2025:UHC:5620-DB HIGH COURT OF UTTARAKHAND AT NAINITAL JUSTICE SHRI MANOJ KUMAR TIWARI AND JUSTICE SHRI SUBHASH UPADHYAY Writ Petition (S/B) No.356 of 2019 July 2, 2025 State of Uttarakhand & Ors. …Petitioners Versus J.C. Belwal & Anr. …Respondents ------------------------------------------------------------------------------ Presence:- Mr. Puran Singh Bisht, Addl. C.S.C. for the State/petitioners Mr. V.K. Kaparuwan, Advocate for respondent no.1 ------------------------------------------------------------------------------ The Court made the following: JUDGMENT: (per Hon’ble Justice Sri Manoj Kumar Tiwari) 1. State has filed this writ petition challenging the judgment dated 22.02.2018 rendered by Uttarakhand Public Services Tribunal in Claim Petition No.21/NB/DB/2016. By the said judgment, learned Tribunal allowed the claim petition filed by respondent no.1 and directed the authorities to pay the arrears of pay and other monetary benefits of the post of Superintending Engineer to respondent no.1 from the date of his notional promotion i.e. 01.10.2005 and also to grant the benefit of ACP from 01.01.2006 instead of 01.09.2008. Operative portion of the impugned judgment is reproduced below:- “The claim petition is hereby allowed and the impugned order dated 2.1.2016 and 1 2025:UHC:5620-DB consequential order dated 08.02.2016 (Annexure:14 & 15) are hereby set aside. The respondents are directed to pay all the arrears of pay and other monetary benefits of the post of Superintending Engineer to the petitioner from the date of his notional promotion i.e. 01.10.2005 and to grant the benefit of ACP from 01.1.2006 instead of 01.09.2008, within a period of four months from today. No order as to costs.” 2. It transpires that respondent no.1 was appointed as Assistant Engineer in State Public Works Department in erstwhile State of U.P. Upon State reorganization, respondent no.1 opted for State of Uttarakhand, however, he was not allotted State of Uttarakhand and was allotted State of U.P. on the ground that he was not a member of hill cadre. 3. On 09.11.2000, when State was reorganized, respondent no.1 was serving as Executive Engineer. Vide order dated 11.04.2008, he was promoted notionally as Superintending Engineer w.e.f. 13.12.2007 on the ground that his junior, namely, Ghanshyam Swaroop Bansal was provisionally promoted from the said date. In the promotion order dated 11.04.2008, however, it was mentioned that the said promotion is subject to the final allocation made by the Central Government and also subject to the judgment rendered in Writ Petition No.32 of 2008 “Mahendra Pal Singh Khati vs. State”. Subsequently, by office memo dated 08.08.2008 issued by Secretary, 2 2025:UHC:5620-DB Public Works Department, Uttarakhand, respondent no.1 was relieved for State of U.P. in which his designation was mentioned as Executive Engineer (Civil). Respondent no.1 joined duties in State of U.P. pursuant to aforesaid relieving order. Thereafter, by an order dated 11.12.2008 passed by Central Government, respondent no.1 was finally allotted to State of Uttarakhand. Consequent to his allotment to State of Uttarakhand, respondent no.1 joined duties as Executive Engineer (Civil) in Uttarakhand Public Works Department on 15.01.2009. Upon joining duties in State of Uttarakhand, respondent no.1 made representation, staking claim for promotion to the post of Superintending Engineer (Civil) w.e.f. 01.10.2005. 4. Since the Competent Authority did not pass any order on the representation made by respondent no.1, therefore, he filed Writ Petition Nos.35 (S/B) of 2011, which was disposed of with direction to the Competent Authority to consider representation of respondent no.1. Pursuant to the order passed in the said writ petition, Principal Secretary, Public Works Department, Uttarakhand passed an order on 13.07.2012 granting notional promotion as Superintending Engineer to respondent no.1 w.e.f. 01.10.2005. In the said order, however, it was provided that since respondent no.1 has not served as Superintending Engineer, therefore, he shall not be entitled to arrears of salary and the notional promotion is being given to him only for the purpose of pay fixation. 3 2025:UHC:5620-DB 5. It is an admitted position that respondent no.1 retired from service on 30.06.2009. After retirement, he filed Claim Petition No.21/NB/DB/2016 for the following reliefs:- “i) To issue an order or direction directing the respondents to pay all arrears of pay and other monetary benefits to the petitioner on the post of Superintending Engineer from the date of notional promotion i.e. 01.10.2005 as given to Sri R.K. Goel. ii) To issue an order or direction directing the respondents to sanction and pay the benefits of ACP from 0101.2006 instead of 01.09.2008 as given to his junior Mr. V.K. Trehan. ii(a) To issue an order or direction to set aside the impugned order dated 02.01.2016 along with consequential order dated 08.02.2016. iii) To pass any other suitable order as this Hon’ble Tribunal may deem fit and proper under the facts and circumstances of the case. vi) To award the cost of the petition in favour of the applicants.” 6. The claim petition was allowed by learned Tribunal and the Competent Authority was directed to pay the entire arrears of pay and other monetary benefits of the post of Superintending Engineer to respondent no.1 w.e.f. 01.10.2005 and also to grant him benefit of ACP w.e.f. 01.01.2006. 4 2025:UHC:5620-DB 7. Learned State Counsel submits that learned Tribunal erred in allowing the claim petition filed by respondent no.1 by ignoring the averment made in para-3 of the counter affidavit filed in reply to the claim petition, wherein it was stated that respondent no.1 was notionally promoted as Superintending Engineer w.e.f. 01.10.2005 with the condition that he shall not be entitled to arrears of salary on the strength of such notional promotion and it was further stipulated that notional promotion is given only for the purpose of pay fixation. Thus, he submits that without dealing with the said condition, learned Tribunal has allowed the claim petition, which is legally unsustainable, therefore, the judgment rendered by learned Tribunal is liable to be set aside. 8. Learned State Counsel further submits that since there was an embargo placed in the order of notional promotion against grant of arrears of salary, therefore, without setting aside the condition mentioned in the order of the notional promotion dated 13.07.2012, direction to release arrears of pay and other monetary benefits to respondent no.1 for the post of Superintending Engineer w.e.f. 01.10.2005, was not proper. 9. Learned State Counsel further submits that the direction to grant benefit of ACP to respondent no.1 w.e.f. 01.01.2006 is also not sustainable, as he was promoted, though notionally, as Superintending Engineer w.e.f. 01.01.2005, therefore, he was not 5 2025:UHC:5620-DB entitled to the benefit of ACP, which is given to an employee in lieu of promotion. He submits that ACP Scheme was introduced to compensate State employees for stagnation on a post for want of promotional avenues. He submits that since respondent no.1 earned promotion as Superintending Engineer w.e.f. 01.10.2005, therefore, he was not entitled to ACP within three months from the date of promotion as Superintending Engineer. 10. We find substance in the submissions made by learned State Counsel. In para-3 of counter affidavit filed by State before learned Tribunal, there was a reference to the condition contained in order dated 13.07.2012, whereby respondent no.1 was notionally promoted as Superintending Engineer. Respondent no.1 accepted the said condition without any demur and he did not challenge the condition that he will not be entitled to arrears of salary on account of his notional promotion. State had pleaded before learned Tribunal that because of the condition, respondent no.1 is not entitled to arrears of salary for his notional promotion, however, learned Tribunal appears to have overlooked said aspect while deciding the claim petition. 11. Since the condition mentioned in the order dated 13.07.2012 goes to the root of the matter and disentitles respondent no.1 from any monetary benefits on account of his notional promotion, which aspect, however, has not been considered by learned Tribunal, therefore, in our considered opinion, the judgment 6 2025:UHC:5620-DB rendered by learned Tribunal cannot be sustained in the eyes of law. 12. Mr. V.K. Kaparuwan, learned counsel for respondent no.1 has apprised the Court that the direction regarding grant of ACP to respondent no.1 w.e.f. 01.01.2006 has been carried out by the State and the monetary benefits, in terms of said direction, have been paid. 13. In view of foregoing discussion, the direction to release arrears of pay and other monetary benefits of the post of Superintending Engineer to respondent no.1 from the date of his notional promotion, i.e. 01.10.2005, is interfereable. Therefore, the writ petition is partly allowed and the impugned judgment is set aside to the extent it directs the State to grant monetary benefits to respondent no.1 for the post of Superintending Engineer w.e.f. 01.10.2005. Since the benefit of ACP w.e.f. 01.01.2006 has already been given to respondent no.1 by the State, therefore, we refrain from interfering with the second direction issued by learned Tribunal. (Subhash Upadhyay, J.) (Manoj Kumar Tiwari, J.) 02.07.2025 02.07.2025 Rajni 7 RAJINI GUSAIN Digitally signed by RAJINI GUSAIN DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=97cfa6e4cbd49c07b876db4844 8ac3701a9ae475a2547e4b7f1d9b1f17d0 1342, postalCode=263001, st=UTTARAKHAND, serialNumber=8D039BC77BD1A2222B4D F4FC80D4557562F95BEBA013F530616A 158A0A878BD8, cn=RAJINI GUSAIN Date: 2025.07.09 21:37:34 -07'00'