Heard Sri Apoorva Tiwari, learned counsel for the petitioner and Sri Vivek Kumar Shukla, learned Additional Chief Standing Counsel for the State-respondents.
By means of this writ petition the petitioner has prayed following relief:-
"(i) to issue a writ, order or direction in the nature of mandamus commanding the respondents to re-determine the pension and other retiral benefits payable to the petitioner on the basis of the salary paid to the petitioner on account of his holding the post of Engineer-in-Chief, Irrigation in an officiating capacity on the date of his retirement.
(b) to issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the petitioner arrears of pension and retiral benefits consequent to the re-fixation of pension and retiral benefits along with interest @12% per annum with effect from 30.11.2009 within a fixed reasonable period of time."
Precisely the brief facts of the case are that the petitioner was initially appointed on the post of Assistant Engineer (Civil) in the Department of Irrigation, Government of U.P. Subsequently, he was promoted on the post of Executive Engineer, thereafter, to the post of Superintending Engineer and thereafter on the post of Chief Engineer (Level-II). The petitioner being a senior most Chief Engineer (Level-II) and as no Chief Engineer (Level-I) having been available in the department at that point of time, therefore, the petitioner was permitted to discharge the function of Engineer-in-Chief on officiating charge in the Department of Irrigation, Government of U.P. on 05.09.2009. Another letter dated 16.09.2009 has also been passed in the same manner.
The precise contention of learned counsel for the petitioner is that the petitioner, on the date of superannuation, was holding the post of Engineer-in-Chief on officiating post pursuant to the order dated 05.09.2009 and 16.09.2009 and was being paid salary for the post of Engineer-in-Chief vide order dated 25.07.2013 pursuant to the direction being issued by this Court vide judgment and order dated 24.01.2011 as clarified and corrected vide order dated 09.02.2011, therefore, he should have been paid the pension and other retiral dues on the basis of salary last drawn from the post of Engineer-in-Chief.
Sri Apoorva Tiwari, learned counsel for the petitioner has submitted that as per the Regulation 474 of the Civil Services Regulations, Pensionary Benefits and Retiral Dues are to be calculated on the basis of the emoluments of the employee/petitioner. Further, the expression 'Emoluments' as used in the Civil Services Regulations is defined by Regulations 486 to have the same meaning as 'Pay' defined in Regulations 9(21) of the U.P. Fundamental Rules which defines the pay sanctioned for the post held by a government servant either substantively or in an "officiating capacity".
Therefore, the pension and other retiral dues of the petitioner are required to be fixed on the basis of pay sanctioned for the post of Engineer-in-Chief as petitioner held the said post in an officiating capacity on the date of superannuation and he has been paid salary for the said post.
Learned counsel for the petitioner has drawn attention towards the order dated 24.01.2011 passed by the Division Bench of this Court in a writ petition bearing no. 1726(S/B) of 2009 (Lalit Kumar Gupta Vs. State of U.P.) referring para-20, which is reproduced as under:-
"20. In view of above, State cannot keep the matter pending more so when the petitioners are at the verge of retirement. Needless to say that because of State inaction Shri L.K.Gupta already attained the age of superannuation during the pendency of writ petition and even then he has not been paid salary while officiating on the post of Engineer in Chief in spite of interim order passed by this Court. Such action on the part of State Government in keeping the promotional avenues unfilled and compel the employee to attain the age of superannuation cannot be justified for any reason whatsoever. More so when this Court repeatedly had passed the interim order directing the respondents to fill up the vacancies. Since, Shri L.K.Gupta had already attained the age of superannuation his case shall be considered for grant of notional promotion on the post of Chief Engineer Level I and Engineer-in-Chief for the purpose of payment of post retiral dues. The petitioners of Writ petition No. 1502 (SB) of 2010 officiating on the post of Engineer-in-Chief are entitled to be considered for regular promotion in accordance to existing rule on the post of Engineer-in-Chief."
Learned counsel for the petitioner has further drawn attention towards Annexure No.6 which is a clarified and corrected order of the Division Bench dated 09.02.2011, wherein the position has been clarified that the petitioner was entitled for salary with regard to the period on the post of Engineer-in-Chief. Learned counsel for the petitioner has further submitted that Hon'ble Apex Court has upheld the order of the Division Bench passed in the case of the petitioner, as the order of the Apex Court has been annexed as Annexure-7 to the writ petition.
While clarifying the position that the petitioner had officiated on the post of Engineer-in-Chief at the time of his retirement he has drawn attention towards Annexure No.9 which is office memo of 25.07.2013, wherein it has been categorically indicated that the petitioner was given additional charge of Engineer-in-Chief with effect from 05.09.2009 to 30.11.2009 on officiating basis and receive salary for such post.
In view of the above, learned counsel for the petitioner has submitted that his innocuous prayer in this writ petition is that opposite party be directed to re-determine the pension and other retiral benefits payable to the petitioner on the basis of salary paid to the petitioner on account of his holding the post of Engineer-in-Chief on officiating capacity on the date of his retirement, thereby commanding the opposite parties to pay the petitioner's arrear of pension and other retiral benefits which are consequential to such exercise with admissible penal interest.
Sri Vivek Kumar Shukla, learned Additional Chief Standing Counsel has submitted that only for officiating the post of Engineer-in-Chief for certain period for which the petitioner was paid salary, he could have not been paid the pensionary benefits as prayed in the writ petition. In as much as the petitioner has already received all benefits which could have been paid on the officiating post but for getting pension for particular post his substantive promotion must have been made which was not made. So far as the Judgment and order dated 24.1.2011 and modified order dated 9.2.2011 passed by the Division Bench of the High Court in the case of the petitioner and other similarly situated persons which has been upheld by the Apex Court is concerned he has nothing to say being the law declared by the court of law.
I have heard learned counsel for the parties and perused material available on record.
There is no doubt that the petitioner was holding the post of Engineer-in-Chief on an officiating capacity pursuant to the orders been passed on 05.09.2009 and 16.09.2009 and he was paid salary for such post pursuant to the order dated 25.07.2013 issued on the direction given by this Court vide order dated 24.1.2011 and clarified and modified order dated 09.02.2011. Besides, Regulation 474 of the Civil Services Regulations provides for Pensionary Benefits and retiral dues which are to be calculated on the basis of the emoluments of the employee/petitioner and the expression 'Emoluments" is defined under Regulation 486 which has the same meaning as "Pay" defined in Regulation 9(21) of U.P. Fundamental Rules. The Regulations 9(21) of the U.P. Fundamental Rules defines pay sanctioned for the post held by the Government Servant either substantively or in an officiating capacity and there is not dispute that the petitioner was officiating the post of Engineer-in-Chief at the time of his retirement and was getting his salary on such post. The Division Bench of this Court vide judgment and order dated 24.1.2011 and modified order dated 09.02.2011 directed that the petitioner shall be entitled for salary with regard to officiating period on the post of Engineer-in-Chief for the purpose of payment of post retiral dues, therefore, it is clear from the judgment of the Division Bench of this Court that the petitioner the petitioner was entitled not only for the salary for the officiating period on the post of Engineer-in-Chief but he was also entitled for post retiral dues of such post i.e., Engineer-in-Chief. The aforesaid order of the Division Bench has been upheld by the Apex Court vide order dated 27.04.2012 and the office memo dated 25.07.2013 (Annexure No.9) clearly says that the petitioner was officiating on the post of Engineer-in-Chief with effect from 05.09.2011 to 30.11.2009 and was getting salary for that post.
The aforesaid contention has neither been disputed in the counter affidavit nor during the course of argument by the State Government, therefore, I hereby allow this writ petition.
A writ in the nature of mandamus issued commanding the opposite parties to re-determine the pension and post retiral benefits paid to the petitioner on the basis of last salary drawn by the petitioner on account of his holding the post of Engineer-in-Chief in an officiating capacity on the date of his retirement. It is further directed that the petitioner shall be entitled for all consequential benefits i.e., the arrears of pension and retiral benefits re-fixing the pension of the petitioner with effect from 30.11.2009.
The compliance of this order shall be made within a period of two months, failing which the petitioner shall be entitled for the penal interest @ 6% from the date of the dues are accrued till the date of actual payment.
Order Date :- 26.8.2021 Gaurav/-