, after transfer of the petitioner in July, 2003, the issue relating to payment of Dearness Allowance and annual increment is required to be decided by the Noida Wing of ITTUP.

Regarding GSLI policy, it has been submitted by Sri Sudeep Seth, learned counsel for opposite parties no. 2 & 4 that as per the terms of the GSLI Policy, every employee who joins the office after November, 1999 would compulsorily have to become member of the policy. The deduction from the salary of the petitioner is being made from the year 2003 and this issue has already been settled by the opposite party no. 3 vide its order dated 15.2.2005.

So far as the allegations in person levelled against Sri M. K. Srivastava (opposite party no. 5) by the petitioner are concerned, the same have no relation with the opposite party no. 5 as he is neither the Disciplinary Authority nor Appointing Authority of the petitioner. He has also attained the age of superannuation on 30.4.2010.

Sri Prashant Kumar, learned counsel for opposite party no. 3 submitted that there is no reduction in D.A. and petitioner is being paid 45% Addl. D. A. in place of 37% A.D.A. which is more. Sri Prashant Kumar also shown the documents annexed with the Counter Affidavit of opposite party no. 3 which demonstrate that the salary of the petitioner for the month of July, 2003 paid by ITTUP, Lucknow and Statement of Salary for the month of November, 2005 paid by the ITTUP Noida and Greater Noida which shows that there is no reduction in D.A. and the same remains as Rs. 5,180/-. As per service condition, there is no provision for payment of any stagnation allowance to any employee. As such, petitioner''s claim for stagnation allowance is not tenable in the eyes of law, further no orders on stagnation allowance or increment has been issued by the ITTUP, Lucknow.

It is also stressed by learned counsel for opposite party no. 3 that L.I. Policy in ITTUP, Noida and Greater Noida came into existence since November, 1999. The petitioner joined ITTUP Noida & Greater Noida in August, 2003. As per the terms of policy, every employee who joins the office after November, 1999 would compulsorily have to become a member of this policy. This is a service condition and the petitioner is bound by it. It is also submitted that the opposite party no. 3 while deciding the representation, has not shifted any responsibility and has considered all the facts and circumstances of the case and passed reasoned and speaking order dated 15.2.2005 in compliance of the order dated 08.12.2004 passed in Writ Petition No. 7248 (SS) of 2004.

Further submission of Sri Prashant Kumar is that the petitioner is not in officer''s cadre and does not possess educational qualification to be even an Instructor i. e. minimum diploma in Mechanical Engineering or Tool and Die Making. The hierarchy of the post is Project Manager, Deputy Manager, Assistant Manager and non officer cadre senior instructor and Design Assistant. It is further submitted that since no seniority is being finalised, no question arises for protection of seniority of the petitioner. Petitioner is in non-officer cadre and does not have any experience in organising training activities. It is also submitted that all the issues raised by the petitioner, have been taken care by the opposite party no. 3 vide order dated 15.2.2005.

Petitioner, in reply to the submissions of learned counsel for opposite parties, submitted that as per Rules contained in Annexure No. C-9 to the Counter Affidavit, the transfer means the movement of the employee from the Headquarters at which he is posted, to another station to which his former headquarters have been changed or where he is ordered to take up the post at new station of posting. It is also submitted that he had not made any request to the opposite party no. 2 for his transfer from Lucknow to Noida wing but vide order dated 25.7.2003 passed by this Court, he was transferred from Lucknow to Noida wing. The bills of expenses and claim of T.A. submitted by the petitioner are wholly within the rules. It is also submitted that petitioner has also not been paid his increment since 2002 which is in violation of Government Order dated 06.2.1995 and after his transfer from ITTUP, Lucknow to ITTUP Noida-Greater Noida, the Addl. D. A. applicable in his case has been reduced from 61% to 43% by the opposite party no. 3 arbitrarily and fixed D.A. has also been reduced from Rs. 5950/- to Rs. 5180/-. It is also submitted that G.S.L.I. Policy is not applicable in Lucknow and after his transfer to Noida the same was made applicable upon him without taking his consent.

I have considered the submissions made by the petitioner in person as well as learned counsel for opposite parties and gone through the record.

In Writ Petition No. 5836 (SS) of 2005, first prayer of the petitioner is with respect to grant appropriate D.A. and the Annual Increment and also to decide the representations made by him as contained in Annexures No. 5,6,7,810 & 11to the writ petition.

The opposite party no. 3 has examined this issue in pursuance of the directions issued by this Court in W.P. No. 7848 (SS) of 2004 and decided the same vide order dated 15.2.2005 (Annexure No. 2 to the writ petition). From perusal of the order dated 15.2.2005, it reveals that claim of petitioner for payment of salary w.e.f. 25th July, 2003 till 23.8.2003 was allowed and salary for the said period was released by the ITTUP, Noida. So far as petitioner''s claim regarding T.A. and composite grant is concerned, the same was referred to ITTUP Lucknow as is a common practice that the office which transfers an employee, is the office which is to release composite grant as per rules. Regarding T.A. Bills, it is submitted that admittedly petitioner was paid Rs. 10,000/- by ITTUP, Lucknow and the petitioner submitted a bill of Rs. 6,025.56 towards his travel expenses.

Sri Sudeep Seth confirmed the fact of deduction of Rs. 10,000/- paid towards T.A. and composite grant on the ground that transfer of the petitioner was not due to administrative exigency but on his own request and in pursuance of the directions issued by this Court. As such, no T.A. and composite grant was payable to the petitioner.

The issue with respect to release of Annual Increments was dealt by opposite party no. 3 in para 4 of order dated 15.2.2005, in which it has been observed that since the petitioner has reached the highest of his pay scale in the year 2002 itself and, therefore, he is not entitled to get any further annual increment. So far as petitioner''s claim regarding D.A., that he is being paid D.A. only 43% instead of 61%, is concerned, it has been mentioned in the order that as per decision of the Board/Managing Committee every employee of ITTUP is being paid D.A. @ 43% only and the petitioner has not been discriminated in any manner. It is also observed that as and when the decision will be taken by the Board in this regard, each and every employee including the petitioner will be benefited. With respect to stagnation increments, it has been observed that as per service conditions there is no provision for payment of any stagnation allowance to any employee and, as such, in absence of any service condition and Rule, the claim raised by the petitioner regarding stagnation allowance is not tenable and was rejected.

So far as deduction of G.S.L.I. is concerned, it has been mentioned in the order dated 15.2.2005 that the petitioner joined ITTUP Noida-Greater Noida in August, 2003. The G.S.L.I. Policy has been in vogue since November, 1999. At that point of time, an option was given, as per terms of the policy to every employee whether to opt or not to opt for the same. Further as per terms of the policy, every employee who joins the office after November, 1999, would compulsorily have to become a member of the policy. This is a service condition and the petitioner is bound by it and accordingly deductions in this regard from the salary of the petitioner is being made from the year 2003 onwards only. Thus, petitioner''s grievance that deductions under GS.L.I. Policy are being made without his consent, appears to be baseless as it is a policy decision, taken in the interest of the employees.

Regarding prayer of the petitioner with respect to providing officiating charge of the Project Manager is concerned, the opposite parties assigned the reasons in the counter affidavit and also submitted that the petitioner is in non-officer cadre and does not possess educational qualification to be even Instructor (i.e. minimum diploma in Mechanical Engineering or Tool & Die Making). The hierarchy of the post is as Project Manager -Manager-Deputy Manager-Assistant Manager and non-officer cadre -senior Instructor and Design assistant. Thus, petitioner''s claim is not sustainable in this regard.

This Court finds that the opposite party no. 3 while considering the grievance of the petitioner, has examined all the issues and decided the same by a speaking & reasoned order and on due consideration this Court does not find any illegality in the same. So far as relief regarding quashing of Advisory Notes dated 30.10.2006 (Annexure No. 5) and 19.5.2007 (Annexure No. 7) sought in W.P. No. 6877 (SS) of 2007 is concerned, the same were issued by the opposite party no. 4, who being the Project Manager, was in supervisory capacity and was fully competent to issue the same and the petitioner was required to follow the same. This Court does not find any illegality in the Advisory Notes issued by the opposite party no. 4. As far as the prayer regarding freezing of D.A. by the Government is concerned, the terms and conditions of service including pay and allowances of every employee of ITTUP are determined by the Managing Committee/Board. The Managing Committee has frozen the Dearness Allowance @ 43% and every employee is being paid D.A. @ 43%. As such, there has been no discrimination with the petitioner. The petitioner after raising the issue in W. P. No. 5836 (SS) of 2005 regarding D.A., has again tried to raise the same issue in the shape of relief for protection of usual salary which was being paid to him regularly.

The 3rd prayer sought in W.P. No. 6877 (SS) of 2007 is with respect to transfer of the petitioner from Noida to Lucknow. In this regard, this Court finds that W.P. No. 3252 (SS) of 2000 was filed by the petitioner seeking his transfer to Noida in which interim directions were issued on 16.6.2000 for posting the petitioner at Noida or in any other appropriate place. The petitioner, for compliance of order dated 16.6.2000, also filed contempt petition against the opposite parties and finally in compliance of the order dated 16.6.2000 petitioner was transferred from Lucknow to Noida alongwith his post vide transfer order dated 13.8.2003. Initially, petitioner wanted to be transferred from Lucknow wing to Noida wing, as Lucknow wing was unable to pay him salary and now he wants his transfer again from NOIDA to Lucknow which is not permissible as petitioner was transferred to Noida alongwith post. Admittedly, petitioner was not paid salary w.e.f. July, 1992 to 24.7.2003, but after litigation, petitioner was paid an amount of Rs. 2,91,943.90. In the meantime, ITTUP Lucknow was rehabilitated by the State Government vide Government Order dated 22.7.2005 and out of 79 employees who were working in the Lucknow Wing of the ITTUP, 52 employees had been retired voluntarily alongwith benefits. Now, only 27 marked employees have been retained for the training programs. The State Government is releasing budget for payment of salary for only 27 employees, and admittedly the same does not include the petitioner''s post. Further, it is not open for an employee to seek transfer from one place to another place at his own choice. As petitioner was transferred from Lucknow to Noida Wing alongwith his post in compliance of the order passed by this Court, therefore, he cannot be permitted to seek his transfer from Noida to Lucknow. Even some resolution was passed by the Governing Body. The petitioner can not pray for his transfer from Noida to Lucknow on the basis of said resolution of Governing Body, till in pursuance of the same the follow up action is taken and formal order is issued.

So far as the issue with respect to payment of T.A.D.A. as well as for payment of composite grant is concerned, it is admitted position that the petitioner was initially paid an advance of Rs. 10,000/- but same was subsequently deducted from salary of the petitioner on 14.9.2007, without affording any opportunity to the petitioner. This action of the opposite parties appears to be arbitrary and mala fide. Nothing has been brought by learned counsel for opposite parties and apparently no order has been passed for not allowing Transfer Allowance and composite grant to the petitioner for his transfer from ITTUP Lucknow to ITTUP Noida.

Accordingly, it is hereby directed that the concerned opposite parties will re-examine the issue with respect to payment of T.A. and Composite Grant in respect of transfer of the petitioner from ITTUP, Lucknow to ITTUP, Noida and decide the same in accordance with Rules within a period of one month from the date of receipt of certified copy of this order.

On analysis of the aforesaid facts and circumstances of the case, Writ Petition No. 5836 (SS) of 2005 is partly allowed and Writ Petition No. 6877 (SS) of 2007 is hereby dismissed.

No order as to costs.