Q INTHE HIGH COiaT OF JTTOXC&TUKB AT JABAI.PUR (H.P.) M.P. Ho._ ^i&A^/ of 2000 (Under. Artleles 226 & 227,/Cons-ti-fcu-bion of In<3ia) 'ITIOffiR : Ramlal patle, aged about 58 ysars, son of lata Shci Kodaji Patle. by occi.roation— service, r/o 2>/74, Pj.pe ractory aoad, ETew Shan'ei Hagar, Post Shankac Efagar, Raipur. VERSUS ^^'I^") i'^y-^^ ^•^1 r".0^^3] k.S1^ ^w^ ^a S 3 1. Life Insurance Corpora'fclon of Indxa, a CorRoratioa established under T»^a Lxfe InsuraQce Gorpora-bion of India Act, 1956 hav.ing i-fcs Central Office at Borribay through its Managliig Birector. 2. Ihe Bivisional Manager, Life .'Insurance Corporatton of ladia, Divislon Office, Raip'i.u'. 3. Ihe Branch Nanager, Life Insurance eorporation of India, Branch No»2, Raipur. PETXTION UNDER &RTZC1ES 226 & 227, COHSTITUri01\T OS' laoi&' _1. ~^. ^ji&. <; HIGH COURT OF CHHATTISGARHAT BILASPUR WRITPETITIONNo. 6312 of2000 PETITIONER RESPONDENTS Ramlal Patle. VERSUS Life Insurance Corporation of India & Others. .<^ Post for pronouncement ofjudgment & order on [/..day ofMarch, 2011. •rtiildf+'"* Sd/- Satish K.Agnihotri, Judge J '•-i^z"'' s%^ ' 'a:'s^/ ^ 9,;? 7 HIGH COURT OF CHHATTISGARH AT BILASPUR WMT PETITION No. 6312 of 2000 PETITIONER RESPONDENTS Ramlal Patle. VERSUS Life Insurance Corporation of India & Others. WRIT PETITION UNDER ARTICLE. 226 & 227, CONSTITUTIONOF INDIA SB: Hon'ble Shri Satish K. Asnihotri, J. Present: Shri Parag Kotecha, Advocate for the petitioner. Shri Mukesh Sharma, Advocate for the respondents. ,-f^ (Delivered on..r./...day ofMarch, 2011) By this petition, the petitioner seeks a direction to the respondent authorities to promote the petitioner to the post of Higher Grade Assistant, to pay the deai'ness allowance on the graduation allowance and further, to give details of the leave taken by the petitioner and not to deduct any further amount on account of extraordinary leave. The facts, in nutshell, as projected by the petitioner are that initially, he was appointed as Peon on 26.03.1963 at Divisional Office, Jabalpur. Thereafter, he was promoted to the post of Record Clerk w.e.f. 25.09.1971 and was posted at Raipur. After completion of his graduation in the year 1980, he was further promoted to the post of'Assistant w.e.f. 01.04.1986 and was postecl at Branch No. 2, Raipur. The petitioner passed the examination 3. ^ held by the respondents for promotion to the post ofHigher Grade Assistant in the year 1997 and was kept at serial No. 3 in the waiting list. The petitioner agaiu applied for the said post in the year 1998 wherem, the respondent No, 2, by letter dated 16.11.1998 (Annexure P/l), informed the petitioner that it was not possible to include his name for interview. According to the petitioner, the petitioner was granted one increment but has not been paid the dearness allowance on the graduation allowance as the petitioner had passed graduation in fhe year 1980. The further grievance of the petitioner is that a substantial amount (without specifying the amount) has been deducted &om his salary towards the extraordinary leave without giving details ofthe leave talcen by the petitioner. Shri Parag Kotecha, leamed counsel appeai-ing for the petitioner would submit that the petitioner has been deprived of his genuine right of promotion as under the Schedule of the Life Insurance Corporation of India Class III and Class IV Employees (Promotion) Rules, 1987 (for short, 'the Rides, 1987"), the requirement is 10 years service as Assistant which the petitioner fulfills. Shri Kotecha would next submit that the petitioner has also been deprived of dearness allowance on graduation allowance as per the provisions of clause 9 read with clause 15 of the Instmctions for Implementation of Life Insurance Corporation of India Class III and Class IV Employees (Revision of Terms & Conditions of Service) Amendment Rules, 1996 (fbr shorf 'the Rules, 1996'). Shri Kotecha would next contend that the petitioner ^-^ is entitled to refund ofthe amount deducted by the respondents on account of the extraordinary leave, without giving the details, which is impermissible in law. 4. On fhe other hand, Shri Sharma, leamed counsel appearing for the respondents would submit that service of 10 years is not the only criteria for promotion. It also includes work record and interview. Thus, it cannot be held that the petitioner was illegally denied consideration for promotion. Raaking list of all the applicants was prepared as per provisions under schedule 5 column (5), five times i.e. first 50 applicants were called for interview, since the petitioner could not secure ranking within first 50, he was not called for interview in promotion for the year 1998-99. Since the selection was made amongst candidates competing for such post and the petitioner could not qualify even for interview call, his request is wholly unjustified and has no right to claim on the basis that he was in the waiting list of 1997-1998, thus, he should have been called for mterview and declared selected for the promotion in the next year i.e. 1998-1999. The waiting list becomes operative only in a situation when vacancy of a particular post remains vacant due to non-joinmg by the selected candidate for the particular promotion or due to death/retirement of employee during the said period, before notification ofpromotion for the next year. No sooner the promotion for next year is announced, the waiting list becomes inoperative. The candidate has to apply a fresh and compete with the other eligible candidates in the next round of promotion. Further, the petitioner has not submitted any document ., '^ to show that he has been deprived of the benefits provided to him for his increment for graduation qualification and deamess allowance, thereafter. Increment is sanctioned in running scale of the cadre and the same form a part of salary on which deamess allowance is determined as well as benefit of provident fund deduction, house rent allowance, etc. are also fixed. Not only this, whenever the pay/salary is revised fixation benefit is always considered on such increment In other words, fixation benefit is calculated for higher basic in which graduation increment is included. Where as special allowance. is not a part of basic in running scale. After revision of pay scale, it is not necessary to include special allowance in pre-revision basic and to consider fitment under Revision Rules. The petitioner was granted graduation increment on his promotion for the post of Assistant w.e.f. 01.10.1986. The petitioner has not made it clear from any document that how he has been deprived of deamess allowance from 01.08.1992 to 11.07.1994. Shri Sharma would next conlend that the petitioner is a habitual absentee without prior intimation to the concerned authority. However, his absence was treated as extraordinary leave (i.e. leave without pay) as per the Life Insurance Corporation oflndia (Staff Regulation) 1960 (for s/wrt 'the Regulation, 1960'). Extraordinai'y leave is not a facility for an employee automatically but it is sanctioned by the competent authority at the request ofsuch employee which protects him from discontinuation in the service. Since the petitioner had not worked/attended the office, he was not entitled to wages/salary on the ground of 'no work-no pay. Further, the petitioner has retired ~St ^' 5 fi-om service on superannuation, thus, the relief clause No. 7(iii) may not be granted. The petitioner accepted all the retiral dues without any pre-condition or protest. 5. Heard learned counsel appearing for the parties, pemsed the pleadings and documents appended thereto. 6. Contention of Shri Kotecha that since the petitioner was appointed on the post ofAssistant w.e./01.04.1986, he ought to have been considered for promotion to the post of Higher Grade Assistant as the petitioner had completed 10 years service in the scale of Assistant, is rejected. On perusal of the schedule to the Rules, 1987, it is found that conditions of feeder cadre for promotion to the higher post is Section Heads or five years service in the scale ofAssistants and pass in the Departmental Test or dn acqiiiring prescribed technical qualifications or 10 years service in the scale ofAssistants.. But thereafter, the promotion is to be granted on the basis of qualification and seniority. For qualification, the maximum marks was 10 md for seniority, it was 20, and maxitnum for both, it was 25. For work record and interview, the maximum marks was 25. The relevant portion of the schedule, reads as under: "Sr. For Categories No. promotion eligible to the cadre of Conditions eligibility (1) (2) (3) (4) of Marks to allotted. (5) XXX XXX 5. Higher Grade XXX XXX XXX be Section FIeads (a) Section Heads Stenographers Assistants and Qualification and senionty (Maximum 10 i Assistants all other employees in the scale of Section OR marks for qualification aiid 20 marks for 5 years' service in ~" . '.' or Assistants. Assistants and a pass in the Departmental Test Maximum 25 or on acquiring for both : s^? M. qualifications lvcl;ulu • Interview (c) 10 years' service in the scale of Assistants. 25 25 XXX XXX XXX XXX xxx' 7. The case ofthe petitioner is that the petitioner was kept in waiting list at serial No. 3 as he had passed the examination for promotion to the post ofHigher Grade Assistant. Thereafter, in the year 1998, the petitioner could not be called for interview, by letter dated 16.11.1998 (Annexure P/l), does not merits acceptance. It appears that the petitioner was considered in accordance with law and kept in the waiting list. However, he could not be appointed, may be for various reasons which cannot be examined as no other materials or documents, except the above stated submission that he has been deprived of promotion to the higher post illegally, has been produced. Further, since no materials have been produced, it is difficult to know asto whether the petitioner was qualified after written test and had secured qualifying marks in the seniority and qualification, for interview thereafter, on this ground also, no adjudication is possible. The fact remams that when the petitioner became eligible he was considered for promotion but it appears /K^ j'%^ g ^ T" i 'y J " '&^-^' ^ AC 7 that in the select list, he could not find a place as per requirement for appointment. Since no defect has been pointed out or it has also not been pointed out that there was any irregularity or there was non-compliance ofthe statutory rules, and as such it cannot be held that the petitioner was denied promotion illegally. Thus, the contention ofthepetitioner, as aforestated, is rejected. With regard to payment of deamess allowance on graduation increment, admittedly, the petitioner was granted graduation increment, on passing graduation examination and as such, the petitioner was entitled to dearness allowance on graduation increment also. The respondents, in its reply has categorically stated that the petitioner was granted graduation increment and tliereafier that became a part and parcel of the salary on which dearness allowance was payable which was duly paid to the petitioner. The respondents have filed a detailecl chart indicating grant of deamess allowance on the salary of the petitioner which included graduation increment. Grant of graduation increment is also admitted by the petitioner. Rule 9 ofthe Rules, 1996 cleariy provides that special allowance for passing exammation under the rules would not be counted for dearness allowance. However, the graduation allowance is different from special allowance which becomes a part and pai'cei ofthe salary. The respondents have clearly stated that the deamess allowance is calculated on the basis of total salary which was regularly paid to the petitioner. However, the representation dated 10.04.1999 (Annexure P/5) made by the petitioner that he was not getting dearness allowance/HRA on graduation inerement, has not been responded to by the respondent, but the same has been clarified in their retum, Under the Rules, 1996, the petitioner is not entitled to payment of Rs. 1000/- per month as he was getting graduation allowance before 01.04.1989. 10. So far as thu-d relief of the petitioner is concemed that he is entitled to payment for the period his absence was treated as extraordinary leave, the case ofthe respondents is that in order to ;ive continuity, the unauthorized absence of the petitioner was treated as extraordinary leave. However, payment was not made on the principle of 'no work-no pay'. The petitioner, in this petition has sought direction to give the details ofthe leave taken by the petitioner and not to deduct any further amouat towards extraordinary leave, cannot be granted as this is very unusal that if the details are not given, the. period may not be treated as extraordinary leave. Thus, this contention is also rejeeted. 11. For the reasons stated hereinabove, there is no merit in the case. Resultantly, the writ petition is dismissed. 12. There shall be no order-.asto costs. -fc Amit