Karam Chand vs State Transport Controller and Another

S.K. Jain, J.—Through this single judgment L.P.A. No. 767 of 1993 arising out of Civil Writ Petition No. 9435 of 1987 ''Karam Chand v. State Transport Controller and Ors.''; and Civil Writ Petition No. 8802 of 1993 ''Nanak Chand v. State of Haryana and Ors. '' are proposed to be disposed of as identical question of law and facts are involved therein.

Facts first.

Karam Chand helper/electrician employed in Haryana Roadways, Faridabad filed Civil Writ Petition No. 9435 of 1987 seeking a mandate thereby quashing the order dated 9.7.1987 vide which his juniors were promoted on the grounds:-

(i) that we was senior to the private respondents;

(ii) that he possessed higher qualification as compared to those of respondents No.4 to 7;

(iii) that the Assistant Fitters were promoted from the common seniority list of helpers working with Turners, Washing Boys, Electrician, Welder, Tyre man, Motor mechanic, Carpenter and Peons. He further sought a direction to he issued to respondent Nos. 3 to 7 to promote him with effect from 9.7.1987 when his juniors were promoted.

The writ petition was contested on behalf of the official respondents and a written statement was filed. Their stand is that respondents No. 3 to 7 were promoted in accordance with their seniority in the trade. It was however not denied that the petitioner was senior to respondents No. 3 to 7 in common seniority list. A single Bench of this Court allowed the said writ petition vide its judgment dated 20.10.1992 thereby directing the respondents No. 1 and 2 to promote the petitioner as Assistant Fitter with effect from the date when his juniors were promoted. It was ordered that his entire service will, however, count towards seniority, pension, fixation of pay, grant of increments and other allied benefits. However back wages were denied to him.

Feeling aggrieved, with the portion of the judgment vide which the back wages were denied to him, the writ petitioner has filed LPA No. 767 of 1993.

Civil Writ Petition No. 8802 of 1993.

Nanak Chand petitioner who was employed as helper in Haryana Roadways Depot, Faridabad filed Civil Writ Petition No. 8802 of 1993 seeking a mandate thereby quashing the order of promotion dated 19.4.1991 and issuance of a direction to the first and second respondents to promote him as Assistant fitter/Blacksmith from the date his juniors were promoted. His case is that there was a joint seniority list of helpers working with turners, washing boys, radiator repairer, electrician, welder, tyreman, motor mechanic and carpenter etc. Respondents No.3, 4 and 5 were juniors to the petitioners in that seniority list but respondents No. 3 and 4 were promoted as Assistant Fitter whereas respondent No. 5 was promoted as Assistant Blacksmith vide order dated 19.4.1991 and thus the seniority of the plaintiff had been ignored.

On being served, the official respondents No. 1 and 2 fifed written statement. They took the stand that the department had constituted a Committee to examine the issue of promotion of helpers to the post of Assistant Fitter, Assistant Carpenter, Assistant Electrician etc. They said Committee recommended that promotion should be made on the basis of tradewise seniority instead of joint seniority list, provided they possessed the requisite qualification i.e. Middle pass and two years experience in the respective trade. It was further recommended that the option of other helpers be obtained for promotion to the post of Assistant in the respective trade provided they possessed the said qualification and experience in the trade on which promotion case would be considered. On the basis of the said recommendation it was asserted that the impugned order had been passed strictly in accordance with the said promotion policy.

Perusal of seniority list (Annexure P-2) would show that petitioner Nanak Chand is shown at Serial No. 8 and Daya Nand, Puran Mal and Kirpa Ram respondents No. 3,4 and 5 have been shown at serial Nos. 9, 10 and 16, respectively. This fact has not been denied on behalf of the respondents as mentioned herein before. It is also admitted that private respondents No. 3 to 7 had been promoted as Assistants and that there was no tradewise seniority list in existence. So, in view of the fact that there was only one common seniority list in the cadre, promotions have to be regularised in accordance therewith. Denial of the promotion to senior persons normally would be illegal. The action of the respondents No. 1 and 2 in not promoting the petitioner to the post of Assistant Fitter in flagrant disregard of the common seniority list was clearly violative of Articles 14 and 16 of the Constitution of India. In the matter of employment including the right of promotion the petitioner has thus been denied equal opportunity.

For the aforementioned reasons, this writ petition is allowed. Respondents No. 1 and 2 are directed to promote the petitioner as Assistant Fitter with effect from 19.4.1991 on the date his juniors were promoted. He will also be entitled to all the consequential benefits.

Now on to the question of back wages, learned counsel for the respondents has vehemently argued that the petitioner was not entitled to any arrears of pay and allowances because be did not work on the post of Assistant Fitter during the relevant period. Reliance has been placed on the decision of Supreme Court in Paluru Ramkrishnaiah and Others Vs. Union of India (UOI) and Another, . On going through the judgment, we find that limited relief was granted keeping in view the fact that there was delay of 17 years in approaching the Court and further M.P. High Court granted the relief in Appeal No. 441 of 1981. It was on that basis that the Supreme Court had also granted limited relief. Principle of ''No work-No pay'' cannot be attracted to the case in hand as due promotion was not allowed to the petitioner at the relevant time when persons juniors to him were promoted and the petitioner cannot be made to suffer on account of inaction on the part of the respondent. In view of the fact that it has been found that there was no justification for not fixing the petitioner in the promotional grade the relief of back wages cannot be denied to the petitioner. In Sikandar Lal v. State of Haryana, decided on July 13, 1989 principle of "No work-No pay'' was not applied in such circumstances.

Again a Division Bench of this Court in Prem Chand v. State of Haryana and Ors. 1993 (2) R.S.J. 475, held that the principle of ''No Work-No pay could not be attracted to the case where due promotion was not allowed to the petitioner at the relevant time when persons junior to him were promoted and the petitioner cannot be made to suffer on account of inaction on the part of the official respondents. Since there was no justification for not fixing the petitioner in the promotional post, the relief of back wages could not be denied to him. Reference can also be had to Parshadi Lal v. The State of Haryana and Anr. 1994 (1) R.S.J. 197.

In view of the above discussion, the part of the judgment impugned in the L.P.A. where-under the relief of back wages was denied to the appellant is set-aside. It is directed that he was entitled to payment of back wages. L.P.A. and the writ petition is allowed. No costs.