Natthu Singh Chauhan vs State of MP

Sujoy Paul, J.—The petitioner has filed this petition under Article 226 of the Constitution, seeking a direction to the respondents to modify the Pension Payment Order (PPO) dated 17.1.2012 by treating him as Asstt. Engineer with further direction to pay him the attendant benefits.

Brief facts necessary for adjudication of this matter are that the petitioner while working as Sub Engineer was promoted by order dated 10.7.2003 (Annexure P/2) as Asstt. Engineer. The post of Asstt. Engineer carries the pay scale of Rs. 8000-275-13500. The promotion order dated 10.7.2003 was cancelled by the respondents on 13.7.2007, Annexure P-3. The petitioner feeling aggrieved by the aforesaid cancellation order preferred a Writ Petition No. 4533/2007 (S) before this Bench. The notices were issued in the said writ petition on 25.9.2007. As an interim measure, the effect and operation of the order of cancellation of promotion dated 13.7.2007 was stayed by this Court.

Shri D.P. Singh, learned counsel for the petitioner, submits that pursuant to the aforesaid interim order, the petitioner continued as Asstt. Engineer and retired on attaining the age of superannuation on 31.12.2008. Writ Petition No. 4533/2007 was subsequently dismissed as infructuous. The respondents have issued the PPO by treating the petitioner as Sub Engineer. The bone of contention of Shri Singh is that the fact remains that the petitioner retired while holding the post of Asstt. Engineer. His salary till retirement was paid on the post of Asstt. Engineer. As per M.P. Civil Services (Pension) Rules, 1976 (for brevity, the "Pension Rules"), the pension is to be calculated on the basis of last pay drawn or on the emoluments which the employee has drawn at the time of his retirement. On the basis of these rules, it is argued that the respondents have erred in issuing the PPO by treating the petitioner as Sub Engineer. Hence, it is prayed that PPO be directed to be modified by treating the petitioner as Asstt. Engineer. A further prayer is made to provide him gratuity, provident fund and other retiral dues on the basis of last pay drawn by the petitioner on the post of Asstt. Engineer. The petitioner has also claimed interest.

Mrs. Nidhi Patankar, learned Govt. Advocate on the other side opposed the said relief. She submits that WP No. 4533/2007 was dismissed as infructuous. On dismissal of this petition, the interim order stood vacated automatically. Accordingly, the reversion order came into force. The petitioner is not entitled for the benefits which accrued on the basis of interim relief granted in the said petition.

I have heard learned counsel for the parties and perused the record.

No doubt, the petitioner has attained the age of superannuation while working on the post of Asstt. Engineer. WP No. 4533/2007 was dismissed as infructuous. It cannot be disputed that the petitioner continued as Asstt. Engineer only because of the interim order passed initially in WP No. 4533/2007. The question is whether on dismissal of that writ petition, the petitioner is entitled to get pension by treating himself as Asstt. Engineer ?

The Apex Court has made it clear that there is world of difference between an interim order and a final order, whereby an order, notification, rule etc. is quashed. In Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras, the Apex Court opined as under:-

"While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence."

This judgment of Supreme Court is followed by a Division Bench of this Court in Dr. Kunal Kanti Majee Vs. The Chancellor, Rani Durgawati Vishvavidyalaya and Others, A plain reading of the said portion makes it clear that stay of operation of an order means that the order impugned very much exists but its operation is kept in abeyance because of the order of the court. If ultimately the petition is dismissed or interim order is vacated, the order which was stayed comes into operation. Thus, on dismissal of WP No. 4533/2007, the interim order stood vacated and the reversion order became automatically operative.

The argument of Shri D.P. Singh is solely based on the provisions of Pension Rules, which prescribes that the pension is to be calculated on the basis of the emoluments last drawn by the employee. In normal circumstances, there is no difficulty in accepting and implementing the said rule. However, in the present case, it is to be seen whether the petitioner is entitled to get benefits of pension on the post of Asstt. Engineer. In the opinion of this Court, the petitioner is not entitled to get the benefit of pension on the basis of the pay scale drawn on the post of Asstt. Engineer. At the cost of repetition, it is made clear that on dismissal of WP No. 4533/2007, the reversion order came into force. Thus, the petitioner became Sub Engineer from the date of cancellation of promotion order. Merely because the petitioner has drawn salary on the post of Asstt. Engineer pursuant to an interim order will not bestow any right to him to enjoy the pension on the said post. I find support in my view from the judgment of Supreme Court in Kanoria Chemicals and Industries Ltd. v. U.P. SEB, reported in State of Gujarat v. Dilipbhai Shaligram Patil, (2006) 8, the Apex Court opined as under:-

"5. It is well settled that an order of stay granted pending disposal of a writ petition/suit or other proceedings, comes to an end with the disposal of the substantive proceedings and that it is the duty of the court in such a case to put the parties in the same position, they would have been but for the interim orders of the court. Any other view would result in the act or order of the court prejudicing the party for no fault of his and would also mean rewarding the writ petitioner in spite of his failure. Any such unjust consequence cannot be countenanced by the courts. (See Kanoria Chemicals and Industries Ltd. v. U.P. SEB)."

In Oriental Select Granite Pvt. Ltd. Vs. State of Karnataka and Others, , the Apex Court opined as under:-

It is thus to be seen that the petitioners'' contention that they carried on quarrying operations on the basis of the interim order of the High Court dated 24-10-1990 coupled with the final order of status quo dated 24-6-1994 is untenable for more reasons than one. Firstly, the writ petition was rendered infructuous on 18-6-1991 when the petitioners'' leases were renewed by the State Government. The interim order dated 24-10-1990 became ineffective with the renewal of the leases and it lost all force when the grant/renewal of leases by the State Government was struck down by the High Court. No reliance can also be placed on the final order in the writ petition as it was passed in a petition that was infructuous. Secondly, it was passed without any adjudication on the issues involved in the case and without determining the rights and liabilities of the parties.

(Emphasis Supplied)

On the basis of aforesaid dictum of Supreme Court, it is clear that it is the duty of the Court to put the parties to the same position as if there was no interim order by the Court. Any other view, as opined by the Supreme Court, will cause prejudice to the other side for no fault of his. If this duty is discharged by this Court, there is no manner of doubt that the clock is to be put back on the date the petitioner was reverted by order dated 13.7.2007.

The ancillary question is whether the petitioner is entitled for any relief ?

In Nava Bharat Ferro Alloys Ltd. Vs. Transmission Corporation of A.P. Ltd. and Another, the Apex Court opined as under:-

This Court then applied the principle of restitution as enunciated by the Privy Council in Rodger v. Comptoir D''Escompte de Parisand held that it will be the endeavour of the Court to ensure that a party who had suffered on account of a decision that is finally reversed should be put back in the same position as far as the same is practicable, in which he would have been if the decision of the Court adversely affecting him had not been passed. This Court observed: (Kerala SEB case SCC p. 608, para 24)

... In giving full and complete relief in an action for restitution, the court has not only power but also a duty to order for mesne profits, damages, costs, interest, etc. as may deem expedient and fair conforming to justice to be done in the facts of the case. But in giving such relief, the court should not be oblivious of any unmerited hardship to be suffered by the party against whom action by way of restitution is taken. In deciding appropriate action by way of restitution, the court should take a pragmatic view and frame relief in such a manner as may be reasonable, fair and practicable and does not bring about unmerited hardship to either of the parties.

(Emphasis Supplied)

A plain reading of this judgment shows that in the facts and circumstances of a case the Court may put back the parties in the same position "as far as same is practicable".

In view of this judgment, I am only inclined to hold that the petitioner is not entitled to get the pension as Asstt. Engineer for the reasons stated above. However, since the petitioner has worked as Asstt. Engineer till his retirement, no recovery etc. should be made from payments already made. In other words, the practicable view is that the petitioner''s salary as Asstt. Engineer shall not be recovered by the respondents. The claim of petitioner for pension and retiral dues as Asstt. Engineer is rejected.

Petition is disposed of with aforesaid direction.