Suresh Kumar vs State of Punjab and Another

Rajesh Bindal, J.—The petitioner has approached this Court seeking quashing of order dated 11.03.2010 communicated to the petitioner vide endorsement dated 16.04.2010 (Annexure P-8) passed by respondent No. 1, whereby the petitioner has been denied the relief of arrears of pay on account of retrospective promotion granted to him in terms of the order dated 18.03.2008 passed by this Court in CWP No. 2948 of 2005, filed by the petitioner earlier. Briefly, the pleaded facts are that the petitioner was working as Pump Operator in Municipal Corporation at Jalandhar. Certain persons junior to him were promoted as Junior Engineer w.e.f. 16.02.2001. Aggrieved against the action of the authority, the petitioner filed CWP No. 2948 of 2005 in this Court, which was disposed of with a direction to the authorities to consider the claim of the petitioner for promotion as Junior Engineer/Sectional Officer from the date, his juniors were promoted. As the order was not complied with within the time granted by this Court, the petitioner filed COCP No. 1342 of 2009, in which an affidavit was filed by the Principal Secretary to the Government Punjab, Department of Local Government stating therein that in terms of the directions issued by this Court, the case of the petitioner was considered and vide order dated 06.08.2009 communicated vide endorsement dated 7.08.2009, the petitioner has been promoted as Junior Engineer (Electricity Wing), the date from which the employees junior to the petitioner were promoted. The aforesaid contempt petition was disposed of by this Court on 19.11.2009 by taking note of the aforesaid affidavit and also observing that in case the petitioner is entitled to any monetary benefit on the basis of order of promotion, the same shall be paid to him within a period of three months. The representation made by the petitioner for granting the relief of arrears of salary was partially declined vide order dated 16.04.2010 passed by the Government of Punjab. The petitioner was only granted the arrears of pay from 18.09.2008, the date upto which the order passed by this Court in the earlier writ petition filed by the petitioner was to be complied with, but relief of arrears of salary from the date the petitioner was promoted, was denied. Thereafter the petitioner filed a fresh contempt petition bearing COCP No. 907 of 2010, however, the same was disposed of with liberty to the petitioner to impugn the order passed by the authority declining him full salary for the period, the petitioner was given retrospective promotion.

Learned counsel for the petitioner submitted that once the persons junior to the petitioner were promoted from the post of Pump Operator to Junior Engineer/Sectional Officer, the case of the petitioner was also required to be considered. He having not been granted promotion, approached this Court by filing CWP No. 2948 of 2005, which was disposed of vide order dated 18.03.2008. It was specifically pleaded by the petitioner therein that the persons junior to him, namely, Ranbir Singh, Ranjinder Sharma and Harjinder Singh had been promoted, though the petitioner had been ignored. The case set up by the respondents therein was that the petitioner having passed diploma in Electrical Engineering was not eligible for the promotion to the post of Sectional Officer (Operation and Maintenance), as the requirement is that a person should have passed diploma in Mechanical Engineering. The plea raised by the respondents therein was rejected considering the fact that other persons, who were junior to him and were promoted also had similar qualification, as the petitioner had. Direction was issued to the respondents to consider the case of the petitioner for promotion from the date his juniors were promoted. The order having not been complied with within the time granted by this Court, the petitioner filed contempt petition bearing COCP No. 1342 of 2009. It was thereafter that the petitioner was promoted as Junior Engineer (Electrical) w.e.f. 16.02.2001 (the date from which his juniors were promoted). As the aforesaid order was passed during the pendency of the contempt petition, the only relief to which, according to the petitioner, he was entitled to, was arrears of salary for the period the petitioner had not been permitted to work as Junior Engineer. The aforesaid contempt petition was disposed of with the observation that in case the petitioner is entitled to any monetary benefit on the basis of order of his promotion, the same shall be paid to him within a period of three months. Still the arrears of salary were not paid and vide impugned order dated 11.03.2010, the authorities have applied a new cut off date. Though he was granted retrospective promotion from a correct date but the date was chosen for grant of arrears was the date on which the time granted by this Court for compliance of the directions, expired, which had no relevance.

Learned counsel for the petitioner, while placing reliance upon judgments of this Court in Gurdial Singh Vs. The Ambala Central Cooperative Bank Ltd. and Another, , titled as Gurdial Singh v. Ambala Central Cooperative Bank Ltd. and another, decided on 27.10.2010, 1995(3) S.C.T. 785: LPA No. 544 of 1992, titled as Vidya Parkash Harnal v. State of Haryana, decided on 19.07.1995 and 2002(2) S.C.T. 347: CWP No. 9738 of 2000, titled as Vijay Kumar Verma v. State of Haryana, decided on 14.02.2002, submitted that the petitioner is entitled to arrears of pay from the date he was granted promotion as it was not the fault of the petitioner, rather it was a wrong committed by the authorities while not promoting the petitioner whereas the persons juniors to him were promoted. Learned counsel for the petitioner further submitted that the case now sought to be set up in the written statement by the respondents is that the petitioner was not eligible at the relevant time, had already been considered by this Court when the petitioner had filed earlier writ petition and the same was rejected, hence, it cannot be permitted to be raised again.

On the other hand, learned counsel for the State submitted that as the petitioner has not worked on the promoted post, on the principle of "no work no pay", he was not granted any salary. In fact, the petitioner has rightly been granted arrears of salary from the date when the period granted by this Court for compliance of the order, had expired.

Heard learned counsel for the parties and perused the paper book.

The facts, which are not in dispute are that the petitioner had filed CWP No. 2948 of 2005 in this Court with a grievance that though the persons junior to him had been promoted as Junior Engineer/Sectional Officer but the case of the petitioner was not considered. The writ petition was disposed of on 18.03.2008 with a direction to the authorities to consider the case of the petitioner for promotion from the date, the persons junior to him were promoted. The authorities considered the case of the petitioner and vide order dated 06.08.2009 communicated vide endorsement dated 07.08.2009, promoted the petitioner as Junior Engineer (Electrical) w.e.f. 16.02.2001, the date on which his juniors were promoted. Thereafter, the petitioner claimed arrears of his salary for the period from which he was promoted till the passing of the order on the plea that on account of wrong action of the authorities, the petitioner had to suffer. He was always ready and willing to work on the higher post but was not promoted and his juniors were granted that benefit. The claim was partially accepted vide order dated 11.03.2010 communicated vide endorsement dated 16.04.2010 thereby granting the arrears of salary to the petitioner from 18.09.2008. The cut off date applied had no relation with the case in hand. It is sought to be explained by stating that upto 17.09.2008 the order passed by this Court in favour of the petitioner for consideration of his case for promotion, was to be complied with. As there was some delay in compliance thereof, hence, the petitioner has been directed to be paid arrears of salary on the promoted post w.e.f. 18.09.2008, though in fact, he has been granted promotion w.e.f. 16.02.2001. The mere fact that after a direction issued by this Court, the petitioner was granted retrospective promotion from the date, his juniors were promoted, clearly establishes the fact that at the relevant time the petitioner was illegally denied promotion though his juniors were given that benefit. The petitioner cannot be said to be at fault. He was always ready to perform his duties of the promoted post but was deprived of by the authorities for the reasons which could not be sustained, when the petitioner had earlier approached this Court. The claim for arrears of pay for part of the period is sought to be denied by raising a plea of "no work no pay". However, the same will not be applicable in the facts and circumstances of the case, considering the fact that the petitioner was denied promotion on account of fault of the respondents. The issue was considered by Hon''ble the Supreme Court in Union of India Vs. K.V. Jankiraman, etc. etc., , wherein it was observed as under:-

The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is will to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him.

The aforesaid judgment has been followed by a Division Bench of this Court in 2006 (3) S.C.T. 262: CWP No. 12037 of 2005, Sudesh Kumar v. Haryana Power Generation Corporation Ltd. and another decided on 2.2.2006."

To similar effect are the judgments of this Court in Gurdial Singh''s (supra), Vidya Parkash Harnal''s case (supra) and Vijay Kumar Verma''s case (supra). For the reasons mentioned above, I find merit in the present petition. It is established that the petitioner was denied promotion on the date when his juniors were promoted though the petitioner was also having same qualification. After he was granted promoted with retrospective effect in terms of the directions issued by this Court for consideration of his case, he cannot be denied benefit of arrears of salary. The impugned order dated 11.3.2010 communicated vide endorsement dated 16.04.2010 (Annexure P-8) denying the arrears of salary to the petitioner from 16.02.2001 till 17.09.2008, is set aside. The respondents are directed to pay all consequential benefits to which the petitioner is entitled to on account of his promotion from back date. The arrears shall be payable for the period of 38 months prior to the date when the petitioner filed earlier petition raising a grievance about his non-promotion till the date he was actually promoted from retrospective effect. The arrears be calculated and paid within a period of four months from the date of receipt of copy of this order. Considering the peculiar facts situation in the State of Punjab where the employees are not even being paid their retiral dues for service/terminal benefits in time because of paucity of funds, I do not consider it appropriate at this stage to grant any interest to the petitioner though he may be entitled to, in normal circumstances.

The petition stands disposed of.