Ashok Kumar and ors. Vs. State of U.P. and anr. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - 4. the candidates like the petitioners, who successfully completed the training of x-ray technicians, an order dated 28th june, 2001 was issued by the director general, medical and health, u. the petitioners joined at their respective places in pursuance of the aforesaid order and have been continuously working on the post of x-ray technicians as their respective places since july 2001. despite work of x-ray technicians having been taken from the petitioners, they have been refused salary in the pay scale admissible to the posts of x-ray technicians only on the ground that under order dated 28th june, 2001 referred to above, it was directed that the successful candidates like petitioners, shall work on the post of x-ray technicians, but they shall be paid their salary admissible to the post of dark room assistant only. in such circumstances, this court is of the opinion that the conditions mentioned in the order dated 28th june, 2001 (annexure 8 to the writ petition) to the effect that the persons mentioned in the said order would work as x-ray technicians but shall be paid salary admissible to the post of dark room assistants cannot be legally sustained as being arbitrary as well as in violation of the principle of 'equal pay for equal work',it is accordingly, quashed.arun tandon, j.1. heard sri rajesh kumar srivastava, learned counsel for the petitioners and sri piyush shukla, learned standing counsel for the respondents.2. petitioners, who are four in number were initially appointed as dark room assistants under various chief medical officers in the health department of the state of uttar pradesh for the period of 1986 to 1992. the petitioners have been working on their respective posts of dark room assistants in the prescribed pay-scale.3. on 24th january, 1997, the director general, medical and health, u.p. lucknow, respondent no. 2 with reference to the government order dated 29th february, 1988 issued a circular whereby it was provided that 25% posts of x-ray technicians may be filled up by appointing the dark room assistants after they had completed the training of x-ray technician. in the said circular the qualifications for being sent for training as x-ray technicians were also specified. the mimimum qualifying service for the said purpose was fixed as five years. under the aforesaid government order, it was provided that if the selected candidates complete their training of x-ray technicians successfully, they shall be appointed against the vacant posts of x-ray technicians in the pay-scale of rs. 1350-2000 (as was then applicable). for the purposes of selections of suitable dark room assistants for being sent for training of x-ray technicians, a selection committee was constituted and the said selection committee found the petitioners to be suitable for being sent for training at moti lal nehru medical college, allahabad.4. the candidates like the petitioners, who successfully completed the training of x-ray technicians, an order dated 28th june, 2001 was issued by the director general, medical and health, u.p., lucknow, respondent no. 2 appointing the aforesaid persons in various hospitals/dispensaries/health centres situated throughout the state of uttar pradesh. under the aforesaid order the petitioners have been appointed as x-ray technicians under the chief medical officers, situate at pratapgarh, varanasi, mahoba and sonebhadra respectively. the petitioners joined at their respective places in pursuance of the aforesaid order and have been continuously working on the post of x-ray technicians as their respective places since july 2001. despite work of x-ray technicians having been taken from the petitioners, they have been refused salary in the pay scale admissible to the posts of x-ray technicians only on the ground that under order dated 28th june, 2001 referred to above, it was directed that the successful candidates like petitioners, shall work on the post of x-ray technicians, but they shall be paid their salary admissible to the post of dark room assistant only. the petitioners, as such, have approached this court by means of the present writ petition for quashing the condition as mentioned in the order dated 28th june, 2001 with a further directions upon the director general to pay salary to the petitioners admissible to the posts of x-ray technicians, work whereof is being taken from the petitioners.5. this court, while entertaining the present writ petition on 19th july, 2002 issued an interim mandamus commanding the respondent-state authorities to fix the salary of the petitioners in the pay-scale applicable to x-ray technicians or to show cause. in compliance of the order of this court dated 19th july, 2002 respondents have shown cause by filing a counter affidavit and in paragraph 6 of the said affidavit, it has been stated that petitioners are not entitled to the salary of the post of x-ray technicians inasmuch as necessary amendments in the provisions of u.p. x-ray technicians service rules, 1986 (hereinafter referred to as the rule of 1986) have not yet been made providing for promotion of dark room assistant to the extent of 25% as was provided under government order dated 24th january, 1997 and, therefore, in absence of the amended rules of 1986, the petitioners cannot be paid salary of the post of x-ray technicians. it is submitted that the rules of 1986 as they stand contain no provision for promotion of dark room assistant admissible to the post of x-ray technicians. it is further submitted that under the provisions of rules of 1986, there is no provision for dark room assistant for being sent for training on the post of x-ray technician. in the counter affidavit there is no denial of the fact that the work of x-ray technician is in fact being taken from the petitioners.6. i have heard learned counsel for the parties and have gone through the records of the present writ petition.7. it is not in dispute that under the order of the director general dated 24th january, 1997 the petitioners, who were working on the post of dark room assistants were selected and sent for training of x-ray technicians with specific stipulation in clause 2 of the said order dated 24th january, 1997, that on successful completion of training of x-ray technicians the concerned dark room assistants shall be appointed in the pay-scale admissible to the post of x-ray technicians against the vacant vacancies. from the counter affidavit it is also an admitted position that there was acute shortage of x-ray technicians and the petitioners were appointed on the post of x-ray technicians by the respondents subsequent to successful completion of the training of x-ray technician.8. admittedly, the procedure prescribed under the order dated 24th january, 1997 has been followed. the petitioners were selected for being sent for training of x-ray technicians and have admittedly, been appointed on the posts of x-ray technicians. it is also not in dispute that the duties and responsibilities of x-ray technicians are being discharged by the petitioners subsequent to their appointments as such.9. the respondents have not paid their salary of the post of x-ray technicians to the petitioners because of non-amendment of the rules of 1986 (which is prerogative of the state government exclusively). the state-respondents cannot refuse the salary admissible to the post of x-ray technicians to the petitioners, inasmuch as no one can be permitted to take benefit of his own wrong. the state government had categorically assured the dark room assistants of appointment as x-ray technicians provided they are selected and completed the training for being appointed as x-ray technicians. the decision of the state government to that effect is patently arbitrary and without any basis. even otherwise on the principle of 'equal pay for equal work', since the respondents have appointed the petitioners on the post of x-ray technicians and there is no denial of the fact that the duties and responsibilities of the post of x-ray technicians are being discharged by the petitioners.10. in the facts and circumstances of the case, there is absolutely no justification for refusing the salary to the petitioners in the pay-scale admissible to the post of x-ray technicians. in such circumstances, this court is of the opinion that the conditions mentioned in the order dated 28th june, 2001 (annexure 8 to the writ petition) to the effect that the persons mentioned in the said order would work as x-ray technicians but shall be paid salary admissible to the post of dark room assistants cannot be legally sustained as being arbitrary as well as in violation of the principle of 'equal pay for equal work', it is accordingly, quashed. it is further provided that the respondents shall ensure that the payment of salary admissible to the post of x-ray technicians is made to the petitioners from the date they had been appointed after successful completion of their training as x-ray technicians in pursuance of the order dated 29th february, 1988 and their salary shall be re-fixed, accordingly. the payment of salary with arrears be made to the petitioners within a period of two months from the date a certified copy of this order is produced before respondent no. 1.in view of the aforesaid, the writ petition is allowed with no order as to cost.