State Of U.P. vs Shri Mahesh Kumar & Anr.
2014 Latest Caselaw 1185 Del

         $~9
         * IN THE HIGH COURT OF DELHI AT NEW DELHI

         +              W.P.(C) 1460/2014 & CM No.3039/2014

         %                        Date of decision: 5th March, 2014

         STATE OF U.P.                                 ..... Petitioner
                            Through :     Mr. Anil Mittal, Adv.

                            versus

         SHRI MAHESH KUMAR & ANR.      ..... Respondents
                      Through : None.
         CORAM:
         HON'BLE MS. JUSTICE GITA MITTAL
         HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J. (Oral)

1. By a separate order we have dismissed the writ petition. We now pen down our reasons for doing so.

2. Before us the petitioners have assailed the order dated 1 st of February 2013 passed by the Central Administrative Tribunal in T.A.No.3/2007 with T.A.No.2/2007 after the same were remanded to it.

3. Shri Mahesh Kumar was working as a lecturer in Mathematics in the Lucknow University which job he gave up to join the UP Provincial Forest Service in the year 1952 as a direct recuit as an Assistant Conservator of Forests. In the year 1960, he was duly promoted to the post of Deputy Conservator of Forest. He was promoted to the post of Deputy conservator of Forest and

WP(C) No.1460/2014 page 1 of 9 when the All India Forest Services (IFS) was constituted, he was one of its first recruit in the U.P. Cadre. Shri Mahesh Kumar being the senior most Deputy Conservator of Forest was legitimately aspiring to be promoted to the post of Conservator of Forests, Grade-II with effect from 11th May, 1978. He was granted the selection grade with effect from 12th July, 1977 but for some reasons, the benefit thereof was not extended to him. Unfortunately with effect from 10th May, 1978, one day prior to his formal promotion to the post of Conservators of Forests he was compulsorily retired.

4. The Central Administrative Tribunal has noted that one Shri M.P. Tripathi, the then Conservators of Forests at the relevant time not only did not grant the actual benefit of selection grade to Shri Mahesh Kumar with effect from 12th July, 1977 but was responsible for his compulsory retirement. At the same time, his established junior Shri K.B. Srivastava was promoted to the said post on the very next date with effect from 11th May, 1978. The Tribunal has held that these actions on the part of Shri M.P. Tripathi established the element of malice on his part; speak volumes about the illegalities and the biased manner in which officials of the forest department of the U.P. Government had been working in the matter.

5. Shri Mahesh Kumar challenged his compulsory retirement in the Delhi High Court by way of a writ petition which came to be dismissed. The decision of the learned Single Judge was reversed

WP(C) No.1460/2014 page 2 of 9 by the Division Bench in LPA No.71/1978. By its order dated 22 nd May, 1979 the order of compulsory retirement dated 10 th May, 1978 was also set aside.

6. The present petitioners still did not grant Shri Mahesh Kumar his legitimate benefits and instead challenged the judgment of the Division Bench by way of Civil Appeal No.2759-6/1979 before the Supreme Court of India. This appeal was dismissed by the Supreme Court by an order dated 6th August, 1986 directing as follows:-

"These appeals by Union of India and State of U.P. are dismissed. The Respondent will be entitled to all allowances and other benefits which he was entitled while in Service upto 31st July 1984, i.e, the date of superannuation, as if he was on duty. The money if any already paid will be adjusted.

All interim orders stand vacated.

Pay, pensions and Gratuity and other benefits be paid to the respondent.

There will be no order as to costs."

7. The Tribunal has noticed that upon a conjoint reading of the order of the Supreme Court and that of this court, Shri Mahesh Kumar became entitled to various benefits from the date when his established junior Shri K.B. Srivastava was granted the same which would include the following:-

(i) Selection Grade with effect from 12th July, 1977 (for the post of Deputy Conservator of Forests)

WP(C) No.1460/2014 page 3 of 9

(ii) Conservator of Forests Grade-II with effect from 11th May, 1978 and

(iii) Conservator of Forests Grade - I with effect from 9th of June, 1983.

8. Shri Mahesh Kumar was still not granted any relief by the present petitioners and he went on making representations which were of no avail. Finally, Shri Mahesh Kumar was compelled to seek relief by way of W.P.Nos.997/1999 and 998/2006. By an order dated 7th February, 2006, these writ petitions were transferred to the Central Administrative Tribunal whereupon they were renumbered as T.A.No.03/2007 (WP No.997/1999) and T.A.No.02/2007 (WP No.998/2006). The applicant claimed retrospective promotions and selection grade, etc in T.A.No.03/2007.

9. It appears that by an order dated 8th November, 2008, the Central Administrative Tribunal disposed of the T.A.Nos.3/2007 and 02/2007 and by an order dated 7th September, 2010 were remanded to the tribunal.

10. The Tribunal has noted that while the writ petitions were pending before this court, the order dated 9th January, 2001 had been passed summoning the original records pertaining to Shri Mahesh Kumar. The impugned order records that these documents and records could not be produced by the respondents before it as well as some of them were ostensibly destroyed specially that pertaining to the DPC held in 1977 when Shri Mahesh Kumar was

WP(C) No.1460/2014 page 4 of 9 considered and granted the selection grade on his own merit by a duly constituted DPC in accordance with the rules.

11. The material facts which have been considered by the Central Administrative Tribunal are the fact that Shri Mahesh Kumar was favourably considered by DPC in accordance with grant of selection grade and he was found fit with effect from 12 th July, 1977. Shri Mahesh Kumar was deprived of the benefits and thereafter he was compulsorily retired within a year or so. As such, after 10th May, 1978, he was not in service till he attained the age of superannuation on 31st July, 1984.

12. The respondents claim to have conducted some kind of review DPC on 1st of November 1995 as in para 6 of the impugned judgment, the Tribunal has noted that this DPC was based only on a piece of typed paper giving relevant entries in the so called character rolls of Shri Mahesh Kumar at one page beginning from 1966-67 till 1976-77.

13. Shri Mahesh Kumar had filed an affidavit dated 9th December, 2010, which was not rebutted by the present petitioners, stating that some of the entries reflected even on that piece of paper had already been expunged by judicial orders and the same were taken into consideration by the review DPC held on 1st of November 1995.

14. The Tribunal perused the minutes of the meeting held on 1 st of November, 1995. Given the fact that on the same date confidential report and the service record of the deceased applicant,

WP(C) No.1460/2014 page 5 of 9 he was considered and found fit for selection grade for the post of Deputy Conservator of Forests as on 12th July, 1977; the fact that selection grade is granted to an officer, only on the basis of merit and as per rules; that within the span of 10 months or so, Shri Mahesh Kumar was compulsorily retired from service and therefore, there was no question of writing any ACRs till the date of his superannuation in the year 1984. It was highly contradictory on the part of the respondents not to grant the benefit of promotions and selection grade etc. from the date his established junior Shri K.B. Srivastava was granted the same.

15. We find that the tribunal has noted that it was not the case of the respondents that the merit of Shri Mahesh Kumar suddenly and drastically deteriorated after 12th July, 1977 so as to deprive him of the promotion in question. The Tribunal has also noted the letter dated 17th November, 1992 written by the Conservator of Forests to the Principal Chief Conservator of Forests, Lukhnow, U.P. on the above lines and stating that the order of the court would be complied with and the matter would be solved. Approval of this action was sought.

16. In this background, by the impugned order, the Tribunal has set aside and quashed the DPC minutes dated 1st November, 1995 and allotted the T.A.No.3/2007 directing the respondents to extend the benefit of the selection grade and promotions within the period of five months from the date of receipt of the order. The Tribunal has directed the respondents to recalculate the pay, pensionary

WP(C) No.1460/2014 page 6 of 9 benefits, family pension based on the pay scale of the promoted posts with interests @ 10% per annum to be paid to the applicant from the dates claimed in the prayer that is from the dates when the immediate junior to shri Mahesh Kumar was granted the same within a period of five months.

17. The Tribunal has noted in the impugned order that in the preamble as well as the prayers in the writ petition reveal that the State of U.P. was challenging the order of the tribunal in question that is order dated 8th November, 2008 only to the extent that the report of the selection committee was sought to be set aside holding that Shri Mahesh Kumar was entitled to the aforenoticed promotions on the stated dates.

18. However, the prayer of the applicant regarding grant of pay scale of Rs.3700-5000 with effect from 1st November, 1986 and further upgradations, as per the successive Central Pay Commissions' recommendations with effect from 1st Jauuary, 1996 and 1st January, 2006 remain challenged.

19. In this background by the order dated 8th November, 2008, the High Court directed the Central Administrative Tribunal to re- hear the matter mainly on the prayers made by the applicant in T.A.No.03/2007.

20. The tribunal has noted the order dated 31st December, 2012 passed in T.A.No.02/2007 whereby, after analyzing various details and reproducing the prayer at the instance of the present petitioners, the Tribunal held that respondents would make the

WP(C) No.1460/2014 page 7 of 9 final calculations of the amounts payable in terms of the relief prayed for and granted in T.A.No.02/2007 and file an affidavit in this regard.

21. The Tribunal has considered the manner in which the present petitioners were proceeding and also that they had wrongly done the fixation and that their actions were erroneous and contrary to the prior orders of the tribunal dated 8th November, 2008 and 31st January, 2012 and that of the High Court dated 7th September, 2010. In this background, the Tribunal issued the following directions:-

"17. In this view of the matter, we have no hesitation in holding that the prayer of the applicant that he be granted pension, pay and arrears etc. after applying correct equivalence of pay in the pay scale of Rs.3700-

5000 w.e.f. 10.01.1986 as per notification dated 13.3.1987; and further refix it as per notification dated 17.10.1997 read with Govt. of India's order dated 17.12.1998 w.e.f. 01.10.1996. It is needless to say that this aspect has become final and the respondents are invariably required to recalculate the pay, pension family pension and arrears etc. of the applicant from the respective dates as mentioned just above and also take it to its logical end by giving corresponding pay revision, as per the recommendations of the 6th Central Pay Commission w.e.f. 01.10.2006. it is clarified that the said arrears of pay, pension and family pension should be re-worked by the respondents, strictly in terms of the prayer made by the applicants in TA No.02/2007 and also the directions given herein above with 10% interest on the pay, pension, family pension and arrears, within a period of five months from today, as per directions already given in TA No.03/2007. In fact, the learned

WP(C) No.1460/2014 page 8 of 9 counsel for applicant has insisted to grant 18% interest but keeping in view the totality of facts and circumstances of the case and the fair approach of Shri Anil Mittal, learned counsel for the respondents, in the whole matter, we grant 10% interest to the applicant from the respective dates as mentioned above, till the actual payment is made."

22. It is noteworthy that after seeking justice for a period of 26 years from 1978, Shri Mahesh Kumar expired in the year 2004. Thereafter his legal heirs have been pursuing the litigation. Despite passage of almost 36 years from the date when cause of action arose in favour of late Shri Mahesh Kumar, justice still eludes the present respondents who are the legal heirs of the deceased.

In view of the above discussion, this writ petition and application are dismissed being devoid of merits.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE MARCH 05, 2014/mk

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