IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 6550/2008 Decided on:12.7.2010 _____________________________________________ Ms Anita Gautam. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Ms. Ranjana Parmar, Advocate. For the Respondents: Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Vikas Rathore, Dy. Advocate General. ____________________________________________________ Rajiv Sharma, Judge (oral). Petitioner was initially appointed as Junior Basic Trained Teacher. She improved her educational qualification by obtaining Bachelor of Arts and Bachelor of Education degrees. She was to be promoted to the post of Trained Graduate Teacher (Arts). Departmental Promotion Committee was convened in the year 1999. Persons junior to the petitioner were considered for promotion and promoted to the post of Trained Graduate Teacher (Arts) with effect from 1.11.1999. It has come in the reply that the petitioner has also been promoted as Trained Graduate Teacher (Arts) vide office order dated 27.12.2000. Once the petitioner was 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 eligible and qualified to be considered for the post of Trained Graduate Teacher (Arts) from the due date, her case was also required to be considered from that date. The right of consideration has now almost been considered as a fundamental right by the Hon’ble Supreme Court. Their Lordships of the Hon’ble Supreme Court in Union of India and another versus Hemraj Singh Chauhan and others, AIR 2010 SC 1682 have held that right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. Their Lordships have further held that the guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution. Their Lordships have held as under: “38.It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.” Respondent-State was directed to file supplementary affidavit why the case of the petitioner has not been considered from the due date, i.e. when persons junior to her were considered and promoted. Now, it has come in the supplementary affidavit that the petitioner has been considered and found suitable for promotion with effect from 1.11.1999, 3 however, on notional basis. The copy of the office order is Annexure R-1. Mr. Vikas Rathore, learned Deputy Advocate General has strenuously argued that petitioner cannot be given monetary benefits with effect from 1.11.1999 on the principles of “no work no pay”. In the instant case, the petitioner was always ready and willing to work on the higher post from the date she had become eligible. In these circumstances, the principle of “no work no pay” shall not apply. Their Lordships of the Hon’ble Supreme Court in Union of India and others versus K.V. Jankiraman and others, (1991) 4 SCC 109 have held as under: “We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.” Accordingly, the petition is allowed. Petitioner is held entitled to all the monetary and other benefits, i.e. seniority etc. with effect from 1.11.1999. Needful be done within a period of ten 4 weeks from the date of production of the certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma), Judge. 12.7.2010 *awasthi*