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
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
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
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
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
