http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: KULDIP CHAND

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT24/08/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  706            1995 SCC  (5) 680  1995 SCALE  (5)239

ACT:

HEADNOTE:

JUDGMENT:                       O R D E R      Leave granted.      On 1st 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.      The 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

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.      The 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.      Mr.  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.      When 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.      The appeal is dismissed. No. costs.