IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.1144 of 2007 Date of Decision: 15.5.2008 Satbir Singh Chahal and others Petitioners Versus State of Haryana and others Respondents CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE K.C.PURI Present: Shri Dinesh Kumar Jangra, Advocate for the petitioners Shri Harish Rathee, Sr. D.A.G. Haryana for the respondents Jasbir Singh, J. (Oral) Petitioners are working as Taxation Inspector with the respondents. By filing this writ petition, they have prayed that a writ of certiorari be issued to quash order dated 28.11.2006 (P/12), vide which, benefit of notional fixation of pay, from the date when seniority was given to them i.e. 1.6.1993, has been declined. Brief facts of the case are that the petitioners, being ex- servicemen, in response to an advertisement, applied for the post of Taxation Inspector, in the year 1992. They were interviewed, however, Selection Board, instead of offering appointment to ex-servicemen, appointed dependents of the ex-servicemen against the post referred to above.. Petitioners, feeling aggrieved, filed writ petition in this Court, which was dismissed. They went to the Hon’ble Supreme Court and vide Civil Writ Petition No.1144 of 2007 order dated 25.3.1996, appeal filed by them was allowed, by observing thus:- “It is contended by Shri Mahabir Singh, learned counsel for the appellants that the Selection Board has adopted a policy of calling the ex-servicemen and the dependent children of the ex-servicemen together to consider their cases for recruitment according to merit which would stand in impediment to the ex-servicemen. We find force in the contention. The object of reservation of the ex-servicemen is to rehabilitate them after their discharge from the defence services. As per the instructions issued by the State Government, in the absence of availability of the ex- servicemen instead of keeping those posts unfilled, the dependent children, namely, son or daughter of ex-servicemen would also to be considered. The object thereby would be that the Selection Board should first consider the claims of the ex- servicemen and have their eligibility considered independently in the first instance before the claims of the dependent children of the ex-servicemen are considered. If they are found eligible and selected, for the balance unfilled posts, the selection should be done from among the dependent children of the ex- servicemen.” When the authorities failed to implement the order passed by the Hon’ble Supreme Court, the petitioners filed an application to initiate contempt proceedings. That application was disposed of on 29.10.1999 in view of the fact that in the meantime, the respondents had implemented the order passed by the Apex Court. Subsequent thereto, their seniority was 2 Civil Writ Petition No.1144 of 2007 also fixed along with many other candidates (who were also selected against the posts reserved for ex-servicemen). Seniority was fixed w.e.f. 1.6.1993 and the petitioners’ name were shown at serial Nos.9, 6, 3, 10 and 8 respectively, as per seniority list dated 18.6.2002 (P/3). It is not disputed that so far as Azad Singh, who was shown at serial number 1, Suresh Chander Sharma, who was shown at serial number 7 and Mohinder Singh who was shown at serial No.14 of the seniority list, referred to above, their pay was fixed notionally, w.e.f. 1.6.1993. However, actual financial benefits were declined to them and it was ordered that they shall not be entitled to get any financial benefits except from the date of their joining against the above said posts. By taking a clue from the orders passed in favour of above said three employees (P/4 to P/6), petitioners also made a request that their pay be also notionally fixed w.e.f. 1.6.1993. Their prayer was declined vide impugned order on 28.11.2006 (P/12). Hence, this writ petition. In response to notice issued, reply has been filed wherein it has been stated that the State has withdrawn benefit of notional pay granted to Suresh Chander Sharma etc. and as such, no claim is left with the petitioners to press for the similar relief. It is further stated that from the date the petitioners were appointed against the posts of Excise Inspector, as per orders of the Supreme Court, they are entitled to get their pay fixed from the date of their joining against the above said post. Counsel for the parties heard. We feel that by denying fixing of notional pay to the petitioners w.e.f. 1.6.1993, grave injustice has been done to them. So far as withdrawal of benefit granted to Suresh Chander Sharma etc. is concerned, it is necessary to mention here that the above said employees, against order of 3 Civil Writ Petition No.1144 of 2007 withdrawal of benefit granted to them vide orders Annexures P/5 and P/6, filed CWP No.9542 of 2007 in this Court. That writ petition was allowed by a Division Bench on 11.4.2008. It was observed thus:- “After hearing counsel for the parties, we feel that this writ petition deserves to be allowed. It is not in dispute that petitioner was a candidate for the post of Taxation Inspector, for which examination was held in the year 1992, result was declared in the year 1993. Wrongly, the benefit was declined to him, which was rectified by their Lordships of Hon'ble Supreme Court, vide judgment Annexure P-2, in that event, the petitioner shall be deemed to be in service from the date when persons lower in merit, were taken in service or dependents of ex-servicemen were given the appointment i.e. on 1.6.1993. It is also not disputed before us that benefit of seniority has been given to the petitioner from the abovesaid date. If that is so, we feel that petitioner is also entitled to notional fixation of his pay from the abovesaid date. It appears that benefit which was granted to him in the year 2004, has now been withdrawn without any justification. View expressed by us is in consonance with the ratio of a Division Bench judgment of this Court in Subhash Chander vs. The State of Haryana and others 2006 (3) S.C.T. 497 and ratio of another Division Bench judgment of this Court in Rajiv Kumar vs. State of Haryana and others, CWP No. 1874 of 2007 decided on 15.2.2008, wherein it was observed thus :- “After hearing counsel for the parties, we feel that claim of the petitioner is perfectly justified to get 4 Civil Writ Petition No.1144 of 2007 deemed date of appointment from the date when persons lower in merit were taken in service. This view also find support from ratio of a Division Bench Judgment of this Court in Subhash chander v. State of Haryana, 2006(3) S.C.T. 497. It is apparent from the records and is not disputed before us that the petitioner was entitled to get 5 additional marks in view of the observations made by the Hon'ble Supreme Court and also decision taken by the State government. Due to some misconception those 5 marks were not awarded to him. The competent authority has now found that if those marks were given to the petitioner, he would have secured 32 marks. Last candidate selected in general category, had secured 30 marks in the physical efficiency test and the interview. If that was so, the name of petitioner definitely would have figured in the merit list as per marks obtained by him. That benefit was wrongly denied to him and the mistake has now been rectified. Due to mistake committed by the authority concerned, seniority, from the date when persons lower in merit were allowed to enter in service, cannot be denied to the petitioner. 5 Civil Writ Petition No.1144 of 2007 To deny his claim, Shri Rathee has vehemently argued that 5 marks could not have been given to the petitioner, because, at the time of interview, he failed to disclose that he was a discharged constable. We have gone through the written statement. Nothing of the sort has been mentioned and further more, this plea was taken even before the Inspector General of Police when he passed the order dated 8.3.2004. The same was negatived. The State government has not challenged the order, referred to above. In view of facts mentioned above, we allow this writ petition and order the respondents to give the petitioner deemed date of appointment from the date persons lower in merit were allowed to join service. His seniority be also refixed. Counsel for the petitioner very fairly states that for the period in question, as the petitioner had not worked, he will not claim any financial benefit. However, notional/deemed benefits be given to him. We order accordingly.” In view of facts mentioned above, we allow this writ petition and set aside the order dated 26.4.2007 (P-7) and restore the order dated 17.3.2004 (P-4).” Above said benefit was given to Suresh Chander Sharma etc. by placing reliance upon decision of another Division Bench of this Court in the case of Subhash Chander v. The State of Haryana and others, 2006 (3) 6 Civil Writ Petition No.1144 of 2007 S.C.T. 497. It is not disputed before us that so far as the petitioners are concerned, their seniority has been fixed w.e.f. 1.6.1993. It is also not in dispute that they were entitled to get entry in service w.e.f. the date referred to above, however, the same was wrongly declined to them and the posts reserved for ex-servicemen, were wrongly offered to the dependents of the ex-servicemen. The petitioners fought a long drawn battle and got the relief only from the Hon’ble Supreme Court when their appeal was decided on 25.3.1996. Even then benefit was not given to them and they were forced to file a contempt petition, which ultimately was disposed of on 29.10.1999, when, in the meantime, they were given the appointment. We feel that it is a case where the petitioners would have been entitled to get salary from the date when the appointment was wrongly declined to them, however, in view of the fact that they had not worked against the post and keeping in view principle of no work no pay, we feel that actual financial benefits cannot be given to them. Injustice done to them can be rectified by fixing their pay, notionally w.e.f. 1.6.1993, as has been done in case of other similar situated employees. In view of facts mentioned above, this writ petition is allowed and order Annexure P/12 stands set aside. Directions are issued to the respondents to fix pay of the petitioners, notionally w.e.f. 1.6.1993, as was done in the case of Suresh Chander Sharma etc. However, they shall not be entitled to get actual financial benefits till the date they joined service. From the date of joining their service, on notional fixation of pay, if they are entitled to get any actual financial benefit, the same be granted to them within six weeks from the date of receipt of a copy of this order. (Jasbir Singh) Judge 7 Civil Writ Petition No.1144 of 2007 May 15, 2008 (K.C. Puri) gk Judge 8