Whether the reporters of the local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 285 of 2024 Date of Decision: 07.07.2025 _______________________________________________________ Rajinder Kumar & others …….Petitioners Versus State of Himachal Pradesh & others … Respondents ______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioners: Mr. Mohit Thakur, Advocate. For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan Kahol and Mr. B.C.Verma, Additional Advocate Generals and Mr. Ravi Chauhan, Deputy Advocate General, for the respondents/State. _______________________________________________________ Sandeep Sharma, Judge(oral): The question, which needs to be determined in the case at hand, is whether petitioners herein on their promotion to the post of DPEs from the post of PETs vide order 17.10.2023(Annexure P-1) could have been denied actual benefits from 06.09.2021, especially when promotion orders, as detailed hereinabove, were not issued well within time by the respondent-Department. 2. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Mohit Thakur, learned counsel for the petitioners, is that though respondents herein in compliance to order/judgment dated 28.07.2023 passed by this 2 Court in COPC No.376 of 2021 titled as Rajinder Kumar and others vs. Rajeev Sharma, Secretary (Education) to the Government of Himachal Pradesh and others in CWPOA No.5 of 2019 titled Rajinder Kumar & vs. State of Himachal Pradesh and others, withdrew the seniority list framed for promotion of PETs to the posts of DPEs issued vide Directorate of Higher Education, Himachal Pradesh office order No. EDN-HE(12)B(6)-21/2020-Promotion-1 dated 03.09.2021, vide order dated 17.10.2023, as a result thereof, petitioners became senior to number of persons, but yet, while issuing their promotion orders from due date i.e. 06.09.2021, held them entitled to notional benefits from 06.09.2021 till 17.10.2023, whereas as per law laid by Hon’ble Apex Court in case tilted Ramesh Kumar vs. Union of India and others1 actual benefits could not have been denied on the ground of “no pay no work”, rather in a situation where fault of not promoting the petitioner well within time squarely lies with the respondents, petitioners herein were required to be given actual benefits from the date of their promotion to the higher post. 3. Precisely the facts of the case, as emerge from the pleadings adduced on record by the respective parties, are that petitioners herein were appointed as Para Teachers in the year, 2003 and 2004 respectively. In the year 2014, they were regularized on the post of PETs. Though, on 6.9.2021 petitioners became eligible for 1 2015(14)Supreme Court Cases 335 3 promotion to the posts of DPEs, but yet were not promoted and as such, approached this Court by way of CWP No.4716 of 2021,which came to be disposed of vide judgment dated 14.12.2023 (Annexure P-2). 4. Careful perusal of aforesaid judgment suggests that during pendency of afore petition, respondents complied with order passed by Court concerned from time to time, as a result thereof, petition was rendered infructuous at the time of passing of order dated 14.12.2023. Before passing of afore judgment dated 14.12.2023, respondents had actually withdrawn seniority list framed for promotion of PETs to the posts of DPEs vide communication dated 03.09.2021 and thereafter, on the basis of old seniority list, PETs came to be promoted to the post of DPEs. Having taken note of old seniority list and thereafter, issuance of promotion orders, though Co-ordinate Bench of this Court vide order dated 14.12.2023 disposed of the petition, but reserved liberty to the petitioners to file substantive petition for redressal of their surviving grievances, if any. In the afore background, petitioners have approached this Court in the instant proceedings, praying therein for following reliefs:- “(a) That the respondents may be directed to grant actual monetary benefits to the petitioners from due date i.e. 06.09.2021on account of promotion to the post of DPE from the post of Physical Education Teacher. The grant of only notional benefits and not actual benefits with 4 effect from 06.09.2021 by virtue of order dated 17th October, 2023 (Annexure P-1) is purely illegal as due to fault of the State the promotions were wrongfully and illegally denied to the petitioners and for the fault of the State the petitioners cannot be made to suffer especially in view of the ratio of judgments/decisions as contained in judgments/ decisions as contained in Annexure P-3 & P-4 wherein this Hon’ble Court and Hon'ble Apex Court has granted actual monetary benefits in similar circumstances; (b) The petitioners may be held entitled to all arrears from 06.09.2021; 5. In nutshell, the case of the respondents, is that once it is not in dispute that in seniority list framed for promotion of PETs to the post of DPEs, petitioners herein had become eligible for promotion w.e.f. 06.09.2021 and entire confusion had arisen on account of formation of wrong seniority list for promotion of PETs to the post of DPEs, which ultimately came to be laid challenge in CWP No.4716 of 2021 and during proceedings of afore case, respondents rectified their mistake by restoring the old seniority list, wherein admittedly petitioners were senior to number of persons, there was no occasion, if any, for the respondents to grant notional benefits to the petitioners on their promotion to the Post of DPEs w.e.f.06.09.2021. Learned counsel for the petitioners vehemently argued that though petitioners herein had become eligible for promotion to the post of DPEs on 06.09.2021 on account of their being senior to certain persons in seniority list, but since before issuing promotion orders, respondents 5 framed wrong seniority list for promotion of PETs to the posts of DPEs, petitioners herein were compelled to approach this Court by way of CWP No.4716 of 2021. Principle of “no work no pay” otherwise sought to be applied in the case of the petitioners could not have been made applicable qua petitioners, who admittedly for redressal of their grievance approached competent Court of law well within time. He submitted that since it is apparent from material adduced on record that petitioners were not granted promotion from due date i.e.0 6.09.2021 on account of formation of wrong seniority list by the respondents, which act of them subsequently came to be rectified during the pendency of CWP No.4716 of 2021, petitioners herein could not have been denied actual benefits from due date. To substantiate his aforesaid plea, he placed reliance upon the judgment passed by Hon’ble Apex Court in Ramesh Kumar’s case(supra). 6. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while justifying the impugned action of the respondents, specifically referred to para 2 of preliminary objections, to state that in compliance to orders/judgment dated 28.07.2023 passed by this Court in COPC No.376 of 2021 titled as Rajinder Kumar and others vs. Rajeev Sharma, Secretary (Education) to eh Government of Himachal Pradesh and others in CWP No.5 of 2019 titled Rajinder Kumar & others vs. State of Himachal 6 Pradesh and others, fresh seniority list on the basis of date of regularization was framed and promotion of PETs to the posts of DPEs were issued vide office order dated 17.10.2023 with the condition that financial benefits to all promotees will be admissible as mentioned in column No.8 of promotion order dated 17.10.2023. He submitted that promotees have been allowed actual financial benefits from the date of joining as DPEs or the availability of post in DPE cadre. He submitted that since DPEs joined their services as DPEs after 17.10.2023, there was no occasion, if any, to grant them actual benefits from 06.09.2021, rather they have been rightly granted actual benefits from the date of joining. He further submitted that since petitioners had been working as PETs prior to their promotion to the post of DPEs, they cannot be permitted to take responsibility of higher post i.e. DPE retrospectively. 7. I have learned counsel for the parties and gone through the record carefully. 8. True it is that petitioners herein came to be promoted to the post of DPEs after 17.10.2023, but there is no dispute qua the fact that they had become eligible for promotion against the post in question on 06.09.2021, which fact is otherwise evident from impugned order dated 17.10.2023 (Annexure P-1). Careful perusal of afore order clearly suggests that though on 06.09.2021 post of DPEs 7 against which petitioners were to be promoted had become available, but on account of pendency of CWP No.4716 of 2021, respondents could not promote eligible PETs to the post of DPEs. Admittedly seniority list framed for promotion of PETs to the post DPETs issued by Director of Higher Education came to be laid challenge in afore writ petition as well as in CWPOA No.5 of 2019 titled Rajinder Kumar and others vs. State of Himachal Pradesh and others, which was withdrawn by the respondents during the pendency of present petition, vide office order dated 17.10.2023. Once aforesaid seniority list was withdrawn, respondents proceeded to promote the petitioners as well as other similarly situate persons on the basis of old seniority list, wherein admittedly petitioners were senior to certain persons. As per own case of the respondents, fresh seniority list on the basis of date of regularization was framed and promotion orders of PETs to the post of DPEs were issued vide order 17.10.2023. 9. No doubt, aforesaid orders, if read in its entirety, suggests that condition was stipulated that financial benefits to all promotees will be admissible as mentioned in Column No.8 of promotion orders dated 17.10.2023, but since at the time of disposal of earlier writ petition bearing CWP No. 4716 of 2021, liberty was reserved to the petitioners herein to approach this Court again for redressal of their survival grievances by way of substantive writ and for that purpose, petition at hand came to be filed at the behest of the 8 petitioners, this Court is not persuaded to agree with learned Additional Advocate General that present petition is not maintainable for the reason that issue otherwise sought to be decided in the instant proceedings already stands adjudicated in the previous petition. 10. As have been noticed hereinabove, in earlier writ petition No.4716 of 2021 as well as CWPOA No.5 of 2019 titled Rajinder Kumar and others vs. State of Himachal Pradesh and, entitlement of the petitioner for promotion to the post of DPEs on 06.09.2021 has been not decided, rather such fact came to be placed before Division Bench of this Court during the proceedings of the cases and as such, Court proceeded to dispose of the aforesaid petition, but with liberty reserved to the petitioners, as has been taken note hereinabove. 11. 11. Since, it is quite apparent from the facts as well as pleadings adduced on record that on the basis of date of regularization, petitioners were senior to certain persons, who were inadvertently shown senior to the petitioners in newly framed seniority list by the respondents for promotion of PETs to the post of DPEs issued vide order dated 03.09.2021 and subsequently such mistake was rectified by the respondents by withdrawing impugned seniority list, as a result thereof, old seniority list prepared on the basis of regularization came into existence, coupled with the fact that posts of DPEs had actually become available on 06.09.2021, there appears to 9 be no occasion for the respondents to deny actual benefits to the petitioners from the date of their promotion to the posts of DPEs from PETs. Though, at this stage, respondents attempted to defeat the rightful claim of the petitioners on the ground that since petitioners have never worked against the promotional post, there was no occasion, if any, to grant them actual benefits qua the promotional post, however, this Court is not persuaded to agree with aforesaid contention raised at the behest of the respondents/State. 12. Once, it is not in dispute that petitioners herein were actually prevented by the respondents from working against the promotional post, to which they had actually become entitled w.e.f. 06.09.2021 coupled with the fact that petitioners at the relevant time were working in the Department, may be in the capacity of PETs, respondents ought to have granted them actual benefits from the date of promotion. At this stage, it would be apt to take note of judgment passed by Hon’ble Apex Court in Ramesh Kumar’s (Supra), wherein Hon’ble Apex Court has held that in normal circumstances when retrospective promotions are effected, all benefits flowing therefrom, including monetary benefits, must be extended to an employee, who has been denied promotion earlier. Hon’ble Apex Court in afore case further held that as far as monetary benefits with regard to retrospective promotion are concerned that depends upon case to 10 case, but certainly cannot be accepted as a rule of thumb and the matter will have to be considered on case to case basis. In afore case, Hon’ble Apex Court held that even in the absence of statutory provision, normal rule is “no work no pay”, but in appropriate cases, a court of law may take into account all the facts in their entirety and pass an appropriate order in accordance with law. Principle of “no work and no pay” would not be attracted where respondents were at fault in not considering the case of appellant for promotion and not allowing the appellant to work on a promotional post carrying higher pay scale. 14. In normal circumstances when retrospective promotions are effected, all benefits flowing therefrom, including mone- tary benefits, must be extended to an employee who has been denied promotion earlier. So far as the monetary bene- fits with regard to retrospective promotion are concerned that depends upon case to case. In State of Kerala v. E.K. Bhaskaran Pillai [(2007) 6 SCC 524 : (2007) 2 SCC (L&S) 487] , this Court held that the principle of “no work no pay” cannot be accepted as a rule of thumb and the matter will have to be considered on a case-to-case basis and in para 4, it was held as under: (SCC p. 527) “4. … We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to mone- tary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmen- tal enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages look- ing to the nature of delinquency involved in the matter or in 11 criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has chal- lenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with re- trospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle ‘no work no pay’ cannot be accepted as a rule of thumb. There are excep- tions where courts have granted monetary benefits also. 15. We are conscious that even in the absence of statutory provision, normal rule is “no work no pay”. In appropriate cases, a court of law may take into account all the facts in their entirety and pass an appropriate order in consonance with law. The principle of “no work no pay” would not be at- tracted where the respondents were in fault in not consider- ing the case of the appellant for promotion and not allowing the appellant to work on a post of Naib Subedar carrying higher pay scale. In the facts of the present case when the appellant was granted promotion w.e.f. 1-1-2000 with the ante-dated seniority from 1-8-1997 and maintaining his se- niority along with his batchmates, it would be unjust to deny him higher pay and allowances in the promotional position of Naib Subedar.” 13. Admittedly, in the instant case petitioners herein were eligible to be promoted against the post of DPEs on 06.09.2021, but on account of fault committed by the respondents inasmuch in 12 formation of wrong seniority list, which was subsequently rectified during the pendency of earlier writ petition filed by the petitioners, principle of “no work no pay” cannot be made applicable in the case at hand. On account of sheer negligence and fault of the respondents, who failed to frame seniority list on the basis of date of regularization of the PETs, petitioners herein had to approach the Court repeatedly. In earlier petition, respondents instead of inviting judgment themselves rectified their mistake and issued fresh seniority list on the basis of date of regularization of PETs, as a result thereof though petitioners became eligible for promotion to the post of DPEs from the date such posts had become actually available in the department, but respondents wrongly held them entitled to notional benefits qua the promotional post from the date of their promotion till the date of their actual joining. Since this Court is convinced that petitioners herein were prevented by the respondents for no fault of them from working against the promotional post qua which they have been actually promoted w.e.f. 6.9.2021, prayer made on behalf of the petitioners for grant of actual benefits from the date of their promotion i.e. 06.09.2021 deserves to be accepted. 14. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds merit in the present petition and accordingly same is allowed. The 13 respondents are directed to grant actual monetary benefits to the petitioners from due date i.e. 06.09.2021 on account of their promotion to the post of DEPs from PETs. Since petitioners have been fighting for their rightful claim for quite long, this Court hopes and trusts that needful shall be done by the respondents expeditiously, preferably within a period of three months. Pending applications, if any, also stands disposed of. (Sandeep Sharma), Judge July 07, 2025 (shankar)