- (1.) SUDHIR Agarwal, J. Heard Sri H. N. Singh, learned counsel for the petitioner and learned Standing Counsel for the respondents.
(2.) THE petitioner is aggrieved by order dated 13. 9. 2002 of the Joint Secretary, U. P. Government, Lucknowand consequential order dated 29. 5. 2003 of the Excise Commissioner, U. P. , Allahabad whereby he has been denied revised pension as a result of his notional promotion on higher posts from back date in higher pay scales. The facts giving rise to the present dispute, in brief, are as under: The petitioner was initially appointed as Junior Clerk in the Excise Department of State of U. R on 26. 10. 1971 and confirmed on the said post on 1. 4. 1975. In the Excise Department, Junior Clerk and Senior Clerk were posted in the subordinate offices as well as in the Headquarters. The respondents were maintaining distinction in respect to pay scale and status of the said clerks posted in subordinate offices qua those posted in Head Officer though they were discharging same duties. Further vide U. P. Excise Department Ministerial Service Rules, 1980, no distinction was made in respect of seniority, promotion etc. amongst the clerks posted in subordinate offices and Headquarters. This issue thus was agitated through U. R Excise Subordinate Officers Ministerial Association in writ petition No. 6904 of 1987. The writ petition was allowed by this Court vide judgment dated 20. 11. 1996 with the following directions: "in the result the application succeeds and is allowed. Let writ of mandamus do issue commanding the respondents to pay or grant equal pay scale to the excise clerks in the subordinate offices in commensurate with those of the other counter parts in head quarters from the date of implementation of recommendation of the pay rational committee namely the date when both these groups merged into one cadre, together with the arrears as are admissible from such date and also to pay current pays on notionally fixation of the particularly scale at which they are placed in the manner indicated above. Further writ of certiorari do issue quashing seniority list prepared in being Annexure S. A. 3. Let a writ of mandamus do issue commanding respondents to prepare a fresh seniority list in accordance with the law observed above and fix seniority of the excise clerks accordingly within a period of six months from the date and also to fix and grant all notional benefits of promotions and other consequences of services benefits without arrear commensurate with such notional service benefits or promotion within a period of six months from the date of preparation of seniority list while, however, the petitioner shall be paid all services consequential benefit current from the date of such determination together with all consequential benefits as are admissible in law in future. "
(3.) THE State of U. P. preferred Civil Appeal No. 7340 of 1997 before the Apex Court, which was also dismissed on 14. 9. 2000 by a reasoned judgment affirming this Court's order. When the matter was pending before the Apex Court, the petitioner, however, attained age of superannuation on 28. 2. 1998 and retired from the post of Senior Clerk, though pursuant to this Court's judgment dated 20. 11. 1996, he was entitled to have been promoted on higher posts from much earlier date. After the decision of the Apex Court, the respondents revised seniority list on 15. 3. 2001 wherein the name of the petitioner was placed at SI. No. 102. Since the persons junior to the petitioner in the revised seniority list were already promoted to the post of Senior Assistant and Excise Inspector long back, the petitioner was treated to be promoted as Senior Clerk with effect from 26. 6. 1981, as Senior Assistant with effect from 2. 12. 1992 and as Excise Inspector with effect from 13. 6. 1996 on notional basis. THE consequential benefits were not paid to the petitioner. When he made a complaint, the Excise Commissioner vide his letter dated 15. 11. 2001 informed the Secretary Lokayukta Administration, Lucknow that pursuant to the aforesaid notional promotions, consequential benefits are also being made available to the petitioner as a result of his promotion on the post of Senior Clerk, Senior Assistant and Excise Inspector retrospectively. His pay fixation on notional basis with effect from 3. 11. 1971 till 28. 2. 1998 was also made by the respondents and a sum of Rs. 14,344/- towards arrears was also paid on 23. 3. 2003. However, since, the petitioner had retired on 28. 2. 1998, as a matter of fact, while working on the post of Senior Clerk for the reason that the appeal of the State Government was pending before the Apex Court and during the pendency of the said appeal, the judgment of this Court was not given effect by the respondents, therefore, his pay was fixed according to the last pay actually drawn on 28. 2. 1998 on the post of Senior Clerk from which he actually retired. Even after his notional promotion on the higher posts with retrospective effect, though some amount of arrears was paid for the period prior to the date of retirement, but no revision of pension was made by the respondents and when he agitated, the respondent No. 1 vide letter dated 13. 9. 2002 informed the Excise Commissioner that the benefit of notional promotion on higher posts would not count for the purpose of pensionary benefits and the pension would be determined on the basis of the salary which the petitioner actually drew at the time of his retirement. In pursuance to the State Government's letter dated 13. 9. 2002 the Excise Commissioner also passed a consequential order on 29. 5. 2003 rejecting petitioner's claim stating that despite of his notional promotion to the posts of Senior Assistant and Excise Inspector retrospectively, the petitioner would not get any benefit towards the amount of pension since he had not assumed charge on the higher posts as a matter of fact having retired on 28. 2. 1998 working as Senior Clerk. THE benefit of notional promotion is not permissible for pensionary benefits. These two orders of the respondents No. 1 and 2, Annexures-6 and 5 respectively to the writ petition are being assailed by the petitioner on the ground that once the petitioner has been given promotion on higher posts, though notionally, for the reason that for the fault of the respondents in not giving promotions to the petitioner when it was due, he cannot be denied benefit of the promotions made later on notionally though it is recognised for the purpose of fixation of pay. He said that pension is liable to be revised according to the pay which is admissible to the petitioner on re-fixation as a result of his notional promotions on higher posts of Senior Assistant and Excise Inspector.;