IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.223 of 2009 Date of decision:11.03.2010 Sham Lal ....Petitioner versus State of Punjab and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Peeush Gagneja, Advocate, for the petitioner. Mr.Anil Kumar Sharma, Additional Advocate General, Punjab, for respondents 1 to 3. Mr. G.S.Attariwala, Advocate, for respondent No.4. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The writ petition seeks for grant of release of balance of increments for the period 15.05.2002 to 01.05.2004 which they were entitled to draw on the basis of promotion order issued on 24.03.2004 but which was to the effect from 15.05.2002. The 2nd respondent had provided only for a notional increase in pay scales on the basis that the petitioner did not actually officiate in the promotion post, hence not entitled to the balance of increments for the period referred to above. The petitioner has two sets of grievance that the petitioner was fully qualified for the promotional post but he had been wrongly denied to Civil Writ Petition No.223 of 2009 - 2 - him and therefore while an order was issued on 25.03.2004 entitling him to be considered as promoted from 15.05.2002 itself, the respondents could not have provided merely for a notional increase in scales but he must have been also granted the balance of the increments that was admissible to the promotional post. 2. The contention in defence by the learned counsel appearing for the 4th respondent is that as per the Government letter No.4/56/98- 4DC&GC/15404, dated 08.12.1998, an employee cannot be given the benefit of pay scale on which the employee had not worked at all. The learned counsel also relies on the judgment of the Hon'ble Supreme Court in Union of India and another Versus Tarsem Lal and others- (2006) 10 SCC 145, to the effect that a person cannot be paid the salary for the promotion post which he did not hold. The Hon'ble Supreme Court was in that case specifically dealing with the Indian Railway Establishment Manual 228, which spelt out two situations, namely, (i) a person had not been promoted at all because of the administrative error; and (ii) where a person had been promoted but not on the date from which he should have been promoted but for the administrative error. Referring to the instructions, the Court found that the issue will have to be decided on the basis of such instructions on a case to case basis with reference to merits and therefore held in that case that the petitioner was not entitled to anything beyond the notional scales admissible for the promotion post during the time when the promotion had been denied to him. It must be notice that there are no specific rules in this case as found in Railway Establishment Manual. Civil Writ Petition No.223 of 2009 - 3 - 3. A different decision has come about from the Hon'ble Supreme Court itself in Food Corporation of India Versus S.N. Nagarkar-2002(2) SCC 475, which was setting out the principle of law with reference to a situation where a person is wrongly denied promotion and when such promotion is ultimately afforded from a retrospective date. It considered whether such a person would be entitled to actual payment of the higher scale for the promotion post although he did not hold such a post. In the above case, the Court held that if it was found that the promotion of the official was withheld for no fault of his but solely on account of the fact that his name wrongly was not included in the relevant panel by mistake, he could not be deprived of promotion and arrears of salary. The Hon'ble Supreme Court held that a writ Court would have jurisdiction to mould the reliefs appropriately and once the writ petition ordered the petitioner was entitled to arrears of pay and allowances from the dates of his promotions, it was not possible for the authority to deny to him the arrears of salary and afford to him the increased scales only from the date of actual joining of the promotion post. In this case, Sadhu Singh and Gurdeep Singh, who like the petitioner had been denied the promotion but who were later promoted were paid full arrears being the balance of increments. The justification proffered by the learned counsel appearing for the 4th respondent is that there had been specific directions from the Government for payment of balance and therefore, they had perforce to make the payments to the 2 persons. I do not think that this could make a difference since the Government did what it was supposed to do. The ultimate Civil Writ Petition No.223 of 2009 - 4 - dispensation for the same class of persons could not be different and if such a contention of the learned counsel for the respondent were to be accepted, it would spell out a case of brazen discrimination between the same class of persons of one set obtaining the balance of arrears while the person like the petitioner being denied the same. The petitioner is under the circumstances entitled to the relief sought for and the writ petition is allowed. The arrears shall be paid within a period of 4 weeks with interest at 7.5% from the date of the receipt of the copy of the order. (K.KANNAN) JUDGE 11.03.2010 sanjeev