Dr. Ramji Pandey S/O Late J.N. ... vs State Of U.P. & Others
2017 Latest Caselaw 3861 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R 
 
Court No. - 37
 

 
Case :- WRIT - A No. - 3334 of 2009
 

 
Petitioner :- Dr. Ramji Pandey S/O Late J.N. Pandey
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Sudha Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

Heard Sri N.K. Pandey, learned counsel for the petitioner and the learned Standing Counsel, Sri D.K. Tripathi for the respondents.

Two affidavits have been filed, one on behalf of the respondents no. 1 and 2 and the other affidavit has been filed on behalf of respondent no. 4. A rejoinder affidavit has been filed by the petitioner bringing on record the judgment of Hon'ble the Apex Court in the case of State of U.P. and others Vs. Dr. B.B.S. Rathore, 2008(9) ADJ 564 (DB) and other petitions decided on 24th July, 2014.

The petitioner, who was appointed as a Medical Officer on 20th January, 1973 retired as a Joint Director on 31st January, 2006.

There was a dispute of seniority which had its impact on promotion as well as other consequential benefits including fixation of pay etc. This dispute of the entire cadre travelled up to the Apex Court and the decision was rendered in the case of Dr. Chandra Prakash and another Vs. State of U.P. and others 2002 (10) SCC Page-710. The benefits that were extended by the Hon'ble Apex Court are contained in page-48 to the writ petition which is extracted hereinunder :-

"48. We accordingly allow the writ petitions and declare that (1) the writ petitioners are not within the purview of the 1979 Rules; (2) the State Government will fix the seniority of all doctors in the PMHS cadre from the date of the orders of their initial appointment within a period of six weeks from the date of this order and give all consequential benefits including promotions and positions on the basis of such seniority list; and (3) those doctors who were selected in 1972 and 1977-78-79 by PSC and who were not issued any orders of appointment and joined the service on the basis of Tandon case will be treated as having been appointed on the date that they actually joined the service and their seniority will be counted from that date. There will be no order as to costs."

The petitioner contends that pursuant to the judgment of Hon'ble the Apex Court, the claim of the petitioner was also considered and an order came to be passed on 20th May, 2005 whereby the petitioner was designated as Joint Director and was extended the benefits of the Senior Grade Medical Officer with effect from 27th May, 1982 and in the grade of Joint Director with effect from 10th May, 1990.

The petitioner in the present writ petition relying on the rules promulgated on 11th August, 2004, copy whereof has been filed along with the writ petition urges that the consequential benefits as extended by the Supreme Court would also include all such promotions to which the petitioner is entitled over and above as Joint Director namely on the post of Additional Director and Director (Medical, Health and Family Welfare).

The petitioner was very much in service when he moved a representation on 13 July, 2005, copy whereof has been filed as Annexure-7 to the writ petition. The petitioner's representation practically remained unattended and he retired on 31st January, 2006 whereafter his pay was fixed according to the respondents on 5th September, 2008.

The counter affidavit filed on behalf of the respondent nos. 1 and 2 recites that the State Government issued Government Orders on 30.12.2005, 26.10.2005 and 17.08.2007 regarding fixation of pension and consequently, the pay scale of the petitioner was also fixed on 5th September, 2008.

On the issue relating to the claim of the petitioner for his notional benefits of promotion as Additional Director and Director as well as consequential pecuniary benefits, the counter affidavit recites that since there was another writ petition filed before this Court where no arrears of salary was made admissible or payable on the principle of "no work, no pay", the same was not given to the petitioner, as against the said judgment, an SLP had been filed before the Apex Court by the State questioning the grant of notional promotion as well.

In the rejoinder to the counter of the State, the judgment of the Hon'ble Apex Court in the case of State of U.P. and others Vs. Dr. B.B.S. Rathore(supra) has been placed before us. Learned counsel for the petitioner contends that the aforesaid judgment of the Apex Court now settles the issue and therefore, the petitioner should be extended the benefit of notional promotion as Additional Director as well as Director together with arrears of salary in respect thereof. His pension should also be re-fixed accordingly.

Learned counsel for the petitioner has also cited a Division Bench judgment in the case of Dr. Gulab Chandara Gupta Vs. State of U.P. through Chief Secretary, Medical Health and Family Welfare and others in Writ Petition No. 42421 of 2006 decided on 09.11.2016 where also the benefits of notional promotion had been extended. However, the benefits of salary had not been extended which the learned counsel contends was on account of the Court having not noticed the judgment in the case of State of U.P. and others Vs. B.B.S. Rathore (supra). He therefore, submits that the issue of notional promotion having been settled and arrears of salary having also been given, the respondents are bound to extend the said benefit to the petitioners more so when juniors to the petitioner have also been extended this benefit.

Learned Standing Counsel, on the other hand contends that the judgment of Hon'ble the Apex Court does not by itself ipso facto extend the said benefit to the petitioner as urged and the salary has been denied in the case of Dr. Gulab Chandara Gupta Vs. State of U.P. (supra). Learned Standing Counsel submits that it is evident from the recital contained in the judgment of the Hon'ble Apex Court where it has been said that it is made clear that with regard to others who have not been granted arrears of salary and have not moved before any other Court of law, no opinion has been expressed in respect of such persons and therefore, an automatic claim would not be admissible and shall be determined only on the merits of each case. Learned Standing Counsel, therefore, submits that the petitioner cannot be extended the said benefits and the writ petition deserves to be dismissed.

We have considered the submissions raised and what we find from the ratio of the judgment relied on by the learned counsel for the petitioner is to the effect that the issue of notional promotion has to be answered in favour of the petitioner. The petitioner having been extended the benefit of the judgment of the case of Dr. Chandra Prakash (supra) is entitled to all the consequential benefits of notional promotion which has been reinforced with the judgment in the case of Dr. Gulab Chandara Gupta (supra) and further the issue with regard to arrears of salary stands concluded with the judgment in the case of State of U.P. and others Vs. Dr. B.B.S. Rathore(supra). The observations made by the Apex Court about not extending the benefit to all the cases is circumscribed by the direction contained in the order of the Supreme Court itself which states that the judgment shall not apply in the case of those persons who have not moved before any other Court of law or this Court. We may clarify that the present writ petition was filed in the year 2009 and therefore, the petitioner had approached this Court much before the judgment rendered by the Apex Court in the case of State of U.P. and others VS. B.B.S. Rathore(supra). Consequently, the ratio of the said decision has to be applied on the facts of the present case to extend the said benefits as was extended in the aforesaid judgment of the Apex Court. It may also be noted that the benefits which had been extended earlier either under the Court's order or by the State Government were also in respect of those persons who had retired whereas in the present case, the petitioner was still in service when he moved his representation for the said benefits.

Consequently, the writ petition is allowed. A direction is issued to the respondents to grant notional benefits of promotion to the petitioner as Additional Director and Director as and when it falls due in accordance with the rules as notified on 11th August, 2004 and the pay scale shall be re-fixed which shall be complied with by making payment of arrears of salary on such re-calculation as expeditiously as possible preferably within three months from today. The consequential benefits of pension, gratuity and other retiral dues shall also be available to the petitioner to that effect. In the event the payment is delayed beyond three months, the same shall carry 6% simple interest from the date of judgment to the date of payment. 

The writ petition is accordingly, allowed with the aforesaid directions.

Order Date :- 31.8.2017

Sumit S