# Lal Pratap Singh v. State of U.P. and another

- **Citation:** (2009) 1 ILRA 73
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-12-05
- **Case number:** Civil Misc. Writ Petition No. 34592 of 2003
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lal-pratap-singh-v-state-of-u-p-and-another-41320
- **Pages:** 9

## Headnote

Constitution of India Art. 226-Benefit of
notional
promotion-petitioner's
claim
seeking
parity-of
pay
scale as per
employee
working
in
Head
quarter
alongwith consequential benefits, pay
scale, seniority etc. allowed by High
Court-consequently the petitioner held
entitled to get promotion as excise
Inspector w.e.f. 13.6.96. But due to
pendancy of SLP before the Apex Courtcould
not
be
acted
upon-petitioner
retired on 28.3.98-for purpose of fixation
of pension-petitioner entitled for fixation
on basis of last pay drawn in pay scale of
Inspector and not as senior clerkrespondents can not be allowed to take
benefit of their own wrong.

Held: Para 21

Even otherwise, it would result in grave
injustice as it would amount to granting
benefit to the respondents for their own
fault since denial of promotion to the
petitioner, when it was due, was not on
account of any fault of the petitioner, but
that of respondents. In view of the
aforesaid facts and circumstances, this
Court is clearly of the view that the
impugned orders of the respondents
denying pension to the petitioner taking
in to account his notional promotion on
the post of Senior Clerk, Senior Assistant
and Excise Inspector retrospectively is
wholly illegal and arbitrary and liable to
be set aside.
Case law discussed:
2000 (85) FLR 714

## Text

1 All] Lal Pratap Singh V. State of U.P. and another
73
the abadi site (the report of Tehsildar
Annexure-2 to the writ petition), needless
to say that the same mistake has been
committed by the Member Board of
Revenue while rejecting the reference
made by the Additional Commissioner.

39. In the result the writ petition
succeeds and is allowed. The impugned
orders dated 30.7.1996 and 15.2.2001
(Annexures no.3 & 6 to the writ petition)
are hereby quashed.

40. The matter is remanded back to
the Collector to pass appropriate order in
accordance with law after holding an
enquiry as required under the relevant
statues.

Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2008

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 34592 of 2003

Lal Pratap Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri H.N. Singh
Sri B. Narayan Singh

Counsel for the Respondents:
S.C.

Constitution of India Art. 226-Benefit of
notional
promotion-petitioner's
claim
seeking
parity-of
pay
scale as per
employee
working
in
Head
quarter
alongwith consequential benefits, pay
scale, seniority etc. allowed by High
Court-consequently the petitioner held
entitled to get promotion as excise
Inspector w.e.f. 13.6.96. But due to
pendancy of SLP before the Apex Courtcould
not
be
acted
upon-petitioner
retired on 28.3.98-for purpose of fixation
of pension-petitioner entitled for fixation
on basis of last pay drawn in pay scale of
Inspector and not as senior clerkrespondents can not be allowed to take
benefit of their own wrong.

Held: Para 21

Even otherwise, it would result in grave
injustice as it would amount to granting
benefit to the respondents for their own
fault since denial of promotion to the
petitioner, when it was due, was not on
account of any fault of the petitioner, but
that of respondents. In view of the
aforesaid facts and circumstances, this
Court is clearly of the view that the
impugned orders of the respondents
denying pension to the petitioner taking
in to account his notional promotion on
the post of Senior Clerk, Senior Assistant
and Excise Inspector retrospectively is
wholly illegal and arbitrary and liable to
be set aside.
Case law discussed:
2000 (85) FLR 714

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

1. Heard Sri H.N. Singh, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

2. The petitioner is aggrieved by
order dated 13.9.2002 of the Joint
Secretary, U.P. Government, Lucknow
and consequential order dated 29.5.2003
of
the
Excise
Commissioner, U.P.,
Allahabad whereby he has been denied
revised pension as a result of his notional
promotion on higher posts from back date
in higher pay scales.

3. The facts giving rise to the
present dispute, in brief, are as under.
74 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
4. The petitioner was initially
appointed as Junior Clerk in the Excise
Department
of
State
of
U.P.
on
26.10.1971 and confirmed on the said
post
on
1.4.1975.
In
the
Excise
Department, Junior Clerk and Senior
Clerk were posted in the subordinate
offices as well as in the Headquarters. The
respondents were maintaining distinction
in respect to pay scale and status of the
said clerks posted in subordinate offices
qua those posted in Head Officer though
they were discharging same duties.
Further vide U.P. Excise Department
Ministerial Service Rules, 1980, no
distinction was made in respect of
seniority, promotion etc. amongst the
clerks posted in subordinate offices and
Headquarters. This issue thus was agitated
through U.P. Excise Subordinate Officers
Ministerial Association in writ petition
no. 6904 of 1987. The writ petition was
allowed by this Court vide judgment
dated 20.11.1996 with the following
directions :

"In
the
result
the
application
succeeds and is allowed. Let writ of
mandamus do issue commanding the
respondents to pay or grant equal pay
scale to the excise clerks in the
subordinate offices in commensurate with
those of the other counter parts in head
quarters from the date of implementation
of recommendation of the pay rational
committee namely the date when both
these groups merged into one cadre,
together
with
the
arrears
as
are
admissible from such date and also to pay
current pays on notionally fixation of the
particularly scale at which they are
placed in the manner indicated above.
Further writ of certiorari do issue
quashing seniority list prepared in being
annexure S.A.3. Let a writ of mandamus
do issue commanding respondents to
prepare
a
fresh
seniority
list
in
accordance with the law observed above
and fix seniority of the excise clerks
accordingly within a period of six months
from the date and also to fix and grant all
notional benefits of promotions and other
consequences of services benefits without
arrear commensurate with such notional
service benefits or promotion within a
period of six months from the date of
preparation
of
seniority
list
while,
however, the petitioner shall be paid all
services consequential benefit current
from the date of such determination
together with all consequential benefits as
are admissible in law in future."

5. The State of U.P. preferred Civil
Appeal No. 7340 of 1997 before the Apex
Court, which was also dismissed on
14.9.2000
by
a
reasoned
judgment
affirming this Court's order. When the
matter was pending before the Apex
Court, the petitioner, however, attained
age of superannuation on 28.2.1998 and
retired from the post of Senior Clerk,
though pursuant to this Court's judgment
dated 20.11.1996, he was entitled to have
been promoted on higher posts from much
earlier date. After the decision of the
Apex Court, the respondents revised
seniority list on 15.3.2001 wherein the
name of the petitioner was placed at sl.
no. 102. Since the persons junior to the
petitioner in the revised seniority list were
already promoted to the post of Senior
Assistant and Excise Inspector long back,
the petitioner was treated to be promoted
as
Senior
Clerk
with
effect
from
26.6.1981, as Senior Assistant with effect
from 2.12.1992 and as Excise Inspector
with effect from 13.6.1996 on notional
basis. The consequential benefits were not
paid to the petitioner. When he made a
1 All] Lal Pratap Singh V. State of U.P. and another
75
complaint, the Excise Commissioner vide
his letter dated 15.11.2001 informed the
Secretary
Lokayukta
Administration,
Lucknow that pursuant to the aforesaid
notional
promotions,
consequential
benefits are also being made available to
the petitioner as a result of his promotion
on the post of Senior Clerk, Senior
Assistant
and
Excise
Inspector
retrospectively. His pay fixation on
notional basis with effect from 3.11.1971
till 28.2.1998 was also made by the
respondents and a sum of Rs. 14,344/-
towards
arrears
was
also
paid on
23.3.2003. However, since, the petitioner
had retired on 28.2.1998, as a matter of
fact, while working on the post of Senior
Clerk for the reason that the appeal of the
State Government was pending before the
Apex Court and during the pendency of
the said appeal, the judgment of this Court
was not given effect by the respondents,
therefore, his pay was fixed according to
the last pay actually drawn on 28.2.1998
on the post of Senior Clerk from which he
actually retired. Even after his notional
promotion on the higher posts with
retrospective effect, though some amount
of arrears was paid for the period prior to
the date of retirement, but no revision of
pension was made by the respondents and
when he agitated, the respondents no. 1
vide letter dated 13.9.2002 informed the
Excise Commissioner that the benefit of
notional promotion on higher posts would
not count for the purpose of pensionary
benefits and the pension would be
determined on the basis of the salary
which the petitioner actually drew at the
time of his retirement. In pursuance to the
State Government's letter dated 13.9.2002
the Excise Commissioner also passed a
consequential
order
on
29.5.2003
rejecting petitioner's claim stating that
despite of his notional promotion to the
posts of Senior Assistant and Excise
Inspector retrospectively, the petitioner
would not get any benefit towards the
amount of pension since he had not
assumed charge on the higher posts as a
matter of fact having retired on 28.2.1998
working as Senior Clerk. The benefit of
notional promotion is not permissible for
pensionary benefits.

6. These two orders of the
respondents no. 1 and 2, Annexures-6 and
5 respectively to the writ petition are
being assailed by the petitioner on the
ground that once the petitioner has been
given promotion on higher posts, though
notionally, for the reason that for the fault
of
the
respondents
in
not
giving
promotions to the petitioner when it was
due, he cannot be denied benefit of the
promotions made later on notionally
though it is recognised for the purpose of
fixation of pay. He said that pension is
liable to be revised according to the pay
which is admissible to the petitioner on
re-fixation as a result of his notional
promotions on higher posts of Senior
Assistant and Excise Inspector.

7. Respondents have filed counter
affidavit wherein the facts as noted above
are not disputed but justifying its stand of
not giving any benefit of notional
promotion for the purpose of revision of
pension, in para- 11 and 14, it has been
stated that since the petitioner actually
retired from the post of Senior Clerk and
did not assume charge on the higher post,
hence, he was not entitled for any benefit
for
the
purpose
of
pension.
The
respondents have admitted that by the
order dated 19.11.2001, the petitioner was
allowed notional promotion on the post of
Senior Clerk with effect from 26.6.1981,
Senior
Assistant
with
effect
from
76 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
2.12.1992 and Excise Inspector with
effect from 13.6.1996 but then it is said
that benefit of the said notional promotion
is not permissible for revising the pension
and reliance has been placed on the
Government's decision communicated to
the Excise Commissioner vide letter dated
13.9.2002. It has also annexed a copy of
the Excise Commissioner's letter dated
2.7.2002 and 16.8.2002 seeking advice
from the State Government in the
aforesaid matter stating that as per the
opinion of the Finance Controller so long
as a person has not assumed charge of the
higher posts, the pay admissible on the
said posts would not be taken into account
for the purpose of pensionary benefits
and, therefore, the notional promotion
would not result in any benefit for
pension.

8. This Court has heard learned
counsel for the parties at length and
perused the record.

9. Before coming to the merits of the
issue, it would be useful to refer some of
the relevant provisions, which would help
in the adjudication of the dispute.

10. The term "pay" has been defined
in Fundamental Rule (hereinafter referred
to "FR") 9 (21) which reads as under:

"9 (21) Pay means amount drawn
monthly by Government servant as-
i.
the pay, other than special pay or
pay granted in view of his personal
qualification,
which
has
been
sanctioned for a post held by him
substantively or in an officiating
capacity, or to which he is entitled by
reason of his position in a cadre, and

ii.
overseas pay, technical pay, special
pay and personal pay, and

iii. any other emoluments which may be
specially classed as pay by the
Governor.
(emphasis added)

11. FR-19 and 22 deals with pay to
which Government servant would be
entitled
when
he
is
appointed
substantively to a post in a time scale of
pay and reads as under :

"19. The pay of a Government
servant
shall
not
exceed
the
pay
sanctioned by a competent authority for
the post held by him. No special or
personal pay shall be granted to a
Government
servant
without
the
sanctioned of the Government."
"22. The initial substantive pay of a
Government servant who is appointed
substantively to a post on a time-scale of
pay is regulated as follows :-
(a) if he holds a lien on a permanent
post other than a tenure post or would
hold a line on such a post had his lien not
been suspended-
(i) when appointment to the new post
involved the assumption of duties or
responsibilities of greater important (as
interpreted for the purpose of Rule 30)
than those attaching to such permanent
post, he will draw as initial pay at the
stage of the time-scale next above his
substantive pay in respect of the old post;
(ii) (a) When the appointment to the new
post does not involve such assumption of
duties and responsibilities of greater
importance, he shall draw as initial pay,
the stage of the time-scale which is equal
to his pay in respect of the old post held
by him on regular basis, or, if there is no
such stage, the stage next above his pay in
1 All] Lal Pratap Singh V. State of U.P. and another
77
respect of the old post held by him on
regular basis :
Provided that where the minimum
pay of the time-scale of the new post is
higher than his pay in respect of the post
held by him regularly he shall draw that
minimum as the initial pay :
Provided further that in a case where
pay is fixed at the same stage, he shall
continue to draw that pay until such time
as he would have received an increment
in the time-scale of the old post, in cases
where pay is fixed at the higher stage, he
shall get his next increment on completion
of the period when an increments earned
in the time-scale of the new post.
(b) On appointment on regular basis to
such a new post, other than to an excadre post on deputation, the Government
servant shall have the option to be
exercised within one month from the date
of such appointment, for fixation of his
pay in the new post with effect from the
date of appointment to the new post or
with effect from the date of increment in
the old post.
(iii) when appointment to the new post is
made on his own request under Rule
15(a) and the maximum pay in the timescale of that post is less than his
substantive pay in respect of the old post
he will draw that maximum as initial pay.
(b) If the conditions prescribed in clause
(a) are not fulfilled he will drawn as
initial pay the minimum of the time-scale.
Provided that where a Government
servant holding a post in a temporary or
officiating capacity and drawing pay in a
pay scale, the maximum of which (exceeds
Rs.1,200 or Rs.1,720 in the scales of pay
introduced with effect from August 1,
1972 or July 1, 1979) respectively, or
Rs.2,050 with effect from January 1, 1984
(in respect of scale of pay introduced with
effect from July 1, 1979) is appointed or
promoted to another post carrying duties
or responsibilities of greater importance,
his initial pay in the time-scale of the
higher post will be fixed at the stage next
above the pay drawn in the pay scale, of
the lower post. The benefit of pay so fixed
is, however, restricted to the period
during which the Government servant
would have continued to work on the
lower
post
but
for
his
appointment/promotion to the higher post.
Provided further that both in cases
covered by clause (a) and in cases, other
than
cases
of
re-employment
after
resignation or removal or dismissal from
the public service, covered by clause (b),if
he either-
(1) has previously held substantively or
officiated in-
(i) the same post, or
(ii) a permanent post or temporary post
on the same time-scale, or
(iii) a permanent post, other than a
tenure post, on an identical time-scale, or
a temporary post on an identical timescale, such post being on the same timescale as permanent post; or
(2) is appointed substantively to a tenure
post on a time-scale identical with that of
another tenure post which he has
previously held substantively or in which
he has previously officiated,
then the initial pay shall not be less then
the pay, other than special pay, personal
pay or emoluments classed as pay by the
Governor under Rule 9(21)(iii), which he
drew on the last such occasion, and he
shall count the period during which he
drew that pay on such last and any
previous occasions for increments in the
stage of the time-scale equivalent to that
pay. If, however, the pay last drawn by
the Government servant in a temporary
post has been inflated by the grant of
premature increments, the pay which he
78 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
would have drawn but for the grant of
those increments shall be taken for the
purposes of this proviso to be the pay
which he last drew in the temporary post.
(c) when, after initial fixation of pay in
the pay scales introduced with effect from
July 1, 1979, appointment is made to a
selection grade post in a substantive or
officiating capacity, the pay will be fixed
at the stage next above the pay in respect
of the ordinary grade and the benefit of
second proviso of F.R. 30 may be
extended in such cases subject to all the
conditions of that Rule being satisfied.
2. For the purpose of this Rule
sterling overseas pay shall be converted
into rupees as such rate of exchange as
the Government may by order prescribe.
3. [Deleted].
4. A time-scale may be of recent
introduction whereas the cadre or class to
which it is attached may have been in
existence on a graded scale before the
time-scale came into force or it may be
that one time-scale has taken the place of
another. If a Government servant has held
substantively or officiated in a post in the
cadre or class prior to the introduction of
a new scale and has drawn during the
period salary or pay equal to a stage, or
intermediate between two stages, in the
new time-scale, then the initial pay in the
new time-scale may be fixed at the salary
or pay last drawn and the period during
which it was drawn may be counted for
increment in the same stage, of it the
salary or pay was intermediate between
two stages, in the lower stage of that timescale.
5. The expression "if he holds a lien
on a permanent post" occurring in clause
(a) of Fundamental Rule 22 should be
held to include the lien on a permanent
post to which a Government servant is
appointed
in
provisional
substantive
capacity under Fundamental Rule 14 (d),
and the expression "substantive pay in
respect of the old post" occurring in that
Rule should be held to include his
substantive pay in respect of that
provisional
substantive
appointment.
Fundamental Rule 22 (a) should therefore
be held to permit the substantive pay in
respect of a provisional substantive
appointment being taken into account in
determining his initial pay in another post
of which he is appointed. When the initial
pay of a Government servant in a post is
thus fixed. It will not be affected even if
during the tenure of his appointment to
that post he reverts from his provisional
appointment."

12. For the purpose of pension, the
matter is governed by the provisions made
in
Civil
Service
Regulations
as
applicable in U.P. (hereinafter referred to
as "CSR"). Regulation 38 thereof defines
"Pay and Salary" and reads as under:

"38. "Pay and Salary"
(a) "Pay" means "monthly substantive
pay". It includes also "overseas
allowance"
and
technical
allowance".
(b) For the purpose of the Leave Rules
in Chapter XII, "Pay" includes also
the Subsistence allowance of a
member of the Indian Civil Service
or a Military Officer subject to the
Civil Leave Rules who has an
officiating but not a substantive
appointment.
(c) "Salary" means the sum of pay an
acting
allowance,
or
charge
allowance, under Article 94 of
Chapter VIII."

13. Rule 40 defines the "Pay of an
officer" and reads as under :
1 All] Lal Pratap Singh V. State of U.P. and another
79
"40. (a) The "pay of an officer" is.-
In the case of an officer with a substantive
appointment the amount which he would
receive monthly under any of the
following designations, in his substantive
appointment-
Military pay and allowance and Staff
Salary.
Indian Army pay and Staff Salary.
Substantive pay.
Consolidated pay.
(b) In the case of an officer without a
substantive
appointment,
is
monthly
Substantive allowance (if a member of the
Indian Civil Service, a Statutory Civil
Servant, or a Military Officer subject to
the Civil Leave Rules and his Military
Pay and allowance or Indian Army Pay
(if a Military Officer subject to the
Military Leave Rules.).

14. Section 41 defines "Pension"
and reads as under :

"41. Pension.- Except when the term
"Pension" is used in contradistinction to
Gratuity, "Pension" includes Gratuity."

15. A person retired on attaining the
age of superannuation is entitled for
superannuation pension vide CSR-458
which reads as under:

"458. A superannuation pension is
granted to an officer in superior and
inferior service entitled or compelled, by
Rule to retire at a particular age."

16. Chapter-XIX Section I CSR
deals with amount of pension and
Regulation-468 thereof reads as under :

"468. The amount of pension that
may be granted is determined by length of
service. In calculating the length of
qualifying service, fractions of a half year
equal to three month and above shall be
treated as a completed one half year and
reckoned as qualifying service."

17. Chapter XIX Section II
Regulation 474 provides for calculation of
pension based on the salary/pay scale
admissible to Government servant.

18. From the aforesaid provisions, it
is clear that a Government Servant when
he is granted promotion on a particular
post on a particular date, he is entitled for
pay, which is admissible on the said post
and for the purpose of pension, the pay
admissible to Government Servant on the
post he was promoted or was appointed at
the time of retirement would be relevant.
No provision has been shows to this effect
that it is only the actual emolument which
the Government servant receives on the
post which he holds at the time of his
retirement though subsequently it was
found that he was entitled for a higher
scale, which was allowed also from the
retrospective effect yet would not count
for pension. The notional promotion for
all purposes means appointment on a
higher post with all attending benefits in
law. Some times, in the facts and
circumstances of a particular case, when a
Court directs for notional promotion with
retrospective effect, the arrears of salary
may not be allowed but for all other
purposes, the benefit of promotion on the
higher post and fixation of pay in the pay
scale admissible to such higher posts
cannot be excluded at all. A Notional
promotion by no means can be treated to
be inferior to actual promotion. The term
'notional promotion' is normally used
when a person is allowed a status which
he actually could not enjoy at the time
when it was due, may be for the fault of
80 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the authorities concerned or for any other
reason, and to compensate such person for
such loss, promotion from an earlier date
is allowed, and, in law, it has all the
benefits available to such person as if he
was actually promoted. In law after the
petitioner was allowed notional promotion
on the post of Excise Inspector with effect
from 13.6.1996 and his pay was also fixed
in the time scale of pay admissible to the
post of Excise Inspector from the said
date, if the stand of the respondents is
accepted it would mean that for the
purpose of retiral benefits, he continued to
be a Senior Clerk, though it is not correct
de facto and de jure. The petitioner has
been allowed promotion on the post of
Excise Inspector and has also been paid
some of the arrears. The doctrine of
'having not shared responsibility of the
higher post, the arrears of salary be not
paid' is not applicable in such a case for
the purpose of calculating pensionary
benefits. Computation of pension does not
require actual holding of the post and
receiving salary in a particular time scale
of pay at the time of retirement. The
pension is admissible on the post on
which the Government servant has been
appointed, actually or notionally and has
right to receive salary in the particular
time scale meant for such post.

19. Though in slightly different
context, but in Union of India & others
Vs. K.B. Rajoria 2000 (85) FLR 714 the
question came up for consideration as to
what "regular service" in the grade would
mean and whether it would cover notional
promotion or not and in that context, the
Apex Court held that by giving notional
promotion with retrospective effect to the
concerned incumbent in that case it would
mean that he was regularly appointed to
the post on that date. It also held that the
word "regular" does not mean actual and
for the said purpose, it referred to the
definition of "regular" in Concise Oxford
Dictionary, Ninth Edition, which reads as
under:

"(1) conforming to a rule or
principle, systematic; (2) harmonious,
symmetrical; habitual, constant, orderly;
(4) conforming to a standard of etiquette
or procedure, correct, according to
convention; (5) properly constituted or
qualified, not defective or amateur,
pursuing an occupation as one's main
pursuit."

Here also for the purpose of pension, it is
only the qualifying service, which is
contemplated under Regulation 468 of
CSR and not the actual physical service.
The
interpretation
given
to
office
memorandum referred to in para-15 in
K.B. Rajoria (supra) by the Apex Court,
in my view, would apply with full vigour
in the present case also though that was a
case of Central Government. Here also
reading the words "qualifying service" as
"actual
physical
service" is wholly
misplaced having no basis and it also
overlooks the effect and concept of
"notional promotion" and the benefit
ensued
therefrom
to the concerned
employee. Any other view amounts to
taking a benefit given by one hand to the
employee by another hand, which is
neither just nor in accordance with well
known principle of service jurisprudence
that no person, who is otherwise entitled
to a relief, should be denied the same
though the denial is not substantiated by
any condition of service or statutory
provision applicable to such employee.

20. In case of notional promotion on
the post of Excise Inspector having been
1 All] Varun Kumar V. Union of India and others
81
granted to the petitioner with effect from
13.6.1996, it would be deemed that on
28.2.1998, the petitioner retired from the
post of Excise Inspector and was
receiving salary in the time scale of pay
admissible to the post of Excise Inspector.
Hence he would be entitled for pensionary
benefits to be computed accordingly. The
decision of the respondents that since the
petitioner has not joined on the post of
Excise Inspector and has not worked,
therefore, would not be entitled to take
advantage of notional promotion for the
purpose of pension is wholly arbitrary and
has not been shown to be supported by
any provisions contained in the service
rules applicable to the petitioner.

21. Even otherwise, it would result
in grave injustice as it would amount to
granting benefit to the respondents for
their own fault since denial of promotion
to the petitioner, when it was due, was not
on account of any fault of the petitioner,
but that of respondents. In view of the
aforesaid facts and circumstances, this
Court is clearly of the view that the
impugned orders of the respondents
denying pension to the petitioner taking in
to account his notional promotion on the
post of Senior Clerk, Senior Assistant and
Excise Inspector retrospectively is wholly
illegal and arbitrary and liable to be set
aside.

22. In the result, the writ petition is
allowed. The impugned orders dated
13.9.2002 of the Joint Secretary, U.P.
Government, Lucknow and consequential
order dated 29.5.2003 of the Excise
Commissioner,
U.P.,
Allahabad
(Annexures-6 and 5 respectively to the
writ petition) are hereby quashed. The
respondents are directed to re-determine
the pension and other retiral benefits of
the petitioner taking into account his
notional promotion on the post of Senior
Clerk with effect from 26.6.1981, Senior
Assistant with effect from 2.12.1992 and
Excise
Inspector
with
effect
from
13.6.1996 and calculate the same in
accordance with rules and pay the amount
of arrears of the revised pension and
consequential current pension also within
a period of four months from the date of
production of certified copy of this order
before them. The petitioner shall also be
entitled to interest on the amount of
arrears at the rate of 10% from the date of
order,
denying
benefit
of
notional
promotion in respect to pension, was
passed i.e. 13.9.2002 till the aforesaid
arrears are actually paid to the petitioner.

23. With the aforesaid directions, the
writ petition is allowed. The petitioner
shall also be entitled to cost which is
quantified to Rs.5,000/-.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.09.2008

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 48491 of 2008

Varun Kumar

...Petitioner
Versus
Union of India & others ...Respondents

Counsel for the Petitioners:
Sri Vinay Khare.

Counsel for the Respondents:
Sri Dr. Ashok Nigam, Addl. Solicitor
General of India,
Sri Ajay Bhanot