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2016 DIGILAW 1144 (ALL)

VIJAI KUMAR MEHROTRA v. STATE OF U. P.

2016-03-31

SHAMSHER BAHADUR SINGH, SUDHIR AGARWAL

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JUDGMENT By the Court.—Heard Sri Raj Kumar Khanna, learned counsel for the petitioner and perused the record. 2. Petitioner is seeking a writ of mandamus commanding respondents to pay pension to petitioner as payable on the post of Executive Engineer with all consequential benefits. Another mandamus has been sought commanding respondents to consider petitioner for promotion on the post of Executive Engineer from the date when juniors have been granted and in case petitioner is found suitable to grant him notional promotion with all consequential benefits. 3. The relevant facts borne out from record are that petitioner was given temporary appointment on the post of Overseer in Municipal Board, Bareilly under Section 70 of U.P. Municipalities Act, 1916 (hereinafter referred to as the “Act, 1916”) made by President, Municipal Board vide communication dated 25.8.1966 by Civil Engineer communicating appointment of petitioner for a period of two months on a fixed pay of Rs. 120/- per month plus D.A. Etc. Subsequently, vide Government Order dated 7.5.1973 issued by Deputy Secretary, U.P. Government, petitioner was appointed on the post of Junior Engineer, Civil (Overseer) on temporary basis in the pay scale of Rs. 150-300/-. Post of 'Overseer' subsequently was re-designated as “Junior Engineer”. 4. Petitioner, under the rules, constituted feeder cadre for promotion to the post of Assistant Engineer. On 10.2.1993 Mukhya Nagar Adhikari, Bareilly (hereinafter referred to as the “MNA”) granted, permission to petitioner to discharge duties of Assistant Engineer on a vacancy fell due to sudden demise of Sri K.M. Lal Sinha. The order clearly says that petitioner shall not be entitled for salary etc. payable to the post of Assistant Engineer. Aforesaid order permitted petitioner to discharge duties on the post of Assistant Engineer until further arrangement. When regular incumbent was available, MNA sought to withdraw on 14.10.1993, temporary arrangement made by permitting petitioner to discharge duties as Assistant Engineer. Thereagainst petitioner came to this Court in Writ Petition No. 40318 of 1993 seeking following reliefs: “(a) issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 4.10.93 and 14.10.93 passed by the respondent Nos. 2 and 3 respectively. (b) issue a writ, order or direction in the nature of mandamus restraining the respondents from interfering in the working of the petitioner as Assistant Engineer in the office of respondent No. 3. 2 and 3 respectively. (b) issue a writ, order or direction in the nature of mandamus restraining the respondents from interfering in the working of the petitioner as Assistant Engineer in the office of respondent No. 3. (c) issue any other suitable writ, order or direction that this Hon’ble Court may deem fit and proper in the circumstances of the case.” 5. It appears that an ad interim stay order was passed in aforesaid writ petition on 10.11.1993 staying order dated 14.10.1993, pursuant thereto petitioner continued to discharge duties as Assistant Engineer ultimately attained superannuation on 31.10.2003 and retired. 6. Petitioner is claiming that since he has been discharging duties as Assistant Engineer, he was entitled for retiral benefits on the post of Assistant Engineer. It is further said that in the seniority list of Overseer/Junior Engineers, date of regular appointment of petitioner was taken as 8.5.1987 though it ought to have been 1969 and hence he was entitled to be considered for further promotion on the post of Executive Engineer. 7. In this writ petition there is no dispute regarding seniority on the post of Junior Engineer. Whatever seniority petitioner enjoyed on the post of Junior Engineer vis-a-vis others is not subject-matter of any dispute or challenge in this writ petition. Therefore, we are not called upon to examine, whether petitioner’s seniority should have commenced from 1969 or 1987. This writ petition has been filed in 2008 while petitioner has already retired on attaining the age of superannuation on 31.3.2003. Thus, dispute of seniority on the post of Junior Engineer even otherwise could not have been allowed to be raised by petitioner at this stage. 8. However, we are not called upon to further engage us on this aspect for the reason that relief which is being sought by petitioner even otherwise is thoroughly misconceived. At no point of time petitioner was ever appointed or promoted as Assistant Engineer in accordance with procedure prescribed under Rules. Even an ad hoc appointment or promotion has not been granted to petitioner. He was only permitted to discharge duties of Assistant Engineer without any monitory gain or benefit or without payment of salary or allowances etc. payable on the post of Assistant Engineer. Therefore, he continued to work with status of Junior Engineer though also discharge duties of Assistant Engineer. He was only permitted to discharge duties of Assistant Engineer without any monitory gain or benefit or without payment of salary or allowances etc. payable on the post of Assistant Engineer. Therefore, he continued to work with status of Junior Engineer though also discharge duties of Assistant Engineer. This arrangement was made for a very short period vide order dated 10.2.1993 which was ceased on 4.10.1993 and 14.10.1993 by directing petitioner to continue to discharge his duties as Junior Engineer. 9. It is true that orders dated 4.10.1993 and 14.10.1993 were challenged by petitioner in Writ Petition No. 40318 of 1993 in which an interim order was passed pursuant whereto petitioner was continued but that writ petition ultimately has been dismissed on 26.8.2009. The effect of dismissal of writ petition is as if no interim order was passed and petitioner cannot claim any benefit pursuant to interim order which ultimately has resulted in dismissal of writ petition having the consequence as if no interim order was passed. The effect of dismissal of writ petition on interim orders has been considered by a Division Bench of this Court in Smt. Vijay Rani v. Regional Inspectress of Girls Schools, Region-1, Meerut and others, 2007(2) ESC 987 and the Court held as under: “An interim order passed by the Court merges with the final order and, therefore, the result brought by dismissal of the writ petition is that the interim order becomes non est. A Division Bench of this Court in Shyam Lal v. State of U.P., AIR 1968 Allahabad 139, while considering the effect of dismissal of writ petition on interim order passed by the Court has laid down as under: “It is, well-settled that an interim order merges in the final order and does not exist by itself. So the result brought about by an interim order would be non est in the eye of law if the final order grants no relief. The grant of interim relief when the petition was ultimately dismissed could not have the effect to postponing implementation of the order of compulsory retirement. So the result brought about by an interim order would be non est in the eye of law if the final order grants no relief. The grant of interim relief when the petition was ultimately dismissed could not have the effect to postponing implementation of the order of compulsory retirement. It must in the circumstances take effect as if there was no interim order.” The same principal has been reiterated in the following cases: (A) Sri Ram Charan Das v. Pyare Lal, AIR 1975 Allahabad 280 “In Shyam Lal v. State of U.P., AIR 1968 All 139 , a Bench of this Court has held that orders of stay of injunction are interim orders that merge in final orders passed in the proceedings. The result brought about by the interim order becomes non est in the eye of law in final order grants no relief. In this view of the matter it seems to us that the interim stay became non est and lost all the efficacy, the commissioner having upheld the permission which became effective from the date it was passed.” (B) Shyam Manohar Shukla v. State of U.P., 1986 (4) LCD 196 “It is settled law that an interim order passed in a case which is ultimately dismissed is to be treated as not having been passed at all (see Shyam Lal v. State of Uttar Pradesh) Lucknow, AIR 1968 Allahabad 139 and Sri Ram Charan Das v. Pyare Lal, AIR 1975 Allahabad 280 (DB).” (C) Kanoria Chemicals & Industries Ltd. v. U.P. State Electricity Board, AIR 1994 Allahabad 273. “After the dismissal of the writ petitions wherein notification dated 21.4.1990 was stayed, the result brought about by the interim orders staying the notification, became non est in the eye of law and lost all its efficacy and the notification became effective from the beginning.” 10. In Raghvendra Rao etc. v. State of Karnataka others, JT 2009 (2) SC 520, the Apex Court has observed: “It is now a well-settled principle of law that merely because an employee had continued under cover of an order of Court, he would not be entitled to any right to be absorbed or made permanent in the service..............” 11. Even otherwise when a person is required to discharge duties on a higher post, it cannot be said that he has been promoted or appointed on that post. Even otherwise when a person is required to discharge duties on a higher post, it cannot be said that he has been promoted or appointed on that post. In the present case, there is no order or direction giving appointment or promotion to petitioner on the post of Assistant Engineer. Admittedly he was only permitted to discharge duties on the post of Assistant Engineer with a clear instructions that he shall not be entitled for salary and other allowances payable on the post of Assistant Engineer. 12. Permitting a person to discharge duties on higher post does not mean that he is entitled to be promoted on that post. The question as to whether a person simply on handing over charge, may be on officiating or ad hoc basis, is entitled to get salary on higher post, when there is no order of promotion, has also been considered in Smt. Vijay Rani v. Regional Inspectress of Girls Schools (supra), and it has been held as under: “... the Petitioner-Appellant was only required to look after and discharge the duties of the officiating Principal but was never promoted/appointed on the said post. In other words, it can be said that the Petitioner-Appellant was given only current duty charge in addition to her substantive post and this arrangement did not result in promotion to the post of which, the current duty charge was handed, over. In State of Haryana v. S.M. Sharma, AIR 1993 SC 2273 , the Chief Administrator of the Board entrusted Sri S.M. Sharma, with the current duty charge of the post of Executive Engineer, which was subsequently withdrawn as a result of his transfer to other post. He challenged the said order stating that it amounts to reversion. The Apex Court held that Sri Sharma was only having current duty charge of the Executive Engineer and was never promoted or appointed to the aforesaid post and therefore, on transfer to some other post, it did not result in reversion from the post of Executive Engineer. He challenged the said order stating that it amounts to reversion. The Apex Court held that Sri Sharma was only having current duty charge of the Executive Engineer and was never promoted or appointed to the aforesaid post and therefore, on transfer to some other post, it did not result in reversion from the post of Executive Engineer. A somewhat similar situation occurred in Ramakant Shripad Sinai Advalpalkar v. Union of India and others, 1991 Supple (2) SCC 733 and the Apex Court observed as under : ‘’The distinction between a situation where a Government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion.” It was further held that such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it sometimes. However the person continues to hold substantive lower post and only discharges duties of the higher post essentially as a spot-gap arrangement. A further contention was raised that if such an arrangement continued for a very long period it would give some kind of right to continue on the post but negativing such contention, it was held that an in-charge arrangement is neither recognition nor is necessarily based on seniority and therefore, no rights, equities and expectations can be built upon it.” 13. Since petitioner has never been appointed or promoted as Assistant Engineer and has continuously held the post of Junior Engineer, question of promotion on the post of Executive Engineer does not arise. Further, there is nothing on record to show as to when petitioner become eligible to be considered for promotion on the post of Executive Engineer when he was not even promoted as Assistant Engineer. Hence, question for directing respondents to consider petitioner for promotion on the post of Executive Engineer does not arise. 14. The writ petition lacks merit and is accordingly dismissed with costs of Rs. 5000/-. 15. Interim order, if any, stands vacated.