1. Heard Sri Apoorva Tewari, learned counsel for the petitioner and Sri Shireesh Kumar, learned counsel for the opposite parties.
2. By means of the present writ petition, the petitioner has prayed following reliefs:-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may very kindly be pleased to:
a) To issue a writ, order or direction in the nature of certiorari to quash the impugned orders dated 06.07.2018 and 21.07.2018 annexed as Annexure No. 1 and 2 respectively to this writ petition;
b) To issue a writ, order or direction in the nature of mandamus commanding the opposite parties to revise the salary of the petitioner by providing the annual increments to the petitioner from 01.02.1999 till 31.07.2017 and to grant the first promotional pay scale to the petitioner w.e.f. the year 2004 and further grant the benefits of the sixth pay commission on the basis of the revised salary;
c) To issue a writ, order or direction in the nature of mandamus commanding the opposite parties to revised the gratuity payable to the petitioner on the basis of the revised salary as aforesaid;
d) To issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pay the arrears due consequent to the revision of salary and gratuity as aforesaid;
e) To issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pay the petitioner his provident fund dues for the period 2009 to 2017 and arrears of salary for the period the petitioner remained under suspension;
f) To issue any other writ, order or direction which this Hon'ble Court may deem just, fit and proper in the interest of justice.
g) To award costs to the petitioner."
3. Brief facts of the case are that the petitioner was appointed on the post of Junior Engineer in the U.P. Cooperative Federation Limited (hereinafter referred to as "Federation" in short) on ad-hoc basis on 6.2.1984. Services of the petitioner were regularized on 19.4.1991.
4. On 22.8.2002, the petitioner was placed under suspension in contemplation of disciplinary proceedings. The charge sheet dated 29.11.2002 was rescinded and a fresh charge sheet was issued to the petitioner on 14.2.2003. The petitioner replied to the charge sheet on 30.9.2003 under protest as he was not afforded an opportunity to inspect the documents.
5. On 6.2.2004, the suspension of the petitioner was revoked and he resumed his regular duties. The petitioner was paid only 50% of the salary as subsistence allowance during the period of his suspension i.e. from 22.8.2002 to 6.2.2004.
6. On 4.2.2009, the petitioner was dismissed from service of the Federation and recovery to the tune of Rs.17,52,764.58 was directed to be made from him.
7. Feeling aggrieved from the order of dismissal dated 4.2.2009, the petitioner filed a writ petition before this Court bearing Service Single No.2954 of 2009; Abdul Rauf Vs. U.P. Co-Operative Federation Ltd. & Another.
8. During pendency of aforesaid writ petition, the petitioner reached the age of superannuation on 31.7.2017.
9. This Court allowed the writ petition of the petitioner and quashed the punishment order 4.2.2009 vide judgment and order dated 18.12.2017. The aforesaid order is enclosed as Annexure No.6 to the writ petition. Operative portion of the judgment and order dated 18.12.2017 reads as under:-
"This Court having regard to the facts and circumstances of the case, is of the considered opinion that the impugned order being illegal and arbitrary calls for the issuance of a writ of certiorari and accordingly the order contained in Annexure-1 issued on 4.2.2009 is hereby quashed with all consequences. The petitioner would be entitled to 50% salary from the date of dismissal from service up to the date of retirement. The pensionery benefits admissible to the petitioner shall, however, remain unaffected and he shall be treated as if he was in service up to the date of attaining the age of superannuation. The consequential benefits shall be paid not later than a period of three months from the date of service of a certified copy of this judgement.
The writ petition is allowed with no order as to cost."
10. As per Sri Tewari, this Court not only quashed the punishment order dated 4.2.2009 but directed that the petitioner shall be entitled for all consequences. This Court further provides that the petitioner would be entitled to 50% salary from the date of dismissal to the date of his retirement. It further provides that the pensionery benefits admissible to the petitioner shall remain unaffected and he shall be treated as if he was in service upto the date of attaining the age of superannuation.
11. Therefore, as per Sri Tewari, this Court has categorically clarified the benefits extended to the petitioner pursuant to the judgment and order dated 18.12.2017. Sri Tiwari has informed that the Federation has not challenged the aforesaid judgment and order dated 18.12.2017 by filing special appeal before this Court or by filing Special Leave to Appeal before the Apex Court. As a matter of fact, the aforesaid judgment has attained finality.
12. Sri Tewari has submitted that immediately after receiving the certified copy of the judgment and order dated 18.12.2017, the petitioner served the judgment upon opposite party no.2 on 22.12.2017 but no compliance has been made. Thereafter, the petitioner sent a reminder representation on 24.5.2018 but to no avail. Under such compelling circumstances, the petitioner filed a contempt petition bearing Contempt No.1544 of 2018, Abdul Rauf Vs. Pramod Kumar Upadhyaya, M.D., U.P. Coop. Federation Ltd. & Anr.
13. After service of contempt notice upon the opposite party, opposite party no.2 passed an order dated 6.7.2018 whereby it has been decided that the petitioner would be paid arrears of salary on the basis of salary as drawn by the petitioner on 1.2.1999, effectively denying the petitioner all pay revisions made available to other identically placed employees of the Federation.
14. On 21.7.2018, the arrears of salary have been worked out without granting the petitioner benefit of all pay revisions made available to other identically situated employees of the Federation. On 23.7.2018, the petitioner was paid a sum of Rs.11,15,558/- as arrears of salary and retiral dues.
15. On 1.8.2019, the contempt notices in contempt petition were discharged, however, liberty was given to the petitioner to agitate the issue of the reliefs which the petitioner felt entitled in terms of the judgment and order dated 18.12.2017 passed by this Court in his case.
16. Sri Tewari has submitted that the petitioner and one Sri Vijay Singh Yadav were regularized vide the same order and Sri Yadav retired from service from the post of Junior Engineer on 30.9.2018 and his last salary drawn amounted to Rs.1,00,576/- whereas the last drawn salary of the petitioner was treated as Rs.13,730/-.
17. Sri Apoorva Tewari has submitted that in compliance of the judgment and order dated 18.12.2017, the petitioner should have been paid all consequential service benefits ignoring the impugned punishment order dated 4.2.2009 as if such order was not passed against the petitioner and the petitioner remained in service till his age of superannuation. However, pursuant to the judgment and order dated 18.12.2017, the petitioner was only entitled for 50% salary from the date of his dismissal of service to the date of his retirement but for other consequential benefits including pensionery benefits, he was entitled for all benefits, which have been paid to the identically placed employees. Since the judgment and order dated 18.12.2017 has not been assailed by the Federation before the superior court, rather accepted such judgment, therefore, the concerning authority might have not legally deviated from such directions of this Court.
18. Sri Tewari has placed reliance upon para-24 of the dictum of the Apex Court in re; Union of India and Others v. Colonel Ran Singh Rudee, (2018) 8 SCC 53, which reads as under:-
"24. The first question that arises is regarding the significance of the expression "consequential benefits" as used in the Order dated 20-11-2013. The matter which was directly in issue and under consideration was the correctness and validity of General Court Martial proceedings. While annulling the findings and effect of such General Court Martial proceedings, the idea was to confer those benefits which the officer stood denied directly as a result of pendency of such proceedings. Such benefits would therefore be those which are easily quantifiable, namely, those in the nature of loss of salary, emoluments and other benefits. But the expression cannot be construed to mean that even promotions which are strictly on the basis of comparative merit and selection must also stand conferred upon the officer. It is true that as a result of pendency of the General Court Martial proceedings the respondent was kept out of service for nearly nine years and as such his profile would show inadequacy to a certain extent. On the other hand, the Department was also denied of proper assessment of the profile of the respondent for those years. The correct approach in the matter is the one which was considered by this Court in K.D. Gupta v. Union of India [K.D. Gupta v. Union of India, 1989 Supp (1) SCC 416 : 1989 SCC (L&S) 448] as under : (SCC pp. 420-21, para 8) "8. The respondents have maintained that the petitioner has not served in the appropriate grades for the requisite period and has not possessed the necessary experience and training and consequential assessment of ability which are a precondition for promotion. The defence services have their own peculiarities and special requirements. The considerations which apply to other government servants in the matter of promotion cannot as a matter of course be applied to defence personnel of the petitioner's category and rank. Requisite experience, consequent exposure and appropriate review are indispensable for according promotion and the petitioner, therefore, cannot be given promotions as claimed by him on the basis that his batchmates have earned such promotions. Individual capacity and special qualities on the basis of assessment have to be found but in the case of the petitioner these are not available. We find force in the stand of the respondents and do not accept the petitioner's contention that he can be granted promotion to the higher ranks as claimed by him by adopting the promotions obtained by his batchmates as the measure."
19. Sri Tewari has submitted that the Apex Court in re; Colonel Ran Singh Rudee (supra) has interpreted the expression 'consequential benefits'. As per the Apex Court in the aforesaid case, the 'consequential benefits' would be those, which are easily quantifiable, namely, those in the nature of loss of salary, emoluments and other benefits. But the expression cannot be construed to mean that even promotions which are strictly on the basis of comparative merit and selection must also stand conferred upon the officer.
20. Therefore, Sri Tewari has submitted that the petitioner is not claiming promotion or selection since he is a retired employee but the term 'consequential benefits' includes the loss of salary, emoluments and other benefits, therefore, the benefits claimed by the petitioner are fully covered with the term 'emoluments and other benefits'. Sri Tewari has drawn attention of this Court towards paragraphs 24 and 25 of the writ petition, wherein he has categorically indicated that the petitioner and one Sri Vijay Singh Yadav were regularized by the same order and both were retired from the post of Junior Engineer. Sri Yadav retired on 30.9.2018 whereas the petitioner reached the age of superannuation on 31.7.2017. The basic pay of Sri Yadav was Rs.30,370/- and his last salary drawn was Rs.1,00,576/- whereas basic pay of the petitioner was treated as Rs.5,875/- as was being drawn by the petitioner on 1.2.1999 and his last pay drawn was treated as Rs.13,730/-, without assigning any cogent reasons to that effect vide impugned orders dated 6.7.2018 and 21.7.2018 (Annexure Nos.1 & 2 to the writ petition). No specific denial has been given in paras 31 & 32 of the counter affidavit, only this much has been indicated that the petitioner has been paid strictly in terms of judgment and order dated 18.12.2017.
21. Sri Tewari has referred the dictum of Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association CSI Cinod Secretariat, Madras, (1992) 3 SCC 1, submitting that the Apex Court has held that quashing of any order results in the restoration of the position as it stood on the date of passing of the order which has been quashed. Therefore, when the impugned punishment order has been quashed, the petitioner shall be restored back in a position which stood on the date of passing such order which has been quashed and in that case, the petitioner shall be entitled for all consequential benefits as prayed in the writ petition.
22. Per contra, Sri Shireesh Kumar, learned counsel for the opposite parties has submitted that the present writ petition is not maintainable as it has been filed seeking those reliefs to which the petitioner is not entitled. Further, the petitioner throughout in the writ petition has not made any averment to establish his entitlement to the reliefs claimed by him in the present writ petition and the petitioner has not averred his entitlement to revision of gratuity, provident fund, salary and gratuity on the basis of revised gratuity.
23. Sri Shireesh Kumar has further contended that the present writ petition is barred by the principles of constructive resjudicata and the provisions of Order 2 Rule 2 C.P.C. inasmuch as the present writ petition has been instituted seeking those reliefs which had willingly not being claimed by the petitioner in Writ Petition No.2954 (S/S) of 2009 and once the petitioner did not choose to claim those benefits in earlier writ petition, then the present writ petition is not maintainable.
24. Sri Shireesh Kumar has further submitted that the present writ petition has been filed for the enforcement of judgment and order dated 18.12.2017 claiming those benefits, which were neither claimed by the petitioner nor allowed to him by this Court through the judgment and order dated 18.12.2017.
25. Sri Shireesh Kumar has also placed reliance upon the dictum of the Apex Court in re; Colonel Ran Singh Rudee (supra) referring paras 23 to 27 and 30 & 31 by submitting that the Apex Court has observed in that case that though prejudice was caused to the respondent by wrongly proceeding against him in General Court Martial (GCM) consequent to which he (petitioner of that writ petition) lost 9 years of serve is apparent but sympathy cannot outweigh considerations on merit since the respondent was found unfit for selection as "Colonel" by Selection Board though he was granted time-scale promotion to the rank of Colonel after putting in required service. Therefore, Sri Shireesh Kumar has submitted that the consequential benefits so prayed by the petitioner are similar to the selection, which is granted after evaluating the work and performance of the employee and since the work and performance of the present petitioner was not upto the mark, therefore, he could have not been paid his first promotional pay scale and benefit of Sixth Pay Commission on the basis of revised salary.
26. So as to strengthen his aforesaid submission, he has cited the judgment of the Apex Court in re; Lt. Col. K.D. Gupta v. Union of India and Others, 1989 Supp (1) SCC 416.
27. Sri Shireesh Kumar while referring the dictum of the Apex Court in re; Union of India and Others v. Lt. Gen. Rajendra Singh Kadyan and Another, (2000) 6 SCC 698, has submitted that the petitioner is not fit and legally eligible for promotional scale and other reliefs as those benefits could have been provided after the assessment of performance by the Committee, therefore, those benefits may not be treated as consequential benefits.
28. While referring the dictum of the Apex Court in re; Chief Regional Manager, United India Insurance Company Limited v. Siraj Uddin Khan, (2019) 7 SCC 564, Sri Shireesh Kumar has submitted that grant of the reliefs in the present writ petition is not automatic on quashing of the punishment order but specific pleadings for suitability, entitlement and eligibility are missing, as such the present writ petition deserves to be dismissed.
29. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that after quashing the punishment order dated 4.2.2009 by this Court vide judgment and order dated 18.12.2017 in Service Single No.2954 of 2009 would result in restoration of the position as it stood on the date of passing of the order. In other words, it shall be treated as if the punishment order dated 4.2.2009 was not in existence and in that case, the petitioner would be entitled for all service benefits, which have been prayed by him ignoring the punishment order dated 4.2.2009. Furthermore, the judgment and order dated 18.12.2017 has not been assailed by the Federation before the superior court by filing Special Appeal before the High Court or Special Leave Petition before the Apex Court, therefore, that order has attained finality.
30. To me, while passing judgment and order dated 18.12.2017, this Court has clearly held that (i) the punishment order dated 4.2.2009 is quashed with all consequences; (ii) the petitioner would be entitled to 50% salary from the date of dismissal from service up to the date of retirement; (iii) the pensionery benefits admissible to the petitioner shall remain unaffected; (iv) the petitioner shall be treated as if he was in service up to the date of attaining the age of superannuation.
31. Admittedly, salary of the petitioner has not been revised by providing him annual increment w.e.f. 1.2.1999 till 31.7.2017, the date of superannuation. He has not been granted the first promotional pay scale w.e.f. the year 2004 and has not been given the benefit of Sixth Pay Commission on the basis of revised pay scale thereby he has not been paid his post retiral dues after making the aforesaid exercise.
32. The main contention of Sri Shireesh Kumar is that the aforesaid benefits would not come within the purview of 'consequential benefits' as such, 'consequential benefits' are dependent upon the assessment by a Selection Committee which had no occasion to assess the performance of the petitioner as he was out of employment since 4.2.2009 till he reached at the age of superannuation. Sri Shireesh Kumar has also submitted that in earlier writ petition, the petitioner has not prayed any relief, which has been prayed in this writ petition, however, such relief could have been prayed by him at that point of time, therefore, the present writ petition is barred by the constructive resjudicata.
33. I am afraid as to how an employee, who was very much in service prior to passing the order of dismissal dated 4.2.2009 and at the time of filing of writ petition in the year 2009, could have prayed those reliefs, which have been prayed by him in the present writ petition after he reached the age of superannuation.
34. The case laws so cited by Sri Shireesh Kumar are mainly relating to the serving Officers of the Army wherein there is a clear cut mechanism providing promotion up to the rank of Lt. Colonel and from the post of Colonel onwards. Therefore, unless the Selection Board/Committee assesses the merit of the Lt. Colonel, he could have not been given actual promotion on the post of Colonel and onwards but no similar mechanism is provided in the present case. The Apex Court in re; Colonel Ran Singh Rudee (supra) has clearly observed that the consequential benefits are such benefits which are easily quantifiable, namely, those in the nature of loss of salary, emoluments and other benefits. Therefore, the reliefs prayed in the present writ petition in respect of revision of pay scale by providing the annual increments to the petitioner w.e.f. 1.2.1999 till 31.7.2017, grant of first promotional pay scale w.e.f. the year 2004 and the benefit of Sixth Pay Commission on the basis of revised pay scale come within the purview of 'emoluments and other benefits'. I could not find any cogent reason in the impugned orders dated 6.7.2018 and 21.7.2018 (Annexure Nos.1 & 2 to the writ petition) providing the pay scale of Rs.5,875/- to the petitioner which was being paid to him w.e.f. 1.2.1999 as the logic to this effect is absolutely missing in both the orders. The petitioner has indicated such fact in para-21 (a) of the writ petition but proper reply thereof has not been given vide para-22 of the counter affidavit.
35. Besides, the factum of hostile discrimination with identically placed person, namely, Sri Vijay Singh Yadav has not been explained by the opposite parties properly and the law is trite to the effect that if the hostile discrimination of a person is not explained by the authority, who has done such discrimination, then the said action would be treated as violative of Articles 14, 16 & 21 of the Constitution of India.
36. In view of what has been considered above and also in view of the dictums of the Apex Court so cited by the learned counsel for the parties, I hereby allow the present writ petition.
37. A writ of certiorari is issued quashing the orders dated 6.7.2018 and 21.7.2018, which are contained as Annexure Nos.1 & 2 to the writ petition.
38. A writ of mandamus is issued commanding the opposite parties to revise the salary of the petitioner by providing the annual increments to the petitioner from 01.02.1999 till 31.07.2017 and to grant the first promotional pay scale to the petitioner w.e.f. the year 2004 and further grant the benefits of the Sixth Pay Commission on the basis of the revised salary.
39. A writ in the nature of mandamus is issued commanding the opposite parties to revise the retiral benefits on the basis of last pay drawn calculating the same in terms of judgment of this Court thereby making payment of arrears of salary and arrears of retiral dues.
40. This order shall be complied with expeditiously, preferably within a period of eight weeks, failing which the petitioner shall be entitled for interest on aforesaid dues at the current market rate.
41. No order as to costs.
[Rajesh Singh Chauhan,J.] Order Date :- 07.10.2021 RBS/-