As per case facts, the Petitioner, Manphul Singh Saini, initially appointed as a Clerk in 1967 and later regularized, served for 41 years until superannuation in 2008. He was denied ...
No Acts & Articles mentioned in this case
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
242
CWP-7965-2021 (O&M)
Date of decision: 24.03.2025
Manphul Singh Saini ...Petitioner
VERSUS
State of Haryana and others ...Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
Present :- Mr. Suresh Ahlawat, Advocate for the petitioner(s).
Mr. Tapan Kumar, DAG Haryana.
*****
VINOD S. BHARDWAJ, J. (Oral)
1. Prayer in the instant writ petition is for directing the
respondents to pay the difference of salary between the accrual drawn and
deemed date of promotion as Sub-Divisional Clerk (S.D.C.), Accounts Clerk
and Deputy Superintendent w.e.f. 04.03.1975, 07.09.1979 and 24.11.1995
respectively along with all consequential benefits with interest @ 18% per
annum.
2. Learned Counsel appearing on behalf of the petitioner contends
that the petitioner was initially appointed as a Clerk on 14.03.1967 on Adhoc
basis and later on, he was regularly selected by the erstwhile S.S.S. Board
vide letter No.2R-01-01-1971 dated 12.08.1971 and he joined the same
Department on the same post. The petitioner served the department for a
period of 41 years with an unblemished record of service and worked to the
complete satisfaction of his superiors till his superannuation on 31.01.2008.
He contends that at the time of joining the respondent/department, his
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services were governed by the erstwhile PWD (I.B.) Circle Clerical
Establishment Rules, 1955. Prescribed passing of the departmental exam
before further promotion from Clerk to S.D.C. which was successfully
cleared in the month of December-1972. In the year 1975, when the
promotions were made from Clerk to the post of S.D.C., the petitioner was
however not promoted despite being fully eligible, for the reasons best
known to the respondents, even though his juniors were promoted to the said
post. Numerous representations were submitted by the petitioner but all in
vain. Thereafter, in the year 1979, the same juniors were further promoted
to the post of Accounts Clerk from S.D.C. and eventually to the post of
Deputy Superintendent but the claim of the petitioner was yet again ignored.
The petitioner submitted a complaint before the Lokayukta as well as before
other Forums whereupon the authorities were directed to conduct an inquiry
into the matter. It was thus noticed that the Superintending Engineer (S.E.),
Jind mis-pleaded and wrongly recommended the case of juniors by
concealing the record of the petitioner. The respondents thus acceded to the
request of the petitioner and granted him three deemed date of promotions
i.e. firstly as S.D.C. and thereafter as Accounts Clerk and Deputy
Superintendent w.e.f. the dates referred to in the preceding paras vide letter
dated 29.07.2019.
3. Learned counsel appearing on behalf of the petitioner contends
that even though the respondents have re-calculated the pensionary benefits
on the basis of deemed dates of promotion, however, the actual benefits
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242 CWP-7965-2021 (O&M)
from the date of deemed promotion had not been released. He contends that
an unsuccessful representation had been submitted by the petitioner for grant
of said benefits followed by a legal notice through his counsel on 12.03.2021
to implement the letter dated 29.07.2019 but no decision was taken, hence,
the instant writ petition has been filed.
4. He submits that the office noting attached as Annexure P-2,
received from the respondent-Department under the RTI Act, 2005, clearly
show that the violation was on the part of the Superintending Engineer
(S.E.), Jind and the petitioner cannot be put to a disadvantage for the same.
The petitioner was already prejudiced by denial of the benefits of an actual
promotion when his juniors were promoted and is being deprived yet again
of the actual benefits that would have accrued to him. Reliance is placed by
him on the judgment of this Court in the matter of ‘Jagjit Kumar Batra Vs.
State of Punjab and others’ reported as 2022 (3) SCT 348. Para 10 thereof
reads thus: -
“10. Further, Instructions (Annexure R-2/1) cannot be
pressed where the employee was ready and willing to perform
the duties and it is not a case where promotion of the petitioner
was denied by the respondent-Corporation under some
ambiguity. Where the fault of not promoting an eligible
employee is upon the respondent-Corporation, there
Instructions (Annexure R-2/1) cannot be put into operation so
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242 CWP-7965-2021 (O&M)
as to deny the arrears of the said promoted post of Accounts
Officer with retrospective effect to the petitioner.”
5. Reliance is also placed on the judgment passed by this Court in
the matter of ‘Sunder Dass Vs. Haryana Power Generation Corporation
Ltd. and another’ reported as 2012 (3) SCT 397. Relevant paras thereof
read thus:
“12. Articles 14 and 16 of the Constitution of India mandate
equality before law as also equality of opportunity in matters of
public employment. The petitioner is vested with a right of a
fair consideration as regards promotion is concerned. There is
not even a whisper as regards any adverse service record of the
petitioner and neither has such a plea been raised by the
HPGCL either in the pleadings or at the time of hearing. Under
such circumstances, the petitioner is clearly vested with a right
to seek promotion to the post of Deputy Superintendent w.e.f.
4.4.2002 and to the post of Superintendent w.e.f. 8.8.2005.
13. For the reasons recorded hereinabove, the order dated
13.3.2007 (Annexure P7) is set aside to the extent it confers the
benefit of promotion to the petitioner on the post of Deputy
Superintendent only with immediate effect. The petitioner is,
accordingly, held entitled to a notional promotion to the post of
Deputy Superintendent w.e.f. 4.4.2002. Consequently, he is also
entitled to a notional promotion to the post of Superintendent
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w.e.f. 8.8.2005. The petitioner is also held entitled to all
consequential benefits. Since the petitioner has retired on
30.6.2007 upon attaining the age of superannuation, it is
further directed that the revised retiral benefits be also released
to him within a period of three months from the date of receipt
of a certified copy of this order.”
6. Reliance is also placed on the judgment passed by this Court in
the matter of ‘Sheelawanti Vs. HVPNL and others’ reported as 2017(3)
SCT 36 to contend that the financial benefits on account of retrospective
promotion cannot be denied solely on the ground that he had actually not
worked when the fault was entirely on the part of the respondent-Department
and the junior persons were granted extra pay while a senior person has been
declined the same benefits. The relevant extract thereof reads thus:
“2. Brief facts are that husband of the petitioner joined the
services of the erstwhile Haryana State Electricity Board on
7.3.1980. His services were terminated on 16.10.1992. He
challenged the same by filing a civil suit which was decreed on
21.4.1997 and his termination order was set aside and the
respondents were directed to give all consequential benefits to
him. Ultimately, that decree was maintained upto the Supreme
Court. However, on the same charges, he was again charge
sheeted and he challenged the same by way of CWP No.15771
of 2002 which was allowed on 25.8.2003 and that charge sheet
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242 CWP-7965-2021 (O&M)
was quashed. During this interregnum, services of number of
employees junior to the husband of the petitioner were
regularized. Ultimately, husband of the petitioner filed a civil
suit claiming regularization from the date services of his
juniors were regularized. That civil suit was dismissed on
5.2.2009. He filed first appeal but died during the pendency
thereof. Ultimately that claim was allowed by the respondents
during the pendency of RSA No.1315 of 2011 and in judgment
dated 3.2.2014, it was held as follows :-
" Faced with the above, learned counsel for the
appellant-plaintiff also fairly states that in view of the
above said order passed by the competent authority, he
does not intend to press this appeal any further and the
same may be disposed of as having been rendered
infructuous. However, he submits that liberty may be
granted to the plaintiff-appellant to pursue her other
remedies, in accordance with law. This request has not
been opposed by the learned counsel for the respondents.
In view of the above said statements made by learned
counsel for the parties, liberty sought by the appellant is
granted. Appeal stands disposed of accordingly."
Subsequent to this, the husband of the petitioner moved a
representation dated 3.2.2014 claiming that, among other
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242 CWP-7965-2021 (O&M)
reliefs, he was also entitled to be promoted from the date his
junior was promoted. By the impugned order, as mentioned
above, all other prayers were accepted and as regards the date
of promotion that was also given to him but only notional
benefits thereof were given. By the present writ petition, the
petitioner claims that the actual benefits of the posts of
Assistant Forman and Junior Engineer had also to be granted
to her husband, in view of the above facts.
3. The only justification given for the refusal, by learned
AAG Haryana, is that the husband of the petitioner had not
actually worked on that post. It cannot be lost sight of the fact
that as a result of the fault of the respondents, a person junior
has been granted extra pay while a senior person has been
declined the same benefit on the ground that she has not
worked on the said post. The premise on which reliance is
sought to be placed by the State is extremely one sided and self
serving. In Ramesh Kumar v. Union of India and others, AIR
2015 SC 2904, the Supreme Court held as follows :-
"11. The respondents have advanced the argument that
the denial of pay and allowances is on the principle of
"no work no pay" and no injustice has been done to the
appellant since he has not actually worked in the
promotional post of Naib Subedar during the aforesaid
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period. It was submitted that the benefit of pay and
allowances was rightly awarded w.e.f. 13.11.2000, the
date on which the appellant actually assumed the rank of
Naib Subedar but his seniority was maintained so as to
protect his interest in his further promotions.
12. In normal circumstances when retrospective
promotions are effected, all benefits flowing therefrom,
including monetary benefits, must be extended to an
employee who has been denied promotion earlier. So far
as monetary benefits with regard to retrospective
promotion is concerned that depends upon case to case.
In State of Kerala & Ors. vs. E.K. Bhaskaran Pillai,
(2007) 6 SCC 524, this Court held that the principle of
"no work no pay" cannot be accepted as a rule of thumb
and the matter will have to be considered on a case to
case basis and in
para (4), it was held as under:-
`... We have considered the decisions cited on behalf of
both the sides. So far as the situation with regard to
monetary benefits with retrospective promotion is
concerned, that depends upon case to case. There are
various facets which have to be considered. Sometimes in
a case of departmental enquiry or in criminal case it
depends on the authorities to grant full back wages or 50
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242 CWP-7965-2021 (O&M)
per cent of back wages looking to the nature of
delinquency involved in the matter or in criminal cases
where the incumbent has been acquitted by giving benefit
of doubt or full acquittal. Sometimes in the matter when
the person is superseded and he has challenged the same
before court or tribunal and he succeeds in that and
direction is given for reconsideration of his case from the
date persons junior to him were appointed, in that
case the court may grant sometimes full benefits with
retrospective effect and sometimes it may not.
Particularly when the administration has wrongly denied
his due then in that case he should be given full benefits
including monetary benefit subject to there being any
change in law or some other supervening factors.
However, it is very difficult to set down any hard-and-
fast rule. The principle "no work no pay" cannot be
accepted as a rule of thumb. There are exceptions where
courts have granted monetary benefits also.'
13. We are conscious that even in the absence of
statutory provision, normal rule is "no work no pay". In
appropriate cases, a court of law may take into account
all the facts in their entirety and pass an appropriate
order in consonance with law. The principle of "no work
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242 CWP-7965-2021 (O&M)
no pay" would not be attracted where the respondents
were in fault in not considering the case of the appellant
for promotion and not allowing the appellant to work on
a post of Naib Subedar carrying higher pay scale. In the
facts of the present case when the appellant was granted
promotion w.e.f. 01.01.2000 with the ante-dated seniority
from 01.08.1997 and maintaining his seniority along with
his batchmates, it would be unjust to deny him higher pay
and allowances in the promotional position of Naib
Subedar."
4. In my opinion, facts of the present case are covered by
the aforesaid decision. Consequently, I allow this writ petition. The
respondents are directed to pay the entire arrears within three months from
the date of receipt of a certified copy of this order. In case the amount is not
paid within the stipulated period, the respondents would be liable to pay the
amount with interest @ 12% pa from the date/s the amount/s fell due.”
7. Reference is also made to the judgment passed by this Court in
the matter of ‘Gian Singh Vs. State of Punjab and others’ reported as
2010 (4) SCT 726 wherein a similar proposition of law was laid down.
8. Learned State counsel contends that the benefits of actual salary
w.e.f. the deemed date of promotion to the actual date of promotion cannot
be been extended to the petitioner since he has not actually worked against
the said post and that the notional benefits already stand released to him. It
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242 CWP-7965-2021 (O&M)
is further submitted that the petitioner had actually worked on the post of
S.D.C. w.e.f. 04.03.1975 and no other order for further promotion from the
post of S.D.C. had ever been issued thereafter up to his date of
superannuation. He was thus continuously paid the salary as applicable to
the post of S.D.C. w.e.f. 04.03.1975 till the date of his retirement i.e. till
31.01.2008. It is contended that on account of ‘no work no pay’, the actual
benefits of promotion to the post of Accounts Clerk and Dy. Superintendent
cannot be disbursed to the petitioner. He does not dispute the order granting
notional benefits to the petitioner; however, it is contended that the
petitioner himself was not willing to take further promotion as Accounts
Clerk and had submitted his unwillingness to accept the promotion on
05.07.1995. Thereafter, his ACP was seized whereupon he accepted the
promotion from SDC to Accounts Clerk on 10.01.1998. However, after
grant of ACP scale, he again gave up his promotion from the post of SDC to
Accounts Clerk vide his undertaking dated 17.11.1998. It is thus contended
that it was not a case where the promotion had wrongly not been extended to
the petitioner, rather he himself voluntarily gave up his further promotion to
the post of Accounts Clerk twice, hence, it was not possible to further
promote him as Dy. Superintendent at that time. It is thus not a case of
petitioner having been left out for promotion as Dy. Superintendent and
rather the lapse is attributable solely to the petitioner and is his own making.
Once, he was offered actual promotion to the said post and he having chosen
not to work, he cannot contend that he was unfairly denied the opportunity
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242 CWP-7965-2021 (O&M)
to work on the said post due to lapses committed by the respondents. He thus
cannot claim disbursement of actual benefits.
9. Learned State counsel places reliance on the judgment passed
by this Court in the matter of ‘Ram Murti Sharma Vs. Punjabi
University, Patiala and others’ reported as 2020 (1) SCT 422, where the
arrears had been denied on the ground of ‘No Work No Pay’, since the
retrospective promotion was granted on notional basis due to change in
seniority. The operative part thereof reads thus:-
“17. In Virender Kumar, General Manager, Northern
Railways, New Delhi Vs. Avinash Chandra Chadha and
others, 1990 (3) SCC 472, the Hon'ble Supreme Court held that
there is neither equity nor justice in favour of employees to
award them emoluments of higher posts with retrospective
effect when the employees did not work on the said post.
Hon'ble Supreme Court further held that no work no pay
principle is attracted where the employees have not worked on
a higher post, but have only been granted retrospective
promotion/appointment.
xxxx
19. Even the Division Bench of this Court in Prem Kumar
Chauhan Vs. Punjab State Electricity Board and others, 2008
(4) SLR 635, after considering the law on the grant of arrears
on retrospective promotion, has held that consequential
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benefits cannot be claimed as a matter of right on getting
retrospective promotion/appointment. The relevant part of the
said judgment is as under:
"In Union of India v. K.V. Janakiraman (1991) 4 SCC
109, it was held that where an employee is completely
exonerated and gets promotion under a sealed cover
procedure, he was entitled to consequential benefits of
promotion. However, in Telecommunication Engineering
Services Association and (India) another v. Union of
India and another 1994 Supp. (2) SCC 222, the said
judgment was distinguished and it was held that where
due date of promotion on revision of seniority was given
as a result of decision of Court and notional promotion
was given with retrospective effect, consequential
benefits did not automatically follow. In Varinder Kumar
& ors. v. Avinash Chandra Chadha & ors. AIR 1991 SC
958, it was held that where promotion is given on the
basis of quota and rota rule and a date of deemed
appointment is given with retrospective effect,
consequential benefits did not follow. In Paluru
Ramkrishnaiah and others v. Union of India and
another AIR 1990 SC 166, it was held that where an
employee did not work on promotional basis, he could
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not claim consequential benefits on getting retrospective
date of promotion.
xxxxxxxxxxxxx
4. In State of Kerala and others v. E.K. Bhaskaran
Pillai (2007) 6 SCC 524, it was observed that no hard
and fast rule could be laid down about denying
consequential benefits on the principle of no work no
pay. There are exceptions when the Courts have granted
monetary benefits also. Where a person is wrongly
denied his due, full benefits may be given."”
10. Responding to the above, learned counsel appearing on behalf
of the petitioner contends that the petitioner had forgone his promotion
because the due entitlement was not extended to him at the time when due
and the respondents kept him at a lower grade than his juniors. Hence, the
petitioner was not at fault in forgoing his promotion. He stated that the
respondents having acknowledged their lapses and faults, granted the
notional benefits to the petitioners by revising the pension and other
financial benefits but the actual benefits too ought to have been released in
his favour.
11. Neither any other argument has been raised nor any other
judgment has been cited by the respective parties.
12. I have heard the learned counsel appearing on behalf of the
respective parties and have gone through the documents appended alongwith
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the instant petition, with their able assistance.
13. The respondents although acknowledged during departmental
proceedings that the petitioner was senior to certain persons who had been
granted promotion prior in point of time to him, it is also noteworthy that the
respondent-Department had initiated the process of actual promotion of the
petitioner from the post of S.D.C. to Accounts Clerk. The admissible
benefits against the post of S.D.C w.e.f. 04.03.1975 had been disbursed to
him from the said date upto his superannuation and the dispute, pertains only
to the subsequent promotions to the post of Accounts Clerk and thereafter as
Dy. Superintendent. The petitioner claims that he was entitled to be
promoted as Accounts Clerk on 07.09.1979 i.e. the date on which his juniors
were promoted and to the post of Dy. Superintendent on 24.11.1995,
however, there is no denial of the facts pleaded in the written statement and
emphatically argued by the respondent-State that at the time when the
respondent-State passed orders of promotion of the petitioner to the post of
Accounts Clerk, he gave up his promotion. Since the benefit of ACP was
stopped, on the petitioner forgoing his promotion to the post of Accounts
Clerk, he accepted the said promotion on 10.01.1998 and thereafter, again
gave it up alongwith an undertaking dated 17.11.1998. The promotional
avenue for promotion to the post of Dy. Superintendent mandated having
worked as an Accounts Clerk and since the petitioner chose to give up his
promotion as Accounts Clerk, he was not eligible to be promoted to the post
of Dy. Superintendent on actual basis.
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242 CWP-7965-2021 (O&M)
14. The aforesaid factual aspects averred in the reply on merits
have not been controverted by the petitioner by filing any
replication/rejoinder, hence, the said factual aspects remain uncontroverted.
Undisputedly, the petitioner had been given actual benefits to the post of
S.D.C. w.e.f. 04.03.1975 but his grievance remains that he was not promoted
to the post of Accounts Clerk on 07.09.1979. Significantly, when the
respondents passed the order of promotion to the post of Accounts Clerk, the
petitioner gave up his promotion order and relinquished the same even on
the second occasion. Even though the petitioner contends that he gave up
the said promotion because the juniors had earlier been granted the next
higher promotion, however, I find that such an argument defies all logic.
There was no occasion for an employee to give up his promotion merely
because juniors had been granted higher promotion. Had the petitioner taken
up the said promotion and worked on the said post, he may have still
objected against the promotion being denied to him, however, he chose not
to raise any dispute about the denial of promotion to him even till his
retirement. Although the petitioner claims that he had submitted certain
representations, however, a perusal of the information obtained by the
petitioner under the RTI Act makes a reference only of a representation of
17.07.2019. A mere general assertion has been made that the petitioner had
submitted numerous representations, however, no detail of any nature and in
any manner has been furnished in any of the pleadings or any proof from the
official communication as to whether any such representation was submitted
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242 CWP-7965-2021 (O&M)
by the petitioner against being denied the benefits accrued in his favour.
The only first recorded representation established to have been submitted by
the petitioner pertains to 17.07.2019 i.e. after more than 11 ½ years of his
superannuation.
15. The totality of circumstances reflects that it was seemingly a
case where the petitioner had voluntarily opted to forgo his promotion to the
post of Accounts Clerk and not accept the same even at a belated stage. It
reflects that the petitioner actually did not wish to seek his promotion to the
next higher post and instead intended to work on the post of Sub-Divisional
Clerk (S.D.C.) only. The undertaking submitted by the petitioner on
05.07.1995 and 17.11.1998, which have been appended alongwith the
present writ petition also shows that no grievance had been espoused by the
petitioner even therein that he had been denied or deprived of any promotion
by the authorities or that he did not accept the promotion in protest against
not being given his rights. The communication rather shows that a voluntary
option was exercised by the petitioner in not accepting the promotion to the
post of Accounts Clerk and forgo the same. Hence, it stands established that
the petitioner never actually intended to seek the benefit of promotion at that
stage and is claiming the same after a lapse of more than 11 ½ years after his
superannuation.
16. The denial of an actual promotion hence cannot be said to be
entirely attributable to the respondent-authorities themselves. The
contemporaneous act and conduct of the petitioner rather substantiates the
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submission of the respondents that the petitioner was himself not willing to
accept the promotion.
17. Further, the judgments relied upon by the petitioner in support
of his case do not pertain to a situation where an employee had also chosen
to forgo his promotion when offered on two separate occasions and yet the
High Court chose to grant the benefit of an actual disbursement of the
financial benefits in those cases. Hence, the said judgments are not
applicable to the facts of the present case.
18. An employee cannot plead victimization and unfair denial of
promotion once he has himself opted to forego his promotion. It cannot thus
be said that the petitioner was always ready and willing to discharge duties
against the promotional post and was deterred from doing so due to acts
attributable to the employer. Where the same is not established, the settled
legal maxim ‘no work no pay’ shall set in and the actual benefits for the said
period may be denied to such employee.
19. Taking into consideration the totality of circumstances as well
as the conduct of the petitioner about forgoing his promotion, I find that the
claim for release of actual benefits from retrospective dates is not only
highly belated at this stage but it is also due to acts attributable to the
petitioner himself.
20. The present writ petition is accordingly dismissed.
21. At this stage, learned counsel appearing on behalf of the
petitioner contends that the respondents have released even the notional
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benefits of revised pension and other such benefits in July-2022 even though
the respondents acknowledged their lapse in the year 2019 itself, hence, he
may be granted the compensatory interest in lieu thereof.
22. Learned State counsel submits that as no prayer has been made
in the present petition in this regard, hence, in the event of the petitioner
submitting a claim to the respondents, a decision shall be taken thereupon.
However, I find that relegating the petitioner for such a limited relief for a
fresh round of litigation would not serve any interest of justice. I, therefore,
deem it appropriate to direct the respondent to award interest @ 6% per
annum to be calculated, after an expiry of period of three months from the
date of submission of representation i.e. 17.07.2019 by the petitioner till
disbursement of the revised pensionary benefits within a period of three
months of receipt of a certified copy of this order, failing which, the
petitioner shall be held entitled to the interest @9% per annum for the period
thereafter, which such additional financial liability may be recovered by the
Government from the erring official.
(VINOD S. BHARDWAJ)
24.03.2025 JUDGE
Mangal Singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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