Allahabad High Court
Pancham Lal vs State Of U.P. Thru' Secy. Industries & ... on 17 January, 2014
Bench: Rakesh Tiwari, Bharat Bhushan
HIGH COURT OF JUDICATURE AT ALLAHABAD (Reserved) Case :- WRIT - A No. - 18934 of 2002 Petitioner :- Pancham Lal Respondent :- State Of U.P. Thru' Secy. Industries & Ors. Counsel for Petitioner :- Krishnaji Khare Counsel for Respondent :- C.S.C. Hon'ble Rakesh Tiwari,J.
Hon'ble Bharat Bhushan,J.
(Delivered by Hon'ble Rakesh Tiwari, J.)
1. This petition has been preferred for issuance of a writ of certiorari quashing the impugned order dated 14.2.2002 passed by the respondents. Petitioner also seeks a writ of mandamus directing the respondents to pay the post retirement benefits to him for the post of Manager (M and E-I) in pursuance of the orders dated 3.1.2001 and 8.8.2001 passed in Civil Misc. Writ Petition No. 3138 of 1982 and any other writ, order or direction which may be deemed fit and proper in the circumstances of the case. It appears from record that writ petition was amended vide order of this Court dated 7.8.2008 whereby another prayer in the nature of mandamus has been added in the petition for directing the respondents to give effect the recommendation dated 7.7.1997 of the U.P. Public Service Commission (hereinafter referred to as the Commission) by providing notional promotion to the petitioner to the post of Marketing Manager and Economic Investigator forthwith and also to pay him post retirement benefits accordingly.
Background of the case
2. The backdrop of the case in capsule is that the petitioner was directly appointed initially on the post of Junior Investigator w.e.f. 24.5.1962 thereafter he was directly appointed as Senior Investigator w.e.f. 1.10.1975 and confirmed on the said post. Thereafter under a scheme in the Department of Industries of District Industry Centre certain posts of Manager Marketing and Economic Investigator (hereinafter referred to as Manager (M & E-1) were created. Pursuant to advertisement for appointment on the said posts, petitioner applied for selection and he along with 13 other candidates was selected and appointed vide letter of appointment dated 16.1.1981. After about one and a half year i.e. on 3.5.1982, the appointments of all the candidates including petitioner and one Sri P.C. Jain were cancelled reverting them to the post of Senior Investigator.
3. The aforesaid order dated 3.5.1982 was challenged in Civil Misc. Writ Petition No. 3138 of 1982 (Pancham Lal versus State of U.P. and others) by the petitioner. The other writ petition being Civil Misc. Writ Petition No. 3013 of 1982 (P.C. Jain versus State of U.P. and others) was preferred by Sri P.C.Jain. In the writ petition filed by the petitioner an interim order was passed. Since the Petitioner was holding the post in question having been directly appointed, pursuant to the advertisement, he was continued on the post of Manager Marketing and Economic Investigator and paid his salary in terms of the interim order. The writ petition was later on admitted and after exchange of counter and rejoinder affidavits, the stay order was confirmed.
4. In the meantime, in view of Govt. Order dated 25.6.1984 and Rule 3(b) of the Uttar Pradesh Industries Service Rules, 1993 read with its Appendix B, 50% posts of Manager (M & E-1) were required to be filled up by promotion. Accordingly, the petitioner was considered for promotion to the aforesaid post along with 13 other candidates against the vacancies determined for financial year 1995-96, i.e. 1.4.1995 to 31.3.1996 and was placed at serial no. 1. Other 13 persons were placed below him. However, except the petitioner, 13 candidates place below the petitioner were given promotion as Manager Marketing and Economic Investigator vide order dated 30.7.1997 pursuant to the recommendation dated 7.7.1997 made by the U.P. Public Service Commission.
5. During pendency of the writ petition, the petitioner and Sri P.C. Jain who had filed the aforesaid two writ petitions, retired from service on attaining the age of superannuation on 31.12.1996 and 31.5.1992 respectively from the post of Manager (M & E-1). The retirement order of Sri P.C.Jain from the said post was treated to be approved by the State Government and he was accordingly paid post-retirement benefits for the post of Manager Marketing and Economic Investigator. While the retirement order of the petitioner from the same post was not taken into consideration on the same terms for payment of his post retirement benefits of the post of Manager (M & E-1).
6. Two similarly situated candidates of recommendation order dated 7.7.1997, namely, Mohd. Shafiuddin, who retired on 31.3.1996 and N.B.Srivastava, who retired on 30.6.1996 were paid post-retirement benefits of the post of Manager (M & E-1) accordingly vide order dated 30.3.2012 as informed by Under Secretary under Right to Information Act, which has been filed by way of supplementary affidavit on 7.11.2012. No reason is said to have been provided in the information dated 30.3.2012 as to why the petitioner has not been promoted on the post of Manager Marketing and Economic Investigator and other candidates below him have been granted notional promotion though he was at serial no. 1 in the list for promotion.
7. The aforesaid writ petition being Civil Misc. Writ Petition No. 3138 of 1982 (Pancham Lal versus State) filed by the petitioner was dismissed on 28.7.1998 as having become infructuous on the assumption that the aforesaid writ petition was filed against the order dated 25.6.1982 whereby the Tribunal has refused to grant interim order and the lis is pending before it.
8. A recall application for recalling the order dated 28.7.1998 mentioning therein that no case is pending before the Tribunal and the cancellation order dated 3.5.1982 was challenged by way of aforesaid writ petition No. 3138 of 1982 as such, the same may be decided on merit but the Court treating the aforesaid application as a review application disposed it with the direction dated 3.1.2001 to the respondents to pay the post retirement benefits such as pension to the petitioner of the post of Manager (M & E-1) which was not paid him, compelling him to move a clarification application, which was disposed of in the following terms:-
" What he actually wants, this Court is to modify the order to the extent that the appellant should be paid post retirement benefits from the post, he was holding at the time of retirement.
We are of the view that that aspect of the matter may be considered by the appointing authority in accordance with rules for which no direction is necessary.
9. It is in the aforesaid backdrop that learned counsel for the petitioner submits that by order dated 14.2.2002 the petitioner has been paid post retiral benefits treating him to have retired from the post of Senior Investigator and denied him post retirement benefits for the post of Manager (Marketing & Economics Investigator).
10. It is submitted by the learned counsel for the petitioner that 50% posts of Manager (M & E-I) were to be filled up by way of promotion and remaining 50% posts by direct recruitment. The selection for the appointment and promotion on the said post of Manager (M & E-I) was and is within the purview of the U.P. Public Service Commission (in short 'the Commission'). After retirement of the petitioner, the Commission in view of the Government orders dated 25.6.1984 as well as 25.3.1985, vide its letter dated 7.7.1997 recommended the name of the petitioner for notional promotion to the post of Manager (M & E-I) against the vacancy of 1993-94 but he has been discriminated with Sri P.C. Jain who was similarly situated to the petitioner and 13 persons below him in the same recommendation list dated 7.7.1987 in payment of retirement dues including Mohd. Shafiuddin and N.B.Srivastava, who also retired in 1996.
11. Learned counsel for the petitioner further contents that recommendation letter order dated 7.7.1997 for promotion to the post of Manager (M & E-1) shows that it was against the vacancies of year 1995-96 and had the petitioner been promoted within time, the ad hoc appointment of petitioner would have come to an end in view of law laid down by the Apex Court in 1989 (1) SCC 392 (State of Maharashtra versus Jagannath Achyut Kartandikar) can not be made to suffer adversely for the fault or lapse on the part of the Government itself as it would be unjust, unreasonable and arbitrary. Since he was working on regular basis on the post of Manager Marketing & Economic Investigator and he must have paid his post-retirement benefits of the said post and can not be discriminated from others in this regard particularly in the facts and circumstances of the case. He has also relied upon judgment dated 11.11.2010 passed in Special Appeal No. 1007 (Defective) of 2010 (Firangi Prasad versus State of U.P.) referred to in the judgment dated 14.2.2010 passed in Writ Petition No. 55050 of 2009 (Shashikala versus State) and JT 1996 Vol. 4 731 in this regard.
12. It is argued that even otherwise if pursuant to the recommendation of promotion order dated 7.7.1997, two candidates who are similarly retired in the year 1996 as the petitioner, have been given promotion vide order dated 30.7.1997 to the post of Manager (M & E-1), therefore, petitioner can not be discriminated also on this ground.
13. It is further submitted that promotion to the post of Manager Marketing and Economic Investigator is required to be made under Rules of 1993 consequently continuation of ad hoc appointment pursuant to the interim order would be only a temporary appointment dehors the rules and as such, petitioner is entitled to be granted notional promotion to the post of Manager Marketing and Economic Investigator pursuant to the promotion/recommendation order dated 7.7.1997 against the vacancies of the year 1995-96 and is entitled to receive the post-retirement benefits accordingly. In this regard, he has relied upon JT 1996 Vol. 6 SC Page 75 (Dr. Surendra Singh versus State of Jammu & Kashmir.
14. In the alternate counsel for the petitioner next contended that even if the orders /judgment of this Court (Annexures 8, 10 and 11) are treated to be dismissal of writ petition no. 3138 of 1982 (Pancham Lal versus State) even then in view of JT 1992 Vol-3 SC 98 (M/s. Shree Chamundi Mopeds Ltd. Versus Church of South India Trust Association CSI Cinod Secretariat, Madras), if it is presumed in law that no interim order was passed and as such, petitioner will be taken to be on the post of Senior Investigator but pursuant to the recommendation of promotion order dated 7.7.1997 to the post of Manager Marketing and Economic Investigator by which persons junior to him have been granted benefits of promotion and post retiral benefits of the promotional post of Manager (M & E-1) he also is entitled to receive the post retirement benefits of the same post, as such, the action of the respondents is not providing the post-retirement benefits for the post of Manager (M & E-1) to him is illegal, arbitrary and discriminatory.
15. Per contra, learned Standing Counsel submits that only a short point is involved in this petition as to whether the relief nos. 1 & 4 now claimed by petitioner can be granted to him or not ? According to him, it is apparent from the impugned order dated 14.2.2002 that the appointment of the petitioner on the post of Manager (M & E-I) was not legal. The respondents, pursuant to the order passed in Civil Misc. Writ Petition No. 3138 of 1982, had categorically stated that the petitioner has wrongly been given promotion in anticipation of the vacancy and as such, his appointment on the post of Manager (M& E-I) not being against a vacant and substantive post was neither legal nor justified for the said post at the relevant time did not exist at all, as such the writ petition is also not maintainable on this ground.
16. Though no counter affidavit has been filed, learned Standing Counsel has vehemently argued that no interim order has been granted in this writ petition and as the petitioner has already retired from service and in the circumstance, he is not entitled to the reliefs claimed by him.
17. Learned counsel for the State submits that as a result of dismissal of the writ petition aforesaid, the petitioner would retire as Senior Investigator as he had never been legally promoted on the post of Manager Marketing hence is not entitled to get any financial benefit of the post of Manager Marketing and that since he has received excess payment of salary it can be recovered in view of the judgment of Apex Court rendered in Chandi Prasad Uniyal and others versus State of Uttrakhand and others (2012) 8 SCC 117 as fruits of stay order in writ petition which was subsequently dismissed would not be available to him. Therefore, the writ petition is liable to be dismissed with liberty to the respondents to recover the excess amount paid to the petitioner. In this regard, he has also relief upon on a decision in the case of Surinder Prasad Tiwari vesus U.P. Rajya Krishi Utpadan Mandi Parishad and others (2006) 7 SCC 684. It has been held in paragraphs 24 of the aforesaid judgment :-
"24. In the instant case, the applicant has continued in service for 14 years because of the interim order granted by the High Court on 15.9.1992. In the aforesaid case, the Constitution Bench has observed that merely because an employee had continued under cover of an order of the court, which the court described as "litigious employment: he would not be entitled to any right to be absorbed or made permanent in the service."
18. This judgment of Surinder Prasad Tiwari (Supra) was specifically considered by this Court in Special Appeal No. 926 of 2002 in Sunil Kumar versus The Regional Assistant Director of Education (Basic) 12 Circle, Mordabad, wherein the Court after noticing paragraph 24 of the judgment quoted above, the Court held:
7."Having appreciated the rival submission, we do not find any substance in the submission of Mr. Saxena and the decision relied on shall have no bearing in the facts of the present case. As stated earlier, the petitioner was appointed by order dated 22.4.1987 on temporary basis and the order of appointment clearly indicated that his service can be terminated without any notice or prior information. His service was terminated in exercise of power under Rule 3 of the Rules 1975 by order dated 5.9.1988. Petitioner has, nowhere, averred as to the process of appointment, which was followed while giving him temporary appointment. True it is that by virtue of interim orders passed by this court, he continued in service but such continuance is nothing but a "litigious employment". Once it is held so held, mere continuance in service for a long period would not clothe him with any right. The view, which we have taken, finds support from the judgement of the Supreme Court in the case of Umadevi (supra) as also Surindra Prasad Tiwari (supra)."
In the judgment relied upon in Chandi Prasad(Supra), the Apex Court in paragraph 12 to 15 has held thus :-
"12. Later, a three-Judge Bench in Syed Abdul Qadir case (supra) after referring to Shyam Babu Verma, Col. B.J. Akkara (retd.) etc. restrained the department from recovery of excess amount paid, but held as follows: (Syed Abdul Qadir case. SCC pp. 491-92, para 59) "59. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.
(emphasis added)"
We may point out that in Syed Abdul Qadir case such a direction was given keeping in view of the peculiar facts and circumstances of that case since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them.
13. We are not convinced that this Court in various judgments referred to herein before has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
14. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered."
19. After hearing the learned counsel for the parties and perusal of record, it appears that the Court in Civil Misc. Writ Petition No. 3138 (S/B) of 1982 directed for payment of his salary of the post of Manager (M&E-1) which he was holding prior to passing of the order dated 3.5.1985 and that vide order dated 3.1.2001 on his clarification application for payment of pension for the post of Manager Marketing and Economic Investigator was of the view that this aspect of the matter may be considered by the appointing authority in accordance with law, was not paid to the petitioner.
20. Questions for consideration by this Court now are that (i) whether the salary of the post of Manager Marketing and Economic Investigator which was allowed to the petitioner pursuant to the interim orders dated 9.7.1982 and 3.1.2001 of the Court is liable to be recovered or not in the facts and circumstances of the case, and (ii) Whether petitioner is entitled to receive post retirement benefits of the post of Manager Marketing and Economic Investigator in the aforesaid circumstances.
21. Before appreciating the facts, the judgment relied upon by the petitioner may also be discussed:-
22. In 1989 (1) SCC 392 (State of Maharashtra versus Jagannath Achyut Kartandikar) the Apex Court was considering the question of seniority and promotion where lowering of seniority in promotional post because of late passing of departmental examination for promotion. It was held that incumbent should not be penalised for Government lapses and that making employees to suffer adversely for lapses on part of the Government itself would be unjust, unreasonable, arbitrary and such an action would violate Articles 14 and 16 of the Constitution of India. The Court further observed that in such cases relaxation in rules granted in favour of the employee to avoid undue hardship to a class of employees would be justified.
23. In the instant case, those employees along with petitioner who were recommended for notional promotion by the U.P. Public Service Commission constituted a class apart from others. All of them have been granted post retiral benefits of the promotional post except the petitioner, therefore, his case is on a better footing than the case of State of Maharashtra relied upon by the petitioner and applies with full force to this case.
24. In the case of Firangi Prasad (Supra) referred to in the case of Shashikala versus State(Supra), it has been held that if the District Inspector of School has issued a letter directing committee of management to appoint a person as teacher and the management delayed the matter at its end, then for such an inaction of management the teacher cannot be made to suffer and in such a case, appointment shall be treated within the cut off date.. The observations of the Court made in para 15 reads thus:-
"15. The second contention needs to be examined in the light of the facts that have emerged from the record, namely that the appellant for no fault on his part was kept out of the Institution by the inaction of the Management in spite of the District Inspector of Schools having dispatched the selection order on 18.01.1993. From the facts on record, it is evident that the Manager of the Institution had to perform the ministerial act of issuing a letter of appointment to the appellant in terms of the selection order dated 18.01.1993. The Management admittedly complied with it after much persuasion on 25.08.1993, for which the appellant is nowhere at fault. On the contrary, the appellant had been continuously approaching the Management time and again expressing his willingness to join the Institution. "
25. It was in the aforesaid facts and circumstances that teachers like the appellants in that case were found to fall within an altogether different class of candidates, who had been wrongfully prevented by the inaction of the management in joining the institution. The direction contained in order dated 18.1.1993 in that case was categorically to allow the appellant to join within ten days which admittedly was scuttled by the Manager for reasons best known to him. The Manager was obliged to issue a letter of appointment under the direction of the District Inspector of Schools.
26. In the instant case, Sri P.C. Jain appointed along with the petitioner on the post of Manager Marketing and Economic Investigator 13 persons including the petitioner recommended for promotion after the reversion of the petitioner on 3.5.1982. All of them except the petitioner were paid salary but their respective retiral dues of the post of Manager Marketing and Economic Investigator discriminating from the petitioner who has been deprived of his retiral dues of the post of Senior Investigator only due to inaction on the part of the respondents. As stated earlier, the petitioner has been discriminated by the authorities in complying with the orders dated 25.6.1983 and 25.3.1985 the State Government in granting him post retirement benefits of the post of Manager Marketing and Economic Investigator. Though he was on a better footing than them in view of orders dated 9.7.1982 in Civil Misc. Writ Petition No. 3138 (S/B) of 1982 which was pending at the relevant time and order dated 3.1.2001 of the Court. As regard the case of Dr. Surendra Singh versus State of Jammu & Kashmir T 1996 Vol. 6 SC Page 75 relied up on by the petitioner is concerned, it was a case of claiming regularisation also as the appellant had put in 13 years service as an ad hoc employee. The Apex Court following the direction in JT 1993 (6) SC 593 wherein State Government was directed to notify the vacancies to Public Service Commission making it open to the appellants to apply for the same. Under the rules the regular recruitment to the posts was to be made by the Public Service Commission. It was held in that case that consequently, the ad hoc appointments would be only temporary appointments dehors the rules pending regular recruitment without conferring any right to regularisation of service.
27. These questions may be appreciated in the light of facts that (i) the petitioner had been appointed under direct recruitment as Manager (M & E-1) on 16.1.1981 and worked on the said post up to 3.5.1982 when he was reverted back from the said post to the post of Senior Investigator, and (ii) petitioner was again promoted to the post of Manager (M & E-1) in pursuance of the recommendation dated 7.7.1997, therefore, facts of these two situations have to be seen by the Court in the facts and circumstances of the case.
28. Admittedly the petitioner was confirmed as Senior Investigator on 1.10.1975. He was given temporary appointment/posting on the post of Manager Marketing (Prabandhak Vipran) by the Director vide order dated 18.1.1981 in anticipation of approval by the State, as such, the petitioner along with ten other persons was reverted to their original post of Senior Investigator. Aggrieved the petitioner preferred Claim Petition No. 195/F/111/1982 challenging the order of reversion dated 3.5.1982 before the U.P. Public Services Tribunal, Lucknow. The Claim Petition was decided vide judgment dated 9.7.1982 against him against which the petitioner preferred Civil Misc. Writ Petition No. 3138 (S/B) of 1982 in which interim order was granted in the following terms:-
"List for admission on 22.7.1982. "In the meantime in case the petitioner is still holding the charge of the post, he will not be relieved and if he has been relieved the same salary which he was getting before the order in question was passed, will be paid to him. State may file counter affidavit during this period."
In compliance of the aforesaid order, the petitioner had been working as Marketing Manager till his retirement from service he was given his retiral benefits of the post of Senior Investigator pending decision of the writ petition. Subsequently, Civil Misc. Writ Petition No. 3138 of 1982 was also dismissed. In the instant case, petitioner had applied by way of direct recruitment and given appointment on the post Manager Marketing and Economic Investigator pursuant to the vacancies advertised. He was also recommended with 13 other persons by U.P. Public Service Commission for promotion on the aforesaid post after his said appointment was cancelled and the petitioner was continued in terms of the direction issued by High Court. He retired from the promotional post of Manager (M & E-1) on attaining age of superannuation, hence he would be deemed to be regularised in service on the post of Marketing Manager and Economic Investigator in terms of recommendation dated 7.7.1997 and Government orders dated 25.6.1983 and 25.3.1985 acted upon by it in respect of granting notional promotion to all the promotees except the petitioner who had been illegally and arbitrarily denied notional promotion in violation of Articles 14 and 16 of the Constitution, therefore he would be entitled to post retirement benefits of the post of Manager (M & E-1) as were paid to Sri P.C. Jain and 13 other persons junior to him in service, who were paid their salary and retiral benefits of the post of Manager Marketing and Economic Investigator.
29. From a perusal of Annexures 8 to 12 to the writ petition, it appears that the recommendations of promotion order dated 7.7.1997 of Commission only in the case of the petitioner has not been considered though it was communicated to the Commission and respondents were having knowledge of the same, it was also not brought to the notice of the Court or to the petitioner by the respondents, who were not aware of the recommendation order dated 7.7.1997 as such, the petition was disposed of with the direction to pay the post retirement benefits in accordance with law. As soon as the aforesaid recommendation order dated 7.7.1997 came to his knowledge he has claimed his relief on the basis of the aforesaid recommendation order dated 7.7.1997 by way of present writ petition, which in the facts and circumstances based on subsequent events is maintainable particularly when the petition has been allowed to be amended by the court vide its order dated 7.8.2008 by which the following prayer no. 4 has been added: -
"to issue a writ, order or direction in the nature of mandamus directing the respondents to give effect the recommendation order dated 7.7.97 of the Commission by providing notional promotion to the petitioner to the post of Manager M and E.I forthwith and to pay post retirement benefit accordingly."
30. It is not in dispute that the petitioner had been appointed on the post of Manager Marketing and Economic Investigator on 16.1.1981 but was reverted back on 3.5.1982 after about one and a half year working on the said post. It is also not disputed that in view of circular dated 25.6.1983 and 25.3.1985, Sri P.C.Jain and 13 other junior to the petitioner were paid post retirement benefits considering them to have retired from the post of Manager Marketing and Economic Investigator. Therefore, the contention of the learned counsel for the petitioner that no post of Manager Marketing and Economic Investigator existed on which the petitioner was promoted as he had been treated only on anticipation of the vacancy can not be said to be correct. The petitioner had been appointed on the said post after making advisement and thereafter he was regularised and confirmed in service. Even otherwise all other 13 employees juniors to him have been promoted and were retired were given notional promotion except the petitioner for which no reason is provided by the respondents. The petitioner has been clearly discriminated by the action of the respondents in not paying his post retirement dues considering him not retired from the post of Manager Marketing and Economic Investigator can not be sustained merely because vide order dated 3.1.2001 the Court directed that aspect of the matter may be considered by the appointing authority in accordance with rules, which does not give handle to the respondents to discriminate the petitioner and decide the matter which can not be approved in law.
31. It has come on record that the promotion of P.C. Jain and 13 other juniors to the petitioner was treated to be an approval from the State Government on the post of Manager Marketing and Economic Investigator and they were paid their post-retirement benefits for the said post. Therefore, even on this ground also the petition is liable to be allowed.
32. We do not find any force in the arguments of the learned counsel for the State that as a result of dismissal of the writ petition, the petitioner would be treated to have retired from the post of Senior Investigator as he was not legally promoted on the post of Manager Marketing and Economic Investigator. We also find that the petitioner had not received any excess payment during his "litigious employment" for the reason he had worked on the post of Manager Marketing and Economic Investigator and continued on the basis of the Court's order. It was not the case where he had received any excess payment by working on the post of Manager Marketing and Economic Investigator. Since the petitioner had been appointed after advertisement and following the procedure for recruitment, his case is clearly distinguishable from the case of Chandi Prasad Uniyal and Surinder Prasad Tiwari (Supra) wherein the bonafide mistake had been committed by the State Government in calculating their pay-scale resulting in excess payment.
33. For all these aforesaid reasons, the writ petition is allowed. Since the petitioner has actually worked on the post of Manager(M & E-I) till his superannuation, no recovery from him shall be made from him for working on the said post and he shall be paid his dues of the post of Manager(M & E-I) on this basis.
34. No orders as to costs.
Order Date :- 17.1.2014 SU.