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Punjab-Haryana High Court
Lakhwinder Singh vs State Of Punjab And Ors on 1 May, 2024
Neutral Citation No:=2024:PHHC:059534
CWP-9727-2017 (O&M) 2024:PHHC:059534
-1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
211
WP-9727-2017 (O&M)
C
Date of decision: 01.05.2024
Lakhwinder Singh
...Petitioner
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY * **** Present : Mr. B.S. Baath, Advocate for the petitioner. Mr. Satnam Preet Singh, DAG, Punjab. ***** AMAN CHAUDHARY. J (Oral) 1. The prayer in the present petition is for quashing the order dated 18.03.2014, Annexure P-5, whereby the respondents have notgivenpromotional benefits to the petitioner as Panchayat Officer, while further directing the respondents to re-fix his pension and gratuity, as also to release other retiral benefits to the him. 2. Learned counsel would submit that the petitioner was appointed as Panchayat Secretary andjoinedon01.09.1980.HewasplacedatNo.1328inthe seniority list, Annexure P-2, which has not been disputed by the respondent-department. 17 of his juniors, at seniority numbers between 1329 till 1387,weregrantedpromotionsasPanchayatOfficer,videorderdated26.02.2013, Annexure P-1,whereashewasnotconsidered,despitebeingeligibleandwithno disciplinaryproceedingsinitiatedagainsthim.Itwasonlyon30.04.2013,theday of his retirement, that he was granted promotion and the order was received by himat04:12P.M.Thereafter,hewasdeniedpromotionalbenefitsvideletterdated 18.03.2014, Annexure P-5, without citing any cogent reasons.Hisrepresentation 1 of 5 ::: Downloaded on - 08-05-2024 20:43:05 ::: Neutral Citation No:=2024:PHHC:059534 CWP-9727-2017 (O&M) 2024:PHHC:059534 -2- on 19.11.2015, seeking his promotion from the date of his juniors besides the claim as raised in the present petition, which was not responded to. 3. On the other hand, learned State counsel contends that since the petitionerhasnotperformeddutiesandresponsibilitiesoftheposttowhichhewas promoted,thushecannotbesaidtohaveacquiredanyrighttothehigherpayscale etc. 4. Heard learned counsel on either side. 5. Itmaybeaccentuatedattheoutsetthatincaseanemployeeisunable toseefructificationofthelegitimateexpectationofpromotioninhisservicecareer and retires without a formal tag thereof, on account of inaction by the state, a broodingsenseofinjusticewouldprevailuponhim.Tritetosaythatnoemployee should experience such tribulations, as was also observed in State of Maharashtra vs. Jagannath Achyut Karandikar, 1989Supp (1) SCC 393. 6. Proceeding to adjudicate the matter, thepetitionerwaseligibletobe considered for promotion to the post of Panchayat Officer, but was overlooked while17ofhisjuniorswerepromotedvideorderdated26.02.2013.Asamatterof fact, his case came to be forwarded on 25.04.2013, however it was only on 30.04.2013,thedateofhisretirement,thathe,after4pm,receivedhispromotion orders, making itmanifestthatthepetitionerwasunabletoperformdutiesonthe promoted post. 7. A similar issue arose in N.S. Ramakrishnan vs. University of Calicut, 2018SCCOnLineKer14387,wherein,theViceChancellorinprinciple agreed to grant promotion to the petitioner therein as per the directions of the Courtinawritfiledbyanotheremployee.However,thesamewasnoteffected,on thelegalopiniongivenbytheJointDirector,LocalFundAudit,aggrievedthereby, heapproachedtheHighCourtofKeralawhereafter,ontheinterimorderpassedby 2 of 5 ::: Downloaded on - 08-05-2024 20:43:06 ::: Neutral Citation No:=2024:PHHC:059534 CWP-9727-2017 (O&M) 2024:PHHC:059534 -3- the Division Bench, the University promoted him as Pool Officer as per proceedings dated 23.05.2016, without mentioning the date on which the same wastotakeeffect.AsperthePayFixationOrder,thedateofpromotionwasfixed as 31.05.2016, on which date he retired. He was held entitled to pensionary benefits of the promoted post, relevant paras whereof read thus, "8. Accordingly, University can give promotion to an officer onlyfromthedateonwhichheassumesthedutiesofthatpost. No doubt, the provision as such would apply in the case of normal promotion granted to an officer. But here it is a case wherethepetitionerstandsonanentirelydifferentfooting.The petitionerwasdeniedpromotionnotonaccountofthefactthat hewasnotpreparedtoassumethechargeonthedatebutfora wrong legal advice given by the Joint Director, Local Fund Audit. The University has no case that even on the day on which the Vice Chancellor ordered for promotion, the petitioner was not prepared to assume the office. That be the case, Rule 23 clause (a) of Part I Kerala Service Rules could not apply in the matter of the petitioner. 9.Nodoubt,theprincipleof'noworknopay'istherule.Butit is appropriate that the court has to invoke its discretion or jurisdictiontorestoresuchrightsofanofficerwhowasdenied the benefit of promotion on account of an illegal and an arbitrary action. 10. Since the petitioner had not worked in the post in which promotion was given, it may not be proper for this Court to give difference of salary from the date on which it was due. However, that will not stand as an impediment forthisCourt, considering his claim for notional promotion atleast from the date onwhichtheViceChancellorhadorderedthepromotion. That be the case, the University shall reckon hisservicefrom 26.2.2015 notionally for the purpose ofpensionarybenefitsin thepostofPoolOfficer.Thepetitioner'ssalaryshallberefixed 3 of 5 ::: Downloaded on - 08-05-2024 20:43:06 ::: Neutral Citation No:=2024:PHHC:059534 CWP-9727-2017 (O&M) 2024:PHHC:059534 -4- from the above date forthepurposeofservicebenefitsexcept for salary. The petitioner shall be given pensionary benefits reckoning that he was promoted to the post of Pool Officer with effect from 26.2.2015." 8. In Ajit Singh vs. State of Punjab (1999) 7 SCC 209, the Constitution Bench of Hon'ble the Supreme Court, after stressing on the importanceofArticles14and16(1)oftheConstitutionofIndia,observedthatif eligibility and criteria for promotion are satisfied, however there still is no consideration for the same, then there is clear violation of fundamental right. A similarlegaldiscoursewasadoptedinAjayKumarShuklaandOrs.vs.Arvind Rai and Ors,2021 SCC OnLine SC 1195. 9. Circling back, it is due to the lackadaisical approach on part of the Department, instead of taking promptness to be adopted in cases of promotion, thatthepetitionerwaspreventedfromservingonthehigherrank,jeopardizinghis entire retiral benefits, a labor of his lifelong years of service rendered dutifully. 10. The plank of argument of learnedStatecounselthatthepetitioneris not entitled to anyresultantadvantageonaccountofhispromotiontothepostof PanchayatOfficer,itbeingonthelastofhisservice,hedidnotperformtheduties onit,tosaytheleastismisconceived,asitisacaseofgivingthepetitionerashort shrift by the Department by firstly, not considering him when his juniors were being promoted and secondly, despite recommendations having been made, the samewerenottakentothelogicalend,byvirtueofwhichhewashandedoverthe orderofpromotionanhourbeforetheclosingoftheoffice,therebydeprivinghim of working on the said post.Therepercussionsofsuchactionarebeingfacedby himonamonthlybasisintermsofreceivingalesserpensionthanhisentitlement. Thus, fairness and equity tilt the scales of justice in his favour. 11. Onaconspectusevaluationofthefactsandcircumstanceskeepingin 4 of 5 ::: Downloaded on - 08-05-2024 20:43:06 ::: Neutral Citation No:=2024:PHHC:059534 CWP-9727-2017 (O&M) 2024:PHHC:059534 -5- mind the enunciation of law, the present petition is allowed. The order dated 18.03.2014, Annexure P-5, is hereby set aside. The respondents are directed to considerandpromotethepetitionertothepostofPanchayatOfficerfromthedate thatofhisjuniors,albeitonnotionalbasisforthepurposeofpensionarybenefits, withinaperiodoftwomonthsfromwhenaweb-printofthisjudgmentisreceived by the competent authority. (AMAN CHAUDHARY) JUDGE 0 1.05.2024 Hemant hether speaking/reasoned W : es / No Y Whether reportable : Yes / No 5 of 5 ::: Downloaded on - 08-05-2024 20:43:06 :::