CWPOA/11987/2008 on 29 December 2011

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWP (T) No. 11987/2008 Decided on:29.12.2010 _____________________________________________ Sangti Devi.

…Petitioner.

Versus State of H.P. and another.

…Respondents.

________________________________________________________

Coram:

Hon’ble Mr. Justice Rajiv Sharma, Judge.

Whether approved for reporting?1 Yes.

For the petitioner : Ms. Archana Dutt, Advocate.

For the Respondents: Mr. Vinod Thakur, Dy. A.G. with Mr. R.P. Singh, Asstt. A.G.

_____________________________________________________

Rajiv Sharma, Judge (oral).

Petitioner was appointed as Physical Education Teacher (P.E.T) vide letter 1.11.1997. In the seniority list, issued in the year 1999, petitioner was shown at Sr. No. 182. Respondent-State decided to fill up the posts of Diploma Holders in Physical Education (DPE). Respondent-State made promotions on 24.12.2001. However, the petitioner was ignored. Petitioner made representation on 19.1.2002 and the same was favourably recommended by the Deputy Director of Education on 27.2.2002. The fact of the matter is 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.

that petitioner was promoted to the post of D.P.E. on 8.2.2005.

2. Ms. Archana Dutt has vehemently argued that her client should have been promoted from the date her juniors have been promoted to the post of D.P.E. She further contended that the petitioner cannot be made to suffer on account of inaction on the part of the respondents.

3. Mr. Vinod Thakur, learned Deputy Advocate General has strenuously argued that the grievance of the petitioner has already been redressed since she has been promoted to the post of D.P.E.

4. I have heard the learned counsel for the parties and have perused the record carefully.

5. Petitioner was placed at Sr. No. 182 of the seniority list and vide letter dated 24.12.2001, persons junior to the petitioner, who were placed at Sr. Nos. 184, 187 and 1888 of the seniority list, were promoted. Representation made by the petitioner, as noticed above, was favourably recommended by the Deputy Director of Education Solan on 27.2.2002. Petitioner has been promoted vide order dated 8.2.2005 (Annexure A-11). Reason assigned for not considering the petitioner for promotion on 24.12.2001 is that her Annual Confidential Reports were not made available to the Departmental Promotion Committee. It was for the department concerned to provide Annual Confidential Reports of the petitioner. Petitioner is not at fault. The fault lies with the respondent-Department. Action of the respondent- Department of ignoring the petitioner on 24.12.2001 only on the ground that the Annual Confidential Reports were not made available to the Departmental Promotion Committee is arbitrary, unfair and unjust and thus violative of Article 14 of the Constitution of India. Petitioner has now been promoted on 8.2.2005. She should have been promoted from the date her juniors were promoted as D.P.E. on 24.12.2001. Petitioner has right to be considered for promotion to the higher post.

6. Mr. Vinod Thakur, learned Deputy Advocate General submitted that since the petitioner has not worked against the higher post, she is not entitled to the benefits retrospectively. Petitioner was always ready and willing to discharge her duties on higher post of D.P.E. However, the respondent has illegally ignored the case of the petitioner for promotion to the post of D.P.E. on 24.12.2001.

7. Their Lordships of the Hon’ble Supreme Court in Union of India and others versus K.V. Jankiraman and others, (1991) 4 SCC 109 have held as under:

“25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" 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.”

8. In view of the observations and discussions made hereinabove, the petition is allowed. Respondents are directed to consider the case of the petitioner for promotion to the post of D.P.E. from the date her juniors have been promoted, i.e. 24.12.2001, within period of two months from the date of production of certified copy of this judgment with all the consequential benefits. No costs.

(Rajiv Sharma),

Judge 29.12.2010

*awasthi*