C.W.P. No.8292 of 1997 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. C.W.P. No.8292 of 1997 (O&M) DATE OF DECISION : 21.11.2011 Muni Lal Gupta PETITIONER VERSUS State of Haryana RESPONDENTS CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Shri A.K.Jain, Advocate for the petitioner. Shri Harish Rathee, Senior D.A.G. Haryana. MAHESH GROVER, J. The petitioner in this petition prays that Annexure P-4 be quashed whereby the arrears of salary from 17.5.1961 were denied to him, even though the deemed date of promotion was conferred to him. The petitioner earlier approached this Court by filing C.W.P. No.12613 of 1993, wherein he prayed for the issuance of a writ in the nature of mandamus directing the respondents to grant him the benefits of promotion which was disposed of by this Court vide order dated 13.10.1993 and the respondents were directed to dispose of the representation of the petitioner, which was done favourably and the petitioner was granted deemed C.W.P. No.8292 of 1997 -2- date of promotion as follows :- POST ACTUAL DATE PRESUMPTIVE DATE 1. Assistant 20.1.1970 17.5.1961 2. Assistant (SG) 5.3.1979 31.10.1977 3. Dy.Supdt. 22.6.1985 1.8.1983 4. Dy.Supdt.(SG) 15.4.1986 2.4.1985 5. Superintendent 30.6.1987 23.6.1985. Prior thereto on 28.2.1957, the State of Punjab had promulgated new service rules commonly known as Punjab Financial Commissioner Office (State Service Class-III) Rules, 1957 and by virtue of Rule 6(1)(f) and 7(1)(f), a provision was made for promotion of Clerks to the post of Assistant. The same dispute followed regarding these promotions on the basis of seniority which was linked to the passing of departmental test. This Court vide a detailed judgment rendered in C.W.P. No.5028 of 1984, held that the petitioner in the said writ petition was entitled to revision of their seniority and all consequential benefits arising therefrom. A number of writ petitions on the same cause of action were also disposed of either individually or collectively subsequently also. The petitioner too, as observed earlier, is similarly situated and he was granted deemed date of promotion after he had come to this Court seeking the same benefit. However, the petitioner was only granted the notional benefits and was not awarded any actual benefits which were denied to him on the basis of the instructions Anneuxre R-1, with specific reference to clause (iv) which is extracted here below :- “(iv) That Government would give the above seniority to non-petitioners without any liability of the payment of C.W.P. No.8292 of 1997 -3- arrears of salary.” The aforesaid condition is the sole defence for denying the actual benefit of promotions granted to the petitioner. The petitioner in para-5 of the petition has pleaded that similarly situated persons namely J.P.Kalan etc. who filed the writ petitions against the withdrawal of seniority, have been given the benefits along with back wages since 1957 as per their seniority. The respondents have not filed any specific reply to this averment and have only stated that the instructions prohibited the release of such benefits to the petitioner. Learned counsel for the petitioner states that in fact, all those persons whose seniority was changed in the manner as that of the petitioner, have been released the actual benefits. He has also placed reliance on a Division Bench judgment of this Court in Sudesh Kumar v. Haryana Power Generation Corporation Ltd. 2006(3) S.C.T. 262. The Division Bench while allowing the claim of the petitioner, observed as follows :- “5. We have given our thoughtful consideration to the matter. It is admitted position that the petitioner has been given promotion from a retrospective date. However, the same has been given for the purpose of pay fixation only and payment of salary as a consequence of pay fixation on the promoted post has been denied. A perusal of the written statement filed by respondent Nos.1 and 2 does not anywhere show that it is on account of any default on the part of the petitioner that he was not promoted on the higher post w.e.f. the due date. A Division Bench of this Court in Ram Lal v. State o f Haryana, 2003(3) RSJ 249, held that the executive C.W.P. No.8292 of 1997 -4- once satisfied that a civil servant was entitled to promotion with retrospective effect cannot deprive him of the benefit of salary accruing on account of such promotion from an earlier date without assigning valid, cogent and specific reasons. The order depriving the petitioner therein of his right to claim back wages was held to be unsustainable and quashed. Reliance was placed on an earlier Division Bench of this Court in Vidya Parkash Harnal v. State of Haryana, 1995 (3) SCT 786, wherein it has been held that the Executive/ State Government are to be bound and governed by the rule of law and if an employee is not promoted at his rightful place when he is entitled to and becomes eligible in accordance with the rules, the Court cannot ignore the magnitude of sufferings and pains on account of deprivation of the monetary benefits to him. In Union of India v. K.V.Janakiraman, AIR 1991 SC 2010, it was observed as follows : 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.” In view of the above, there being no material on record to show that it is on account of any default of the petitioner that he was not promoted from the due date, we are of the view that he was kept away from working on the higher post for no C.W.P. No.8292 of 1997 -5- fault of his. Accordingly, the writ petition is liable to be allowed.” For the aforesaid reasons, when the petitioner was deprived of promotion for no fault of his and also for the reason that observations of the Division Bench squarely cover the case of the petitioner, as also for the reason that respondents have not denied specifically in their reply that similarly situated persons have been granted the benefits and their stand being evasive, I am of the opinion that an adverse inference ought to be derived against them in view of the observations of the Division Bench. The writ petition is accepted and the respondents are directed to release the benefits due to the petitioner within a period of four months from the date of receipt of a copy of this order along with interest at the rate of 9% per annum. (MAHESH GROVER) November 21, 2011 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO