Petitioner, retired Senior Clerk, sought pension and benefits as Marketing Inspector via writ petition. Court dismissed the petition as misconceived, relying on a prior final order rejecting substantive Marketing Inspector status and fixing appointment date as Senior Clerk.
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Court No. - 6
Case :- WRIT - A No. - 1719 of 2019
Petitioner :- Banwari Lal Tiwari Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- K.K. Tripathi Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.
This petition has been preferred principally seeking the following reliefs:
"A) Issue a writ, order or direction in the nature of Mandamus commanding the respondents to pay the pension of Marketing Inspector (difference of pension between marketing Inspector and senior clerk w.e.f. 01.05.2008) alongwith the current pension of Marketing Inspector as an when due in future within specific period as may be fixed by this Hon'ble Court.
B) Issue a writ, order or direction in the nature of Mandamus commanding the respondents to pay the gratuity, leave incashment w.e.f. 01.05.2008 (difference of gratuity and leave incashment of Marketing Inspector and senior clerk) within specific period.
C) Issue a writ, order or direction in the nature of Mandamus commanding the respondents to pay 15 years advance pension of Marketing Inspector (difference of Pension of Marketing Inspector and senior clerk) and Regional Food Controller (respondent No.4) may be directed to sent the character roll of the petitioner from 2001 to 2006 to the Respondent No.2 and seniority No.1088 may be placed in the record within specific period."
It is not disputed before this Court that the petitioner had retired in 2008 from the post of Senior Clerk. The reliefs as framed appear to be pressed on the strength of the petitioner having been temporarily given charge of the post of Marketing Inspector. Dealing with his claim for being treated as a Marketing Inspector and for his date of regular appointment being viewed as 5 September 1975, the petitioner had preferred Writ -A No. 10083 of 1991 (Banwari Lal Tiwari Vs. State Of U.P. & Others) which came to be disposed of on 8 August 2012 in the following terms:
"Heard Sri Piyush Sinha, learned counsel for the petitioner and learned Standing Counsel.
By means of the present writ petition the petitioner is challenging the order dated 20.3.1991 by which the Regional Food Controller, Jhansi Region, Jhansi has rejected the representation of the petitioner and has taken 5.9.1975 as the date of his regular appointment on the post of Senior Clerk.
It appears that the petitioner was appointed as Senior Clerk on 5.9.1975. He has been given charge of Marketing Inspector on ad hoc basis in the year 1983. The petitioner has been reverted back on 28.1.1985 from the charge of Marketing Inspector to the post of Senior Clerk. The petitioner challenged the said order in Writ Petition No. 4042 of 1985. The writ petition was entertained on 25.3.1985 and as an interim measure the operation of the interim order dated 28.1.1985 has been stayed.
Learned counsel for the petitioner submitted that the said writ petition has been dismissed. He further submitted that the petitioner has now superannuated in the year 2008.
In view of the fact that the vide order dated 28.1.1985 the petitioner has been reverted back to the post of clerk. The said order has not been set aside by any of the competent authority and has become final. I do not find any error in the impugned order dated 28.3.1991 by which 5.9.1975 has been fixed as the regular date of appointment on the post of Senior Clerk.
Learned counsel for the petitioner submitted that due to pendency of the writ petition, the respondent is not fixing the pension.
In view of the above, the writ petition is disposed of directing the respondent to fix the pension of the petitioner having regard to the order dated 20.3.1991. The petitioner shall file the certified copy of this order within four weeks before the appropriate authority and the concerned authority is directed to fix the pension of the petitioner within two months thereafter in accordance to law."
As is evident from the findings returned in that order the Court had found no ground to interfere with the order impugned therein nor did it accept the claim of the petitioner that he had been appointed as a Marketing Inspector on a substantive basis.
In view of the above, it is evident that this petition is thoroughly misconceived.
It is dismissed as such.
Order Date :- 1.2.2019 Arun K. Singh
(Yashwant Varma, J.)
3 issues framed by the court
Whether a petitioner retired as Senior Clerk can claim pension and benefits as Marketing Inspector based on temporary charge.
Whether a petition challenging the date of appointment and seeking consequential benefits should be allowed when the previous final order was against the petitioner.
Whether the High Court can direct fixation of pension having regard to an order fixing the regular date of appointment as Senior Clerk.
Colour shows how this judgement treated each authority
Banwari Lal Tiwari Vs. State Of U.P. & OthersRelied on¶10
Writ -A No. 10083 of 1991 (Banwari Lal Tiwari Vs. State Of U.P. & Others)
Banwari Lal Tiwari
State Of U.P.
Yashwant Varma
As recorded by the court registry
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