Patna High Court
Dr. Paras Nath Prasad vs State Of Bihar And Ors. on 15 September, 1989
Equivalent citations: 1990(1)BLJR648
JUDGMENT P.S. Mishra, J.
1. The facts are not in dispute. I propose to narrate only those which relate to salary and scale of pay of the petitioner and of the actions of the respondents in violation of all doctrines and principles applicable to the contract of service.
2. The petitioner herein was selected and appointed as a Civil Assistant Surgeon on 28.5.1955, a post borne in the cadre of State Health Services. The petitioner, however, found that he was entitled to be posted nest below his immediate senior in the service Dr. O.S. Chatterjee in the gradation list. He protested by tiling a suit bearing T.S. No. 21 of 1970 in the Court of the Additional Munsif, Muzaffarpur. The said suit was decided on contest by a judgment dated 23.2.1983 by the Additional Munsif, Muzaffarpur, who held, inter alia, that the petitioner was entitled to be posted as Senior Medical Officer next to Dr. D.S. Chatterjee who was then Civil Surgeon and whose serial No. was 203 in the amalgamated Civil List published in the Gazette, dated 6.3.1963 and accordingly he is entitled to the salary etc. The learned Munsif ordered:
The defendant is directed to appoint the plaintiff in the light of above declaration within one month from the date of this order. In case of non-compliance of the order by the defendant the plaintiff shall be at liberty to get it complied through the process of the court.
3. Against the said judgment and decree of the learned Additional Munsif, the respondent-State filed an appeal bearing T.A. No. 15 of 1983 which was eventually heard by the learned 3rd Additional Subordinate Judge Muzaffarpur, the appeal failed and the learned Munsif's decree was affirmed by the learned 3rd Additional Subordinate Judge. The respondent-State then preferred a Second Appeal before this Court bearing Second Appeal No. 391 of 1983 which appeal also failed with the second affirmation of the decree of the learned Additional Munsif. The respondent-State was however, not satisfied. It moved the Supreme Court by filing a Special Leave Petition bearing S.L.A. (Civil) No. 7711/84. The Supreme Court declined to grant Leave to Appeal and upheld the decree of the learned Additional Munsif by order dated 15.4.1985. Almost after one year of the rejection of the Special Leave Petition, the respondent-State issue a notification for modifying the combined gradation list to the extent that the petitioner was placed at Serial No. 203 (Ka) in the combined gradation list but it did not give the petitioner any consequential benefit or any Super-time Selection Grade post to restore the position of the petitioner in the service below Dr. D.S. Chatterjee who was at Serial No. 203. The respondent sought the petitioner to be posted the petitioner as Deputy Superintendent in a Hospital at Hajipur in the district of Vaishali, a post at the lowest rung of the cadre although his juniors had already been posted to higher position in the service inasmuch as one Dr. Mahabir Das who was at Serial No. 307 in the Civil List that is to say, more than a hundred position lower than the petitions had already been appointed as Director-in-chief, Health Service, by a Notification dated 14.6.1986 and another person who was at Serial No. 377 was appointed Director, Health Services, by another Notification of the even date with the additional charge of the post of Additional Director by a notification dated 3.9.1986. The petitioner approached the Court to execute the decree and initiate a proceeding for crumpet of Court. The Executing Court, by an order dated 8.10.1986, made a reference to that effect before this Court. The reference has not yat been disposed of. The petitioner finding that the respondent were not considering his representation and that his retirement had almost arrived, has filed, as advised, the instant case.
4. On 22.1.1987, this Court heard the learned Counsel for the petitioner and the learned Counsel for the respondents and taking notice of the fact that the petitioner was going to retire by the end of January, 1987, that the post of Director was occupied by an officer junior to him, that he has knocked the door of the authorities repeatedly but in vain, that the petitioner had moved the trial court pointing out the attitude of the defendants and the learned Munsif by his order dated 8.2.1986 (Annexure-10'), had made a recommendation to this Court for starting a contempt proceeding and that notwithstanding such a protracted litigation and the verdict of the Court against the respondent-State authorities have been attempting to deprive him of the advantage of the success in the suit and consequent appeals, ordered as follows:
The entire history of the case beginning from 1970 indicates that the petitioner has been able to make out a strong prima facie case for the admission of this writ application as also for an interim relief. We, therefore, direct the authorities concerned to take all necessary steps and completes all the formalities so that the petitioner, if found suitable, is promoted to the rank he is claiming in this writ case by the 28th January, 1987, so that he may be able to join the post by the 29th January, 1987, but if the authorities are not able to do so within time indicated for any reason then we direct them to pass appropriate effective orders posting the petitioner in one of the three posts mentioned above, which are vacant or in any other equivalent vacant post latest by the 29th of January, 1987.
We are also of the view that desirability of starting a proceeding for contempt is to be considered. The respondents should, therefore, file their show cause within two weeks as to why such steps may not betaken.
5. The respondents have, however chosen to contest by stating that the matter as to the promotion etc. of the petitioner was referred to the Bihar Public Service Commission and the Commission returned the requisition stating that the Department was competent to make the promotion and that thereafter steps for promotion to Junior Selection Grade were taken but this was to be done by a Committee presided over by the Member, Board of Revenue, and a meeting was scheduled to be held but was later on cancelled and that "it is again likely to be taken up in the near future".
6. The petitioner has already superannuated. As a consequence of the afore-quoted orders of this Court a notification was issued posting him as an Additional Director, Family Welfare, for a day or two.
7. A supplementary counter-affidavit has been filed by the respondents slating that the petitioner could not be promoted in the Super Time Selection Grade as he was holding a post in the basic grade and it was not possible to promote him in the Super Time Selection Grade at a time without promoting him in the Junior and Senior Selection Grades which had fallen due on 1.4.1962 and 21.4.1969 respectively. It is also stated that the implementation of the judgment of the learned Additional Munsif, as various formalities were to be complied with which were time taking, be could not be promoted to the post of Super Time Selection Grade with effect from due date that is to say 1.4.1976. After having so stated in the supplementary counter-affidavit it has been added that petitioner's representation was under active consideration and that even if he was held to be entitled to promotion with retrospective effect he would not be entitled to any promotional benefit as per a Circular of the Finance Department contained in Memo No. 2074, dated 4.4.1985. The said Circular of the Finance Department has been annexed and marked as Annexure-'B'.
8. This case was placed for heaving before S.B. Sinha, J, After taking a stock of the facts and the contentions of the parties, however, he ordered on 8.4.1988 as follows:
In view of the peculiar circumstances arising in this case and in view of the aforementioned order dated 22.1.1987 passed by a Division Bench of this Court, I am of the view that this case should be heard and disposed of by a Division Bench.
9. The case has accordingly been listed before us for hearing. The learned Counsel for the petitioner has contended that (1) having case restored the position of the petitioner in the combined gradation list the respondents have no option but to place the petitioner below Dr. Chatterjee and above his next junior in the service by retrospectively granting him Junior Selection Grade, Senior Selection Grade and Super Time Scale of Pay from the due date and (ii) the respondents cannot take shelter of any technicality to avoid the implementation of the Civil Court decree which has been affirmed even by the Supreme Court. The learned Counsel has submitted that the respondents have denied the petitioner his due emoluments including the salary and due promotion in the service during his service tenure and even after superannuation not extended to him the retirement benefits calculated on the basis of the petitioner's due position in the service by granting him at each stage promotion or scale of pay as a consequence of restoration of his position in the combined gradation list. He ha* also submitted chat in totality the respondents have act 1 with malice in law as also malice in fact and even made themselves liable for violating the decree of a Court of law, affirmed by the highest court of law.
10. The learned Counsel for the respondents has reiterated the contentions noted by S.B. Sinha, J, in this order of reference that (i) this Court under Article 226 of the Constitution cannot execute a decree passed by a Civil Court and, (ii) in view of the fact that under Rule 58 of the
11. Before noticing the contentions raised on behalf of the petitioner, I propose to deal with the contention raised on behalf of the respondent. Punjab and Haryana High Court in the case of Gurcharan Singh Mann v. The State of Punjab 1971 Labour and Industrial Cases 1231 considered a case of a priory who was initially governed by the Peru Civil Secretariat Service Recruitment, Promotion, Punishment and Seniority Rules, 1952 and thereafter by the Punjab integration Rules. The petitioner filed a suit in the Court of Subordinate Judge, First Class, Ambala which was decreed and it was declared that trio order reverting him was illegal, void, unconstitutional inoperative and that the plaintiff still continued to be in the service of the State of Punjab as an Assistant and was entitled to all the emoluments, pay allowances, increments and all other rights and privileges attached to the said post from the date of his revision. The State of Punjab filed an appeal against that decree, which was dismissed by the District Judge, Chandigarh, The State of Punjab filed a f further: appeal in the High Court which was also dismissed. The State Government thereafter filed an application for permission to file a Letter Patent Appeal which was also dismissed. Still the State of Punjab did not implement the decree but re-promoted him as an Assistant and treated him as a clerk from February 3, 1960 to September, 1967 The petitioner for the reason that the benefit of the decree was not granted to him filed a writ application to issue a mandamus to grant necessary reliefs to the petitioner. The High Court declined to issue any mandamus stating in the order:
The reason stated by the respondent in the return for not implementing the declaratory decree passed in favour of the petitioner is that the matter is still pending decision before the Supreme Court, which means that the Government will take decision in the case of the petitioner and other officials like him after the matter is finally decided by the Supreme Court and 1 have no reason to doubt that the Government will itself allow the necessary reliefs to the petitioner after the matter is finally decided by their Lordship of the Supreme Court. I am of the opinion that the remedy provided by Article 226 of the Constitution cannot be resorted to for getting a declaratory decree passed by a Civil Court implemented; I hold that this petition is not maintainable and dismiss the same as incompetent.
Notwithstanding the view which are noticed above in the judgment of the Punjab High Court itself, I may say that it is not the case of the respondent before this Court that they have not implemented the decree. Their case is that they have not implemented it in full. A question has arisen before us whether after showing the seniority of the petitioner pursuant to the decree passed by the Civil Court respondents have any justification to deny to the petitioner his due promotion or not etc. a question which can be gone into irrespective of the fact whether the decree conveyed to the petitioner not only restoration of seniority but also consequential benefits or not. In S. Krishnamurthy v. The General Manager Southern Railway 1977 Labour Industrial Cases 1191, the Supreme Court has considered the case of a railway employee who was a clerk since October 1948 and was confirmed as trains clerk on April 1, 1949. He worked his way up and became a wagon chaser in an ex-cadre post. He was entitled to become Assistant Yard Master but was continued as wagon chaser. Had he become Assistant Yard Master in due time, a chain of promotion would have become available to him. He was not considered while others were given such promotion until, the Railway Administration discovered the injustice and issued an order on 10th November, 1965 to absorb him as Assistant Yard Master. While this was detected and some rectification done, others had been absorbed as traffic Inspector. The petitioner moved the High Court. The learned Single Judge of the Court allowed his application but a Division Bench upset the said decision. The Supreme Court recorded that the judgment of the single Judge was correct and held:
On the strength of the policy decision taken on December 31, 1968, the appellant was eligible to be absorbed as Traffic Inspector like his conferee but was not. Moreover, he had actually worked as Assistant Yard Master for sometime. In the circumstances, he was entitled to be taken into the cadre of traffic inspector. We cannot put the clock back for all purposes and treat him as having been notionally appointed as traffic inspector with effect from January 1, 1969. All that we can do, in conformity with his right and in the justice of the case, is to direct the respondent to appoint him as a traffic inspector from the date on which he came to the High Court with his writ petition viz. December 20, 1967. Those who were promoted earlier might be adversely affected if we direct the appellants appointment as traffic inspector with effect from an earlier date. We desist from doing so. However, we categorically direct that the Railway Administration shall appoint the appellant as traffic inspector with effect from December 6, 1967.
12. After stating as above the Supreme Court considered the question regarding Krishnamurthy's fitment for the purpose of salary. Undoubtedly, he would have been a traffic inspector much earlier, had the Railway not committed the mistake which it discovered subsequently. It is, therefore, reasonable the Supreme Court said, that the appellant should be fitted into the scale of pay at a point where full notional seniority, which he would have been entitled to had the right thing been done at the right time. Plainly put the Supreme Court said, he would drawing a salary on 20th December, 1967 on the basis of a notional appointment as traffic inspector as on 1st January, 1959. This accordingly to the Supreme Court, had to govern the salary part of his service from 20th December, 1967. The Court took the view that while seniority was being optimally extended to him from 1.1.1959 he would not be entitled to any salary qua traffic inspector prior to 20th December, 1967 and observed:
The appellant has a future and hopefull looks forward for promotion. It is, in our view, right and reasonable that for proposes of promotion, seniority will be reckoned 20th December, 1967, but for qualifying period, if there is such a condition for promotion, his notional service from 1st January, 1959 will be considered. Of course, we need hardly say that this order will not affect adversely the seniority of those who have been appointed as traffic inspectors prior to 20th December, 1967.
13. In the instant case what is relevat to take notice of the fact that the petitioner's seniority has been restored with effect, from the due date but consequential promotion and other benefits have not been extended to him by the respondents. In yet another case of Managing Director, Uttar Pradesh Warehousing Corporation v. Vijay Narayan Vajpayee , the Supreme Court considered the case of an employee of U.P. Warehousing Corporation who had been dismissed from service. The dismissed employee had filed a writ application before the High Court for a writ of certiorari on the ground that the dismissal order was violative of the principles of natural justice. The High Court allowed the petitioner, quashed the order of dismissal and directed reinstatement with full back wages. The Warehousing Corporation preferred as appeal before the Supreme Court. The Supreme Court took notice of the nature of the powers exercised by the High Court under Article 226 of the Constitution of India and pointed out that in the exercise of the certiorari jurisdiction the High Court acts only in a supervisory capacity and not as an appellate tribunal. It does not review the evidence upon which the inferior tribunal proposed to base its conclusion it simply demolishes the order which it considers to be without jurisdiction or manifestly erroneous, but does not, as a rule, substitute its own views for those of the inferior tribunal. In cases, however, which are brought against orders of administrative authorities different from Industrial Tribunal/Labour Tribunal the Court extends the writ jurisdiction to statutory body or other bodies within the expression 'authorities' in Article 12 of the Constitution but after annulling the offending order exercises its refrain and gives no further order which depends not merely on whether the impugned order was good or bad but on the fact alliunade which may have to be decided on parole evidence. In the cases referred to above thus a rule of prudence and restraint is indicated. The Court exercising its jurisdiction under Article 226 of the Constitution should not ordinarily exchange its supervisory jurisdiction to travel beyond the impugned order and direct by a mandamus for thinks to be done for which a parole evidence may be necessary.
14. In Krishna Prasad Sinha v. State of Bihar the Supreme Court considered the case of a retired employee of the State Government who had complained that his due pension was not paid. According to the respondents (State Government) the employee was not entitled to any pension as he had been dismissed from service. Before the Supreme Court, however, learned Counsels agreed to a consent order that his due pension would be paid. The Supreme Court dismissed the special leave petition of the employee by which he had questioned the validity of the order of dismissal but observed that pension due would be paid to him from the date when the order of dismissal was passed. The Supreme Court observed:
When this Court used the word "due" it clearly did not intend that the pension would be paid only if due according to the Bihar Pension Rules. The "due" was used with a view to indicate the date from which the pension would be paid and this becomes amply clear when we notice that the then learned Standing Counsel for the State of Bihar in fact agreed that the State would make payment of the amount of the pension.
The Supreme Court accordingly directed the State Government to say the arrears of pension due to the petitioner from the date when the impugned dismissal order was passed up to the date of the order within four weeks from the date of the order and future amount of pension as and when due from month to month.
15. In Sohan Singh v. Union of India , the Supreme Court considered the case of any Army Officer who had been punished by a wrongful order. The Army Officer had been discharged from the service for unsuitability while his application for extention of term of service was pending consideration. The appellant (Army officer) got involved in a criminal case in relation to theft of certain MIC Batteries. The authorities concerned after holding an enquiry decided to hand over the case to the Municipal Court instead of trying the appellant by Court Martial. He was discharged mainly on the consideration that he was likely to be convicted for the said offence and, therefore, he was unsuitable. The Army Officer filed a writ application in the Delhi High Court but failed. The Supreme Court ordered:
Taking into consideration the peculiar facts and circumstances of this case we are, therefore, of the opinion that the justice of the case requires that the appellant should be compensated by payment of a lump sum amount in lieu of the benefits to which he would have been otherwise entitled, if he had continued in service for the extended period of six years. However, without going into the merits of the actual claim of the appellant for this particular period we are of the opinion that the ends of justice will be sufficiently met if we direct the authorities concerned to pay to the appellant a sum of Rs. 35,000 by way of compensation. This amount will be paid in addition to the amounts which are to be paid to the appellant by way of service Gratuity and Death cum-Retirement Gratuity. The amount will be paid to the appellant within one month from today. The authority concerned is further directed to delets from the order the words "unsuitable for retention in Air Force (on disciplinary grounds)
16. In the case of Superintendent of Police Manipur v. B.K. Tomalsana Singh , the Supreme Court has considered the case of a Government Servant who had died, after he had been dismissed from service. He had filed a writ application in the Court of the Judicial Commissioner, Manipur and succeeded in establishing that the order of dismissal from service was without any authority of law. The Suprintendent of Police had appealed to the Supreme Court against the order of the Judicial Commissioner. The Supreme Court has said in its judgment:
The situation as at present stands is that the order issued by the Chief Commissioner dated July 27, 1951 is being relied upon to show that the rules contained in Assam Police Manual have been validly prescribed for the administration of Manipur Police Force. The learned Commissioner was right in holding in the order dated July 27, 1951 is ineffective to incorporate and apply provisions contained in Part I-V of Assam Police Manual for Police Force in Manipur State and, therefore, the departmental inquiry was not held in accordance with the relevant law and rightly set aside the order of dismissal of deceased respondent from service and declared that the original-pet petitioner-respondent herein shall continue to be in service and will be entitled to all the benefits which he could have had if he had continued in service. Unfortunately, the original-petitioner, respondent herein is dead and his physical reinstatement is not possible. We, therefore, clarify that the State of Manipur shall be liable to pay all arrears of wages, salaries and other emoluments including revision in pay and clearness allowance and other allowances and any other benefits including the terminal benefits to which the deceased would have been entitled if he had continued in service. Further looking to the circumstances of the case we also direct that the appellant shall pay the costs of the hearing of the appeal. The cost is quantified at Rs. 5,000 and shall be paid by the State to the respondent. The amount payable under this judgment shall be paid within four months from today. With this modification, the appeal is dismissed.
17. Courts in India have regulated their discretion by rules of prudence always reminding themselves that their power has to be exercised in the ends of justice. This Court, in Akshay Kumar Sinha v. District Superintendent of Education Purnea 1986 PLJR 632 rejected the contention that no direction can be given to the respondent-State to appoint the petitioner who had become overage, as according to the Court, that alone could meet the ends of justice. Again a Division Bench of this Court in Lalji Saran v. State of Bihar 1989 PLJR 631 has held that the petitioner who has been defied due seniority in accordance with law even after his superannuation was entitled to a notional seniority and consequential benefit. In the State of Mysore v. C.R. Seshadri , the Supreme Court has given its verdict to the effect that when a person is found to have been denied his due promotion the court may hold that he had been entitled to such promotion with retrospective effect, and, accordingly, issue direction to the Government to make the payment of arrears of pay etc. in the words of the Supreme Court "there is no death of authority to hold that once an order of the Government is found to be void or unsustainable in law and is quashed, the relief which may be a monetary relief and which flows from such setting aside of the order has to be allowed to the successful petitioner". In Surya Narain Yadav v. Bihar State Electricity Board once again the Supreme Court has reiterated the law stated in Union of India v. Indo-Afghan Agencies that "under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex-parte appraisement of the circumstances in which the obligation has arisen" and extended the rule of promissory estoppel in favour of the employees stating that the Board by permanently absorbing ex-cadre doctes cannot deny them the consequence thereof which is a complete violation of Articles 14 and 16 of the Constitution of India and accordingly granted relief of absorbtion with effect from the due date but declined to make any direction which would prejudice such persons who had been recruited discruited and absorbed in service of the Board behind their back without affording the Board an opportunity of hearing them. It is not necessary to multiply the decisions of Supreme Court and different High Courts which on this subject are available. I understand however, that what is common to all the decisions is that the Court shall take notice of the fact and on appraisal thereof if it is found be a case of the employer denying to the employee his rights the Court shall issue a writ of mandamus but shall not, however, go beyond the refrains of equity such is to deprive any other person of any right which accured on account of concluded of separate and independent cause of action.
18. Now I advert to the facts of the instant case, I find that the respondent have by their act alone allowed the petitioner to stage at the bottom of the service stairs although the petitioner was entitled to the seniority before Serial No. 203 and above Serial No. 204 of the combined gradation list of the service. The petitioner was dragged from court to court and when the Supreme Court gave its seal to the decree passed by the learned Additional Munsif, they almost denied the petitioner all to which he was entitled except on paper putting him above Serial No. 204 showing him at Serial No. 203 (Ka) after Serial No. 203. His joining as Additional Director in the service came not as a consideration given by the respondent but as a result of the interim order of this Court dated 22.1.1987 and that too for a couple of days before his retirement from service. It is difficult on the facts of the instant case to accept the contention of the learned Counsel for the respondents that this Court would be acting while issuing a mandamus, as the executing court of the Civil Court decree. The reason is obvious. The respondents have not stated that they ever considered the case of the petitioner for Junior Selection Grade. Senior Selection Grade or Super Time Scale or that on any such consideration the petitioner was found unfit. Seniority of the petitioner in the service is not in dispute. The fact that juniors were promoted one after other to the Junior Selection Grade, Senior Selection Grade, Super Time Scale of pay and even made Director-in-Chief or Director of the Health Services while the petitioner was given the post of the Deputy Suprintendent in the lowest grade scale of pay is not denied. Independent of any other consideration, on the sole consideration of the ends of justice, I have no hesitation in holding that the respondents have dented the petitioner's right of equal protection of law and equality before the law in the matter of the employment and thus violated Article 16(1) of the Constitution of India and Article 14 thereof.
19. The other contentions of the learned Counsel for the respondents that Rule 58 of the Bihar Service Code shall prohibits any grant of pay and allowances to the petitioner on a fictional and notional promotion granted to him is in my view misconceived. A notional promotion has to be as if, for service benefit, he had been given due promotion. A person, who is entitled to promotion arid is not promoted, can always invoke the jurisdiction of this Court under Article 226 of the Constitution for a mandamus to the employer-State to consider his case for such promotion. Such due promotion is not a claim of anything notional but it is something that is really attached to the status and the service contract of the employee concerned. In the case of Alappat Narayana Menon v. State of Kerala (1977 Volume II SLR 656) the Supreme Court has stated:
The foregoing discussion with reference to the pronouncement of the Supreme Court and the Gujarat, Allahabad and Mysore High Court clearly establish that a Government servant cannot be said to have forefitted his claims for arrears of salary when he did not get his due promotion for no fault of his, the Government's plea that the Petitioner was given only a notional promotion is not sustainable in law. What the petitioner got was not a notional promotion and it is wrong to call this promotion as 'notional' in the context of the peculiar facts and circumstances of this case The concept of notional promotion cannot enter the realm of discussion in this case. Notional promotion is one which a Government servant gets under particular exigencies of situation, which he cannot claim as of right. Here the petitioner is entitled as of right to get the promotion from 1.4.1955 and, therefore, his claim for arrears of salary and other material benefit cannot be denied to him on the plea that what was given to him as only a notional promotion and the policy of the Government is not to give the arrears of salary in such cases. It is no argument to say that many have been promoted ignoring the petitioner's claim. I, therefore, hold that the petitioner is entitled to succeed.
20. The proposition of law in the above case of the Supreme Court in my view fully applies in the instant case. I have already noticed that the respondents never considered the case of the petitioner for promotion. While this juniors were considered and promoted, he was at every time superseded without there being any disqualification ever found. He has been entitled to be considered for promotion is, therefore, not in issue. He cannot refused consideration for promotion for the reasons that may of those who had superseded him have superannuated. A direction to consider the case of the petitioner's promotion in such a situation, shall only mean to take at each level of promotion, consideration whether the petitioner, at the relevant time, by dint of seniority, was fit to be promoted or not. The respondents have nowhere pleaded that any of the promotions claimed by the petitioner depended on consideration of merit-cum-seniority. Perhaps, in such a case they could suggest that they would consider the case of the petitioner at each level and decide whether to promote him or not. The Respondents have also not alleged that there was disqualification of "any kind other than the mistake of giving him the proper place in the gradation list for which the petitioner would not have been denied his promotion. That being the position this by itself is a fit case in which a direction may be issued to the respondents to remote the petitioner with effect from due date and, accordingly, fix his salary, allowances and other benefit and finally fix his position in the service at the end of his service tenure so that the consequential retirement benefit may also be given to him. It is obvious that as a consequence of a re-fixation of emoluments of the petitioner at each stage of the promotion in the service, pension, gratuity and other benefit to which the petitioner may be entitled alter his retirement shall be paid. The respondents shall accordingly be liable to pay such amount of the difference of pay etc. to the petitioner including the difference in the gratuity amount, pension and other allowances payable to him.
21. S.B. Sinha, J., has not made any particular reference for decision by a Division Bench of this Court. He has stated in the reference order "in my opinion, the petitioner should not suffer because the State was not satisfied with the decree passed by the learned Additional Munsif, Muzaffarpur, and challenged the same up to the Supreme Court". This is one of those cases where law's bark was to be worse than its bite". He has made his intention clear. His findings are also in support of the view taken by me. His findings are also similar to the finding recorded by me in this judgment. He has also taken notice of the stand of the respondents that the petitioner became entitled to Senior Selection Grade with effect from 21.4.1969 and the Super lime Selection Grade with effect from 21.4.1976. He has recorded this on the basis of Annexure-'A' the counter affidavit. Once it was found that the petitioner was entitled to such promotion why the respondents did not give the petitioner promotion to the Senior Selection Grade and Super Time Selection Grade is not understandable.
22. To conclude I hold that (i) the petitioner is entitled to be promoted to Junior Selection Grade, Senior Selection Grade and Super Time Scale of pay with effect from the due date ; (ii) the petitioner is entitled to receive the difference of pay at each selection grade of promotion and fixation of pay including the Super Time Scale of pay and also to fixation of pay in the Super Time Scale of pay for the purposes of determination of pension, gratuity etc. and accordingly, receive pension, gratuity etc. with effect from the due date.
23. I shall be felling in meeting the demand of justice if I do not at this stage also held that by withholding promotion and, accordingly, payment of emoluments including salary to the petitioner and also denying the petitioner actual pension, gratuity etc. the respondents have committed grave injustice to the petitioner. There is no other way but to compensate the petitioner for the loss caused to him by an order of payment of interest at the rate of 15% compoundable per annum on such amount of salary and other allowance etc. to which the petitioner was entitled and not paid to him and similarly upon the amount of pension, gratuity etc. with effect from the due date. Any lump sum amount of compensation is not mentioned for the reason that it is not known as to what amount may finally be worked out. It is a case, however, in which, in my view to the respondents must pay to the petitioner the cost of litigation consolidated hearing fee Rs. 5,000.
24. In the result this application is allowed. Let a writ in the nature of mandamus be issued to the respondents to promote the petitioner with effect from due date retrospectively in the Junior Selection Grade, Senior Selection Grade and Super Time Scale of pay and, accordingly, fix and pay to the petitioner, his salary, allowance etc., fix pension, gratuity etc. payable to the petitioner on the basis of such determination of pay last drawn by the petitioner and pay interest at the rate of 15% compoundable per annum on all erreare claim's of salary etc. pension, gratuity etc. and a cost of Rs. 5000 consolidated as stated above.