# State of U.P. & Ors v. Ram Pati Yadav & Anr

- **Citation:** (2015) 1 ILRA 141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-24
- **Case number:** Special Appeal Defective No. 69 of 2015
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-ram-pati-yadav-anr-43259
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-notional
promotion-denied
on
ground
petitioner/appellant already retired in
2003 itself-while DPC recommended in
the year 2005-with stipulation-order
shall be effective from date of joininglearned
Single
Judge
declined
to
interfere
ignoring
G.O.
23.08.97
providing notional promotional benefitsorder including judgment of Single Judge
set-a-side.
Held: Para-9
The Government Order, on which the
learned Single Judge has placed reliance,
has been carefully scrutinized during the
course of the hearing of the special
appeal.
As
a
matter
of
fact,
the
Government Order adopts a
position
quite contrary to what has been held by
the learned Single Judge. What the
government order stipulates is that
though an employee has since died or
has retired from service, the name of
such an employee would be included in
the eligibility list for the year for which
he has been found to be eligible.
However, the government order clarifies
that there is no legal compulsion to grant
notional promotion and an employee
would be allowed notional promotion
only with effect from the date on which
an employee who was junior to him has
been promoted. This government order
is, in fact, in consonance with the two
judgments of the Supreme Court which
have been referred to earlier.
Case Law discussed:
1989 Supp (2) SCC 625; (1998) 7 SCC 44.

## Text

1 All]
 State of U.P. & Ors. Vs. Ram Pati Yadav & Anr.
141
judgments of the Supreme Court referred
to above would be maintainable.
38. The reference is answered in the
above terms.
39. There shall be no order as to
costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE SUNEET KUMAR, J.
Special Appeal Defective No. 69 of 2015
State of U.P. & Ors. ...Appellants
Versus
Ram Pati Yadav & Anr.
...Respondents
Counsel for the Appellants:
S.C.
Counsel for the Respondents:
Sri O.P. Singh
Constitution of India, Art.-226-notional
promotion-denied
on
ground
petitioner/appellant already retired in
2003 itself-while DPC recommended in
the year 2005-with stipulation-order
shall be effective from date of joininglearned
Single
Judge
declined
to
interfere
ignoring
G.O.
23.08.97
providing notional promotional benefitsorder including judgment of Single Judge
set-a-side.
Held: Para-9
The Government Order, on which the
learned Single Judge has placed reliance,
has been carefully scrutinized during the
course of the hearing of the special
appeal.
As
a
matter
of
fact,
the
Government Order adopts a
position
quite contrary to what has been held by
the learned Single Judge. What the
government order stipulates is that
though an employee has since died or
has retired from service, the name of
such an employee would be included in
the eligibility list for the year for which
he has been found to be eligible.
However, the government order clarifies
that there is no legal compulsion to grant
notional promotion and an employee
would be allowed notional promotion
only with effect from the date on which
an employee who was junior to him has
been promoted. This government order
is, in fact, in consonance with the two
judgments of the Supreme Court which
have been referred to earlier.
Case Law discussed:
1989 Supp (2) SCC 625; (1998) 7 SCC 44.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. The special appeal has arisen
from a judgement and order of the learned
Single Judge dated 8 October 2013 by
which a writ petition filed by the
respondents was allowed and a direction
has been issued to the effect that the
respondents would be entitled to at least
notional promotion on the post of
Commandant from the date on which
other persons in a promotion order dated
13 December 2005 had been given
promotion.
2. For convenience of reference
parties shall be referred to by the array of
parties in the original court proceedings.
3. The two petitioners were
promoted as Platoon Commanders on 29
June 1991 and 9 June 1994 respectively.
On 14 June 2001, they were promoted as
Inspectors, Home Guard Cadre and retired
from service on 30 November 2003 and
31 December 2004. A meeting of the
142
 INDIAN LAW REPORTS ALLAHABAD SERIES
Departmental Promotion Committee1 for
promotion to the District Commandant
Cadre was held for 2003-04 and 2004-05
under
the
U.P.
Public
Service
Commission. The DPC for 2003-04 was
held on 24 October 2005. The petitioners
were found eligible for promotion against
the vacancies for 2003-04. On 13
December 2005, the Principal Secretary in
the Home Department issued promotional
orders for thirteen persons. As against the
names of the first and second petitioners, the
promotional order indicated that they had
retired on 30 November 2003 and 31
December
2004
respectively.
The
promotional orders were to take effect from
the date on which the employees assumed
charge of the promotional post. The
eligibility list was for 2003-04. On 14
December 2005, promotional orders were
issued by the Home Guards Secretariat in
which names of the two petitioners were not
included since they had retired prior to that
date. The petitioners moved a representation
which was disposed of on 22 April 2008.
The order dated 22 April 2008 relied on a
Government Order dated 23 August 1997,
according to which, in the case of an
employee
who
had
retired,
notional
promotion would be granted with effect from
the date on which a junior had been
promoted. In the present case, no junior had
been promoted prior to the date of retirement.
Hence the representation was rejected.
4. That led to the filing of a writ
petition before the learned Single Judge
for challenging the order dated 22 August
2008 and for a mandamus to the
authorities to compute pensionary dues of
the petitioners on the post of District
Commandant (Home Guards) w.e.f. 13
December 2005. The writ petition has
been allowed by the learned Single Judge.
The learned Single Judge has held that
since the petitioners were within the
eligibility criterion of promotion to the
post of Commandant and their names
were considered and found fit by the
DPC, having been mentioned in the
promotional order dated 13 December
2005, they were entitled to at least
notional promotion on the post of
Commandant from the date when other
persons in the order dated 13 December
2005
had
been
given
promotion.
Aggrieved, the State is in special appeal.
5. The issue which falls for
consideration before the Court turns on a
Government Order dated 23 August 1997.
The Government Order states that there is
a provision for preparing an eligibility list
for each year. Accordingly, the name of
an employee would be included in the
eligibility list for that year in which the
employee had been found entitled, even if
in the meantime, the employee had died
or attained the age of superannuation.
However, the Government Order states
that where the question of notional
promotion is concerned, there is no legal
compulsion to grant promotion with effect
from the date on which the vacancy has
arisen. Notional promotion would be
granted in the event of a junior being
promoted, upon the employee being found
fit by the DPC.
6. The law on the subject, is well
settled.
7. In Union of India vs. K.K.
Vadera2, the Supreme Court held that
after a post falls vacant for any reason
whatsoever, a promotion to that post
should be from the date the promotion is
granted and not from the date such post
falls vacant. Similarly, there is no
principle of law under which a promotion
1 All]
 State of U.P. & Ors. Vs. Ram Pati Yadav & Anr.
143
is to be effective from the date of creation of
a promotional post since promotions can be
granted only after the Assessment Board has
met and made its recommendations for the
grant of promotions. On the other hand, if
promotions are directed to be effective from
the date of creation of the additional posts,
then in such eventually, it would have the
effect of giving promotions even before the
Assessment Board has met and assessed the
suitability of the candidates for promotions.
This judgment was followed by a subsequent
judgement in Baij Nath Sharma vs. Hon'ble
Rajasthan High Court at Jodhpur and
another3 where the Supreme Court held that
there was no rule in that case under which an
officer was to be granted promotion from the
date when the post fell vacant. Moreover, it
was held that, in the case, no officer who had
been junior to the appellant, had been
promoted to the Higher Judicial Services.
8. In the present case, as the facts
would
indicate,
the
name
of
the
petitioners
were
considered
by
the
Departmental
Promotional
Committee
together
with
other
persons.
The
Departmental Promotion Committee, as
was stated in the counter filed by the
State, met on 24 October 2005. The
petitioners
were
found
eligible
for
promotion for 2003-04. However, in the
case of all employees, the orders of
promotion were to be effective from the
date on which the employees assumed
charge on the promotional post. This is
evident from a notification dated 13
December 2005 issued by the Home
Department with the approval of the
Governor. The petitioners had, in the
meantime, retired respectively on 30
November 2003 and 31 December 2004.
9. The Government Order, on which
the learned Single Judge has placed
reliance, has been carefully scrutinized
during the course of the hearing of the
special appeal. As a matter of fact, the
Government Order adopts a position quite
contrary to what has been held by the
learned
Single
Judge.
What
the
government order stipulates is that though
an employee has since died or has retired
from service, the name of such an
employee would be included in the
eligibility list for the year for which he
has been found to be eligible. However,
the government order clarifies that there is
no legal compulsion to grant notional
promotion and an employee would be
allowed notional promotion only with
effect from the date on which an
employee who was junior to him has been
promoted. This government order is, in
fact,
in
consonance
with
the
two
judgments of the Supreme Court which
have been referred to earlier.
10. Significantly, in the writ petition
which was filed by the petitioners, there
was no averment to the effect that any
junior had been promoted prior to the date
on which the petitioners superannuated.
Moreover, no entitlement was claimed on
the basis of any rule allowing the benefit
of notional promotion.
11. In this view of the matter, the
learned Single Judge was in error in
holding that the petitioners would be
entitled to notional promotion at least, on
the post of Commandant from the date
when other persons in the order dated 13
December 2005 had been given such
promotion. As a matter of fact, the other
employees were given promotion by the
order dated 13 December 2005 with effect
from the date on which they assumed
charge. By then, the petitioners had
already retired.
144
 INDIAN LAW REPORTS ALLAHABAD SERIES
12. For these reasons, we allow the
special appeal and set aside the impugned
judgment of the learned Single Judge
dated 8 October 2013. In consequence,
the writ petition filed by the petitioners
before the learned Single Judge shall
stand dismissed.
13. There shall be no order as to
costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE SUNEET KUMAR, J.
Special Appeal No. 99 of 2015
Indra Bahadur Srivastava ...Appellant
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Appellant:
Sri Rajesh Kumar Srivastava
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Interestclaimed of 11 months 25 days-delay in
payment of provident fund-initially the
authorities
released
90%
gratuity-but
realizing their mistake as being class IVentitled for full payment-issued cheque
with
incorrect
particulars
of
namesubsequently corrected cheque issuedbeing class 4th employee compelled to rush
up the court on two times-Single Judge
wrongly denied interest-held-entitled for
9% interest from due date to the actual
date of payment within 3 months-in case of
default-12 % interest would be payableappeal allowed.
Held: Para-5 & 6
5. In these circumstances, the claim of
interest was sustainable. The learned
Single Judge has erred in coming to the
conclusion that there was no willful
delay where the facts of the present case
are indicative that there was a clear
dereliction on the part of the officials of
the State.
6.
In these circumstances, we direct that
the
appellant
shall
be
paid
interest
computed at 9% per annum on the
provident fund amount from the due date
until it was actually paid to the appellant.
Since the appellant had already been paid
the provident dues, the interest shall be
payable to him no later than within a period
of three months from the date of receipt of
a certified copy of this order computed at
the rate of 9% per annum as stated above.
In the event of any further delay beyond
the period of three months from the receipt
of a certified copy of this order, the State
shall pay interest at the rate of 12% per
annum until payment is made.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. The appellant retired on 31
August 2011 from the post of Meth in the
Irrigation Department. On 18 May 2012,
after retirement of the appellant, a cheque
in the amount of Rs.3,06,052/- was paid
over to him. The cheque was however
drawn in the name of ?Indra Bahadur?
whereas the correct name of the appellant
as in the service record was Indra
Bahadur Srivastava. The cheque was
returned
back
by
the
treasury.
Subsequently, on 5 June 2012, the
appellant moved an application for the
issuance of a fresh cheque in the correct
name of the appellant. Eventually on 22
August 2012, a cheque was issued to the
appellant in the amount of Rs.3,06,052/-.
2. The appellant claimed interest for
the delay of eleven months and twenty