JUDGMENT Pradeep Kant and Sanjay Misra, JJ.
1. Heard the learned Counsel for the petitioner Sri Vikas Budhwar and the learned State Counsel Sri B.K. Yadav.
2. The petitioner who was initially appointed as Sanitary Inspector in Municipal Board, Lucknow was absorbed in the U.P. Palika Administrative (Superior) Services vide order of the State Government dated 6th March 1971 but that order became the subject matter of challenge in writ petition No. 4328 of 1978 filed by Sri Kamlesh Nath Agarwal and Sri Vidhya Nath Tiwari. The High Court quashed the order aforesaid (dated 6th March 1971) vide its order dated 9th May 1978. The petitioner preferred an Special Leave Petition before the Supreme Court wherein an interim order of stay was passed saying that the petitioner shall not be reverted from the post of Up Nagar Adhikari. The petitioner, thus, continued to hold the post of Up Nagar Adhikari in pursuance of his absorption in the Palika Centralised Services. However, during the pendency of the aforesaid Special Leave Petition the petitioner attained the age of superannuation and retired from service. In the meantime the petitioner was promoted to the next higher post of Executive Officer.
3. The Apex Court while disposing of the appeal took note of the fact that the respondents 1 and 2 namely; Sri Kamlesh Nath Agarwal and one another had challenged the promotion of the petitioner to the post of Sahayak Nagar Adhikari by filing writ petition in the High Court which writ petition was allowed quashing the appointment of the petitioner as Sahayak Nagar Adhikari, and that the Court had granted stay order, staying the reversion of the petitioner and therefore, the Supreme Court observed as under:
We have been informed by the learned Counsel for the respondents that he was further promoted to the post of Executive Officer. From the affidavit which is placed on record, it transpires that the appellant was 45 years of age in the year 1979. He may by now be near the age of superannuation. In this view of the matter, there nothing remains in the appeal to be decided. We, therefore, dismiss the appeal as having become infructuous. No costs.
W.P.(C) No. 1055/80 The writ petition is disposed of in the light of our order passed in CA. No. 1313/79.
4. On the retirement of the petitioner he was served with the show cause notice dated 4.1.1996 intimating that the Governor has been pleased to direct that the petitioner would be treated to be in service at present but he be subjected to recovery of the emoluments of higher post and allowances on which he had been working. The petitioner was required to give explanation within 15 days as to why the amount towards salary and allowance paid to him as a result of his absorption and promotion be not recovered. The petitioner submitted his reply saying that he was entitled for the aforesaid salary and allowance and that there is no case for making any such recovery. The petitioner also submitted that the stay order was granted by the Apex Court against the order of the High Court as a result of which he continued to work on the higher post and the appeal was dismissed as infructuous taking into account that the petitioner was likely to retire and that too after giving promotion.
5. However, the State did not feel fully satisfied with the explanation submitted by the petitioner. However, it protected the recovery of the alleged excess amount paid in the higher pay scale, while he was working on the higher post but directed that the benefit of the working on the higher post and higher pay scale would not be counted for the purpose of pensionary benefits. The petitioner feeling aggrieved by the denial of post retiral benefits by counting his period of service on the higher post and the salary paid to him in the given pay scale and consequential post retiral benefits being paid of lesser amount, has challenged the order mainly on the ground that the order of the supreme Court does not allow the respondents not to treat the petitioner as Sahayak Nagar Adhikari or Up Nagar Adhikari at the time of retirement and to deny the usual consequential benefits which are otherwise available to an officer who retires from the said post.
6. Sri B.K. Yadav learned State counsel defending the order submitted that since the appeal filed by the petitioner against the judgment of the the High Court was dismissed as infructuous, therefore, the interim order passed by the Supreme Court merged in the final order and therefore, he cannot be given advantage of the interim order for the purpose of determining his status on the date of his retirement or for calculating the post retiral dues including, pension. His further submission is that the Supreme Court did not allow the appeal of the petitioner and rather his appeal was dismissed and therefore, the judgment of the High Court remained intact in the presence of which the judgment, the petitioner cannot be given advantage of the promotion on higher post.
7. Considering the fact and circumstances of the case and on taking into account the order passed by the Supreme Court both at the interim stage and also at the time of final disposal of the appeal, we, are of the view that the petitioner cannot be denied the benefit of higher pay scale i.e. the pay scale in which he had been paid salary at the time of retirement nor he can be denied other post retiral dues including pension, to which he would be entitled by counting his service and taking into account the salary paid at the time of retirement on the post from which he retired.
8. The interim order merged in the final Order is a proposition which cannot be disputed in law. It is also relevant to say that if, the petition or appeal in which the interim order has been passed is dismissed on merits, there would be no question of deriving any benefit arising out of interim order, particularly when the very claim of a litigant(petitioner) for consideration of which, the interim order is passed during the interregnum period fails. Such an interim order would not allow the petitioner to seek any advantage merely because during the pendency of the petition/appeal he was enjoying the benefit of interim order despite dismissal of the writ petition, but while arriving to a conclusion as to whether in a given case, the petitioner would be entitled to the benefit which had accrued as a result of the interim order, even in the absence of a final order being passed in his favour, the entire facts and circumstances including the term of the interim order and the words used in the final order, and the intention thereof has also to be seen.
9. We may clarify that if the petition/appeal is dismissed on merit or even otherwise in default or even on technical grounds it would hardly make the petitioner entitled to derive any advantage from the interim order, unless final order protects such interest. However, in a case like the present, where the petitioner's absorption particularly in service namely; the Palika Centralized Service on the post of Sahayak Nagar Adhikari was challenged and against the decision of the the High Court the petitioner approached the Supreme Court where an interim order was passed saying that the petitioner shall not be reverted from the post in question and in pursuance thereof he was continued on the higher post and not only this, he was also promoted to the next higher post from which post he, retired on attaining the age of superannuation the Supreme Court took note of these facts including the continuous working of the petitioner on the post of Sahayak Nagar Adhikari and Up Nagar Adhikari and his promotion to the next higher post during pendency of the appeal and thereafter expressed its opinion that nothing remains in the appeal to be decided clearly supports the plea of the petitioner that the Supreme Court allowed the petitioner to work on the aforesaid post and since the petitioner had retired, the Court did not find it necessary to delve on the other questions raised therein. The petitioner who had worked under the orders of the Supreme Court till the date of his retirement cannot be denied the benefits of post retiral dues.
10. Reliance has been placed on the case of Nani Gopal Dutta v. Union of India reported in (2002) 1 UPLBEC 439 where the Apex Court considered the question of retiral benefits to the appellant who remained in employment upto the age of 60 years pursuant to the order passed by the Tribunal. The Supreme Court, observed as under:
The appellant having continued in employment upto the age of 60 years pursuant to the interim order granted and he having received the full benefits of salary, we do not think it would be appropriate to deny him to the benefits of pension arising from enhanced pay for that period of two years either. In special features of this case, we think such a relief should be ordered irrespective whether the said institute is an industrial establishment or not.
11. We also take note of the fact that the State Government did agree with the plea of the petitioner that since he had been working on the higher post in pursuance of the direction of the Supreme Court there was no justification for making any recovery from emoluments paid to the petitioner on the higher post which also supports the plea that his status on the higher post was not disputed by the State till he actually retired. The petitioner's status on the higher post having been protected by the State itself till the age of his retirement, the benefits which legally and consequentially accrued to the incumbent holding the higher post as a result of his retirement can also not be denied.
12. We, therefore, quash the order dated 3.8.1996 passed by the opposite party No. 1 in so far it denies the consequential retiral benefits including the pension to the petitioner by treating him to have retired from the post on which he retired in accordance with law. Since the petitioner retired in the year 1996, we direct that the amount which has become payable to him in pursuance of the present order shall be paid to him within a period of two months from the date, the certified copy of this order is produced before the authority concerned.
13. The writ petition is allowed. No order as to costs.