Allahabad High Court
Udai Pratap Verma And 2 Ors. vs State Of U.P. Through Secy. Agriculture ... on 19 April, 2023
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 20 Case :- WRIT - A No. - 2761 of 2013 Petitioner :- Udai Pratap Verma And 2 Ors. Respondent :- State Of U.P. Through Secy. Agriculture Deptt. Lko. And Ors. Counsel for Petitioner :- Prabhat Kumar Counsel for Respondent :- C.S.C. Hon'ble Karunesh Singh Pawar,J.
1. Heard Sri Prabhat Kumar, learned counsel for the petitioners, learned Standing Counsel for the State-opposite parties and perused the record.
2. By means of this petition, the petitioners have prayed for the following final reliefs:
"a. Issue a writ, order or direction in the nature of certiorari thereby quashing the part of impugned order dated 22.12.2011 passed by opposite party no. 2 as contained in Annexure No. 1 to this writ petition, which only provides notional promotion without arrears of salary against Subordinate Agriculture Service Group-II (Class III) post since 24.01.1980 to the petitioner.
b. Issue a writ, order or direction in the nature of mandamus commanding and directing the opposite party no. 2 to provide the petitioner regular promotion in Subordinate Agriculture Service GroupII(Class-III) post since 24.01.1980 along with 12% interest."
3. Learned counsel for the petitioners submits that petitioners were appointed on 20.12.1967, 17.04.1968 & 21.05.1968 in the Subordinate Agriculture Service (S.A.S.) Group-III as Assistant Agriculture Inspector in the office of District Agriculture Officer, Varansi and as Assistant Soil Conservation Inspector in the office of State Soil Conservation Training Centre, Sultanpur and as Assistant Agriculture Inspector in the office of District Agriculture Officer, Mirzapur. They were confirmed on 01.01.1974. Petitioners No.1 and 2 were given promotion on 27.01.2001 and petitioner No.3 was given promotion on 12.06.2002 in the higher post of Group-II and they retired on 30.09.2006, 30.06.2004 & 30.06.2007 respectively in the pay Scale of Rs. 5000-8000/-. However, the petitioners were not considered for promotion in time. The opposite parties while considering the promotion of the petitioners, have adopted the pick and choose policy and given promotion to number of employees who were junior to the petitioners since 1980. Similarly situated some persons filed Claim Petition No. 613/(I)/(II)/80; Shiv Shanker Tripathi and others Vs.State of U.P. and others before the U.P. Public Service Tribunal, which was allowed on 07.12.1985 and a direction for promotion including pay allowances etc. was also given with retrospective effect.
4. The order passed by the Tribunal dated 07.12.1985 was challenged before this Court by filing a Writ Petition No. 1782 of 1988; State of U.P. and another Vs. Sri Sheo Shankar Tripathi and Others which was upheld vide order dated 01.08.1991 passed by this Court. The order of this Court dated 01.08.1991 was challenged before Hon'ble Apex Court in Special Leave Petition no.10199/92 which was also dismissed on 30.08.1996 confirming the order passed by the High Court and the learned Tribunal.
5. Learned counsel for the petitioner further submits that some more employees who were similarly situated, like the petitioner, had approached directly to this Court by filing Writ Petition No. 6368 (SS) of 1997; Gokaran Prasad Kanaujia and others Vs. State of U.P. and Others, which was allowed vide judgment and order dated 19th of May, 2006. The order is on record (Annexure No. 3). After this, the petitioner after representing the department had filed a Writ Petition No. 6475(SS) of 2011 which was disposed of in terms of the judgment and order dated 19th of May, 2006 passed in Writ Petition No. 6368(SS) of 1997, vide order dated 15.09.2011. The order dated 15.09.2011 passed by this Court in Writ Petition No. 6475(SS) of 2011 is extracted below:
"Notice on behalf of opposite parties has been accepted by the learned Chief Standing Counsel.
The petitioners have approached this Court under Article 226 of the Constitution of India with the grievance that they are entitled for the promotional pay-scale from the date their juniors were given in Subordinate Agriculture Services Group-II (Class-III).
It is not disputed at the Bar that identical controversy has been settled at rest vide judgment and order dated 19.05.2006, passed in Writ Petition No.6368 (S/S) of 1997.
The operative portion of the judgment and order dated 19.05.2006 is reproduced as under:-
"In the result, the writ petition succeeds and is allowed. The order dated 03.03.1998 are hereby quashed and the respondents are directed to consider the claim of the petitioners to the post of S.A.S. Group-II w.e.f. the date the juniors to the petitioners have been promoted. Since the petitioners have retired from service and they are losers of pensionery benefits on account of non-consideration of their promotion, their cases for promotion be considered with all consequential benefits within a period of two months, from the date a certified copy of this order is produced before the authority concerned. No order as to costs."
In view of the above, it is not necessary to deal with the entire controversy at length again.
This writ petition is, therefore, disposed of finally in terms of the judgment & order dated 19.05.2006, passed in Writ Petition No. 6368 (SS) of 1997. The petitioners shall also be entitled for service benefits provided by this Court while deciding the controversy vide judgment and order dated 19.05.2006 (supra).
No order as to costs."
6. In compliance of the order dated 15.09.2011, the impugned order dated 22.12.2011 has been passed by making partial compliance and consequential benefits regarding arrears of salary, from the date of promotion of juniors to the petitioners, have been denied on the principal of 'no work no pay' relying on the Government Order dated 28.05.1997.
7. Learned counsel for the petitioner submits that law in this regard has been settled by plethora of judgments and it has been held time and again by the Supreme Court that whenever the authorities are directed to extend all the benefits which the petitioner would have obtained, had he not been illegally deprived of them, it is not open for the authorities to urge that he has not worked and therefore he should not be paid salary or be granted benefits. The proper course for the authorities is to challenge that order in the appeal. They cannot take this plea in execution of that order. Learned counsel for the petitioner has relied upon the judgment of Supreme Court reported in 2007(7) SCC 689; Commissioner, Karnataka Housing Board Vs. C. Muddaiah. Para 32 and 33 of the judgment are quoted herein below:
"32. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.
33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged."
8. Learned counsel for the petitioner has relied upon another judgment of Supreme Court reported in AIR 2002 Supreme Court 808; Food Corporation of India Vs. S.N. Nagarkar. Para 15 of the judgment is as under:
"Learned counsel appearing on behalf of the appellant submitted that this was a case where notional promotion and seniority was given to the respondent. In such a case the concerned employee is entitled to the pay scale of the promotional post only with effect from the date he joins the post and not from the date of his promotion. He sought to rely on two judgments of this Court reported in : (1996) 7 SCC 533, State of Haryana and others vs. O.P. Gupta and others and (1989) 2 SCC 541, Paluru Ramkrishnajah and others etc. vs. Union of India and another. On the other hand counsel for the respondent submitted that this is not a case where this Court is called upon to consider the submission urged on behalf of the appellant. In the instant case, the writ petition filed by the respondent was allowed by judgment and order dated 6th May, 1994 passed in Civil Writ Petition No.4983 of 1993. That order attained finality as it was not appealed from. In execution proceedings, the appellant cannot go beyond the order passed by the Court in the writ petition and, therefore, what has to be considered is whether the High Court was right in holding that in terms of the order of the Court dated 6th May, 1994 passed in Civil Writ Petition No.4983 of 1993, the respondent is entitled to the arrears of pay and allowances with effect from the date of promotions. If the answer is in the affirmative, the question whether such relief ought to have been granted cannot be agitated in execution proceeding. We find considerable force in the submission urged on behalf of the respondent. In these proceedings it is not permissible to go beyond the order of the learned Judge dated 6th May, 1994 passed in Civil Writ Petition No.4983 of 1993. The execution application giving rise to the instant appeal was filed for implementing the order dated 6th May, 1994 and in such proceeding, it was not open to the appellant either to contend that the judgment and order dated 6th May, 1994 was erroneous or that it required modification. The judgment and order aforesaid having attained finality, has to be implemented without questioning its correctness. The appellant therefore, cannot be permitted to contend in these proceedings that the judgment and order dated 6th May, 1994 was erroneous in as much as it directed the appellant to pay to the respondent arrears of salary with effect from the dates of promotion, and not from the dates the respondent actually joined the promotional posts."
9. Learned counsel for the petitioner further relied upon the judgment of Supreme Court reported in (2007) 6 SCC 524; State of Kerala and Others Vs. E.K. Bhaskaran Pillai. Para 4 of the judgment is quoted hereunder:
"Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15.6.1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah & Ors. Vs. Union of India & Anr. [(1989) 2 SCC 541], Virender Kumar, G.M., Northern Railways Vs. Avinash Chandra Chadha & Ors.[ (1990) 3 SCC 472] , State of Haryana & Ors. Vs. O.P. Gupta & Ors. [ (1996) 7 SCC 533], A.K. Soumini Vs. State Bank of Travancore & Anr.[ (2003) 7 SCC 238] and Union of India & Anr. Vs. Tarsem Lal & Ors. [ (2006) 10 SCC 145]. As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Union of India & Ors. Vs. K.V. Jankiraman & Ors.[ (1991) 4 SCC 109], State of A.P. Vs. K.V.L. Narasimha Rao & Ors.[ (1999) 4 SCC 181], Vasant Rao Roman Vs. Union of India & Ors. [1993 Supp. (2) SCC 324] and State of U.P. & Anr. Vs. Vinod Kumar Srivastava [(2006) 9 SCC 621]. We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before Court or Tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the Court may grant sometime full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard and fast rule. The principle 'no work no pay' cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also."
10. Learned Standing Counsel has opposed the writ petition and has submitted that since the petitioner has not worked for the period, therefore he has rightly been granted notional promotion, however he could not dispute the settled legal position as argued by learned counsel for the petitioner.
11. On due consideration to the submissions advanced, perusal of the record so also the aforesaid judgments of the Supreme Court, I am of the view that the law is settled in this regard. In case the authorities are aggrieved by any order passed by the Court of law, it is always open for the authorities to challenge the same in appropriate Court. However, in the facts of the present case, the order dated 15.09.2011 passed in Writ Petition No. 6475(SS) of 2011 has not been assailed, admittedly, by the opposite parties, hence it has become final. Without challenging the said order dated 15.09.2011, it is not open for the authorities, at the time of execution, to assert that since the petitioner has not worked, he would not be granted the benefits as held by the Supreme Court in the case of C. Muddaiah (supra). Law in this regard has been settled time and again that once the direction is issued by the competent court, it should be obeyed and implemented without any reservation. The authorities cannot be permitted to not comply the direction issued by the writ Court or to ignore it. The only remedy available to the party is that if he is aggrieved by the order passed by the writ Court, he may challenge the same by taking appropriate course under law.
12. In view of the aforesaid settled law, the writ petition succeeds and is allowed. The order impugned dated 22.12.2011 is hereby quashed. Respondents are directed to grant all the consequential benefits including the pensionery benefits as well as arrears of salary, to the petitioner, as directed by the writ Court in it's order dated 15.09.2011.
Order Date :- 19.4.2023 Saurabh Yadav/-