SUDARSHAN KUMAR SYAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Petitioner was appointed as Assistant Advocate General, Punjab, vide order dated 15.7.1976 Annexuce P/1. One Shri G.S. Bains, was appointed as Assistant Advocate General, Punjab, on 20.10.1977. Services of the petitioner were terminated on 15.6.1982. Petitioner challenged the order of termination of his services successfully and was reinstated in service as Assistant Advocate General on 1.1.1985. The period between 15.6.1982 to 1.1.1985 was treated as 'dies non\ Since the period between 15.6.1982 to 31.12.1984 was treated as 'dies non\ Shri G.S. Bains, was treated to be senior to the petitioner. Shri G.S.Bains, was promoted as Deputy Advocate General, on 18.8.1987 whereas the petitioner was promoted as Deputy Advocate General on 24.4.1989. Petitioner retired from Govt, service with effect from 30.11.1990 (afternoon).

(2.) During his tenure as Assistant Advocate General and Deputy Advocate General, the petitioner was given annual increments in accordance with Punjab Civil Services Rules applicable to government servants. During his tenure as Assistant Advocate General/Deputy Advocate General whenever the pay scales were revised by the Punjab government in accordance with the recommendations of the 2nd and 3rd Pay Commission, the same were released to the petitioner. Petitioner was denied the retiral benefits which were admissible to a government servant on his retirement. Petitioner has filed the present writ petition claiming the retiral beaefits such as pension, gratuity and leave encashment etc. in accordance with the Punjab Civil Services Rules as applicable to regular employees. For claiming the above mentioned reliefs; counsel for the petitioner relied upon a Division Bench judgment of this Court in VP Prasher V. State of Punjab and, others, L.PA- No.56 of 1985 decided on 1.2.1988 followed by a decision of this court in G.S. Bains vs. State of Punjab rendered in CWP No. 14407 of 1989 decided on 31.1,1991. Shri V.P. Prasher and Shri G.S. Bains, were retired from the same post from the office of Advocate General Punjab and had filed the writ petitions claiming the same and similar reliefs which have been claimed by the petitioner in this writ petition. The writ petitions filed by those two officers, were allowed by this Court. Counsel appearing for the petitioner contended that the present case is squarely covered by the said two judgments. Learned counsel appearing for the State, was able to controvert this contention of the learned counsel appearing for the petitioner.

(3.) Another point raised by the counsel appearing for the petitioner is that Shri G.S. Bains, was appointed Assistant Advocate General, Punjab on 20.10.1977 and was promoted to the next higher post of Deputy Advocate General, Punjab, with effect from 18.8.1987 i.e. prior to the petitioner, treating him to be senior as the period between 15.6.1982 to 31.12.1984, during which the petitioner remained out of service to be 'dies non'. The order of 'dies non' was set aside but at the same time the petitioner was not considered for the post of Deputy Advocate General on sole plea that there was dispute of his continuous service as Assistant Advocate General because of some order of treating the period of service of the petitioner as dies non. Petitioner has now claimed that he be deemed to be as Deputy Advocate General w.ei. 18.8.1987 with benefits of salary in the same terms as was allowed to Mr. G.S. Bains; he has claimed that he be deemed to have been promoted and entitled to get pay as Deputy Advocate General with effect from 18.8.1987 and accordingly he be given the retiral benefits treating him to be in the pay scale of Deputy Advocate General with effect from 18.8.1987. I do not find any substance in this submission of the counsel for the petitioner. In the written statement filed by the respondents, it is clearly mentioned that the appointment as Deputy Advocate General is on the basis of merit by way of selection and the petitioner cannot claim promotion to the post of Deputy Advocate General as a matter of course. The petitioner X no point of time challenged the promotion of Shri G.S. Bains to the post of Deputy Advocate General. What he has claimed in the writ petition is that' he be deemed to have been promoted as Deputy Advocate General from the date of his junior Shri G.S. Bains was promoted and he be given the retiral benefits in the scale of Deputy Advocate General. No such deemed date of promotion can be given to the petitioner specially in view of the fact that the post of Deputy Advocate General is not a promotional post. The post of Deputy Advocate General is filled in by way of selection on merit and is treated to be a fresh appointment. At no given point of time, the petiliqner challenged the promotion of Shri G.S. Bains or claimed that he be promoted from the date his junior was promoted to the post of Deputy Advocate General. Under the circumstances, petitioner cannot be considered to have been promoted w.e.f. 18.8.1987 and as such he cannot be given retiral benefits from the said date (i.e. from the date Shri G.S. Bains was promoted as Deputy Advocate General). However, prayer of the petitioner for payment of retiral benefits according to him as Deputy Advocate General having been promoted w.e.f. 24.4.1989, is allowed in terms of judgments in V.P. Prasher's case and G.S. Bain's case as admittedly the instant case is squarely covered by the judgments rendered in above said two cases.