SHAMSHER SINGH, SUPERINTENDENT (RETD.), PUNJAB AND HARYANA HIGH COURT Vs. HIGH COURT OF PUNJAB AND HARYANA AND ORS.

JUDGEMENT

(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 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 result 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 orr 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 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.) THIS case makes reference and distinguishes yet another decision of its earlier ruling in Union of India and Ors. v. M. Bhaskar and Ors. : (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 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.