State of U.P. & Ors. vs Smt. Chandrama Ramola

We have heard Mrs. Beena Pandey, Standing Counsel for the State of U.P. and Mr. Tarun Lakhera, Advocate for the respondent.

The husband of the respondent was working as an officiating Up Arnyapal under the control of the respondents and he was retired from service after attaining the age of superannuation in the year 1979. During the period from 09.11.1976 to 30.04.1978, he was given promotion on ad hoc basis on the post of Deputy Conservator of Forest and he worked as such. Eight other officers who were admittedly junior to the husband of respondent also worked on ad hoc basis on the post of Deputy Conservator of Forest. They were paid the pay scale of the post of Deputy Conservator of Forest, however, the same was not given to the husband of respondent. He was also not paid GPF, TA bills, leave encashment, city compensatory allowance, gratuity, etc., therefore, he filed claim petition before the Public Services Tribunal for the following relief:

"1. That the higher pay scale be granted to the petitioner ignoring the order dated 16.8.2002 contained in Annexure No.1 of the claim petition and the pension be revised and the arrears be paid to the petitioner with 18% interest with all the consequential benefits. 2. That the amount of the GPF, TA Bills, leave encashment, Nagar Bhatta, gratuity, etc. which are due to the petitioner be paid to him at the rate of 18% interest since the date of the due to the actual date of the payment."

The petitioners filed the written statement before the Tribunal and denied the claim of respondent''s husband on the ground that he has approached the Tribunal after a long time. After hearing the parties, the learned Tribunal allowed the claim petition.

Petitioners have filed the writ petition seeking the following relief:

"1. Issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 03.07.2009 passed by State Public Service Tribunal, Uttarakhand at Dehradun in Claim Petition no.15 of 2004, Smt. Chandrama Ramola (substituted in place of her husband Late Sri Indra Chandra Ramola) vs. State of U.P. and others, in so far as the direction issued vide para 21 and 22, granting promotional pay scale w.e.f. 09.11.1976 to 30.04.1978, respondent no.2, and the subsequent revision of pension."

Petitioners are aggrieved by the directions issued by the learned Tribunal in para-21 & 22 of its judgment. Para-21 & 22 of the impugned judgment are extracted hereunder:

"21. The next question about the admissibility of promotional pay, perusal of record amply clarify that the benefit of higher pay scale for acting post was given to 8 officers, who were permanent as Assistant Conservator of Forest and were appointed as Dy. Conservator of Forest on Ad-hoc basis (rnFkZ inksUUfr) were given pay scale of Dy. Conservator of Forest by Govt. Notification No.5564/14//-1-79-162/73 dated 25.6.1979 as evident by Govt. Letter No.855/14-1-1982 dated 29.1.1982 available on record. Though, petitioner was retired in 1978; but benefit of acting post was definitely given to officers, junior to the petitioner. Therefore, petitioner cannot be denied higher pay scale, while he was working on promotion to higher post from, 9.11.1976 to 30.4.1978. In this context, learned Counsel for the petitioner has referred the judgment of Hon''ble Apex Court 1983 (2) SLR-SC-P/734 by which the salary of acting post has been allowed. Therefore, this question is decided in favour of the petitioner. The respondents are directed to pay the higher pay scale for acting period to the petitioner i.e. from 9.11.1976 to 30.4.1978 alongwith D.A.+A.D.A. for this period as admissible.

The next issue relates to entitlement of the petitioner for any revision of pension. This claim has direct bearing on the last pay drawn at the time of superannuation. However, since the question of revision of pay has already been determined in above para, by which petitioner has been allowed the benefit of pay scale for the period of his promotion to the post of Dy. Conservator of Forest in acting period. He shall be entitled for revision of pension after fixation of pay at the time of superannuation. Therefore, petitioner shall be entitled for consequential benefits of revision of pension."

The sole contention raised by learned Standing Counsel appearing for the State of U.P. is that the husband of the respondent could not be granted promotional pay scale w.e.f. 09.11.1976 to 30.04.1978 and the subsequent revision of pension, inasmuch as, he had filed the claim petition after 25 years of retirement. To buttress her argument, learned Standing Counsel has relied upon a judgment of the Hon''ble Supreme Court passed in the case of U.P. Jal Nigam and Another vs. Jaswant Singh and another reported in (2006) 11 Supreme Court Cases 464, wherein it is held that when a person is not vigilant of his rights and acquiesces with the situation, and acquiescence prejudices, or there is a change of position on the part of the party allegedly violating the rights, such person''s writ petition cannot be heard after the delay on the ground that same relief should be granted as was

granted to persons similarly situated, but who were vigilant of their rights.

In ordinary circumstances, we would have accepted the argument advanced by learned Standing Counsel on delay and laches, but, in the case at hand, when admittedly benefit of higher pay scale had been given to the persons appointed on ad-hoc basis and juniors to the husband of respondent, the same cannot be denied to respondent''s husband by the employer, merely, on the ground that he has not represented on time and approached the Tribunal at a belated stage. In our considered view, it is the duty of the employer to grant the same relief to the petitioner also, as was granted to the juniors. The employer cannot be permitted to raise the issue of delay. Employee is not supposed to make representation for payment of salary as it is the duty of the employer not only to make payment of monthly salary to the employee but also to make payment of correct salary which employee is entitled for. So far as the judgment relied upon by the learned Standing Counsel is concerned, the same is of no help to the petitioners, inasmuch as, in that case, the relief was granted by the order of the Court to the employees who approached the Court earlier and was denied to the persons similarly situated who approached the court after their retirement. But, in the present case, it was the right of husband of respondent to get salary of the post of Deputy Conservator of Forest and the petitioners were duty bound to give that pay scale to him for a particular period. In fact in such type of cases, where department deliberately withholds payment of the workman/employee, the employee should also be given interest for that period.

In view of above discussion, the writ petition lacks merit and the same is hereby dismissed.

No order as to costs.