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
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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
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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
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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
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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
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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
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