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
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Present: Mr. Ashu M. Punchhi, Advocate, for the petitioner.
Mr. R.N. Raina, Advocate, for respondent No.1.
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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