# Hira Lal v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1645
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-11-19
- **Case number:** Civil Misc. Writ Petition No. 23175 of 2012
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hira-lal-v-state-of-u-p-and-ors-42861
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-Service lawpromotional
pay
scale-entitlementexplained-petitioner got twice promotional
order-but failed to avail on personal
ground-held-not entitled for benefits of
promotional pay-reasons discussed.

Held: Para-19
Even otherwise, coming on merits, it is
evident that explanation 3, provided in G.O.
Dated
12.5.1997,
disentitle
petitioner,
benefit of time bound scale/promotional
scale for the reason that he has forgone
promotion and therefore, not a person, who
has suffered on account of stagnation due
to lack of promotional avenues. In my view,
grievance of petitioner that he should be
given higher scale ignoring his voluntarily
forgoing promotion and that too twice,
lacks substance and is not tenable either on
equity or in law, otherwise. It is not a case
where petitioner can be said to have
suffered on account of any laxity on the
part of respondents but looking to policy,
object and purpose of grant of time bound
scale/promotional
scale
i.e.
to
avoid
stagnation and open higher avenues to the
employees, who are not able to avail actual
opportunity of promotion to higher post, to
be compensated by giving higher pay scale.
The petitioner having not suffered the same
for his own volition, cannot be allowed to
complain. Since it is for something he
deserve to blame himself.

Case Law discussed:
2004(1) SCC 347; 2006(11) SCC 464; J.T.
2007 (4) SC 253; J.T. 1994(6) SC 71; 1995(5)
628; AIR 1961 SC 993; AIR 1976 SC 2617;
1976(3) SCC 579; AIR 2007 SC 1330; 2008(4)
ESC 2423.

## Text

3 All] Hira Lal Vs. State of U.P. and Ors.
1645
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.11.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 23175 of 2012

Hira Lal. .Petitioner
Versus
State of U.P. and Ors... Respondents

Counsel for the Petitioner:
Sri Govind Krishna, Sri Abhishek Krishna
Sri Rajendra Kumar

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Service lawpromotional
pay
scale-entitlementexplained-petitioner got twice promotional
order-but failed to avail on personal
ground-held-not entitled for benefits of
promotional pay-reasons discussed.

Held: Para-19
Even otherwise, coming on merits, it is
evident that explanation 3, provided in G.O.
Dated
12.5.1997,
disentitle
petitioner,
benefit of time bound scale/promotional
scale for the reason that he has forgone
promotion and therefore, not a person, who
has suffered on account of stagnation due
to lack of promotional avenues. In my view,
grievance of petitioner that he should be
given higher scale ignoring his voluntarily
forgoing promotion and that too twice,
lacks substance and is not tenable either on
equity or in law, otherwise. It is not a case
where petitioner can be said to have
suffered on account of any laxity on the
part of respondents but looking to policy,
object and purpose of grant of time bound
scale/promotional
scale
i.e.
to
avoid
stagnation and open higher avenues to the
employees, who are not able to avail actual
opportunity of promotion to higher post, to
be compensated by giving higher pay scale.
The petitioner having not suffered the same
for his own volition, cannot be allowed to
complain. Since it is for something he
deserve to blame himself.

Case Law discussed:
2004(1) SCC 347; 2006(11) SCC 464; J.T.
2007 (4) SC 253; J.T. 1994(6) SC 71; 1995(5)
628; AIR 1961 SC 993; AIR 1976 SC 2617;
1976(3) SCC 579; AIR 2007 SC 1330; 2008(4)
ESC 2423.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Govind Krishna,
learned counsel for the petitioner at great
length.

2. The writ petition is directed
against orders dated 10.3.2003 and
28.11.2011 whereby petitioner has been
denied benefit of promotional pay scale
on the ground that since he was actually
promoted on higher post but voluntarily
forgo his promotion, therefore, in view of
Government
Order
dated
12.5.1997,
clarification no.3, promotional scale is not
admissible to him.

3. Sri Govind Krishna, learned
counsel for the petitioner submitted that
petitioner forgo promotion only for the
time being and that too for a certain
period. It cannot be construed so as to
disentitle him for promotional scale, for
all times to come.

4. The facts in brief necessary for
proper adjudication of this case are as
under:

5. The petitioner was appointed as
Junior Clerk on 23.7.1973 in the office of
District
Saving
Officer, Ghazipur.
In
ordinary course of functioning, he became
due for promotion to the post of Assistant
Saving Officer. The competent authority,
vide order dated 17.9.1992, promoted him on
the post of Assistant Saving Officer and
posted him at Basti. The petitioner, who was
1646 INDIAN LAW REPORTS ALLAHABAD SERIES
working at Ghazipur, by letter dated
22.9.1992, informed respondents competent
authority
that
due
to
his
family
circumstances, he is not inclined to go on
promotion
and
therefore,
is
forgoing
promotion for a period of three years.
Thereafter, his promotion on the post of
"Senior Clerk" was made by competent
authority vide order dated 21.9.1994 but the
petitioner, by letter dated 28.9.1994, again
requested competent authority not to compel
him to go on promotion and allow him to
forgo the said promotion. Consequently
promotion order dated 21.9.1994 was
cancelled vide order dated 7.10.1994.

6. It is not in dispute that matter of
forgoing promotion twice attained finality
and the petitioner never felt aggrieved
thereto.

7. The State Government issued
Government Order (hereinafter referred to
as "G.O.") dated 8.3.1995 for providing
benefit of personal promotional scale and
one additional increment to the employees
satisfying certain conditions provided
therein, read with earlier Government
Order dated 3.6.1989. Some amendment
was made by Government Order dated
5.2.1997. However, there appears to be
some anomaly/difficulty in implementing
the aforesaid Government Order and
certain clarifications were required, which
were so clarified by Government vide
G.O. Dated 12.5.1997. The clarification
no.3 thereof categorically provides that if
a person is actually promoted on a higher
post but declined to take over charge on
the promoted post, such person would not
be entitled for the benefit of promotional
pay scale on the basis of length of service
for the reason that personal promotional
scale and increments have been made
admissible vide G.O. dated 8.3.1995 and
5.2.1997, to give relief to employees
suffering on account of stagnation and
lessor promotional avenues but where
such
opportunity
actually
became
available
to
an
employee
but
he
voluntarily declined to accept such
promotion, it cannot be said that such an
employee is suffering on account of
stagnation.

8. Para 3 0f G.O. Dated 12.5.1997
reads as under:

=qfV

izksUufr in ij dk;Z&Hkkj xzg.k djus ls budkj
djus okys deZpkfj;ksa dks Hkh oS;fDrd :i ls lsok
vof/k ds
 vk/kkj ij izksUufr osrueku dh =qfViw.kZ Lohd`frA

Li"Vhdj.k 3& fdlh deZpkjh dh okLrfod izksUufr
mPp in ij gksus dh n'kk esa ;fn og izksUufr ds in
dks xzg.k ugh djrk gS vFkok izksUufr ds in ij
tkus ls budkj djrk gS rks ml frfFk rFkk mlds
i'pkr~ dh frfFk ls lsok vof/k ds vk/kkj ij
lsysD'ku xzsM ds ykHk ds :i esa ,d osru&o`f)
vFkok oS;fDrd izksUufr@vxyk osrueku dk ykHk
vuqeU; ugh gksxkA bl laca/k esa ;g Hkh Li"V fd;k
tkrk gS fd lsysD'ku xzsM@lsysD'ku xzsM ds ykHk ds
:i esa ,d vfrfjDr osru&o`f) rFkk oS;fDrd
izksUufr osrueku@vxys mPp osru eku laca/kh ykHk
deZpkfj;ksa dks izksUufr ds volj ds vHkko dks
n`f"Vxr j[krs gq, iznku fd;s x;s gS] vr% okLrfod
izksUufr ls budkj djus okys deZpkfj;ksa ds ekeys esa
lsok esa o`f)jks/k ugh ekuk tk ldrkA

9. It appears that ignoring G.O.
Dated 12.5.1997, Additional Director,
National Savings, U.P. Lucknow, passed
an order on 18.10.2000 giving personal
promotional scale of Rs.1200-2040 to
petitioner w.e.f. 1.5.1990 and further
extended
benefit
of
one
additional
increment w.e.f. 1.5.1995. The petitioner's
salary was fixed at the stage of Rs.1380
w.e.f. 1.5.1995. The aforesaid order was
passed with specific reference to G.O.
3 All] Hira Lal Vs. State of U.P. and Ors.
1647
dated 8.3.1995 and 5.2.1997, which
clearly show that clarification provided by
State Government vide G.O. dated
12.5.1997 stood omitted or ignored by
Additional Director while passing order
dated 18.10.2000.

10. The petitioner having availed one
promotional pay scale and one additional
annual increment, proceeded to request for
second promotional scale which was
admissible to an employee who has
completed 24 years of satisfactory service,
as provided by subsequent G.O. Dated
3.9.2001. This request was considered
favourably by Assistant Director (Saving)
Ghazipur. He recommended for second
promotional
scale
vide
letter
dated
14.3.2002, to the Additional Director,
National Saving, U.P. Lucknow. A similar
recommendation was also made by District
Saving Officer, Ghazipur by letter dated
9.10.2002
and
22.2.2003,
sending
recommendatory
letters
to
Additional
Director, National Saving, U.P. Lucknow.

11. It is with reference to the
aforesaid letters, the matter came to be
reconsidered by Additional Director,
National Saving, U.P., who noticed
glaring error/mistake he had committed
while issuing order dated 18.10.2000.
Consequently, Additional Director passed
order dated 10.3.2003 (Annexure 4 to the
writ petition) cancelling his order dated
18.10.2000 and directing for recovery of
salary, already paid to the petitioner.

12. It is not in dispute by learned
counsel counsel for the petitioner that order
dated 10.3.2003 was not challenged by
petitioner before any appropriate forum.

13. After about four years, petitioner
submitted
a
representation
dated
26.8.2008 for grant of time bound
scale/promotional
pay
scale.
This
representation as such was recommended
by District Saving Officer, Ghazipur, with
a covering letter dated 28.8.2008, sent to
Additional Director, National Saving,
U.P. Lucknow. The Deputy Director,
National Saving, U.P. Lucknow sought an
explanation from District Saving Officer,
Ghazipur stating that petitioner made a
similar request by letter dated 27.3.2008,
in reference whereto Directorate issued a
letter dated 9.4.2008. Despite it and
without complying the same, in what
circumstances petitioner's representation
dated 26.8.2008 again was recommended
by
District
Saving
Officer
to
the
Directorate,
on
this
aspect,
his
explanation
was
called
upon.
The
Directorate's letters dated 9.4.2008 in on
record at page 44 of the counter affidavit.
It
says
that
petitioner's
representation/letter dated 27.3.2008 was
carefully considered but rejected being
without any merits. The District Saving
Officer was requested to inform the
petitioner accordingly.

14. The petitioner then made
representation dated 5.10.2008 to the
Additional Director and a reminder dated
3.12.2010. Thereupon, it appears that
Joint Director (Administration) National
Saving,
U.P.
Lucknow
permitted
petitioner to appear in his office and after
hearing
him,
Joint
Director
(Administration), National Saving, U.P.,
on his own, made recommendation to the
State Government vide letter dated
16.3.2011 requesting to communicate
guidance about petitioner's claim for time
bound
scale/promotional
scale
on
completion on 19 and 24 years of service.
Reminders were also sent by Joint
Director on 12.7.2011, 5.9.2011 and
1648 INDIAN LAW REPORTS ALLAHABAD SERIES
9.11.2011. State Government reiterating
its stand, as provided in G.O. Dated
12.5.1997, informed Additional Director,
vide letter dated 22.11.2011, (Annexure
23 at page 65 of counter affidavit), that
since
petitioner
has
forgone
his
promotions, therefore, he is not entitled
for time bound scale/Assured Career
Promotion pay scale. It is this decision of
State Government, which has been
communicated
by
Joint
Director
(Administration), National Saving U.P. to
the
petitioner
by
his
letter
dated
28.11.2011.

15. Sri Govind Krishna, learned
counsel for the petitioner, despite repeated
query, could not explain as to how
petitioner became entitled for time bound
scale/ promotional scale in the light of
clarification issued by State Government
by G.O. dated 12.5.1997. He also could
not dispute that Additional Director's
order dated 18.10.2000, whereby time
bound scale was allowed to the petitioner
w.e.f. 1.5.1990 was cancelled by order
dated 10.03.2013. The said order was
never challenged by petitioner before any
appropriate forum. In effect, the order
dated 10.3.2003 has attained finality.

16. It is true that after about four
years, petitioner sought to reagitate the
matter by making representation and the
authorities have reiterated their stand but
these representations or reiteration of
earlier stand by respondents, in my view,
would not provide a fresh cause action to
petitioner so as to cover up one of the
important hurdle, which the petitioner has
to face i.e. undue delay and laches.

17. Undue delay and laches are
relevant factors in exercising equitable
jurisdiction under Article 226 of the
Constitution of India. Following the cases
of Government of West Bengal Vs. Tarun
K. Roy and others 2004(1) SCC 347 and
Chairman U.P. Jal Nigam and another Vs.
Jaswant Singh and another 2006(11) SCC
464, the Apex Court in New Delhi
Municipal Council Vs. Pan Singh and
others J.T.2007(4) SC 253, observed that
after a long time the writ petition should
not have been entertained even if the
petitioners are similarly situated and
discretionary jurisdiction may not be
exercised in favour of those who
approached the Court after a long time. It
was held that delay and laches were
relevant factors for exercise of equitable
jurisdiction. In M/S Lipton India Ltd. And
others vs. Union of India and others, J.T.
1994(6) SC 71 and M.R. Gupta Vs. Union
of India and others 1995(5) SCC 628 it
was held that though there was no period
of limitation provided for filing a petition
under Article 226 of Constitution of India,
ordinarily a writ petition should be filed
within
reasonable
time.
In
K.V.
Rajalakshmiah Setty Vs. State of Mysore,
AIR 1961 SC 993, it was said that
representation would not be adequate
explanation to take care of delay. Same
view was reiterated in State of Orissa Vs.
Pyari Mohan Samantaray and others AIR
1976 SC 2617 and State of Orissa and
others Vs. Arun Kumar Patnaik and
others 1976(3) SCC 579 and the said view
has also been followed recently in Shiv
Dass Vs. Union of India and others AIR
2007 SC 1330 and New Delhi Municipal
Council (supra). The aforesaid authorities
of the Apex Court has also been followed
by this Court in Chunvad Pandey Vs.
State of U.P. and others, 2008(4) ESC
2423.

18. As already discussed above,
repeated representations or subsequent
3 All] Anoop Mishra Vs. The State of U.P. & Anr.
1649
orders cannot renew cause of action and
also will not furnish a fresh cause of
action so as to cover up entire undue
delay and laches. In my view, writ
petition, in so far as it has challenged
order dated 10.3.2003, is bound to fail
only on the ground of delay and laches.
Once this order is not to be interfered by
this
Court,
subsequent
order,
as
communicated by second impugned order
dated
28.11.2011
also
cannot
be
interfered since it only reiterates what has
already been said in 2003.

19. Even otherwise, coming on merits,
it is evident that explanation 3, provided in
G.O. Dated 12.5.1997, disentitle petitioner,
benefit of time bound scale/promotional
scale for the reason that he has forgone
promotion and therefore, not a person, who
has suffered on account of stagnation due to
lack of promotional avenues. In my view,
grievance of petitioner that he should be
given higher scale ignoring his voluntarily
forgoing promotion and that too twice, lacks
substance and is not tenable either on equity
or in law, otherwise. It is not a case where
petitioner can be said to have suffered on
account of any laxity on the part of
respondents but looking to policy, object and
purpose
of
grant
of
time
bound
scale/promotional
scale
i.e.
to
avoid
stagnation and open higher avenues to the
employees, who are not able to avail actual
opportunity of promotion to higher post, to
be compensated by giving higher pay scale.
The petitioner having not suffered the same
for his own volition, cannot be allowed to
complain. Since it is for something he
deserve to blame himself.

20. In the entirety of the facts and
circumstances, petitioner is not entitled
for any relief.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2013

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 28565 of 2012

Anoop Mishra... Petitioner
Versus
The State of U.P. & Anr.... .Respondents

Counsel for the Petitioner:
Sri Keshri Nath Tripathi,Sri C.P. Gupta
Sri O.P. Mishra

Counsel for the Respondents:
C.S.C., Sri A.K. Sinha, Sri V.P. Mathur.

U.P. Public Service Commission(Reservation
for physically Handicapped,dependent of
freedom fighters as Ex-Service man)Act
1993-Section 3(5)-Reservation to dependent
of freedom fighter-out of 134 post 2%
would be 2.68-if principle of round of
applied- as per law laid down by Apex courttotal vacancy will come-as 3 post and not
only two-as calculated by commissionconsequential direction issued.

Held: Para-22
Applying the ratio of the case law
referred to hereinabove, to the facts of
the present case, we are satisfied that
the respondents had clearly erred in
calculating
the
vacancies
for
the
category of dependents of freedom
fighters. It has not been disputed by the
respondents that against 134 posts, 2%
reservation for dependants of freedom
fighters would come to 2.68. That being
the factual position, we are satisfied that
in view of the law settled by the
Supreme Court as well as this Court the
principle of rounding off ought to have
been
applied
against
horizontal
reservation and if so applied the posts
falling in the category of dependents of
freedom fighters would be 3 and not 2.