State Election Commission vs Vikram Singh Karki and another

SHARAD KUMAR SHARMA, J.

K.M. JOSEPH, C.J. (ORAL)

In the nature of the order, which we propose to pass, we are of the view that the defects as pointed out by the Registry are to be ignored.

We heard Mr. Sanjay Bhatt, learned counsel for the appellant, Mr. Rajeev Singh Bisht, Brief Holder for the State of Uttarakhand / respondent no. 2

and Mr. Sudhir Kumar, learned counsel for respondent no. 1 / writ petitioner on the Application (CLMA No. 9419 of 2018) for condonation of delay.

In the circumstances and considering the explanation given for condoning 41 days’ delay, we are satisfied with the reasons. The Application for

condonation of delay will stand allowed and the delay will stand condoned.

Appellant is the first respondent in the writ petition. The writ petition was filed on the following brief facts:

The writ petitioner, who was working as a Senior Assistant, was promoted to the post of Assistant Election Officer vide order dated 21.10.2014 with

the appellant. Earlier, the pay-scale of the Assistant Election Officer was Rs. 5500-9000. After revision of the pay-scale by the Pay Committee,

Uttarakhand, 2008, it was revised to Rs. 9300-34800. There was some dispute about the Grade-pay with regard to some employees. The matter came

to be settled by G.O. 732/xxviii(7)40(2) 2010 dated 25.09.2013, whereby, it was clarified that all persons, who were getting pay scale of Rs. 9300-

34800, shall get the Grade-pay of Rs. 4600 with effect from 01.01.2006. Even in the promotion order of the petitioner, Grade-pay of the writ petitioner

was shown as Rs. 4600/- only, but it is thereafter on 05.05.2016 (Annexure-3), it is the petitioner’s case, that the first respondent for the first time

after three years informed that the Government Order does not apply to the Assistant Election Officers and has further directed to re-determine the

salary of the Assistant Election Officers. There is reference to letter dated 02.06.2014 in the writ petition issued by the Director, Treasuries, as per

the decision, Salary Fixation Committee (2008) recommended revision of scale with effect from 01.01.2006, which is said to be the basis for the letter

dated 05.05.2016. In fact, it is averred that it appears to be the basis of order dated 05.05.2016. The short case of the petitioner appears to be that the

impugned order has misconstrued the Government Order 732/xxviii(7)40(2) 2010 dated 25.09.2013. Petitioner’s case in the writ petition is that the

reason for not applying was wholly illogical; there is specific language of the Government as the Government Order has itself made it clear that the

two pay-scales have been merged in one pay-scale. Various grounds were taken in the writ petition. We notice that the grounds taken by the

petitioner did not include that the order is bad for the reason that no show cause notice was issued to the petitioner before it was passed. However, by

the impugned judgment in Appeal dated 20.04.2018, the learned Single Judge has allowed the writ petition and quashed the order on the basis that the

petitioner has not been issued any show cause notice before ordering for re-determination of the salary. The learned Single Judge further reasoned

that the salary is a property within the meaning of Article 300-A of the Constitution of India and no person can be deprived of the same, save in

accordance with law; and there is violation of principle of natural justice.

We heard Mr. Sanjay Bhatt, learned counsel for the appellant and Mr. Sudhir Kumar, learned counsel for respondent no. 1 writ petitioner, besides

Mr. Rajeev Singh Bisht, Brief Holder for the State of Uttarakhand/ respondent no. 2

As we have noticed, the ground, which has found favour with the learned Single Judge, is not a ground, which has been taken in the writ petition. In

fact, various grounds have been taken in the writ petition challenging the letter dated 05.05.2016. In fact, impugned order dated 05.05.2016 is not an

order qua the petitioner individually for re-determination of the salary, but it is an order, by which a cloud is brought over the right of the petitioner to

receive the Grade-pay in terms of the earlier order dated 25.09.2013.

Having regard to the fact that the issue, which arises for consideration of the learned Single Judge, has not been considered by the learned Single

Judge, we are of the view that in the interest of justice, the judgment of the learned Single Judge should be set aside and the matter should be remitted

back. We do so. Consequently, the Appeal is allowed and the judgment of the learned Single Judge dated 20.04.2018 will stand set aside. We remit

the matter back to the learned Single Judge. The case will stand listed on 1st August, 2018. We request the learned Single Judge to dispose of the writ

petition. We leave open all the contentions of the parties. No order as to costs.