Syed Hasan Askari v. U.P.State And Others

S.C. Mathur, J. -

Syed Hasan Askari, a constable posted in the Vigilance Establishment of the State Government, has, through this petition, claimed parity with his counter-part posted in the Police Establishment of the State in the matter of payment of washing allowance and one month's extra pay in lieu of not availing the public holidays. The petitioner has claimed a writ, order or direction in the nature of certiorari to quash the Government Orders dated 2-8-983 and 17-3-1983, annexures 5 and 2 respectively to the writ petition, and for the issuance of a writ, order or direction in the nature of mandamus to command the opposite parties to allow leave allowance and washing allowance to the petitioner from the same date as it had been allowed to non-gazetted staff of the Police Department through Government Orders contained in annexures 1 and 6 to the writ petition. The petition has arisen in the circumstances hereinafter indicated.

2. The petitioner was appointed as a constable in the Police Department of the State on 28-8-1943. In the year 1966 he was taken in the Vigilance Directorate. Since then he is posted in the Vigilance Establishment. On 31-10-1979 the State Government issued a Government Order sanctioning the payment of washing allowance to non-gazetted police personnel with effect from 1-4-1979; a copy of this Order is annexure 6 to the writ petition. On 12-11-1979 and 28-5-1982 the Vigilance Directorate wrote to the State Government in the Vigilance Department requesting for sanction of the allowance to similar personnel posted in the Vigilance Establishment. The State Government accepted the request of the Vigilance Establishment and issued Government Order dated 24-7-1982 sanctioning payment of the allowance to constables and head constables posted in the Vigilance Establishment with effect from 29-9-1981. Thus while the washing allowance was sanctioned to constables posted in the Police Establishment with effect from 1-4-1979, it was sanctioned for the constables posted in the Vigilance Establishment only with effect from 29-9-1981. The Vigilance Directorate again wrote to the State Government requesting the payment of the allowance to the constables posted in the Vigilance Directorate from the same date from which its payment had been sanctioned to the Police personnel posted in the Police Establishment. Till the filing of the counter-affidavit the State Government had not taken any decision on this request of the Vigilance Directorate. The counter-affidavit was filed in this Court on 23-5-1984 and the writ petition was filed in this Court on 28-2-1984.

3. Similarly, for not availing the public holidays the State Government sanctioned payment of holiday allowance in the shape of one months' extra pay in a year to all non-gazetted police personnel from the rank of constable to the rank of Inspector posted in the Police Establishment. This sanction was accorded through Government Order dated 7-12-1979, annexure 1, and it was made effective from 1-4-1979. The Vigilance Establishment, through its letter dated 21-1-1980, claimed the payment of the allowance to its non-gazetted employees posted in its Establishment. The Government acceded to the request and allowed payment of the allowance through Government Order dated 17-3-1983 but again instead of making the payment effective from 1-4-1979, it was made effective only from 1-4-1982, The Vigilance Establishment again requested the State Government through its letter dated 25-5-1983 for making the payment of allowance effective from 1-4-1979 but the State Government through its order dated 2-8-1983 refused to accede to this request.

4. The petitioner's case in the writ petition is that police constables posted in the Vigilance Establishment also do not avail of public holidays and they are also required to wear uniform like their counter-part in the Police Establishment and there is, therefore, parity between the police constables posted in the two Establishments so far as the availing of the public holidays and the wearing of uniform are concerned and this parity has already been accepted by the State Government by allowing payment of the washing allowance and holiday allowance to constables posted in both the Establishments and after acceptance of this parity there is no occasion for the Government to practice discrimination in the matter of fixing the date from which the said allowance would be available to the constables posted in these two Establishments. According to the petitioner the discrimination practised by the Government is not justified and is, therefore, hit by Articles 14 and 16 of the Constitution.

5. The petition has been opposed on behalf of the opposite parties. The opposite parties in the writ petition arc the U. P. State through Chief Secretary, Vigilance Department, U.P. Shasan, Director General of Police and Director of Vigilance. Only one counter-affidavit has been filed on behalf of these opposite parties by Sri Parmeshwari Dayal Sinha, Sub-inspector of Police (M), U.P. Vigilance Establishment, Lucknow. In this counter-affidavit no justification has been offered for fixing different dates for payment of the two allowances to officials posted in the two Establishments. All that has been stated is that the Government Orders dated 31-10-1979 and 7-12-1979 could not be applied to the personnel of the Vigilance Department as the said Government Orders were not endorsed to the head of that Establishment. It has further been stated that the Vigilance Establishment is not a part of the Police Establishment. It has been pointed out that the Vigilance Establishment has been created under the U. P. Vigilance Establishment Act, 1965. It is only on this basis that the charge of discrimination levelled by the petitioner is sought to be refuted.

6. In our opinion the writ petition has substance and deserves to be allowed. Once it has been accepted that in the matter of payment of washing allowance and holiday allowance the constables posted in the two Establishment are at par, there is no reason to allow payment of the said allowances to the said personnel posted in the two Establishments from different dates. As already pointed out, no justification has been offered on behalf of the State for the fixation of different dates for the payment of these allowances. In the absence of any justification the writ petition has to be allowed with a mandamus to the State Government to make payment of the said allowances to the personnel of the Vigilance Department also with effect from 1-4-1979.

7. In view of the above the writ petition is allowed and a writ in the nature of mandamus is issued commanding the U. P. State to make payment of the washing allowance and holiday allowance to the petitioner with effect from 1-4-1979 as has been done in the case of police personnel posted in the Police Establishment. We make it clear that this judgment will be applied not only to the petitioner but also to all non-gazetted employees posted in the Vigilance Establishment similarly situated as the non-gazetted employees posted in the Police Establishment. We are further of the opinion that it is a fit case in which the State Government should not have forced the petitioner to file the present petition in order to obtain relief which was justly due to him. We accordingly direct that the State Government, opposite party no. 1, shall pay costs of this petition to the petitioner. In the memo of costs the fee of the petitioner's counsel shall be taxed according to the certificate filed subject to the maximum of Rs, 500.00 (five hundred).

(Petition allowed)

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