# Ram Mohan Dayal v. State of U.P. and another

- **Citation:** (2011) 1 ILRA 426
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-28
- **Bench:** Devi Prasad Singh, S.C. Chaurasia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-mohan-dayal-v-state-of-u-p-and-another-41863
- **Pages:** 6

## Headnote

Constitution of India, Article 226-Higher
Pay
Scale-denied
on
ground
the
petitioner
not
completed
18
years
continuous service as Asst. Engineer and
after retirement it can not be given-heldmisconceived-when
promotion
of
Petitioner
approved
by
Commission
against
vacancy
88-89-entitled
for
counting
the
period
of
national
promotion as such entitled for next
higher pay scale particularly when all the
juniors to petitioner have been givenpetitioner can not be discriminated on
his retirement .

Held: Para 15 and 16

The finding recorded by the Government
while dismissing the representation by
impugned order dated Ist May, 2007
seems to be incorrect appreciation of
law. Even if petitioner has been retired
from service and the U.P. Public Service
Commission has sent its approval after
the petitioner's age of superannuation,
the right available to petitioner in
accordance with the government order
dated
26th
Sept.,
1992
shall
not
extinguish. Petitioner shall be entitled
for higher pay scale in accordance with
the government order. More so, it has
been
submitted
by
the
petitioner's
counsel
that
all
other
Assistant
Engineers, whose services have been
regularized with due approval by the
order dated Ist Sept., 1992 have been
given higher pay scale. Accordingly, the
petitioner cannot be treated differently
from the persons who have been given
higher pay scale after regularization of
service
with
due
approval
of
the
Commission.

Keeping in view the order dated Ist
Sept., 1997, it appears that services of
several
persons
was
regularised
collectively hence the petitioner cannot
be treated differently. Petitioner also
falls in the same category of the
employees who have been regularized in
terms
of
approval
granted
by
the
Commission vide order dated Ist Sept.,

## Text

426 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
co-accused, therefore, the direction of the
learned Magistrate for separation of
petitioner's trial from other accused being
not
supported
with
any
reasonable
ground, is hereby quashed and it is
observed that the petitioner shall be tried
together with the co-accused. To this
extent the petition is allowed and for other
reliefs the petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.04.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE S.C. CHAURASIA,J.

Service Bench No. - 1186 of 2007

Ram Mohan Dayal

 ...Petitioner
Versus
State of U.P. Thru Prin. Secy. Irrigation
and another

 ...Respondent

Counsel for the Petitioner :
Umesh Kumar Srivastava

Counsel for the Respondent:
C.S.C.

Constitution of India, Article 226-Higher
Pay
Scale-denied
on
ground
the
petitioner
not
completed
18
years
continuous service as Asst. Engineer and
after retirement it can not be given-heldmisconceived-when
promotion
of
Petitioner
approved
by
Commission
against
vacancy
88-89-entitled
for
counting
the
period
of
national
promotion as such entitled for next
higher pay scale particularly when all the
juniors to petitioner have been givenpetitioner can not be discriminated on
his retirement .

Held: Para 15 and 16

The finding recorded by the Government
while dismissing the representation by
impugned order dated Ist May, 2007
seems to be incorrect appreciation of
law. Even if petitioner has been retired
from service and the U.P. Public Service
Commission has sent its approval after
the petitioner's age of superannuation,
the right available to petitioner in
accordance with the government order
dated
26th
Sept.,
1992
shall
not
extinguish. Petitioner shall be entitled
for higher pay scale in accordance with
the government order. More so, it has
been
submitted
by
the
petitioner's
counsel
that
all
other
Assistant
Engineers, whose services have been
regularized with due approval by the
order dated Ist Sept., 1992 have been
given higher pay scale. Accordingly, the
petitioner cannot be treated differently
from the persons who have been given
higher pay scale after regularization of
service
with
due
approval
of
the
Commission.

Keeping in view the order dated Ist
Sept., 1997, it appears that services of
several
persons
was
regularised
collectively hence the petitioner cannot
be treated differently. Petitioner also
falls in the same category of the
employees who have been regularized in
terms
of
approval
granted
by
the
Commission vide order dated Ist Sept.,
1997.
Giving
a
different
treatment
denying the promotional avenues or
higher
pay
scale
to
the
petitioner
amounts to hostile discrimination on the
part of the State authority.
Case law discussed:
2005 (23) LCD 173

(Delivered by Hon'ble Devi Prasad Singh,J.)

1. Heard learned counsel for the
parties and perused the record.

2. This writ petition under Article
226 of the Constitution of India has been
preferred against the impugned order
dated 1.5.2007 by which the petitioner's
representation has been rejected declining
1 All] Ram Mohan Dayal V. State of U.P. and another
427
to grant the higher pay-scale in terms of
Government Order dated 26th Sept., 1990
(Annexure-11 to the writ petition) on the
ground that the petitioner has already
retired from service. While he was in
service, he was not a regular employee
and attained the age of superannuation
before receiving the recommendation of
U.P.
Public
Service
Commission
(hereinafter
referred
to
as
"the
Commission").

3. The Petitioner was initially
appointed on the post of Junior Engineer
(Civil) in the Irrigation Department and
joined on the said post on 4th August,
1957. His services were approved by the
Commission on the said post and
confirmed from 1.1.1966. A seniority list
was prepared in which the petitioner was
placed at serial No. 595 and two other
persons namely Jagdish Pradesh Saxena
and Jagdish Prasad Gupta were placed at
serial No. 618 and 615 respectively
against the 25% vacancies falling within a
quota of promotees in the cadre of
Assistant Engineer (Civil). The petitioner
was promoted on ad-hoc basis on
14.8.1989
(Annexure-3
to
the
writ
petition).

4. Keeping in view a length of
satisfactory service of the petitioner, the
petitioner was entitled for regularisation
under
the
provision
of
The
U.P.
Regularisation of Ad-hoc Promotion (on
posts within the purview of Public Service
Commission) Rules 1988 (hereinafter
referred to as "the Rule"). However, he
could not be regularized under the Rule
during the period of his employment.
Petitioner
attained
the
age
of
superannuation on 31.12.1994.

5. It appears that before the
retirement of the petitioner the State
Government had sent the case of the
petitioner and other persons with due
recommendation to the Commission for
regularisation. The Commission vide his
order dated 1st Sept., 1997 approved the
proposal of the State Government for
regularization of petitioner and other
similarly situated persons under the Rule
(supra). The copy of the approval of the
Commission has been filed as Annexure-6
to the writ petition. From perusal of the
approval of the Commission, it appears
that
the
petitioner's
services
were
regularized against the vacancies of 198889 along with other similarly situated
persons.

6. According to the learned counsel
for the petitioner, under the government
order dated 26th Sept., 1992 all the
Assistant Engineers who have rendered
five years of satisfactory service were
entitled for pay of higher pay scale i.e. Rs.
3000-4500
and
after
18
years
of
satisfactory service they were entitled for
enhancement of pay i.e. Rs. 3700-5000.
Further submission of the petitioner's
counsel is that since Sri Jagdish Pradesh
Saxena and Sri Jagdish Prasad Gupta,
juniors to the petitioner, were promoted
then the petitioner is also entitled to be
promoted.

7. Earlier, the petitioner filed a Writ
Petition No. 1453 (S/B) of 2006 with the
prayer that he may be granted the higher
pay-scale of Rs. 3000-4500 in terms of
government order dated 26th Sept., 1992
and 23rd August, 1997. A division Bench
of this Court vide judgment and order
dated 18th Oct., 2006 had directed the
State Government to take a decision on
428 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
petitioner's representation after taking into
account the government order.

8. By the impugned order dated
1.5.2007 the petitioner's representation
has been rejected mainly on the ground
that since the petitioner was not a regular
employee
during
the
course
of
employment, therefore, he is not entitled
for higher pay-scale and it has been
further observed in the impugned order
that
before
the
receipt
of
the
recommendation of the Commission, the
petitioner has attained the age of
superannuation.

9. While assailing the impugned
order, it has been submitted by the learned
counsel for the petitioner that the
petitioner's services have been regularized
against the vacancy of 1988-89. Some
persons junior to the petitioner were
extended the benefit of the higher pay
scale.

10. The submission of learned
counsel for the petitioner is that since the
U.P. Public Service Commission has sent
a recommendation and regularized the
services with retrospective effect i.e. from
88-89 , the petitioner has become entitled
for higher pay scale.

11. On the other hand learned
Standing Counsel submitted that since the
petitioner has already attained the age of
superannuation before the receipt of
recommendation from the U.P. Public
Service Commission, he is not entitled for
higher pay scale. The learned Standing
counsel defended the impugned order and
reiterated the observation of Special
Secretary of the Government of U.P.

12. While assailing the impugned
order, attention of this Court has been
invited to the case reported in 2005 (23)
LCD 173 Dhan Pal Singh Vs. State of
U.P. and another.

13. In the case of Dhan Pal Singh (s)
the Government order dated 25th June,
1984 has been relied upon for grant of
notional promotion. The Government
order provides that even if an employee
retired or died, he shall not be debarred of
service benefits. On the basis of seniority
in terms of government order notional
promotion should be given to the
employees who died during the course of
employment or even after retirement.
After considering the definition and
meaning of notional promotion it has been
held in case of Dhan Pal Singh (s) decided
by one of us (Devi Prasad Singh,J.) that
employee's right will not be extinguished
because of retirement from service.
Relevant portions of the judgment are
reproduced as under:

"Petitioner's counsel further submits
that
the
provision
contained
in
Government
Order
dated
25.6.2004
though speaks as a special reference for
the retired employees or the employees
who expired, for the purpose of grant of
notional promotion but it does not exclude
the serving employees. Para 2 of the G.O.
dated 25.6.1984 for convenience is
reproduced as under:

bl fo"k; ij 'kklu ds le{k ;g iz'u mBk;k
x;k gS fd D;k mu dfeZ;ksa ds uke Hkh ik=rk lwph
esa lEefyr fd;s tk;sa tks ;fn le; ls p;u dh
dk;Zokgh fd;s tkus dk ik=rk lwph esa j[ks tkrs
rFkkfi p;u dh dk;Zokgh esa foyEc gksus ds dkj.k
ik=rk lwph rS;kj djrs le; lsok fuo`Rr gks pqds gS
vFkok mudh e`R;q gks pqdh gSA bl iz'u dk xgjkbZ
ls fopkjksijkUr 'kklu bl fu"d"kZ ij iagqprk gS fd
lwph esa bu lHkh dfeZ;ksa ds uke lfEefyr djus
1 All] Ram Mohan Dayal V. State of U.P. and another
429
pkfg, ftuds uke ik=rk lwph esa gksrs ;fn p;u
le; ls djk;k x;k gksrk] Hkys gh p;u ds le;
muesa vc dqN ,d dkfeZd lsok fuo`Rr gks pqds gksa
vFkok mudh e`R;q gks pqdh gksA ;fn ,slk ugha fd;k
tkrk rks ,sls e`R;q lsok fuo`Rr dkfeZ;ksa dks ,sls ykHk
ls oafpr jguk iM~ ldrk gS tks le; ls p;u ds
mijkar mUgs vuqeU; gks ldrh gSA vr% ik=rk lwph
esa mi;qZDr dkfeZdksa ds uke 'kkfey djds izksUufr gsrq
fu;ekuqlkj mudh mi;qDrrk ij fopkj fd;k tkuk
pkfg, rFkk mi;qDr ik, tkus ij mUgs lEcfU/kr o"kZ
fnukad ls uks'kuyh izksUufr dh tkuh pkfg, rkfd
mUgs og leLr ykHk vuqeU; fd;s tk lds tks os
izkIr djrs ;fn izksUufr dh dk;Zokgh le; ls gks
tkrhA uks'kuy izksUufr nsus ij laca/kh dkfeZd dh
e`R;q vFkok lsok fuo`fRr tSlh Hkh fLFkfr gks dh frfFk
dks lEcfU/kr inksa dh fjDr ekurs gq, mUgs
fu;ekuqlkj Hkjk tkuk pkfg,A miZDr fu;ekoyh
1970 ds fu;e 21 ds vuqlkj izR;sd o"kZ ds lEcU/k
esa izFkd&izFkd ik=rk lwph rS;kjh djus dk vk'k;
Hkh ;gha gS fd lEcfU/kr o"kZ esa tks dkfeZd ik=rk
lwph es lfEefyr fd;s tkus gsrq vgZ Fks muds uke
ml o"kZ dh ik=rk lwph esa j[ks tk;saxs Hkys gh p;u
dh dk;Zokgh ds le; dkfeZd dh e`R;q gks pqdh gks
vFkok og lsok fuo`Rr gks pqdk gksA

3. At the face of record the
Government Order does not exclude the
serving employee. It only specify that even
if employee dies or retired shall be
considered for placement in the serniority
list. According to THE NEW LAXICON
WEBSTER'S DICTIONARY OF THE
ENGLISH
LANGUAGE
the
words
"notion" and "notional" has been defined
as under:

"notion-a concept, idea, his notion of
a good novel is not hers, a general
concept, the notion of law, a theory or
idea lacking precision or certainty, the
notion is not fully worked out in his mind,
an understanding, she had no notion what
he meant, a whim or fancy, his head was
full of strange notions, inexpensive small
useful articles (hairpins, needles, thread,
combs etc.) sold in a store"

"notional-belonging to the realm of
ideas, not of experience, (or things)
existing only in the mind."

The
word
notional
in
other
dictionaries (as comes out from internet)
has been defined as under:

NOTIONAL

1. Conceptional, ideational, fanciful,
speculative,
fanciful,
imaginary,
imagined.

2. Being or of the nature of a notion
or concept

3. Indulging in or influenced by
fancy

4. Not based on fact or investigation

5. Not based on fact; dubious

6. Having descriptive value as
distinguished from syntactic category.

4. In view of above, for granting of
notional promotion it is not necessary that
the person concerned has actually worked
on the said post firstly, he may be directed
to discharge duty on the said post and
only at later stage or he may be given
notional promotion in accordance to rule.
Only thing is necessary for grant of
notional promotion is that at the relevant
date and time the person concerned
should have right to get the benefit which
he had claimed at later stage.

In the present case petitioner had
claimed for promotion on the post of
Research Supervisor from the date when
juniors were promoted. Accordingly,
petitioner
can
be
given
promotion
430 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
notionally from the date when juniors
were promoted in case, he was qualified
at the relevant time in accordance to
rules."

14. Now coming to the present
controversy. It is evident from the letter of
the U.P. Public Service Commission
dated Ist Sept., 1997 that the petitioner's
services have been regularized in the
cadre of Assistant Engineer against the
vacancy/selection for the year 1988-89.
Meaning thereby the petitioners shall
deemed to be regular employee from
1988-89 in terms of approval of U.P.
Public Service Commission noted in its
letter dated Ist Sept., 1997. It is in
agreement with the recommendation of
State
Government
with
regard
to
regularization
of
service
under
the
Regularization Rule against the year
1988-89. Accordingly, by fiction of law,
the petitioner shall be deemed to be a
regular employee from 1988-89 and shall
be entitled of all service benefit in terms
thereon.

15. The finding recorded by the
Government
while
dismissing
the
representation by impugned order dated
Ist May, 2007 seems to be incorrect
appreciation of law. Even if petitioner has
been retired from service and the U.P.
Public Service Commission has sent its
approval after the petitioner's age of
superannuation, the right available to
petitioner
in
accordance
with
the
government order dated 26th Sept., 1992
shall not extinguish. Petitioner shall be
entitled for higher pay scale in accordance
with the government order. More so, it
has been submitted by the petitioner's
counsel that all other Assistant Engineers,
whose services have been regularized
with due approval by the order dated Ist
Sept., 1992 have been given higher pay
scale. Accordingly, the petitioner cannot
be treated differently from the persons
who have been given higher pay scale
after regularization of service with due
approval of the Commission.

16. Keeping in view the order dated
Ist Sept., 1997, it appears that services of
several
persons
was
regularised
collectively hence the petitioner cannot be
treated differently. Petitioner also falls in
the same category of the employees who
have been regularized in terms of
approval granted by the Commission vide
order dated Ist Sept., 1997. Giving a
different
treatment
denying
the
promotional avenues or higher pay scale
to the petitioner amounts to hostile
discrimination on the part of the State
authority.

17. In view of above, writ petition is
allowed and a writ in the nature of
certiorari is issued quashing the impugned
order dated 1.5.2007 (Annexure-1 to the
writ petition) with all consequential
benefits. We also issue a writ of
mandamus commanding the opposite
parties to reconsider the petitioner's case
for payment of higher pay-scale in terms
of Government Order dated 26.9.1992
(Annexure-11), keeping in view the
observation made in the body of the
present
judgment
expeditiously,
say
within a period of 2 months.

18. No order as to costs.
---------
1 All] Jile Singh V. State of U.P. and another
431
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.03.2011

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Revision No. 1241 of 2011

Jile Singh

 ...Revisionist
Versus
State of U.P. and another ...Opposite Parties

Counsel for the Revisionist:
Sri C.B. Singh

Counsel for the opposite Party:
Sri Lalit Kumar Shukla
A.G.A.

Code of Criminal Proceding:-Section 210offence under Section 302-on the basis
of
material
available
Magistrate
Committed
the
case
for
Trail-after
committal on complaint revisionist also
found
involved-Summoning
Order
Challenged
on
background
after
committal of case-Magistrate became
functus
officio-held-misconceived-case
was
never
committed-against
revisionist-in absence of any material
during investigation-order passed by
Magistrate perfectly justified.

(Delivered by Hon'ble Vinod Prasad, J.)

1. Heard Sri C.B. Singh, learned
counsel for the revisionist, Sri Lalit Kumar
Shukla for the complainant, learned A.G.A.
and perused the record.

2. By this revision summoning order
dated 3.1.2011 passed by the C.J.M.,
Mathura in complaint case no. 3100 of
2009, Tek Chanda Sharma Vs. Jile Singh
and other, for offences under section
302,201 I.P.C. has been challenged.

3. The incident, in the present case
relates with murder of Bharat Lal, in respect
of which an F.I.R. was got registered
against unknown persons. Investigation
which ensued ultimately culminating in
charge sheet Hari Singh as an accused for
the crime. Findings his case triable by Court
of Sessions, the same was committed for his
trial to the Sessions Court where it is still
continuining.

4. Informant, on being aggrieved by
non-filing of charge sheet against the
revisionist, thought it appropriate to file a
complaint case against the revisionist for
committing murder of Bharat Lal. C.J.M.
took cognizance of the offence and after
observing due procedure prescribed for
complaint case summoned the revisionist
vide order dated 3.1.2011 which order now
has been assailed in the instant revision.

5. Supporting the revision, learned
counsel for the revisionist submits that
under Section 309 of the Code, the entire
case in respect of murder of Bharat Lal was
committed to the Sessions Court on the
earlier occasion of another accused Hari
Singh and, therefore, cognizance qua
revisionist on a subsequent occasion by
C.J.M. in respct of that very case is
unsanctified. Learned counsel for the
revisionist
further
submits
that
after
committal of case qua Hari Singh, C.J.M.
had become functus officio. He further
contends that once the charge sheet has
been submitted in respect of a crime, no
further complaint can be entertained in
respect of same incident nor anybody else
can be added as an accused. In support of
his submissions, learned counsel based his
opinion on the decision of the Apex Court
in the case of Jai Chandra Singh and
another Vs. State of Punjab and another
(1997) 1 SCC 345.