CWP No. 12177 of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 12177 of 1995 Date of Decision: 21.07.2011 Karam Singh & Ors. ...Petitioners Vs. The State of Punjab & Ors. ...Respondents And CWP No. 18814 of 1995 Om Parkash & Anr. ...Petitioners Vs. State of Punjab & Ors. ...Respondents CORAM Hon'ble Mr. Justice A.N.Jindal, Present: Mr.S.S.Rana and Mr.Sarvesh Kumar Gupta, Advocates, for the petitioners. Mr.P.C.Goyal, Addl.A.G., Punjab. -- A.N.Jindal, J . (Oral) This order shall dispose of CWP No. 12177 of 1995 and CWP No.18814 of 1995 titled Karam Singh & Ors. Vs. The State of Punjab & Ors. and Om Parkash & Anr. Vs. The State of Punjab & Ors., respectively, as the questions of law and facts in both the writ petitions are common. CWP No. 12177 of 1995 2 The petitioners have invoked the jurisdiction of this court under Article 226 of the Constitution of India seeking a writ of mandamus directing the respondents to release the arrears of pay in accordance with their retrospective promotions vide orders Annexures P.1 to P.3 and to place them on the seniority list of Senior Assistants. The petitioners are working as Senior Assistants/Accounts Clerk in the B.B.M.B. Organization at Nangal Township and Sunder Nagar and are the employees of the State of Punjab. The petitioners who were working as Senior Division Clerks, made representations for consideration of their case to the posts of Senior Assistants from the date when junior to them were promoted as Accounts Clerks/Senior Assistants. Since their case for promotion was not considered they served legal notice upon the respondent No.2. Thereafter, after examining their record, respondent No.2 duly promoted them as Accounts Clerks/Senior Assistants w.e.f. the date when the juniors to them were promoted as Accounts Clerks/Senior Assistants. Petitioners No.1 and 2 were promoted as Senior Assistants retrospectively w.e.f. 30.8.1982. Petitioner No.3 was promoted w.e.f. 16.4.1982. Petitioners Nos. 4 to 6 were promoted w.e.f. 30.8.1982. Petitioners Nos. 7 to 9 were promoted w.e.f. 14.9.1982, whereas petitioner No.10 was promoted w.e.f. 1.10.1982. In nutshell all the petitioners were promoted as Senior Assistants from the back date. However, in spite of specific orders issued by respondent No.2, respondent No.4 sought clarification vide letter CWP No. 12177 of 1995 3 No.21649/V.E/4448/57/6 dated 6.9.1994 from respondent No.2 as to whether petitioners No. 3 and 4 were promoted as Senior Assistants retrospectively with all service benefits w.e.f. 30.8.1982. Respondent No.4 clarified vide Annexure P.4 that junior persons to the petitioners were promoted as Senior Assistants/Accounts Clerks w.ef. 30.9.1982, therefore, they were entitled to their promotion with benefits retrospectively. However, the clarification Annexure P.4 was not implemented. Thus, the petitioners have now sought a mandamus directing the respondents to release arrears of pay from the date of their retrospective promotions, vide Annexure P.1 to P.3 and also to place them in the seniority list of Senior Assistants w.e.f. the date they have been promoted as Senior Assistants. On notice, respondents Nos. 1 and 2 filed written statement pleading that the petitioners were promoted during the year 1994 with retrospective effect by considering their representations. The promotions of the petitioners were subject to the decision of various writ petitions pending in the High Court. On merit, it was pleaded that the petitioners have no cause of action to invoke the jurisdiction of this court, however it was admitted that promotion of the petitioners to Accounts Clerks was with effect from retrospective dates. However, it was pleaded that they were not allowed arrears of back wages and notional pay was to be fixed. No arrears of pay is admissible to the petitioners on account of their antedated promotions. Arguments heard. Record perused. CWP No. 12177 of 1995 4 There is no denying a fact that the petitioners were promoted from the back date when their juniors were promoted, therefore, they are certainly entitled to refixation of pay and seek arrears of salary from the said dates of deemed promotions. On account of failure of the respondents to act in accordance with the rules resulting in the pendency of litigation as their orders of promotions were not issued from the due dates of posting, the petitioners cannot be allowed to suffer. Had the petitioners not opted for or refused promotion then the things would have been otherwise and in that situation the respondents could come to contend that they were not entitled to such salary. By the Division Bench of this court in the case of Bir Singh kadian & ors Vs. State of Haryana and Anr. 1995 (2) I.L.R. (Punjab & Haryana), 383, it has been observed that such employees who were promoted with retrospective effect were entitled to re- fixation of their pay and pension etc. It was further observed as under:- “8. The right of the employee to get pay of the higher post has been now recognized by their Lordships of the Supreme Court in Union of India etc. v. K.V.Jankiraman (2) Even the doubt which was created by the judgment in Paluru Ramkrishnaiah and others v. Union of India and another (3) has now been clarified. (9) Accordingly, we hold that whenever a person is found entitled to the grant of retrospective promotion, he CWP No. 12177 of 1995 5 is entitled to the refixation of his pay and the grant of arrears of salary. The question posed at the threshold is answered accordingly.” Similar view was taken by the Division Bench of this Court in the case of Vidya Parkash Harnal Vs. State of Haryana 1995 (3) SCT 785. In case Swaran Singh Vs. State of Punjab & Ors. 1997 (I) SCT 405, it was observed as under:- “7. Respondents have not given any reasons for withholding the promotion of the petitioner as Master and as Lecturer. Petitioner was denied the benefit of promotion whereas persons junior to him were promoted earlier to him. While granting the benefit of seniority and pay fixation, no mention has been made regarding the arrears of salary. No reasons have been assigned (sic.) to the petitioner. Case of the petitioner was recommended for promotion as Master by the Head of the Institution where he was working on 13.9.1990 vide Annexure P.3. Persons junior to him were promoted denying the benefit to him without any reason. On the representation filed by the petitioner, no action was taken. There was no justification to deny the benefit of promotion to the petitioner and in these circumstances, he cannot be deprived of the benefit of arrears of salary.” CWP No. 12177 of 1995 6 Learned Additional Advocate General, Punjab has also not disputed that the case of the petitioners is covered by the judgment delivered in CWP No.11865 of 1993 titled Inder Mohan Vs. The State of Punjab & Ors., decided by a Division Bench of this Court on 20.9.1994 (Annexure P.12.). Taking into consideration the aforesaid legal and admitted proposition, I allow both the writ petitions and direct the B.B.M.B./respondents to release the arrears of pay in accordance with their retrospective promotions and to place them on the seniority list of senior Assistants accordingly. (A.N.Jindal) 21.07.2011 Judge rp