Allahabad High Court
R.K. Dubey vs State Of U.P. And Others on 25 January, 2000
Equivalent citations: 2000(1)AWC713, (2000)1UPLBEC764
Author: M. C. Jain
Bench: M.C. Jain
JUDGMENT M. C. Jain, J.
1. The petitioner retired from service on 31.12.1987. He was initially appointed as Naib Tehsildar in 1953 and was promoted to the post of Tehsildar in 1956. He was promoted as officiating Dy. Collector and his appointment was notified in the Gazette dated 23.3.1962. He was confirmed on the said post on 4.1.1975. As per G.O. dated 5.10.1985, he was allotted seniority of the recruitment year 1970 instead of 1961. He had earlier filed a Civil Misc. Writ Petition No. 13140 of 1992 which was decided on 21.2.1996 and it was directed that he would be assigned seniority of the year 1961 and would be given all the consequential benefits including the retiral benefit in accordance with law within a period of three months from the date of presentation of certified copy of the order before the authority concerned in the Government. The correctness of the said judgment was challenged by the State Government by means of special leave petition before the Supreme Court which was dismissed on 16.8.1996. Ultimately, by the orders dated 6.11.1996, he was granted notional promotion in the senior pay scale with effect from 2.7.1973, in the special grade pay scale with effect from 10.1.1978 and higher pay scale with effect from 15.11.1984 but no arrears were paid to him and it was mentioned in the orders that the promotions were notional in nature. However, he was not granted promotion In the highest pay scale of Rs. 5,900-6.700. His seniority has been fixed just above Sri Yashpal. The promotion to the highest pay scale Rs. 5,900 - 6,700 was granted to his junior Sri Yashpal with effect from 11.8.1987, but the Government declined to promote him (petitioner) in the said pay scale by rejecting his representation by order dated 19.6.1997, Annexure-17 to the writ petition, on the ground that the promotion in the highest pay scale of Rs. 5,900-6,700 was granted notionally to the petitioner's junior Sri Yashpal by order dated 26.11.1991, viz., after the retirement of petitioner and as such there could be no question of granting promotion to the petitioner in the highest pay scale of Rs. 5,900-6,700 even notionally.
2. The petitioner is aggrieved by , such order passed by the Government on 19.6.1997 and has prayed for quashing the same. According to him, as he was in service on 11.8.1987 with effect from which date highest pay scale of Rs. 5,900-6,700 has been granted to his Junior Sri Yashpal, he is also entitled to the said pay scale with effect from 11.8.1987. It is also his contention that his junior Sri Yashpal has been paid the arrears in the highest pay scale of Rs. 5,900-6,700 with effect from 11.8.1987. He claims that he is also entitled to the said arrears with effect from 11.8.1987 in the highest pay scale of Rs. 5,900-6,700 till the date of his retirement as also for back arrears for his promotion in the senior pay scale with effect from 2.7.1973, special pay scale with effect from 10.1.1978 and higher pay scale with effect from 15.4.1984. He has prayed for being awarded interest also. He has also prayed for a writ in the nature of mandamus for grant of promotion to him in the Indian Administrative Services.
3. At the time of admission of this writ petition, it was ordered as below on 1.8.1997 :
"We are not satisfied that the petitioner is entitled to promotion to Indian Administrative Services. However, his claim for higher pay scale in Provincial Civil Services from the date on which it was granted to Sri Yashpal, as well as his claim for arrears of salary in Provincial Civil Services is liable to be considered. To this extent, this writ petition is entertained. Learned standing counsel prays for and is granted one month's time to file counter-affidavit. The case be listed thereafter."
4. So, having regard to the above order passed at the time of admission of the writ petition, the precise question for decision is whether the petitioner is entitled to claim the highest pay scale of Rs. 5,900-6.700 as granted to his junior Sri Yashpal with effect from 11.8.1987 with arrears of salary till the date of his retirement 31.12.1987 as also past arrears consequent upon his promotion in senior pay scale with effect from 2.7.1973, special pay scale with effect from 10.1.1978 and higher pay scale with effect from 15.4.1984.
5. Counter and rejoinder-affidavits have been exchanged. The stand of the respondents (State) is that the highest pay scale Rs. 5,900 -6,700 cannot be granted to the petitioner as he had already retired on 31.12.1987 viz., before 26.12.1991 on which date the said pay scale was granted to the petitioner's junior Sri. Yashpal when he was still in service (Sri Yashpal retired on 31.3.1992). It has also been refuted that any arrears were paid to Sri Yashpal in the pay scale of Rs. 5.900-6.700 with effect from 11.8.1987 as his promotion also to the said grade was on notional basis. It has been submitted that Sri Yashpal was paid arrears in the pay scale of Rs. 5,900-6,700 with effect from 1.1.1991 only when he was still In service. The petitioner could also not claim the arrears for his promotion in senior pay scale with effect from 2.7.1973, special grade pay scale with effect from 10.1.1978 and higher pay scale with effect from 15.11.1984 as the same had been granted to him on notional basis by orders dated 6.1.1996, subsequent to his retirement on 31.12.1987.
6. We have heard the petitioner in person, who has submitted written arguments also, as well as Sri Ashok Mehta, learned Chief Standing Counsel on behalf of the respondents. Obviously, the thrust of the petitioner is that he has to be treated at par with his junior Sri Yashpal. We are of the opinion that since the highest pay scale of Rs. 5,900-6,700 has been granted to the petitioner's junior Sri Yashpal with effect from 11.8.1987, on which date the petitioner was also in service (having retired on 31.12.1987), there is no justification whatsoever in denying the said pay scale to the petitioner with effect from 11.8.1987 till the date of his retirement on 31.12.1987. The mere fact that the promotion to Sri Yashpal in the said pay scale of Rs. 5,900-6,700 was granted under an order, dated 26.11.1991 (subsequent to the retirement of the petitioner) cannot be a ground for the denial of the said pay scale to the petitioner with effect from 11.8.1987, on which date he was also admittedly in service. The situation would have been different, had the said pay scale being granted to the petitioner's junior Sri Yashpal with effect from a date subsequent to 31.12.1987 on which the petitioner had retired. Equals have to be treated alike. The seniority of the petitioner was admittedly settled above Sri Yashpal. Therefore, he is entitled to the same pay scale and benefits which have been granted to his junior Sri Yashpal.
7. In the resultant effect, the impugned order dated 19.6.1997 passed by the State Government, Annexure-17 to the writ petition, denying the pay scale of Rs. 5,900-6,700 to the petitioner with effect from 11.8.1987 cannot be sustained and has to be quashed. Its effect would be that the petitioner would be treated at par with Sri Yashpal In the matter of sanction of pay scale of Rs. 5,900-6,700 with effect from 11.8.1987 and he would be entitled to the arrears in the safd pay scale with effect from 11.8.1987 till the date of his retirement on 31.12.1987 if the same have been paid to his junior Sri Yashpal. Consequential pension and retiral benefits shall follow. As regards the payment of arrears to the petitioner in the senior pay scale with effect from 2.7.1973, special grade pay scale with effect from 10.1.1978 and higher pay scale with effect from 15.11.1984 also, again he has to be treated at par with his junior Sri Yashpal, meaning thereby that his salary should be refixed in the said pay scales and the arrears should be paid to him, in case the same have been paid to Sri Yashpal. To say in different words, the petitioner shall not be entitled to any such arrears as also the arrears consequent to his promotion in the pay scale of Rs. 5.900-6,700 with effect from 11.8.1987, only if no such arrears have been paid to his junior Sri Yashpal on the premise that such promotions were notional. We do not find the petitioner to be entitled to any other relief excepting of being placed at par with Sri Yashpal in the matter of promotion and payment of arrears of salary as detailed hereinabove.
8. For the reasons mentioned above, we quash the order dated 19.6.1997 passed by the State Government (Annexure-17 to the writ petition). We direct that the petitioner would be placed at par with his junior Sri Yashpal for promotion in the highest pay scale of Rs. 5,900-6,700 with effect from 11.8.1987 (from which date the said promotion has been granted to the petitioner's junior Shri Yashpal) and he would be entitled to the arrears of salary in the said pay scale with effect from 11.8.1987 till the date of his retirement on 31.12.1987 in case the said arrears have actually been paid to his junior Sri Yashpal and his pension and retiral benefits would be refixed accordingly. He would also be entitled for the refixation of his salary in the senior pay scale with effect from 2.7.1973, special grade pay scale with effect from 10.1.1978 and higher pay scale with effect from 15.11.1984 and would get the arrears accordingly in case the salary of his junior Sri Yashpal has been reflxed in the said pay scales and arrears have been paid to him. The necessary exercise would be completed and orders would be issued in this behalf by the State Government within a period of three months from the date of the presentation a certified copy of this order before the Secretary (Appointment Department), Lucknow.
9. Under the circumstances of the case, there would be no order as to costs.
10. The petition stands decided in the above terms.