State of Punjab and Others vs Upinder Singh

Ajay Kumar Mittal, J.—This appeal filed under Clause X of the Letters Patent Act challenges to the judgment dated 29.2.2012 passed by the learned Single Judge in CWP No. 7530 of 1999 {State of Punjab and others v. Upinder Singh). The facts necessary for adjudication of the present appeal as narrated therein are that the writ petitioner (respondent herein) was suffering from kidney problem. Earlier he had filed two writ petitions for the medical advance as well as the medical reimbursement in this Court. The medical advance was sanctioned but unfortunately at that time the donor was over aged and, therefore, the draft handed over to the writ petitioner was deposited back to the Department. The juniors to the writ petitioner were promoted as back as in 1992 to the post of PSE Class II and the case of the writ-petitioner for being promoted was deferred on one reason or the other. When the case of the writ petitioner was not considered for promotion, he filed CWP No. 13469 of 1997. During the pendency of the said writ petition, appellant No. 1 passed an order on 19.12.1997 promoting the writ-petitioner to the post of Principal in PES Class II (School and Inspection Cadre) in the pay scale of Rs. 2400/- Rs. 4000/- from 2.12.1992, the date on which his juniors were promoted. There was no condition mentioned in the order dated 19.12.1997 that the financial benefit would be restricted only from the date of issue of the letter or on any other subsequent date. Accordingly, on promotion, the writ petitioner was entitled to all the consequential benefits in pursuance of order dated 19.12.1997. Further, appellant No. 1 vide order dated 7.1.1998 (Annexure P-2) promoted the writ petitioner as District Science Supervisor. In the letter dated 4.5.1998 (Annexure P-3) issued by appellant No. 3 and sent to appellant No. 2, it was mentioned that the writ petitioner would not get any financial benefit before his joining on the promotional post. On the basis of said letter, appellant No. 2 vide order dated 11.6.1998 (Annexure P-4) restricted the monetary benefits of the writ-petitioner. In view of the orders, Annexures P-3 and P-4, the salary of the writ-petitioner was fixed vide order dated 1.7.1998 (Annexure P-5). Thereafter, the writ-petitioner submitted a representation dated 10.7.1998 (Annexure P-6) to appellant No. 3 for granting him the monetary benefits from the date of promotion i.e. 2.12.1992. When no action was taken by the appellants on the said representation, the writ petitioner sent another representation dated 7.1.1999 (Annexure P-7) mentioning therein that a number of similarly situated persons have been given the benefit from the date of their promotion. However, the writ petitioner came to know that vide order dated 4.5.1999 (Annexure P-8), appellant No. 2 had given antedated promotion and all the benefits from that date to one Smt. Champenetu, S.S. Mistress. Thereafter, the writ petitioner sent a reminder dated 10.5.1999 to appellant No. 1 stating therein that on one side the department is giving antedated promotion as well as monetary benefits to the similarly situated persons whereas in the case of the writ petitioner, he is being denied. But no action was taken thereon. Feeling aggrieved, the writ petitioner filed CWP No. 7530 of 1999 in this Court. The said writ petition was contested by the appellants. It was pleaded that in a case of notional promotion/retrospective promotion, no arrears could be given where the incumbent had not actually worked on the post. Besides controverting the other averments made in the writ petition, it was pleaded that the writ-petitioner had been given notional pay fixation w.e.f. 2.12.1992, the date from which his juniors were promoted. This Court vide order dated 29.2.2012 held the writ petitioner entitled to the consequential benefits and directed to do the needful within a period of six months from the date of receipt of the certified copy of the order. Hence, the present Letters Patent Appeal by the State of Punjab.

Learned State counsel submitted that the writ petitioner having not worked on the promoted post from 2.12.1992 till 19.12.1997 when he was granted retrospective promotion, the writ petitioner could not have been granted the consequential benefit of arrears of salary for the said period. Reliance was placed upon the judgment of the Hon''ble Apex Court in State of Haryana and Others Vs. O.P. Gupta, etc., support of his submission.

After hearing learned State counsel for the appellants, we do not find any merit in the appeal. It was not disputed that the writ petitioner was entitled to promotion from the date when his juniors were promoted and was accordingly promoted w.e.f. 2.12.1992. The said promotion was made on 19.12.1997 (Annexure P-1) and the respondent joined on 16.1.1998. It was also not disputed that the delay in promoting the writ petitioner was on account of the matter having been pending before the Anomalies Committee and nothing could be attributed to the writ petitioner for the delay. Once that was so, the writ petitioner was entitled to all consequential benefits.

A Division Bench of this Court in Kanwaljeet Singh v. State of Haryana and others, 2008(6) S.L.R. 212 noted that where promotion had been granted from retrospective date, the doctrine of no work no pay cannot be applied where the competent authority was at fault in not promoting the employee on the due date without sufficient reasons and the employee would be entitled to arrears of pay of promotional post. The relevant observations recorded therein read thus:--

Having heard learned counsel for the parties we are of the considered view that this writ petition deserves to be succeed. The petitioner was illegally denied promotion with effect from the date persons junior to him were given promotion. In para 2 of the writ petition the petitioner has asserted that when he was transferred to Ambala Range from H.A.P. 1st Battalion, Ambala City, ASIs junior to him in seniority in his cadre of H.A.P. were promoted to the rank of Sub Inspector and his case was not considered. The averments made in Para 2 of the writ petition have not been denied in the corresponding para of the written statement. In other words, it is conceded position that the rightful claim of the petitioner was denied to him for a period of more than three years. The petitioner suffered on account of his non-promotion and is also made to suffer by the stipulation in his promotion order by refusing to give him arrears of salary. The suffering of the petitioner in this manner cannot be continence. It is not a case where there was dispute regarding seniority and promotion could not have been given because of uncertainty on the issue of seniority as per the law laid down by Hon''ble the Supreme Court in the case of State of Haryana and Others Vs. O.P. Gupta, etc., . However, Hon''ble the Supreme Court in the case of State of Kerala and Others Vs. E.K. Bhaskaran Pillai, , has held that the principle of ''no work no pay'' cannot be regarded as a rule of thumb and grant of full back wages in certain eventualities is inoperative particularly when promotion is wrongly denied. In Para 4, their Lordships have made reference to various judgments rendered by the Supreme Court in the cases of Paluru Ramkrishnaiah and Others Vs. Union of India (UOI) and Another, Virender Kumar, General Manager, Northern Railways, New Delhi Vs. Avinash Chandra Chadha and others, A.K. Soumini Vs. State Bank of Travancore and Another, CCI Chambers Co-op. Hsg. Society Ltd. Vs. Development Credit Bank Ltd., ; Union of India (UOI) and Another Vs. Tarsem Lal and Others, Union of India Vs. K.V. Jankiraman, etc. etc., ; State of Andhra Pradesh Vs. K.V.L. Narasimha Rao and Others, Vasant Rao Roman Vs. Union of India (UOI) through the Central Railway, Bombay and Others, ; State of U.P. v. Vinod Kumar Srivastava (2006) 9 S.C.C.621; and O.P. Gupta''s case (supra) and held as under:

...So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 percent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard and fast rule. The principle "no work no pay" cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.

It is, thus, evident from the aforementioned principle that in cases where the respondents have wrongly denied due promotion to their employee then in that eventuality he should be given full benefit including monetary benefit and the principle of ''no work no pay'' would not govern the issue.

Similar view has been expressed in Om Parkash Gupta v. State of Haryana, 200 3(4) S.L.R. 410 and Roop Chand v. State of Haryana and another, 2009(2) S.L.R. 525.

Adverting to the judgment in OP. Gupta''s case (supra) referred to by the learned State counsel for the appellants, the employees before the Hon''ble Supreme Court had joined the duty on 1.12.1992 and were granted notional promotion from the deemed date i.e. 1.1.1983. In that case, the employees were not in the employment and, thus, the Hon''ble Apex Court on the principle of "No Work No Pay" held that the arrears of salary could not be granted to them for the period during which they had not worked but were given notional promotion from the deemed date. In the facts and circumstances of the case, the arrears arising on notional promotion was not given to the employees which is not the situation here.

In view of the above, there is no merit in this appeal and the same is hereby dismissed. Since the appeal was barred by time, an application bearing CM No. 3236-LPA of 2013 u/s 5 of the Limitation Act, 1963 for condonation of 469 days'' delay in filing the appeal was moved. As the appeal has been dismissed on merits, no further orders are required to be passed in the application for condonation of delay in filing the appeal and the same is disposed of as such.