Khushwant Singh Brar v. State Of Punjab And ANR
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH Date of decision: 25.10.2024 Khushwant Singh Brar ....Petitioner
Versus
State of Punjab and another ....Respondents CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present:
Mr. Dhiraj Chawla, Advocate for the petitioner.
Mr. Teevar Sharma, AAG, Punjab.
NAMIT KUMAR J. (Oral) 1.
The petitioner has filed the instant writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus, directing respondent No.1 to promote the petitioner as Accountant Grade-I, w.e.f. 29.08.2014, the date when persons junior to him were promoted, while the petitioner was ignored on account of subsequent events such as charge-sheet dated 01.09.2016, which has been dropped vide letter dated 27.12.2018 (Annexure P-5) and charge-sheet dated 29.03.2016, which has also been finalized by imposing the penalty of stoppage of one annual increment with future effect vide order dated 13.06.2018 (Annexure P-4). Further prayer has been made to promote the petitioner w.e.f. 29.08.2014, with all consequential benefits such as seniority, pay fixation, increments, etc.
2.
The brief facts, as have been pleaded in the petition, are
that the petitioner was appointed as Accountant Grade-II on 21.01.2005, in the Trust Service Cadre and is at Serial No.7 in the seniority list dated 18.10.2011 of Accountant Grade-II working in the Trust Service, whereas his juniors namely Rajinder Kaur placed at Serial No.8, Tinna Vohra at Serial No.9 and Abdul Havaid at Serial No.10 and as per Punjab Trust Services (Recruitment and Conditions of Service) Rules, 2015, the petitioner was fully eligible for promotion to the post of Accountant Grade-I, after completion of five years of service and therefore, he submitted representations dated 26.02.2016 and 01.01.2019 for considering him for further promotion. In the meanwhile, one vacancy of Accountant Grade-I was created on 29.08.
2014, upon promotion of an incumbent to the post of Accounts Officer and one another vacancy became available on 15.12.2015, upon promotion of another incumbent to the post of Accounts Officer, however, the petitioner who was senior most Accountant Grade-II was not considered for promotion and in the interregnum, he was issued charge-sheet dated 29.03.2016, along with several other employees of Improvement Trust on the allegation that shortcomings were found in various constructions works and vide order dated 09.02.2018, two persons junior to the petitioner namely Rajinder Kaur and Abdul Havaid (Seniority No.8 and 10) were promoted as Accountant Grade-I w.e.f. 29.08.2014 and 15.12.
Smt. Tinna Vohra, Accountant Grade-II, Town Improvement Trust, Amritsar, has also been kept pending as the said employee is under suspension.
In pursuance to the charge-sheet dated 29.03.2016, issued to the petitioner, a regular departmental enquiry was conducted and finally vide order dated 13.06.2018 all the employees including the petitioner was imposed penalty of stoppage of one annual increment with future effect. Another charge-sheet dated 01.09.2016 was issued to the petitioner along with several other employees on the allegations of certain shortcomings found in construction works, the said charge-sheet dated 01.09.2016, was dropped and the petitioner and other officers/officials were warned to be more careful in future vide order dated 26.12.2018.
During the pendency of the present petition, the petitioner has been promoted as Accountant Grade-I vide order dated 03.08.2021 w.e.f. 30.06.2014, against the post fallen vacant after the retirement of one Bhagwan Dass, Accountant Grade-I. Thereafter, the order dated 03.08.2021, has been amended vide order dated 24.09.2021 and promotion granted to the petitioner w.e.f. 30.06.2014, has been treated as notional promotion. Although, Rajinder Kaur and Abdul Havaid, who were promoted as Accountant Grade-I vide order dated 09.02.2018 w.e.f. 29.08.2014 and 15.12.2015, respectively were also granted the arrears from the said date(s).
3.
The present petition came up for hearing before the
Coordinate Bench of this Court on 09.03.2023 and the learned State counsel was directed to ascertain whether the persons junior to the petitioner who were promoted as Accountant Grade-I in the month of November, 2014 and December, 2015, have been granted monetary benefits or not and further directed to file affidavit of respondent No.2 along with order of promotion of those employees. 4.
In pursuance thereto, affidavit of Sukhpreet Singh Sidhu, Joint Director, Directorate of Local Government, Punjab, Chandigarh has been filed wherein it has been stated that persons junior to the petitioner namely Rajinder Kaur and Abdul Havaid were promoted vide order dated 09.02.2018 as Accountant Grade-I w.e.f. 29.08.2014 and 15.12.2015, respectively and the arrears on account of grant of retrospective promotion were also granted to them, however, they were not entitled for the said arrears on the principle of 'No Work No Pay' and, therefore, after issuing notices to them, order dated 28.07.2023 (Annexure R-2) has been passed, ordering recovery from the said employees.
5.
Learned counsel for the petitioner submits that persons junior to the petitioner namely Rajinder Kaur and Abdul Havaid (Seniority No.8 and 10) were promoted as Accountant Grade-I w.e.f. 29.08.2014 and 15.12.2015, respectively, however, the petitioner has been denied promotion to the post of Accountant Grade-I due to pendency of charge-sheet dated 01.09.2016, which was dropped vide order dated 26.12.2018 (Annexure P-5) and another charge-sheet dated
29.03.2016, which was culminated into passing of order dated 12.06.2018 (Annexure P-4), vide which punishment of stoppage of one annual increment with cumulative effect was imposed upon the petitioner. He submits that once the respondents have promoted the petitioner as Accountant Grade-I w.e.f. 30.06.2014 vide order dated 03.08.2021, he cannot be denied the due arrears on the principle of 'No Work No Pay' in terms of order dated 28.09.2021 passed by respondent No.2. In support of his contention, learned counsel for the petitioner has placed reliance upon a Division Bench judgment of this Court passed in LPA No.1018 of 2012, titled as "Satyavir Singh Shekhawat vs State of Haryana and others", decided on 02.11.2012.
6.
Per contra, learned State counsel submits that since the petitioner had not worked from 30.06.2014 to 03.08.2021 on the post of Accountant Grade-I, therefore, he is not entitled for the pay and allowances and arrears of the promoted post.
7.
I have heard learned counsel for the parties and perused the record with their able assistance.
8.
The only question which arises for consideration before this Court in the present petition is as to whether the petitioner is entitled for the arrears of salary of the promoted post of Accountant Grade-I from 30.06.2014 to 03.08.2021.
9.
Admittedly, the petitioner was eligible for promotion to the post of Accountant Grade-I in terms of Punjab Trust Services (Recruitment and Conditions of Service) Rules, 2015, and two persons
junior to him namely Rajinder Kaur and Abdul Havaid, were promoted as Accountant Grade-I w.e.f. 29.08.2014 and 15.12.2015, respectively vide order dated 09.08.2018. The case of the petitioner was kept pending as an enquiry was pending against him. It is also admitted that persons junior to the petitioner namely Rajinder Kaur and Abdul Havaid have been promoted as Accountant Grade-I, w.e.f. 29.08.2014 and 15.12.2015, respectively and the petitioner being senior to them has been granted promotion as Accountant Grade-I w.e.f. 30.06.2014, vide order dated 03.08.2021, as on 30.06.2014, no enquiry was pending against the petitioner as the charge-sheets issued to him were subsequent in time i.e. charge-sheet dated 01.09.2016 and 29.03.2016 and thus, for the said reason, he has been given promotion from 30.06.2014.
The principle of 'No Work No Pay', would not be applicable to the present case in terms of order dated 28.09.2021 whereby petitioner has been granted notional promotion w.e.f. 30.06.2014 as the petitioner was ready and willing to perform the duties of higher post, however, he was not promoted at the relevant time for the reasons best known to the respondents. However, even the chargesheet dated 01.09.2016, was dropped vide order dated 26.12.2018 (Annexure P-5) and another charge-sheet dated 29.03.2016, was culminated into passing of order dated 13.06.2018 (Annexure P-4), vide which punishment of stoppage of one annual increment with cumulative effect was imposed upon the petitioner.
10.
The Hon'ble Division Bench of this Court in Satyavir
Singh Shekhawat's case (supra), while considering the similar issue has observed as under:- "9. We find that number of cases are decided by the Apex Court as well as various High Courts and in some cases, relief of arrears of pay is granted, while in some other cases it is denied applying the doctrine of 'No work No pay'. Determination of the circumstances under which an employee should be given the arrears of pay and under what circumstances in which he can be denied this benefit is the task before us which we will endeavour to carry out relying upon the principles laid down in the decided cases.
10. The first case which needs mention in the chronology of the judgments, we are taking stock of, is the decision of the Supreme Court in Paluru Ramkrishnaiah & Ors. v. Union of India & Anr. (1989) 2 SCC 541. The Court in this case held that in case the promotion granted with retrospective effect, back wages for the period for which the person actually did not work in the promotion post is not payable. This view was taken on the basis of the following factual background:- "16. It may also be noticed that even though the petitioners on their completion of two years' service as Supervisor "A" were not promoted as Chargeman II in or about the year 1966 they chose to wait for about 17 years to file these writ petitions which were filed in 1983, and nearly 2 years even after the decision dated February 2, 1981 in Civil Appeal No.441 of 1981, which indicates that but for the decision in Civil Appeal No.441 of 1981 they would perhaps not have thought of filing these writ petitions inasmuch as in the meantime they had not only been promoted in the normal course as Chargeman II but some
of them had been promoted even to higher posts in the hierarchy."
11. In Union of India and Ors. v. K.V. Jankiraman & Ors. 1991(3) S.C.T 317 : (1991) 4 SCC 109, this issue came up for consideration namely whether the Government could deny the benefit of wages for the past period if he was granted promotion subsequently but from back date. Union of India had contended that a person cannot be allowed to draw benefits of a post the duties of which he had not discharged. This contention was negated as not applicable where an employee, who is willing to work, is kept away from work by the authorities for no fault of his. The Supreme Court observed as under:- "24. It was further contended on their behalf that the normal rule is "no work no pay". Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged.
To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed under suspension, when, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly.
25. We are not much impressed by the contentions advanced on behalf of the authorities. 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. It is for this reason that F.R. 17 (1) will also be in applicable to such cases."
12. Issue again came up for consideration before the Supreme Court in the case of State of A.P. v. K.V.L. Narasimha Rao & Ors., 1999(2) S.C.T. 684 : (1999) 4 SCC 181. In this case also the court held that back wages are normally to be allowed in case of retrospective promotion. However, in the said case, the Court denied the benefit to the employee noting down the peculiar facts of this case in the following terms:- "5. In normal circumstances when the retrospective promotions are effected all benefits flowing therefrom, including monetary benefits, must be extended to an officer who has been denied promotion earlier.
However, on the reorganisation of States a large number of officers stood allotted from different States to the newlyformed State and their services had to be integrated on various principles and several agencies were involved in the same. The steps to be taken thereto were one of formulation of principles, publication of a provisional interState seniority list, inviting objections thereto, consideration of those objections in consultation with the Central Government and acting upon its directions to bring the seniority list in conformity with such directions. This entire exercise involved a good deal of time and gave rise to an extraordinary situation.
Hyderabad Civil Services Regulations have been framed. As a matter of fact, rules of the erstwhile State regarding seniority are not applicable in the new State as the allottees are governed by the Act and seniority is finalised therein. Even so, we do not see that there is any impediment to frame new rules affecting conditions of service of such allottees but in conformity with the Act. Surely new rules cannot be brushed aside by saying that they are not applicable to cases coming under the Act. There is no contention either in the High Court or before us that they are framed in contravention of the Act. In this background, we fail to see as to why the rules are not applicable to the respondents as held by the High Court."
13. Another judgment which needs to be mentioned is in the case of State of Haryana & Ors. v. O.P. Gupta & Ors., (1996) 7 SCC 533. The controversy involved in the said case was whether the employees were entitled to arrears of salary for the period for which they had admittedly not worked, but had been given notional promotion from the deemed date. The matter related to a seniority dispute where fresh seniority list was directed to be prepared in accordance with rules ignoring any inconsistent administrative instructions. The Supreme Court held that entitlement of the employees to work arose only when they were promoted in accordance with rules and the preparation of seniority list was a condition precedent for the exercise. The employees could not be posted in the promotional post till the exercise was carried out and thus, their plea that they were willing to work had no legal foundation. The Court, thus, did not give these employees benefit of arrears of salary for the period they
had not worked. The case of K.V. Jankiraman (supra) was discussed and distinguished. We may, for our purpose, take note of the following observations in the said judgment:- "5. Shri Gupta, learned counsel appearing for the State, contended that the State was prepared to comply with the direction issued by the High Court in the first instance for the preparation of the seniority list but the rival candidates who claimed inter se seniority over the others approached the Division Bench and also this Court for relief; since, ultimately, this Court has decided that seniority has to be prepared strictly in accordance with Rule 9 of the Rules, on receipt thereof, the Government has complied with the conditions of the preparation of the seniority list.
Accordingly, they have been given the promotion with the deemed dates, though there was no specific direction in that behalf. Others who had joined the service have not claimed, except the respondents, but some of them were not even parties to the earlier writ proceedings or to the appeal in this Court and consequently, they are not entitled to the arrears. It is contended by Shri S.M. Hooda, learned counsel appearing for the respondents that the respondents were willing to work in the respective posts but they were not given the same. To avoid their entitlement, a seniority list was wrongly prepared denying them their entitlement to work in the promotional post; consequently, the respondents are entitled to the arrears of salary and the High Court was right in granting the same."
14. We may also refer to two more judgments having some relevance. These cases are:-
1. Union of India & Ors. v. Rejinder Singh Rawat,(1999) 9 SCC 173.
2. State of Uttaranchal and Another v.
Dinesh Kumar Sharma, 2007(1) S.C.T. 393 :
2007 1 SCC 683.
In the first case mentioned above, namely, Rejender Singh Rawat (supra), the Court granted the relief in the following context:- "2. The short question that arises for consideration is whether the High Court was justified in granting relief of payment of back wages to the respondent for the period he has not actually served. There is no dispute that the respondent's case was omitted from consideration on the ground that his chest was short by 2 cm. and as such he did not have the necessary physical standard, but, similar departmental candidates were considered and got the relief.
The respondent' case was, therefore, appropriately considered by the appropriate authority and by letter dated 2112-1995, it was conveyed that the respondent would be entitled to the rank of Assistant SubInspector (Clerk/Typist) from 3-8-1992 the date on which panel of 1992 was released, with the further direction that his seniority would be protected on a notional basis, but he would not be entitled to any pay and allowances of Assistant Sub-Inspector (Clerk/Typist) for the back period and would be entitled to the same only from the date he assumes the charge physically.
3. In the teeth of the aforesaid order, the High Court was not justified in granting the payment of back wages for the period for which the appellant has not actually assumed the charge. In the aforesaid premises, we set aside the impugned order of the High Court and allow this appeal. There shall be no order as to costs."
15. In Dinesh Kumar Sharma (supra), the Supreme
Court was concerned with the issue for consideration as to whether seniority should be given to incumbents from the date when promotional fell vacant or from the date of his substantive appointment to the said vacant post. The Court held that the seniority could not be given retrospectively from the date of occurrence of vacancy. This case, therefore, would not provide much assistance in dealing with the issue at hand.
16. We find from the aforesaid discussion that at times Supreme Court has granted the relief whereas on some other occasions, the arrears of salary for the period prior to the date of actual assumption of promotional post are denied. However, a closure scrutiny of the facts in each case would clearly reveal a discerning trend and there is no contradiction as far as principle of law laid down in various judgments is concerned.
17. The principle which can be deduced is that if a promotion is denied to an employee because of the mistake of the administration and due to no fault of the said employee, then the authorities are bound to pay the arrears of salary etc. upon giving him the benefit of retrospective promotion after realising that mistake. This principle would be extended even to those cases where due to sheer negligence, carelessness or on account of malafides an employer denies the benefit of promotion to the employee at a proper time when it becomes due and gives him afterwards though retrospectively. (Also see State of Kerala and Others v. E.K. Bhaskaran Pillai, JT 2007 (6) SC 83; Mohd. Ahmed v. Nizam Sugar Factory and Others - (2004) 11 SCC 210; Nalini Kant Sinha v. State of Bihar and Others - 1993 Supp (4) SCC 748. On the other hand, where there is genuine dispute and the promotion was
delayed because of pendency of such a dispute and before the settlement of the dispute the promotion could not have been granted, the salary for the past period can be denied even when promotion is given retrospectively after the resolution of the dispute. Further the benefit of arrears of salary for past period can also be denied if it is found that it was not fault or mistake of the administration because of which the promotion was delayed.
18. In those cases where concerned employees seniors as well as juniors are granted the benefit of promotion and the salary for the period in question, same should invariably be given to such an employee who is given belated promotion retrospectively as non grant of arrears of pay and allowances of the higher post for the relevant period, in such circumstances, would amount to hostile discrimination.
19. Keeping in view the principles we have formulated above which are culled out above from the catena of judgments, we have to find the outcome to the present case. The facts of the case have already been noticed above. It is clear there from that the appellant was not promoted earlier, when his juniors were promoted because of the departmental enquiries pending against him. No doubt, these enquiry proceedings have been dropped on the ground of delay. We were shown the original record containing this decision. The reason given is that there is a 14 years delay in conducting the enquiry which would act to the prejudice of the appellant if the inquiries continue. Once that fact is accepted by the Department itself and on that basis the enquiries were dropped, the net effect thereof would be that the appellant was exonerated of the charges. As no penalty has
emanated from these charge-sheets, it is for this reason the respondents have themselves given him the promotion from back date. In such circumstances, denial of actual salary and grant of only deemed promotion on the principle of `no work no pay' may not be appropriate. Admittedly, the juniors who were granted the benefit of promotion received the salary and if the appellant is deprived thereof, it would amount to hostile discrimination qua him. We are, therefore, of the opinion that the principle of `no work no pay' cannot be made applicable in the instant case and the appellant would be entitled to salary. There is a Division Bench judgment of this Court in case Vidya Parkash Harnal v. State of Haryana 1995(3) S.C.T. 785 which is squarely applicable in the present case.
The Court negated the argument predicated on the basis of principle of `no work no pay' which is to the following effect:- "7. Similarly, the argument that the petitioner was not entitled to the grant of emoluments on the principle of `No work No pay' is apparently mis-conceived and based upon wrong notions of law. If a civil servant is not offered the work to which he was legally entitled, he cannot be deprived of the wages for the post to which he subsequently is held entitled to. Permitting such a course to be adopted would be encouraging the imposition of double penalty, that is, firstly by declining the civil servant his right of promotion and secondly by depriving him of the emoluments to which he would have been entitled to upon promotion which subsequently is considered in his favour.
the emoluments to which he was entitled, had he been promoted in accordance with the rules at the time when he became eligible for such promotion. The Courts cannot ignore the magnitude of the sufferings and the pains to which a civil servant is subjected on account of deprivation of the monetary benefits particularly in this age of skyrocketing prices and non availability of essential requirements of livelihood. The Court cannot shut its eyes and forget the holocaust of economic deprivation to the petitioner and his dependants. Such a deprivation might have upset the career of the dependants, depriving the society of the services of such youth and budding dependants or children of the petitioner.
The executive once being satisfied that a civil servant was entitled to the promotion with retrospective effect cannot deprive him of the benefits of salary accruing on account of such promotion from an early date without assigning valid, cogent and specific reasons. The order impugned in this case by which the petitioner/appellant was deprived of his right to claim back wages is admittedly non-speaking without assigning any justification or cogent and specific reasons."
We thus allow this appeal and set aside the impugned order. Accordingly, the writ petition filed by the petitioner stands allowed. As a consequence, the appellant shall be entitled to the arrears of pay and allowances as well from 05.07.1994 to 31.01.2006 as Divisional Employment Officer and from 01.02.2006 to 09.04.2008 as Deputy Director (Employment). The arrears shall be calculated and paid to him within a period of one month from today."
11.
Further, the said judgment has been upheld in LPA
No.1910 of 2024, titled as "The Commissioner, Municipal Corporation, S.A.S. Nagar vs Sanjeevan Singh and others", decided on 20.08.2024. The operative part of the said judgment, reads as follows:- "8. In our considered opinion, learned Single Bench has correctly referred to and relied upon various judgments as discussed in para 7 of impugned order. Reference was gainfully made to judgment of Division Bench of this Court in Satyavir Singh Shekhawat versus State of Haryana and others, 2014 (4) SCT 233 wherein reference had been made to various judgments of Hon'ble the Supreme Court including Union of India versus K.V. Jankiraman and ors. 1991(4) SCC 109, State of AP versus K. Narasimha Rao and ors. (1999) 4 SCC 181, State of Haryana and ors. versus O.P. Gupta & ors. (1996) 7 SCC 533, Union of India & Ors. versus Rejinder Singh Rawat (1999) 9 SCC 173, State of Uttaranchal and another versus Dinesh Kumar Sharma 2007 (1) SCC 683.
9. It was concluded in the case of Satyavir Singh Shekhawat (supra) that:
"in those cases where concerned employees seniors as well as juniors are granted the benefit of promotion and the salary for the period in question, same should invariably be given to such an employee who is given belated promotion retrospectively as non grant of arrears of pay and allowances of higher post for the relevant period, in such circumstances, would amount to hostile discrimination".
12.
Applying the abovesaid principle to the present case, admittedly, on the due date of promotion i.e. 30.06.2014, nothing
adverse against the petitioner has been pointed out and even the respondent - Department has granted retrospective promotion to the petitioner w.e.f. 30.06.2014, therefore, he cannot be denied the benefit of arrears of pay for the said period.
13.
In view of what has been discussed hereinbefore, the present petition is allowed and the action of the respondents in denying the arrears of pay to the petitioner on the promoted post is held illegal and arbitrary and he is held entitled for grant of the same, with all consequential benefits. The necessary benefits shall be released to the petitioner, within a period of three months, from the date of receipt of certified copy of this order.
(NAMIT KUMAR) 25.10.2024 JUDGE yakub Whether speaking/reasoned:
Yes/No Whether reportable:
Yes/No