# Om Saran Tripathi v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 657
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-20
- **Case number:** Civil Misc. Writ Petition No. 30252 of 2002
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-saran-tripathi-v-state-of-u-p-and-others-41408
- **Pages:** 3

## Headnote

Constitution
of
India-Article-226-Post
Retiral benefits-petitioner working as
driver-became unfit due to accidentservice
terminated
on
ground
of
unfitness on opinion of medical boardalternate jobs provided in pursuance-of
interim order worked upto the age of
superannuation-
by
supply
affidavit
relief for post retiral benefits-claimedtechnical objection-in absence of specific
prayer by amendment-no such relief can
be granted-held court empowered to
grant such relief even if not claimedpetition disposed of with direction to
consider payment of post retirement
benefits within three months.
658 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Held: Para 10

Counsel for the respondents may be
technically correct in his argument that
prayer for retiral benefits ought to have
been
made
in
an
application
for
amending prayer of the writ petition.
However since this prayer already exists
in the shape of application alongwith
supplementary
affidavit,
considering
facts & circumstances of the case, the
Court in its discretionary jurisdiction, to
secure ends of justice and equity, can
always grant any relief on a separate
application
with
affidavit
or
under
aforesaid clause (4) of the prayer.
Therefore, without entering going into
petty technicalities as raised by the
counsel for respondent, this writ petition
is being finally disposed of with a
direction to the respondent to consider
payment
of
retiral
benefits
to
the
petitioner expeditiously within a period
of three months from the date of receipt
of a certified copy of this order, in
accordance with law.

## Text

2 All] Om Saran Tripathi V. State of U.P. and others

657
Supreme Court indicated equal pay for
equal
work
and
has
directed
the
concerned authorities for making payment
of same emoluments to the incumbents
working in the organization.

4. In any event, upon going through
the judgment, we have also gone through
the counter affidavit. In sub-para (e) of
para 3 of the same we find that stand
factually taken by the State is that unless
the vacancy is notified by the Committee
of Management to the Commission for
filling up the post of Principal on regular
basis, the officiating Principal cannot
claim salary of the regular Principal for
the period he officiated as Principal of the
college.

5. We have come to know that the
vacancy of the Principal has not been
filled for a long period i.e. for a period of
6 years, therefore, the senior most teacher
was directed to discharge the duty of the
Principal which is not a post of
promotion. Section 2(19) of the U.P. State
Universities Act, 1973 gives definition of
the 'teacher' which includes a Principal.
Principal
will
be
selected
by
the
Commission from amongst the senior
most teacher. There is no scope of
promotion as such, in totality, the senior
most teacher, who is officiating for the
post of Principal, is not being promoted to
apply the ratio of the judgment laid down
in Daljeet Singh (supra).

6. Thus, coming back to the original
position, we are of the view that we
cannot deviate ourselves from our earlier
stand as we have taken in C.M.W.P. No.
49172 of 2008. Having so distinguishing
feature between our decision relied upon
in earlier judgments and the judgment of
Daljeet Singh (supra) therefore, the writ
petition is disposed of accordingly,
however, without imposing any cost. The
respondents are directed to pay salary and
emoluments of the petitioner for the post
of Principal when he was officiating as
principal with in the period of three
months from the date of communication
of this order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.07.2009

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 30252 of 2002

Om Prakash Kapoor

...Petitioner
Versus
Managing Director, UPSRTC and others

 ...Respondents

Counsel for the Petitioner:
Sri R.C. Pal
Sri Dinesh Tiwari

Counsel for the Respondents:
Sri V.K. Singh
Sri N.N. Sharma
Sri P.N.Rai
S.C.

Constitution
of
India-Article-226-Post
Retiral benefits-petitioner working as
driver-became unfit due to accidentservice
terminated
on
ground
of
unfitness on opinion of medical boardalternate jobs provided in pursuance-of
interim order worked upto the age of
superannuation-
by
supply
affidavit
relief for post retiral benefits-claimedtechnical objection-in absence of specific
prayer by amendment-no such relief can
be granted-held court empowered to
grant such relief even if not claimedpetition disposed of with direction to
consider payment of post retirement
benefits within three months.
658 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Held: Para 10

Counsel for the respondents may be
technically correct in his argument that
prayer for retiral benefits ought to have
been
made
in
an
application
for
amending prayer of the writ petition.
However since this prayer already exists
in the shape of application alongwith
supplementary
affidavit,
considering
facts & circumstances of the case, the
Court in its discretionary jurisdiction, to
secure ends of justice and equity, can
always grant any relief on a separate
application
with
affidavit
or
under
aforesaid clause (4) of the prayer.
Therefore, without entering going into
petty technicalities as raised by the
counsel for respondent, this writ petition
is being finally disposed of with a
direction to the respondent to consider
payment
of
retiral
benefits
to
the
petitioner expeditiously within a period
of three months from the date of receipt
of a certified copy of this order, in
accordance with law.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the petitioner
and Sri V.K. Singh appearing for the
respondents.

2. Facts of the case in nutshell are
that petitioner was appointed as driver in
the year 1972. Due to an accident in 1998,
he became unfit to render his service as
driver. In view of guidelines dated
13.10.1989, the petitioner was thereafter
directed to work in the workshop and he
worked there upto 6.6.2002 when his
services were terminated on the ground
that he was unfit to drive a vehicle.
Aggrieved the petitioner has come up in
this writ petition challenging validity and
correctness of impugned orders dated
24.5.2002 and 6.6.2008 appended as
annexure no. 7 & 9 to the writ petition.

3. By the order dated 24.5.2002, the
petitioner was informed that after medical
investigation, a medical report has been
received in which he was been found unfit
to work as driver and by order dated
6.6.2002
his
services
have
been
terminated on that ground.

4. By its order dated 29.7.2002, the
Court stayed operation of the termination
order dated 6.6.2002, pursuant to which
the petitioner was provided with alternate
job on 3.10.2002 and he worked upto
30.9.2008 when he attained the age of
superannuation.

5. Counsel for the petitioner has
urged that since the petitioner has
remained
in
service
of
respondent
corporation
upto
his
date
of
superannuation, he is entitled for retiral
benefits also as he was a permanent
employee
of
the
corporation.
The
petitioner
has
also
submitted
a
supplementary affidavit with the prayer to
direct the respondent to pay his post
retiral benefits in respect of continuous
work from 7.11.1972 to 30.9.2008 within
a specified period that may be filed by the
Court.

6. Copy of the application along
with supplementary affidavit was served
upon the counsel for respondents as bar
back as on 16.10.2008. The Court by its
order dated 18.10.08 has directed the
application to be listed before appropriate
Court after two weeks. It was expected
that within two weeks, counter affidavit to
the aforesaid supplementary affidavit will
be filed by the respondent which has not
been filed till date.

7. Counsel for the respondent
submits
that
in
the
facts
and
2 All] Om Prakash Kapoor V. M.D., U.P.S.R.T.C. and others

659
circumstances of this case, the writ
petition
appears
to
have
become
infructuous as the petitioner continued in
service and there is no prayer in the writ
petition for payment of retiral benefits. He
urges that it was duty of the petitioner to
move an application for amending the
prayer in the writ petition seeking the
relief which he has sought in the
application alongwith the supplementary
affidavit.

8. Counsel for the petitioner does
not dispute this fact that amendment has
not been sought by him in the prayer
made the writ petition for a direction with
regard to payment of retiral benefits. He
submits that prayer is already there in the
shape
of
application
alongwith
supplementary affidavit which may be
considered by this Court under clause (4)
of the prayer in the writ petition which is
as under:

"(4) Issue any other writ, order or
direction which this Hon. Court may
deem
fit
and
proper
under
the
circumstances of the case."

9. After hearing counsel for the
parties and on perusal of the record, I am
of the opinion that petitioner has worked
since 1972 in the respondent corporation
as driver till he met with accident. It is not
in dispute that he was provided alternate
job by the corporation before they
terminated his services on the ground that
he was not medically fir. Considering this
aspect of the matter, the Court by order
dated 29.7.2002 stayed operation of the
termination order and alternate job was
provided to the petitioner thereafter. It is
also not disputed that petitioner continued
in service till he attained the age of
superannuation on 30.9.2008. Amount of
group insurance is also said to have been
paid to him after his retirement.

10. Counsel for the respondents may
be technically correct in his argument that
prayer for retiral benefits ought to have
been made in an application for amending
prayer of the writ petition. However since
this prayer already exists in the shape of
application
alongwith
supplementary
affidavit,
considering
facts
&
circumstances of the case, the Court in its
discretionary jurisdiction, to secure ends
of justice and equity, can always grant
any relief on a separate application with
affidavit or under aforesaid clause (4) of
the prayer. Therefore, without entering
going into petty technicalities as raised by
the counsel for respondent, this writ
petition is being finally disposed of with a
direction to the respondent to consider
payment of retiral benefits to the
petitioner expeditiously within a period of
three months from the date of receipt of a
certified copy of this order, in accordance
with law. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2009

BEFORE
THE HON'BLE RAKESH TIWARI, J

Civil Misc. Writ Petition No. 2222 of 2008

Shaukat Ali

...Petitioner
Versus
Dugdh Utpadak Sahkari Sangh, Mirzapur
and others

 ...Respondents

Counsel for the Petitioner:
Sri K.P. Agrawal
Sri Sumati Rani Gupta

Counsel for the Respondent:
Sri G.D. Mishra, S.C.