Judgment:
CWP No.17687 of 2013 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CWP No.17687 of 2013 Date of Decision: 24.03.2014 Surinder Kumar Khurana ....Petitioner Versus The High Court of Punjab and Haryana, Chandigarh through the Registrar General ....Respondent BEFORE :- HON'BLE MRS.JUSTICE DAYA CHAUDHARY Present:- Mr.Puneet Gupta, Advocate for the petitioner.
Mr.G.S.Attariwala, Advocate for the respondent.
***** DAYA CHAUDHARY, J.
Prayer of the petitioner in the present petition is for issuance of direction to the respondent to release his arrears of pay and other consequential benefits arising out of order of promotion on the post of Superintendent Grade-II as the same have been restricted w.e.f.11.12.2008, whereas, claim to the post for promotion was accepted.
Briefly, the facts of the case are that the petitioner was initially appointed as Clerk on 20.03.1989 and thereafter, he was appointed as Steno Typist w.e.f.16.07.1991.
The petitioner was having lien on the post of Clerk.
The claim of the petitioner for promotion to the post of Senior Assistant was not considered and thereafter, he filed CWP No.10326 of 1999 before this Court which was disposed of vide order dated 11.12.2008 with a direction to the Registrar to consider the case of the petitioner on the basis of observations made therein.
Hence, the case of the petitioner was Kaur Gurpreet 2014.03.26 17:51 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.17687 of 2013 2 considered by the respondent and he was placed in grade of Senior Clerk w.e.f.20.03.1994 and promoted as Senior Assistant w.e.f.23.09.1997 and thereafter, Superintendent Grade II w.e.f.07.05.2008 i.e the date from which his junior Permod Chander was placed in grade of Senior Clerk and his promotion to the post of Senior Assistant and Superintendent Grade II, respectively.
The arrears of salary were not granted on the ground that he did not work against promoted post.
The monetary benefits were restricted from the date of judgment i.e 11.12.2008.
The petitioner made representation to the respondent for payment of arrears of salary by stating that he was ready and willing to work on the higher post and there was no default on his part.
Learned counsel for the petitioner submits that the petitioner was entitled for arrears also as his junior Permod Chander was promoted with all consequential benefits.
Learned counsel also submits that the petitioner was willing and available for working on the higher post and there was no default on his part in any manner at any stage and denial of arrears of pay is not only discriminatory but normal rule of `no work no pay' is not applicable.
Learned counsel has also relied upon various judgments in cases Vidya Parkash Harnal vs State of Haryana 1995(3) SCT785 Sudesh Kumar vs Haryana Power Generation Corporation Limited and another 2006(3) SCT262 Karnail Singh vs Punjab State Electricity Board and others 2006(3) SCT276 Sports Authority of India and another vs Central Administrative Tribunal and another (CWP No.14998 of 2009, decided on 06.11.2009).Gian Singh vs State of Punjab and others (CWP No.14157 of 1994, decided on 18.08.2010).Gurdial Singh vs Ambala Central Cooperative Bank Limited and another 2011(2) SCT754and Housing Board vs S.B.Kumar 2012(1) Kaur Gurpreet 2014.03.26 17:51 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.17687 of 2013 3 SCT613(DB) in support of his contentions.
Learned counsel for the respondent submits that the petitioner is not entitled for arrears as he had not worked on the promoted post.
The petitioner was granted monetary benefits from the date of judgment i.e 11.12.2008.
The reason for not granting benefit was also conveyed to the petitioner.
Heard the arguments of learned counsel for the parties and have also perused the impunged order as well as other documents on the file.
The grievance of the petitioner is that the respondent has declined the release of arrears of pay and other consequential benefits of the promotional post and the actual benefits have been restricted with effect from the date of decision in the writ petition.
The issue for determination by this Court is as to whether the petitioner can be deprived of the benefit of retrospective promotion when he was not at fault.
Admittedly, the petitioner was not considered for promotion to the post of Senior Assistant from the post of Clerk, whereas, his junior namely Permod Chander was considered.
The claim of the petitioner was allowed by the respondent but his arrears were restricted from the date of decision in the writ petition.
The relevant portion of the judgment passed in CWP No.10326 of 1999 is reproduced as under :- “6.
In the light of the aforesaid arguments and factual background, the reply filed by the High Court through the then Joint Registrar, Punjab and Haryana High Court is to be considered.
The High Court admitted the selection and appointment of the petitioner as Clerk on 28.3.1989 through a competitive examination and his further appointment as Steno- typist w.e.f.16.7.1991.
It is also admitted that option was invited from the petitiner whether he foregoes his Kaur Gurpreet 2014.03.26 17:51 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.17687 of 2013 4 placement in senior scale of clerks and he responded vide reply (Annexure P-2).It is, however, stated that the appointment of the petitioner as Clerk was purely on temporary basis.
It is also admitted that the petitioner had also made a request that his lien in the cadre of clerks be retained.
The High Court has also stated that the Cadre of Clerks was bifurcated into three categories, namely, Clerks, Sr.Clerks and Junior Assistants w.e.f.1.1.1986.
It is also mentioned that since the petitioner changed his cadre from Clerk to steno-typist, he was not entitled to be considered for promotion to the post of Sr.Assistant.
The High Court also admitted that as many as 17 posts of steno-typists in the Establishment of the High Court are purely temporary and to convert these temporary posts into permanent one is under process and the confirmation of the petitioner as steno-typist will be considered in due couRs.when the requisite approval from the Government is received.
The High Court also produced File No.V.L.I.Part 84, Annexure P-9 with supplementary affidavit of the petitioner reproduced here-in-above is part of the official file produced before me at page 59 and is the correct version of the original record.
From the note-sheet (Annexure P-9).it appears that Hon'ble the Chief Justice ordered the retention of the lien of the petitioner and two others in the cadre of Clerks, though the original order of the Hon'ble the Chief Justice is not available because of the theft of record, as per the affidavit of Joint Registrar.
Since it is an official record and duly signed by officials of that time, its authenticity cannot be disputed.
It is also now admitted position that the petitioner was a permanent employee of the High Court having been recruited on the post of Clerk.
Though he was appointed as Steno-typist, the order of appointment itself says that it is by promotion from in- service candidates.
It is under these circumstances, Kaur Gurpreet 2014.03.26 17:51 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.17687 of 2013 5 perhaps the option was sought from the petitioner vide letter dated 3.12.1994 (Annexure P-1) whether he wants to be reverted back to the post of Clerk or he foregoes his placement as Senior Clerks.
It is also admitted position that the post of Steno-typist held by the petitioner is purely temporary.
It is matter of concern that 17 posts of steno-typists in the High Court are temporary posts from 1991 to till date i.e.almost two decades and the persons holding these posts have no future prospects, though they are working on these posts for about 19 yeaRs.Since the post of steno-typist is temporary in nature and the petitioner was promoted from a permanent post, in terms of Rule 3.15, he continues to hold lien on the permanent post.
In view of the order dated 30.11.1991 passed by the Hon'ble Chief Justice, which is evident from the noting of the official file, the petitioner continued to have lien on the post of Clerk which is feeding channel for Senior Assistant.
Thus, the petitioner should have been considered for such promotion which consideration has been denied to him, may be due to official apathy or some other reason.
It is also relevant to note that the petitioner has specifically mentioned the case of one Parveen Kumar who was also appointed as Clerk and later as Steno-typist and while working as Steno-typist, he was promoted and appointed as Sr.Assistant in January, 1996.
Specific averment is made in paragraph 14 of the petiton.
A distinction is sought to be made by the High Court on the plea that said Parveen Kumar was placed in the cadre of Senior Clerks whereas the petitioner was not.
It is further mentioned that no option was exercised by Parveen Kumar.
I may place on record my concern that the High Court has contested this case like any other governmental department and even the order of rejection of the representation of the petitioner is totally non-speaking.
Without disputing the fact that Parveen Kaur Gurpreet 2014.03.26 17:51 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.17687 of 2013 6 Kumar was also Steno-typist when promoted as Sr.Assistant, an illusory distinction is sought to be created.
As a matter of fact, there does not seem to be any distinction between Parveen Kumar and the petitioner.
Reference is made to the High Court Establishment (Appointment and Conditions of Service) Rules, 1973 whereunder, all matters relating to appointment, promotion and seniority of the members of the High Court Establishment are to be decided by Hon'ble Chief Justice.
Hence instead of issuing a mandamus, I direct the Registrar General of the High Court to place this order before Hon'ble the Chief Justice for His Lordship's considerationand appropriate ordeRs.in the light of the observations made by me, here-in-above.
Since this petition is pending for the last more than a decade, I humbly request Hon'ble the Chief Justice to take the decision at the earliest.
7.
In view of the above observations, this petition stands disposed of.
Order accordingly.”
.
It is clear from the order passed in the said writ petition that the petitioner was considered for promotion but the arrears were restricted.
The rule of “no work no pay”.
cannot be applied in the present case as the petitioner was willing to work and because of action of the respondent, he was not promoted without any fault on his part.
This issue was before the Division Bench of this Court in Vidya Parkash Harnal’s case (supra).wherein, the petitioner was granted consequential benefits after his promotion under similar circumstances.
Similar view was held by this Court in Sudesh Kumar’s case (supra) as well as Karnail Singh’s case (supra).This question was also considered by Hon’ble the Apex Court in Union of India vs K.V.Jankriraman 1991(4) SCC109 wherein, it was held that in such like cases, the rule of “no work Kaur Gurpreet 2014.03.26 17:51 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.17687 of 2013 7 no pay”.
is not applicable.
Similar view was taken in case of Vasant Rao Roman vs Union of India 1993(2) SLR289by holding that the employee cannot be made to suffer on account of administrative reasons for which he was not responsible.
Again in case of Harbans Singh vs Union of India 1995 SCC471 the benefit was granted to the employee.
A Division Bench of this Court in case State of Haryana vs Bani Singh Yadav 2005(2) SLR622has held as under :- “ The principle of no work no pay can be invoked by the employer to deny wages or pay to the employee only in those cases in which the employee voluntarily abstains from discharging the duties assigned to him/her.
It cannot be applied in the cases in which the employee/workman is kept away from duty or is prevented or rendered ineligible to discharge duties of a particular post due to an act or omission of the employer.”
.
The view of Division Bench of this Court was also the same in judgment Sports Authority of India and another vs Central Administrative Tribunal and another (Civil Writ Petition No.14998 of 2009, decided on 06.11.2009) by relying upon ratio of law laid down in Union of India vs B.M.Jha 2007(11) SCC632 Admittedly there was no fault on the part of the petitioner, whereas, his junior was promoted and his claim has been allowed subsequently but arrears have been declined.
Therefore, it can be stated that it was not justied on the part of the respondent to deny arrears of pay and financial benefits to the petitioner, whereas, it should have been granted from the date of his promotion.
In view of the facts as well as law position settled as discussed above, the present petition is allowed and the impugned order dated 08.08.2013 (Annexure P-5).whereby, the petitioner was not entitled to Kaur Gurpreet 2014.03.26 17:51 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.17687 of 2013 8 arrears of pay is hereby quashed and the respondent is directed to calculate the arrears of pay and the same be paid to the petitioner within a period of three months from the date of receipt of certified copy of this order.
(DAYA CHAUDHARY) 24.03.2014 JUDGE gurpreet Kaur Gurpreet 2014.03.26 17:51 I attest to the accuracy and integrity of this document High Court, Chandigarh