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2026 DAILYLAW 16930 (HP)

Dinesh Kumar Jaswal v. State of Himachal Pradesh

2026-03-18

Jiya Lal Bhardwaj

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JUDGMENT : JIYA LAL BHARDWAJ, J. 1. By way of present petition, the petitioner has prayed for following substantive reliefs:- “(i) Respondent may be directed to modify the notional-ad-hoc basis promotion orders of the applicant into regular promotion. (ii) Respondent may also be directed to release the arrears of pay and leave encashment in favour of the applicant as stated above. (iii) The respondents may be directed to pay the simple interest @ 12% per annum on the entire amount of pay arrears and leave encashment as stated above.” 2. The precise grouse of the petitioner as canvassed by the learned counsel, is that though the entire period of service rendered by the petitioner in the Indian Army, of 05 years, 10 months and 10 days, was subsequently taken into consideration for seniority, but as per office order dated 04.12.2013 (page 33), while giving promotion to the post of Range Forest Officer (Class-II, Gazetted), he was granted pay scale of Rs.5800-9200 (pre-revised) notionally on adhoc basis w.e.f. 01.10.2007, whereas he ought to have been granted promotion with all consequential benefits. 3. It has been pleaded in the petition that the petitioner had served the Indian Army w.e.f. 10.01.1969 to 20.11.1974 i.e. for 05 years, 10 months and 10 days. Later on, vide office order dated 22.11.1978 (Annexure A-1), the petitioner was appointed as Forest Guard in the respondents-Department and joined his services on 04.01.1979. 4. The petitioner retired from service on 31.10.2008 from the post of Deputy Ranger. After his retirement, the petitioner came to know that the respondents-Department had counted only 05 years of military service, which affected his seniority and further deprived him of promotion to the post of Range Forest Officer. Though the respondents had considered the period of service rendered by the petitioner with the Indian Army, for seniority and other benefits but only 05 years’ service was taken into account and on the representation made by the petitioner, the seniority position, which was earlier assigned to him at Serial No. 33, was changed to Serial No. 26, as evident from office order dated 15.11.2011 (Annexure A-10). The respondents-Department vide Notification dated 01.10.2007 had promoted the Deputy Rangers/Forest Guards to the post of Range Forest Officer (Class-II Gazetted), on the basis of recommendations of the Departmental Promotion Committee meeting held on 29.09.2007, but since the petitioner was not assigned the correct seniority position, which was rectified vide office order dated 15.11.2011 (Annexure A-10), his name was not considered in the Departmental Promotion Committee meeting convened on 29.09.2007. 5. The petitioner after re-fixation of his seniority position by taking into consideration the entire service rendered by him with the Indian Army of 05 years, 10 months and 10 days, made a representation to the respondents-Department, which was accepted and vide office order dated 04.12.2013, he was promoted as Range Forest Officer (Class-II, Gazetted), in the pay scale of Rs.5800-9200 (pre-revised) notionally on adhoc basis w.e.f. 01.10.2007, in view of the previous notification dated 01.10.2007 (Annexure A-11). 6. The service benefits, except for the period from 01.10.2007 to 31.10.2008, have been paid to the petitioner who retired from service on 31.10.2008, for the reason that he was notionally promoted to the post of Range Forest Officer (Class-II, Gazetted), on adhoc basis w.e.f. 01.10.2007. 7. The petitioner after his promotion made vide order dated 04.12.2013, requested for the release of entire benefits and vide office order dated 05.08.2016 (Annexure A-18), his claim was rejected in view of his notional promotion made vide office order dated 04.12.2013. The petitioner has claimed in the petition that he may be granted the arrears of his revised pay w.e.f. 01.10.2007 to 31.10.2008 and leave encashment as due in his favour. 8. The respondents filed reply to the petition and submitted that the petitioner was initially appointed as Forest Guard w.e.f. 04.01.1979 and thereafter promoted to the rank of Deputy Ranger w.e.f. 01.12.1999. The petitioner was earlier assigned the seniority at Serial No.33, however, later on vide office order dated 15.11.2011, after considering his representation, he was assigned seniority at Serial No. 26. The petitioner has been granted the benefit of military service of 05 years, 10 months and 10 days, and further, he has been promoted notionally on adhoc basis w.e.f. 01.10.2007, when his immediate junior Sh. Surinder Singh was promoted. The pay of the petitioner on the promotional post was re-fixed and after sanctioning the revised pension and other pensionary benefits, he has been paid accordingly. Surinder Singh was promoted. The pay of the petitioner on the promotional post was re-fixed and after sanctioning the revised pension and other pensionary benefits, he has been paid accordingly. Since the petitioner was promoted notionally on adhoc basis after his retirement and further, he had not worked against the promotional post, he is not entitled for arrears on account of pay fixation and leave encashment. 9. The petitioner has filed rejoinder to the reply and controverted the facts pleaded in the reply. 10. I have heard the learned counsel for the parties and also perused the case file carefully. 11. Learned counsel for the petitioner has vehemently argued that once there was no mistake and fault on the part of the petitioner, who had apprised the respondents to count his entire period of military service rendered by him of 05 years, 10 months and 10 days, he was entitled to the actual salary of the post of Range Forest Officer w.e.f. 01.10.2007 to 31.10.2008. The respondents had only counted 05 years’ service for the purpose of assigning the seniority to the petitioner instead of 05 years, 10 months and 10 days. He further argued that the petitioner had made a representation to the respondent-Department and the respondents had rectified their mistake and assigned seniority to the petitioner taking entire period of service while issuing the office order dated 15.11.2011 (Annexure A-10), whereby he was assigned seniority position at Serial No. 26 instead of Serial No. 33, earlier assigned to him. He also argued that the persons, who were junior to him, had already been promoted from the post of Deputy Rangers/Forest Guards to the post of Range Forest Officer, vide notification dated 01.10.2007 (Annexure A-11) and the respondents after noticing the mistake committed by them, had issued the office order dated 04.12.2013, thereby granting the promotion to the petitioner as Range Forest Officer w.e.f. 01.10.2007, when his juniors were promoted, but on notional basis. Since there was no fault on the part of the petitioner, he was entitled to get all the benefits w.e.f. 01.10.2007, including monetary benefits, and period of benefits is only of about one year and one month. 12. Since there was no fault on the part of the petitioner, he was entitled to get all the benefits w.e.f. 01.10.2007, including monetary benefits, and period of benefits is only of about one year and one month. 12. It is not in dispute that the mistake is on the part of the respondents, who had rectified the same firstly by assigning the correct seniority to the petitioner, vide office order dated 15.11.2011 (Annexure A-10) and thereafter, by promoting him to the post of Range Forest Officer, vide office order dated 04.12.2013, but on notional basis. Once the petitioner had been raking up his issue before the Competent Authority and further the Competent Authority had also rectified the mistake, bonafidely committed by them, while assigning the seniority position to the petitioner and thereafter promoted him to the post of Range Forest Officer, the petitioner cannot be denied the monetary benefits. 13. Learned Additional Advocate General has vehemently argued that once the Competent Authority had passed an order granting the promotion to the petitioner as Range Forest Officer on notional basis and further the mistake was not intentional, but bonafide, no monetary benefits can be extended to the petitioner on the principle of ‘no work no pay’. The said contention is rejected for the reason that once it was the fault on the part of the respondents not to count the entire service rendered by the petitioner in the Indian Army and furthermore after rectifying the said mistake, the petitioner was assigned the correct seniority position vide office order dated 15.11.2011, the delay, if any, in passing the order giving the actual promotion, is on the part of the respondents. The petitioner had submitted the application on 06.09.1999 (Annexure A-3), specifically mentioning his entire period of service rendered with the Indian Army which was of 05 years, 10 months and 10 days. It is not the case of the respondents that the said service is not to be counted for the purpose of granting seniority and other service benefits to the petitioner, but the only mistake which had been committed by the respondents-Department was that instead of counting full military service, only 05 years’ service was taken into account, which was later on rectified, when the orders were issued by the respondents. 14. 14. This Court could have denied the benefit of the period had there been some mistake on the part of the petitioner. The petitioner had been pursuing his cause with the respondents-Department and the Competent Authority had also acted upon the same, but while passing the order on 04.12.2013, the grievance of the petitioner was though redressed, but the financial benefits were not given to him, from the date, when his juniors were promoted on notional basis. The principle of ‘no work no pay’ may have been attracted had the petitioner intentionally not worked for the period. However, in the present case, the petitioner once having been promoted to the post of Range Forest Officer without the intervention of the court, he is entitled to all actual monetary benefits from the date of his promotion till his retirement. This Court can also not ignore the fact that the petitioner had served with the Indian Army to defend the nation and lieu of his services, he was appointed as Forest Guard with the respondents as an ex-serviceman. It is settled law that generally when a promotion is made from retrospective date, an employee is entitled to all service benefits. Reference in this regard is made to the judgment by a three-Judge Bench of the Hon’ble Supreme Court in Union of India and others vs. K.V. Jankiraman and others, (1991) 4 SCC 109 and relevant para is reproduced as under: “26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum: However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so.” 15. The Hon’ble Supreme Court in the recent judgment passed K. Samba Moorthy vs. Sanjiv Chadha and others, 2025 INSC 110 had also upheld the order passed by the learned Single Bench, whereby the order of penalty was set aside and the petitioner was held entitled to all consequential benefits that too when the employee had filed SLP against the dismissal of the contempt petition filed by him. Relevant para is reproduced hereunder: “30. Relevant para is reproduced hereunder: “30. Insofar as promotion with effect from 28.07.2001 for the post of Manager Grade-III is concerned, we order that the Appellant should be granted the same with all monetary benefits since the fundamental defect in the enquiry was due to no fault of the Appellant. The defect was also accepted by the Bank when they did not press the appeal. The benefit of promotion to Manager Grade-III from 28.07.2001 is covered in the expression “consequential benefits” as ordered in the judgment of the learned Single Judge dated 20.07.2017 in Writ Petition No. 7616 of 2008. We say so on the facts of the present case.” 16. In the present case, the respondents, on their own, rectified the mistake when they assigned correct seniority position to the petitioner and thereafter ordered his promotion to the post of Range Forest Officer w.e.f. 01.10.2007 knowing fully well that the petitioner had retired on 31.10.2008, but on notional basis. Since the petitioner had been promoted by the respondents at their own even after his retirement, they cannot deny the actual monetary benefits, especially when there is no fault on the part of the petitioner and further, this Court is also persuaded by the fact that the petitioner has served the nation for 05 year, 10 months and 10 days. This Court could have taken a different view if the petitioner had not served the Indian Army and furthermore, the respondents had not promoted him even after his retirement, that too, without the intervention of Court. 17. Consequently, the present petition is allowed and the office order dated 04.12.2013 as well as communication dated 05.08.2016 are quashed and set aside and the respondents are directed to grant the petitioner actual monetary benefits of the post of Range Forest Officer w.e.f. 01.10.2007, within three months from today. In case the financial benefits are not paid to the petitioner within three months from today, the same shall carry interest at the rate of 6% per annum from the due date, till its payment. However, no orders as to cost. Pending application(s), if any, also stand disposed of.