IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 372 of 2000. Decided on: August 3, 2010. Rama Rani Gandhi and ors. ….. Petitioners. Versus State of H.P. & anr. ….Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Kuldip Singh, Judge. For the petitioners: Mr. Dushyant Dadwal, Advocate. For the Respondents: Mr. R.K.Sharma, Sr. Addl. AG. ---------------------------------------------------------------------------- Justice Kurian Joseph, C.J. (oral) We find that the writ petitioner had approached this Court in Writ Petition No. 329 of 1975, when he was compulsorily retired from service as per order dated 15th October, 1975, on attaining the age of 55. In the judgment dated 29th July, 1980, it was held as follows: “In the result I allow this writ petition and quash the impugned order of compulsory retirement passed against the petitioner as found at annexure P.5 being void and inoperative. The petitioner shall also of course be entitled to such consequential benefits and privileges as may be open to him under the rules governing the conditions of his service.” 2. The State challenged the decision in LPA No. 11 of 1980. The LPA was dismissed as per judgment dated 16th April, 1987, holding that the petitioner could have been retired on satisfying two conditions: (1) on attainment of age of 55 and (2) on completion of 25 years of service. It appears that the judgment was not complied with and hence the petitioner filed O.A. No. 575 of 1990 with the following prayers: 2 “a) That the respondents be directed to promote the applicant as Deputy Director (Industries) with effect from 1972- the date when Sh. Chandan K. Chopra and Shri B.N.Gupta, the persons junior to the applicant were promoted. b) That the service rendered by the applicant with the Govt. of Madhaya Pradesh w.e.f. 2.9.54 to 10.6.58 and with the Ministry of Rehabilitation, Govt. of India in the Danda- Karnya Project w.e.f. 11.6.58 to 12.10.1961 be considered as qualifying service for the purpose of pension and other benefits. c) That the interest @ 12 percent per annum for delayed payment of arrears of pay, gratuity, pension and leave encashment as well as on recovery of Rs. 2153/- made illegally be granted from the date of its accrual of payment to the date of its final payment. d) The orders dated 3.2.1990 vide which the recovery of Rs. 12582/- has been ordered by the respondents be quashed. e) 3 days salary w.e.f. 24.10.1975 to 26.10.1975 which has not been paid by the respondents so far be granted with interest @ the bank rate/commercial rate from the date of accrual of payment till its final payment. f) the arrears of pay & allowances by changing the date of increment from 1.10.1978 to 1.4.1978 be granted with interest @ the Bank rate/commercial rate from the date of accrual of payment till the final payment. g) the increments be granted w.e.f. 21.10.1962 instead of 1.4.1964 and the arrears of pay and allowances on this account be paid with interest @ the bank rate/commercial rate from the date of accrual of payment till its final payment. h) the respondents be directed to open the sealed cover mentioned in Annexure P/13 and to produce the same before the court. i) the interest on delayed payment of pension and gratuity as demanded in para (IX) of the applicant’s letter dated 25.10.88 (Annexure P/21) be directed to be paid from 3 the due date till its actual payment at the rate of 12 percent.” 3. That O.A. was disposed of by the Tribunal by granting the following reliefs: “i) Services rendered by the applicant with the Govt. of Madhaya Pradesh and Government of India shall count for purposes of pension and other pensionary benefits and same be finalized within two months. ii) Interest on Rs. 16,400/- from 1.12.1987 to 14.4.1988 at 12% to be paid within two months from the date of its order. iii) No recovery be made on account of leave encashment.” 4. Dis-satisfied, the petitioner has filed the present Writ Petition with the following prayers: “(a) Direct the respondents to promote the petitioner as Technical Organisor/Deputy Director Industries on ad hoc basis w.e.f 4-7-1972; (b) Direct the respondents to promote the petitioner as Deputy Director Industries on regular basis w.e.f. 8-2-1974; (c) In the alternative the petitioner be promoted from any later date(s) when his juniors were promoted; (d) Direct the respondents to allow the petitioner to cross the Efficiency Bar w.e.f. 21-10-1962; (e) Direct the respondents to grant all consequential benefits including monetary benefits in pursuance to the above; (f) Direct the respondents to pay interest @ 18% per annum on all belated payments from the date(s) each payment became due till the date(s) of its actual payment.” 5. Paragraphs 3, 4, 9, 13, 17, 19 to 21 and 24 are relevant, which reads as follows: “ Para-3. Admitted to the extent that the name of the petitioner appeared at Sr. No. 4 in the seniority list of D.I.O’s /Principal, I T I etc. as it stood on 31.1.1974. The 4 allegation of the petitioner that Shri Chandan K. Chopra was promoted as Technical Organizer without considering his case is not true. The case of the petitioner was duly considered by the D.P.C. and the assessment was kept in sealed cover. After opening the sealed cover, it was found that the D.P.C. had not recommended the name of the petitioner for promotion on the basis of assessment of merit. There was a vigilance case pending against him w.e.f. 1972. The D.P.C. had further recommended that even in case Shri D.D.Gandhi is exonerated of the charge, he had been facing vigilance case, his name would not find place in the select list. On the basis of these facts, his claim for promotion as Technical Organizer is not tenable. Para-4. Serious irregularities were committed by the petitioner while working as Superintendent, RITI, Bilaspur for which he was issued show cause notice vide Director of Industries, HP Memo. No. 2-1/69-Ind-I (Vig.) dated 14.8.69 and No. 2-10/69-Ind-I (Vig.) dated 29.9.70. However, the petitioner was exonerated of the charges on consideration of his reply to show cause notices in consultation with Vigilance Department. Para-9. The pay of the petitioner in the revised scale of Rs. 825-1580 was fixed vide letter No. I & S. 15 (Estt.) 522/61, dated 25.9.1987 and payment of Rs. 2153/- was released to the petitioner vide Bank Draft dated 13.6.1988. The benefit of service rendered by the petitioner with the Govt. of Madhya Pradesh and Govt. of India has also been allowed to him. As regards his claim for crossing Efficiency Bar w.e.f. 21.10.62, it is submitted that the petitioner joined under the Respondents on 21.10.61 (AN) and was on probation for a period of two years upto 21.10.1963. In the meantime, he committed certain financial irregularities while working as Distt. Industries Officer, Mandi during the year 1961-62 and 1962-63 for which he was proceeded against departmentally under the relevant rules and also in view of adverse remarks in his ACR’s for the year 1961-62 and 1962-63, he was not allowed to cross the Efficiency Bar w.e.f. 21.10.1962. However, he was allowed to cross the same w.e.f. 1.4.1964. 5 Para-13. The claim of the petitioner that he was not considered for promotion alongwith others is not true. As already explained in para-3 above that Shri D.D.Gandhi the petitioner was duly considered for promotion, but could not be promoted due to low merit and pendency of vigilance cases against him. Para-17. Admitted. Shri S.D.S. Jaswal of general category was promoted as Deputy Director of Industries w.e.f. 31.3.1982 vide Notification No. Udyog (kha) 9-3/88- Estt., dated 9.1.1995. Shri D.D. Gandhi was senior to Shri S.D.S. Jaswal and also to Shri O.P. Gharu. However since Shri Gandhi was deemed to have retired on 31.3.1982 on attaining the age of superannuation, hence he could not be promoted. Para-19 to 21 The Petitioner was compulsorily retired on 15.10.75 by the Govt. against which he filed a CWP No. 329/75 in the Hon’ble High Court of H.P. The Writ petition was allowed and the impugned order of compulsory retirement were quashed. LPA was filed by the State before the Hon’ble High Court of H.P. in the year, 1980 and the same was dismissed on 16.4.87 and four months time was allowed by the High Court for making payment. The respondents State filed CWP 163/87 for extension of time to make payment. This Misc. application was allowed by the High Court as informed by the Deputy Advocate General to the Govt. vide letter No. LPA 11/80- 7877, dated 28.8.87. The payment of arrears of pay from 27.10.75 to 31.3.82 totalling to Rs. 91, 640/- was made on 29.10.87 and the payment of DCRG to the tune of Rs. 16, 400 was paid to the petitioner on 14.4.88. The case for revision of pension was forwarded to the Accountant General on 9.11.87 and was received back vide letter dated 19.2.88. The period for payment of arrears was extended by the Hon’ble High Court upto 1.12.87. The payment of arrears of pay and allowances was made to the applicant on 29.10.87, thus the payment was made within the extended period. The case for revision of pension was sent to the Accountant General on 9.11.87 and was received back on 19.2.88. The payment of DCRG was made to the applicant 6 on 14.4.88 and the Hon’ble Himachal Pradesh Administrative Tribunal vide judgment dated 16.4.99 had allowed interest on DCRG amount of Rs. 16,400/- from 1.12.87 to 14.4.88 @ 12% which has been paid to the petitioner. Thus as per the judgment of Hon’ble High Court of H.P. and Hon’ble Himachal Pradesh Administrative Tribunal no interest is payable to the petitioner. Para-24 (a) to (i). As already clarified in aforesaid paras, the petitioner could not be promoted due to his low merit and pendency of vigilance cases against him. Therefore, he can not be promoted as Technical Organiser/Deputy Director of Industries w.e.f. 4.7.1972 and 8.2.1974 as demanded by him. Since the junior if any to the petitioner were promoted on the basis of merit, hence the petitioner has no right to claim his own promotion from the dates the juniors were promoted. The crossing of Efficiency Bar w.e.f. 31.10.62 was not allowed in the case of the petitioner because his ACR’s were adverse for the year 1961-62 and 1962-63. However, the same was allowed to him from 1.4.64 raising his pay from 550 to 575. In view of this the petitioner does not deserve any relief. He had already filed an OA in Himachal Pradesh Administrative Tribunal, which was decided by the Hon’ble Tribunal on 16.4.1999. According to the judgment delivered by Hon’ble Himachal Pradesh Administrative Tribunal, all benefits allowed by the Tribunal have been given to the petitioner.” 6. In view of the reply furnished as above, in case, the petitioner’s-legal representatives have any dispute as to the position stated above, it will be open to them to take up the matter with the 2nd respondent. In the event if such an attempt is made by the legal representatives, within a month from today, the matter will be duly examined by the 2nd respondent, with notice to them and appropriate action in accordance with law in the matter will be taken within another four months. 7 7. With these observations, the Writ Petition is disposed of, so also the pending application(s), if any. Copy Dasti. (Justice Kurian Joseph), Chief Justice. August 3, 2010. (Justice Kuldip Singh), (karan) Judge.