1. This appeal has been preferred against the judgment of the learned Single Judge by which the contentions of the appellant about his absorbtion, confirmation and seniority have been accepted but he has been denied consequential benefits, on the ground that he had retired from service during the pendency of the writ petition. The appellant was intitally an employee of the Relief and Rehabilitation Department and on being declared surplus from the post of loans officer he was absorbed in the Excise and Taxation Departments as Assistant Commercial Taxation Officer, which post he joined on Jan. 19, 1962. The learned Single Judge has held that it was not necessary to appoint the appellant on probation as he had been appointed on the equivalent post of loans officer on the recommendations of the Rajasthan Public Service Commission and should have been confirmed as A.C.T.O. with effect from October 26, 1962, when he came to be substantively appointed on this post. On basis of having rendered a longer period of continuous temporary service on an equivalent post he was held to be senior to Gautam Prasad and Nandlal respondent 4 and 5 but not senior to respondent Nos. 3 and 6 to 9. This seniority had already been assigned during the pendency of the writ petition, to the appellant by the order of the State Government dated July 7, 1975. In the end the learned Single Judge observed that since the petitioner had already retired from service no other direction appeared necessary. It is this last part of the judgment which has been challenged in this appeal.
2. The learned Counsel for the appellant has contended that on the basis of the revised seniority of the appellant he would have been promoted to the post of Commercial Taxation Officer prior to respondent Gautam Pal and Nandlal and if this notional promotion is allowed to him he may be able to have some advantage in the pension admissible to him. It is contended that the appellant's retirement during the pendency of the writ petition could not be relevant for refusing consquential relief, once it was held that he was wrongly treated as junior to these two persons. A direction to the State Government, to consider the promotion of the appellant as C.T.O. on and from 1-1-1968, the date when his juniors are said to have been promoted, is prayed, along with consequential relief.
3. Reliance has been placed on State of Mysore v. C.R. Sheshadri 1974(1) SLR 407. The respondent in this case was wrongly denied the credit for service on some posts and taking it into consideration, a direction was issued to give him notional promotion as Deputy Secretary with effect from the date the person next below him was promoted and to pay him the excess salary accruing to him. The respondent had retired a day before the judgment of the High Court and this did not deter the Supreme Court from making the above direction.
4. Another decision relied upon by the learned Counsel for the appellant is D.D. Mehta v. The Union of India 1981 SLR 414 where in the compulsory retirement of the appellant was challenged. At the time of hearing the appeal/writ he had already superannuated. The order of retirement was held to be illegal and the appellant was held entitled to salary inclusive of other admissible allowances for the period between the date of compulsory retirement and superannuation at the age of 58.
5. The learned Addl. G.A. has not contested the above position but has merely relied upon Kulin Kant and Ibrahim Ali v. The State of Rajasthan 1975 WLN (UC) 16. This case related to the seniority of these two petitioners as the Assistant CTO and they were held to be senior to Gautampal and Nandlal, who were promoted prior to these petitioners. They are the same persons who have been found to be junior to the present appellant. Because of this decision the consequential relief prayed by the appellant cannot be denied, but it can only be said that on the dates Gautampal and/ or Nandlal were promoted, Kulin Kant and Ibrahim Ali (supra) were entitled to be promoted. In such circumstances it cannot be said that the appellant is entitled to be promoted as the CTO from 1-1-1968 but it will have to be left to the Government to decide from what date he was entitled to be promoted as the CTO and then determine as to what consequential benefits can be made available to him.
6. In view of the Supreme Court decisions cited above the appellant has been wrongly denied consequential benefits on the ground that he retired from service prior to the decision of the writ petition. His appeal deserves to be accepted.
7. The appeal is allowed with costs and the respondent is directed to consider the case of the appellant for promotion to the post of C.T.O. from the date the person next below him was promoted and if found suitable give him all consequential benefits including retirement benefits arising out of it.