M.S.Tandon vs State and others

B.A. Khan, J.—Petitioner is a retired KAS officer and is before the Court since 1984 agitating his grievance for promotion to the KAS

Supertime scale of Rs. 26003100 (unrevised). This is the third round of litigation launched by him in a relentless battle only to vindicate his claim

which may only lead to an increase of a few hundred of rupees in his pensionary benefits.

It transpires that the Staterespondent passed Government Order No. 2059GD of 1983 dated 19.12.1983 promoting some Officers belonging

to KAS to its supertime scale. Of these, 5 officers junior to petitioner were also promoted by this order. He felt aggrieved and filed writ petition

before this court which along with a batch of petitions (leading petition being Writ Petition No. 384/84) was disposed of by judgment dated

18.78.1986 wherein after noticing that he was unjustifiably superseded, it was directed as under:

``For the aforesaid reasons, the abovesaid petitions of the petitioners are allowed. There is every justification to quash Government Order No.

2059GD of 1983 dated 19.12.1983 selecting ten persons in super time scale to the KAS cadre but considering the administrative difficulties to be

faced by the Staterespondent especially when the order was passed more than 2 years ago, I refrain from making such an order. The petitioners

have certainly a better merit and they are required to be adjusted to the KAS supertime scale whenever vacancies arise. A direction is accordingly

made to this effect. There shall be no order as to costs.''

Petitioner feeling dissatisfied by the direction contained in the judgment filed LPA (SW) No. 43 of 1989 on the plea that once his writ petition was

allowed by the writ court, it should have quashed the impugned promotion of his junior contenders and directed his promotion retrospectively from

19.12.1983 when the impugned order of promotion was passed. This appeal was disposed of vide judgment dated 27.4.1995, as under:

``In the present case, the writcourt has allowed the appellant's writ petition without quashing the order impugned though it has directed his

consideration for grant of the scale. As such we refrain from saying anything on the validity of the direction passed. It seems that this direction

could not be implemented as the appellant had retired from the service meanwhile. That being so, it is to be seen whether he can be given the

benefit of supertime scale now. His counsel, Mr. Gupta has placed some documents before us to show that this scale was granted even to the

retired officers pursuant to court judgment. There is no reason to disbelieve these documents or to doubt his statement in this regard. Therefore, on

the analogy and considering all aspects of the matter we dispose of this appeal by providing that the respondentState shall consider grant of KAS

super time scale to appellant on a representation to be made by him w.e. from 19.12.1983 in accordance with the rules and give him the benefit

accruing therefrom and add the same to his pensionary benefits. His representation shall be disposed of within two months from the date of its

receipt. This shall, however, not entitle him to any arrears of salary.''

A perusal of the aforesaid order passed by the Division Bench shows that the Staterespondent had taken the plea that the petitioner could not be

given the benefit of supertime scale as he had retired from service meanwhile and noticing his counsel's submission that even retired officers were

granted this grade later, it was deemed appropriate to provide the Staterespondent once again a chance of mending its fences and redress the

petitioner's grievance. But, on the contrary, it passed Government Order No. 90GAD of 1996 dated 25.1.1996 strangely by one of its officers

whose promotion was found unjustified by the writ court on the petitioner's writ petition, rejecting his representation this time on the specious plea

that he could not be promoted as no vacancy existed in 1984.

Petitioner's case in the present writ petition is that this Court had not directed his consideration against the vacancy which had become available

in 1984 but, on the contrary, taking cognizance of the fact that the State respondent had granted such promotion even to the retired officers, had

directed the Staterespondent to consider him for this promotion with effect from 19.12.1993. Therefore, it is projected that there was no question

of rejecting his claim for promotion for nonavailablity of a vacancy in 1984. Moreover, it is also argued that the order emanated from extraneous

considerations as it was passed by one of the opponents of the petitioner whose promotion to the supertime scale of KAS was admittedly found

illegal by this court though it was not quashed for administrative exigency.

Respondents have filed objections reiterating the stand spelt out in the impugned Government Order dated 23.1.1996 and all that remains to be

seen is: whether petitioner's representation claiming promotion to the KAS supertime scale from 19.12.1983 could have been rejected in the facts

and circumstances of the case ?

It is a matter of record that the writ court had allowed the petitioner's writ petition as far back as on 18.7.1986, but, had stopped short of

quashing the promotions impugned made by Government Order No. 2059GD of 1983 dated 19.12.1983 and instead had directed his

consideration. No appeal was taken by the Staterespondent against this judgment of the writ court which, if implemented in ordinary course,

should have settled the controversy way back in July, 1986. It was the petitioner who had taken the appeal against this judgment on the plea that

once his writ petition was allowed, he was entitled to the relief consequentially. But, his appeal was also disposed of on noticing the stand taken by

the Staterespondent that he could not be given the benefit as he had retired from service meanwhile.

The direction contained in the Division Bench judgment dated 27.4.1994, again, if appreciated in right spirit and perspective, should have

resulted in the consideration going in favour of the petitioner. But, the State respondent in disregard to all norms of elementary justice allowed one

of his opponents to consider his matter and reject it. It is repugnant even to common conscience that the petitioner's opponent should have been

entrusted the implementation of the court judgment passed in favour of the petitioner and to act both as a judge and the prosecutor at the same

time. The mala fides of the action are, therefore, writ large on the order impugned which cannot sustain otherwise also for lacking any basis.

Petitioner's claim for promotion after fighting for it for over 12 years stands rejected now on the ground of nonavailability of vacancy in 1984. It

is not understandable how the issue of availability of vacancy in 1984 crept up to deny him the benefit when this Court had specifically directed the

Staterespondent to consider his case for promotion to the supertime scale from 19.12.1983 after finding his supersession unjustified and the

promotions of his juniors liable to be quashed. The matter could have been set at rest with little administrative common sense. After all it was a

matter of giving him the benefit of promotion on paper which would have enhanced his pension by a few hundreds of rupees and not providing him

any specific post of which nonavailability could be pleaded.

It is, therefore, apparent that the petitioner was wronged through and through. Firstly, he was superseded which was found unjustified by the

writ court along with the promotion of his junior officers including the one who had passed the impugned order now against him. He was then put

off on the plea that he had retired from service and was not entitled to be promoted and now a new issue of nonavailability of the post related to

1984 is raised to deny him his due for which he has been before this court for all these years.

It is sad that the petitioner should have been forced to fight every inch for his otherwise justified claim and that it should have taken the State

respondent more than a decade to treat this as a genuine grievance, more so, after retirement when granting him promotion on paper would only

have resulted in enhancement of his pension by few hundred rupees. It is also in bad taste that the functionaries of the State, who were none other

than the opponents of his claim, should have been allowed to deal with his case and put off his claim on one untenable reason or the other. It seems

to be a case of traversty of justice and it is in these circumstances that the present writ petition is disposed of with a clear cut and categorical

command to the Staterespondent to promote the petitioner to the KAS supertime scale retrospectively from 19.12.1983 and to work out the

monetary benefits accruing thereby excluding the arrears of salary and to add to his pensionary benefits. It is further provided that the petitioner's

case shall be dealt with in light of the judgments passed by this Court since 1986 by the Chief Secretary of the Government and by no other officer

who was a party to the litigation. This whole exercise shall be completed within two months from the date of receipt of this order.