AI Structured Summary
Not yet generated for this judgment
Judgment
NAMIT KUMAR, J. (ORAL)
Instant writ petition has been filed under Article 226 of the Constitution of India seeking following reliefs: -
i)Writ of Certiorari for quashing part of the impugned order dated 16.01.2018 (Annexure P-4), whereby arrear of salary was denied to the petitioner on retrospective promotion w.e.f. 01.05.2010 and the impugned order dated 15.02.2019 (Annexure P-9) passed by respondent No.3, whereby promotion was denied to him at par with his junior S/Sh. Ashok Kumar and Hans Raj.
ii) Writ of Mandamus directing the respondents to grant salary to the petitioner from the date when he was given promotion as A.S.I. (Executive Clerk) w.e.f. 01.05.2010 and further grant him promotion as S.I. from 28.07.2011; as Inspector from 23.09.2014 i.e. the date when his juniors, namely, Inspector Ashok Kumar No.1989/Jalandhar and A.S.I. Hans Raj (further promoted as S.I. on 07.08.2014) were promoted by modifying the order of his promotion and grant him all consequential benefits as S.I. (Assistant Head Clerk) and further as Inspector.
At the outset, learned counsel for the petitioner gives up his prayer No.(ii) and restricts the present petition only qua the relief claimed under clause (i).
Briefly stated, the facts of the case are that the petitioner was initially appointed as Executive Clerk/Constable on 09.12.1981 and thereafter, he was promoted as Head Constable in the month of April, 1988. He was due to retire on 31.10.2019 on attaining the age of superannuation of 58 years, however, he was given extension for one year upto 31.10.2020, vide order dated 09.08.2019 (Annexure P-1). Earlier, he was issued chargesheet dated 07.05.2008, on the allegations that one Inspector Jagir Singh had been paid interest of Rs.62,300/- on account of delayed release of his retiral benefits. But the enquiry officer exonerated him and the said report was accepted by the Senior Superintendent of Police, Hoshiarpur, being the competent authority vide order dated 17.10.2008. Thereafter, he was served with second chargesheet dated 15.10.2009 and enquiry was conducted and the enquiry officer exonerated him in his enquiry report, which was accepted by the competent authority, vide order dated 11.06.2010. However, the first order of dropping enquiry proceedings against the petitioner was set aside by the then Deputy Inspector General of Police, Jalandhar Range, Jalandhar, vide order dated 06.08.2010 and vide letter dated 30.09.2010, de novo enquiry was directed to be initiated against him and during this period, the case of the petitioner for promotion to the post of A.S.I. (Assistant Head Clerk) w.e.f. 01.05.2010 was kept pending, vide office order dated 29.07.2010 (Annexure P-2), whereby juniors to him, namely, Ashok Kumar 1989/Jal and H.C. Hans Raj 238/HPR were promoted as officiating A.S.I. (Assistant Head Clerk).
The petitioner challenged the orders dated 06.08.2010 and 30.09.2010, by filing CWP-401 of 2011 – “Baljit Singh v. State of Punjab and others”, which was allowed by this Court, vide order dated 27.10.2017 (Annexure P-3), and the orders dated 06.08.2010 and 30.09.2010 were quashed and he was held entitled for other service benefits. In compliance with the order of this Court, the petitioner was promoted as officiating A.S.I. (Assistant Head Clerk), vide order dated 16.01.2018 (Annexure P-4) w.e.f. 01.05.2010 (notionally), the date from which his next junior, namely, Ashok Kumar 1989/Jal was promoted and it was also stated in the said order that the same shall be a notional promotion and he will not get any arrears from the date of notional promotion as per State Government instructions circulated vide DGP/Punjab, Chandigarh’s office endst No.890-1040/E-3 dated 14.01.1999. It was further stated in the said order that his promotion will take place from the date of joining, however, he will get the benefit of pay fixation w.e.f. 01.05.2010.
The petitioner is aggrieved against that part of the order dated 16.01.2018 (Annexure P-4), whereby he has been denied the actual benefits of arrears with effect from the date persons junior to him have been promoted.
Reply by way of affidavit of Raminder Singh, Superintendent of Police, Headquarter, Hoshiarpur, on behalf of respondents No.1 to 4 has been filed, wherein the said action has been sought to be justified by stating as under: -
“It is further submitted that in compliance with the Judgment dated 27.10.2017 passed by the Hon’ble Punjab and Haryana High Court in CWP No. 401 of 2011, a DPC was constituted by DIG/JRs office No. 409-13/JR-A-5 dated 04.01.2018 for promotion of HC Baljit Singh No. 1467/HPR (11/HPR) (Executive Clerk). Upon the recommendation of DPC constituted for the purpose, vide DIG/JRs office order No. 1762-67/JR-A-5 dated 16.01.2018, HC Baljit Singh No. 1467/HPR (11/HPR) (Executive Clerk) was promoted to the rank of offg. ASI (Asstt. Head Clerk) w.e.f. 01.05.2010 (Notional), the date from which his next junior HC Ashok Kumar No. 1989/Jal (Executive Clerk) was so promoted. ASI Ashok Kumar No. 1989/Jal was promoted to the rank of Sub-Inspector on out of turn basis under PPR 13.21, vide this office memo No. 8255/E-1 dated 28.07.2011, in recognition of extraordinary and outstanding services rendered by him. Further, his name was brought on promotion list 'F' and promoted to the rank of Inspector, vide this office memo No. 8334-35/E-1(1) dated 23.09.2014, under PPR 13.21, in recognition of extraordinary and outstanding services rendered by the official. As such, the petitioner cannot claim promotion/seniority in the rank of Sub-Inspector and Inspector at par with ASI Ashok Kumar No. 1989/Jal. ASI Hans Raj No. 238/HPR, the next junior of the petitioner HC Baljit Singh No. 1467/HPR (11/HPR) was promoted to the rank of adhoc Sub-Inspector vide this office endst No. 4905-09/E-1(3) dated 16.07.2014. In the Rules, there is no provision to grant adhoc promotions from back date. As such, HC Baljit Singh No. 1467/HPR (11/HPR) was granted adhoc promotion to the rank of Sub-Inspector w.e.f. 21.05.2018 vide this office memo No. 6259/E-1(3) dated 21.05.2018. A detailed speaking order dated 15.02.2019 (Annexure P-9) was issued.”
Learned counsel for the petitioner submits that once the petitioner has been promoted, vide order dated 16.01.2018 w.e.f. 01.05.2010, the date when his immediate junior was promoted, he is entitled for actual promotion from the said date and is entitled for pay and allowances for the period from 01.05.2010 to 16.01.2018. He further submits that promotion case of the petitioner was kept pending while his juniors were promoted, on account of reopening of the earlier disciplinary proceedings which already stood concluded and once the said orders have been set aside by this Court, vide order dated 27.10.2017 (Annexure P-3), the petitioner cannot be denied the arrears for the said period as the petitioner was willing to perform the duties of the higher post, however, the respondents did not allow him to perform the said duties as his case for promotion was kept pending. In support of the said contention, learned counsel for the petitioner has placed reliance on the judgment of this Court in Varinder Kumar Bhardwaj and another v. State of Haryana and others, 2016(2) SCT 41.
Per contra, learned State counsel while referring to the averments made in the reply, submits that since the petitioner did not perform the duties of the higher post, therefore, in terms of the instructions dated 14.01.1999, issued by the Director General of Police, Punjab, Chandigarh, he is not entitled for arrears for the intervening period.
I have heard learned counsel for the parties and perused the record.
The facts are not in dispute that the petitioner was due for promotion on 01.05.2010, when person junior to him, namely, Ashok Kumar 1989/Jal, was promoted, vide order dated 29.07.2010 w.e.f. 01.05.2010, and case of the petitioner for promotion was kept pending due to departmental enquiry pending against him. The said enquiry, which was already concluded in favour of the petitioner, was sought to be reopened vide order dated 06.08.2010 and 30.09.2010, which was challenged by the petitioner by way of filing CWP-401 of 2011 and the said orders have been set aside by this Court, vide order dated 27.10.2017 and the petitioner has been held entitled for service benefits which have been denied to him on account of passing of orders dated 06.08.2010 and 30.09.2010. In compliance to the said order, the petitioner has been promoted to the post of A.S.I. (Assistant Head Clerk) w.e.f. 01.05.2010, the date person junior to him was promoted, vide order dated 16.01.2018, however, on notional basis with further condition that he shall not be entitled for arrears from the notional date of promotion.
Similar issue has been considered by this Court in Varinder Kumar’s case (supra) and it has been held as under: -
“xx xx xx xx
5.It is unfortunate that differently-abled persons like the petitioners, who, as noticed above, are 100% blind, had to approach this Court three times for getting what was due to them. What necessitated them to approach this Court was a highly discriminatory and arbitrary action on the part of the respondents. Persons who were junior to the petitioners by 21 years and 07 years respectively, had been promoted in preference to the petitioners. Once through the order dated 23.11.2011, it was acknowledged by the respondents themselves that the petitioners were entitled to be promoted with effect from the date their juniors had been promoted against vacant posts, there is no reason in law or in fact to deny arrears to them. The petitioners were always willing to work on the promoted posts, but were kept away by the respondents for no fault on their part. In this regard, the following observations by the Apex Court in Union of India v. K.V. Jankiraman reported as AIR 1991 SC 2010 may usefully be referred to: -
"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 inapplicable to such cases."
6.In view of the above, the petitioners are held entitled to the grant of arrears with effect from the date they have been ordered to be promoted. The arrears, after calculation, be paid to them within two months from the date of receipt of a certified copy of the order.
7.The writ petition stands allowed in the above terms.”
While applying the ratio of the said judgment to the facts of the present case, the petitioner though has been promoted to the post of A.S.I. (Assistant Head Clerk) w.e.f. 01.05.2010, the date person junior to him has been promoted, cannot be denied the arrears of pay of the promoted post for the intervening period i.e. 01.05.2010 to 16.01.2018 as the principle of ‘no work no pay’ would not been applicable in the present case, as the petitioner was willing to perform the duties of the higher post, however, he was denied to perform the same as his case for promotion to the post of A.S.I. (Assistant Head Clerk) was kept pending due to pendency of disciplinary proceedings, which had already been culminated in favour of the petitioner.
Consequently, the present petition is partly allowed. Impugned order dated 16.01.2018 (Annexure P-4) is set aside to the extent it denies arrears of pay of the post of A.S.I. (Assistant Head Clerk) from 01.05.2010 to 16.01.2018 and the respondents are directed to grant the said arrears to the petitioner for the said period, within a period of three months from the date of receipt of certified copy of this order.