CWP No.5775 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 22.2.2010 Narender Pal Singh ...Petitioner VERSUS State of Haryana & Another …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.R.K.Malik, Sr.Advocate with Mr.Vishal Malik, Advocate for the petitioner Mr.RS Kundu, Addl.A.G., Haryana Permod Kohli, J. (Oral) The petitioner joined the Indian Army on 22.8.1963 where from he was discharged on 31.8.1978. Thereafter he was appointed as Draftsman on ad hoc basis in the State of Haryana through Subordinate Services Selection Board, Haryana. He came to be appointed on regular basis on 21.4.1980. The petitioner claimed benefit of the military service rendered in Emergency period under the National Emergency (Concessions) Rules, 1965. Vide order dated 25.2.1992 (Annexure P-2), the benefit of the Emergency Service rendered in the Army w.e.f. 22.8.1963 to 31.8.1978 was granted to the petitioner by way of increments and seniority. The total benefit granted CWP No.5775 of 1994 2 to the petitioner was four years, four months and twenty days and his deemed date of appointment was fixed as 1.12.1975. Consequently, he was made senior to one Raj Kumar. Raj Kumar, who was junior to the petitioner was promoted as Head Draftsman w.e.f. 3.4.1984. The petitioner was also promoted as Head Draftsman w.e.f. 3.4.1984. While granting the aforesaid benefit, the petitioner has been denied the monetary benefits vide order dated 5.8.1992 (Annexure P-4). From the perusal of the aforesaid order, it is evident that even though the benefit of the promotion was allowed to the petitioner w.e.f. 3.4.1984 when Raj Kumar junior to him was so promoted, however, the monetary benefit has been given from the date he actually resumed the duty as Head Draftsman. Not only this, even his pay has been fixed with effect from the date of resumption of his duty. The petitioner has challenged the aforesaid order to the extent it has denied the monetary benefits and also the benefit of increments etc. The other grievance of the petitioner is that Raj Kumar was further promoted as Circle Head Draftsman w.e.f. 17.10.1988 without considering the petitioner for such promotion. The petitioner made a representation (Annexure P-5) in this regard and appeared personally, but his case has not been considered. The respondent-State has filed detailed reply. In so far as the grant of monetary benefits to the petitioner with effect from the date his junior Raj Kumar was promoted is concerned, no material has been brought on record to deny the monetary benefits to the petitioner. Hon'ble Supreme Court in the case of State of Andhra Pradesh vs. K.V.L. Narasimha Rao and others, RSJ 1999 (2) 686 has held as under:- “5.In normal circumstances when the retrospective CWP No.5775 of 1994 3 promotions are effected all benefits flowing therefrom, including monetary benefits must be extended to an Officer who has been denied promotion earlier....” A similar view was expressed by a Division Bench of this Court in the case of Rameshwar vs. State of Haryana and others, 2006(1) SLR 208 wherein following observations have been made:- “3.We have heard the learned counsel for the parties and carefully gone through the record. We find absolutely no force in the stand of the respondents that it was the petitioner who should have initiated his claim for promotion. On the contrary, it was the duty of the respondent Department to consider his claim with effect from 29.6.1983, the date when the juniors of the petitioner had been promoted. The respondents have denied the arrears to the petitioner on the ground that he did not work as SS Master upto 14.7.1992. We are of the opinion that the petitioner cannot be penalised for the fault or inaction on the part of the respondents...” In view of the dictum of the aforesaid two judgments, the petitioner cannot be denied the monetary benefits of promotion as Head Draftsman w.e.f. 3.4.1984. Now coming to the second issue, admittedly, Raj Kumar was promoted as Circle Head Draftsman w.e.f. 17.10.1988.The State- respondent in its reply has taken a categorical stand that the petitioner's case was considered, but he was found unfit in accordance with the Government letter dated 18.11.1971 (Annexure R6). It is further stated that when Raj CWP No.5775 of 1994 4 Kumar was promoted as Circle Head Draftsman, the petitioner was under suspension and a departmental enquiry under rule 7 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 was pending. The petitioner was accordingly awarded punishment of stoppage of one increment without cumulative effect vide order dated 4.8.1993. Government instructions dated 18.11.71 (Annexure R-6), inter-alia, provides that where a departmental enquiry is pending against a Government servant under Rules 7 and 8 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 or any comparable rule applicable to the Government employee, then the government employee should not be promoted to a higher post until after disciplinary action against him has been completed or he has been exonerated. It is accordingly argued on behalf of the respondents that the petitioner being under suspension and disciplinary proceedings being pending against him, he was not entitled to be promoted. As a matter of fact, the stand of the respondents is self contradictory. On the one hand, reliance is placed upon Government instructions, which, inter-alia lays down the non-consideration for promotion of an employee during the pendency of the departmental proceedings, to the contrary, it is stated that he was found unfit. This clearly establishes that no consideration was granted to the petitioner for his promotion to the post of Circle Head Draftsman at the time of promotion of Raj Kumar and even at the time of termination of departmental proceedings. The petitioner was only awarded minor punishment and minor punishment lived its life after the lapse of period of one year. Thereafter it was obligatory upon the respondents to have considered the case of the petitioner for promotion to the post of Circle Head Draftsman. No such CWP No.5775 of 1994 5 consideration has been accorded to the petitioner till date. In view of the totality of the circumstances, this petition is allowed with the following directions:- i)The respondents will grant the monetary benefits to the petitioner, including the increments w.e.f. 3.4.1984 till the date of passing of the order (Annexure P-4) i.e. 5.8.1992; ii)The respondents will consider the case of the petitioner to the post of Circle Head Draftsman w.e.f. 17.10.1988 taking into consideration the minor punishment imposed upon him. Let the process of consideration be completed within a period of three months from the date a certified copy of this order is received by the competent authority and in the event the petitioner is found suitable for promotion, all necessary and consequential benefits be granted to him, without monetary benefits as the petitioner was facing departmental proceedings. The petitioner has now retired from service on attaining the age of superannuation. In the event the petitioner is found entitled to any notional promotion, his retiral benefits will be revised accordingly by granting him the benefit of retrospective promotion as Head Draftsman and if he secures the second promotion as Circle Head Draftsman. (PERMOD KOHLI) JUDGE 22.2.2010 MFK