Allahabad High Court
Chandrachur Divakar Dutta vs State Of U.P. Thru Principal ... on 23 April, 2013
Bench: Shabihul Hasnain
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 6
Case :- SERVICE SINGLE No. - 7817 of 2004
Petitioner :- Chandrachur Divakar Dutta
Respondent :- State Of U.P. Thru Principal Secretary Home And 3 Ors
Petitioner Counsel :- H.R Shukla,Om Prakash Mishra
Respondent Counsel :- C.S.C
Hon'ble Shabihul Hasnain,J.
Heard Sri Om Prakash Mishra, learned counsel for the petitioner and learned Standing counsel.
Petitioner had filed this writ petition originally in the year 2004 praying for a writ of mandamus whereby opposite parties were to be commanded to correct the service records of the petitioner deeming him to be Sub Inspector even after 21.8.1988 in compliance of order dated 22.5.1989 passed by the selection committee as referred to in annexure No.4 to the writ petition. He has further prayed that the opposite parties may be directed to revise the pay and pension of the petitioner w.e.f. 28.1.1988 and 1.3.1989 respectively and to pay arrears as well. Lateron by way of amendment the petitioner has challenged the reversion order dated 22.9.2008 passed by the D.I.G., Establishment, Civil Police, Uttar Pradesh which has been annexed with amendment affidavit as annexure No.8 to the writ petition. He has also prayed for quashing of the reversion order dated 28.1.1988 passed by Senior Superintendent of Police, Azamgarh so far it relates to the petitioner.
The petitoiner along with others has been churning the course of justice from the High Court to Hon'ble Supreme Court. Despite his attempts to get favourable orders either from the High Court or from the Supreme Court, he retired without any benefit either by the department or from the Court.
By an interim order of this Court the opposite parties were directed to decide the case of the petitioner after giving him opportunity of hearing. This order was passed on 8.2.2008. The opposite parties rejected the case of the petitioner on 22nd September, 2008 and this rejection order has been challenge by way of amendment as mentioned above. The rejection order is in consonance with the counter affidavit filed by the opposite parties.
The case of the opposite parties is that the petitioner has been reverted on 28.1.1988 but by a direction of Hon'ble Supreme Court he was called for an interview on 19.7.1988. The result of the interview was declared on 22.5.1989 but the petitioner had retired on 28.2.1989. Since the petitioner had retired prior to the declaration of the result hence he could not join on the post of Sub Inspector prior to his retirement and, as such, he retired as Head Constable on which he had been reverted on 28.1.1988. The case of the opposite parties is that since the petitioner retired as Head Constable, pension should be calculated on the last pay drawn as Head Constable and not as Sub Inspector on which post he could not join in pursuance of the select list.
This fact has not been denied by the opposite parties that petitioner had participated in the selection and was declared fit. Rather, in paragraph 9 of the counter affidavit it has come that the petitioner was found fit by the selection committee in the interview. The petitioner counsel argues that in case the result of the selection committee would have come two months earlier the petitioner would have benefited by the order of the select list. He also says that there was an order of Hon'ble Supreme Court passed on 6.9.1985 in which it was directed that the opposite parties will not revert the persons who have been promoted on ad-hoc bass. However, the petitioner was reverted on the post of Head Constable on 19.4.1985. Although it is not clear as to when he was promoted once again but there is an order on record dated 28th January, 1998 passed by Senior Superintendent of Police, Azamgarh by which the petitioner has been once again reverted on the post of Head Constable. This fact has come in the counter affidavit submitted by the opposite parties as well as the rejection order of 2008. Rejection order clearly mentions that the petitioner was although found fit but the benefit could not be given because he had retired prior to the date of declaration of the result. The Court feels that the petitioner had approached Supreme Court twice; first on 19th April, 1985 and secondly on 26.2.1986. ??th the orders had directed the opposite parties to constitute a selection committee. In the first order Hon'ble Supreme Court had directed that petitioner will not be reverted and status-quo will be maintained.
Reversion of the petitioner despite orders of the Supreme Court was not only illegal but also contemptuous. This arbitrary reversion has caused all the harm to the petitioner. The petitioner had participated in the selection committee, he was found suitable but the declaration of result was not in the hands of the petitioner, hence, the benefit of result can not be denied to the petitioner.
The Court feels that keeping in view the spirit of the orders of Hon'ble Supreme Court and the facts of the case, the petitioner should be treated to have retired from the post of Sub Inspector giving him the benefit of notional promotion to that post. Since the petitioner has not worked on the post of Sub Inspector between 1988 till the date of retirement, salary of that period on the post of Sub Inspector will not be admissible to him. However, his pensionary benefits should be calculated treating him to have retired from the post of Sub Inspector. All consequential benefits from the date of his retirement shall be calculated on that account. The order dated 22.9.2008 is hereby quashed.
The petition is allowed.
Order Date :- 23.4.2013
RKM.
