State of Uttar Pradesh and others vs Bidhi Chand Gupta

C.K. Prasad, CJ and D.K. Arora, JJ.—Respondentsappellants, aggrieved by order dated 29.7.2008 passed by a learned Single Judge in Writ Petition No.2669 (S/S) of 1991, have preferred this special appeal under Rule 5 Chapter VIII of the Allahabad High Court Rules.

Short facts giving rise to the present appeal are that the writ petitionerrespondent herein was granted adhoc promotion as Assistant Development Officer (Cooperative) by order dated 15.11.1988 for a period of 89 days. By various orders of the subsequent dates, same was extended and lastly it was extended by order dated 12.12.1990. Aggrieved by nonextension of his promotion, respondent filed Writ Petition No.2669 of 1991 before this Court along with an application for grant of interim relief. This Court by order dated 1.5.1991 directed for respondent''s continuance on the post of Assistant Development Officer (Cooperative). In the light of the aforesaid order, respondent continued to the post of Assistant Development Officer (Cooperative). Before disposal of the writ application, he retired on 31.1.1996 on attaining the age of superannuation.

It seems that the persons junior to the respondent were promoted to the post of Assistant Development Officer from an earlier date, i.e., w.e.f. 7.4.1978. Respondent, aggrieved by the same, filed Writ Petition No.1048 (SS) of 1997 (Bidhi Chand Gupta Vs. State of U.P. & Others) before this Court. This Court by order dated 30.9.1999 disposed off the said writ petition in terms of the order dated 11.5.1999 passed in Writ Petition No.4419 (SS) of 1996 (Shyam Bihari Srivastava and others Vs. State of Uttar Pradesh and others).

It is relevant here to state that while disposing off Writ Petition No.4419 (SS) of 1996, this Court had, inter alia, observed that the employees shall not be entitled to arrears of salary and that observation was made in the light of the concession made by them and it was further observed that the employees'' pension shall be fixed taking into account the date of promotion, as 7.4.1978, but they shall not be entitled for any arrears of salary. In the light of the aforesaid order of this Court, by order dated 15.2.2001, respondent was notionally promoted to the post of Assistant Development Officer (Cooperative) with effect from 7.4.1978.

As the respondent had retired during the pendency of the writ petition, he filed an application for amendment in the writ petition and sought various other reliefs including the relief for grant of selection grade by way of granting one additional increment in terms of paragraph 3 (9) and (10) of the Government Order dated 3.6.1989.

Learned Single Judge considered the prayer of the respondent and by the impugned order directed that the respondent shall be entitled for pension as admissible to the post of Assistant Development Officer (Cooperative) and further the pension is to be calculated taking into account the Government Order dated 3.6.1989.

The appellants are aggrieved by that portion of the impugned order passed by the learned Single Judge, whereby direction has been given to provide benefit to the respondent taking into account the Government Order dated 3.6.1989.

Mr. Mukund Tiwari, learned Additional Chief Standing Counsel, appearing on behalf of the appellants, submits that as the respondent had not worked continuously for 10 years, the benefit as provided under paragraph 3 (9) of the aforesaid Government Order, shall not be available to him and the learned Single Judge erred in directing for giving the aforesaid benefit.

Mr. R.K. Srivastava, learned counsel appearing on behalf of the respondent, submits that in view of the earlier order of this Court, the respondent may not be entitled for the arrears of salary, but for the purpose of fixation of pension, the benefit flowing from the Government Order dated 3.6.1989, i.e., grant of one additional increment, shall be available to him.

We have considered the rival submission of the parties and the submission made by Mr. Tiwari, learned counsel for the appellants, does not commend us.

Undisputedly, this Court, in the earlier writ petition filed by the respondent, had categorically directed for grant of pensionary benefit and for fixation of pension w.e.f. 7.4.1978. Once it is done, the respondent shall be entitled to the benefit of the Government Order referred to above.

We are of the opinion that the learned Single Judge rightly directed for grant of benefit taking into account of the aforesaid Government Order.

We are of the opinion that the consideration of the matter by the learned Single Judge does not suffer from any error calling for interference in this appeal.

In the result, we do not find any merit in this appeal. It is dismissed accordingly, without any order as to costs.