IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1151 (S/S) of 2004 N.C. Pant S/o Sri Nanda Ballabh Pant R/o Anand Lodge, Tallital, Nainital, District Nainital …………Petitioner. Versus (1) State of U.P. through Secretary Irrigation Department, Civil Secretariat, U.P. Lucknow (2) Engineer-in-Chief, Irrigation Department, U.P. Lucknow (3) Superintending Engineer, Irrigation Works Circle, Nainital, District Nainital. (Uttaranchal) (4) Executive Engineer, Tarai Irrigation Division, Nainital, District Nainital …………..Respondents. Sri Narayan Singh Negi, learned counsel for the Petitioner. Smt. Beena Pande, learned counsel for respondents no. 1 and 2. Sri Bindesh Kumar Gupta, learned Additional Advocate General for respondents no. 3 and 4. Hon’ble Prafulla C. Pant, J. By means of this writ petition, the petitioner has sought mandamus commanding the respondents to pay post retrial benefits (pension, gratuity, leave encashment etc.), of the post of Junior Engineer, from the date of his retirement i.e. 31.07.1994. (2) Heard learned counsel for the parties. (3) Brief facts of the case are that the petitioner was initially appointed as Surveyor in Tarai and Bhabhar Government Estate Division, Haldwani, vide order dated 20.08.1953. He was confirmed on said post on 20.08.1954. Thereafter, vide Government Order No. 6137/1C-377-C/1955, dated 05.09.1956, aforesaid Division was transferred and brought under the control of Irrigation Department of the State. Since Surveyors under the Tarai and Bhabhar Government Estate Division, Nainital, were entitled to the promotion of the post of Overseer (now designated as Junior Engineer), the said tradition continued even after the employees were brought under the control of Irrigation Department. In early 1956, the petitioner was promoted as Overseer and his services were merged with the Irrigation Department when he was working as Overseer on a promoted post. However, respondent no. 3 (Superintending Engineer of Irrigation Works Circle, Nainital) reverted the petitioner from the post of Overseer to the post of Surveyor on 01.01.1958 on the ground that the petitioner did not fulfill the minimum qualification required for the post of Junior Engineer (directly recruited). Later Government vide Order dated 19.06.1958 granted exemption to certain similarly situated Overseers who were not possessing the requisite qualification and promoted them to the post of Overseer. In the year 1974, when the Junior Engineers in the State of U.P. went on strike again the subordinate employees like the petitioner were promoted to the post of Junior Engineers. The petitioner also again got the promotion in the year 1974 to the post of Junior Engineer. Thereafter, his case was recommended by the higher authorities for making him permanent on the post of Junior Engineer. However, vide order dated 18.12.1978, he was reverted from the post of Junior Engineer to the post of Surveyor on the ground that he was only temporary Junior Engineer. On this the petitioner filed a Claim Petition No. 402/T/4/79 before the U.P. Public Service Tribunal, Lucknow. The Tribunal vide its order dated 02.01.1979 stayed the order of reversion passed against the petitioner. However, finally the petitioner lost the petition in the Tribunal, which dismissed his claim petition on 18.10.1984 with the observation that since in the case of the petitioner no relaxation was given by the Government, as such the impugned order of reversion cannot be said to have suffered from any infirmity. Thereafter, petitioner appears to have filed Writ Petition No. 16221 of 1984, before Allahabad High Court challenging the order passed by the Tribunal and reversion order. It appears that vide interim order dated 07.11.1984, the operation of the order passed by the Tribunal and that of the reversion were stayed and petitioner continued in service as Overseer/Junior Engineer. While said writ petition was pending before Allahabad High Court the petitioner got superannuated on attaining age of 58 years on 31.07.1994. The writ petition was transferred to this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal, and it was renumbered as writ petition No. 3552 (S/S) of 2001. The matter was taken up on 14.07.2004 and this Court on that day disposed of the writ petition as in fructuous with the observation that the petitioner may file fresh petition for the purposes of pensionary benefits, if he so likes. Hence this writ petition. (4) In the counter affidavit filed on behalf of the respondents no. 2, 3 and 4, it is stated that the petitioner has retired from service on completion of 58 years of age on 31.07.1994. It is further admitted in the counter affidavit the petitioner was temporarily appointed on the post of Junior Engineer. However, it is stated that he was not eligible to the appointed as Junior Engineer as he was not a diploma holder. It is further stated that qualifications for Surveyor and that of Junior Engineer and different. In para 32 of the counter affidavit it has been stated that since the petitioner stood retired before the creation of State of Uttarakhand as such the liability to pay the pensionary benefits lies on the State of U.P. and not on the State of Uttarakhand. In the last para of the counter affidavit it has been stated that the petitioner has been given pensionary benefits arising out of the original post and the writ petition is liable to be dismissed. (5) State of U.P. has not filed by counter affidavit. Learned counsel for the State of U.P. fairly conceded that the liability to pay pensionary benefits of the employees who retired prior to the creation of State of Uttarakhand, lies with the State of U.P. (6) Having heard learned counsel for the parties and after going through the papers on record, it is clear that it is not disputed that petitioner stood retired on 31.07.1994 as a Junior Engineer. It is also not disputed that when his services were taken from Tarai and Bhabhar Government Estate Division to the Irrigation Department of the State at the time also he was on Overseer (Junior Engineer). It appears the under the aforesaid Division there was provision to promote the Surveyors to the post of Overseers i.e. Junior Engineer. While in the Irrigation Department of the State for direct entry for Junior Engineer it was essential to have technical diploma for the post. The contention of the petitioner is two fold- (i) services were absorved in the Irrigation Department as Overseer (Junior Engineer). (ii) order of reversion dated 18.12.1978 was stayed by the Tribunal as well as by the High Court and as such he not only worked as Junior Engineer but also drew the salary of Junior Engineer till the age of the retirement. Therefore , it is argued that the petitioner Junior Engineer is being deprived of his pensionary benefits of his retirement from the post of Junior Engineer and is being paid pension treating him to be Surveyor. (7) On behalf of the petitioner attention of this Court is drawn to Nani Gopal Dutta Vs. Union of India and others (2002) 1 UPLBEC 4391, in which the Supreme Court has held that where an employee continued in services up to the age of superannuation pursuant to an interim order and received full benefits of his salary, pensionary benefits arising out of such salary drawn, cannot be denied to him. The aforesaid case is fully applicable to the present case. (8) For the reasons as discussed above, this Court is of the view that the petitioner is entitled to the post retrial benefits (pension, gratuity, leave encashment etc.) of the post of Junior Engineer from which he retired on 31.07.1994. Accordingly, the writ petition is allowed with the direction that respondents no. 1 and 2 i.e. State of U.P. and Engineer-in-Chief of Irrigation Department, Lucknow, shall take the necessary steps within a period of three months and ensure that the petitioner is paid his admissible pensionary benefits treating him to have retired from the post of Junior Engineer. (Prafulla C. Pant, J.) 27.03.2008 NS