JUDGMENT
Balia, J.
1. Heard learned counsel for the parties.
2. Appellant-petitioner in this case, which working as Class IV servant in the Municipal Council, Jodhpur, was promoted as Assistant Sanitary Inspector on 17.4.1984. Thereafter, by order dated 20th November, 1991, following order was communicated to the petitioner, who was then working as Assistant Sanitary Inspector:
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20-11-1992
3. This order appears to be merely a posting order, of Assistant Sanitary Inspector Shri kalla to the post of Sanitary Inspector Shri Kalla to the post of Sanitary Jamadar, who had earlier been appointed as Incharge of the Slaughter House by order dated 30th April, 1990 (Annx.7). Treating it to be an order of reversion from the post of Assistant Sanitary Inspector to Sanitary jamadar, without following the procedure for reversion, which could take place only after holding of an inquiry by way of punishment of disclosing any other reason, on account of which petitioner was asked to discharge the functions of Jamadar instead of Assistant Sanitary Inspector, for which he has been granted promotion since 17.4.1984, the petitioner filed Writ Petition No. 6311/91. The operation of the order dated 20.11.1991 was stayed and the petitioner continued to serve as Assistant Sanitary Inspector until he superannuated on 31.5.1997 on attaining the age of 58 years vide communication date 30.5.1997 (Annx.11).
4. When the matter came up before the Court on 22nd April, 1998, learned counsel for the respondents stated that since the petitioner has already retired form service, he can make proper application to “the competent authority, who shall decide the point in accordance with law at the earliest. In view of this statement, petition was disposed of, with direction- “petitioner is directed to make suitable application to the competent authority within one month from today and on receiving the same, the competent authority shall decide the same within 3 months form the date of receipt thereof. The authority shall decide the same in accordance with law by keeping in mind the fact that this Court has passed the interim order in his favour and he was allowed to work and also retired on the post of Assistant Sanitary Inspector, coupled with the fact that he was continued on the post from 1984 till January, 1992.”
5. In pursuance of this order, appellant-petitioner moved an application before he competent authority on May 04, 1998 slating that he has continued on the post from 1984 to 3!st May, 1997, date on which he retired; therefore, he may be allowed salary and other benefits of the post of Assistant Sanitary Inspector right from 1984 and thereafter to make necessary fixation including fixation and payment subsequent to period when regularisation was done, till his retirement. This application was rejected on 20th July, 1998 vide Annx. 14 by holding that at the relevant time when petitioner was promoted on the post of Assistant Sanitary Inspector, he was lower in seniority and could not have been so promoted and, inter alia, on the ground that petitioner-appellant was first appointed for the period of one year on 17.4.1984 on and hoc basis as Assistant Sanitary Inspector and by order dated 5.11.1986, said order was cancelled and he was posted on his original post of jamadar. However, reply also stated that after order dated 5.11.1986, he was again posted against vacant post of Assistant Sanitary Inspector with effect from 23.11.1986 for a period of 6 months. There is nothing on record that after 23.11.1986, appellant-petitioner was reverted back on the post of Jamadar, either from the material produced before the Court or otherwise.
6. What appears is that the interim order passed by the Court came to an end by decision on 22.4.1998 and since in the case of Alia Beli, who was also a jamadar and was appointed against vacant post of Assistant Sanitary Inspector on 23.12.1986, was paid in the pay scale applicable to his original post and who has since retired, drawing retrial benefits in the same pay scale; it was concluded that the appellant-petitioner can also not be granted the benefits of higher pay scale of Assistant Sanitary Inspector and consequential retrial benefits on that basis.
7. Before the learned Single Judge, it was also pointed out by learned counsel that retirement age of Jamadar is 60 years and of Assistant Sanitary Inspectors and officers is 58 years and, appellant-petitioner has been superannuated at the age of 58 years by treating him to be working on the post of Sanitary Inspector Gr. II, as is apparent from the documents produced along with the writ petition. However, learned Single Judge rejected the contention founded on the difference in retirement age in the case of Assistant Sanitary Inspector and in case of Jamadar, by holding that since plea was not raised in the earlier petition, referred to above, appellant-petitioner can not now raise this plea on the principle of constructive res judicate and then agreed with the conclusion of the competent authority.
8. It seems that appellant-petitioner has not averred that the petitioner was recommended by the Board to the Commission along with service record of the petitioner, containing details of his qualification etc. to Adjudge his suitability and after receipt of the recommendations of the Board, the Commission has communicated its decision regarding suitability on the promotion post of Assistant Sanitary Inspector and therefore, he should be treated as substantively appointed/promoted from the date of his temporary/ad hoc promotion/appointment on the post.
9. Learned Single Judge also stated that because such promotion amounts to backdoor promotion, obtained by the petitioner, is is not entitled to any benefits.
10. It is case of the petitioner that since he has discharged functions of Assistant Sanitary Inspector form 17.4.1984 until date of his retirement in 1997, he is entitled to be paid salary for the post, functions of which were discharged by him and also retiral benefits on that basis. On the other hand, it has been contemplated by Mr. Joshi that since learned Single Judge in its order dated 22.4.1998 has left it to the competent authority to decide this question and the competent authority has found that the petitioner was not promoted as Assistant Sanitary Inspector but was also discharging functions of Assistant Sanitary Inspector after his reversion in November, 1986; he is not entitled to any relief. He also supported the reasons given by the learned Single Judge for rejecting claim of the petitioner.
11. In our opinion, no principle of constructive res judicata or principles engrafted in 0.2 R, 2 CPC become operative in the facts and circumstances of the present case. In the earlier writ petition, appellant-petitioner was aggrieved with the order which purported to post him from the post of Assistant Sanitary Inspector to pot of Jamadar, amounting to reversion. The question of his age of retirement or retirement benefits was not even within sight at the time when petition was fited and therefore, hardly any need to plead and claim relief on that basis. The plea about difference in age of retirement has only been referred y learned counsel for the petitioner to show that by superannuating the petitioner at the age applicable to Sanitary Inspector Gr. II, it can not be disputed and denied that petitioner who was in fact discharging the functions of Sanitary Inspector Gr. 11 was treated by the respondents also to be so and he was entitled to pay and consequential benefits flowing from that position. In that view of the matter, reasons on the basis of which learned Single Judge has ignored this vital aspect of the matter, can not be sustained.
12. We are unable to subscribe to the view of learned Single Judge that whether promotion given to the appellant-petitioner, on which post he continued until date of his retirement, was regular or irregular, would justify dental of benefits it, as a fact, it is established from the record that he continued to discharge functions of the Sanitary Inspector Gr. II. The question was not before the learned Single Judge in this petition whether promotion of the petitioner on the post of Assistant Sanitary Inspect, later on redesignated as Sanitary Inspector Gr. II was justified or not nor the petitioner had claimed regularisation on a pos which he claimed to have been appointed irregularly. The issue was also not whether the petitioner be allowed to continue to hold the post. The question clearly, which was before the competent authority and subject matter of dispute, was whether on the premise that petitioner has been promoted on the post of Assistant Sanitary Inspector and he continued on that post until passing of the order, which was impugned in the previous writ petition No. 6331/91 and thereafter, his superannuation during pendency of the dispute; would entail depriving him the benefits of the post, duties of which he has discharged. It is nobody’s allegation that promotion was obtained by the petitioner by any misrepresentation or fraud. It was purely an administrative action of the respondents in giving promotion in ordinary course of its functioning. Whether it was right or wrong, would depend on the nature of challenge addressed in that regard and time, Certainly, it is not a case of reversion on account of any disciplinary inquiry pending during continuance of service of the . petitioner which could justify reduction or forfeiture of retiral benefits even after superannuation.
13. The question of holding a post, whether irregular, until retirement, can not put a person retrospectively on a post of lower pedestal. Learned counsel for respondents could not place before us any statutory rule or decision which would, in such situation, justify denial of salary & emoluments of the post, duties of which the incumbent has discharged until date of his retirement and the denial of retiral benefits on that basis. In that context, the question of backdoor entry simply does not arise. The petitioner does not claim regularisation of his services on the post upon which he continued for long time having not been appointed regularly in the first instance. In the present case, that stage was over. Therefore, none of the grounds, which prevailed with the learned Single Judge in dismissing the writ petition, in our opinion , can justify non- suiting the petitioner.
14. On the other hand, decision dated 22nd April, 1998 which has been passed in the presence of both the parties, after hearing them on certain representation made before the Court, is as under:
“The authority shall decide the same in accordance with law, keeping in mind the fact that this court has passed the interim order in his favour and he was allowed to work and also retired or the post of Assistant Sanitary Inspector, coupled with the fact that he was continued on the post from 1984 till January, 1992.”
15. In our opinion, if the principle of res judicata applies, it applies to above finding and the competent officer was not entitled to go back from this basic premise that the petitioner was continued on the post of Assistant Sanitary Inspector from 1984 till January, 1992 and thereafter, under interim order of this Court and that he retired on the post of Sanitary Inspector. This fact that this foundation has been accepted by the learned Single Judge and the direction was issued to the competent authority to decide the case of benefits, to be paid to the petitioner for the period from 1984 till date of his retirement, had to be founded on the premise that petitioner was working on the post of Assistant Sanitary Inspector from 1984 until dale of his retirement. By taking a contrary view, the competent officer has, in fact, acted contrary to the directions made by the learned Single Judge on 22.4.1998.
16. Even otherwise, form the material produced before us and fact that this position was not disputed that petitioner was continuing on the post of Assistant Sanitary Inspector from 1984 until order dated 20th November, 1991, which led to filing of earlier writ petition and thereafter his continuance on the post under interim orders of this Court, without giving effect to order dated 20.11.1991 and the fact, that even as per the impugned order, though once reverted to the post of Jamadar in November, 1986, he was again required to discharge functions of Assistant Sanitary Inspector from December, 1986 from which he was withdrawn only vide order Annex.9 and operation of which has been stayed; reference in the order dated 24.2.1990 (Annex.6) that petitioner Shri Kalla is continuously discharging functions of Assistant Sanitary inspector since 1984; the order dated 30th April, 1990 by which petitioner was required to discharge functions of Incharge, Slaughter House and lastly order Annex. 10 dated 14.6.1994 referring to petitioner as Assistant Sanitary Inspector, by which permission was accorded for fixing petitioner’s emoluments in the pay scale applicable to Sanitary Inspector Gr. 11 with effect from 25.1.1992 (necessitated because of abolition of post of Assistant Sanitary Inspector from pattern of posts in the Municipality by order dated 09.1.1992); clearly goes to show that thee was no dispute between the parties until question of retiral benefits and emoluments to be paid from 1984 to date of retirement i.e. 31st May, 1997 arose, to be determined by the competent authority, that the petitioner was not discharging functions of Assistant Sanitary Inspector at any time during this period or that he has been reverted from the post of Assistant Sanitary Inspector to Jamadar prior to Annx.9 dated 20.11.1991.
17. It need to be noticed that though it has been stated in Annx.14 that the petitioner was reverted to post of Sanitary Jamadar by order dated 05.11.1986 and he was again required to discharge the functions of Assistant Sanitary Inspector by order dated 23.12.1986; the petitioner in his writ petition has specifically averred that no reversion order dated 5.11.1986 was ever communicated to him. This averment has not been refuted.
18. All these facts and circumstances unanimously establish that the petitioner was promoted on the post of Assistant Sanitary Inspector vide order dated 17.4.1984 on and hoc/temporary basis, he continued to hold such post until he retired and discharged the functions of the Assistant Sanitary Inspector, until it merged with the post of Sanitary Inspector Grade II vide order dated 14.6.1994 and he continued to hold post of Sanitary Inspector Grade II w.e.f. 14.9.1994 till he superannuated on 31.5.1997, in the pay scale of Sanitary Inspector Grade II.
19. In that view of the matter, there was not reason to have denied the petitioner benefits of emoluments of the post duties of which he has discharged continuously since 1984 or even according to order Annx. 14 since December, 1986, namely, Assistant Sanitary Inspector and form that post he retired and to deny him retirement benefits of the last drawn pay, which he was entitled to draw while working on that post. On the contrary, the decision in the earlier petition would result only in such consequences, by accepting the findings to be binding, that the petitioner was discharging functions of Assistant Sanitary Inspector until date of his retirement.
20. Accordingly’, the Special Appeal is allowed, the judgment passed by learned Single Judge is set aside the writ petition filed by the petitioner is allowed. The impugned order dated 20.7.1998 (Annex. 14) is quashed. The respondents are directed to make fixation of emoluments of the petitioner afresh in the pay scale applicable to Assistant Sanitary Inspectors with effect from 17.4.1984 until date of his superannuation i.e. 31.5.1997 and fix his retirement benefits on that premise and make the payment thereof accordingly, within three months from the date writ is served or a certified copy of it is produced before the competent officer. No order as to costs.