High Court Punjab-Haryana High Court

Shamsher Singh vs High Court Of Punjab And Haryana At … on 17 December, 2009

Punjab-Haryana High Court
Shamsher Singh vs High Court Of Punjab And Haryana At … on 17 December, 2009
      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH

                               Civil Writ Petition No.12174 of 2008
                               Date of decision:17.12.2009


Shamsher Singh, Superintendent (Retd.), Punjab and Haryana High
Court.                                             ...Petitioner

                               Versus

High Court of Punjab and Haryana at Chandigarh and others.
                                                       ...Respondents



CORAM: HON'BLE MR. JUSTICE K. KANNAN
                     ----

Present:    Mr. Ashu M. Punchhi, Advocate, for the petitioner.

            Mr. R.N. Raina, Advocate, for respondent No.1.

                               ----

1.    Whether reporters of local papers may be allowed to see the
      judgment ? Yes.
2.    To be referred to the reporters or not ? Yes.
3.    Whether the judgment should be reported in the digest ? Yes.
                                ----

K.Kannan, J. (Oral)

1. The petitioner, who was working as a Superintendent

Grade-1 on the establishment of the High Court of Punjab and Haryana,

was retired prematurely on attaining the age of superannuation w.e.f.

05.10.2003. On a plea for re-consideration of the decision, by the order

of the then Hon’ble the Chief Justice, the order of compulsory retirement

was recalled by order dated 24.04.2006 and he was permitted to rejoin

the establishment. By a subsequent proceeding on 22.02.2007, it was

ordered that the intervening period from 05.10.2003 when he was

compulsory retired to 25.04.2006, when he actually rejoined the service
Civil Writ Petition No.12174 of 2008 -2-

pursuant to the order made by the Court, the whole period would be

treated as “period spent on duty for all purposes and intents and that he

would be paid full pay and allowances” for the said period.

2. It is an admitted fact that at the time when the writ petition

was filed, he was superannuated on 31.10.2006 and his prayer was that

he should be treated as having been promoted to the post of Assistant

Registrar on the date when his junior was promoted and the said aspect

was to be taken into account for the purpose of calculation of pension

payable on the basis of increased emoluments that could have availed to

him. A representation had been made in that regard by the petitioner

which was rejected by 22.08.2006. The submission of the learned

counsel appearing for the petitioner is that when the Hon’ble Chief

Justice passed an order stating that the period between the first order of

premature retirement and the recall of the order, was to be taken as

period spent on duty for all purposes and intents, it should be taken as a

necessary incident that he was also entitled to be considered as promoted

from the date when his junior was promoted. The contest to this plea on

behalf of the respondents is that as per the High Court Establishment

(Appointment and Conditions of Services) Rules,1973, Rule 24 provides

that promotion in the High Court establishment from one grade to the

next higher grade one shall, except in cases where competitive

examination is prescribed, be by selection and no one shall have a right

to claim promotion merely on the basis of seniority. According to the

learned counsel appearing for the respondents that even prior to the

period when he was compulsory retired, he had been denied promotion
Civil Writ Petition No.12174 of 2008 -3-

for some adverse remarks against him and subsequently when promotion

was made on 1st January, 2001, respondents 2 to 6 had been placed above

him and the petitioner cannot therefore assume that he was entitled to

the promotion post as of right for making the calculation for the pension

payable. It was the further contention on behalf of the respondents that

the post of Assistant Registrar, which was the promotion post shall be

filled up as per Rule 18(4) from out of the Superintendents Grade-I, who

were graduates and have experience of working as such (emphasis mine)

for a period of three years. The contention therefore was that when the

petitioner was reinstated on 24.04.2006, the calculation of 3 years period

would not avail to him for promotion because he had not actually worked

as such Superintendent Grade-I for the requisite number of years. The

treatment of the period spent on duty, according to the learned counsel

for the respondents, would avail only for the purpose of full pay and

allowances, which was granted to him and he could not treat himself as

actually having worked in such a post.

3. The learned counsel appearing for the petitioner relies on a

decision of the Hon’ble Supreme Court in Union of India and others

Versus K.B.Rajoria-(2003) 3 Supreme Court Cases 562 , that dealt with

the case where a person, who had been wrongly denied the post

originally and who later obtained the post, sought for consideration for a

further promotion on the ground that the relevant rules provided for two

years regular service on the feeder cadre and he having been offered that

post, he was entitled to treat such period of two years as being in

regular service. The Hon’ble Supreme Court was actually dealing with
Civil Writ Petition No.12174 of 2008 -4-

the case of rule that allowed for a promotion for a person having two

years “regular service” as available also to the person who had been

originally denied and later brought in after a successful challenge. The

decision was again rendered in the context of what a regular service

meant and the Court reasoned that notional promotion which was granted

could not be treated as irregular. The Hon’ble Supreme Court therefore

held that such a notional promotion given to a person to make aright the

wrong that had been done by supersession must be taken as period spent

on regular service.

4. This case makes reference and distinguishes yet another

decision of its earlier ruling in Union of India and others Versus

M.Bhaskar and others-(1996) 4 Supreme Court Cases 416. The

decision of the Hon’ble Supreme Court in the above case is instructive in

one way, for it deals with the situation more akin to the position that

obtains before us now. In the said judgment, the Court dealt with the

case of eligibility for promotion to a higher post a condition of

completion of two years experience in the next lower grade. The Court

found that in a case where the rules provides for relevant experience in a

lower grade but where he could not have gained experience prior to the

date when he had joined pursuant to an order, the mere fact of his

promotion in a lower grade that was made notionally could not be taken

to mean that he started gaining experience from that day, because for

gaining experience, one has to work. Notional promotions, the Hon’ble

Supreme Court held, were given to take care of some injustice inter alia

because some juniors had come to be promoted earlier and a person who
Civil Writ Petition No.12174 of 2008 -5-

is promoted to a higher grade could not gain experience from the date of

notional promotion. In this case, the relevant rule talks about the

“experience as such for a period of 3 years”, but the such experience, he

did not have and all that the office order issued pursuant to the direction

of the Hon’ble Chief Justice was that he was entitled to the monetary

benefits and was to be treated as period spent on duty for all purposes

and intents. In the present context, it could be counted as service for the

purpose of reckoning the pension but it cannot, by any stretch of

imagination be understood as providing to the petitioner an experience

which the rules required. Rejection of his representation, in my view,

therefore, accords with the relevant rules and there is no scope for

affording to the petitioner the relief which he seeks in the writ petition.

5. The writ petition is, accordingly, dismissed. There shall be

however no directions as to costs.

(K.KANNAN)
JUDGE
17.12.2009
sanjeev