Central Administrative Tribunal - Bangalore
Bhawna Varshney vs Income Tax Department on 3 June, 2025
1
O.A.No.170/606/2024/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00606/2024
& M.A 170/619/2024
Order reserved on : 26.04.2025
Date of Order: 03.06.2025
CORAM:
HON'BLE MR.JUSTICE B.K SHRIVASTAVA, MEMBER (J)
HON'BLE MR.SANTOSH MEHRA, MEMBER (A)
Bhawna Varshney
W/o Shri.Rahul Gupta
Aged about 35 years, Sr.TA
O/o the Pr.Chief Commissioner of Income Tax
CR Building, Queens Road
Bangalore-560 001 ......Applicant
(By Advocate: Shri.T.C.Gupta)
Vs.
1. Union of India, through the Finance Secretary
Ministry of Finance, North Block
New Delhi- 110 001
2. Pr.Chief Commissioner of Income Tax
Karnataka & Goa Region
Queens Road, Bangalore - 560 001 ....... .Respondents
(By Advocate Shri.Vishnu Bhat)
SHAINEY VIJU
SHAINEBangalore
CAT
Y VIJU 2025.06.09
16:10:19+05'30'
2
O.A.No.170/606/2024/CAT/BANGALORE
ORDER
PER: JUSTICE B.K SHRIVASTAVA, MEMBER (J)
This Original Application has been filed on 17.10.2024 along with a Miscellaneous Application No.170/619/2024 for condonation of delay, seeking a direction to the respondents to conduct review DPC and consider the name of the applicant for promotion as Senior Tax Assistant from 15.1.2021 with all consequential benefits. The reliefs claimed in paragraph 8 of the Original Application are as follows:
"A) In view of the facts and grounds enumerated above, it is most respectfully prayed that the respondents may be directed to conduct review DPC and consider the name of the applicant for promotion as Sr.T.A from 15.1.2021, with all consequential benefits.
B) Any other appropriate writ, order or direction, which may be considered just and proper in the facts and circumstances of the case, may be issued in favour of the applicant."
2. The applicant also filed M.A No.170/619/2024 to condone the delay in filing the Original Application. The respondents opposed the aforesaid Miscellaneous Application. After consideration, looking to the reasons assigned, by taking a liberal approach, the M.A No.619/2024 is allowed, and the delay is hereby condoned.
SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 3 O.A.No.170/606/2024/CAT/BANGALORE
3. As per the applicant, she joined the service as Tax Assistant in the Income-tax Department, Lucknow Region on 1.8.2016. Thereafter, upon inter-charge transfer, she joined the Karnataka & Goa Region on 20.11.2020. She completed qualifying service of three years as Tax Assistant on 31.07.2019 and became eligible for promotion as Sr.T.A w.e.f 01.08.2019. The respondents issued the promotion order dated 15.1.2021, but the name of the applicant has not been considered in the aforesaid list. She filed representation dated 07.09.2021, but no action has been taken by the respondents.
4. The respondents filed their reply statement on 23.01.2025. It is submitted by the respondents that the applicant herself submitted the representation for inter-charge transfer on 19.12.2019. Thereafter, she also executed an undertaking on a stamp paper on 19.2.2020 vide Annexure R-2. The applicant reported for duty in Karnataka & Goa Region on 20.11.2020 in pursuance of an office order dated 13.10.2020. Because the applicant was already promoted as Senior Tax Assistant in Lucknow region, therefore as per rule, after receiving the inter-charge transfer order, she was reverted to the post of Tax Assistant and relieved on 19.11.2020. The claim of the applicant to consider her VIJU SHAINEY as eligible for promotion to the post of Senior Tax SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 4 O.A.No.170/606/2024/CAT/BANGALORE Assistant by counting the services rendered by her in UP East Lucknow region is in violation of the conditions stipulated in the order approving her inter-charge transfer.
5. It is submitted by the applicant that, for the purpose of eligibility, her previous service should be counted as per the judgment passed by the Hon'ble Supreme Court in the case of Pratibha Rani v. Union of India and Others in Civil Appeal Nos.3792-3793 of 2019, dated 10.4.2019. On the other hand, it is submitted by the respondents that, in the case of Pratibha Rani (Supra), the Hon'ble Supreme Court has not issued any directions for implementation of the aforesaid order in identical cases also. Therefore, the aforesaid decision is not applicable in the case of the applicant herein.
6. In this case, the consequential benefits are also claimed by the applicant. While the respondents opposed the aforesaid prayer, it is submitted by the respondents' counsel that in the case of notional promotion, consequential benefits cannot be granted. The respondents also draw our attention towards the order dated 13.2.2025 passed by the Division Bench of this Tribunal in O.A. No.353/2024 and submit that in the aforesaid case, upon the basis of Law established by Supreme Court, the Tribunal refused to grant the arrear of pay and SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 5 O.A.No.170/606/2024/CAT/BANGALORE allowances in the case of retrospective promotion / notional promotion.
7. The applicant opposed the aforesaid contention of the respondents and submitted that the aforesaid case should be treated as per-incurium because, in several cases, the Tribunal had already granted consequential benefits, including pay and arrears. As per the learned counsel for the applicant, the bench was bound to follow the orders passed by other benches in earlier cases.
8. Therefore, following two questions are available for consideration in this Original Application:-
1. Whether the service rendered by the applicant in the previous region should be counted for the purpose of her eligibility for promotion as Senior Tax Assistant?
2. If the notional promotion is granted, then whether the applicant will be entitled to the arrears of pay and allowances as Senior Tax Assistant with effect from the date of Notional Promotion?
9. In this case, it transpires from the pleadings of both parties that it is not disputed that initially applicant was appointed as Tax SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 6 O.A.No.170/606/2024/CAT/BANGALORE Assistant in the Income Tax Department, Lucknow region on 01.08.2016. The applicant qualified in the departmental examination for ministerial staff on 31.12.2018 and was promoted to the post of Senior Tax Assistant on 01.01.2019 in Lucknow region. The applicant applied for an inter-charge transfer to Karnataka and Goa region on compassionate grounds vide her representation dated 19.12.2019. The consent was given by the Office of the Principal Chief Commissioner of Income Tax, Karnataka and Goa Region, Bengaluru on 10.2.2020 vide Annexure R/1. Thereafter, the inter-charge transfer order was issued on 13.10.2020. When the order of inter-charge transfer was issued, thereafter, as per the rules and circulars prevailing at that time, the applicant was reverted to the post of Tax Assistant. Thereafter, she was relieved from Lucknow region on 19.11.2020 and joined the Karnataka and Goa region on the next day, on 20.11.2020.
10. For promotion to the post of Senior Tax Assistant, the first requirement is three years' service as Tax Assistant and second is the clearance of the departmental examination. It is not disputed that the applicant cleared the departmental examination for ministerial staff during the period of previous posting on 31.12.2018.
SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 7 O.A.No.170/606/2024/CAT/BANGALORE
11. As per the respondents, the cut-off date for determining the eligibility services was 1st January of the relevant vacancy year. It is again submitted that because the applicant joined the region only on 20.11.2020, therefore she did not completed the requisite qualifying service of three years as Tax Assistant in the region of Karnataka & Goa for the vacancy year 2021.
12. The applicant opposed the aforesaid contention and submitted that, for the purpose of eligibility, her previous service in Lucknow region should also be counted as per the judgment of Supreme Court in Pratibha Rani and Ors. v. Union of India and Ors. (supra). Therefore she was eligible for consideration.
13. In the case of Renu Mullick v. Union of India, (1994) 1 SCC 373 : 1994 SCC (L&S) 570 : (1994) 26 ATC 602 = AIR 1994 SC 1152 [19.11.1993] the Supreme Court said that transferee is not entitled to count the service rendered by him / her at the former place of posting for the purpose of seniority, but the past service at the previous place cannot be ignored for the purposes of determining her eligibility for consideration of promotion. In para 10 the Court held :-
"10. We are of the view that the Tribunal fell into patent error in dismissing SHAINEY VIJU the application of the appellant. A bare reading of SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 8 O.A.No.170/606/2024/CAT/BANGALORE para 2(ii) of the executive instructions dated May 20, 1980 shows that the transferee is not entitled to count the service rendered by him /her in the former collectorate for the purpose of seniority in the new charge. The later part of that para cannot be read differently. The transferee is to be treated as a new entrant in the collectorate to which he is transferred for the purpose of seniority. It means that the appellant would come up for consideration for promotion as per her turn in the seniority list in the transferee unit and only if she has put in 2 years' service in the category of UDC. But when she is so considered, her past service in the previous collectorate cannot be ignored for the purposes of determining her eligibility as per Rule 4 aforesaid. Her seniority in the previous collectorate is taken away for the purpose of counting her seniority in the new charge but that has no relevance for judging her eligibility for promotion under Rule 4 which is a statutory rule. The eligibility for promotion has to be determined with reference to Rule 4 alone, which prescribes the criteria for eligibility. There is no other way of reading the instructions aforementioned. If the instructions are read the way the Tribunal has done, it may be open to challenge on the ground of arbitrariness."
14. The Supreme Court in Union of India v. C.N. Ponnappan [(1996) 1 SCC 524 : 1996 SCC (L&S) 331 : AIR 1996 SC 764] has held that where an employee is transferred from one unit to another on compassionate grounds and is placed at the bottom of the seniority list, the service rendered by him at the earlier place from where he has been transferred, being regular service, has to be counted towards experience and eligibility for promotion.
SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 9 O.A.No.170/606/2024/CAT/BANGALORE
15. Again in the case of Scientific Advisor to Raksha Mantri v. V.M. Joseph, (1998) 5 SCC 305 : 1998 SCC (L&S) 1362 [01.04.1998] the Supreme Court said that even if an employee is transferred at his own request, from one place to another on the same post, the period of service rendered by him at the earlier place where he held a permanent post and had acquired permanent status, cannot be excluded from consideration for determining his eligibility for promotion, though he may have been placed at the bottom of the seniority list at the transferred place. Eligibility for promotion cannot be confused with seniority as they are two different and distinct factors.
16. In the case of Pratibha Rani & others vs. Union of India [Civil Appeal No. 3792/2019 decided on 10.04.2019, by Full Bench of three judges of Hon'ble Apex Court] the question was considered "whether in case of a compassionate transfer which is inter- region, the service rendered in the previous posting is liable to be counted in the new posting areas for purposes of eligibility for consideration of such promotion?"
17. In the aforesaid case of Pratibha Rani & others (Supra), the applicants were working as Tax Assistants and they were transferred SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 10 O.A.No.170/606/2024/CAT/BANGALORE on compassionate grounds and the department took the stand that as per the administrative instructions, the period spent in case of inter- region transfer in the previous region, could not be counted while posting such a person in a new region for eligibility for promotion. The Hon'ble Apex Court considered the C.N. Ponnappan (1996) and M.M. Thomas (2017) cases in para 3 & 4 and granted the relief in para 5 by saying that on transfer upon compassionate grounds, the service will be counted for eligibility for consideration of promotion. It will be useful to refer the paras 3, 4 & 5 as it is:-
"3. The aforesaid issue is no more res integra in view of the judgment of this Court in the case of Union of India & Ors. vs. C.N. Ponnappan (1996) 1 SCC 524 where this very issue was examined in the factual context of the same department as under:
" The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for the purpose of leave and retiral benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 11 O.A.No.170/606/2024/CAT/BANGALORE that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred.
4. We may also note that in the context of a different service, on the same principle and noticing C.N. Ponnappan's case (supra), in M.M. Thomas & Ors. vs. Union of India & Ors. (2017) 13 SCC 722, it was observed as under:
"Having heard the learned counsel appearing for the parties and upon perusal of the record, we are of the view that the words of the aforesaid Rule require five years' regular service "in the respective regions". Thus, these words must be understood to mean that the candidates should have served in the respective regions, that is, the regions where they were posted earlier and the region where they seek promotion all together for five years. Thus if a candidate has served in one region and then transferred to another, and seeks promotion in that region, the rule does not require that the candidate must have acquired experience of five years in the region where he seeks promotion, for being considered eligible. What is necessary is a total experience of five years. This must necessarily be so because the service to which the rival parties belong, is an All-India Service, in which the country is demarcated into several regions. In all-India Service, the officers are posted from one region to the other in a routine manner. The purpose of the rule is that such officers are not deprived of their experience in the feeder cadre merely because they have been transferred from one place to another."
5. Thus, it is quite clear that insofar as issue of eligibility of promotion is concerned, the service rendered in the previous region, prior to transfer on compassionate ground, will be counted towards service for eligibility for consideration of such SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 12 O.A.No.170/606/2024/CAT/BANGALORE promotion. That it is a non-transferable job, makes no difference on this aspect as service is rendered in the same cadre."
18. Therefore, it is clear from the aforesaid cases that even the seniority of the employee will be at the bottom of the concerned cadre in the new region, but the service period rendered in previous region will be taken into consideration for the purpose of leave and retiral benefits and also will be counted for the purpose of experience and eligibility for promotion. Therefore, the applicant was eligible for consideration against the posts of the year 2021.
19. The second question is related to the consequential benefits of Pay and Allowances. It is true that the Division Bench of this Tribunal (in which one of us, Justice Shri.B.K. Shrivastava, was the Member) decided the Original Application No.170/353/2024 on 13.2.2025 titled Moni Kumari v. Union of India and Ors. In the aforesaid case, the Division Bench denied the prayer for arrears of pay and allowances in the case of notional promotion. As per the learned counsel for the applicant, the aforesaid judgment is per-incurium. The counsel cited the decision of the Hon'ble Supreme Court dated 19th June 2020 passed in S. Kasi v. State through the Inspector of Police, SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 13 O.A.No.170/606/2024/CAT/BANGALORE Samaynallur Police Station, Madurai Criminal Appeal No.452/2020 (arising out of SLP (Crl.) No.2433/2020). In the aforesaid case, the Supreme Court placed reliance upon the State of Punjab and another v. Devans Modern Breweries Ltd. And Another [(2004) 11 SCC 26] and said that it is well settled that a co-ordinate bench cannot take a contrary view and, in the event there was any doubt, a co-ordinate bench can only refer the matter for consideration by a larger bench.
20. The counsel for the applicant cited Union of India and Ors. v. Satish Gaudappa Bagewadi and Ors., [Writ PetitionNo.13510/2022 (S-CAT) decided by Hon'ble High Court of Karnataka at Bengaluru on 07.11.2022. In the aforesaid case, the petition was dismissed. The court only mentioned in paragraph 8 that the dismissal of the writ petitions shall not come in the way of the petitioners seeking any clarification from the Tribunal so far as grant of consequential benefits, particularly regarding entitlement of arrears of salary for the period not worked. The entitlement for arrears of pay and allowances has not been decided in the aforesaid petition. The question was left open for consideration by the Tribunal.
21. The applicant also filed a copy of the order of this Tribunal dated SHAINEY 21st June VIJU 2016 passed in O.A No.170/1737/2015. In the SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 14 O.A.No.170/606/2024/CAT/BANGALORE aforesaid case, the Tribunal granted the arrears of salary from the date of notional promotion. But as per the respondents, Writ Petition No.20954/2024 filed against the aforesaid judgment is pending before the Hon'ble High Court of Karnataka. The applicant cited the case of Union of India v. K.V. Jankiraman (AIR 1991 SC 2010 equivalent to 1991 (4) SCC 109). Another judgment cited by the applicant in the case of Union of India and Ors v. Central Administrative Tribunal in Writ Appeal No.20430 of 2019, decided on 16.12.2019 by the Division Bench of Allahabad High Court, decided upon the basis of aforesaid case of K.V.Jankiraman. It appears from the aforesaid judgment that in paragraphs 37 and 38 the Hon'ble Court observed upon the basis of K.V.Janakiraman's case that the benefit of arrears cannot be granted automatically but will depend upon the circumstances of each case. The court also said that "In aforesaid authority it has been explained that reason of denial of promotion or alleged termination etc, if fault is attributable to the employer, employee will not suffer."
22. Another case cited by the applicant is the judgment E. Lakshmi Ganesh v. Union of India and another, passed by the Division Bench of this Tribunal in O.A. No.170/49/2023 dated 31.05.2024. In SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 15 O.A.No.170/606/2024/CAT/BANGALORE the aforesaid case, the relief has been granted upon the basis of fact that same relief was already granted to the similarly situated persons.
23. The learned counsel for the applicant also submitted the judgment passed by the Hon'ble Supreme Court in the case of Union of India v. B.M Jha AIR 2007 SC (Supp) 1396 , A.K.Soumini v. State Bank of Travancore, AIR 2003 SC 3137 decided on 14.08.2003 and the State of Haryana & Others v. O. P. Gupta Etc, AIR 1996 SC 2936 decided on 12.01.1996. The cases of A.K. Soumani (supra) and State of Haryana & Others (supra) are referred in the case of B.M. Jha (supra).
24. The Supreme Court in Paluru Ramkrishnaiah v. Union of India, (1989) 2 SCC 541 = 1989 SCC (L&S) 375 considered the direction issued by the High Court and upheld that there has to be "no pay for no work", i.e., a person will not be entitled to any pay and allowance during the period for which he did not perform the duties of higher post, although after due consideration, he was given a proper place in the gradation list having been deemed to be promoted to the higher post with effect from the date his junior was promoted. He will be entitled only to step up the scale of pay retrospectively from the deemed date but is not entitled to the payment of arrears of the SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 16 O.A.No.170/606/2024/CAT/BANGALORE salary. The same ratio was reiterated in Virender Kumar, G.M., N. Rlys. v. Avinash Chandra Chadha [(1990) 3 SCC 472 : 1991 SCC (L&S) 62.
25. In the case of Union of India v. K.V. Jankiraman, (1991) 4 SCC 109 = AIR 1991 SC 2010 the Supreme Court had held that where the incumbent was willing to work but was denied the opportunity to work for no fault of his, he is entitled to the payment of arrears of salary. In the aforesaid case the employee was kept under suspension during departmental enquiry and sealed cover procedure was adopted because of the pendency of the criminal case. When the criminal case ended in his favour and departmental proceedings were held to be invalid, the Court held that he was entitled to the arrears of salary.
26. In the case of State of Haryana & Ors. v. O.P. Gupta & Ors., (1996) 7 SCC 533 = 1996 SCC (L&S) 633 = AIR 1996 SC 2936 = 1996 AIR-SCW 862 [12.01.2096] there was inter se dispute regarding the promotion to the higher echelons of service which ultimately resulted in the order passed by Supreme Court on 7-8-1990 in Sushil K. Arora v. State of Haryana [ CA No. 3837 of 1990] and direction was given to the Government to prepare the seniority list in SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 17 O.A.No.170/606/2024/CAT/BANGALORE accordance with the directions. Following the directions, seniority list was prepared and promotions accordingly were given to about 90 eligible persons with the scale of pay to which they were eligible in the promoted posts. Promoted employees approached the High Court by filing writ petitions claiming payment of arrears. The High Court directed payment of arrears from the deemed date given in the seniority list to the date of their posting in the promotional posts. Thereafter matter reached to the Supreme Court. Court computed the deemed date as 1-1-1983. They have joined the duty on 1-12-1992. Therefore, the period for which they claimed the arrears was 1-1-1983 to 30-11-1992. Court also informed that some of them had retired even before that date and, therefore, they have been given notional promotion till the date of their retirement. The only controversy was before the Supreme Court "whether the respondents are entitled to arrears of salary for the period during which admittedly they had not worked but they had been given notional promotion from the deemed date".
26-A. The Court said that their contention that though they were willing to work, they were not given the work after posting them in promotional posts has no legal foundation. It was again observed thoughSHAINEY VIJU the deemed date has been given as 1-1-1983, the respondents SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 18 O.A.No.170/606/2024/CAT/BANGALORE cannot legitimately claim to have worked in those posts for claiming arrears and, as a fact, they did not work even on ad hoc basis. The Court observed in para 6 :-
"6. Having regard to the above contentions, the question arises whether the respondents are entitled to the arrears of salary? It is seen that their entitlement to work arises only when they are promoted in accordance with the Rules. Preparation of the seniority list under Rule 9 is a condition precedent for consideration and then to pass an order of promotion and posting to follow. Until that exercise is done, the respondents cannot be posted in the promotional posts. Therefore, their contention that though they were willing to work, they were not given the work after posting them in promotional posts has no legal foundation. ..........................As stated earlier, though the deemed date has been given as 1-1-1983, the respondents cannot legitimately claim to have worked in those posts for claiming arrears and, as a fact, they did not work even on ad hoc basis."
26-B. The Court referred and relied upon Paluru Ramkrishnaiah v. Union of India, (1989) 2 SCC 541 = 1989 SCC (L&S) 375 and differentiate the case of Union of India v. K.V. Jankiraman, (1991) 4 SCC 109 = AIR 1991 SC 2010 and said in para 8:-
"8. It is true, as pointed out by Shri Hooda, that in Union of India v. K.V. Jankiraman [(1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322 : AIR 1991 SC 2010] this Court had held that where the incumbent was willing to work but was denied the opportunity to work for no fault of his, he is SHAINEY entitledVIJU to the payment of arrears of salary. That is a case SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 19 O.A.No.170/606/2024/CAT/BANGALORE where the respondent was kept under suspension during departmental enquiry and sealed cover procedure was adopted because of the pendency of the criminal case. When the criminal case ended in his favour and departmental proceedings were held to be invalid, this Court held that he was entitled to the arrears of salary. That ratio has no application to the cases where the claims for promotion are to be considered in accordance with the rules and the promotions are to be made pursuant thereto."
26-C. After detailed discussion the Supreme Court said that the seniority list is prepared and finalised and promotions are made in accordance with the Rules and on the basis of the above seniority list, the question of entitlement to work in the promotional posts does not arise. Consequently, the payment of arrears of salary does not arise since, admittedly the respondents had not worked during that period.
27. In the case of State of A.P. v. K.V.L. Narasimha Rao, (1999) 4 SCC 181 : 1999 SCC (L&S) 841 : 1999 SCC OnLine SC 473[19.04.1999] the court denied the monetary benefits in the case of retrospective promotions. The Court said in para 4 and 5 :-
"4........ The High Court took the view that the provisions of Fundamental Rule 26 or Rule 40 of the Hyderabad Civil Services Regulations have no application to cases falling within the ambit of the Act and, therefore, there could be cases where SHAINEY grant ofVIJU notional promotion should not legitimately give rise to SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 20 O.A.No.170/606/2024/CAT/BANGALORE a valid claim for payment of arrears of salary either on the ground that the officer did not actually hold the post at the relevant time or otherwise. That principle could not be applied to the present case. A wrong had been committed in unduly delaying the finalisation of seniority and giving promotions thereto and hence denial of monetary benefits to them would be arbitrary in violation of Articles 14 and 16 of the Constitution.
5. In normal circumstances when the retrospective promotions are effected all benefits flowing therefrom, including monetary benefits, must be extended to an officer who has been denied promotion earlier. However, on the reorganisation of States a large number of officers stood allotted from different States to the newly-formed State and their services had to be integrated on various principles and several agencies were involved in the same. The steps to be taken thereto were one of formulation of principles, publication of a provisional inter-State seniority list, inviting objections thereto, consideration of those objections in consultation with the Central Government and acting upon its directions to bring the seniority list in conformity with such directions. This entire exercise involved a good deal of time and gave rise to an extraordinary situation. It is in those circumstances that the rules contained in Fundamental Rule 26 or Rule 40 of the Hyderabad Civil Services Regulations have been framed. As a matter of fact, rules of the erstwhile State regarding seniority are not applicable in the new State as the allottees are governed by the Act and seniority is finalised therein. Even so, we do not see that there is any impediment to frame new rules affecting conditions of service of such allottees but in conformity with the Act. Surely new rules cannot be brushed aside by saying that they are not applicable to cases coming under the Act. There is no contention either in the High Court or before us that they are framed in contravention of the Act. In this background, we fail to see as to why the rules are not applicable to the respondents as held by the High Court."
SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 21 O.A.No.170/606/2024/CAT/BANGALORE
28. In the case of Union Of India vs B.M. Jha, 2007 AIR SCW 7023 = 2007 (11) SCC 632 = AIR 2007 SC (SUPP) 1396 = (2007) 8 SUPREME 135, (2007) 12 SCALE 630 [decided on 24 October, 2007], the court referred the State of Haryana & Ors. v. D.P. Gupta & Ors., [1996] 7 SCC 533 and State of Andhra Pradesh v. K.V.L. Narasimha Rao & Ors., (1999) 3 SC 205. In the case of B.M. Jha retrospective promotion was granted but the arrears of pay and allowances was not granted. The C.A.T. Principal Bench considered the matter and passed the order dated 11.01.2000 and said that since the respondents granted retrospective promotion from 27.08.1984 therefore, he must be paid arrears of pay and allowances for the higher post for the period 27th August, 1984 till 5th February, 1992. Against the aforesaid order, a writ was filed before the High Court and the High Court dismissed the writ. Thereafter, the Division Bench of the High Court of Delhi upheld the order dated 11.01.2000 passed by the C.A.T. Principal Bench. The matter travelled up to the Hon'ble Supreme Court and the Supreme Court allowed the appeal and set aside the impugned orders passed by High Court of Delhi as well as C.A.T Principal Bench. The Supreme Court said that in the case of retrospective promotion the employee will not be entitled to the SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 22 O.A.No.170/606/2024/CAT/BANGALORE pay of promotional post upon the basis of the principle of "no work no pay". The Supreme Court observed as under:-
"We have heard learned counsel for the parties. It was argued by learned counsel for the respondent that when a retrospective promotion is given to an incumbent normally he is entitled to all benefits flowing therefrom. However, this Court in the case of State of Haryana & Ors. v. D.P. Gupta & Ors., [1996] 7 SCC 533 and followed in the case of A.K. Soumini v. State Bank of Travancore JT (2003) 8 SC 35 has taken the view that even in case of a notional promotion from retrospective date, it cannot entitle the employee to arrears of salary as the incumbent has not worked in the promotional post. These decisions relied on the principle of no work no pay. The learned Division Bench in the impugned judgment has placed reliance on the case of State of Andhra Pradesh v. K.V.L. Narasimha Rao & Ors., (1999) 3 SC 205. In our view, the High Court did not examine that case in detail. In fact, in the said judgment the view taken by the High Court of grant of salary was set aside by this Court. Therefore, we are of the view that in the light of the consistent view taken by this Court in the abovementioned cases, arrears of salary cannot be granted to the respondent in view of the principle of no work no pay in case of retrospective promotion. Consequently, we allow this appeal and set aside the impugned order of the High Court dated 17.5.2000 passed by the Division Bench of the High Court as also the order dated 11.1.2000 passed by the Central Administrative Tribunal, Principle Bench. The appeal is allowed. No order as to costs."
29. In the case of Kunwar Pal Singh Swarn Vs. Union of India etc., 2024 [1] (CAT) SLJ 67 [O.A. 589 of 2010 decided by CAT SHAINEY VIJU Allahabad CAT on 20.10.2023 by D.B.] the Tribunal considered Union of SHAINE Bangalore Y VIJU 2025.06.09 16:10:19+05'30' 23 O.A.No.170/606/2024/CAT/BANGALORE India and others Vs. KV Jankiraman etc. reported in 1991 AIR 2010, Shiv Shankar Vs. Union of India and others reported in LAWS(SC)-1985-1-5 and Rachna Singh Vs. State of UP and others decided by Hon'ble High Court at Allahabad in WRIT-A No.1547 of 2022 and said that the Hon'ble High Court at Allahabad in the case of Rachna Singh (supra) has held that :-
"it is settled law that where the employee is forced out of employment on account of illegal action of the employer and the action of the employer is subsequently found to be illegal, the petitioner becomes entitled to the payment of salary for the period she was forced out of employment keeping in view of the peculiar facts and circumstances of the case."
30. The Supreme Court in the case of Karnataka Housing Board v. C. Muddaiah (2007) 7 SCC 689 = (2007) 2 SCC (L&S) 748] considered the question "when the principle of No work no pay is not applicable?". The court observed:-
"33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact SHAINEY that he VIJU is entitled to certain benefits, they had not been given to SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 24 O.A.No.170/606/2024/CAT/BANGALORE him. His representations have been illegally and unjustifiably turned down. He finally approaches a court of law. The court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged.
34. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected."
31. The case of Dharmendra Kumar Singh and Others Vs. High Court of Jharkhand and Others, 2025 SCC OnLine SC 83 = 2025(1) SLJ (SC) 217 [15.01.2025] was related to the promotion of Civil JudgesSHAINEY by Limited VIJU Competitive examination. Cut off marks for SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 25 O.A.No.170/606/2024/CAT/BANGALORE determining suitability of a candidate for promotion was fixed as 40 marks and undisputedly appellants have obtained more than 40 marks, however, the persons junior to them were promoted by preparing a merit list and by promoting those who have more marks than the appellants. The court considered the three Judge Bench decision in Ravikumar Dhansukhlal Maheta v. High Court of Gujarat 2024 SCC OnLine SC 972 in which it was held that the suitability of each candidate has to be tested on his own merit and a comparative assessment cannot be made and the promotion cannot be solely based upon merit list. In the light of the aforesaid judgment, the court said that the appellants have successfully qualified the suitability test; they could not have been deprived of their legitimate right of promotion only on account of lower placement in the merit list. The appellants are certainly entitled for promotion from the same date the other officers from the select list prepared by the High Court of Jharkhand have been appointed to the post of District Judge in terms of notification dated 30.05.2019. In para 6 the court directed for Notional Promotion but not granted the back wages:-
"6. Resultantly, the Civil Appeal is allowed and the orders passed by the High Court of Jharkhand is set aside. The appellants shall be entitled for notional promotion from the date other SHAINEY VIJU officers have been promoted to the post of District SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 26 O.A.No.170/606/2024/CAT/BANGALORE Judge in terms of notification dated 30.05.2019. They shall also be entitled for all consequential service benefits, including, seniority, increments, notional pay fixation etc., however, they shall not be entitled for any back wages."
32. In the case of Jeewraj Singh Shekhawat Vs.Union of India and Others, 2024 SCC OnLine Del 7304 = 2024(3) S.L.J. (Delhi) 402{DB} [14.10.2024] the D.B. of Delhi High court allowed the petition and directed to grant retrospective seniority to the petitioner to the post of 2-I/C from the date on which his immediate junior was granted such promotion, and to place him immediately above the junior in the seniority list in the rank of 2-I/C. But the court not granted the enhanced wages and said:-
"The petitioner, however, while being granted all consequential benefits, including pay fixation, etc., will not be given the benefit of enhanced wages for the period he did not actually serve in the rank of 2-I/C. ......".
33. Therefore, it appears that the law laid down by the Hon'ble Supreme Court is prevailing upon all other judgments passed by the Tribunal. The learned counsel for the applicant is unable to show any judgment in which any of the Tribunal decided the question of entitlement of consequential relief, including the arrears of pay and allowances from the date of notional promotion. The view taken by SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 27 O.A.No.170/606/2024/CAT/BANGALORE the Division Bench of this Tribunal in O.A. No.353/2024 is based upon the judgment of the Hon'ble Supreme Court passed in B.M. Jha's case (supra). The aforesaid view also supported by other judgments of Supreme Court and High courts referred earlier. Therefore, it cannot be said that the Tribunal took a different view against the earlier settled view/Law. If the court granted the consequential relief, it does not automatically include the arrears of pay and allowances. The position of law is clear from the case laws discussed in earlier paragraphs of this order.
34. It appears from the record that the applicant was promoted as Senior Tax Assistant during the posting in the Lucknow region. Thereafter, upon transfer, she was reverted to the post of Tax Assistant and relieved on 19.11.2020. The eligibility period for consideration for promotion will include the period of service rendered in the previous region, but the applicant will not be entitled to the pay and allowances from the date of notional promotion.
35. Therefore, as per the aforesaid discussion, the applicant was qualified for consideration of the promotion as Senior Tax Assistant in SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2025.06.09 16:10:19+05'30' 28 O.A.No.170/606/2024/CAT/BANGALORE the Karnataka and Goa region for the vacancy year 2021. Hence, the Original Application is allowed subject to the following conditions:-
(1). The respondents are directed to conduct the review DPC within a period of 4 months from the date of receipt of a certified copy of this order and consider the name of the applicant for promotion as Senior Tax Assistant if her name is come under the consideration zone.
(2). In case the applicant is found suitable for promotion to post of Senior Tax Assistant, then Notional Promotion shall be granted with all consequential benefits excluding arrears of pay and allowances. The aforesaid pay and allowances of the promotional post shall be payable only from the date of actual joining upon the aforesaid post.
(3). Both parties shall bear their own costs. Any M.A. if pending will be treated as disposed.
Sd/- Sd/-
(SANTOSH MEHRA) (JUSTICE B.K.SHRIVASTAVA)
MEMBER (A) MEMBER (J)
/SV/ SHAINEY VIJU
SHAINEBangalore
CAT
Y VIJU 2025.06.09
16:10:19+05'30'