# Devi Singh v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 170
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-17
- **Case number:** Writ A No. 21190 of 2016
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devi-singh-v-state-of-u-p-ors-49942
- **Pages:** 7

## Headnote

Law
-
Complying
with
directions/Execution of order - Promotion
- Arrears of salary - Whenever the
authorities are directed to extend all the
benefits which the petitioner would have
obtained,
had
he
not
been
illegally
deprived of them, it is not open for the
authorities to urge that he has not worked
and therefore he should not be paid salary
or be granted benefits. The proper course
for the authorities is to challenge that
order in the appeal. They cannot take this
plea in execution of that order. (Para 8)

In case the authorities are aggrieved by any
order passed by the Court of law, it is always
open for the authorities to challenge the same
in appropriate Court. However, in the facts of
the present case, the order dated 23.02.2012
has not been assailed, admittedly, by the
opposite parties, hence it has become final.
Without challenging the said order dated
23.02.2012, it is not open for the authorities, at
the time of execution, to assert that since the
3 All. Devi Singh Vs. State of U.P. & Ors.
171
petitioner has not worked, he would not be
granted the benefits. (Para 12)

Once the direction is issued by the
competent court, it should be obeyed
and
implemented
without
any
reservation. The authorities cannot be
permitted to not comply the direction
issued by the writ Court or to ignore
it. The only remedy available to the
party is that if he is aggrieved by the
order passed by the writ Court, he
may challenge the same by taking
appropriate course under law. (Para
12)

The order impugned dated 03.04.2012 is hereby
quashed. Respondents are directed to grant all
the
consequential
benefits
including
the
pensionary benefits as well as arrears of salary,
to the petitioner, as directed by the writ Court in
its order dated 23.02.2012. (Para 13)

Writ petition allowed. (E-4)

Precedent followed:

## Text

170 INDIAN LAW REPORTS ALLAHABAD SERIES
In such circumstances, filing of successive
representations would not extend the period
of limitation. The Tribunal has erred in law
in not deciding the plea of limitation
merely on the ground that the claim petition
had been admitted.

24. As section 5 (1) (b) of the U.P.
Public
Service
(Tribunals) Act
1976
provides that the provisions of the Uttar
Pradesh Act 1963 shall mutatis mutandis
apply to reference under section 4, as the
reference were a suit filed in the civil court,
Section 3 of the Limitation Act would
apply to it, which provides that a suit
instituted after the prescribed period of
limitation, shall be dismissed, although
limitation has not been set up as a defence.
The Tribunal has no power to condone the
delay in filing the claim petition. Therefore,
the claim petition filed after the expiry of
the limitation period has to be dismissed
and
it
cannot
be
entertained
and
adjudicated on its merits merely because it
had been admitted.

25. In view of the aforesaid
discussions, we are of the view that the
claim petition which was filed by the
respondent no. 2 before the Tribunal on
13.08.2016 challenging the punishment
order dated 05.05.2006 and the appellate
order dated 22.05.2008 was barred by the
period of limitation prescribed under
section 5 of the U.P. Public Service
(Tribunals) Act 1976 and the Tribunal erred
in entertaining the claim-petition and
allowing the same, without deciding the
plea of limitation on the ground that the
claim petition had been admitted. The
claim petition being barred by limitation
was liable to be dismissed as such.

26. In view of the aforesaid
discussion, the writ petition is allowed. The
judgment and order dated 06.02.2018
passed by Tribunal allowing the Claim
Petition No. 1624 of 2016 is hereby set
aside and the claim petition is dismissed.
----------
(2023) 3 ILRA 170
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.03.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ A No. 21190 of 2016

Devi Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Prabhat Kumar

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Complying
with
directions/Execution of order - Promotion
- Arrears of salary - Whenever the
authorities are directed to extend all the
benefits which the petitioner would have
obtained,
had
he
not
been
illegally
deprived of them, it is not open for the
authorities to urge that he has not worked
and therefore he should not be paid salary
or be granted benefits. The proper course
for the authorities is to challenge that
order in the appeal. They cannot take this
plea in execution of that order. (Para 8)

In case the authorities are aggrieved by any
order passed by the Court of law, it is always
open for the authorities to challenge the same
in appropriate Court. However, in the facts of
the present case, the order dated 23.02.2012
has not been assailed, admittedly, by the
opposite parties, hence it has become final.
Without challenging the said order dated
23.02.2012, it is not open for the authorities, at
the time of execution, to assert that since the
3 All. Devi Singh Vs. State of U.P. & Ors.
171
petitioner has not worked, he would not be
granted the benefits. (Para 12)

Once the direction is issued by the
competent court, it should be obeyed
and
implemented
without
any
reservation. The authorities cannot be
permitted to not comply the direction
issued by the writ Court or to ignore
it. The only remedy available to the
party is that if he is aggrieved by the
order passed by the writ Court, he
may challenge the same by taking
appropriate course under law. (Para
12)

The order impugned dated 03.04.2012 is hereby
quashed. Respondents are directed to grant all
the
consequential
benefits
including
the
pensionary benefits as well as arrears of salary,
to the petitioner, as directed by the writ Court in
its order dated 23.02.2012. (Para 13)

Writ petition allowed. (E-4)

Precedent followed:

1. Commissioner, Karnataka Housing Board Vs
C. Muddaiah, 2007 (7) SCC 689 (Para 8)

2. Food Corporation of India Vs S.N. Nagarkar,
AIR 2002 Supreme Court 808 (Para 9)

3. St. of Kerala & ors. Vs E.K. Bhaskaran Pillai,
(2007) 6 SCC 524 (Para 10)

Present petition challenges order dated
03.04.2012, passed by opposite party no.
2, which only provides notional promotion
without
arrears
of
salary
against
Subordinate Agriculture Service Group-II
(Class III) post since 24.01.1980 to the
petitioner.

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard Sri Prabhat Kumar, learned
counsel for the petitioner, learned Standing
Counsel for the State-opposite parties and
perused the record.

2. By means of this petition, the
petitioner has prayed for the following final
reliefs:

"a. Issue a writ, order or
direction in the nature of certiorari thereby
quashing the part of impugned order dated
3.4.2012 passed by opposite party no. 2 as
contained in Annexure No. 1 to this writ
petition, which only provides notional
promotion without arrears of salary against
Subordinate Agriculture Service Group-II
(Class III) post since 24.01.1980 to the
petitioner.

b. Issue a writ, order or direction
in the nature of mandamus commanding
and directing the opposite party no. 2 to
provide the petitioner regular promotion in
Subordinate
Agriculture
Service
GroupII(Class-III) post since 24.01.1980
along with 12% interest."

3. Learned counsel for the petitioner
submits that petitioner was appointed on
24.06.1966 in the Subordinate Agriculture
Service (S.A.S.) Group-III as Assistant Soil
Conservation Inspector in the office of
Bhomi Sanrakshan Adhikari, Etawah. He
was confirmed on 01.01.1974. He was
given promotion on 20.11.1999 in the
higher post of Group-II and he retired on
30.06.2005 in the pay Scale of Rs. 50008000/-. However, the petitioner was not
considered for promotion in time. The
opposite parties while considering the
promotion of the petitioner, have adopted
the pick and choose policy and given
promotion to number of employees who
were junior to the petitioner since 1980.
Similarly situated some persons filed Claim
Petition No. 613/(I)/(II)/80; Shiv Shanker
Tripathi and others Vs.State of U.P. and
others before the U.P. Public Service
Tribunal, which was allowed on 07.12.1985
and a direction for promotion including pay
172 INDIAN LAW REPORTS ALLAHABAD SERIES
allowances etc. was also given with
retrospective effect.

4. The order passed by the Tribunal
dated 07.12.1985 was challenged before
this Court by filing a Writ Petition No.
1782 of 1988; State of U.P. and another Vs.
Sri Sheo Shankar Tripathi and Others
which was upheld vide order dated
01.08.1991 passed by this Court. The order
of this Court dated 01.08.1991 was
challenged before Hon'ble Apex Court in
Special Leave Petition no.10199/92 which
was
also
dismissed
on
30.08.1996
confirming the order passed by the High
Court and the learned Tribunal.

5. In the meantime, some other
superseded employees filed a Claim
Petition No. 1079 of 2012 before the
learned Tribunal and that Claim Petition
was also allowed vide judgment and order
dated 19.10.2012 passed by the Tribunal.
The order of the Tribunal dated 19.10.2012
was again assailed by filing a Writ Petition
No. 384(SB) of 2013; State of U.P. and
another Vs. Satya Pal Singh and Another.
The Division Bench of this Court vide
order dated 18.03.2013 had again upheld
the order passed by the learned Tribunal.

6. Learned counsel for the petitioner
further submits that some more employees
who were similarly situated, like the
petitioner, had approached directly to this
Court by filing Writ Petition No. 6368 (SS)
of 1997; Gokaran Prasad Kanaujia and
others Vs. State of U.P. and Others, which
was allowed vide judgment and order dated
19th of May, 2006. The order is on record
(Annexure No. 3). After this, the petitioner
after representing the department had filed
a Writ Petition No. 986(SS) of 2012 which
was disposed of in terms of the judgment
and order dated 19th of May, 2006 passed
in Writ Petition No. 6368(SS) of 1997, vide
order dated 23.02.2012. The order dated
23.02.2012 passed by this Court in Writ
Petition No. 986(SS) of 2012 is extracted
below:

"Notice on behalf of opposite
parties has been accepted by the learned
Chief Standing Counsel.

The petitioners have approached
this Court under Article 226 of the
Constitution of India with the grievance
that they are entitled for the promotional
pay-scale from the date their juniors were
given in Subordinate Agriculture Services
Group-II (Class-III).

It is not disputed at the Bar that
identical controversy has been settled at
rest vide judgment and order dated
19.05.2006,
passed
in
Writ
Petition
No.6368 (S/S) of 1997.

The operative portion of the
judgment and order dated 19.05.2006 is
reproduced as under:-

"In the result, the writ petition
succeeds and is allowed. The order dated
03.03.1998 are hereby quashed and the
respondents are directed to consider the
claim of the petitioners to the post of S.A.S.
Group-II w.e.f. the date the juniors to the
petitioners have been promoted. Since the
petitioners have retired from service and
they are losers of pensionery benefits on
account of non-consideration of their
promotion, their cases for promotion be
considered with all consequential benefits
within a period of two months, from the
date a certified copy of this order is
produced before the authority concerned.
No order as to costs."

In view of the above, it is not
necessary
to
deal
with
the
entire
controversy at length again.

This writ petition is, therefore,
disposed of finally in terms of the judgment
3 All. Devi Singh Vs. State of U.P. & Ors.
173
& order dated 19.05.2006, passed in Writ
Petition No. 6368 (SS) of 1997. The
petitioners shall also be entitled for service
benefits provided by this Court while
deciding the controversy vide judgment and
order dated 19.05.2006 (supra).

No order as to costs."

7. In compliance of the order dated
23.02.2012, the impugned order dated
03.04.2012 has been passed by making
partial
compliance
and
consequential
benefits regarding arrears of salary, from
the date of promotion of juniors to the
petitioners, have been denied on the
principal of 'no work no pay' relying on the
Government Order dated 28.05.1997.

8. Learned counsel for the petitioner
submits that law in this regard has been
settled by plethora of judgments and it has
been held time and again by the Supreme
Court that whenever the authorities are
directed to extend all the benefits which the
petitioner would have obtained, had he not
been illegally deprived of them, it is not
open for the authorities to urge that he has
not worked and therefore he should not be
paid salary or be granted benefits. The
proper course for the authorities is to
challenge that order in the appeal. They
cannot take this plea in execution of that
order. Learned counsel for the petitioner
has relied upon the judgment of Supreme
Court reported in 2007(7) SCC 689;
Commissioner,
Karnataka
Housing
Board Vs. C. Muddaiah. Para 32 and 33
of the judgment are quoted herein below:

"32. We are of the considered
opinion that once a direction is issued by a
competent Court, it has to be obeyed and
implemented without any reservation. If an
order passed by a Court of Law is not
complied with or is ignored, there will be
an end of Rule of Law. If a party against
whom such order is made has grievance,
the only remedy available to him is to
challenge the order by taking appropriate
proceedings known to law. But it cannot be
made ineffective by not complying with the
directions on a specious plea that no such
directions could have been issued by the
Court. In our judgment, upholding of such
argument would result in chaos and
confusion and would seriously affect and
impair administration of justice. The
argument of the Board, therefore, has no
force and must be rejected.

33. The matter can be looked at
from another angle also. It is true that
while granting a relief in favour of a party,
the Court must consider the relevant
provisions of law and issue appropriate
directions keeping in view such provisions.
There may, however, be cases where on the
facts and in the circumstances, the Court
may issue necessary directions in the larger
interest of justice keeping in view the
principles of justice, equity and good
conscience. Take a case, where ex facie
injustice has been meted out to an
employee. In spite of the fact that he is
entitled to certain benefits, they had not
been given to him. His representations have
been illegally and unjustifiably turned
down. He finally approaches a Court of
Law. The Court is convinced that gross
injustice has been done to him and he was
wrongfully, unfairly and with oblique
motive deprived of those benefits. The
Court, in the circumstances, directs the
Authority to extend all benefits which he
would have obtained had he not been
illegally deprived of them. Is it open to the
Authorities in such case to urge that as he
has not worked (but held to be illegally
deprived), he would not be granted the
benefits? Upholding of such plea would
amount to allowing a party to take undue
174 INDIAN LAW REPORTS ALLAHABAD SERIES
advantage of his own wrong. It would
perpetrate injustice rather than doing
justice to the person wronged."

9. Learned counsel for the petitioner
has relied upon another judgment of
Supreme Court reported in AIR 2002
Supreme Court 808; Food Corporation
of India Vs. S.N. Nagarkar. Para 15 of the
judgment is as under:

"Learned counsel appearing on
behalf of the appellant submitted that this
was a case where notional promotion and
seniority was given to the respondent. In
such a case the concerned employee is
entitled to the pay scale of the promotional
post only with effect from the date he joins
the post and not from the date of his
promotion. He sought to rely on two
judgments of this Court reported in :
(1996) 7 SCC 533, State of Haryana and
others vs. O.P. Gupta and others and
(1989) 2 SCC 541, Paluru Ramkrishnajah
and others etc. vs. Union of India and
another. On the other hand counsel for the
respondent submitted that this is not a case
where this Court is called upon to consider
the submission urged on behalf of the
appellant. In the instant case, the writ
petition filed by the respondent was
allowed by judgment and order dated 6th
May, 1994 passed in Civil Writ Petition
No.4983 of 1993. That order attained
finality as it was not appealed from. In
execution
proceedings,
the
appellant
cannot go beyond the order passed by the
Court in the writ petition and, therefore,
what has to be considered is whether the
High Court was right in holding that in
terms of the order of the Court dated 6th
May, 1994 passed in Civil Writ Petition
No.4983 of 1993, the respondent is entitled
to the arrears of pay and allowances with
effect from the date of promotions. If the
answer is in the affirmative, the question
whether such relief ought to have been
granted cannot be agitated in execution
proceeding. We find considerable force in
the submission urged on behalf of the
respondent. In these proceedings it is not
permissible to go beyond the order of the
learned Judge dated 6th May, 1994 passed
in Civil Writ Petition No.4983 of 1993. The
execution application giving rise to the
instant appeal was filed for implementing
the order dated 6th May, 1994 and in such
proceeding, it was not open to the appellant
either to contend that the judgment and
order dated 6th May, 1994 was erroneous
or that it required modification. The
judgment and order aforesaid having
attained finality, has to be implemented
without questioning its correctness. The
appellant therefore, cannot be permitted to
contend in these proceedings that the
judgment and order dated 6th May, 1994
was erroneous in as much as it directed the
appellant to pay to the respondent arrears
of salary with effect from the dates of
promotion, and not from the dates the
respondent actually joined the promotional
posts."

10. Learned counsel for the petitioner
further relied upon the judgment of
Supreme Court reported in (2007) 6 SCC
524; State of Kerala and Others Vs. E.K.
Bhaskaran Pillai. Para 4 of the judgment
is quoted hereunder:

"Learned counsel for the State
has submitted that grant of retrospective
benefit on promotional post cannot be
given to the incumbent when he has not
worked on the said post. Therefore, he is
not entitled to any benefit on the
promotional post from 15.6.1972. In
support thereof, the learned counsel invited
our attention to the decisions of this Court
3 All. Devi Singh Vs. State of U.P. & Ors.
175
in Paluru Ramkrishnaiah & Ors. Vs. Union
of India & Anr. [(1989) 2 SCC 541],
Virender Kumar, G.M., Northern Railways
Vs. Avinash Chandra Chadha & Ors.[
(1990) 3 SCC 472] , State of Haryana &
Ors. Vs. O.P. Gupta & Ors. [ (1996) 7 SCC
533], A.K. Soumini Vs. State Bank of
Travancore & Anr.[ (2003) 7 SCC 238] and
Union of India & Anr. Vs. Tarsem Lal &
Ors. [ (2006) 10 SCC 145]. As against this,
the learned counsel for the respondent has
invited our attention to the decisions given
by this Court in Union of India & Ors. Vs.
K.V. Jankiraman & Ors.[ (1991) 4 SCC
109], State of A.P. Vs. K.V.L. Narasimha
Rao & Ors.[ (1999) 4 SCC 181], Vasant
Rao Roman Vs. Union of India & Ors.
[1993 Supp. (2) SCC 324] and State of U.P.
& Anr. Vs. Vinod Kumar Srivastava [(2006)
9 SCC 621]. We have considered the
decisions cited on behalf of both the sides.
So far as the situation with regard to
monetary
benefits
with
retrospective
promotion is concerned, that depends upon
case to case. There are various facets
which have to be considered. Sometimes in
a case of departmental enquiry or in
criminal case it depends on the authorities
to grant full back wages or 50 per cent of
back wages looking to the nature of
delinquency involved in the matter or in
criminal cases where the incumbent has
been acquitted by giving benefit of doubt or
full acquittal. Sometimes in the matter
when the person is superseded and he has
challenged the same before Court or
Tribunal and he succeeds in that and
direction is given for reconsideration of his
case from the date persons junior to him
were appointed, in that case the Court may
grant
sometime
full
benefits
with
retrospective effect and sometimes it may
not. Particularly when the administration
has wrongly denied his due then in that
case he should be given full benefits
including monetary benefit subject to there
being any change in law or some other
supervening factors. However, it is very
difficult to set down any hard and fast rule.
The principle 'no work no pay' cannot be
accepted as a rule of thumb. There are
exceptions where courts have granted
monetary benefits also."

11. Learned Standing Counsel has
opposed the writ petition and has submitted
that since the petitioner has not worked for
the period, therefore he has rightly been
granted notional promotion, however he
could not dispute the settled legal position
as argued by learned counsel for the
petitioner.

12. On due consideration to the
submissions advanced, perusal of the
record so also the aforesaid judgments of
the Supreme Court, I am of the view that
the law is settled in this regard. In case the
authorities are aggrieved by any order
passed by the Court of law, it is always
open for the authorities to challenge the
same in appropriate Court. However, in the
facts of the present case, the order dated
23.02.2012 passed in Writ Petition No.
986(SS) of 2012 has not been assailed,
admittedly, by the opposite parties, hence it
has become final. Without challenging the
said order dated 23.02.2012, it is not open
for the authorities, at the time of execution,
to assert that since the petitioner has not
worked, he would not be granted the
benefits as held by the Supreme Court in
the case of C. Muddaiah (supra). Law in
this regard has been settled time and again
that once the direction is issued by the
competent court, it should be obeyed and
implemented without any reservation. The
authorities cannot be permitted to not
comply the direction issued by the writ
Court or to ignore it. The only remedy
176 INDIAN LAW REPORTS ALLAHABAD SERIES
available to the party is that if he is
aggrieved by the order passed by the writ
Court, he may challenge the same by taking
appropriate course under law.

13. In view of the aforesaid settled
law, the writ petition succeeds and is
allowed. The
order
impugned
dated
03.04.2012 is hereby quashed. Respondents
are directed to grant all the consequential
benefits including the pensionery benefits
as well as arrears of salary, to the petitioner,
as directed by the writ Court in it's order
dated 23.02.2012.
----------
(2023) 3 ILRA 176
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.02.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ A No. 2000639 of 2008

Virendra K. Singh Chauhan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Piyush Asthana, Desh Deepak Singh,
Rajeev Singh, Smriti Pandey

Counsel for the Respondents:
C.S.C., Balram Yadav

A. Service Law - Disciplinary Proceedings
- Recovery from Retiral Benefits - Uttar
Pradesh Cooperative Societies Employees
Service Regulations, 1975 - There is no
provision in the Uttar Pradesh Cooperative
Societies Employees Service Regulations,
1975 for initiation or continuation of
disciplinary proceeding after retirement
nor is there any provision stating that in
case
misconduct
is
established,
a
deduction could be made from the retiral
benefits. (Para 19)

Once the petitioner has retired from service on
31.12.2001, there was no authority vested in
the corporation for continuing the departmental
proceeding even for the purpose of imposing
any reduction in the retiral benefits payable to
the petitioner. In absence of such an
authority,
it
is
held
that
enquiry/disciplinary
proceeding
had
lapsed and the petitioner was entitled to
full retiral benefits on retirement. As the
enquiry has lapsed, it is obvious that the
petitioner would have to get the balance of the
emoluments payable to him. (Para 20)

Writ petition allowed. (E-4)

Precedent followed:

1. Dev Prakash Tewari Vs U.P. Co-operative
Institutional Service Board, Lk & ors., (2014) 7
SCC 260 (Para 13)

2. Bhagirathi Jena Vs Board of Directors, OSFC
& ors., (1999) 3 SCC 666 (Para 13)

3. Brij Mohan Vs St. of U.P. & ors., Writ-A No.
42071 of 2016, order dated 16.01.2017 (Para
13)

4. U.P. St.Sugar Corp. Ltd. Vs Kamal Swaroop
Tondon, (2008) 2 SCC 41 (Para 15)

Present petition challenges order dated
20.02.2007, passed by respondent No. 3
and order dated 30.09.2003 with a further
prayer to issue a writ, order or direction in
the nature of mandamus commanding the
respondent No. 3 to release the amount of
Rs. 42,403/- along with interest of 14%
that has been illegally deducted.

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Desh Deepak Singh,
learned counsel for the petitioner, learned
Additional Chief Standing Counsel for
respondent No.1- State and Sri Balram