# Om Prakash v. State of U.P. and others

- **Citation:** (2004) 2 ILRA 623
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-05-10
- **Case number:** Special Appeal No. 61 of 2003
- **Bench:** Tarun Chatterjee, C.J. Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-state-of-u-p-and-others-40281
- **Pages:** 4

## Headnote

Constitution
of
India-Art.
226-Nonpayment of services dues by State
Government to its employees for years
together until decree is put in execution
and attachment orders are passed-State
Government expected to act fairly-Unfair
attitude of State Government entitles
petitioner for interested which was
rightly awarded by Writ court-However
rate of interest reduced from 12% to 9%
p.a. simple.

Held: Para 8 & 9

A retired Government employee is not
expected to litigate with the State
Government
for
payment
of
his
legitimate dues and even after litigation
and the decree having become final, it is
not expected of the State Government to
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
624
withhold the payment of its retired
employee for years together until the
decree
is
put
in
execution
and
attachment orders are passed. The State
Government is expected to act fairly with
its employees and such unfair attitude
having been adopted by the State
Government
does
entitle
the
writpetitioner for payment of interest, which
has rightly been awarded.

However, the rate of interest awarded at
12% per annum appears to be slightly
on the higher side. Considering the then
prevailing market rate of interest and
also the current market rate of interest,
in our view, simple interest at the rate of
9% per annum for the entire period
ought to have been awarded. The finding
of the writ court that the writ-petitioner
would be entitled to interest after
December, 1997 is also justified. In our
view, the rate of interest for such period
should also be 9% per annum.

## Text

http://www.allahabadhighcourt.nic.in
2 All] Om Prakash V. State of U.P. and others
623
Tribunal Act 1976 (as amended in 2002)-
Dismissal
of
Writ
on
ground
of
alternative remedy-As per amendment
there must be some order against which
petitioner can go to Tribunal-Hence
impugned judgment set aside.

Held: Para 2

It may be mentioned that the U.P. Public
Service Tribunal Act, 1976 was amended
in the year 2000. According to the
amendment there must be some order
against which the petitioner can go to
the Tribunal. If there is no order, party
cannot go to the Tribunal. This view was
also taken by the Supreme Court in
Public Service Tribunal Bar Association
Vs. State of U.P. & another (2003) 1
UPLBEC 780.
Case law discussed:
(2003) 1 UPLBEC 80

(Delivered by Hon'ble M. Katju, A.C.J.)

1. Heard Sri A.M. Zaidi, learned
counsel for the appellant and learned
Standing Counsel.

This Special Appeal has been filed
against the impugned order of learned
Single Judge dated 10.5.2004. By that
judgment, the learned Single Judge
dismissed the writ petition on the ground
of alternative remedy before the U.P.
Public Service Tribunal.

2. It may be mentioned that the U.P.
Public Service Tribunal Act, 1976 was
amended in the year 2000. According to
the amendment there must be some order
against which the petitioner can go to the
Tribunal. If there is no order, party cannot
go to the Tribunal. This view was also
taken by the Supreme Court in Public
Service Tribunal Bar Association Vs.
State of U.P. & another (2003) 1
UPLBEC 780.

3. Following the said decision, this
appeal is allowed and the impugned order
dated 10.5.2004 is set aside. We remand
the case to the learned Single Judge for
passing a fresh decision on merits in
accordance with law expeditiously.
Appeal Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.8.2004

BEFORE
THE HON'BLE TARUN CHATTERJEE, C.J.
THE HON'BLE VINEET SARAN, J.

Special Appeal No. 61 of 2003

State of U.P. through Collector Allahabad
and others

...Appellants
Versus
Ram Badan Dubey
 ...Respondents

Counsel for the Appellants:
Sri R.V. Singh
S.C.

Counsel for the Respondent:
Sri Ram Badan Dubey (In Person)

Constitution
of
India-Art.
226-Nonpayment of services dues by State
Government to its employees for years
together until decree is put in execution
and attachment orders are passed-State
Government expected to act fairly-Unfair
attitude of State Government entitles
petitioner for interested which was
rightly awarded by Writ court-However
rate of interest reduced from 12% to 9%
p.a. simple.

Held: Para 8 & 9

A retired Government employee is not
expected to litigate with the State
Government
for
payment
of
his
legitimate dues and even after litigation
and the decree having become final, it is
not expected of the State Government to
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
624
withhold the payment of its retired
employee for years together until the
decree
is
put
in
execution
and
attachment orders are passed. The State
Government is expected to act fairly with
its employees and such unfair attitude
having been adopted by the State
Government
does
entitle
the
writpetitioner for payment of interest, which
has rightly been awarded.

However, the rate of interest awarded at
12% per annum appears to be slightly
on the higher side. Considering the then
prevailing market rate of interest and
also the current market rate of interest,
in our view, simple interest at the rate of
9% per annum for the entire period
ought to have been awarded. The finding
of the writ court that the writ-petitioner
would be entitled to interest after
December, 1997 is also justified. In our
view, the rate of interest for such period
should also be 9% per annum.

(Delivered by Hon'ble Tarun Chatterjee, C.J.)

1. This Special Appeal has been
filed by the State of U.P. and two others
against the Judgment and Order dated
3.9.2002 passed by a learned Judge in
Civil Misc. Writ Petition No. 55579 of
2000.

2. The brief facts relevant for the
decision of this appeal are that the writpetitioner Ram Badan Dubey (respondent
in this appeal) was an assistant teacher in
a
recognized
educational
institution,
namely,
Agrasen
Inter
College,
Allahabad. He was given notice dated
11.2.1985 that on attaining the age of 60
years
he
would
superannuate
on
30.6.1985. The writ-petitioner, however,
challenged the said notice and contended
that he was entitled to continue in service
upto 30.6.1986. The writ-petitioner filed
civil suit no. 331 of 1985 praying for a
declaration that he was entitled to
continue in service till 30.6.1986. By
Judgment and Decree dated 25.2.1988 the
trial court decreed the suit with costs
alongwith a direction to pay all privileges
and arrears etc. A time-barred appeal was
filed challenging the said judgment of the
trial
court.
The
application
for
condonation of delay was rejected by the
appellate court vide its order dated
27.1.1990. The judgment and order of the
trial court thus became final. The writpetitioner thereafter ran from pillar to post
for getting his arrears of salary, balance
amount of pension and group insurance
along with interest. Thereafter ultimately
he was constrained to put the decree in
execution and only after the attachment
order was passed and the jeep of the
District
Inspector
of
Schools
was
attached,
the
Judgment-Debtors
(appellants in this Special Appeal) paid
the dues of the writ-petitioner on
13.12.1997 which was after 11 1⁄2 years of
the retirement of the writ-petitioner on
30.6.1986. The writ-petitioner thereafter
filed the writ petition claiming that he was
entitled to interest for 11 1⁄2 years at the
rate of 18% per annum and thus claimed a
sum of Rs.4,14,300/- towards interest for
the delay in payment.

3. After hearing the parties the
learned Judge allowed the writ petition
and
directed
the
appellants
herein
(Respondents in the writ petition) to
jointly and severally ensure payment of a
sum of Rs.2,16,341/- towards interest
amount plus Rs.3000/- as cost i.e. a total
amount of Rs.2,19,341/- to the petitioner
by means of an account payee bank draft
within a period of three months. The said
order is impugned in this special appeal.

4. It may be noted that this appeal
had also been filed after delay of more
than three months. However, on hearing
the parties and considering the averments
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2 All] State of U.P. and others V. Ram Badan Dubey and another
625
made in the affidavits, the delay has
already been condoned.

5. We have heard Sri Ran Vijai
Singh,
learned
Standing
counsel
appearing for the appellants and the
Respondent, who appeared in person and
have perused the record.

6. It is not disputed that the writpetitioner was entitled to certain dues of
service which were paid to him only on
31.12.1997. After considering the facts
and circumstances of this case the learned
Judge, while deciding the writ petition,
observed as follows:-

"It appears no action was taken by
the departmental authorities hence the
petitioner was constrained to file the
present writ petition. Pleadings contained
in the writ petition show that the
petitioner got his money on 13.12.1997
when decree in favour of the petitioner
was put in execution and attachment
proceedings were also initiated by the
Civil Court. This goes to show that the
department did not honour the Civil Court
decree compelling the petitioner to put the
same for execution and coercive measures
taken when jeep belonging to the office of
the District Inspector of Schools was
attached."

7. In the said judgment a categorical
finding has been recorded that there was
deliberate delay in payment of the arrears
of salary, pension, group insurance etc. to
the writ-petitioner. It has also been
observed that the appellants (respondents
in the writ petition) chose not to file a
detailed counter affidavit rebutting the
specific averments of the writ-petitioner
regarding harassment at the behest of the
State authorities but merely filed short
counter
affidavit
and
supplementary
counter affidavits. However, it was
brought on record that the writ-petitioner
was paid an amount of Rs.2,56,693/- only
on 13.12.1997. The writ court thus found
that the writ-petitioner was entitled for
payment of simple interest at 12% per
annum. Since there was discrepancy in
the calculation of the interest amount by
the writ-petitioner and the appellants, the
learned Single Judge took assistance of
the Section Officer of the Accounts
Section in the Registry of the High Court,
who was asked to calculate the amount of
simple interest at the rate of 12% per
annum for 11 years, instead of 11 1⁄2
years, which came to Rs.1,44,227/-. The
said amount of interest was calculated
upto December, 1997. The writ court
thereafter granted 10% simple interest for
a period of five years from 1997 to 2002,
treating the sum of Rs.1,44,227/- to be the
principal
amount,
which
came
to
Rs.72,114/- and thus held that the
petitioner was entitled to payment of an
amount of Rs.2,16,341/- and also awarded
cost of Rs.3000/-.

8. Having heard the parties and
considering the facts and circumstances of
this case, we are of the view that the
finding of the writ court that the writpetitioner (Respondent in this appeal) was
entitled for payment of interest for the
delay in payment of the legitimate dues of
the writ-petitioner appears to be justified.
A specific finding has been recorded by
the writ court that there was no fault on
the part of the writ-petitioner which could
be attributed to him for the delay in
making the payment. Considering the fact
that despite the decree having been
granted by the trial court in favour of the
writ-petitioner and the appeal filed against
the same having already been dismissed
in the year 1990, we see no reason why
the amount was not paid immediately
thereafter.
A
retired
Government
employee is not expected to litigate with
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
626
the State Government for payment of his
legitimate dues and even after litigation
and the decree having become final, it is
not expected of the State Government to
withhold the payment of its retired
employee for years together until the
decree is put in execution and attachment
orders are passed. The State Government
is expected to act fairly with its
employees and such unfair attitude having
been adopted by the State Government
does
entitle
the
writ-petitioner
for
payment of interest, which has rightly
been awarded.

9. However, the rate of interest
awarded at 12% per annum appears to be
slightly on the higher side. Considering
the then prevailing market rate of interest
and also the current market rate of
interest, in our view, simple interest at the
rate of 9% per annum for the entire period
ought to have been awarded. The finding
of the writ court that the writ-petitioner
would be entitled to interest after
December, 1997 is also justified. In our
view, the rate of interest for such period
should also be 9% per annum.

10. Since we find that the rate of
interest awarded was slightly on the
higher side, in our view, after calculating
the same at 9% simple interest per annum,
a quantified amount of Rs.1,75,000/-
ought to be paid to the writ-petitioner
towards interest for the delay in payment
of his legitimate dues after his retirement,
which would meet the ends of justice. It is
further provided that the writ-petitioner
shall also be entitled to cost of litigation,
which is assessed at Rs.5,000/- for writ
court as well as in this appeal. Thus the
writ-petitioner would be entitled to
payment of Rs.1,80,000/-.

11. This special appeal, accordingly,
stands partly allowed. It is thus directed
that the appellants shall jointly and
severally ensure payment of an amount of
Rs.1,80,000/- to the writ-petitioner by
means of an account payee bank draft
within a period of three months from
today. It is further provided that in case
the said amount is not paid within three
months, the writ-petitioner shall further be
entitled to payment of interest at the rate
of 9% on the said amount of Rs.1,80,000/-
from today till the date of actual payment
for delay of this payment. In case the
amount of Rs.1,80,000/- is paid to the
writ-petitioner within the stipulated period
of three months, no further interest shall
be payable by the appellants.
Appeal Partly Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.7.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE UMESHWAR PANDEY, J.

Special Appeal No. 848 of 2004

Vice
Chancellor,
Aligarh
Muslim
University, Aligarh & others ...Appellants
Versus
Ram Prakash Shukla
 ...Respondent

Counsel for the Appellants:

Counsel for the Respondents:

Constitution
of
India,
Article
226Temporary
Appointment-Petitioner
holding post of Security Asstt. purely on
Temporary basis-circular dated 20.5.03
provided
such
appointee
either
as
teaching
on
non
teaching
staff
to
continue
upto
30.6.03-initial
appointment
on
fixed
periodSubsequently
extended
till
regular
selection is made-in view of circular
issued by the university-petitioner has
no right to hold the post-thereafter.