Sheshmani Pandey vs Secretary Food, Civil Supplies and Consumer Protection Mantralaya

The appellant while working in the Department was compulsorily retired by the order passed on 31/07/2002. The retirement order was passed under Rule 42(1)(b) of the Madhya Pradesh Civil Services (Pension) Rules, 1976. The appellant filed a writ Petition No. 20078/2003, in which the learned writ Court has passed the impugned order on 15/05/2013. Challenging his compulsory retirement in the said writ petition two relief were claimed. The first relief was to hold that compulsory retirement is illegal; and, second relief was that during the period when he was compulsorily retired, some junior of the petitioner were promoted to the post of Assistant Supply Officer and, therefore, appellant claimed retrospective promotion at par with that of his juniors. When the petition was pending, it seems that the order of compulsorily retirement was recalled and the appellant/petitioner was reinstated in service, but for the intervening period when he was compulsorily retired, he was not paid any salary. The matter was taken up by this Bench and it was held that as the compulsorily retirement was recalled by the Department, the petitioner was entitled the benefit of salary and others benefits, and, therefore this Court passed an order on 9.3.2010.

However, thereafter the petition for grant of retrospective promotion on the post of Assistant Supply Officer was also disposed of by an order passed on 9.3.2010 and in the said matter, the following directions were issued:

“(ii) Respondent shall convene a review DPC within a period of six months from the date of communication of this order and consider the case of the petitioner for his promotion on the post of Assistant Supply Officer from the date on which juniors of the petitioner were promoted on the said post and if petitioner is found fit for promotion, respondents shall promote the petitioner notionally and for the purpose of monetary benefit for pension.”

Against this order review and writ appeals were filed and finally an order was passed on 2.1.2013 in Writ Appeal No. 210/2012, remanding the matter back to the writ court for consideration. After remand, the writ Court passed the impugned order on 15.1.2013 and directed for considering the case of the appellant for promotion by holding a review DPC at par with his juniors, but denied the benefit of arrears of salary for the intervening period on the principle of ‘no work no wages’.

Challenging this direction for treating the promotion granted in the intervening period on the principle of ‘no work no wages’, this writ appeal has been filed.

We have heard learned counsel for the parties on the aforesaid question and we find that the appellant/petitioner has been considered for grant of promotion on the post of Assistant Supply Officer at par with his juniors, but only notional promotion is granted and he has been denied the benefit of arrears of salary for the intervening period. Consequently, arrears of pension also has been denied.

Shri N.K. Sharma, learned counsel for the appellant, invites our attention to the orders passed by this Court in Writ Petition No. 20162/2003 (Shankar Prasad Shrivastava Vs. State of Madhya Pradesh & another) decided on 12.1.2009 and another order passed in Writ Petition No. 8666/2004 (Mohammed Zahir Khan vs. State of Madhya Pradesh & others) decided on 18.2.2010. It is pointed out that in both these cases also the petitioners therein were working as Food Inspector and they claimed for promotion to the post of Assistant Supply Officer saying that the some juniors to them have been promoted. It is said that the order passed in the case of Shankar Prasad Shrivastava (supra) and Mohammed Zahir Khan (supra). Apart from granting retrospective promotion to the post of Assistant Supply Officer, the other consequential benefits has also been granted and for doing so, the judgment rendered by the Supreme Court in various cases for applying the principle of granting retrospective promotion with monetary benefit has been considered. It has been held that the employees retrospective promotion are entitled for salary for the period, they could not work on the promotional post.

Learned counsel for the appellant argued that the learned writ Court in the present case committed an error in only granting monetary benefit for promotion. He was at the first instance, compulsorily retired and thereafter denied due promotion at par with that of his juniors.

Shri Rahul Jain, learned Deputy Advocate General, refuted the aforesaid. However, the documents and material available on record goes to show that in the case of Shankar Prasad Shrivastava (supra) and Mohammed Zahir Khan (supra), Benches of this Court after taking note of the principle of law laid down in the case of Union of India Vs. K.V. Jankiraman, etc. etc., ; and, Seeta Charan Banwari Vs. M.P. Rajya Bhumi Vikas Nigam and Another, , has granted benefit of arrears of salary on retrospective promotion to identically situated employees, who were also promoted to the post of Assistant Supply Officers by virtue of a review DPC ordered by this Court.

The present case of the appellant is identical to the cases of Shankar Prasad Shrivastava (supra) and Mohammed Zahir Khan (supra). These were working in the same Department and were promoted to the post of Assistant Supply Officers by the review DPC held. The appellant''s case was considered for the promotion at par with that these persons. If Mohammed Zahir Khan and Shankar Prasad Shrivastava who were identically situated employees like the appellant, can be granted monetary benefits, arrears and salary re-fixation of pay and pensionary benefit on such promotion, there is no reason as to why similar benefit should not be granted to the appellant. The appellant was considered for promotion and should be granted the monetary benefits, identical in nature. There should not be any discrimination as the appellant was not at fault, in not getting the promotion, he was denied promotion because he was compulsorily retired and the order of compulsorily retirement has been withdrawn.

In view of the aforesaid facts and circumstances of the case, this appeal is allowed. The direction issued by the learned writ Court and the order dated 15.05.2013 passed in Writ Petition No. 20078/2003 are modified to the extent that the appellant shall be entitled for promotion to the post of Assistant Supply Officer with all the consequential monetary benefits. He shall be entitled to pay salary of Assistant Supply Officer from the date on which his juniors were promoted; and, proper pay fixation and the entire arrears be granted to the appellant within a period of 3 months from the date of receipt of certified copy of this order.

In view of aforesaid direction, this appeal is disposed of.