Punjab-Haryana High Court
Dr. Lovkesh Kumar And Others vs State Of Punjab And Another on 31 August, 2010
Author: Ajai Lamba
Bench: Ajai Lamba
CWP No. 5867 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 5867 of 2009
DATE OF DECISION: August 31, 2010
Dr. Lovkesh Kumar and others .........PETITIONER(S)
VERSUS
State of Punjab and another ......RESPONDENT(S)
CORAM: HON'BLE MR. JUSTICE AJAI LAMBA
Present: Mr. D.V. Sharma, Sr. Advocate,
with Ms. Shivani Sharma, Advocate,
for the petitioner(s).
Ms. Charu Tuli, Sr. DAG, Punjab.
AJAI LAMBA, J. (ORAL)
1. This petition has been filed under Articles 226 & 227 of the Constitution of India praying for issuance of a writ in the nature of mandamus directing the respondents to ante date the orders of appointment of the petitioners in view of orders passed by this Court in CWP No. 3468 of 1998 entitled Dr. Mukesh Kumar and another Vs. State of Punjab and others and give consequential benefits to the petitioners from the date candidates of 1997 batch were appointed as Medical Officers, now designated as PCMS.
2. Learned counsel for the petitioners contends that Punjab Public Service Commission advertised 500 posts of Medical Officers in June 1997. The number of applicants were less than the posts advertised, yet the CWP No. 5867 of 2009 2 Commission decided to hold a screening test for candidates belonging to Scheduled Castes (Majhbi Sikhs/Balmiki) category, to which the petitioners belong.
3. The action of the Commission was challenged by way of filing CWP No. 1817 of 1997 entitled Dr. Lovkesh Kumar and others Vs. State of Punjab and another. The petition was allowed by Division Bench of this Court vide judgment dated 08.01.1998. The action of the Public Service Commission to hold screening test for reserved category candidates, to which the petitioners belong, was held to be ultra vires the policy of reservation framed under Article 16(4) of the Constitution of India. Accordingly, a direction was issued to declare the result of interviews of the petitioners alongwith candidates of other categories. Government was given liberty to make appointments as per recommendations of the Commission.
4. The petitioners and other candidates appeared for viva voce exam. Despite the fact that only 27 candidates belonging to Scheduled Caste (Balmiki/Majhbi Sikhs) category had appeared and number of posts available were 62, yet only 5 candidates were recommended for appointment. The petitioners were not recommended for appointment.
5. The petitioners and some other Doctors filed CWP No. 5031 of 1998 alleging that the number of candidates is less than the vacancies reserved for them and, therefore, they should be recommended for appointment. Vide order dated 15.04.1998, however, the petitioners were allowed to withdraw the writ petition with liberty to them to make a representation to the Government.
6. The petitioners accordingly made a representation to Principal CWP No. 5867 of 2009 3 Secretary, Government of Punjab, Department of Health and Family Welfare. Representation, however, was rejected.
7. CWP No. 3468 of 1998 entitled Dr. Mukesh Kumar and another Vs. State of Punjab and others, CWP No. 3496 of 1998 - Dr. Sanjeev Bhagat Vs. State of Punjab and another; and CWP No. 4342 of 1998 - Dr. Daljit Singh Vs. State of Punjab and another came to be filed against the action of the Public Service Commission in not recommending the names for appointment although, posts were in existence and eligible candidates were available. The petition was allowed vide judgment dated 30.11.1998 in the following terms:-
"For the reasons mentioned above, the writ petitions are allowed. The Respondent-Commission is directed to recommend the name of those Scheduled Castes candidates who had appeared for viva voce test for the purpose of appointment. We are given to understand that the Commission has already initiated the process of fresh selection for recruitment to P.C.M.S.-I. Therefore, the number of posts in new selection shall be reduced to the extent of number of the persons who may become entitled to be appointed in the light of this judgment."
8. Without giving unnecessary details, it needs mention that the State of Punjab went up in appeal before the Hon'ble Supreme Court of India in case entitled State of Punjab and another Vs. Dr. Mukesh Kumar and another against judgment rendered by this Court in CWP No. 3468 of 1998, portion whereof has been extracted above. The Hon'ble Supreme Court of India, vide judgment, placed on record as Annexure P-5, upheld CWP No. 5867 of 2009 4 the order passed by the High court. The names of the petitioners were recommended by the Public Service Commission whereupon, the petitioners came to be appointed on 08.03.2006.
9. In the context of the prayer made in the petition, the respondents vide order dated 03.03.2010 placed on record as Annexure R-1, gave all the reliefs to the petitioners as prayed for. The relevant portion from Annexure R-1 is extracted herebelow:-
"They shall be entitled to all consequential benefits from the date of their deemed date of appointment (i.e. 20.05.1998), including seniority, fixation of pay, grant of increments, placement in higher scales, promotions, pensionary benefits etc. etc."
10. Learned counsel for the petitioners, however, contends that the petitioners are also entitled to the pay and other monetary benefits for the period from 1998 till 2006.
11. Learned counsel for the respondent-State, however, contends that the petitioners have not served the respondents. Notional benefits have been given to the petitioners. The matter was alive before Courts of Law and, therefore, the monetary benefit be not allowed to the petitioners.
12. I have considered the rival contentions of learned counsel.
13. The petitioners have not declared/pleaded anywhere in the writ petition that during the period spanning between 1998 till 2006, the petitioners were not employed or were not serving. The petitioners are qualified doctors and it would be reasonable to infer that they were either practising as Doctors or were serving in some hospital etc.
14. A civil writ petition is a suit which is required to be supplemented CWP No. 5867 of 2009 5 with the evidence on which the petitioner chooses to rely, in view of its nature. Not only the facts but also the evidence in proof of such facts have to be pleaded and annexed in case of a writ petition. When a writ petitioner raises a point of law which is required to be substantiated by facts, he must plead and prove such facts by evidence which must appear from the writ petition and accompanying documents. If he is a respondent, the facts asserted are required to be proved from the written statement/counter affidavit and supporting documents. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the written sttement/counter affidavit, as the case may be, the Court will not entertain the point.
15. Since there is no pleading and assertion on behalf of the petitioner to the effect that they were unemployed during the period in question, it has to be accepted that they were earning by way of self employment, or otherwise.
16. So far as principle of 'no work no pay' is concerned, reference is required to be made to judgments of the Hon'ble Supreme Court of India.
17. In (1996) 7 Supreme Court Cases 533, State of Haryana and others Vs. O.P. Gupta and others, the following has been held in para no. 9:-
"9. In these appeals unless the seniority list is prepared and finalised and promotions are made in accordance with the Rules on the basis of the above seniority list, the question of entitlement to work in the promotional posts does not arise. Consequently, the payment of arrears of salary does not arise since, CWP No. 5867 of 2009 6 admittedly the respondents had not worked during that period. The High Court was, therefore, wholly illegal in directing payment of arrears of salary. The order of the High Court accordingly is quashed."
18. In (2007) 11 Supreme Court Cases 632, Union of India Vs. B.M. Jha, the following has been held in para no. 5:-
"5. We have heard learned counsel for the parties. It was argued by learned counsel for the respondent that when a retrospective promotion is given to an incumbent, normally he is entitled to all benefits flowing therefrom. However, this Court in State of Haryana v. O.P. Gupta, (1996) 7 SCC 533 and followed in A.K. Soumini v. State Bank of Travancore, (2003) 7 SCC 238 has taken the view that even in case of a notional promotion from retrospective date, it cannot entitle the employee to arears of salary as the incumbent has not worked in the promotional post. These decisions relied on the principle of "no work no pay". The learned Division Bench in the impugned judgment has placed relianace on State of A.P. v. K.V.L. Narasimha Rao, (1999) 4 SCC 181. In our view, the High Court did not examine that case in detail. In fact, in the said judgment the view taken by the High Court of grant of salary was set aside by this Court. Therefore, we are of the view that in the light of the consistent view taken by this Court in the abovementioned cases, arrears of salary cannot be granted to the respondent in view of the CWP No. 5867 of 2009 7 principle of "no work" in case of retrospective promotion. Consequently, we allow this appeal and set aside the impugned order of the High Court dated 17-5-2000 passed by the Division Bench of the High Court as also the order dated 11-1-2000 passed by the Central Administrative Tribunal, Principal Bench."
19. In view of the law to which reference has been made above considering the principal of 'no work no pay', in the peculiar facts and circumstances of the case, in my considered opinion, the petitioners are not entitled to monetary benefits for the period they have claimed. Accordingly, it is held that the petitioners are not entitled to the monetary benefits for the period they did not serve the respondents.
20. The petition is accordingly disposed of.
31.08.2010 (AJAI LAMBA) shivani JUDGE 1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the Digest?