Punjab-Haryana High Court
Darshna Devi vs State Of Punjab & Ors on 10 April, 2024
Neutral Citation No:=2024:PHHC:048757
CWP-19815-2015 (O&M) 2024:PHHC:048757
-1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
221
WP-19815-2015 (O&M)
C
Date of decision: 10.04.2024
Darshna Devi
...Petitioner
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY ***** Present : Mr. R.K. Arora, Advocate for the petitioner. Mr. Arun Gupta, DAG, Punjab. ***** AMAN CHAUDHARY, J. (Oral) 1. The prayer made in the present petition is for quashing part of the order dated 07.05.2015, Annexure P-5, whereby the petitioner has been allowed retrospectivepromotiononnotionalbasistothepostofLecturer,Punjabifromthe date ofherjuniorswithoutanyarrearsofsalaryandfordirectingtherespondents to release the same with interest at the rate of 12% p.a. 2. Learned counsel would contendthatthepetitionerwaseligibletobe considered for promotion to the post of Lecturer, however, her juniors, despite being at a lower seniority level, were promoted instead, vide order dated 25.02.2014, w.e.f. 19.05.2012. Subsequently, representation was made by her wherein directions were issued to consider her claim vide judgment dated 02.09.2014, in CWP-17998-2014, Annexure P-3, following which, she was promoted on notional basis w.e.f. May, 2012 vide order dated 07.05.2015, Annexure P-5. After retiring on 31.12.2014, she received revised pension vide letter dated 30.07.2015, reflecting her updated pay as a result of her promotion w.e.f.19.05.2012.Tobuttresshissubmissionregardingreleaseofarrearsofsalary, hereliesonthejudgmentspassedbythisCourtinSportsAuthorityofIndiaand 1 of 5 ::: Downloaded on - 27-04-2024 01:30:04 ::: Neutral Citation No:=2024:PHHC:048757 CWP-19815-2015 (O&M) 2024:PHHC:048757 -2- another vs. Central Administrative Tribunal and another,CWP-14998-2009, decided on 06.11.2009, Annexure P-6, Gulzar Singh vs. The State of Punjab and others, CWP-11389-2011, decided on 14.02.2013, Annexure P-7, against which the LPA-1255-2013 was dismissed on 18.07.2013, Annexure P-8. Further reliance is placed on Sanjeevan Singh vs. State of Punjab and others, CWP-21473-2018, decided on 12.03.2024. 3. LearnedStatecounsel,ontheotherhand,submitsthatthepromotions made earlier, were on the basis of the joining date of concerned employees. Furthermore, in case of retrospective promotions, no actual arrears have to be grantedandonlynotionalbenefitsareallowed,sincethepetitionerhadnotworked on the post during the said period. 4. Heard learned counsel on either side. 5. The Division Bench of this Court in Sports Authority of India (supra), while granting payandallowancetoanemployeewhowassubsequently promoted, on the ground that it was due to fault of the respondent that he was deniedpromotion,heldthat,"Theperusaloftheaforesaidauthoritiesmakeitclear the principle of 'no work, no pay' cannot be treated as an inflexible principle to which there are no exceptions. It has been consistently held that when the employee has beenwronglydeniedthepromotionfornofaultofhisduetosome lapse on behalf of the employer, the principle of 'no work, no pay' will have no application. Therefore, the question as towhetherthereareanyexceptionstothe principle of 'no work, no pay' will be replied in the affirmative. The second questionwillalsobeansweredintheaffirmativeasinthepresentcaseadmittedly therespondentno.2wasdeniedpromotionfornofaultofhis.Ashasalreadybeen pointed out, respondent no.2 was denied the promotion as hisnamewasomitted from the seniority list due to inadvertence which has been admitted by the 2 of 5 ::: Downloaded on - 27-04-2024 01:30:05 ::: Neutral Citation No:=2024:PHHC:048757 CWP-19815-2015 (O&M) 2024:PHHC:048757 -3- petitioner employer. Therefore, the principle of 'no work, no pay' will have no application in the present case. For this reason, the impugned order does not warrant any interference." Following the above dictum of law, this Court in GulzarSingh(supra),hadgrantedarrearsofsalaryfromthedateofretrospective promotion, which was even upheld by the Division Bench. 6. There is no denying the fact that the petitioner, working as S.S. Mistress, was eligible to be considered for promotion to the post of Lecturer, havingbeenplacedatseniorityNo.1495,however,wasoverlookedandinsteadher juniors-VijayLaxmiandSukhvirKaur,seniorityNos.1499and1548,respectively, were promoted vide order dated 25.02.2014, w.e.f. 19.05.2012. It is only on accountofsubmissionofarepresentationbyherthattherespondentsrectifiedthe mistake and granted promotion albeit on notional basis from the datethatofher juniors. 7. As is axiomatic, the petitioner was unable to perform duties of the promoted post of Lecturer, due to the fault on the part of theDepartment.Thus, theprincipleof'noworknopay'wouldnotbeattractedinthisparticularsituation, since it is not a ruleofthumb,therebeingexceptionstoit,ashadbeenobserved by Hon'bletheSupremeCourtinUnionofIndiavs.K.V.Jankiraman,1991(4) SCC 109, that the discretion based on circumstances should be exercised when implementing the rule of 'no work no pay', so if an employee is unjustly kept away from work by authorities, they deserve salary and benefits. The relevant paras whereof read thus: " 24. It was further contended on their behalf that the normal ruleis"noworknopay".Henceapersoncannotbeallowedto draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only fortheworkhehasdone and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on manyoccasionsevenfrivolousproceedingsareinstitutedatthe 3 of 5 ::: Downloaded on - 27-04-2024 01:30:05 ::: Neutral Citation No:=2024:PHHC:048757 CWP-19815-2015 (O&M) 2024:PHHC:048757 -4- instanceofinterestedpersons,sometimeswithaspecificobject of denying the promotion due, andtheemployeeconcernedis made to suffer both mental agony and privatations which are multiplied when he is also placed under suspension. When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restoredtoallthebenefitsfromwhich he was kept away unjustly. 25.Wearenotmuchimpressedbythecontentionsadvancedon behalfoftheauthorities.Thenormalruleof"noworknopay" 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. 26.Weare,therefore,broadlyinagreementwiththefindingof the Tribunal that when an employee is completely exonerated meaning thereby that heisnotfoundblameworthyintheleast andisnotvisitedwiththepenaltyevenofcensure,hehastobe giventhebenefitofthesalaryofthehigherpostalongwiththe otherbenefitsfromthedateonwhichhewouldhavenormally been promoted but for the disciplinary/criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account ofnon-availabilityofevidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee atalldeservesany salary for the intervening period and if he does the extent to which he deserves it. Life being complex,itisnotpossibleto anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay downaninflexiblerulethatineverycasewhenanemployeeis exonerated from disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the, administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence inthefirstsub-paragraphafterclause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrearsofpayshallbepayabletohimfortheperiodofnotional promotion preceding the date of actual promotion", we direct thatinplaceofthesaidsentencethefollowingsentenceberead in the Memorandum : "However,whethertheofficerconcernedwillbeentitled to any arrears of pay for the period of notional promotionprecedingthedateofactualpromotion,andif so to what extent will be decided by the concerned authority by taking into consideration all the facts and 4 of 5 ::: Downloaded on - 27-04-2024 01:30:05 ::: Neutral Citation No:=2024:PHHC:048757 CWP-19815-2015 (O&M) 2024:PHHC:048757 -5- c ircumstances of the disciplinary proceeding/criminal prosecution.Wheretheauthoritydeniesarrearsofsalary or part of it, it will record its reasons for doing so."" 8. In wake of the aforesaid, the submissions canvassed by the respondents cannot be countenanced. 9. Ontheaforesaidpremiseandasafalloutthereof,thepresentpetition is hereby allowed. The petitioner is held entitled to arrears of salary, with all consequentialbenefitsw.e.f.19.05.2012.Needfulbedonewithinaperiodofthree months. (AMAN CHAUDHARY) JUDGE 1 0.04.2024 Hemant hether speaking/reasoned W : es / No Y Whether reportable : Yes / No 5 of 5 ::: Downloaded on - 27-04-2024 01:30:05 :::