Punjab-Haryana High Court
Indraj Singh vs State Of Haryana on 9 August, 2000
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT A.S. Gill, J.
1. The question mooted in this writ petition is whether an employee who has been promoted with retrospective effect is entitled to the benefit of arrears from the date he was promoted.
2. Case of the petitioner is that he was working as Clerk in the Agriculture Department, Haryana. A person junior to him was promoted as Accountant with effect from 6.6.1978 ignoring the seniority of the petitioner. The petitioner filed a representation against this action of the respondents. After quite a long time, the respondents accepted the representation of the petitioner and promoted him to the post of Accountant vide order dated 8.2.1995, (copy Annexure P-1) from the date ;he person junior to him was promoted, i.e. 16.6.1978. Order Annexure P-1, however, carried a rider "The arrears from 16.6.1978 upto the date of joining as Accountant will not be given." The petitioner in consequence upon his promotion joined the post of Accountant on 14.2.1995. A copy of joining report of the petitioner has been placed on record as Annexure P-2. A I'ter joining his duties as Accountant, the petitioner made representations (copies Annexures P-3 and P-4) demanding payment 'of arrears from 16.6.1978 to 13.2.1995. These representations were considered and rejected by the respondents vide letter dated 12.12.1995. The petitioner did not keep silent over the issue of payment of arrears and again made a representation, copy Annexure P-6 demanding the same relief. He specifically requested that reasons for rejecting his representations may be intimated to him. This representation as well, met with the same fate and was rejected by order dated 9.2.1996, Annexure P-7. Still another representation, Annexure P-8 made by the petitioner also did not bring any fruit and was rejected by order dated 5.4.1996, Annexure P-9 on the ground "the official has not worked on the post of Accountant during the said period hence, he cannot be paid arrears of the post of Accountant for this period." This led the petitioner to serve a legal notice on the respondents wherein he requested for payment of arrears for the aforesaid period along with interest at the rate of 12% per annum. A copy of legal notice has been attached with the petition as Annexure P-10. Petitioner's another representation, Annexure P-) 1 seeking the same relief was also rejected by the respondents by order dated 6.2.1998. AnnexureP-12. Being dismayed with the outcome of his requests, the petitioner has now filed this petition seeing quashment of the condition imposed regarding denial of arrears as contained in his promotion order Annexure P-1, on the grounds of it being arbitrary and violative of Articles 14 and 16 of the Constitution of India.
3. Claim of the petitioner has been resisted by the respondents by filing a written statement mainly on the ground of delay and laches. It is claimed that cause of action arose to the petitioner when his junior was promoted as Accountant in the year 1978, but he represented against his promotion, for the first time in the year 1994. It is also indicated that initially the petitioner was working as Clerk in the Head Office cadre w.e.f. 13.9.1971 and later on, on his own request, he was transferred to the field cadre w.e.f. 16.3.1972. Since the petitioner had changed his cadre, his name could not be included in the seniority list of the clerical staff of the Agriculture Department, inadvertently. But the petitioner did not raise any objection against the seniority list. His name was included in the seniority list of the field staff on 1.1.1986 and his name stood at serial No. 161. It is also claimed that on 16.6.1978 one Sher Singh, another person junior to the petitioner was also promoted as Accountant, but the petitioner did not represent against his promotion. Petitioner's first representation for his promotion as Accountant was received in the office of the respondents on 9.1.1994 when (one) Prahlad Singh, still another person junior to him was considered. But the case of the petitioner for promotion was not considered/examined for the reason "that there was no vacant post of Accountant against which the petitioner could be considered for promotion immediately." However, the petitioner was promoted by order dated 8.2.1995 with effect from 16.6.1978 i.e. the date his junior Prahlad Singh was promoted. It is thus claimed that since the petitioner was himself responsible for the delay in his promotion and because he had not actually worked an Accountant during the period in question, a condition was imposed in his promotion order that he will not be entitled to the arrears from the date of his promotion.
4. We have heard learned counsel for their parties and considered the rival contentions of the parties.
5. Petitioner's claim for payment of arrears of salary on account of his retrospective promotion as Accountant is being resisted by the respondent solely on the ground of delay attributed to him in challenging the promotion of his junior besides on the strength of the principle of "No work no pay" as it is claimed that he has not actually worked on the post of the Accountant from the deemed date of his promotion till the date he was actually promoted. A mere reading of the written statement filed by the respondents indicates that the delay or laches, if any, in promoting the petitioner occurred due to the lapse or non-action on the part of the respondents themselves. It stands admitted that a person junior to the petitioner was promoted as Accountant on 16.6.1978. No reason has been assigned by the respondents as to why the petitioner being senior was ignored. Subsequently thereto also, the other person Sher Singh who was also junior to the petitioner was promoted. But again the petitioner being senior was ignored. Still after sometime, petitioner was considered but he was not given promotion as according to the respondents a suitable vacancy was not available for him. it is, thus, clear that the respondents were consciously and deliberately ignoring the legal right of the petitioner. This fact is further confirmed by the promotion order Annexure P-1 itself passed by the respondents extending the deemed date of promotion of the petitioner with retrospective effect i.e. 16.6.1978, the date from which his junior Prahlad Singh was promoted. Petitioner states that he had represented immediately after his junior was promoted as Accountant. However, the respondents state that his representation was received only in the year 1994. However, a copy of such representation was not placed on the record and, therefore, there is no reason to infer that the petitioner slept over the denial or his right of promotion as against his junior. The plea of the respondents that the petitioner is not entitled to the arrears of pay on the principle of "no work, no pay" is also not justified in this case. Admittedly, the petitioner was denied the promotional post and all other consequential benefits flowing thereform without any cause, much less a sufficient cause, impliedly without any reason which could be attributed to him. The petitioner was deprived of the benefit of promotion although he was available and ready to perform his duties on the promotional ' post.
6. Some other identical matters came up before a Division Bench of this Court in Vidya Parkash Hurnal v. State of Haryana, 1995(3) SCT 785. Relying upon the decision of the Supreme Court in Union of India etc. etc. v. K. V. Jankiraman etc. etc., AIR 1991 Supreme Court 2010 : 1991(3) SCT 317 (SC), the Division Bench of this Court observed as under :-
"Similarly, the argument that the petitioner was not entitled to the grant of emoluments on the principle of "No work, no pay" is apparently misconceived and based upon wrong notions of law. If a civil servant is not offered the work to which he was legally entitled, he cannot be deprived of the wages for the post to which he subsequently is held entitled to. Permitting such a course to be adopted would be encouraging the imposition of double penalty, that is firstly by declining the civil servant his right of promotion and secondly by depriving him of the emoluments to which he would have been entitled to upon promotion which subsequently is considered in his favour. Deprivation to work against the post to which a civil servant is entitled on promotion is always at the risk and responsibility of the State and cannot be made a basis for depriving such a civil servant of the emoluments to which he was entitled, had he been promoted in accordance with the rules at the time when he become eligible for such promotion. The Courts cannot ignore the magnitude of the sufferings and the pains to which a civil servant is subjected on account of deprivation of the monetary benefits particularly in this case of skyrocketing prices and non-availability of essential requirements of livelihood. The Court cannot shut its eyes and forget the holocast of economic deprivation to the petitioner and his dependents. Such a deprivation might have upset the career of the dependents, depriving the society of the services of such youth and budding dependents or children of the petitioner. The executive once being satisfied that a civil servant was entitled to the promotion with retrospective effect cannot deprive him of the benefits of salary accruing on account of such promotion from an early date without assigning valid, cogent and specific reasons. The order impugned in this case by which the petitioner/appellant was deprived of his right to claim back wages is admittedly non-speaking without assigning any justification or cogent and specific reasons."
The same view has further been reiterated by this Court in Civil Writ Petition No. 11749 of 1996, Krishan Kumar v. The Haryana Stale Federation of Consumers Co-operative Wholesale Stores Ltd. and another, decided on 10.12.1996 : 1997(1) SCT 686 (P&H)(DB), wherein the promotion order carrying a condition of non-payment of arrears of salary to the extent of the condition was quashed.
7. In view of the facts and circumstances of the case and the conduct of the respondents as made out from the written statement filed on their behalf, it is sufficient to hold that the petitioner was kept away from the promotional post and was not allowed to work and draw wages accordingly on that post by the respondents without their being any fault on his part.
8. In the light of what has been observed above, this petition is allowed and the order Annexure P-l, in so far as it contains a condition 'The arrears from 16.6.1978 upto the date of joining as Accountant will not be given' stands quashed. The petitioner will be entitled to the costs of this petition which is assessed at Rs. 2000/-. Let the difference of pay/arrears etc. be re-
leased to the petitioner within a period of three months of the receipt of a copy of this order from this Court or a certified copy thereof from the petitioner.
9. Petition allowed.