Punjab-Haryana High Court
Sikander Singh And Others vs State Of Punjab And Others on 12 September, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CWP No. 10559 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 10559 of 2009
Date of decision:- 12.09.2012
Sikander Singh and others
......Petitioners
Vs
State of Punjab and others
......Respondents
CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA
Present: Mr. S.K. Arora, Advocate,
for the petitioners.
Mr. Suvir Sehgal, Addl. Advocate General, Punjab.
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TEJINDER SINGH DHINDSA J. (ORAL)
The petitioners were appointed as Clerks in the Department of Education on 27.05.1975, 06.10.1975 and 15.01.1976, respectively. The services of the petitioners were subsequently regularized w.e.f. 01.04.1977. In the seniority framed by the respondent - department pertaining to the cadre of Clerks, the names of the petitioners figured at Sr. Nos. 1323, 1349 and 1353, respectively. On the other hand, private respondents No. 5 and 6, joined the Department of Education on the post of Clerks on 01.10.1980 and 06.05.1981 respectively on a regular basis. The names of private respondents No. 5 and 6 were reflected at Sr. Nos. 1850 and 2067 respectively of the seniority list of Clerks. The admitted position of fact is that the present petitioners were senior to CWP No. 10559 of 2009 -2- private respondents No. 5 and 6 in the cadre of Clerks.
Promotion from the post of Clerk is to the post of Senior Assistant. Prior to the promulgation of the Assistant Grade Examination Rules, 1984, promotion to the post of Senior Assistant was made purely on the basis of seniority-cum-merit. In terms of the 1984 Rules, a condition was stipulated that it was only upon the Clerk qualifying the Assistant Grade Examination would render him/her to be eligible for promotion as Senior Assistant. In terms of Rules 8 and 9 of the Assistant Grade Examination Rules, 1984, an employee qualifying the test was eligible for promotion irrespective of the number of chances availed to qualify such test. In the year 1990, the number of chances that were held out to the Clerks for qualifying the test were more than five. The petitioners, admittedly, qualified in the Assistant Grade Examination not in the first five attempts, but subsequently. The State of Punjab had issued instructions whereby persons who qualified the Assistant Grade Examination in five or less than five chances were given preference for the purposes of promotion to the post of Assistant as compared to such employees who had qualified such Assistant Grade Examination having availed more than five chances. Resultantly, even though the petitioners were eligible for promotion to the post of Senior Assistant and were senior to the private respondents No. 5 and 6, but on account of the fact that the private respondents had qualified the test in the first five chances, they stole a march, in so far as promotion to the post of Senior Assistant was concerned. The factual CWP No. 10559 of 2009 -3- position, accordingly, that emerged was that the private respondents even though being junior in the cadre of Clerks were promoted as Senior Assistants w.e.f. 21.03.1990 and 03.05.1990, whereas, the present petitioners were promoted as Senior Assistants w.e.f. 06.06.1997, 18.03.1997 and 10.06.1997.
The issue with respect to preference being given to such Clerks who have passed the Assistant Grade Examination in the first five chances for promotion to the higher post came up for consideration before a Full Bench of this Court in the case of Baldev Raj and others Vs State of Punjab and others, decided on 17.09.1996. It was held by the Full Bench in Baldev Raj's case (supra) that persons who passed the test within the first five chances would not be given any preference over such Clerks who had passed the Assistant Grade Examination in more than five chances. The matter, thereafter, was taken upto the Hon'ble Apex Court in the case of Saroj Rani and others Vs State of Punjab and others, which was decided on 24.08.1999. The Hon'ble Apex Court while adjudicating upon the issue had framed a specific question to the effect "that as to whether the person who has passed the test in the first five chances has preference over the persons passing the test in more than five chances?" In terms of deciding such question, the Hon'ble Apex Court upheld the view of the Full Bench in Baldev Raj's case (supra). It was held that all such candidates who had qualified the Assistant Grade Examination irrespective of the number of chances constituted one homogenous group and as such no preference could be CWP No. 10559 of 2009 -4- given to such employees who had qualified in the first five chances over and above those who had qualified in more than five chances.
In terms of such a view having been crystalized, it is clear that the present petitioners who had been ignored for the purposes of promotion only on account of the fact that they had qualified the examination not in the first five chances, but subsequently, were vested with the right to be promoted with effect from a deemed date i.e. the date with effect from which their juniors had been promoted. There is no dispute even with regard to the fact that in terms of the mandate settled by the Hon'ble Apex Court, the present petitioners were given deemed date of promotion to the post of Senior Assistants w.e.f. 21.10.1992 and 30.11.1994, respectively. Likewise, the private respondents were granted the benefit of promotion on the post of Senior Assistants w.e.f. 12.05.2000 and 10.10.2001. The net result was that not only in the cadre of Clerks, but even in the cadre of Senior Assistants, the present petitioners are senior to the private respondents No. 5 and 6.
The present writ petition has been filed by the petitioners rasing a precise grievance that inspite of being senior to the private respondents yet they are being granted a lesser pay. In this regard, the categoric averments have been made in para 9 of the petition, wherein, it has been pleaded that the petitioners having been given promotion as Senior Assistants w.e.f. 21.10.1992 and 30.11.1994, their pay was fixed at Rs. 1800/- in the pay scale of Rs. 1800-3200 w.e.f. 21.10.1992 CWP No. 10559 of 2009 -5- and 30.11.1994. On the other hand, the private respondents No. 5 and 6, who are admittedly junior to them were receiving the basic pay of Rs. 1880/- and Rs. 1950/- plus Rs. 30/- as on 21.10.1992 and 30.11.1994. Accordingly, the prayer raised in the present petition is for the issuance of a writ in the nature of mandamus for directing the respondent authorities to step up the pay of the petitioners at par with their juniors as also grant them the consequential benefits of pay, retiral benefits etc. Learned counsel appearing for the petitioners would vehemently argue that the action of the respondent authorities whereby a junior had been granted a higher salary/pay, while denying the same pay to a senior, is clearly in violation of Articles 14 and 16 of the Constitution of India and the same cannot be upheld.
Per contra, Mr. Suvir Sehgal, learned Additional Advocate General, Punjab, has referred to the judgement of the Hon'ble Apex Court in Saroj Rani and another Vs State of Punjab and others, 99 (6), SCC, 637 to submit that all such incumbents who had worked on the higher post of Assistant/Senior Assistant on account of the earlier promotion orders on the basis of a preference having been given in terms of having qualified the Assistant Grade Examination in the first five chances and who were thereafter reverted the salary that already had been paid to such employees for having worked on the senior post was not to be taken back from them. Accordingly, it is sought to be contended that the private respondents drew higher salary on account CWP No. 10559 of 2009 -6- of a preference having been granted to them and also as a measure personal to such category of employees. Learned State counsel in furtherance of such submission would even refer to the instructions dated 09.09.2002 (Annexure R1) appended alongwith the written statement filed on behalf of the State.
Having heard learned counsel for the parties and having perused the pleadings on record, I find that the prayer made in the present writ petition deserves acceptance. It is by now well settled that a person who is admittedly junior in a cadre cannot enjoy a higher scale of pay/emoluments as compared to his senior. The factual background, as has been enumerated here-in-above, has not been disputed at the hands of the State. The petitioners are admitted to be senior to the private respondents both in the cadre of Clerks as also in the Cadre of Senior Assistants. There will be no justification, whatsoever, in denying to the present petitioners pay parity with the private respondents No. 5 and 6. In taking such a view, I draw support from the judgement of the Hon'ble Apex Court titled as High Court of Punjab and Haryana Vs. Bahadur Singh Batta, 2001(5) JT, 569. The Hon'ble Apex Court in the aforenoticed judgement had observed in the following terms:-
"The Division Bench in the Letter Patent Appeal considered the provision of Rule 22 of the Fundamental Rules, and came to the conclusion, in our view rightly, that the respondent admittedly being senior to Balwant Singh Virk in the cadre of Clerks, in the promoted grade, his pay is bound to be stepped up to ventilate his grievances CWP No. 10559 of 2009 -7- and for removal of the anomalies, as provided in Fundamental Rule 22. The Letter Patent Appeal having been dismissed, the present appeal has been preferred by the High Court. Ms. Kamini Jaiswal appearing for the High Court vehemently contended that the provision of stepping up will not be applicable to the case in hand, particularly when the respondent was granted the seniority in the cadre of Clerks on the basis of the judgement of this Court.
She further contended that the promotion to the cadre of Assistant being not automatum on the basis of seniority, the principle of stepping up would not apply. On examining the relevant facts as well as the provisions of the Rules, and in view of the earlier judgement of this Court, the conclusion is irresistible that the respondent was denied of his promotion to the cadre of Assistant, and still higher in the cadre, on account of a wrong notion of the principle, which stood corrected by the judgement of this Court. That being the position, on the respondent being promoted to the post of Assistant or to a still higher post, he is entitled to get his pay fixed up in consonance with the provisions of Fundamental Rule 22, and therefore no infirmity can be found in the impugned direction of the High Court directing the stepping up of his pay. The appeal accordingly fails, and is dismissed."
For the reasons recorded above, the present writ petition is allowed. Directions are issued to the respondent authorities to step up the pay of the petitioners at par with their juniors i.e. respondents No. 5 and 6. In view of the fact that there has been a delay on the part of the petitioners also in having approached this Court only in the year 2009, it is clarified that the benefit of pay fixation to the petitioners at par with the private respondents shall be given on a notional basis and CWP No. 10559 of 2009 -8- the resultant benefit of revised pensionary benefits shall accrue to the petitioners who have since retired from service. The needful exercise be completed within a period of four months from the date of receipt of a certified copy of this order. The writ petition is allowed in the aforesaid terms.
12.09.2012 (TEJINDER SINGH DHINDSA) Amodh JUDGE