Madan Chandra Bhandari vs State of Uttarakhand and Others

The case set up in the instant writ petition is that the petitioner was inducted as a Supervisor in the Public Works Department of the composite State of Uttar Pradesh on 21.7.1965. He was then re-designated as an Overseer in the pay scale of 120-2 50 by an order dated 22.12.1965. It is also pointed out that at the time of the appointment of the petitioner, the post of Overseer was not subject to the purview of the State Public Service Commission. It is pointed out that w.e.f. 7.7.1967, the post of Overseer was brought under the purview of the State Public Service Commission, whereupon, the petitioner was confirmed against the post of Junior Engineer w.e.f. 1.3. 1989.

One Mukhtar Singh Dhillon approached the Lucknow Bench of the High Court at Allahabad by filing Writ Petition No. 2412 of 1980, whereupon the aforesaid Mukhtar Singh Dhillon was granted seniority from the date of his initial appointment. Based on the decision rendered by the Lucknow Bench of the High Court at Allahabad in Writ Petition No. 2412 of 1980, the petitioner filed Writ Petition No. 664 of 1991 in the High Court at Allahabad. The aforesaid writ petition was allowed by the High Court, however, the order passed by the High Court at Allahabad was assailed before the Supreme Court. The Supreme Court then remanded the matter to this Court for determination of the controversy on merits. This Court by its order dated 29.10.2007 allowed the aforesaid writ petition which was renumbered as Writ Petition (S/S) No. 47 of 2003, when it was registered in this Court, with the following directions:

In compliance of aforesaid order, this writ petition was heard by this Court on merits and for the reasons as discussed above, earlier in the body of this judgment, the writ petition is allowed. The respondents are directed to consider the case of the petitioner for his notional promotion and consequential benefits, from the date when the person junior to him was promoted within a period of three months from the date of production of certified copy of this order.

In furtherance of the directions issued by this Court, the State Government considered the claim of the petitioner and allowed him notional promotion to the post of Assistant Engineer w.e.f. 29.06.1978. And further notional promotion to the post of Executive Engineer w.e.f. 12.11.1999. The aforesaid notional promotions were granted to the petitioner vide an order dated 2.5.2008 (Annexure - 2 with this writ petition). The drawing and disbursing officer of the Public Works Department then addressed a communication to the Financial Controller, Uttarakhand dated 13.7.2009 requiring him to sanction the payment of Rs. 3,09,137/- to the petitioner as arrears due to him on account of his promotions. Despite the aforesaid communication issued by the drawing and disbursing officer of the Public Works Department, the office of the Financial Controller declined to release any consequential benefits to the petitioner, on account of the fact that the petitioner had merely been allowed notional promotion by the order passed by this Court on 29.10.2007, disposing of Writ Petition (SS) No. 47 of 2003 (which was earlier numbered as 664 of 1991, when the same was filed before the High Court at Allahabad).

Through the instant writ petition, the petitioner claims consequential benefits flowing to him as a result of his notional promotion to the post of Assistant Engineer with effect from 29.6.1978, and to the post of Executive Engineer with effect from 12.11.1999 till the date of his superannuation i.e. 3 1.5.2005.

At the commencement of the hearing, we enquired from the learned Counsel for the petitioner, whether or not the order dated 29.10.2007 passed by this Court disposing of Writ Petition (SS) No. 47 of 2003 had been challenged. Learned Counsel for the petitioner contended that the relief sought by the petitioner had been granted to him, and therefore, there was no occasion for the petitioner to assail the same. It is also apparent that notional promotions to the posts of Assistant Engineer and Executive Engineer were also granted to the petitioner, and as such, it is apparent that the respondents also accepted the order passed by this Court disposing of Writ Petition (S/S) No. 47 of 2003. In sum and substance, therefore, it emerges that the order passed by this Court on 29.10.2007 disposing of Writ Petition (SS) No. 47 of 2003 has attained finality.

Having attained finality, it is apparent that a part of the aforesaid order has been implemented, inasmuch as, the petitioner has been allowed notional promotion to the post of Assistant Engineer w.e.f. 29.6.1978 and to the post of Executive Engineer w.e.f. 12.11.1999. The only grievance of the petitioner, is that a direction had been issued to the respondents to grant the petitioner "consequential benefits", which have now been declined to him, as is apparent from the order passed by the Financial Controller dated 7.10.2009. The catchwords brought to our attention from the judgment dated 29.10.2007 are "the respondents are directed to consider the case of the petitioner for notional promotion and consequential benefits from the date when the person junior to him was promoted, within a period of three months from the date of production of certified copy of this order". It is acknowledged by the petitioner that notional promotion has been granted to the petitioner but not the consequential benefits thereof. It is, therefore, submitted that the order passed by the Deputy Secretary, Government of Uttarakhand dated 7.10.2009 is in clear violation and in disrespect of the order passed by this Court on 29. 10.2007.

The narration recorded hereinabove reveals that the petitioner has not approached this Court for claiming any further relief than that which was granted to him with the disposal of the Writ Petition (SS) No. 47 of 2003 decided on 29.10.2007. He has approached this Court merely to demand the implementation of the aforesaid order and to assail the order passed by the Deputy Secretary, Government of Uttarakhand dated 7.10.2009, whereby he had failed to give effect to the order passed by this Court requiring the State Government to grant the petitioner consequential benefits. In other words, the petitioner has approached this Court to assail the action of the respondents in disobeying the order passed by this Court dated 29.10.2007.

We are afraid that the petitioner has availed of the extra-ordinary jurisdiction vested in this Court under Article 226 of the Constitution of India without any justification whatsoever. No further directions were called for after this Court disposed of Writ Petition (S/S) No. 47 of 2003, vide order dated 29.10.2007. Learned Counsel for the petitioner having acknowledged the aforesaid position, lamented that the order dated 29.10.2007 had not been faithfully complied with. The proper course available with the petitioner was to assail the action of the respondents in disobeying the order passed by this Court. Having not desired any further direction beyond what was allowed to him by this Court vide its order dated 29.10.2007 (whereby it disposed of Writ Petition (SS) No. 47 of 2003) the filing of the instant writ petition was wholly misconceived. We had, in fact, advised the learned Counsel for the petitioner in this behalf at the very commencement of the case. Learned Counsel, however, desired us to dispose of the instant writ petition on merits. It is this desire that has required us to pass this order. It would have been in the fitness of matters if learned Counsel had accepted our advice and adopted the right course. But then, the mistake of a counsel should not result in denial of justice to a litigant. Therefore, despite the observations recorded hereinabove, we hereby grant liberty to the petitioner to seek recourse to an appropriate remedy in accordance with law, so as to enforce the direction issued by this Court on 29.10.2007, if the petitioner is so advised. It will be open to the petitioner to initiate action against the respondents arising out of the disobedience of the order passed by this Court on 29.10.2007, in case the same is called for.

The instant writ petition is disposed of in the aforesaid terms.