SHIV PRASAD SINGH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Amit Bose, learned counsel for the petitioner and the learned Standing Counsel for the opposite parties. The petitioner being aggrieved by the order dated 22.02.1993 passed by the Director of Agriculture, U.P. Lucknow by which the arrears of salary and allowances with effect from 29.06.1981 till 19.07.1989 have been denied to the petitioner has filed the instant writ petition. The brief facts of the case are that the petitioner was initially appointed on 01.12.1955 in the Subordinate Agriculture Service Group-II. The petitioner has alleged that in the year 1965 several juniors to the petitioner were promoted in Subordinate Agriculture Service Group-I but the petitioner was not considered and he was illegally superseded. The petitioner has further alleged that he was promoted on ad hoc basis in the Subordinate Agriculture Service Group-I with effect from 17.12.1973 and thereafter regular promotion was also granted to him. The petitioner has also alleged that the State Government by order dated 29.06.1981 promoted 39 persons who were junior to the petitioner from Subordinate Agriculture Service Group-I to U.P. Agriculture Service Class-II on ad hoc basis but the petitioner being senior to them was not considered for promotion although he was fully eligible and entitled for promotion as his name was at sl.no.10 of the seniority list. Learned counsel for the petitioner submits that the State Government by the order dated 17.09.1991 has granted notional promotion to the petitioner with effect from 29.06.1981. He further submits that in spite of the representation of the petitioner, the monetary benefits were not given to him, although the State Government by the order dated 17.09.1991 granted notional promotion to the petitioner with effect from 29.06.1981 realising that he was wrongly denied promotion when juniors to him were promoted in U.P. Agriculture Service Class-II on ad hoc basis. Learned counsel for the petitioner has relied upon the decisions of Hon'ble the Supreme Court in State of Kerala and others v. E.K.Bhaskaran Pillai reported in (2007) 6 SCC 524 and Punjab State Electricity Board and others v. Kuldip Singh reported in (2005) 13 SCC 362 and on the strength of the aforesaid decisions, learned counsel for the petitioner submits that the petitioner is entitled to monetary benefits with interest at the rate of 18 per cent per annum. Learned counsel appearing for the opposite parties submits that there is no illegality in the order dated 22.02.1993 passed by the State Government and notional promotion to the petitioner has been granted with effect from 29.06.1981. He further submits that the writ petition is devoid of merits and is liable to be dismissed. We have considered the submissions made by the learned counsel for the parties and gone through the record. It is admitted case of the parties that the petitioner was initially appointed on 01.12.1955 in the Subordinate Agriculture Service Group-II. The petitioner was promoted on ad hoc basis in the Subordinate Agriculture Service Group-I with effect from 17.12.1973 and thereafter regular promotion was also granted to him. It is also undisputed that the petitioner was at sl.no.10 in the seniority list and 39 persons who were junior to the petitioner were promoted from Subordinate Agriculture Service Group-I to the U.P. Agriculture Service Class-II on ad hoc basis by the Government order dated 29.06.1981 and at that time the petitioner was not considered for promotion. The State Government by the order dated 17.09.1991 has granted notional promotion to the petitioner with effect from 29.06.1981 when juniors to the petitioner were promoted from Subordinate Agriculture Service Group-I to U.P. Agriculture Service Class-II on ad hoc basis. A perusal of the order dated 17.09.1991 reveals that the petitioner and others, who were senior to those 39 persons, were wrongly denied promotion in the U.P. Agriculture Service Class-II and the State Government after realising its mistake, as evident from the order dated 17.09.1991, granted notional promotion to the petitioner and others with effect from 29.06.1981. Hon'ble the Supreme Court in State of Kerala and others v. E.K.Bhaskaran Pillai (Supra) has held as under : "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." Hon'ble the Supreme Court in Punjab State Electricity Board and others v. Kuldip Singh(Supra) has held in paragraph 6 as under : " The appellant contended before the High Court that the respondent was not entitled to notional promotion or back wages for any period prior to 2001 as the number of posts had been reduced by way of an amendment of the rules. The submission is unacceptable. The reduction of the posts certainly did not pertain to the post to which the respondent was entitled to be appointed having regard to the fact that it was an admitted position that Sumesh Bansal was continuing to hold that post. The High Court correctly rejected the question of reduction of post in the circumstances of the case. The High Court directed the creation of a supernumerary post since Sumesh Bansal had been continuing in service for a long period of time and permitted that all arrears of salary should be paid to the respondent together with 9% interest within two months of the date of the impugned order. At the time of issuance of notice we had limited the notice only to the question of arrears of pay. Learned counsel for the appellant has reiterated the stand taken by it before the High Court." The petitioner was given salary of the post of Block Development Officer vide order dated 08.04.1993 with effect from 20.07.1989. By the order dated 17.09.1991, notional promotion has been given to the petitioner with effect from 29.06.1981. There was no fault of the petitioner and he was wrongly superseded by the order dated 29.06.1981 when promotion on ad hoc basis was given to 39 persons junior to the petitioner in the U.P. Agriculture Service Class-II without considering case of the petitioner for promotion. We are of the view that the petitioner is entitled for the difference of salary and allowances for the period during which he was prevented from working on the promotional post with interest at the rate of 9 per cent per annum. In the result, the writ petition succeeds and is hereby allowed. The impugned order dated 22.02.1993, a copy of which has been annexed as Annexure-8 to the writ petition, is hereby quashed. A writ of mandamus is issued directing the opposite parties to pay the difference of salary and allowances of the promotional post in U.P. Agriculture Service Class-II to the petitioner with effect from 29.06.1981 till 19.07.1989 with interest at the rate of 9 per cent per annum within four months from the date a certified copy of this order is produced. In the circumstance, there shall be no order as to costs.