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Judgment
Nidhi Gupta, J.
Present Civil Writ Petition under Articles 226/227 of the Constitution of India has been filed by the petitioner for the issuance of a writ in the nature of mandamus for directing the respondents to fix the pay scale & Grade pay of the petitioner as applicable to the post of Assistant w.e.f. 12.10.2011 which is the deemed date of promotion of the petitioner from the post of Clerk to the post of Assistant in the respondent department; and thereby also to grant difference of pay scale & Grade alongwith other emoluments/financial benefits including annual increments to the petitioner between the time period of deemed date of promotion of the petitioner from the post of Clerk to Assistant i.e. 12.10.2011 to actual date of joining i.e. 23.04.2013, for the reasons delineated herein in the present petition and in the interest of justice and fair play; AND further this Hon'ble Court may please direct the respondents to pay interest @ 18% per annum on the above said arrears/financial benefits as well as to award suitable compensation or damages, in the interest of justice and fitness of things.
It is inter alia submitted by learned counsel for the petitioner that petitioner had joined the respondent Department as Clerk on 19.07.2006 on Ex-Gratia basis. On 21.05.2009, petitioner was transferred from his parent Department i.e. Haryana Irrigation Department, Panchkula to Bhakhra Beas Management Board (hereinafter referred to as ‘BBMB’) as Clerk against share quota of State of Haryana. Vide order dated 12.10.2011 (Annexure P-1), petitioner was promoted as Assistant. Vide order dated 17.01.2012 (Annexure P-2), it was informed that there was no vacant post of Assistant under the Administration; thus, petitioner cannot be adjusted after promotion. Petitioner had then submitted application dated nil (Annexure P-3) to the respondents for adjustment of petitioner as Assistant in O&M Division, BBMB. Vide letter dated 25.01.2012 (Annexure P-4), the Senior Executive Engineer recommended the respondents to adjust the petitioner as Assistant against the post of Head Clerk as the case of one Jogender Singh, Deputy Superintendent was under process for repatriation to his Parent Department. Consequentially vide order dated 22.04.2013 (Annexure P-5), petitioner was promoted as Assistant from deemed date of promotion i.e. 12.10.2011. Pursuant to the same, petitioner had joined as Assistant; and the same was communicated to the concerned vide letter dated 09.05.2013 (Annexure P-6). Thereafter vide letter dated 08.05.2013 (Annexure P-7), the Senior XEN had written to the Senior Accounts Officer, BBMB to fix the pay of the petitioner as Assistant from deemed date of promotion i.e. 12.10.2011. Vide another letter dated 08.05.2013 itself (Annexure P-8), the Senior XEN requested the Senior Accounts Officer, BBMB that annual increment of the petitioner is to be levied after 01.10.2012.
Learned counsel submits that grievance of the petitioner is that petitioner is not being granted admissible Grade Pay Scale from deemed date of promotion i.e. 12.10.2011; but is being granted the same from actual date of promotion i.e. 23.04.2013. Learned counsel submits that already petitioner was made to suffer by not promoting him on promotional post of Assistant by BBMB and to work on lower post of Clerk despite order of promotion being passed by Engineer-in-Chief at his Parent Department i.e. Haryana Irrigation Department on 12.10.2011. As such, great injustice has already been caused to the petitioner.
It is submitted that during this period of 18 months, petitioner has also been paid salary at lower scale and Pay Grade than that of Pay Band and Grade Pay payable to the post of Assistant. It is contended that once the petitioner had been granted promotion to the post of Assistant on 23.04.2013 from deemed date of promotion i.e. 12.10.2011 then petitioner is entitled to draw pay according to the Pay Scale and Grade Pay alongwith other benefits and emoluments applicable to the post of Assistant. However, despite the above admitted facts, petitioner has been granted Pay Scale and Grade Pay of Assistant only w.e.f. 24.03.2013 i.e. actual date of joining as Assistant. It is submitted that petitioner is duly entitled for the amount equal to difference between pay scale and Grade pay applicable to the post of Assistant and pay already drawn by the petitioner at Pay Scale to the post of Clerk from 12.10.2011 to 24.03.2013 alongwith other benefits including annual increments between such period.
Learned counsel for the petitioner further submits that petitioner has submitted various letters and representations to the Senior Officials and Accounts Officials of the Board, however to no avail. Petitioner had even served legal notice dated 19.05.2016 (Annexure P-9) upon the respondents. Even no reply has been received.
In support, learned counsel for the petitioner has relied upon para 25 of a judgment passed by a 3-Judge Bench of Hon’ble Supreme Court in Union of India v. K.V. Jankiraman, (SC) : Law Finder Doc Id # 43195; wherein it is held as follows:-
“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.”
It is accordingly prayed that the present Writ Petition be allowed; and following prayer be accepted: -
“issue of writ in the nature of mandamus for directing the respondents to fix the pay scale & Grade pay of the petitioner as applicable to the post of Assistant w.e.f. 12.10.2011 which is the deemed date of promotion of the petitioner from the post of Clerk to the post of Assistant in the respondent department and thereby also to grant difference of pay scale & Grade alongwith other emoluments/financial benefits including annual increments to the petitioner between the time period of deemed date of promotion of the petitioner from the post of Clerk to Assistant i.e. 12.10.2011 to actual date of joining i.e. 23.04.2013, in the interest of justice and fair play.”
Per contra, learned State Counsel has opposed submissions advanced on behalf of the petitioner and has pointed out that petitioner had joined in 2013 as Assistant only on account of the fact that petitioner had wanted a particular place of posting at Bhiwani. However, at the relevant time, there was no vacant post at Bhiwani. Thus, petitioner could only be adjusted in 2013. It is pointed out that petitioner has even accepted cash benefits in 2013. Therefore, there is no merit in the submissions of the petitioner and present Writ Petition deserves to be dismissed.
No other argument has been raised on behalf of learned counsel for the parties. I have heard learned counsel and perused the case file in detail. I find no merit in the submissions of the petitioner.
Perusal of the Affidavit dated 15.01.2018 filed by Executive Engineer (O&M) Division, BBMB Bhiwani shows that it is categorically stated therein that vide request letter dated nil (Annexure R-1), petitioner had himself made a request to the Senior Executive Engineer, (O&M), BBMB, Bhiwani seeking his adjustment in Bhiwani Division as Assistant. The said request letter of the petitioner was forwarded by Senior XEN to the Deputy Chief Engineer vide forwarding letter dated 11.08.2011 (Annexure R-2). The Deputy Chief Engineer had further forwarded request of the petitioner to Chief Engineer/Transmission System vide letter dated 12.08.2011 (Annexure R-3) despite the fact that there was no post of Assistant in O&M Division Bhiwani. However, taking a lenient view, the Senior XEN vide letter dated 16.11.2011 had again requested Deputy Chief Engineer to adjust the petitioner against some vacant post in another Division/Circle. However as there was no post of Assistant available, the Chief Engineer/Transmission System, BBMB, Chandigarh informed vide letter dated 17.01.2012 (Annexure R-4) that petitioner cannot be adjusted. Though this letter was got noted by the petitioner himself, yet petitioner submitted another Representation (Annexure R-5) requesting to adjust him in BBMB Bhiwani. This request of the petitioner was also further forwarded to higher office vide letter dated 25.01.2012 (Annexure R-6). Clearly, therefore, it was at the request of the petitioner himself that he had joined on post of Assistant in 2013.
Moreover, petitioner has concealed the true and material facts from this Court. Petitioner has placed on record a copy of the letter dated 8.5.2013 (Annexure P-8) pertaining to his revised pay fixation statement. However, in the said annexure produced by the petitioner, the last column has been left blank, and the very pertinent, and important remark has not been reproduced. The petitioner has not even attached a photocopy of the said Annexure P-8. The complete copy of said annexure has been brought on record by the respondents as Annexure R-7. The last column pertaining to ‘Remarks’, which has been omitted by the petitioner, reads as under: -
"DNI as on 01.10.13 Cash benefit w.e.f. 23.04.2013 i.e. actual date of joining as Assistant (H.O.)"
Thus, petitioner has omitted the abovesaid most relevant and significant words in Annexure P-8 for the reasons best known to him. The pay of the petitioner was notionally fixed from 12.10.2011 i.e. date of his promotion and the next increment was granted on 01.10.2012 and thereafter further on 01.10.2013.
No replication has been filed by the petitioner to the above said facts as stated in written statement. The same are therefore taken to be admitted as correct.
Further, petition can derive no benefit from the aforesaid relied upon judgment in K.V. Jankiraman (supra) as the same is distinguishable on facts and law.
Learned counsel for the petitioner is unable to controvert or dispute the above said facts and findings.
Keeping in view the above factual and legal position, the present Writ Petition stands dismissed.
Pending application(s) if any also stand(s) disposed of.