Mahendra Pal Singh Khat i v. St at e

Judgment

( p e r H o n ’ b l e Ju st i c e Sr i M a n o j K u m a r Ti w a r i )

1. St at e has filed t his writ pet it ion challenging t he j udgm ent dat ed

22.02.2018 rendered Ut t arakhand Public Services Tribunal in Claim Pet it ion No.21/ NB/ DB/ 2016. By t he said j udgm ent , learned Tribunal allowed t he claim pet it ion filed by respondent no.1 and direct ed t he aut horit ies t o pay t he arrears of pay and ot her m onet ary benefit s of t he post of Superint ending Engineer t o respondent no.1 from t he dat e of his not ional prom ot ion i.e. 01.10.2005 and also t o grant t he benefit of ACP from 01.01.2006 inst ead of

01.09.2008. Operat ive port ion of t he im pugned j udgm ent is reproduced below: - “ The claim pet it ion is her eby allow ed and t he im pugned order dat ed 2.1.2016 and 1 consequent ial

dat ed

08.02.2016 ( Annexure: 14 & 15) are her eby set aside. The respondent s are direct ed t o pay all t he arrear s of pay and ot her m onet ar y benefit s of t he post of Superint ending Engineer t o t he pet it ioner t he dat e of his not ional prom ot ion i.e. 01.10.2005 and t o grant t he benefit of ACP from 01.1.2006 inst ead of

01.09.2008, wit hin a period of four m ont hs from t oday. No order as t o cost s.”

2. I t t ranspires t hat respondent no.1 was appoint ed as Assist ant Engineer in St at e Public Works Depart m ent in erst while St at e of U.P. Upon St at e reorganizat ion, respondent no.1 opt ed for St at e of Ut t arakhand, however, he was not allot t ed St at e of Ut t arakhand and was allot t ed St at e of U.P. on t he ground t hat he was not a m em ber of hill cadre.

3. On 09.11.2000, when St at e was reorganized, respondent no.1 was serving as Execut ive Engineer. Vide order dat ed 11.04.2008, he was prom ot ed not ionally Superint ending Engineer w.e.f.

13.12.2007 on t he ground t hat his j unior, nam ely, Ghanshyam Swaroop Bansal was provisionally prom ot ed from t he said dat e. I n t he prom ot ion order dat ed 11.04.2008, however, it was m ent ioned t hat t he said prom ot ion is subj ect t o t he final allocat ion m ade by t he Cent ral Governm ent and also subj ect t o t he j udgm ent rendered in Writ Pet it ion No.32 of 2008 “ Mahendra Pal Singh Khat i vs. St at e” . Subsequent ly, by office m em o dat ed 08.08.2008 issued by Secret ary, 2 Public Works Depart m ent , Ut t arakhand, respondent no.1 was relieved for St at e of U.P. in which his designat ion was m ent ioned as Execut ive Engineer ( Civil) . Respondent no.1 j oined dut ies in St at e of U.P. pursuant t o aforesaid relieving order. Thereaft er, by an dat ed

11.12.2008 passed Cent ral Governm ent , respondent no.1 was finally allot t ed t o St at e of Ut t arakhand. Consequent t o his allot m ent t o St at e of Ut t arakhand, respondent no.1 j oined dut ies as Execut ive Engineer ( Civil) in Ut t arakhand Public Works Depart m ent on 15.01.2009. Upon j oining dut ies in St at e of Ut t arakhand, respondent no.1 m ade represent at ion, st aking claim for prom ot ion t o t he post of Superint ending Engineer ( Civil) w.e.f. 01.10.2005.

4. Since t he Com pet ent Aut horit y did not pass any order on t he represent at ion m ade by respondent no.1, t herefore, he filed Writ Pet it ion Nos.35 ( S/ B) of 2011, which was disposed of wit h direct ion t o t he Com pet ent Aut horit y t o consider represent at ion of respondent no.1. Pursuant t o t he order passed in t he said writ pet it ion, Principal Secret ary, Public Works Depart m ent , Ut t arakhand passed

13.07.2012 grant ing not ional prom ot ion Superint ending Engineer t o respondent no.1 w.e.f.

01.10.2005. I n t he said order, however, it was provided t hat since respondent no.1 has not served as Superint ending Engineer, t herefore, he shall not be ent it led t o arrears of salary and t he not ional prom ot ion is being given t o him only for t he purpose of pay fixat ion. 3

5. I t is an adm it t ed posit ion t hat respondent no.1 ret ired from service on 30.06.2009. Aft er ret irem ent , he filed Claim Pet it ion No.21/ NB/ DB/ 2016 for t he following reliefs: - “ i) To issue an order or direct ion direct ing t he respondent s t o pay all arrears of pay and ot her m onet ary benefit s t o t he pet it ioner on t he post of Superint ending Engineer from t he dat e of not ional prom ot ion i.e. 01.10.2005 as given t o Sri R.K. Goel. ii) To issue an order or direct ion direct ing t he respondent s t o sanct ion and pay t he benefit s of ACP from 0101.2006 inst ead of 01.09.2008 as given t o his j unior Mr. V.K. Tr ehan. ii( a) To issue an or der or dir ect ion t o set aside t he im pugned or der dat ed 02.01.2016 along wit h consequent ial order dat ed 08.02.2016. iii) To pass any ot her suit able order as t his Hon’ble Tribunal m ay deem fit and proper under t he fact s and cir cum st ances of t he case. vi) To award t he cost of t he pet it ion in favour of t he applicant s.”

6. The claim pet it ion was allowed by learned Tribunal and t he Com pet ent Aut horit y was direct ed t o pay t he ent ire arrears of pay and ot her m onet ary benefit s of t he post of Superint ending Engineer t o respondent no.1 w.e.f. 01.10.2005 and also t o grant him benefit of ACP w.e.f. 01.01.2006. 4

7. Learned St at e Counsel subm it s t hat learned Tribunal erred in allowing t he claim pet it ion filed by respondent no.1 by ignoring t he averm ent m ade in para- 3 of t he count er affidavit filed in reply t o t he claim pet it ion, wherein it was st at ed t hat respondent no.1 was not ionally prom ot ed as Superint ending Engineer w.e.f. 01.10.2005 wit h t he condit ion t hat he shall not be ent it led t o arrears of salary on t he st rengt h of such not ional prom ot ion and it was furt her st ipulat ed t hat not ional prom ot ion is given only for t he purpose of pay fixat ion. Thus, he subm it s t hat wit hout dealing wit h t he said condit ion, learned Tribunal has allowed t he claim pet it ion, which is legally unsust ainable, t herefore, t he j udgm ent rendered by learned Tribunal is liable t o be set aside.

8. Learned St at e Counsel furt her subm it s t hat since t here was an em bargo placed in t he order of not ional prom ot ion against grant of arrears of salary, t herefore, wit hout set t ing t he condit ion m ent ioned in t he order of t he not ional prom ot ion dat ed

13.07.2012, direct ion t o release arrears of pay and ot her m onet ary benefit s t o respondent no.1 for t he post of Superint ending Engineer w.e.f. 01.10.2005, was not proper.

9. Learned St at e Counsel furt her subm it s t hat t he direct ion t o grant benefit of ACP t o respondent no.1 w.e.f. 01.01.2006 is also not sust ainable, as he was prom ot ed, t hough not ionally, as Superint ending Engineer w.e.f. 01.01.2005, t herefore, he was not 5 ent it led t o t he benefit of ACP, which is given t o an em ployee in lieu of prom ot ion. He subm it s t hat ACP Schem e was int roduced t o com pensat e St at e em ployees for st agnat ion on a post for want of prom ot ional avenues. He subm it s t hat since respondent no.1 earned prom ot ion as Superint ending Engineer w.e.f. 01.10.2005, t herefore, he was not ent it led t o ACP wit hin t hree m ont hs from t he dat e of prom ot ion as Superint ending Engineer.

10. We find subst ance in t he subm issions m ade by learned St at e Counsel. I n para- 3 of count er affidavit filed by St at e before learned Tribunal, t here was a reference t o t he condit ion cont ained in order dat ed

13.07.2012, whereby respondent no.1 was not ionally prom ot ed as Superint ending Engineer. Respondent no.1 accept ed t he said condit ion wit hout any dem ur and he did not challenge t he condit ion t hat he will not be ent it led t o arrears of salary on account of his not ional prom ot ion. St at e had pleaded before learned Tribunal t hat because of t he condit ion, respondent no.1 is not ent it led t o arrears of salary for his not ional prom ot ion, however, learned Tribunal appears t o have overlooked said aspect while deciding t he claim pet it ion.

11. Since t he condit ion m ent ioned in t he order dat ed 13.07.2012 goes t o t he root of t he m at t er and disent it les respondent no.1 from any m onet ary benefit s on account of his not ional prom ot ion, which aspect , however, has not been considered by learned Tribunal, t herefore, in our considered opinion, t he j udgm ent 6 rendered by learned Tribunal cannot be sust ained in t he eyes of law.

12. Mr. V.K. Kaparuwan, learned counsel respondent no.1 has apprised t he Court t hat t he direct ion regarding grant of ACP t o respondent no.1 w.e.f. 01.01.2006 has been carried out by t he St at e and t he m onet ary benefit s, in t erm s of said direct ion, have been paid.

13. I n view of foregoing discussion, t he direct ion t o release arrears of pay and ot her m onet ary benefit s of t he post of Superint ending Engineer t o respondent no.1 from t he dat e of his not ional prom ot ion, i.e.

01.10.2005, int erfereable. Therefore, t he writ pet it ion is part ly allowed and t he im pugned j udgm ent is set aside t o t he ext ent it direct s t he St at e t o grant m onet ary benefit s t o respondent no.1 for t he post of Superint ending Engineer w.e.f. 01.10.2005. Since t he benefit of ACP w.e.f. 01.01.2006 has already been given t o respondent no.1 by t he St at e, t herefore, we refrain from int erfering wit h t he second direct ion issued by learned Tribunal. ( Su b h a sh Up a d h y a y , J.) ( M a n o j K u m a r Ti w a r i , J.) 02.07.2025 02.07.2025 Raj ni RAJINI GUSAIN DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=97cfa6e4cbd49c07b876db4844 8ac3701a9ae475a2547e4b7f1d9b1f17d0 1342, postalCode=263001, st=UTTARAKHAND, serialNumber=8D039BC77BD1A2222B4D F4FC80D4557562F95BEBA013F530616A 158A0A878BD8, cn=RAJINI GUSAIN 7