Writ Petition No.5882 of 2000

31st January, 2003

Petitioner Counsel: Mr. M.G. BURDE
Respondent Counsel: Mr. S.M. DHARAP, Mr. S.M. SHAH

Cases Cited:
Vasant Rao Raman Vs. The Union of India, Civ.App.No.709 of 1993 dt: 4-3-1993 [Para 2,3,4,12,13]
Union of India Vs. K.V. Jankiraman, (1993) 23 Administrative Tribunals Cases [Para 2,10,12]
State of Mysore Vs. C.R. Seshadr, Civ.App.NO.875 of 1968 dt: 10.01.1974.......2 [Para 2]
Ajit S. Bhatia Vs. Union of India, Ori.App.No.323 of 1988 dt: 28-4-1993 [Para 2]
Paluru Ramkrishnaiah Vs. Union of India, , 1989(2) SCC 541 [Para 8,9]
Telecommunication Engineering Services Association Vs. Union of India, 1994(2) Administrative Tribunal Judgments [Para 8,10]

JUDGMENT

R.M. LODHA, J :- The rule 'no work no pay' whether is attracted in the facts of the present case and if that be so can the Central Administrative Tribunal be said to have erred in refusing to grant arrears of salary to the Petitioner consequent upon notional promotion given to him is the question raised in the present Writ Petition.

2. The aforesaid question arises in the circumstances which we very briefly indicate hereunder:

The Petitioner filed an Original Application before Central Administrative Tribunal, Mumbai Bench, Mumbai raising the grievance that he ought to have been promoted to Senior Time Scale and J.A.G. post from the date his juniors were promoted. The Petitioner sought for correction of the seniority list by placing him above the juniors who were promoted without considering his case. He also sought for correction of the combined seniority list as well as arrears of pay and allowances to him as the consequence of the above relief. The Original Application was filed by the Petitioner somewhere in the year 1993 though according to him he was unjustifiably deprived of promotion in the year 1987 when his juniors were promoted. It is not in dispute that during the pendancy of Original Application before the Tribunal, the Petitioner was given notional promotion to the Senior Time Scale with effect from 29th February 1988, the date on which he completed the requisite four years service. The petitioner was also notionally promoted to J.A.G. cadre from the date his juniors were promoted and necessary correction in the seniority list to that extent was also made. However the Petitioner, before Tribunal, insisted that he ought to have been given promotion to the Senior Time Scale and J.A.G. post with effect from 30th June 1987 as his juniors were promoted from that date. The Tribunal considered the grievance of the Petitioner in that regard and by the order dated 5th July 1999 directed Respondents to consider him for notional promotion from 30th June 1987, the date on which his juniors were promoted to the Senior Time Scale and to give him consequential fixation of pay if he was promoted from that date as he is entitled. As regards Petitioner's claim for arrears of salary consequent to notional promotion given to him, the Tribunal did not accede to that prayer. Aggrieved thereby, the present Writ Petition has been filed. The Petitioner appears in person and strongly relies upon the following judgment:

(i) Vasant Rao Raman Vs. The Union of India, through the Central Railway, Bombay and others, Civil Appeal No.709 of 1993 decided by the Supreme Court of India on 4th March 1993;

(ii) Union of India and others Vs. K.V. Jankiraman and others (1993) 23 Administrative Tribunals Cases, Page 322;

(iii) State of Mysore Vs. C.R. Seshadri and others, Civil Appeal No.875 of 1968 decided on 10th January 1974; and

(iv) Ajit S. Bhatia Vs. Union of India and another, Original Application No.323 of 1988 decided on 28th April 1993.

The first three judgments cited by the Petitioner have been delivered by Supreme Court of India and the fourth judgment is of Central Administrative Tribunal.

3. In Vasant Rao Raman, the Supreme Court was seized with a matter where a driver in the Central Railway filed a Petition in the High Court of Madhya Pradesh initially which was transferred to Central Administrative Tribunal later on. The Tribunal by its order allowed the Original Application filed by the driver and directed the Respondents to fix his seniority as Shunter "B" with effect from 17th June 1961 and as Driver "C" with effect from 17th December 1965. The Tribunal further directed that his increments shall be granted and counted with reference to the dates of seniority in the higher grade, but he shall not get any arrears of emoluments. The employee went in appeal to Supreme Court claiming that he was entitled to arrears of emoluments and there was no ground or justification to deny the same. The Apex Court in paragraph 4 of the judgment observed thus:

"4. In our view, the Tribunal was wrong in applying the aforesaid memorandum in the case of the appellant before us. Admittedly, neither the appellant had been put under suspension nor any disciplinary proceedings were pending against him. On the contrary, he had been made to suffer on account of administrative reasons for which the appellant was not responsible. There was shortage of literate Shunters at Gwalior during 1960. The appellant being literate was deputed for table work and therefore for administrative reasons he could not complete requisite number of firing kilometer. Thus with no fault on his part his juniors had been promoted as Shunters and Drivers and his claim was ignored on account of having not completed the requisite number of firing kilometers. The Tribunal itself has allowed the claim of the appellant regarding seniority over his juniors, considering force in the contention of the appellant. Thus, in the facts and circumstances of this case, we find no justification whatsoever for not allowing the arrears of emoluments to the appellant of the post of Shunter "B" from 12.6.1961 and that of the post of Driver "C" from 17.12.1965."

4. In the case of K.V. Jankiraman, the employee was facing disciplinary/criminal proceedings and the sealed cover procedure was adopted when he was due for promotion. In this background when the matter went before the Supreme Court, the Apex Court observed that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was blameworthy in the least, he should not be deprived of any benefits including the salary of promotional post. Dealing with the contention that a person cannot be allowed to draw the benefits of a post, the duties of which he has not discharged, the Apex Court in paragraph 25 of the report held thus :

"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."

5. In C.R. Seshadri and others, the Apex Court in paragraph 2 of the judgment held thus :

"2. Flowing from this finding is the direction by the High Court to give the petitioner notional promotion as Deputy Secretary with effect from the date on which one R.Venkataraman, next below him, secured such promotion and for payment of the excess salary accruing to him on that footing. This part of the judgment is attacked as beyond the power of the Court. We see the soundness of this submission. In our constitutional scheme, a broad three-fold division exists. The power to promote an officer belongs to the Executive and the judicial power may control or review government action but cannot extend to acting as if it were the Executive. The Court may issue directions but leave it to the Executive to carry it out. The judiciary cannot promote or demote officials but may demolish a bad order of Government or order reconsideration on correct principles. What has been done here is in excess of its jurisdiction. Assuming the petitioner's seniority over Venkataraman, how can the Court say that the former would have been for certain, promoted ? Basically, it is in Government's discretionary power, fairly exercised, to promote a government servant. If the rule of promotion is one of sheer seniority it may well be that promotion as a matter of course. On the other hand if seniority-cum-merit is the rule, as in the Supreme Court decisions cited before us, promotion is problematical. In the absence of positive proof of the relevant service rule, it is hazardous to assume that by efflux of time the petitioner would have spiraled up to Deputy Secretaryship. How could be speculate in retrospect what the rule was and whether the petitioner would have been selected on merits, and on the strength of such dubious hypothesis direct retro-active promotion and back pay ? The frontiers of judicial power cannot be stretched thus far. The proper directions can only be that Government will re-consider the case of the petitioner afresh for purposes of notional promotion. If the service rule entitles him to promotion on the ground of seniority alone, Government will, except for the strongest reason, grant the benefit of promotion with effect from the date Venkataraman became Deputy Secretary. Nothing has been suggested against the petitioner in his career to disentitle him to promotion and we have no doubt Government will give him his need. However, if the criterion for promotion is one of seniority-cum-merit, comparative merit may have to be assessed if length of service is equal or an outstanding junior is available for promotion. On the facts before us, there is no reason to regard the petitioner's eligibility on merit for Deputy Secretaryship to be denied or delayed when Venkataraman was promoted."

6. What was laid down by Apex Court in the aforesaid judgment was that the judicial authority has no power to direct notional promotion from back date and the proper direction can only be that Government shall re-consider the case of Petitioner afresh for the purposes of notional promotion. If the service rule entitles him to promotion on the ground of seniority alone, Government will, except for the strongest reason, grant the benefit of promotion with effect from the date his junior became Deputy Secretary.

7. In Ajit S. Bhatia, the Central Administrative Tribunal held that in the circumstances of the case the incumbent was entitled to arrears of pay in the promotional post even for the period between the dates of deemed promotion and actual promotion.

8. Mr. Dharap, learned Counsel for Respondents, on the other hand relied on two judgments of the Apex Court in Paluru Ramkrishnaih & Ors. Vs. Union of India & Anr., 1989 (2) SCC page 541 and Telecommunication Engineering Services Association & (India) anr. Vs. Union of India & anr., 1994 (2) Administrative Tribunal Judgments page 404.

9. In Paluru Ramkrishnaiah, the Supreme Court observed that it was well settled rule that there has to be no pay for no work although after due consideration as person is given the proper place in the gradation list having deemed to be promoted to the higher post with effect from the date his junior was promoted. At the most he would be entitled to refixation of his present pay on the basis of notional seniority granted to him so that his present salary would not be less than those who are immediately below him.

10. In Telecommunication Engineering Services Association, the Apex Court considered Paluru Ramkrishnaiah as well as K.V. Jankiraman and in paragraphs 8,9,10 and 11 held thus :

"8. The only question which survives relates to declining the order for payment of back wages from the due date of promotion to the petitioners before the Tribunal and some of the appellants/ petitioners before us.

9. It would be noticed that the judgment of the Allahabad High Court was delivered in writ petitioners which were filed by two individuals as far back as 1981 and the judgment was delivered in 1985 which was affirmed by this Court on 8th April, 1986. Most of the petitioners before the Tribunal filed their applications claiming promotion from earlier date on the basis of the Allahabad High Court judgment only in 1988. They will get refixation of their seniority and notional promotion with retrospective effect and would be entitled to fixation of their present pay which should not be less than to those who are immediately below them and the question is only whether they would be entitled to back wages from the date of notional promotion. We are of the view that the Tribunal was justified, in view of the peculiar circumstances of the case and enormity of the problem dealing with 10,000 persons, in deciding to grant back wages except with effect from the date they actually worked on the higher post. The same view was taken by this Court in the aforesaid judgment of Paluru Ramakrishanaiah and others while this Court declined similar reliefs.

10. Learned counsel for the petitioners relied upon the decision of this Court in Union of India and others Vs. K.V. Jankiraman and others, (1991) 4 SCC 109.

11. It will be noticed that Jankiraman's matter related to a case where the point involved was as to what benefits as employee, who is completely or partly exonerated in disciplinary/criminal proceedings, is entitled to and from which date in case involving sealed cover procedure. The Bench in Jankiraman's case was not dealing with the case of due date of promotion on revision of seniority as a result of any decision of the Court effecting thousands of employees and revised seniority list being prepared in pursuance thereof and notional promotion being granted with retrospect effect. The Special Leave Petition No.16698 of 1992 is accordingly dismissed."

11. The Supreme Court thus declined relief of payment of backwages from the date notional promotion was given.

12. As regards K.V. Jankiraman's case, the Supreme court in Telecommunication Engineering Services Association, held that the said matter related to a case where the point involved was as to what benefit an employee who was completely or partly exonerated in the disciplinary/criminal proceedings, is entitled to and from which date in a case involving sealed cover procedure. Jankiraman's case was not a case, as observed by the Supreme Court, dealing with the case of due date of promotion on revision of seniority as a result of any decision of the Court.

13. The ordinary and the general rule is no pay for no work and, therefore, an incumbent who has not worked on a particular post, would not be entitled to the pay for same. On the basis of notional promotion given, such incumbent, obviously, shall be entitled to refixation of his present pay. This is done to ensure that his present salary would not be less than his juniors. In the peculiar facts and circumstance of the case, if an incumbent has been wrongfully denied his lawful claim of promotion and is made to suffer on account of administrative reasons for which he was not responsible, the Court in such case keeping in view peculiarity of the facts and circumstances obtaining therein may order payment of arrears when the incumbent is given promotion as was done in Vasant Rao Raman's case. But this would be an exception. In the present case we find no special fact or circumstance which necessitates deviation from the principle of no work no pay. As a matter or fact, the Petitioner has disentitled himself to the arrears of pay though he has been given notional benefit of promotion by the department during the pendency of Original Application with effect from 29th February 1988 since he moved the Central Administrative Tribunal in the year 1993. As we have already noted above, though the Petitioner claims that he was wrongfully denied promotion in the year 1987 when his juniors were promoted, admittedly Petitioner took up the matter to the Tribunal in the year 1993. Delay in pursuing the remedy by the Petitioner, definitely is a very strong circumstance which disentitles Petitioner from arrears of salary on the promotion post which was given to him notionally by the Department with effect from 21st February 1988. Taking overall facts and circumstances of the case, we find no justifiable reason to take the view different from what has been taken by the Central Administrative Tribunal in that regard.

14. Writ Petition is accordingly dismissed with no order as to costs. Rule discharged. However, we direct the Respondents to consider Petitioner for notional promotion from 30th June 1987 as directed by the Tribunal in its order dated 5th July 1999 expeditiously and without any further delay and in no case later than three months from the date of receipt of this order.

15. Certified copy expedited.

Petition dismissed.