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Himachal Pradesh High Court · body

2009 DIGILAW 105 (HP)

SUSHILA THAKUR v. STATE OF H. P.

2009-03-04

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, Judge (Oral):- Mr. Ashwani Sharma submits that his client was fully eligible and qualified for promotion to the post of Matron in the year 1980. However, she was not considered for promotion to the post of Matron. He further submits that his client had also become eligible for promotion to the post of Nursing Superintendent in the year 1985, but she was again not considered for promotion. However, vide office order dated 18th March, 1995 (Annexure A-2), the petitioner was promoted notionally as Matron in the pay scale of Rs.700-1200 with effect from 2nd June, 1980 and Nursing Superintendent in the pay-scale 750-1300 with effect from October, 1985. However, she was held not entitled to monetary benefits for notional promotion. The case of the respondent for not granting the arrears even after issuing the office order dated 18th March, 1995 is that the promotion order is prospective in nature. 2. It was for the respondents to consider the case of petitioner on the basis of extant Recruitment and Promotion Rules for promotion to the post of Matron and Nursing Superintendent in the year 1980 and 1985 respectively. Though the grievance of the petitioner has been redressed vide office order dated 18th March, 1995, but it has been done partly since the monetary benefits have not been released to her. There is nothing in the reply to suggest why the monetary benefits have not been granted to the petitioner to which she is legally entitled. 3. The petitioner was eligible and was ready and willing to work on the higher posts. It is only due to the illegal action of the respondents that she has been deprived of her legitimate rights to be considered and promoted in the years 1980 and 1985. It is settled law by now that the right to be considered for promotion is a Fundamental Right under Articles 14 and 16 of the Constitution of India. The petitioner was bound to be considered for higher post since she was fully eligible and qualified. She has been prevented by the respondents from discharging the duties of higher offices of Matron and Nursing Superintendent. In these circumstances the principle of no work no pay would not be applicable. The petitioner was bound to be considered for higher post since she was fully eligible and qualified. She has been prevented by the respondents from discharging the duties of higher offices of Matron and Nursing Superintendent. In these circumstances the principle of no work no pay would not be applicable. The present case is squarely covered by the judgment rendered by their Lordships of the Hon’ble Supreme Court in Union of India and Others versus K.V. Jankiraman and Others (1991) 4 SCC 109. Their Lordships have held as under:- “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.” 4. Accordingly, the writ petition is allowed. Impugned order Annexure A-2 dated 18th March, 1995 is quashed and set aside only to the extent whereby the petitioner was not held entitled to monetary benefits for the notional promotion. In other words, the petitioner is held entitled to all the monetary benefits with other consequential benefits of the posts of Matron and Nursing Superintendent from the year 1980 and 1985 respectively. The arrears be released to her within a period of eight weeks from today. The arrears shall carry interest at the rate of 9% per annum till the date of payment. However, there shall be no order as to costs.