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Himachal Pradesh High Court · body

2009 DIGILAW 96 (HP)

MANI CHAND v. H. P. STATE FOREST CORPN. LTD.

2009-03-03

SANJAY KAROL

body2009
JUDGMENT Sanjay Karol, J. (Oral):-The petitioner served the nation by joining the Indian Army. Having retired, he was subsequently employed, as a Clerk through the Ex-servicemen Cell, on 4.12.1979 with the respondent-Corporation. For the purpose of fixation of pay, the benefits of the accrued military service, were accorded to him but, however, the benefit of seniority as stipulated under the provisions of the Demobilized Armed Forces Personnel (Reservation of vacancies in H.P. State Non-Technical Service) Rules, 1972 (hereinafter referred to as ‘the Rules’) was not accorded to him. The petitioner, however, continued to serve the respondent and it was only when the petitioner represented to them, the benefit of the Rules for the purpose of seniority were accorded to him. 2. Order dated 4.3.1994 (Annexure A-4) evidences the mistake rectified by the respondent-Corporation, whereby the petitioner was promoted as Junior Assistant on 22.8.1988, (now Senior Assistant) on notional basis w.e.f. 7.11.1984 upto 21.8.1988. The caveat being that the actual promotion would be treated only from 22.8.1988. Feeling aggrieved the petitioner filed the present petition, inter alia claiming for the following relief:- “(1) that the respondent Corporation may be directed to give to the applicant the arrears of salary for the post of Junior Assistant (now Senior Assistant) with effect from 7.11.1984 to 21.8.1988 along with interest at the rate of 18% per annum. (2) that the respondent Corporation may be directed to give promotion to the applicant to the post of office Manager (Junior) with effect from the date his juniors were so promoted i.e. with effect from 31.8.1987. (3) The Corporation may also be directed to give all consequential benefits as a result of the said promotion of the applicant.” 3. The respondent-Corporation has filed its reply and in terms thereof relief Clauses (2) & (3) cannot be granted at all, as the petitioner was found ineligible for promotion to the post of office Manager (Junior). This position is undisputed. 4. Insofar as the relief Clause (1) is concerned, learned counsel for the respondent-Corporation has made the following submissions:- (i) the present petition is barred by delay and latches; (ii) the petition is bad for non-impleadment of necessary parties as the persons who are likely to be effected have not been impleaded as parties; (iii) the consequential benefits from the date of notional promotion cannot be accorded to the petitioner on the principle of “no work no pay’; 5. The petition was filed in the year 1996 before the erstwhile H.P. Administrative Tribunal at Shimla under the provisions of Section 19 of the Administrative Tribunals Act, 1985. By virtue of the provisions of the Himachal Pradesh Administrative Tribunal (Transfer of cases pending) Act, 2008, the same now stands transferred to this Court. After a gap of 13 years, in the present case, it would not be fair, just and proper to relegate the petitioner to exhaust his alternate remedies at this stage. It is also pertinent to point out that the petitioner in fact had also made a representation to the Director of the respondent –Corporation, the fate of which is unknown. The objection is unsustainable. 6. Insofar as the question of delay and latches is concerned, the petitioner was employed in the year 1979. That he was entitled to the benefits under the Rules cannot be disputed for the simple reason that the respondent themselves rectified their mistake and promoted him retrospectively. The State was enjoined with a duty to give all benefits to the employees under the Rules. Why the same was not done is not evident from the reply. It was only when the petitioner represented that the respondent-Corporation rectified its mistake and in terms of order dated 5.3.1993 partly accorded the benefits to him. The matter did not rest there. He was pushed to knock the doors of the Tribunal by filing a petition in the year 1996 seeking benefits consequent to the notional promotion granted to him by the Corporation. The petition was filed on 12.4.1996. The present proceedings are being adjudicated under the provisions of Article 226 of the Constitution of India. The rigors of the limitation, as provided for under the Limitation Act, does not apply to the present proceedings. In my view, there is no inordinate or unreasonable delay on the part of the petitioner in approaching the Court seeking redressal of his grievances. The contention, therefore, is rejected. 7. The scope of the present petition is limited only with respect to prayer clause (i), hence the objection that the petition is bad for non impleadment of necessary parties does not survive any longer. The same is, therefore, rejected. 8. The fact that the petitioner was given notional promotion w.e.f. 7.11.1984 cannot be disputed and in any case is evident from Annexure A-4. 9. Mr. The same is, therefore, rejected. 8. The fact that the petitioner was given notional promotion w.e.f. 7.11.1984 cannot be disputed and in any case is evident from Annexure A-4. 9. Mr. Virender Verma, learned counsel for the respondent has referred to a decision of the Apex Court in Virender Kumar v. Avinash Chandra Chadha & Ors. {1990(3) SCC 472} to contend that the monetary benefits can not be accorded on the principle of ‘no work no pay’. 10. The ratio of the said decision is not binding as the facts are clearly distinguishable. The Court was dealing with the issue of Quota and Rota where according monetary benefits of notional promotion would have resulted into inequitable, irrational and inappropriate condition inasmuch as if the deemed appointments were to be given effect to the concerned employees, it would have been from the date when they were not even in service. Hence, under these circumstances the principle of “no work no pay” was invoked and monetary benefits refused to the employees who had been given notional promotion. 11. Varinder Kumar (supra) has subsequently been considered in State of Kerala & Ors. v. E.K. Bhaskaran Pillai {2007 (6) SCC 524} , wherein it has been held that there cannot be any straight jacket formula for laying down any guidelines with regard to adopting the principle of ‘no work no pay’. The Apex Court has held that the principle of ‘no work no pay’ cannot be accepted as Rule of thumb and there are exceptions where courts have granted monetary benefits. The relevant observation of the Report is reproduced as under:- “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 percent 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 a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 percent 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 of ‘no work no pay’ cannot be accepted as Rule of thumb and there are exceptions where courts have granted monetary benefits also.” 12. The Court was dealing with an identical situation in hand where it was found that persons junior to the petitioner were appointed and the benefit of promotion was wrongly denied to him. The petitioner was promoted with retrospective effect and not paid the benefit of arrears of salary upon being promoted. The action of the State was challenged before the Court and the High Court directed the payment of back wages, which was upheld by the Apex Court in the said decision. 13. It is evident from the record that the petitioner was available to serve at all point of time. The benefits of the Rules were wrongly denied to him. As such, the petitioner can not be deprived of the monetary benefits. In the facts and circumstances, the respondent is directed to pay all consequential benefits including salary etc. for the post of Junior Assistant (now Sr. Assistant) w.e.f. 7.11.1984 upto 21.8.1988 but without interest. The petitioner has been made to run from pillar to post. He is also entitled to costs quantified at Rs.5000/-. The payment shall be made within a period of eight weeks from today. 14. The petition is disposed of accordingly.