Chand Vs. Union of India & Ors  INSC 419 (24 August 1995)
K. Ramaswamy, K. Hansaria B.L. (J)
1996 AIR 706 1995 SCC (5) 680 1995 SCALE (5)239
O R D
January, 1991 when the post of Accountant became vacant, Ashok Kumar, 4th
respondent had staked his claim for consideration of his case for promotion
contending that he was appointed on November 29, 1976 as octroi moharrar in the
pay scale of Rs. 110-250/- and that he was posted as a clerk on March 1, 1984.
By the proceedings of the competent authority, the post of octroi moharrar and
clerks were redesignated as clerks in year 1982. Consequently he was working as
a clerk from November
29, 1976. The post of
clerk as a feeder post for consideration to the vacancy of accountant. He being
senior to the appellant, is better situated to be considered for the post of
accountant. His claim was nagatived. Consequently, when he approached the High
Court of Himachal Pradesh in W.P. No. 267/91 by order dated November 22, 1991, the High Court accepted the claim
and allowed the writ petition directing the Union of India to consider his case
for promotion as an accountant vis-a- vis the claim of Kuldip Chand, which
found favour with the authorities. The case of the appellant is that he was
appointed as sanitary supervisor on August 29, 1973 in the pay scale of Rs. 100-160/-.
He was promoted as a clerk on February 5, 1979
and was posted as a store keeper in the pay scale of Rs. 510-800/-. Ever since
he has been drawing the same scale and is thus senior to the 4th respondent.
question, therefore, for our consideration is: who is the senior in the post
for clerk? Admittedly, post of clerk is a feeder post for promotion as an
accountant. It is not in dispute that the posts of octroi moharrar and the
clerk were fused and redesignated as clerks. In that view, it must be deemed
the Ashok Kumar has been working as a clerk since inception, viz., November 29, 1976. The appellant admittedly was
appointed as a clerk on Pension Rules, 1950 (for short, 'the Rules' ) would
stand attracted to the respondents and, therefore, the respondents are not
entitled to any pension in excess of the pension calculable on the last
substantive pay drawn by them.
High Court, relying upon s.39(19) of the Act, which is pari materia with the
provisions of the Bihar Agricultural University Act, held that the Government's
liability to pay pension still subsists. Therefore, the Government is liable to
pay the compensation/proportionate pension to the respondents. Accordingly
allowed the writ petition.
B.B. Singh, learned counsel for the State, contended that since the respondents
had resigned and were re-employed by the University, by operation of the
instructions issued in letter dated 11.5.1990, they must be deemed to have been
re-employed. Therefore, they are not entitled to pension higher than what they
would have got, had they remained as Government servants by operation of Rule
161(b) of the Rules. Though he contended that the Government does not bear the
proportionate pension, we do not on December 23, 1982 but no vacancy had arisen
thereafter and, therefore, the mere rejection of the claim for seniority does
not disentitle him to claim his seniority over the appellant for consideration
by the respondent- Union.
the aforesaid facts are taken into consideration, it would be obvious that the
preparation of seniority list per se was illegal. Therefore, the mere fact that
he did not challenge the seniority list, which was illegally prepared, till he
was aggrieved for non-consideration of the claim to the post of accountant, his
legitimate right to be considered cannot be denied. Under these circumstances,
the delay is of no consequence for considering the claims of Ashok Kumar for
the post of accountant.
appeal is dismissed. No. costs.