JUDGMENT Hon’ble Pankaj Naqvi, J.—Heard Shri M. Islam, learned counsel for the petitioner and the learned standing counsel. Affidavits have been exchanged, hence on the joint request of the learned counsel for the parties, the writ petition is being disposed of at the admission stage in terms of the Rules of the Court. 2. By means of this writ petition, the petitioner has sought a writ in the nature of mandamus commanding the respondents to sanction the pension of the petitioner on the post of Junior Engineer, Minor Irrigation on the last pay drawn by him on the said post on the date of his retirement i.e. 31.7.2004 and pay the same with interest and be further pleased to quash the order dated 17.11.2006 (Annexure 6 to the writ petition). 3. The petitioner was appointed on the post of ‘boring mechanic’ on 29.3.1965 and was confirmed on the said post on 1.4.1975. The petitioner claimed himself to be intermediate pass and has also completed a course of institutional training in the trade of fitter from Industrial Training Institute, Pratapgarh and has passed the prescribed trade test in April, 1964. The petitioner was given ad hoc promotion on the post of Junior Engineer, Minor Irrigation for six months and the said ad hoc promotion was extended for a further period of six months on 9.9.1983 and that by a subsequent order dated 9.3.1984, the petitioner’s ad hoc promotion was continued till further orders. Subsequently, by an order dated 10.11.1986 passed by respondent No. 2 the ad hoc promotion of the petitioner was withdrawn and he was reverted to his original post of boring mechanic. The said order dated 10.11.1986 was challenged before the Lucknow Bench of High Court in Writ Petition No. 8550 of 1986 wherein pursuant to an interim order dated 18.12.1986 the order dated 10.11.1986 was stayed. 4. In the year 1988, the Governor of U.P. was pleased to frame ‘U.P. Regularization of Ad hoc Promotion (On Posts out Side the Purview of the Public Service Commission) Rules, 1988 and Rule 4 thereof provided the benefit of regularization on ad hoc promotions and that in view of the said provision the petitioner is said to have made several representations before respondent No. 1 for regularization of his promotion on the post of Junior Engineer, Minor Irrigation. Finally, pursuant to the recommendations of the selection committee, the ad hoc promotion of the petitioner was regularized w.e.f. 1.4.1983 by an order dated 30.6.2000 (Annexure 1 to the writ petition) and by another order dated 1.1.2001, the petitioner was granted a pay scale of Rs. 800-275-13500/- from the date of regularization of his promotion on the post of Junior Engineer, Minor Irrigation. Subsequently, the petitioner is also said to have passed the departmental examination, which was held on 11 and 12.12.2001 for the post of Junior Engineer, Minor Irrigation. Thus, the petitioner continued to serve on the post of Junior Engineer, Minor Irrigation till his superannuation on 31.7.2004 and earned all his increments except that he was not given selection grade, which was due in February, 1993 after he had completed ten years of service on the post of Junior Engineer, Minor Irrigation. The petitioner was sanctioned ad hoc pension w.e.f. 1.8.2004 and papers for sanction of regular pension was submitted, but they were returned with the objection that as selection grade on the post of Junior Engineer has not been accorded to him, regular pension cannot be given. The petitioner also submitted representation dated 5.7.2006 for grant of selection. 5. While the issue pertaining to sanction of regular pension for the post of Junior Engineer (Minor Irrigation) was still awaited, respondent No. 2 wrote a letter dated 17.11.2006 to respondent No. 4 that, as the aforesaid Writ Petition No. 8550 of 1986 filed before the Lucknow Bench has been dismissed and the stay order has been vacated on 20.4.2004, therefore, the petitioner and others will be deemed to have reverted to their original posts and that they will now be entitled to the service benefit of the said original posts only. 6. With the dismissal of the aforesaid writ petition, even the ad hoc pension, which was being paid to the petitioner w.e.f. 1.8.2004, has been stopped and that the said action of the respondents compelled the petitioner to file a representation dated 14.2.2007 before respondent No. 2 and apprise all necessary facts in the case and requesting further that the letter dated 17.11.2006 be recalled and he be sanctioned regular pension on the pay and post from which he retired on 31.7.2004. As no action was taken by the respondents on the aforesaid representation dated 14.2.2007, hence the present writ petition. 7. As no action was taken by the respondents on the aforesaid representation dated 14.2.2007, hence the present writ petition. 7. A counter-affidavit has been filed on behalf of the respondents wherein it is, inter alia, stated that as the promotion of the petitioner was not made by the competent authority (Chief Engineer, Minor Irrigation U.P.), therefore, the said officer vide his letter dated 10.11.1986 has cancelled the irregular promotion of the petitioner and has reverted him to the substantive post of boring mechanic and that the earlier writ petition by the petitioner before the Lucknow Bench i.e. Writ Petition No. 8550 of 1986 in which earlier an interim order was granted on 18.12.1986 and that the said stay order was vacated and that the writ petition was dismissed on 20.4.2004 and that the petitioner was working on the post of Junior Engineer only under an interim order dated 18.12.1986 passed by the Lucknow Bench. It is further stated that this Court vide order dated 9.4.1999 passed in Writ Petition No. 32352 of 1998 (Shiv Kumar Chauhan v. Chief Engineer and others) had issued directions in respect of Shiv Kumar Chauhan, but the then chief Engineer late Shri R.Y. Singh Kushwaha while working as Incharge Superintending Engineer, Minor Irrigation Circle, Allahabad had illegally and irregularly promoted Shri Shiv Kumar Chauhan on the post of Junior Engineer and the regularization of the present petitioner was also irregularly made in pursuance of the interim order dated 18.12.1986 passed by the Lucknow Bench. 8. It is further stated in the counter-affidavit that in view of the G.O. dated 2.12.2000 the benefit of selection grade to an employee initially has to be granted only after completion of eight years continuous/satisfactory service and thereafter, after completion of six years of continuous/satisfactory service to an employee. In the present case, without extending selection grade to the petitioner, the Superintending Engineer, Minor Irrigation Circle, Allahabad had illegally and irregularly granted the benefit of promotional pay scale of Rs. 800-275-13500/-. Finally, it has been stated that the post retiral benefits have been granted to the petitioner on the basis of the final order dated 20.4.2004 passed in Writ Petition No. 8550 of 1986. 9. 800-275-13500/-. Finally, it has been stated that the post retiral benefits have been granted to the petitioner on the basis of the final order dated 20.4.2004 passed in Writ Petition No. 8550 of 1986. 9. A rejoinder-affidavit has been filed by the petitioner and in paragraph 6 thereof it is categorically stated that it is wrong to state that the promotion of Shiv Kumar Chauhan or that of the petitioner is irregular, as Shiv Kumar Chauhan had already retired as Junior Engineer and is getting pension of the post of Junior Engineer and that it is incorrect to state that the promotion of the petitioner, which was granted vide order 30.6.2000, was passed in pursuance of an interim order dated 18.12.2006 passed by the Lucknow Bench of this Court. 10. The first submission of the learned counsel for the petitioner is that the impugned order dated 17.11.2006 proceeds on an erroneous assumption as if the services of the petitioner were regularized on the post of Junior Engineer (Minor Irrigation) on the strength of an interim order dated 18.12.2006 passed in Writ Petition No. 8550 of 1986, which came to be dismissed on 20.4.2004, whereas the order of regularization of services of the petitioner on the post in question (Annexure 1) was on its own independent right and not dependant on the aforesaid interim order and, therefore, once the very foundation/basis of the impugned order vanishes, the order impugned becomes vulnerable in law and is, therefore, liable to be set aside. 11. Per contra, the learned standing counsel has sought to justify the impugned order on the recitals contained therein and also on the basis of certain facts stated in the counter-affidavit of which a reference shall be made at an appropriate stage. 12. The admitted facts, which are borne out from the records, are that on 2.2.1983 an ad hoc promotion of the petitioner was made on the post of Junior Engineer (Minor Irrigation) for a period of six months and that the same was extended for yet another period of six months from 9.9.1983 and thereafter it was extended until further orders on 9.3.1984 and that the said ad hoc promotion continued up to 10.11.1986, when the ad hoc promotion was sought to be withdrawn and the petitioner was sought to be reverted to the original post of boring mechanic. Against the said order of reversion dated 10.11.1986 the petitioner alongwith others preferred Writ Petition No. 8550 of 1986 before the Lucknow Bench of this Court and on 8.12.1986 an interim order was granted in favour of the petitioner and thereafter the said Writ Petition No. 8550 of 1986 was dismissed in default on 20.4.2004 and the petitioner superannuated from the post of Junior Engineer (Minor Irrigation) on 1.8.2004. 13. A perusal of the order of regularization dated 30.6.2000 (Annexure 1 to the writ petition) would indicate the following distinctive features : (i) This order of regularization has been passed on the basis of the recommendation of the selection committee, constituted under the order dated 5.3.1997; the recommendation of the selection committee dated 6.5.1997 and that it was in compliance of the order dated 9.4.1999 passed in Writ Petition No. 32352 of 1998 (Shiv Kumar Chauhan v. Chief Engineer, Minor Irrigation, U.P., Lucknow and others). (ii) The order of regularization also mentions that the same is being done in view of the provisions of the U.P. Regularization of Ad hoc Promotions (On Posts Out of Purview of the Public Service Commission) Rules, 1988. (iii) The ad hoc promotion of the petitioner stood regularized as Junior Engineer (Minor Irrigation) against the temporary post w.e.f. 1.4.1983. (iv) The order of regularization dated 30.6.2000 (Annexure 1 to the writ petition) has been issued under the signatures of the Chief Engineer (Minor Irrigation, U.P.), Lucknow respondent No. 2. 14. From the aforesaid it is evidently clear that the order regularizing the petitioner on the post of Junior Engineer (Minor Irrigation) is referable to 1988 Rules and, therefore, the regularization of the services of the petitioner was of its own independent right and was not dependant or contingent on the basis of an interim order dated 18.12.1986, which came to be vacated with the dismissal of the writ petition on 20.4.2004, as the order of regularization does not refer to Writ Petition No. 8550 of 1986 and the interim order dated 18.12.1986 passed thereon. Moreover, it is not the case of the respondents in the counter-affidavit that while considering the case of the petitioner for regularization, the period of service as Junior Engineer has been considered, which was on the strength of the aforesaid interim order. 15. Moreover, it is not the case of the respondents in the counter-affidavit that while considering the case of the petitioner for regularization, the period of service as Junior Engineer has been considered, which was on the strength of the aforesaid interim order. 15. A perusal of impugned order dated 17.11.2006 (Annexure 6 to the writ petition) would reveal that respondent No. 2 has intimated respondent No. 4 that pursuant to the vacation of interim order and dismissal of the Writ Petition No. 8550 of 1986 on 20.4.2004 in compliance of the said directives of the Hon’ble High Court the interim order dated 18.12.1986 has lost its efficacy and, therefore, Shri Ram Kumar and others will now only be entitled to the benefits of the original posts held by them. Thus, the impugned order was passed on a totally non-existent ground. 16. Learned standing counsel has also sought to argue on the basis of the averments made in paragraph 11 of the counter-affidavit that in terms of G.O. dated 2.12.2000 the benefit of selection grade to an employee has to be initially granted after completion of eight years of continuous satisfactory service and thereafter upon completion of six years of continuous satisfactory service, the said employee is entitled or eligible for his promotional pay scale, but in the case of the petitioner without giving him benefit of selection grade the Superintending Engineer has illegally granted benefit of promotional pay scale of Rs. 8,000-275-13,500/-. 17. This Court finds that on 1.1.2001 the petitioner was allowed the pay scale of Rs. 8,000-275-13,500/- w.e.f. the date of regularization of his promotion on the post of Junior Engineer. This order is Annexure 2 to the writ petition and has been issued from the office of the Junior Engineer (Minor Irrigation Circle), Allahabad and that now it is too late in the day on the part of the State respondents to contend that without giving benefit of selection grade to the petitioner, he was not entitled to the benefit of promotional pay scale, inasmuch as, non-conferment of selection grade to the petitioner cannot be made a basis for denial of pensionary benefits on the post held by the petitioner at the time of retirement. This Court is not expected to decide the issue as to whether the petitioner was entitled for a selection grade or not, as pensionary benefits are payable on the basis of the pay received by the petitioner at the time of retirement. 18. Thus, from the materials on record, this Court finds that the petitioner had worked as Junior Engineer (Minor Irrigation) against a temporary post w.e.f. 2.2.1983 and that his services stood regularized on the post of Junior Engineer (Minor Irrigation) vide order dated 30.6.2000, w.e.f. 1.4.1983 bereft of any interim order and that he has continued on the post of Junior Engineer for almost 21 years i.e. up to 31.7.2004 and, therefore, now to deprive him from pensionary benefits available to him on the post held at the time of retirement i.e. Junior Engineer (Minor Irrigation) and, on the contrary, to grant him pensionary benefits of the original post of boring mechanic, is in flagrant violation of law. 19. Shri Mohd. Islam, learned counsel for the petitioner during the course of argument has also placed reliance upon the judgment of this Court in Suraj Narain Bhatt v. State of U.P. and others, 2008 (1) LBESR 875 (All) and paragraph 10 thereof is quoted hereinbelow : “Having heard the learned counsel for the parties at length and perused the entire record including decision and relevant Government Orders, I find that the petitioner had been promoted on the stop gap arrangement though he was never formally promoted on the said post of Junior Engineer (Minor Irrigation) on regular basis but the work was being taken from him as junior engineer and salary was also being paid on the pay scale of junior engineer with all benefits of the increment in pay scale as such available for the said post from time to time which was rightly said to be not recoverable as per the impugned order dated 13.9.2005. More so, as it is now settled law that once salary has been paid to an employee on higher pay scale not because of any fraud or fault on the part of the said employee the same cannot be recovered from him. Thus, the order of recovery/adjustment as per order dated 19.3.2005 (Annexure 14 to the counter-affidavit) passed by the Block Development Officer, Hollagarh, Allahabad is not justifiable and sustainable in the eyes of law. Thus, the order of recovery/adjustment as per order dated 19.3.2005 (Annexure 14 to the counter-affidavit) passed by the Block Development Officer, Hollagarh, Allahabad is not justifiable and sustainable in the eyes of law. The petitioner is also entitled to all retiral benefits available to a permanent Junior Engineer as he has served on the said post as such and was being paid salary for more than 10 years as required in terms of clause 2 of the aforesaid G.O./Office Memorandum dated 1.7.1989 for more than 20 years of temporary service by way of stop gap arrangement on the post of Junior Engineer in terms of Clause 3. In the present case, the petitioner fulfills all the conditions and, therefore, he was qualified for the pension, having been retired as Junior Engineer on which post, admittedly, he had been continuing to work as such though on temporary or officiating capacity in service, under the orders of the authority concerned without interruptions and, therefore, no reason seems to take a different view, in the case of the petitioner as the same view has already been taken by this Court while disposing the Writ Petition No. 3491 of 1988, Abhimanyu Dev Pandey v. State of U.P. and Writ Petition No. 1782 (s/s) 2004, Shamim Ahmad Siddique v. State of U.P., similarly placed boring technician who promoted as Junior Engineer as the petitioner was promoted and they had been allowed pensionary benefits of the post of Junior Engineer. In the present case, there is no dispute that the petitioner worked as Junior Engineer till he attained the age of superannuation. The petitioner was allowed higher pay scale than that of the boring technician right from the date of his promotion on the post of Junior Engineer till the date of his superannuation and the petitioner had been discharging duties and responsibility of the said post as such, therefore, period of services of the petitioner cannot be ignored by the respondents while settling the pension and payment of other retiral benefits admissible to him.” 20. This Court is in complete agreement that the facts of the instant case are substantially similar with that of the aforesaid case and, therefore, there is no reason why this Court should not take a similar view as was taken in the aforesaid judgment. 21. This Court is in complete agreement that the facts of the instant case are substantially similar with that of the aforesaid case and, therefore, there is no reason why this Court should not take a similar view as was taken in the aforesaid judgment. 21. It is also a settled position in law that the validity of the impugned order is to be tested only on the basis of the recitals mentioned therein and that the same cannot be supplemented or improved by filing an affidavit, therefore, this Court finds that once the very and the only edifice on which the impugned order was based i.e. vacation of an interim order and dismissal of Writ Petition No. 8550 of 1986 on 20.4.2004 becomes non-existent, therefore, the petitioner would be entitled to the benefits of the post of Junior engineer (Minor Irrigation), inasmuch the order of regularization was on its own right and was not dependant on the passing of interim order dated 18.12.2006. 22. Accordingly, the writ petition is allowed. Impugned order dated 17.11.2006 (Annexure 6 to the writ petition) passed by respondent No. 2 is hereby quashed and the respondents are directed to calculate the pension of the petitioner treating him to have retired on 31.7.2004 on the basis of last drawn pay on the post of Junior Engineer (Minor Irrigation) and to pay the retiral dues within a period of three months from the date a certified copy of this order is produced before the authority concerned. —————