- (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. 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 C. A. No. 1313/79. " 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.
(3.) 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. Sri B. K. Yadav learned State Counsel defending the order submitted that since the appeal filed by the petitioner against the judgment of 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.;