WP(C) 665/2005 BEFORE THE HON’BLE MR. JUSTICE A.C. UPADHYAY Heard Mr. GC Phukan, learned counsel for the petitioner, and Mr. A. Thakur, lear ned standing counsel, appearing for the respondents-Union of India. 2. By filing this writ petition, the petitioner has prayed for an a ppropriate direction to release the pay and allowances, accompanied by all other benefits, including the retirement benefits, treating the petitioner as incumbe nt in the cadre of Assistant Manager(P&A). 3. Facts, leading to filing of this writ petition, may be stated in brief, as follows:- By an office Order dated 04.01.1990, the petitioner was promoted to the post of Office Superintendent, which was, subsequently, redesignated as A.B.D.O., without extra benefits. 4. By another Order dated 17.10.1994, the petitioner was further pr omoted to the next higher post, namely, the A.D.O., and accordingly, the petitio ner joined to the promotional post, namely, the A.D.O. on 24.10.1994. 5. In the meantime, one Smt. Jumrani, who was not promoted to the p ost aforementioned, filed a petition before the Delhi High Court, wherein and wh ereunder a status quo order was passed by the Delhi High Court on 27.10.1994. Ho wever, the petitioner was all along treated by the respondents department as A.D .O., which subsequently re-designated as the Assistant Manager, without extra be nefit, until a reversion order passed on 03.03.2003. 6. The Delhi High Court, in writ petition No.4481 of 1994, set asid e the appointment of the petitioner on 26.07.1999. The petitioner, was however, allowed to hold as Assistant Manager, till 03.03.2003. Thereafter, the petitione r continued to hold the promotional post till the introduction of Voluntary Reti rement Service(VRS) policy. 7. On 21.02.2003, the petitioner applied for voluntary retirement a nd the offer was accepted by the respondent Department. In the acceptance letter , he was allowed to retire as Assistant Manager, and accordingly, final order, r elieving the petitioner from service was issued on 25.03.2003, showing the petit ioner as Assistant Manager and finally the petitioner was released as Assistant Manager from the establishment of the respondent Department. 8. After the release of the petitioner from service, the respondent authorities issued another Notification re-promoting the petitioner along with some others, by referring to the order passed by the Delhi High Court. The order aforesaid was passed on 26.06.2003, long after the retirement of the petitioner . Subsequently, the respondent authorities issued another letter dated 28.10.200 3, notaionally re-fixing the pay of the petitioner, without giving actual benefi t of pay and allowances. In the aforesaid order the petitioner’s pay was shown a s the pay of A.D.O.(Asstt. Manager). Being aggrieved, the petitioner submitted r epresentation. 9. Mr. Phukan, learned counsel for the petitioner submits that sinc e the petitioner was, all along, shown as A.D.O.(Asstt. Manager), till his retir ement, his legitimate benefit of requisite pay for the post, cannot be denied to him. Learned counsel further points out that the juniors to the petitioner were also paid higher salaries. However, the petitioner was not paid his regular sal aries as Assistant Manager(P&A). 10. Per contra, Mr. A. Thakur, learned Asstt. SGI appearing for the respondents-Union of India, by referring to the affidavit-in-opposition, submits that since the petitioner already accepted the VRS scheme, he is not entitled t o benefit of pay protection as prayed for. 11. Learned counsel for the petitioner submits that the judgment of the Delhi High Court is not indicated that grade pay of the petitioner shall not be available to him. In support of his contention, learned counsel for the peti tioner has relied on a decision, reported in 2005 AIR SCW 3273 : Kailash Singh v s. State of Bihar & Ors. Wherein it was held that there is no reason to deny an employee’s post-retiral benefits, if he actually served in the Department during the period. Referring to another decision of the Hon’ble Supreme Court, reporte d in AIR 2002 SC 808 : Food Corporation of India Vs. S.N. Nagarkar, learned coun sel for the petitioner points out that since the promotion was given to the peti tioner, he is entitled to the pay scale of the promotional post with effect from the date he joins to the post. The relevant extracts of the decision in S.N. Na garkar’s case(supra) read as follows: 15. Learned counsel appearing on behalf of the appellant submitted that this wa s a case where notional promotion and seniority was given to the respondent. In such a case the concerned employee is entitled to the pay scale of the promotion al post only with effect from the date he joins the post and not from the date o f his promotion. He sought to rely on two judgments of this Court reported in (1 996) 7 SCC 533 ; State of Haryana and others v. O.P. Gupta and others : AIR 1996 SC 2936: (1996 AIR SCW 862 : 1996 Lab IC 991) and (1989) 2 SCC 541 ; Paluru Ram krishnajah and others etc. vs. Union of India and another. On the other hand cou nsel for the respondent submitted that this is not a case where this Court is ca lled upon to consider the submission urged on behalf of the appellant. In the in stant case, the writ petition filed by the respondent was allowed by judgment an d order dated 6th May, 1994 passed in Civil Writ Petition No.4983 of 1993. That order attained finality as it was not appealed from. In execution proceedings, t he appellant cannot go beyond the order passed by the Court in the writ petition and, therefore, what has to be considered is whether the High Court was right i n holding that in terms of the order of the Court dated 6th May, 1994 passed in Civil Writ Petition No.4983 of 1993, the respondent is entitled to the arrears o f pay and allowances with effect from the date of promotions. If the answer is i n the affirmative the question whether such relief ought to have been granted ca nnot be agitated in execution proceeding. We find considerable force in the subm ission urged on behalf of the respondent. In these proceedings it is not permiss ible to go beyond the order of the learned Judge dated 6th May, 1994 passed in C ivil Writ Petition No.4983 of 1993. The execution application giving rise to the instant appeal was filed for implementing the order dated 6th May, 1994 and in such proceeding, it was not open to the appellant either to contend that the jud gment and order dated 6th May, 1994 was erroneous or that it required modificati on. The judgment and order aforesaid having attained finality, has to be impleme nted without questioning its correctness. The appellant therefore, cannot be per mitted to contend in these proceedings that the judgment and order dated 6th May , 1994 was erroneous inasmuch as it directed the appellant to pay to the respond ent arrears of salary with effect from the dates of promotion, and not from the dates the respondent actually joined the promotional post. 12. In reply to the above contentions, learned counsel for the respo ndents, relying on the decision reported in (1989) 2 SCC 541 : Puluru Ramkrishna iah & Ors. Vs Union of India & Anr. submits that in case, promotion is granted w ith retrospective effect, back wages for the period he actually did not work in the promotion post, is not payable. By referring yet another decision reported i n (1996) 7 SCC 533 : State of Haryana & Ors. Vs. O.P. Gupta & Ors. learned couns el for the respondents submits that an employee shall be entitled to promotional salary if only he is promoted on regular basis. Learned counsel for the respond ents also relying on a decision, reported in (1999) 9 SCC 173 : Union of India & Ors. vs. Rejinder Singh Rawat, and WP(C) No.4657 of 2005 : Union of India & Ors . vs. G.D. Goel & Ors, submits that since the dispute raised by one of the emplo yees in the Delhi High Court, the promotion was stayed and so promotion could no t have been granted to any of the employees till the final disposal of the writ petition and resolution of the dispute. Therefore, the petitioner would not be e ntitled the benefit of promotional pay since the matter was sub-judice. 13. But fact remains that no stay was granted by the Delhi High Cour t in WP(C) No.4481 of 1994 and the petitioner was promoted and continued to hold his promotion post till his retirement. Therefore, the petitioner cannot be dep rived of his legitimate right to claim the promotional salary during the period in which he held the promotional post. The respondent authority took his work wi thout any benefit all throughout for the promotional post. Therefore, now they c annot turned around to say that the petitioner is not entitled to the benefit of pay available to the petitioner in the promotional post. 14. Accordingly, without lingering the discussions any further, I ho ld that the writ petition is entitled to the benefit of promotional post as Assi stant Manager from 24.10.1994 till his retirement on 25.03.2003. He is also enti tled to the retirement benefit, treating him as an incumbent in the cadre of Ass istant Manager(P&A) from the date of his promotion in the post. 15. With the above observations and directions, this writ petition i s allowed. However, I pass no order as to cost.