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Madhya Pradesh High Court · body

2011 DIGILAW 588 (MP)

Mahesh Prasad Bajpai v. State of M. P.

2011-05-11

S.N.AGGARWAL

body2011
ORDER S.N. Aggarwal, J. 1. The Petitioner was appointed to the post of Agricultural Demonstrator in the year 1958. In due course, he was promoted to the post of Agricultural Development Officer w.e.f. 27.09.1985. He was aggrieved by him being ignored by the D.P.C. that met on 13.05.1991 for his second promotion to the post of Senior Horticulture Development Officer. He challenged the action of Respondents for ignoring him of his second promotion to the post of Senior Horticulture Development Officer by filing an original application before the State Administrative Tribunal. The said application of the Petitioner remained pending before the State Administrative Tribunal till the Tribunal was abolished in the year 2002 and further the case of the Petitioner was transferred from the Tribunal to this Court for decision. The original application filed by the Petitioner before the State Administrative Tribunal upon its transfer to this Court was registered as W.P. No. 2612/2003 and the same was disposed of by this Court vide order dated 01.12.2004 with the following directions to the Respondents: Accordingly, considering the totality of the facts and circumstances of the case as is reflected from the records this is a fit case where the claim of the Petitioner for promotion has to be reconsidered. Accordingly, this petition is allowed. Respondents are directed to take action for considering the claim of the Petitioner for promotion afresh by convening a review DPC and the review DPC shall consider the case of the Petitioner as was existing on 13.05.1991 in the C.R. folder of the Petitioner. Claim of the Petitioner for promotion on the basis of C.R. for the preceeding five years as was available on 13.05.1991 ignoring all entries made thereafter shall be considered and action be taken within a period of two months from the date of receipt of certified copy of this order. 11. As Petitioner has already retired on 31.06.1992 in case benefit is granted to the Petitioner, the same shall be granted to him retrospectively and consequential relief in pension and post retiral benefit shall also be granted to the Petitioner. 2. Since the above directions of this Court were not complied with by the Respondents, the Petitioner had to file a contempt petition against the Respondents being Contempt Petition No. 520/2005. 2. Since the above directions of this Court were not complied with by the Respondents, the Petitioner had to file a contempt petition against the Respondents being Contempt Petition No. 520/2005. During pendency of the contempt proceedings, the Respondents have held a review D.P.C. on 05.03.2009 in terms of the judgment of this Court dated 01.12.2004 in W.P. No. 2612/2003 and took a decision to promote the Petitioner to the post of Senior Horticulture Development Officer. The minutes of meeting of the D.P.C. are annexed as Annexure P-4 at page 36 of the paper book. A perusal of the minutes of meeting of review D.P.C. dated 05.03.2009 reveals that the D.P.C. did not decide the effective date from which the Petitioner shall be entitled for his promotion to the post of Senior Horticulture Development Officer. However, the Director, Horticulture vide communication dated 07.03.2009 (Annexure P-1) informed the Petitioner that he has been promoted to the post of Senior Horticulture Development Officer w.e.f. 04.09.1991. The Petitioner was further informed by the Director, Horticulture that he shall not be entitled to pay of the promoted post of Senior Horticulture Development Officer for the period intervening between the date of his promotion and the date of his superannuation i.e. 30.06.1992. 3. In view of the review D.P.C. held by the Respondents on 05.03.2009 and the communication dated 07.03.2009 received by the Petitioner from the Director, Horticulture, the contempt petition being C.P. No. 520/2005 was disposed of by this Court vide order dated 17.03.2009 granting liberty to the Petitioner to file a substantive writ petition against the communication of the Respondents. 4. Pursuant to the above liberty granted by this Court to the Petitioner, he has filed this writ petition seeking following reliefs: (1) That the part of the order dated 07.03.2009 passed by the Respondent No. 2 ( Annexure P-1) with respect to the date of promotion w.e.f. 04.09.1991 may kindly be quashed with a direction that the Petitioner has been ordered to be promoted w.e.f. 23.05.1991 when the incumbent juniors have been promoted by virtue of the DPC dated 13.05.1991. (2) That, the part of the order (Annexure P/1) with regard to treating the intervening period applying the principle of 'no work no pay' may kindly be quashed and the Respondents be further directed to extend all consequential benefits of the intervening period including salary of arrears. (2) That, the part of the order (Annexure P/1) with regard to treating the intervening period applying the principle of 'no work no pay' may kindly be quashed and the Respondents be further directed to extend all consequential benefits of the intervening period including salary of arrears. (3) That, the Respondents be further directed to pay the interest over the payment of arrears at the rate of 10% keeping in view the conduct of the Respondents or delay caused in the case of the Petitioner. (4) Any other relief which is suitable in the facts and circumstances of the case in favour of the Petitioner including the costs throughout may also be granted. 5. In response to the petition filed by the Petitioner return has been filed by the Respondents, which has been perused by this Court. I have also heard the counsels for the parties and have perused the relevant record. 6. Mr. D.P. Singh, learned Counsel appearing on behalf of the Petitioner has argued that the Petitioner was entitled for his promotion to the post of Senior Horticulture Development Officer w.e.f. 23.05.1991, the date when his immediate junior Mr. Omprakash Saraswat was promoted by the first D.P.C. on 13.5.1991. 7. Ms. Nidhi Patankar, learned Deputy Government Advocate appearing on behalf of the Respondents submitted that the Director, Horticulture has communicated to the Petitioner that he was entitled to promotion to the post of Senior Horticulture Development Officer w.e.f. 04.09.1991 and according to her there is no reason for this Court to interfere in the said communication of the Director, Horticulture. 8. In order to appreciate the above rival arguments advanced by the counsels for the parties regarding the date from which the Petitioner was entitled for his promotion to the post of Senior Horticulture Development Officer, the pleadings of the parties needs to be mentioned. Para 5.6 of the petition in this context is relevant and is extracted below: Pursuant to the recommendation of review D.P.C., the Petitioner has been ordered to be promoted as Senior Horticulture Development Officer vide order dated 07.03.2009, copy of the order is annexed as Annexure P-1, whereby the Petitioner has been ordered to be promoted as Senior Horticulture Development Officer w.e.f. 04.09.1991 instead of 23.05.1991 when the immediate juniors of the Petitioner have been promoted. 9. Return of the Respondents to para 5.6 of the petition read as under: 5.6. 9. Return of the Respondents to para 5.6 of the petition read as under: 5.6. That, contents of para 5.6 of this petition are misconceived, hence not admitted. However, filing of the contempt petition No. 520/2005 is not denied. However same was disposed of vide order dated 17.03.2009. 10. It may be seen from the above pleadings of the parties that the Respondents have not denied that the persons junior to the Petitioner were promoted to the post of Senior Horticulture Development Officer on 23.05.1991. The minutes of meeting of review D.P.C. held on 05.03.2009, copy of which is annexed as Annexure P-1 at page 36 of the paper book would reveal that the D.P.C. has not taken any decision regarding the date from which the Petitioner was entitled for his promotion to the higher post of Senior Horticulture Development Officer. In fact the Petitioner was earlier ignored for his promotion to the higher post of Senior Horticulture Development Officer and he had to get review D.P.C. constituted through litigation that culminated in judgment of this Court dated 01.12.2004 in W.P. No. 2612/2003. The review D.P.C. was constituted by the Respondents in compliance of the directions of this Court contained in its judgment dated 01.12.2004 in W.P. No. 2612/2003 and the review D.P.C. that met on 05.03.2009 has now found that the Petitioner was fit for his promotion to a higher post of Senior Horticulture Development Officer on the date of first D.P.C. held on 13.05.1991. This clearly shows that the Petitioner on the date of first D.P.C. dated 13.05.1991 was entitled for his promotion to the post of Senior Horticulture Development Officer and he got the same with retrospective effect in terms of the decision of the review D.P.C. that met on 05.03.2009. Since there is no denial by the Respondents to the plea of the Petitioner that his immediate junior got promotion to a higher post of Senior Horticulture Development Officer w.e.f. 23.05.1991, the Petitioner is also held entitled to get promotion to the said higher post w.e.f. the same date i.e. 23.05.1991, the date when his junior was promoted to the said post. 11. 11. Regarding claim of the Petitioner for pay of higher post of Senior Horticulture Development Officer for the period intervening between the date of his promotion and the date of his superannuation i.e. 30.06.1992, the pleadings of the Petitioner contained in para 5.4 of the petition needs to be noticed and the same are extracted below: 5.4. That is not out of place to mention here that since 1990, the Petitioner is in current charge and holding the post of Senior Horticulture Development Officer and implementing vegetable schemes till attaining the age of superannuation on 31.06.1992. A copy of the documents with respect to performing the work as Senior Horticulture Development Officer in charge till the age of superannuation are enclosed herewith and marked as Annexure P-2. Therefore, it is apparent that the Petitioner has attained the age of superannuation as in-charge Senior Horticulture Development Officer and therefore, the principle of 'no work no pay' is not having its application as applied vide order Annexure P/1, 12. Return of the Respondents to para 5.4 of the petition read as under: 5.4. That, as per para 5.4 of this petition it is not denied that Petitioner was in charge Senior Horticulture Development Officer up to the age of his superannuation i.e. 31.06.1992. The Petitioner who was in charge Senior Horticulture Development Officer, is not entitled for salary and other benefits of a regular Senior Horticulture Development Officer. At the relevant time Petitioner had received acting allowance. 13. The pleadings of the parties referred herein above tend to imply an admission by the Respondents that the Petitioner was working in officiating capacity in a higher post of Senior Horticulture Development Officer since 1990 and that he continued to work in that position till he superannuated on 30.06.1992. On the face of this admission of the Respondents, the Petitioner cannot be denied salary for the period intervening the date of his promotion and the date of his superannuation by invoking the principle of 'no work no pay'. This principle of 'no work no pay' has no application to the peculiar facts of the present case since the Petitioner had actually worked in higher position on the post of Senior Horticulture Development Officer, to which he was promoted in terms of decision of the review DPC held on 5th March, 2009. This principle of 'no work no pay' has no application to the peculiar facts of the present case since the Petitioner had actually worked in higher position on the post of Senior Horticulture Development Officer, to which he was promoted in terms of decision of the review DPC held on 5th March, 2009. The Petitioner is, therefore, held entitled to pay of the higher post of Senior Horticulture Development Officer for the entire period intervening between the date of his promotion, i.e., 23rd May, 1991 and the date of his superannuation, i.e., 30th June, 1992. 14. In view of the foregoing and having regard to the facts and circumstances of the case, this petition is finally disposed of with direction to the Respondents to pay him arrears of salary for the period intervening between the date of his promotion to the post of Senior Horticulture Development Officer and the date of his superannuation within six weeks of receipt of certified copy of this order. If arrears as directed are not paid by the Respondents to the Petitioner within the stipulated period, then the Petitioner is also held entitled to interest @ 12% per annum on the amount of arrears from the date of this order till the date of actual payment. The Respondents are further directed to revise the pension of the Petitioner suitably taking into account his last drawn salary of the post of Senior Horticulture Development Officer. The pension of the Petitioner be also revised by the Respondents within the same time period of six weeks as granted to them for payment of salary. Certified copy as per rules.