Punjab-Haryana High Court
Haryana State Agricultural Marketing ... vs Maha Singh on 10 May, 2010
Author: Ranjit Singh
Bench: Ranjit Singh
REGULAR SECOND APPEAL NO.2077 OF 2009 (O&M) :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: MAY 10, 2010
Haryana State Agricultural Marketing Board, Panchkula and another
.....Appellants
VERSUS
Maha Singh
....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Amit Sharma, Advocate,
for the appellants.
Mr. Ravinder Pal Singh, Advocate,
for the respondent.
****
RANJIT SINGH, J.
The question of law that may arise for consideration in this case is to the effect whether the grant of promotion from back date should automatically amount to grant of arrears or the principle of "no work no pay" would apply in such cases. As per the appellant, the grant of notional promotion cannot lead to automatic grant of arrears and in such cases principle of "no work no pay" would be attracted.
The brief facts of the case are that the respondent-plaintiff REGULAR SECOND APPEAL NO.2077 OF 2009 (O&M) :{ 2 }:
was entitled to be considered for promotion as Arrival Recorder in Class-III post with effect from the date when his immediate juniors were so promoted. The promotion was to be made merely on the basis of seniority and was on the non-selection basis.
The respondent-plaintiff had joined the service on 23.11.1976 as Cattle Scarer. Subsequently, he was promoted as Tubewell Driver. The respondent-plaintiff claims that his record was clean and, thus, he was eligible for promotion as a arrival recorder from the very beginning as he was having matriculation as his academic qualification.
20% of the posts of Auction Recorder/Arrival Recorder were to be filled by promotion from amongst Class-IV employees. Respondent-plaintiff was promoted as Arrival Recorder on 29.6.1983. In the year 1999, he learnt that some of the Class-IV employees were promoted to the post of Arrival Recorder on 1.4.1982. These employees were junior to the respondent-plaintiff. Thus, he termed this action to be arbitrary and illegal and filed the suit for grant of this promotion. It is pleaded that condition of passing type test was not a pre-requisite for this promotion as was being pleaded. As an example, names of Ashok Kumar Chawla and Sat Narain were mentioned, who were so promoted without having passed the typing test. Sat Narain had passed the typing test in the year 1987, whereas he was promoted on 1.4.1982. Plea is that similar benefits were given to Rajbir Dahiya, Rajbir Singh Nehra, Mohinder Singh and Karam Chand, who were so promoted without qualifying in the typing test. Respondent-plaintiff would give his own example also to show that he was promoted on 29.6.1983 without passing any type test. REGULAR SECOND APPEAL NO.2077 OF 2009 (O&M) :{ 3 }:
The Board would, however, contest the contention. Reference is made to the instructions issued by the Board, whereby knowledge of typing is required. This was held justified in an order passed in CWP No.5505 of 1986. It was accordingly stated that the Board had appointed the person on the basis of seniority-cum merit on 1.4.1982 by promoting those Class - IV employees, who had passed the typing rest. The respondent-plaintiff had appeared in the test but had not qualified and, thus, he was not promoted. The allegations of malice were, thus, denied.
On the basis of pleadings, following issues were formulated:-
"1. Whether the order dated 1.4.82 passed by the defendant ignoring the plaintiff from promotion to the post of Arrival Recorder and promoting person junior to the plaintiff to the post is illegal, null and void and is liable to be set aside? OPP
2. Whether the suit of the plaintiff is within limitation of time? OPD
3. Whether the suit of plaintiff is not maintainable, without cause of action and plaintiff has no locus standi to file the suit? OPD
4. Whether civil court has no jurisdiction to try and entertain the suit? OPD
5. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD
6. Whether the defendants are entitled for cost? OPD
7. Relief"
REGULAR SECOND APPEAL NO.2077 OF 2009 (O&M) :{ 4 }:
The trial Court decreed the suit with costs. The appellate Court has also dismissed the appeal filed by the appellant-Board. The Board has accordingly filed this present appeal.
The Board did not contest the direction issued to promote the respondent-plaintiff with effect from the date his juniors were promoted, but only made a grievance in regard to the grant of arrears on the principle that the respondent-plaintiff had not worked for the post. Reference is made to the case of Telecommunication Engineering Services Association Vs. Union of India, 1994(3) S.C.T. 804.
The directions to promote the respondent with effect from the date his juniors were promoted being not under challenge in the present appeal, the only question requiring consideration is if the arrears of pay and allowances can be allowed to the respondent- plaintiff or not. In Telecommunication Engineering Services Association's case (supra), the denial of back wages on the ground that the incumbents did not work on the promoted posts in the past was upheld by the Hon'ble Supreme Court. While taking this view, the Hon'ble Supreme Court distinguished the ratio of law laid down in Union of India and others Vs. K.V.Jankiraman and others, 1991 (4) SCC 109. Reference is also made to Union of India & Anr. Vs. Tarsem Lal & Ors., AIR 2007 (SC) 259, where it is held that on notional promotion with retrospective effect, the employee will not be entitled to the wages of the promotional post from the date of notional promotion and the doctrine of "no work no pay" would apply.
The counsel for the respondent-plaintiff has referred to decision in R.S.A. No.4070 of 2007 (Haryana State Agricultural REGULAR SECOND APPEAL NO.2077 OF 2009 (O&M) :{ 5 }:
Marketing Board, Panchkula & another Vs. Kedar Singh), decided on 11.12.2008. It may not apply to the facts of the present case as in this case the promotion was granted to juniors who had not qualified in the type test. The view expressed in RSA No.1526 of 2007 (Haryana State Agricultural Marketing Board, Panchkula & another Vs. Raj Devi & others), decided on 4.12.2007 has not dealt with the question of back wages and the Regular Second Appeal was simply dismissed. In Rameshwar Vs. State of Haryana and others, 2005 (4) SCT 618, it is observed that if employee is entitled to be promoted with retrospective date, then he can not be denied the monetary benefits of the promotional scale. This may not also help the cause of the respondent-plaintiff as promotional scale would have been allowed to him but it is the question of arrears once the respondent-plaintiff is granted a notional promotion. In the cases of Tarsem Lal (supra) and Telecommunication (supra), the principle of "no work no pay" was applied, which would be attracted to the facts of the present case.
Accordingly, the Regular Second Appeal is allowed to this limited extent. The respondent-plaintiff is held entitled to promotion w.e.f. 1.4.1982 but would not be entitled to grant of arrears from the said date on the principle of `no work no pay'.
May 10, 2010 ( RANJIT SINGH ) ramesh JUDGE