# Pancham Lal v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 587
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-17
- **Case number:** Civil Misc. Writ Petition No. 18934 of 2002
- **Bench:** Rakesh Tiwari, Bharat Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pancham-lal-v-state-of-u-p-ors-42828
- **Pages:** 11

## Headnote

Constitution of India, Art.-226- Service LawNotional Promotion-petitioner along with 13
other junior person promoted on post of
manager
marketing
and
economic
investigation-all were treated to be approved
except petitioner-who in view of interim
order-working of promotional post retired-
and got salary-but pension given treating on
post of senior investigator-held once junior to
petitioner treated confirmed and given post
retrial benefits of promotional post-petitioner
can not be discriminated-no question of
recovery in absence of allegation of excess
payment of salary as to given to manager(M
& E-1)-entitled for same treatment.

Held: Para-11
Learned counsel for the petitioner further
contents that recommendation letter order
dated 7.7.1997 for promotion to the post of
Manager (M & E-1) shows that it was
against the vacancies of year 1995-96 and
had the petitioner been promoted within
time, the ad hoc appointment of petitioner
would have come to an end in view of law
laid down by the Apex Court in 1989 (1)
SCC 392 (State of Maharashtra versus
Jagannath Achyut Kartandikar) can not be
made to suffer adversely for the fault or
lapse on the part of the Government itself
as it would be unjust, unreasonable and
arbitrary. Since he was working on regular
basis on the post of Manager Marketing &
Economic Investigator and he must have
paid his post-retirement benefits of the said
post and can not be discriminated from
others in this regard particularly in the facts
and circumstances of the case. He has also
relied upon judgment dated 11.11.2010
passed
in
Special
Appeal
No.
1007
(Defective) of 2010 (Firangi Prasad versus
State of U.P.) referred to in the judgment
dated 14.2.2010 passed in Writ Petition No.
55050 of 2009 (Shashikala versus State)
and JT 1996 Vol. 4 731 in this regard.

Case Law Discussed:
1989(1)SCC 392; JT 1996 Vol. 6 SC Page 75;
JT 1992 Vol-3 SC 98; (2012) 8 SCC 117;
(2006)7 SCC 684; 1989(1) SCC 392; 1996 Vol.
6 SC Page 75.

## Text

2 All] Pancham Lal Vs. State of U.P. & Ors.
587
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2014

BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE BHARAT BHUSHAN, J.

Civil Misc. Writ Petition No. 18934 of 2002

Pancham Lal........................ .Petitioner
Versus
State of U.P. & Ors. .........Respondents

Counsel for the Petitioner:
Sri Krishna Ji Khare

Counsel for the Respondent:
C.S.C.

Constitution of India, Art.-226- Service LawNotional Promotion-petitioner along with 13
other junior person promoted on post of
manager
marketing
and
economic
investigation-all were treated to be approved
except petitioner-who in view of interim
order-working of promotional post retired-
and got salary-but pension given treating on
post of senior investigator-held once junior to
petitioner treated confirmed and given post
retrial benefits of promotional post-petitioner
can not be discriminated-no question of
recovery in absence of allegation of excess
payment of salary as to given to manager(M
& E-1)-entitled for same treatment.

Held: Para-11
Learned counsel for the petitioner further
contents that recommendation letter order
dated 7.7.1997 for promotion to the post of
Manager (M & E-1) shows that it was
against the vacancies of year 1995-96 and
had the petitioner been promoted within
time, the ad hoc appointment of petitioner
would have come to an end in view of law
laid down by the Apex Court in 1989 (1)
SCC 392 (State of Maharashtra versus
Jagannath Achyut Kartandikar) can not be
made to suffer adversely for the fault or
lapse on the part of the Government itself
as it would be unjust, unreasonable and
arbitrary. Since he was working on regular
basis on the post of Manager Marketing &
Economic Investigator and he must have
paid his post-retirement benefits of the said
post and can not be discriminated from
others in this regard particularly in the facts
and circumstances of the case. He has also
relied upon judgment dated 11.11.2010
passed
in
Special
Appeal
No.
1007
(Defective) of 2010 (Firangi Prasad versus
State of U.P.) referred to in the judgment
dated 14.2.2010 passed in Writ Petition No.
55050 of 2009 (Shashikala versus State)
and JT 1996 Vol. 4 731 in this regard.

Case Law Discussed:
1989(1)SCC 392; JT 1996 Vol. 6 SC Page 75;
JT 1992 Vol-3 SC 98; (2012) 8 SCC 117;
(2006)7 SCC 684; 1989(1) SCC 392; 1996 Vol.
6 SC Page 75.

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

1. This petition has been preferred
for issuance of a writ of certiorari
quashing the impugned order dated
14.2.2002 passed by the respondents.
Petitioner also seeks a writ of mandamus
directing the respondents to pay the post
retirement benefits to him for the post of
Manager (M and E-I) in pursuance of the
orders dated 3.1.2001 and 8.8.2001
passed in Civil Misc. Writ Petition No.
3138 of 1982 and any other writ, order or
direction which may be deemed fit and
proper in the circumstances of the case. It
588 INDIAN LAW REPORTS ALLAHABAD SERIES
appears from record that writ petition was
amended vide order of this Court dated
7.8.2008 whereby another prayer in the
nature of mandamus has been added in
the petition for directing the respondents
to give effect the recommendation dated
7.7.1997 of the U.P. Public Service
Commission (hereinafter referred to as the
Commission)
by
providing
notional
promotion to the petitioner to the post of
Marketing
Manager
and
Economic
Investigator forthwith and also to pay him
post retirement benefits accordingly.

Background of the case

2. The backdrop of the case in
capsule is that the petitioner was directly
appointed initially on the post of Junior
Investigator w.e.f. 24.5.1962 thereafter he
was
directly
appointed
as
Senior
Investigator
w.e.f.
1.10.1975
and
confirmed on the said post. Thereafter
under a scheme in the Department of
Industries of District Industry Centre
certain posts of Manager Marketing and
Economic
Investigator
(hereinafter
referred to as Manager (M & E-1) were
created. Pursuant to advertisement for
appointment on the said posts, petitioner
applied for selection and he along with 13
other
candidates
was
selected
and
appointed vide letter of appointment dated
16.1.1981. After about one and a half year
i.e. on 3.5.1982, the appointments of all
the candidates including petitioner and
one Sri P.C. Jain were cancelled reverting
them to the post of Senior Investigator.

3. The aforesaid order dated 3.5.1982
was challenged in Civil Misc. Writ
Petition No. 3138 of 1982 (Pancham Lal
versus State of U.P. and others) by the
petitioner. The other writ petition being
Civil Misc. Writ Petition No. 3013 of
1982 (P.C. Jain versus State of U.P. and
others) was preferred by Sri P.C.Jain. In
the writ petition filed by the petitioner an
interim order was passed. Since the
Petitioner was holding the post in
question having been directly appointed,
pursuant to the advertisement, he was
continued on the post of Manager
Marketing and Economic Investigator and
paid his salary in terms of the interim
order. The writ petition was later on
admitted and after exchange of counter
and rejoinder affidavits, the stay order
was confirmed.

4. In the meantime, in view of Govt.
Order dated 25.6.1984 and Rule 3(b) of
the Uttar Pradesh Industries Service
Rules, 1993 read with its Appendix B,
50% posts of Manager (M & E-1) were
required to be filled up by promotion.
Accordingly,
the
petitioner
was
considered for promotion to the aforesaid
post along with 13 other candidates
against the vacancies determined for
financial year 1995-96, i.e. 1.4.1995 to
31.3.1996 and was placed at serial no. 1.
Other 13 persons were placed below him.
However, except the petitioner, 13
candidates place below the petitioner
were
given
promotion
as
Manager
Marketing and Economic Investigator
vide order dated 30.7.1997 pursuant to the
recommendation dated 7.7.1997 made by
the U.P. Public Service Commission.

5. During pendency of the writ
petition, the petitioner and Sri P.C. Jain
who had filed the aforesaid two writ
petitions, retired from service on attaining
the age of superannuation on 31.12.1996
and 31.5.1992 respectively from the post
of Manager (M & E-1). The retirement
order of Sri P.C.Jain from the said post
was treated to be approved by the State
2 All] Pancham Lal Vs. State of U.P. & Ors.
589
Government and he was accordingly paid
post-retirement benefits for the post of
Manager
Marketing
and
Economic
Investigator. While the retirement order of
the petitioner from the same post was not
taken into consideration on the same
terms for payment of his post retirement
benefits of the post of Manager (M & E1).

6. Two similarly situated candidates
of recommendation order dated 7.7.1997,
namely, Mohd. Shafiuddin, who retired
on 31.3.1996 and N.B.Srivastava, who
retired on 30.6.1996 were paid postretirement benefits of the post of Manager
(M & E-1) accordingly vide order dated
30.3.2012
as
informed
by
Under
Secretary under Right to Information Act,
which has been filed by way of
supplementary affidavit on 7.11.2012. No
reason is said to have been provided in the
information dated 30.3.2012 as to why the
petitioner has not been promoted on the
post of Manager Marketing and Economic
Investigator and other candidates below
him
have
been
granted
notional
promotion though he was at serial no. 1 in
the list for promotion.

7. The aforesaid writ petition being
Civil Misc. Writ Petition No. 3138 of
1982 (Pancham Lal versus State) filed by
the petitioner was dismissed on 28.7.1998
as having become infructuous on the
assumption that the aforesaid writ petition
was
filed
against the
order
dated
25.6.1982 whereby the Tribunal has
refused to grant interim order and the lis
is pending before it.

8. A recall application for recalling
the order dated 28.7.1998 mentioning
therein that no case is pending before the
Tribunal and the cancellation order dated
3.5.1982 was challenged by way of
aforesaid writ petition No. 3138 of 1982
as such, the same may be decided on
merit but the Court treating the aforesaid
application as a review application
disposed it with the direction dated
3.1.2001 to the respondents to pay the
post retirement benefits such as pension to
the petitioner of the post of Manager (M
& E-1) which was not paid him,
compelling him to move a clarification
application, which was disposed of in the
following terms:-

" What he actually wants, this Court is to
modify the order to the extent that the
appellant should be paid post retirement
benefits from the post, he was holding at
the time of retirement.

We are of the view that that aspect of the
matter may be considered by the
appointing authority in accordance with
rules for which no direction is necessary.

9. It is in the aforesaid backdrop that
learned counsel for the petitioner submits
that by order dated 14.2.2002 the
petitioner has been paid post retiral
benefits treating him to have retired from
the post of Senior Investigator and denied
him post retirement benefits for the post
of Manager (Marketing & Economics
Investigator).

10. It is submitted by the learned
counsel for the petitioner that 50% posts of
Manager (M & E-I) were to be filled up by
way of promotion and remaining 50% posts
by direct recruitment. The selection for the
appointment and promotion on the said post
of Manager (M & E-I) was and is within the
purview of the U.P. Public Service
Commission (in short 'the Commission').
After retirement of the petitioner, the
590 INDIAN LAW REPORTS ALLAHABAD SERIES
Commission in view of the Government
orders dated 25.6.1984 as well as 25.3.1985,
vide its letter dated 7.7.1997 recommended
the name of the petitioner for notional
promotion to the post of Manager (M & EI) against the vacancy of 1993-94 but he has
been discriminated with Sri P.C. Jain who
was similarly situated to the petitioner and
13 persons below him in the same
recommendation list dated 7.7.1987 in
payment of retirement dues including
Mohd. Shafiuddin and N.B.Srivastava, who
also retired in 1996.

11. Learned counsel for the petitioner
further contents that recommendation letter
order dated 7.7.1997 for promotion to the
post of Manager (M & E-1) shows that it
was against the vacancies of year 1995-96
and had the petitioner been promoted within
time, the ad hoc appointment of petitioner
would have come to an end in view of law
laid down by the Apex Court in 1989 (1)
SCC 392 (State of Maharashtra versus
Jagannath Achyut Kartandikar) can not be
made to suffer adversely for the fault or lapse
on the part of the Government itself as it
would be unjust, unreasonable and arbitrary.
Since he was working on regular basis on the
post of Manager Marketing & Economic
Investigator and he must have paid his postretirement benefits of the said post and can
not be discriminated from others in this
regard
particularly
in
the
facts
and
circumstances of the case. He has also relied
upon judgment dated 11.11.2010 passed in
Special Appeal No. 1007 (Defective) of 2010
(Firangi Prasad versus State of U.P.) referred
to in the judgment dated 14.2.2010 passed in
Writ Petition No. 55050 of 2009 (Shashikala
versus State) and JT 1996 Vol. 4 731 in this
regard.

12. It is argued that even otherwise if
pursuant to the recommendation of
promotion order dated 7.7.1997, two
candidates who are similarly retired in the
year 1996 as the petitioner, have been
given
promotion
vide
order
dated
30.7.1997 to the post of Manager (M & E1), therefore, petitioner can not be
discriminated also on this ground.

13. It is further submitted that
promotion to the post of Manager
Marketing and Economic Investigator is
required to be made under Rules of 1993
consequently continuation of ad hoc
appointment pursuant to the interim order
would be only a temporary appointment
dehors the rules and as such, petitioner is
entitled to be granted notional promotion
to the post of Manager Marketing and
Economic Investigator pursuant to the
promotion/recommendation order dated
7.7.1997 against the vacancies of the year
1995-96 and is entitled to receive the
post-retirement benefits accordingly. In
this regard, he has relied upon JT 1996
Vol. 6 SC Page 75 (Dr. Surendra Singh
versus State of Jammu & Kashmir.

14. In the alternate counsel for the
petitioner next contended that even if the
orders
/judgment
of
this
Court
(Annexures 8, 10 and 11) are treated to be
dismissal of writ petition no. 3138 of
1982 (Pancham Lal versus State) even
then in view of JT 1992 Vol-3 SC 98
(M/s. Shree Chamundi Mopeds Ltd.
Versus Church of South India Trust
Association
CSI
Cinod
Secretariat,
Madras), if it is presumed in law that no
interim order was passed and as such,
petitioner will be taken to be on the post
of Senior Investigator but pursuant to the
recommendation of promotion order dated
7.7.1997
to
the
post
of
Manager
Marketing and Economic Investigator by
which persons junior to him have been
2 All] Pancham Lal Vs. State of U.P. & Ors.
591
granted benefits of promotion and post
retiral benefits of the promotional post of
Manager (M & E-1) he also is entitled to
receive the post retirement benefits of the
same post, as such, the action of the
respondents is not providing the postretirement benefits for the post of
Manager (M & E-1) to him is illegal,
arbitrary and discriminatory.

15. Per contra, learned Standing
Counsel submits that only a short point is
involved in this petition as to whether the
relief nos. 1 & 4 now claimed by
petitioner can be granted to him or not ?
According to him, it is apparent from the
impugned order dated 14.2.2002 that the
appointment of the petitioner on the post
of Manager (M & E-I) was not legal. The
respondents, pursuant to the order passed
in Civil Misc. Writ Petition No. 3138 of
1982, had categorically stated that the
petitioner
has
wrongly
been
given
promotion in anticipation of the vacancy
and as such, his appointment on the post
of Manager (M& E-I) not being against a
vacant and substantive post was neither
legal nor justified for the said post at the
relevant time did not exist at all, as such
the writ petition is also not maintainable
on this ground.

16. Though no counter affidavit has
been filed, learned Standing Counsel has
vehemently argued that no interim order
has been granted in this writ petition and
as the petitioner has already retired from
service and in the circumstance, he is not
entitled to the reliefs claimed by him.

17. Learned counsel for the State
submits that as a result of dismissal of the
writ petition aforesaid, the petitioner
would retire as Senior Investigator as he
had never been legally promoted on the
post of Manager Marketing hence is not
entitled to get any financial benefit of the
post of Manager Marketing and that since
he has received excess payment of salary
it can be recovered in view of the
judgment of Apex Court rendered in
Chandi Prasad Uniyal and others versus
State of Uttrakhand and others (2012) 8
SCC 117 as fruits of stay order in writ
petition
which
was
subsequently
dismissed would not be available to him.
Therefore, the writ petition is liable to be
dismissed with liberty to the respondents
to recover the excess amount paid to the
petitioner. In this regard, he has also relief
upon on a decision in the case of Surinder
Prasad Tiwari vesus U.P. Rajya Krishi
Utpadan Mandi Parishad and others
(2006) 7 SCC 684. It has been held in
paragraphs 24 of the aforesaid judgment :-

"24. In the instant case, the applicant has
continued in service for 14 years because
of the interim order granted by the High
Court on 15.9.1992. In the aforesaid case,
the Constitution Bench has observed that
merely
because
an
employee
had
continued under cover of an order of the
court, which the court described as
"litigious employment: he would not be
entitled to any right to be absorbed or
made permanent in the service."

18. This judgment of Surinder Prasad
Tiwari
(Supra)
was
specifically
considered by this Court in Special
Appeal No. 926 of 2002 in Sunil Kumar
versus The Regional Assistant Director of
Education (Basic) 12 Circle, Mordabad,
wherein
the
Court
after
noticing
paragraph 24 of the judgment quoted
above, the Court held:

7."Having
appreciated
the
rival
submission, we do not find any substance
592 INDIAN LAW REPORTS ALLAHABAD SERIES
in the submission of Mr. Saxena and the
decision relied on shall have no bearing in
the facts of the present case. As stated
earlier, the petitioner was appointed by
order dated 22.4.1987 on temporary basis
and the order of appointment clearly
indicated
that
his
service
can
be
terminated without any notice or prior
information. His service was terminated
in exercise of power under Rule 3 of the
Rules 1975 by order dated 5.9.1988.
Petitioner has, nowhere, averred as to the
process of appointment, which was
followed while giving him temporary
appointment. True it is that by virtue of
interim orders passed by this court, he
continued in service but such continuance
is nothing but a "litigious employment".
Once it is held so held, mere continuance
in service for a long period would not
clothe him with any right. The view,
which we have taken, finds support from
the judgement of the Supreme Court in
the case of Umadevi (supra) as also
Surindra Prasad Tiwari (supra)."

In the judgment relied upon in Chandi
Prasad(Supra),
the
Apex
Court
in
paragraph 12 to 15 has held thus :-

"12. Later, a three-Judge Bench in Syed
Abdul Qadir case (supra) after referring to
Shyam Babu Verma, Col. B.J. Akkara
(retd.) etc. restrained the department from
recovery of excess amount paid, but held
as follows: (Syed Abdul Qadir case. SCC
pp. 491-92, para 59)

"59. Undoubtedly, the excess amount that
has been paid to the appellants - teachers
was not because of any misrepresentation
or fraud on their part and the appellants
also had no knowledge that the amount
that was being paid to them was more
than what they were entitled to. It would
not be out of place to mention here that
the Finance Department had, in its
counter affidavit, admitted that it was a
bona fide mistake on their part. The
excess payment made was the result of
wrong interpretation of the rule that was
applicable to them, for which the
appellants cannot be held responsible.
Rather, the whole confusion was because
of inaction, negligence and carelessness
of
the
officials
concerned
of
the
Government of Bihar. Learned Counsel
appearing on behalf of the appellantsteachers submitted that majority of the
beneficiaries have either retired or are on
the verge of it. Keeping in view the
peculiar facts and circumstances of the
case at hand and to avoid any hardship to
the appellants-teachers, we are of the
view that no recovery of the amount that
has been paid in excess to the appellantsteachers should be made.

(emphasis added)"

We may point out that in Syed Abdul
Qadir case such a direction was given
keeping in view of the peculiar facts and
circumstances of that case since the
beneficiaries had either retired or were on
the verge of retirement and so as to avoid
any hardship to them.

13. We are not convinced that this
Court in various judgments referred to
herein
before
has
laid
down
any
proposition of law that only if the State or
its officials establish that there was
misrepresentation or fraud on the part of
the recipients of the excess pay, then only
the amount paid could be recovered. On
the other hand, most of the cases referred
to hereinbefore turned on the peculiar
facts and circumstances of those cases
either because the recipients had retired or
2 All] Pancham Lal Vs. State of U.P. & Ors.
593
on the verge of retirement or were
occupying
lower
posts
in
the
administrative hierarchy.

14. We are concerned with the
excess payment of public money which is
often described as "tax payers money"
which belongs neither to the officers who
have effected over-payment nor that of
the recipients. We fail to see why the
concept of fraud or misrepresentation is
being brought in such situations. Question
to be asked is whether excess money has
been paid or not may be due to a bona
fide mistake. Possibly, effecting excess
payment of public money by Government
officers, may be due to various reasons
like negligence, carelessness, collusion,
favouritism etc. because money in such
situation does not belong to the payer or
the payee. Situations may also arise where
both the payer and the payee are at fault,
then the mistake is mutual. Payments are
being effected in many situations without
any authority of law and payments have
been received by the recipients also
without any authority of law. Any amount
paid/received without authority of law can
always
be
recovered
barring
few
exceptions of extreme hardships but not
as a matter of right, in such situations law
implies an obligation on the payee to
repay the money, otherwise it would
amount to unjust enrichment.

15. We are, therefore, of the
considered view that except few instances
pointed out in Syed Abdul Qadir case
(supra) and in Col. B.J. Akkara (retd.)
case (supra), the excess payment made
due to wrong/irregular pay fixation can
always be recovered."

19. After hearing the learned counsel
for the parties and perusal of record, it
appears that the Court in Civil Misc. Writ
Petition No. 3138 (S/B) of 1982 directed
for payment of his salary of the post of
Manager (M&E-1) which he was holding
prior to passing of the order dated
3.5.1985 and that vide order dated
3.1.2001 on his clarification application
for payment of pension for the post of
Manager
Marketing
and
Economic
Investigator was of the view that this
aspect of the matter may be considered by
the appointing authority in accordance
with law, was not paid to the petitioner.

20. Questions for consideration by
this Court now are that (i) whether the
salary of the post of Manager Marketing
and Economic Investigator which was
allowed to the petitioner pursuant to the
interim
orders
dated
9.7.1982
and
3.1.2001 of the Court is liable to be
recovered or not in the facts and
circumstances of the case, and (ii)
Whether petitioner is entitled to receive
post retirement benefits of the post of
Manager
Marketing
and
Economic
Investigator
in
the
aforesaid
circumstances.

21. Before appreciating the facts, the
judgment relied upon by the petitioner
may also be discussed:-

22. In 1989 (1) SCC 392 (State of
Maharashtra versus Jagannath Achyut
Kartandikar)
the
Apex
Court
was
considering the question of seniority and
promotion where lowering of seniority in
promotional post because of late passing
of
departmental
examination
for
promotion. It was held that incumbent
should not be penalised for Government
lapses and that making employees to
suffer adversely for lapses on part of the
Government itself would be unjust,
594 INDIAN LAW REPORTS ALLAHABAD SERIES
unreasonable, arbitrary and such an action
would violate Articles 14 and 16 of the
Constitution of India. The Court further
observed that in such cases relaxation in
rules granted in favour of the employee to
avoid undue hardship to a class of
employees would be justified.

23. In the instant case, those
employees along with petitioner who
were
recommended
for
notional
promotion by the U.P. Public Service
Commission constituted a class apart
from others. All of them have been
granted post retiral benefits of the
promotional post except the petitioner,
therefore, his case is on a better footing
than the case of State of Maharashtra
relied upon by the petitioner and applies
with full force to this case.

24. In the case of Firangi Prasad
(Supra) referred to in the case of
Shashikala versus State(Supra), it has
been held that if the District Inspector of
School has issued a letter directing
committee of management to appoint a
person as teacher and the management
delayed the matter at its end, then for such
an inaction of management the teacher
cannot be made to suffer and in such a
case, appointment shall be treated within
the cut off date.. The observations of the
Court made in para 15 reads thus:-

"15. The second contention needs to be
examined in the light of the facts that
have emerged from the record, namely
that the appellant for no fault on his part
was kept out of the Institution by the
inaction of the Management in spite of the
District Inspector of Schools having
dispatched
the
selection
order
on
18.01.1993. From the facts on record, it is
evident that the Manager of the Institution
had to perform the ministerial act of
issuing a letter of appointment to the
appellant in terms of the selection order
dated
18.01.1993.
The
Management
admittedly complied with it after much
persuasion on 25.08.1993, for which the
appellant is nowhere at fault. On the
contrary,
the
appellant
had
been
continuously
approaching
the
Management time and again expressing
his willingness to join the Institution. "

25. It was in the aforesaid facts and
circumstances that teachers like the
appellants in that case were found to fall
within an altogether different class of
candidates, who had been wrongfully
prevented
by
the
inaction
of
the
management in joining the institution.
The direction contained in order dated
18.1.1993 in that case was categorically to
allow the appellant to join within ten days
which admittedly was scuttled by the
Manager for reasons best known to him.
The Manager was obliged to issue a letter
of appointment under the direction of the
District Inspector of Schools.

26. In the instant case, Sri P.C. Jain
appointed along with the petitioner on the
post of Manager Marketing and Economic
Investigator 13 persons including the
petitioner recommended for promotion
after the reversion of the petitioner on
3.5.1982.
All
of
them
except
the
petitioner were paid salary but their
respective retiral dues of the post of
Manager
Marketing
and
Economic
Investigator
discriminating
from
the
petitioner who has been deprived of his
retiral dues of the post of Senior
Investigator only due to inaction on the
part of the respondents. As stated earlier,
the petitioner has been discriminated by
the authorities in complying with the
2 All] Pancham Lal Vs. State of U.P. & Ors.
595
orders dated 25.6.1983 and 25.3.1985 the
State Government in granting him post
retirement benefits of the post of Manager
Marketing
and
Economic
Investigator.
Though he was on a better footing than them
in view of orders dated 9.7.1982 in Civil
Misc. Writ Petition No. 3138 (S/B) of 1982
which was pending at the relevant time and
order dated 3.1.2001 of the Court. As regard
the case of Dr. Surendra Singh versus State
of Jammu & Kashmir T 1996 Vol. 6 SC
Page 75 relied up on by the petitioner is
concerned, it was a case of claiming
regularisation also as the appellant had put in
13 years service as an ad hoc employee. The
Apex Court following the direction in JT
1993 (6) SC 593 wherein State Government
was directed to notify the vacancies to Public
Service Commission making it open to the
appellants to apply for the same. Under the
rules the regular recruitment to the posts was
to be made by the Public Service
Commission. It was held in that case that
consequently, the ad hoc appointments
would be only temporary appointments
dehors the rules pending regular recruitment
without conferring any right to regularisation
of service.

27. These questions may be appreciated
in the light of facts that (i) the petitioner had
been appointed under direct recruitment as
Manager (M & E-1) on 16.1.1981 and
worked on the said post up to 3.5.1982 when
he was reverted back from the said post to
the post of Senior Investigator, and (ii)
petitioner was again promoted to the post of
Manager (M & E-1) in pursuance of the
recommendation dated 7.7.1997, therefore,
facts of these two situations have to be seen
by the Court in the facts and circumstances
of the case.

28. Admittedly the petitioner was
confirmed as Senior Investigator on
1.10.1975. He was given temporary
appointment/posting on the post of
Manager Marketing (Prabandhak Vipran)
by
the
Director
vide
order
dated
18.1.1981 in anticipation of approval by
the State, as such, the petitioner along
with ten other persons was reverted to
their original post of Senior Investigator.
Aggrieved the petitioner preferred Claim
Petition No. 195/F/111/1982 challenging
the order of reversion dated 3.5.1982
before the U.P. Public Services Tribunal,
Lucknow.
The
Claim
Petition
was
decided vide judgment dated 9.7.1982
against him against which the petitioner
preferred Civil Misc. Writ Petition No.
3138 (S/B) of 1982 in which interim order
was granted in the following terms:-

"List for admission on 22.7.1982. "In the
meantime in case the petitioner is still
holding the charge of the post, he will not
be relieved and if he has been relieved the
same salary which he was getting before
the order in question was passed, will be
paid to him. State may file counter
affidavit during this period."

In compliance of the aforesaid order, the
petitioner had been working as Marketing
Manager till his retirement from service
he was given his retiral benefits of the
post of Senior Investigator pending
decision
of
the
writ
petition.
Subsequently, Civil Misc. Writ Petition
No. 3138 of 1982 was also dismissed. In
the instant case, petitioner had applied by
way of direct recruitment and given
appointment
on
the
post
Manager
Marketing and Economic Investigator
pursuant to the vacancies advertised. He
was also recommended with 13 other
persons
by
U.P.
Public
Service
Commission
for
promotion
on
the
aforesaid post after his said appointment
596 INDIAN LAW REPORTS ALLAHABAD SERIES
was cancelled and the petitioner was
continued in terms of the direction issued
by High Court. He retired from the
promotional post of Manager (M & E-1)
on attaining age of superannuation, hence
he would be deemed to be regularised in
service on the post of Marketing Manager
and Economic Investigator in terms of
recommendation dated 7.7.1997 and
Government orders dated 25.6.1983 and
25.3.1985 acted upon by it in respect of
granting notional promotion to all the
promotees except the petitioner who had
been illegally and arbitrarily denied
notional
promotion
in
violation
of
Articles 14 and 16 of the Constitution,
therefore he would be entitled to post
retirement benefits of the post of Manager
(M & E-1) as were paid to Sri P.C. Jain
and 13 other persons junior to him in
service, who were paid their salary and
retiral benefits of the post of Manager
Marketing and Economic Investigator.

29. From a perusal of Annexures 8 to
12 to the writ petition, it appears that the
recommendations of promotion order
dated 7.7.1997 of Commission only in the
case of the petitioner has not been
considered though it was communicated
to the Commission and respondents were
having knowledge of the same, it was also
not brought to the notice of the Court or
to the petitioner by the respondents, who
were not aware of the recommendation
order dated 7.7.1997 as such, the petition
was disposed of with the direction to pay
the post retirement benefits in accordance
with law. As soon as the aforesaid
recommendation order dated 7.7.1997
came to his knowledge he has claimed his
relief on the basis of the aforesaid
recommendation order dated 7.7.1997 by
way of present writ petition, which in the
facts
and
circumstances
based
on
subsequent
events
is
maintainable
particularly when the petition has been
allowed to be amended by the court vide
its order dated 7.8.2008 by which the
following prayer no. 4 has been added: -

"to issue a writ, order or direction in the
nature
of
mandamus
directing
the
respondents
to
give
effect
the
recommendation order dated 7.7.97 of the
Commission
by
providing
notional
promotion to the petitioner to the post of
Manager M and E.I forthwith and to pay
post retirement benefit accordingly."

30. It is not in dispute that the
petitioner had been appointed on the post
of Manager Marketing and Economic
Investigator
on
16.1.1981
but
was
reverted back on 3.5.1982 after about one
and a half year working on the said post.
It is also not disputed that in view of
circular dated 25.6.1983 and 25.3.1985,
Sri P.C.Jain and 13 other junior to the
petitioner were paid post retirement
benefits considering them to have retired
from the post of Manager Marketing and
Economic Investigator. Therefore, the
contention of the learned counsel for the
petitioner that no post of Manager
Marketing and Economic Investigator
existed on which the petitioner was
promoted as he had been treated only on
anticipation of the vacancy can not be
said to be correct. The petitioner had been
appointed on the said post after making
advisement
and
thereafter
he
was
regularised and confirmed in service.
Even otherwise all other 13 employees
juniors to him have been promoted and
were
retired
were
given
notional
promotion except the petitioner for which
no reason is provided by the respondents.
The
petitioner
has
been
clearly
discriminated by the action of the
2 All] Hurr Mehdi Baqri Vs. Chief Election Commission of India & Ors.
597
respondents in not paying his post
retirement dues considering him not
retired from the post of Manager
Marketing and Economic Investigator can
not be sustained merely because vide
order dated 3.1.2001 the Court directed
that aspect of the matter may be
considered by the appointing authority in
accordance with rules, which does not
give handle to the respondents to
discriminate the petitioner and decide the
matter which can not be approved in law.

31. It has come on record that the
promotion of P.C. Jain and 13 other
juniors to the petitioner was treated to be
an approval from the State Government
on the post of Manager Marketing and
Economic Investigator and they were paid
their post-retirement benefits for the said
post. Therefore, even on this ground also
the petition is liable to be allowed.

32. We do not find any force in the
arguments of the learned counsel for the State
that as a result of dismissal of the writ petition,
the petitioner would be treated to have retired
from the post of Senior Investigator as he was
not legally promoted on the post of Manager
Marketing and Economic Investigator. We
also find that the petitioner had not received
any excess payment during his "litigious
employment" for the reason he had worked on
the post of Manager Marketing and Economic
Investigator and continued on the basis of the
Court's order. It was not the case where he had
received any excess payment by working on
the post of Manager Marketing and Economic
Investigator. Since the petitioner had been
appointed after advertisement and following
the procedure for recruitment, his case is
clearly distinguishable from the case of
Chandi Prasad Uniyal and Surinder Prasad
Tiwari (Supra) wherein the bonafide mistake
had been committed by the State Government
in calculating their pay-scale resulting in
excess payment.

33. For all these aforesaid reasons, the
writ petition is allowed. Since the petitioner
has actually worked on the post of
Manager(M & E-I) till his superannuation,
no recovery from him shall be made from
him for working on the said post and he shall
be paid his dues of the post of Manager(M &
E-I) on this basis.

34. No orders as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2014

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 19028 of 2014

Hurr Mehdi Baqri... Petitioner
Versus
Chief Election Commission of India &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Prakash Chandra Srivastava

Counsel for the Respondents:
Bhupendra Nath Singh

Constitution of India, Art.-329(b)- Rejection
of nomination-Lok Sabha election-rejected
on
ground
in
electoral
roll-name
of
petitioner found no place-review rejected in
absence
of statutory provision-petition
against rejection-held-not maintainableonce election notified except election
Tribunal-
Court
ceased
with
every
jurisdiction-petition dismissed.

Held: Para-9
On the other hand, where a nomination
paper has been rejected, we are of the