Jammu & Kashmir High Court
Kartar Singh vs State Of Jammu And Kashmir Through ... on 9 April, 2015
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU LPASW No. 38 OF 2011 Kartar Singh Petitioners 1. State of Jammu and Kashmir through Commissioner-Secretary, Finance Department, Civil Secretariat, Jammu. 2. Director Accounts and Treasuries, J&K Govt., Civil Secretariat, Jammu. Respondent !Mr. R.Koul, Advocate ^Mr. M.A.Bhat, Advocate Honble Mr. Justice N. Paul Vasanthakumar, Chief Justice Honble Mr. Justice Dhiraj Singh Thakur, Judge Date: 09.04.2015 :J U D G M E N T :
N.Paul Vasanthakumar, CJ
1. This appeal is filed against the order made in SWP No.1939/2009 dated 13.12.2010 insofar as denying the monetary benefits for the promotional post.
2. Brief facts necessary for disposal of the appeal are as follows:-
The appellant was initially appointed as Accounts Assistant in January, 1969, promoted as Accountant in the year 1973 and was further promoted as Assistant Accounts Officer in the year 1978. The appellant belongs to Scheduled Caste community and according to him, he was entitled to get promotion on the basis of roster point w.e.f. 01.04.1984. As the promotion was not given at the appropriate time, he filed SWP No.1202/1996 and this Court gave direction on 10.11.1996 to consider the claim of the appellant. No action being taken, he preferred a contempt petitioner and thereafter he was granted promotion with effect from due date on notional basis. The contempt petition was disposed of on 27.02.2002 with a direction to the respondents to consider the claim of the appellant for monetary benefits within a period of three months. Consequently an order was passed on 08.07.2008 rejecting the claim for monetary benefits. The said order was challenged by the appellant in SWP No.1939/2009 and the learned Single Judge dismissed the writ petition on the ground that the appellant has not discharged the duties of the higher post, therefore, he is not entitled to get the monetary benefits on the principle of no work no pay.
3. The contention of the learned counsel appearing for the appellant before this Court is that the appellant having been prevented at the instance of the respondents i.e. by not granting promotion, thus fault is on the department and for that appellant should not be made to suffer monetarily. He has also cited a judgment of Honble the Supreme Court reported in (2007) 6 SCC 524 (State of Kerala and others v. E.K.Bhaskaran Pillai) in support of his contention.
4. Learned counsel appearing for the respondents, on the other hand, submitted that, first direction was issued to consider the claim of the appellant on merits and the claim was considered and promotion was granted with notional benefits and the said order was not appealed against. It is also contended that the appellants claim for promotion as Accounts Officer was not considered initially on the ground that he has not produced the community certificate and he was also facing an enquiry as he had contracted second marriage in 1988 during the subsistence of first marriage, which is in violation of Rule 22 of the Jammu and Kashmir Employees Conduct Rules, 1971 and he was also responsible for making double payment of leave salary to himself in his capacity as drawing/disbursing officer while posted in Dul Hasti Hydroelectric Project, Kishtwar. Therefore, the department did not issue the integrity certificate in his favour, which is one of the requirements for considering the claim by the Departmental Promotion Committee/Public Service Commission. The learned counsel also submitted that though the allegation of second marriage has not been proved, for the allegation of double payment of leave salary to himself in his capacity as drawing/disbursing officer during his incumbency as Accounts Officer in the said project, order was passed to effect recovery from the two officials of the project, if wrong payment was made to them and no confirmatory report of recovery was received. However, claim of the appellant was examined pursuant to the directions issued by this Court and a decision was taken to promote him as Accounts Officer w.e.f. 01.04.1984, the date from which his immediate junior Sh. Kartar Chand stood promoted and the said order was passed on 26.04.2000. The learned counsel on the basis of said submissions contended that the learned Single Judge was right in dismissing the writ petition claiming monetary benefits as there was fault on the part of the appellant in not producing the community certificate and he was subjected to enquiry for serious allegations. The learned counsel distinguished the judgment cited by the learned counsel for the appellant.
5. We have considered the rival submissions. It is not in dispute that the appellant is a Scheduled Caste candidate and he has not produced the community certificate at the appropriate time and was also facing departmental enquiry for alleged second marriage and drawal of double leave salary to himself and hence the appellant was not considered for promotion initially. The non-production of the certificate by the appellant at the appropriate time and the pendency of the enquiry proceedings was the reason stated for denying the monetary benefits. 6. In the decision reported in (2007) 6 SCC 524 (State of Kerala and others v. E.K.Bhaskaran Pillai), Honble the Supreme Court held that no work no pay principle cannot be accepted as a rule of thumb. However, if there is inaction on part of the administration due to which the person was wrongly denied promotion, then he is entitled to get full benefits including monetary benefits. The Supreme Court in the said decision held that payment of monetary benefits while granting promotion from an earlier date has to be decided depending upon facts of each case. In paragraph No.4, it is held thus:- 4. 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 per cent 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 sometime 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. Thus, it is not a rule that on each occasion when promotion is denied, monetary benefits are to be granted automatically and the facts of each case have to be decided while considering the claim for monetary benefits.
7. In this case the delay is also partly attributable to the appellant i.e. due to non-production of community certificate and he was also facing enquiry. Hence the learned Single Judge was right in dismissing the writ petition and we are unable to find any reason to interfere with the same. 8. The writ appeal is dismissed. No costs.
(Dhiraj Singh Thakur) (N. Paul Vasanthakumar)
Judge Chief Justice
Jammu,
09.04.2015
Anil Raina, Secy