Himachal Pradesh High Court
Rakesh Kaplex vs State Of H.P. & Ors on 3 August, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.1319 of 2023 Decided on: 3rd August, 2023 _________________________________________________________________ .
Rakesh Kaplex ....Petitioner
Versus
State of H.P. & Ors. ...Respondents
_________________________________________________________________ Coram of Jyotsna Rewal Dua, Judge 1 Whether approved for reporting? Yes. _________________________________________________________________ For the petitioner:
rt Mr. Hamender Singh Chandel,
Advocate.
For the respondents: Mr. Anup Rattan, Advocate General
with Mr. Y.P.S.Dhaulta, Additional Advocate General and Ms. Seema Sharma, Mr. Sumit Sharma, Deputy Advocates General.
Jyotsna Rewal Dua, Judge In nutshell, the case of the petitioner is that he was left out for promotion to the post of Trained Graduate Teacher (Non-Medical) (TGT in short) at the relevant time i.e. in the year 2019, whereas his juniors were promoted as such.
This was on account of negligence on part of the respondents.
The petitioner accordingly seeks promotion to the post of TGT 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 05/08/2023 20:33:09 :::CIS -2-(N.M) from the due date with all consequential benefits.
2. Following facts are not in dispute: -
2(i) The respondents invited cases of eligible Junior .
Basic Trained Teachers (JBTs) from the concerned quarters for making promotions to the post of TGT (N.M.). Petitioner's case was also sent by the Deputy Director Elementary Education, Mandi for promotion. The Departmental of Promotion Committee meeting (DPC in short) was convened in December, 2020.
rt At that time, respondents did not consider petitioner's case for want of his Annual Confidential Reports (ACRs in short) for the last three years.
2(ii) Juniors to the petitioner were promoted as TGT (N.M.) on the basis of recommendations of DPC meeting convened in December, 2020.
2(iii) Another meeting of DPC was convened for considering the cases of eligible JBTs for promotion to the post of TGT (N.M.). On the basis of recommendations of this DPC, office order was issued on 30.09.2022, promoting certain other JBTs, who were juniors to the petitioner to the post of TGT (N.M.). The petitioner was again left out.
2(iv) In the aforesaid circumstances, he instituted this ::: Downloaded on - 05/08/2023 20:33:09 :::CIS -3- writ petition, seeking following substantive reliefs:-
(i) That the Respondent No.2 may be directed to consider the case of the petitioner for promotion to the post of TGT (Non-medical) from due date when the incumbents junior .
to the petitioner were considered and promoted vide office order dated 30.09.2022, Annexure P-3.
(ii) That the respondents may be directed to promote the petitioner from due date with all consequential benefits."
3. The respondents in their reply took the stand that of petitioner could not be promoted at the time of convening DPC meeting in December, 2020 as his ACRs for the last rt three years were not available at the time. On receipt of ACRs, the petitioner was promoted to the post of TGT (N.M) vide office order dated 06.03.2021, however, he himself failed to join the duties. According to the respondents, petitioner cannot blame them for his non promotion when he himself failed to avail the promotion given to him.
4. The proceedings 4(i) During hearing of the case, it had been the stand of the petitioner throughout that he had never received the promotion order dated 06.03.2021 and that all along he had actually been representing to the respondents for his promotion as TGT at par with that of his juniors. Noticing ::: Downloaded on - 05/08/2023 20:33:09 :::CIS -4- this submission, following order was passed in the matter on 16.05.2023: -
"Learned Additional Advocate General has .
placed on record instructions dated 28.03.2023 received from the Director Elementary Education, H.P., alongwith copy of office order dated 06.03.2021 claiming that petitioner had been promoted on 06.03.2021, but petitioner did not join his duties as TGT (Non- Medical) in GHS, Olwa, under Complex GSSS of Dalash, District Kullu, H.P. Learned counsel for the petitioner submits that claim of the respondents does not appear to be correct rt as petitioner had been representing to the respondents for his promotion with submissions that his juniors have already been promoted and, his representation through proper channel, was forwarded by the Block Elementary Education Officer in October 2021 and at that time also, it was not response of the concerned authority that petitioner had already been promoted. However, he seeks time to have complete instructions in this regard. On his request, matter is adjourned.
List on 29.05.2023."
4(ii). On the next date of hearing, i.e. 29.05.2023, it was conveyed for the petitioner that he had never received any promotion order. He became aware of his promotion order dated 06.03.2021 only after receipt of the written instructions from the respondents in response to the writ petition. Respondents were then called upon to file reply.
::: Downloaded on - 05/08/2023 20:33:09 :::CIS -5-4(iii) On 28.06.2023, respondents were directed to produce record concerning the promotion order dated 06.03.2021 that was sent to the petitioner, whereby he was .
statedly promoted to the post of TGT.
4(iv) On the next date of hearing i.e. 17.07.2023, respondents failed to produce any contemporary record to prove that promotion order dated 06.03.2021 was actually of sent to the petitioner. It was, however, stated that they are ready to give effect to the promotion order dated 06.03.2021.
rt 4(v) During the course of hearing today, the respondents have produced office order darted 22.07.2023 promoting the petitioner as TGT (N.M.) on notional basis from 06.03.2021. Actual financial benefits have been made admissible to him from the date of joining as TGT (N.M.).
Observations
5. In view of above developments that took place during pendency of the case, the dispute is now in narrow compass. It has now been contended for the petitioner that he is entitled to actual monetary benefits from 06.03.2021 and not notional. Heard learned counsel on both sides on this issue.
::: Downloaded on - 05/08/2023 20:33:09 :::CIS -6-5(i) 'No work no pay' is not a rule of thumb, was held by Hon'ble Apex Court in (2015)14 SCC 335 (Ramesh Kumar VCs. Union of India and other). It was a case where .
the appellant was wrongly not considered for promotion in the DPC meeting held on 01.08.1997. He was finally promoted in the year 2000 with retrospective seniority. The respondent employer was at fault in not considering the case of of the appellant for promotion and not allowing him to work on the promotional post carrying higher scale. The Apex rt Court held that denying him higher pay and allowances would be unjust. Paras from the judgment relevant to the issue in hand, run as under: -
"14. In normal circumstances when retrospective promotions are effected, all benefits flowing therefrom, including monetary benefits, must be extended to an employee who has been denied promotion earlier. So far as monetary benefits with regard to retrospective promotion is concerned that depends upon case to case.
In State of Kerala & Ors. vs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524, this Court held that the principle of "no work no pay" cannot be accepted as a rule of thumb and the matter will have to be considered on a case to case basis and in para (4), it was held as under:-
"... We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to ::: Downloaded on - 05/08/2023 20:33:09 :::CIS -7- 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 of 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 rt 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."
15. We are conscious that even in the absence of statutory provision, normal rule is "no work no pay". In appropriate cases, a court of law may take into account all the facts in their entirety and pass an appropriate order in consonance with law. The principle of "no work no pay" would not be attracted where the respondents were in fault in not considering the case of the appellant for promotion and not allowing the appellant to work on a post of Naib Subedar carrying higher pay scale. In the facts of the present case when the appellant was granted promotion w.e.f. 01.01.2000 with the ante-
::: Downloaded on - 05/08/2023 20:33:09 :::CIS -8-dated seniority from 01.08.1997 and maintaining his seniority alongwith his batchmates, it would be unjust to deny him higher pay and allowances in the promotional position of Naib Subedar."
.
5(ii) In the facts of the case, admittedly the petitioner was not at fault for having not been promoted at the relevant time alongwith his juniors. Fault, if any, lay with the respondents. The pleaded stand of the respondents was that of the petitioner was promoted vide order dated 06.03.2021, however, he failed to join under this order. But the fact is rt that the respondents have not been able to establish that the aforesaid promotion order dated 06.03.2021 was ever served upon the petitioner. The petitioner was due for promotion in the year 2020 and his case was accordingly considered by the DPC that was convened in December, 2020 alongwith other incumbents. For want of his ACRs, petitioner was left out at that time. All throughout petitioner has been representing to the respondents for his promotion to the post of TGT from due date. Had he been aware of his promotion to the post of TGT under order dated 06.03.2021 as is contended by the respondents, there would have been no occasion for him to continue to represent to the respondents or to file this writ ::: Downloaded on - 05/08/2023 20:33:09 :::CIS -9- petition seeking his promotion as TGT. The order dated 06.03.2021, if issued, remained in office files of the respondents. It was never brought to the knowledge of the .
petitioner. It never saw light of the day. This aspect stands duly established in view of various orders passed in this petition from time to time. It is for this reason that the respondents have now issued a fresh order dated 22.07.2023 of promoting the petitioner as TGT retrospectively from 06.03.2021. Under the circumstances, petitioner is entitled rt for actual benefits of his retrospective promotion from 06.03.2021 and not notional. For the fault of the respondents, he cannot be made to suffer.
The petitioner in the given facts and circumstances of the case, cannot be denied financial benefits. Had he been promoted by the respondents in accordance with law at the relevant time; had he been issued promotion order at the relevant time he would have served as TGT (N.M). Employer/respondent cannot be allowed to take advantage of its wrong and the employee/petitioner cannot be made to suffer for the fault of the respondents/employer.
Accordingly, this writ petition is allowed. The respondents are ::: Downloaded on - 05/08/2023 20:33:09 :::CIS
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directed to release all due and admissible benefits on actual basis to the petitioner on account of his retrospective promotion to the post of TGT (N.M.) from 06.03.2021. This .
exercise be carried out by the respondents within four weeks from today.
The pending miscellaneous application(s), if any, also stand disposed of.
of
rt Jyotsna Rewal Dua
Judge
August 3, 2023
R.Atal
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