Digpal Singh Patwal vs State of Uttarakhand & Ors.

Hon’ble Mr. Justice Rakesh Thapliyal, J.

By the instant petition, the petitioner is praying for the following reliefs:-

It is submitted by the learned counsel for the petitioner that the petitioner was initially inducted as an Assistant Teacher in Government Primary School in the year 1996, and thereafter, he was promoted to the post of Assistant Teacher in Junior High School. Subsequently, by order dated 04.11.2015, the petitioner was further promoted to the post of Headmaster in Government Higher Primary School and posted at Block Thalisain, Pauri Garhwal. It is submitted that since the petitioner was at the verge of retirement at the time of said promotion, he make a request by moving a representation on 14.11.2015 whereby he has requested to the District Education Officer (Basic, Pauri Garhwal) to amend the order of promotion and give suitable place of posting in the nearby places as per his own choice. He also submits that at the time when the promotion order was issued, the petitioner was suffering from several ailments and he did not join at the place where he was promoted and since he was in anticipation that a positive decision will be taken on his representation with regard to his proper place of posting in the promoted post, but no action was taken thereon, and in the meantime, other persons were promoted and given proper place of posting. Subsequently, he preferred a writ petition i.e. WPSS No.1783 of 2016, wherein, he sought a relief for the amendment of place of posting in the order of promotion dated 04.11.2015, which was disposed of by this Court on 26.09.2016 by directing the District Education Officer to consider the representation of the petitioner.

In compliance of order of the writ court dated 26.09.2016, the respondents amend the place of posting in order of the promotion dated 04.11.2015 and posted the petitioner as Headmaster in Government Higher Primary School Saudu (Kwisu) Block Khirsu, Pauri Garhwal, where he served as Headmaster till his retirement i.e. December, 2016.

It is submitted that though by subsequent order on the place of posting was amended in the year 2016 in the initial order of promotion dated 04.11.2015 but for other service benefits petitioner is being treated from the date of order of amendment which only relates to place of posting. Consequently, the petitioner filed another writ petition i.e. WPSS No.741 of 2017, which was also disposed of finally on 24.04.2017 whereby the respondent no.3 was directed to decide the representation, however, the representation was rejected by the order impugned dated 24.06.2017 on the ground that since the petitioner join the promoted post in October, 2016, therefore, he cannot be granted benefits of the promoted post w.e.f 04.11.2015, the date when the initial order of promotion was passed. Now being aggrieved by the order impugned, by which the representation of the petitioner was rejected, the instant writ petition is preferred.

It is argued by the learned counsel for the petitioner that the subsequent order of promotion is nothing but an amendment to the initial order of promotion dated 04.11.2015, therefore, the petitioner should be treated to be promoted by virtue of initial order of promotion dated 04.11.2015, and as such, he is entitled to get all the benefits arising out of the order of promotion dated 04.11.2015.

On the other side, Mr. G.S. Negi, learned Addl. CSC submits that though the initial order of promotion was issued on 04.11.2015 but the petitioner did not join and subsequently he join to the promoted post pursuant to an order by which the initial order of promotion was amended, therefore, the petitioner is not entitled to get the benefit in terms of initial order of promotion dated 04.11.2015. He further submits that since the petitioner report his joining to the promoted post pursuant to the amended order of promotion dated 22.12.2015, therefore, the re-fixation was rightly done by treating him to be promoted pursuant to the order dated 22.12.2015

After hearing the submissions of the learned counsel for the parties and after gone through with the order of the promotion dated 04.11.2015 and subsequent amended order of promotion dated 22.12.2015, no doubt the petitioner join to the promoted post pursuant to the amended order of promotion, and he is not entitled to get all consequential benefits except the arrears of salary in terms of the initial order of the promotion dated 04.11.2015. Now the petitioner already retire from service, therefore, for the purposes of re-fixation of pension, the initial order of promotion dated 04.11.2015 cannot be ignored.

There is another aspect of the matter that promotion is nothing but the continuation of the service, therefore, for the purposes of fixation of pension, the entire length of service has to be taken into consideration by treating the petitioner to be promoted w.e.f. 04.11.2015.

In such view of the matter, the instant writ petition is disposed of finally by directing the respondents to re-fix the pensionary benefits of the petitioner by treating him to be promoted on the post of Headmaster w.e.f. 04.11.2015, however, the petitioner will not claim the arrears of salary, particularly when, he joined to the promoted post by virtue of the amended order of promotion dated 22.12.2015. The entire exercise for re-fixation of pension shall be carried out by the respondents within one month positively from the date of the receipt of the certified copy of this order.