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Madhya Pradesh High Court · body

2011 DIGILAW 754 (MP)

H. P. Upadhyay v. State of M. P.

2011-07-12

K.K.TRIVEDI

body2011
ORDER K.K. Trivedi, J. 1. The present petition under Article 226 of the Constitution of India has been filed challenging the orders dated 23.5.2008, 29.5.2009 and 10.2.2010 Annexures P/10, P/12 and P/16 respectively and relief is claimed to the effect that the respondent be commended to pay the benefits of revised pay scale on promotion of the petitioner on the post of Director, Health Services-w.e.f. 2.12.1998 till 31.3.2003 and all the arrears be calculated after proper fixation of pay and the same be paid to the petitioner with interest at the rate of 24% per annum. A further claim is made by the petitioner to revised pension and other retiral dues of the petitioner w.e.f. 1.4.2003 and to pay arrears of the same with interest at the rate of 24% per annum. 2. It is contended by the petitioner that he was appointed in the service was granted promotion timely up to the post of Dy. Director. However, he was superseded in the matter of promotion on the post of Joint Director, Health Services, which resulted in further supersession on the post of Director, Health Services. The petitioner was prosecuting his claim before the respondent by making constant applications/representations but till date of his retirement nothing was done. Ultimately, by orders he was given the benefits of promotion, but the monetary claims were denied. It is the case of the petitioner that since he was superseded illegally and ultimately such fact was found correct as was. pointed out by the petitioner long back only in the year 2008, petitioner could not have been denied the benefit of monetary claims on account of promotion. It is said that while in service the petitioner suffered the loss in emoluments and he also suffered the loss after retirement when the pensionary claims were settled and is still suffering monetary loss as he is being paid lesser pension than what is otherwise due to him. 3. Writ petition was entertained by this Court, notice was issued and in response to the notice, reply / return is filed by the respondent, contending interalia that the representations made by the petitioner were considered. There was no parity between the case of the petitioner and one Dr. CM. 3. Writ petition was entertained by this Court, notice was issued and in response to the notice, reply / return is filed by the respondent, contending interalia that the representations made by the petitioner were considered. There was no parity between the case of the petitioner and one Dr. CM. Sankhla, who came before the M.P. State Administrative Tribunal ventilating his grievance with regard to supersession and the said claim was decided, therefore, the benefit of promotion was given to said Dr. Sankhla with retrospective effect with all the monetary benefits. It is said that the case of Dr. Sankhla is distinguishable on other counts as Dr. Sankhla was superseded because his ACRs were not available in the Departmental Promotion Committee, which met for consideration of the cases for promotion on 28.4.1992. However, since the petitioner has now been promoted, he will be entitled to the notional fixation of salary of promotional post, but arrears of salary cannot be aranted to the petitioner. Thus, it is contended that that there is no parity between the claim of the petitioner and the benefit granted to Dr. Sankhla under the peculiar facts and circumstances of the case. It is said that the respondent has passed a proper order which need not be interfered with by this Court. 4. I have heard learned counsels for the parties at length and perused the record. 5. On perusal of the impugned order dated 23.5.2008 (Annexure P/10) it is clear that promotion of the petitioner was ordered only because he approached M. P. State Administrative Tribunal by way of filing Original Application No.486/1989, which was decided on 16.8.1991. It is also clear that the petitioner was required to file yet another Original Application No. 66/1998, which was decided on 28.4.1998 and since the order was not complied, a Contempt Petition No.67/1999 was filed before the State Administrative Tribunal Bench at Indore. It is said that the orders were passed giving promotion to the petitioner on the post of Joint Director, Health Services with seniority from the year 1993 on the said post. It is said that the review D.P.C with reference to the claim made by the petitioner through his representation was held on 20.3.2008. It is said that the orders were passed giving promotion to the petitioner on the post of Joint Director, Health Services with seniority from the year 1993 on the said post. It is said that the review D.P.C with reference to the claim made by the petitioner through his representation was held on 20.3.2008. Tan-king into consideration the criterian as fixed by the DPC dated 26.11.1998, the petitioner was also considered found fit and was given promotion on the post of Director, Health Services w.e.f. 2.12.1998. However, what was the good reason not giving the benefit of monetary claims to the petitioner by the said order were not explained. 6. The criterian which the respondent has adopted for distinguishing the petitioner from the case of Dr. Sankhla would not be applicable in as much as the petitioner was also vigilant for making his claims. Not only, he was making representations, but he also visited the Tribunal for seeking certain directions. Therefore, to say that the petitioner was not entitled to monetary claims because of any lapse on the part of the petitioner and that the petitioner was entitled to notional fixation only is not justified. The manner in which the claim of a person like the petitioner was being considered is apparent from the order dated 29.5.2009 (Annexure P/12) wherein it is said that the petitioner, who has retired w.e.f. 31.3.2003 would be entitled to the salary of the promotional post only after giving joining on the promotional post. The respondent State was fully aware of the fact that after six years of retirement of petitioner it was not possible for him to give joining on the promotional post. In fact the matter was considered in such a manner and pointing out the wrong fundamental rule, which is not applicable in the given circumstance, the claim as made was rejected, by such authority without verifying whether such rule was applicable under the law or not. At any rate, no fault can be attributed to the petitioner for not giving him timely promotion. He was making representation and thereafter claimed, promotion on the post of Joint Director. At any rate, no fault can be attributed to the petitioner for not giving him timely promotion. He was making representation and thereafter claimed, promotion on the post of Joint Director. If his seniority was to be fixed with retrospective date of promotion on the post of Joint Director, again he become entitled to be considered for promotion on the post of Director, Health Services in the year 1998, when he was actually in the service. No reason has been assigned as to why such promotion was not granted to the petitioner and why only after his retirement the review D.P.C was held on 20.3.2008. If such were lapse on the part of the respondent, the benefit of monetary claims on promotion could not have been denied to the petitioner and as a result whereof the petitioner was entitled to the payment of salary of promotional post from the date he was found fit for such promotion. 7. Again when representation was made knowing fully well that the petitioner has retired on attaining the age of superannuation w.e.f. 31.3.2003 by the third impugned order of the respondent dated 10.2.2010 (Annexure P-16), it was said that only a notional fixation of pay would be done on promotion of the petitioner in the pay of Rs. 18400 - 500 -22400 and he will be entitled to the revision of his pension and grant of pensionary benefits as per rule 30 of Madhya Pradesh Civil Services (Pension) Rules 1976. Such course was not open to the respondent authority in as much as there was no rider put by any authority much less any judicial authority that the petitioner on being promoted, would not be entitled to the monetary benefits of the promotional post with retrospective effect. This being so, the equity demands that in case the petitioner is found fit for promotion by the review DPC, he should be allowed all the monetary benefits of promotional post, including the payment of salary, revision of pay and other consequential benefits. 8. This being so, the equity demands that in case the petitioner is found fit for promotion by the review DPC, he should be allowed all the monetary benefits of promotional post, including the payment of salary, revision of pay and other consequential benefits. 8. Had it been the case that petitioner himself was negligent in making claims with respect to his promotion on the higher post and has approached the Court of law at belated stage a different view would have been possible but because there are no lapse on the part of the petitioner, on the other hand, it is categorically found that the respondent was not properly dealing with the claim of the petitioner, the petitioner cannot be put to loss of monetary benefits. As has been categorically maintained by the petitioner he has suffered monetary loss while he was in service and is still suffering loss as he is not getting proper pension after his supersession. 9. In view of aforesaid, the present petition deserves to be and is hereby allowed. The part of the order dated 23.5.2008, whereby it is ordered that on promotion on the post of Director, Health Services, the petitioner will get only notional seniority and no monetary benefits would be paid to him, is hereby quashed. Respondent is hereby commended to extent the benefit of pay of the promotional post to the petitioner w.e.f. 2.12.1998, revised and re-fixed the salary of the petitioner on the promotional post in the scale applicable to the promotional post, calculate all the arrears of salary payable to the petitioner w.e.f. 2.12.1998 till the date of retirement of the petitioner and make payment of such arrears of salary to the petitioner with interest at the rate of 9% per annum from the date it become due till the date of actual payment. Further writ of mandamus is issued to the respondent commanding the respondent to revised and re-fixed the pension of the petitioner with effect from 1st April, 2003, calculate all the arrears, retiral dues on the basis of revised pay and pay the said amount of arrears to the petitioner with interest at the rate of 9% from the date the amount become due till the date of actual payment. Exercise in this respect be completed and the arrears of payment of salary as also pension, retiral dues be calculated and paid to the petitioner within two months from the date of receipt of certified copy of the order passed today. Petition is thus allowed to the extent mentioned hereinabove. The respondent will also pay cost of Rs. 5000/- to the petitioner. Ordered accordingly.