2021 Supreme(All) 721

IN THE HIGH COURT OF ALLAHABAD
SANGEETA CHANDRA, J.
Dr. Jagannath Prasad Gupta – Petitioner
Versus
State of U.P. and Others – Respondents
Service Bench No. 2029 of 2015
Decided On : 01-07-2021

Point of Law : Notional promotion- Seniority can be given and also notional promotion only upto the post of Joint Director, the post of Additional Director and Director and Director General being selection posts where merit had to be considered, no notional promotion can be given to the petitioner as he had already retired in 1998

Headnote:

Constitution of India – Article 226 – Power of high Court to issue writ – Mandamus - Petitioner was appointed on the post of Medical Officer-in-Charge. He appeared before U.P. Public Services Commission. Dr. Sumati Sheel Sharma was appointed to the post of Medical Officer in March, 1971 and was placed in the Seniority List. Petitioner was appointed more than two years before Dr. Sumati Sheel Sharma but was placed below because of discrepancy in fixation of seniority. Dr. Sumati Sheel Sharma was given promotion to post of Joint Director, Additional Director and Director but petitioner who was senior to her was deprived such benefits. The petitioner retired from service from post of Nagar Swasthya Adhikari, Lucknow in Joint Director's pay scale. In meantime, on recommendation of Equivalence Committee Report, 1982 by an order, State Government had taken a decision to grant personal pay scale of 3700-5000 to those doctors who came into Senior Grade Officer Category and then completed two years continuous services in Senior Grade Officer scale. The seniority of the petitioner was again wrongly mentioned in the order granting senior grade - Representation before the State Government praying that one Dr. Sumati Sheel Sharma, who had been wrongly given seniority above him earlier had been promoted on the post of Joint Director and Additional Director and prayed for notional promotion and consequential service benefits from the date his junior was given the said benefit – Appeal set aside the impugned order

Findings of the Court : Arguments as raised by learned counsel for petitioner through video conferencing, finds that same reason for rejecting case of petitioner have been mentioned in impugned order as have been mentioned in counter affidavit filed by respondents he impugned order also considers the case of Dr. Sumati Sheel Sharma and mentions that Dr. Sumati Sheel Sharma was placed in the seniority list and 21 other doctors, who were senior to her including those who had retired from service or died had been given notional promotion as Additional Director and the notional promotion on post of Director in pay scale of 5900-6300. Date that Dr. Sumati Sheel Sharma was given such promotion. This fact mentioned in order as also fact that petitioner was placed at seniority list has convinced Court that impugned order is liable to be set aside. The case of the petitioner has been rejected only on the ground that Dr. Sumati Sheel Sharma had been given promotion on the basis of earlier seniority list and petitioner was at that time junior to Dr. Sumati Sheel Sharma, therefore, he cannot claim the same benefit. Additionally, a reference has been made of pension, re-fixation having been done by the Government Order and of Writ Petition having been decided by High Court on with the observation that only notional promotion can be given and pension re fixation can be done along with other retiral benefits but arrears of salary cannot be given on the principle of “No Work No Pay.” - Division Benches of this Court in the aforesaid two judgments have allowed writ petitions with direction to the respondents to grant benefit of notional promotion to writ petitioners to post of Additional Director and Director as and when it fell due in accordance with rules as notified in August, 2004 and pay scale was to be re-fixed and arrears of salary were to be recalculated and to be paid within three months from date of passing of the order. Consequential benefits of re-fixation of pension, gratuity and other post retiral benefits were also to be made available to the writ petitioners and if such payment was delayed beyond three months the same was to accrue 6% simple interest from the date of judgment to date of payment.

Result : writ petition is allowed