Central Administrative Tribunal - Delhi
Shri Gauri Shankar Sharma vs Lt. Governor Of Delhi on 5 February, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.809/2009
MA No.563/2009
New Delhi this the 5th day of February, 2010
Honble Mr.Justice V.K.Bali, Chairman
Honble Mr.L.K.Joshi, Vice Chairman (A)
1. Shri Gauri Shankar Sharma
S/o Shri Bal Kishan Sharma,
R/o 201/25-F, Krishna Gali No.7,
Moujpur, Delhi-110053
2. Shri Budh Prakash Tyagi
S/o Shri Jaswant Singh,
R/o V-655, Street No.10,
Vijai Park,Moujpur,
Delhi-110053
3. Shri Raj Kumar Uppal
S/o Late Shri Megh Raj,
R/o 172, Ram Nagar Extn,
P.O. Krishan Nagar, Delhi-51
4. Shri Prabhu Dayal,
S/o Shri Kundan Lal,
R/o H.No.547, Gali No.18, Near Dev Mandir,
Vijay Park, Moujpur,
Delhi-53
5. Shri Jagdish Prasad Sharma,
S/o Shri M.R. Sharma,
R/o K-J-19, Kavi Nagar,
Ghaziabad (U.P.)
6. Shri Chintamani Mahaur (SC),
S/o Shri Lekh Raj Singh,
R/o 807, Janta Flat, G.T.B. Enclave,
Nand Nagri, Delhi-93 ..Applicants
(Through Shri D.R. Gupta, Advocate)
Versus
1. Lt. Governor of Delhi,
Raj Niwas Marg, Delhi-54
2. Chief Secretary to the Govt. of NCT of Delhi,
Players Building, I.P. Estate,
New Delhi
3. Addl. Secretary of Education,
Govt. of NCT of Delhi,
General Administration Deptt.,
Secretariat Education Branch,
Room No. 215-16, Old Sectt., Delhi-54
Old Secretariat, Delhi-54
4. Director of Education,
Govt. of NCT of Delhi,
Old Secretariat, Delhi-54 ..Respondents
(Through Shri Vijay Pandita, Advocate)
ORDER
Mr. L.K. Joshi, Vice Chairman (A) The grievance of the Applicants in this OA is that although they had worked as Principals and Head of Schools during various years, yet in the Departmental Promotion Committee (DPC) held after their retirement and orders issued pursuant to the recommendations of the DPC on 22.10.2008, they have been promoted on notional basis but have been denied any financial benefit by the aforesaid order. The Applicants are seeking direction to the Respondents that they should be given the benefit of the pay scale of the post of Principal from the date they were given the charge of the post of Principal and Head of School, should be given the arrears of pay and allowances as a result of proper pay fixation from retrospective effect and that their benefits on retirement should be revised.
2. The Applicants had been working as Vice Principals in various schools under the Respondents. They were promoted to the post of Principal and given the charge of the Head of School on different dates. The following facts with regard to the posting of the Applicants as Principal and Head of School on ad hoc basis have not been challenged by the Respondents:
(i) Shri Budh Prakash Tyagi : He was given the charge of Head of School on 19.03.1999 and he retired on 31.01.2002, while holding charge of the post of Principal and Head of School;
(ii) Shri Raj Kumar Uppal : He was given the charge of the post of Principal and Head of School on 3.07.2006. While working in this position on ad hoc basis, he retired on 30.09.2007;
(iii) Shri Prabhu Dayal : He was given the charge of Head of School on 19.03.1999 and retired on 30.06.2006, while still working on the post;
(iv) Shri Gauri Shankar Sharma : He was given the charge of Head of School on 15.05.2001 in which capacity he worked till his retirement on 31.12.2006;
(v) Shri J.P. Sharma : He was given the charge of Head of School on 3.07.2001 and retired in this capacity on 30.09.2007;
(vi) Shri Chinta Mani Mahaur : He was given the charge of Head of School on 15.05.2001 and retired in the same capacity on 30.06.2007.
3. The case of the Applicants is that they were working on the post of Vice Principal for more than three years and as per the Recruitment Rules they were eligible for promotion to the post of Principal. This fact is not denied by the Respondents. It is further stated that they discharged the duties, responsibilities and functions of the post of Principal, while holding the post of Vice Principal and also performed the duties of Head of School as per the orders issued by the Respondent. However, they were denied promotion to the post of Principal on the ground that vacancies in the post of Principal were not available against which they could be accommodated. The Respondents reassessed the vacancies in the cadre of Principal after the retirement of the Applicants and when it was found that vacancies indeed existed for the post of Principal, when the Applicants were in service, they were considered for promotion and promoted to the post of Principal notionally. However, the Respondents did not give the Applicants the scale of Principal and did not fix their pay in the grade of Principal from the date they had been given the responsibility of the post of Principal and Head of School and did not revise the benefits on retirement. The learned counsel for the Applicants would contend that the Applicants were eligible for promotion to the post of Principal and actually performed the duties of that post and, therefore, they were entitled to the payment of salary of the post of Principal from the date they were given the duties and responsibilities of that post and consequently their pension and gratuity etc. should also be revised.
4. The learned counsel for the Respondents, on the other hand, would contend that although the vacancies were available for the post Principal, when the Applicants were in service, yet the DPCs could not meet during the relevant vacancy years because the administrative procedure for convening the meeting of the DPC, i.e., the collection of Annual Confidential Reports, vigilance clearance reports etc. could not be gathered. It is because of this reason that the Applicants, who were Vice Principals, were made Head of School, which was only a stop gap arrangement. He would contend that the Applicants would not be eligible for revision of retirement benefits and for back wages because their promotion is only notional and the Applicants have not worked on the post of Principal and would not be eligible for any payment on the principle of no work no pay. He would also rely on the instructions contained in paragraph 6.4.4 of the DoP&Ts OM dated 10.04.1989 according to which all promotions would have to be prospective. He would further rely on the DoP&Ts OM dated 12.10.1998, which provides that the persons who have retired should be considered by the DPC for promotion but would have no right for actual promotion.
5. The facts are clear. The Applicants were eligible for promotion to the post of Principal. The vacancies were available. They were given the charge of the post of Principal and Head of School, on which post they worked for two to three years. They have been promoted on notional basis on the recommendations of the DPC by order dated 22.10.2008.
6. In so far as the issue regarding counting the period of notional promotion for increment, seniority and for retirement benefits is concerned, it has been settled by the Honourable Supreme Court in Paluru Ramkrishnaiah and others Vs. Union of India and another, (1989) 2 SCC 541 and Telecommunication Engineering Service Association (India) and another Vs. Union of India and another, 1994 Supp (2) SCC 222.
7. In Paluru Ramkrishnaiah and others (supra), the petitioners were before the Honourable Supreme Court in Civil Miscellaneous Petitions for proper implementation of its earlier judgement in Civil Appeal number 441/1981, by its order dated 2.01.1981, in which the petitioners were the appellants, and in which it had directed that the petitioner-appellants should be given seniority retrospectively in the grade of Chargeman II under the Director General of Ordnance Factories. It had been prayed that the aforesaid directions had not been followed in true letter and spirit because they had not been given the benefit of notional fixation of salary. The Supreme Court considered, with approval, a judgement dated 4.04.1983 of the Madhya Pradesh High Court in which it held as follows:
It is the settled service rule 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 a higher post although after due consideration he was given a proper place in the gradation list having deemed to be promoted to the higher post with effect from the date his junior was promoted. So the petitioners are not entitled to claim any financial benefit retrospectively. At the most they would be entitled for refixation of their present salary on the basis of the notional seniority granted to them in different grades so that their present salary is not less than those who are immediately below them.
.. .. ..
The petitioners are also entitled to get their present salary re-fixed after giving them notional seniority so that the same is not lower than those who are immediately below them. (emphasis added) The Supreme Court held that the petitioners before it also deserved to be granted the same limited relief.
8. In Telecommunication Engineering Service Association (supra), the Supreme Court considered the order of this Tribunal in Review Application No.195 of 1992 in OA No.2667 of 1991 in which the issue of payment of back wages and notional fixation of pay on the re-fixation of inter-se seniority had been considered. The Supreme Court upheld the Tribunals decision that in the event of refixation of seniority and notional promotion with retrospective effect, they would be entitled only to refixation of their present pay which should not be less than that of those who were immediately below and that they would not be entitled to back wages. (emphasis ours)
9. The issue regarding no work no pay had been considered by the Honourable Supreme Court in State of Kerala and others V. E.K. Bhaskaran Pillai, (2007) 2 SCC (L&S) 487. Respondent in this case before the Honourable Supreme Court was overlooked for promotion, whereas the officials junior to him had been promoted. On the directions of the High Court, the appellant State of Kerala granted him promotion with effect from 15.09.1961 but did not give him monetary benefit. In this case, the Honourable Supreme Court held thus:
4. Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15-6-1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah v. Union of India, (1989) 2 SCC 541, Virender Kumar v. Avinash Chandra Chadha, (1990) 3 SCC 472, State of Haryana v. O.P. Gupta, (1996) 7 SCC 533, A.K. Soumini v. State Bank of Travancore, (2003) 7 SCC 238 and Union of India v. Tarsem Lal, (2006) 10 SCC 145. As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Union of India v. K.V. Jankiraman, (1991) 4 SCC 109, State of A.P. v. K.V.L. Narasimha Rao, (1999) 4 SCC 181, Vasant Rao Roman v. Union of India, 1993 Supp. (2) SCC 324 and State of U.P. v. Vinod Kumar Srivastava, (2006) 9 SCC 621. We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary 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 departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in 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 challenged 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 retrospective 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 exceptions where courts have granted monetary benefits also.(emphasis supplied)
10. In Nalini Kant Sinha V. State of Bihar and others, 1993 Supp (4) SCC 748 also, the Honourable Supreme Court allowed the arrears of pay to the appellant. In this case, the appellant retired from service as Deputy Secretary to the Government of Bihar on 31.01.1979. His claim for promotion to the post of Joint Secretary with effect from 14.04.1976 was allowed by the Government in 1988, after the retirement of the appellant and that also without giving him arrears of pay. In this case, the appellant had claimed an amount of Rs.47,000/- as arrears of pay. The Honourable Supreme Court allowed the arrears amounting to Rs.47,000/-, rejecting the claim of the State Government that the figures needed to be worked out by the department concerned. An interest at the rate of nine per cent on delayed payment was also allowed.
11. The Honourable Supreme Court also considered the question of promotion on ad hoc, stop gap and on fortuitous basis in Rudra Kumar Sain and others V. Union of India and others, (2000) 8 SCC 25. After examining in detail the meaning and nuances of ad hoc, stop gap and fortuitous, the Honourable Supreme Court held thus in paragraph 20 of the judgement:
20. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stop-gap or fortuitous or purely ad hoc". In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be fortuitous/ad hoc/stop-gap are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.
12. In Govt. of NCT of Delhi and others V. M.P. Singh, W.P. (C) No.8111/2002 decided on 22.03.2007, the Honourable Delhi High Court considered a case based on identical facts. The facts of the case have been stated in paragraph 17 of the judgement in the aforesaid Writ Petition, which read as follows:
17. In the present case before us the order of posting makes it very clear that the Respondent was posted and working as the Vice Principal of GBSS School Lodhi Road New Delhi and was deputed in view of a vacancy of Principal in GBSS School, Kidwai Nagar, New Delhi with a declaration as a Head of the Office of the said school for all purposes and he accordingly had been discharging all the duties of the Principal of a Senior Secondary School for the period from 27th April, 1998 till December, 2001 when he was promoted as a Principal and therefore the Respondent has been rightly claiming the grant of actual pay for the post of Principal with effect from 27th April, 1998 till December, 2001 and payment of arrears being difference in the pay of Vice Principal and Principal for his officiation as Principal of the school for the said period. The Honourable Delhi High Court, relying on the judgements of the Honourable Supreme Court in Balbir Singh Dalal and others V. State of Haryana and anr., 2002 (4) SCT 422, Judhistir Mohanty V. State of Orissa and others, 1996 VIII AD (SC) 733 and Selvaraj V. Lt. Governor of Island, Port Blair and others, JT 1998 (4) SC 500, held thus:
23. Indubitably, Respondent was delegated with and was performing the full powers and functions of Principal and to contend that he was actually a Vice Principal deputed to look after the administration of the school only, in the absence of the Principal and the plea that this was only an ad hoc arrangement which being normal practice in government services does not entitle him to claim pay of the higher post of which he was actually discharging functions, is untenable and does not appeal to reason. The Honble Supreme Court has in no uncertain terms settled the law that if the Government for want of candidates, orders an officer in the lower post to perform the duties of a higher post, then such an officer would be entitled to the salary of such higher post as he is made to discharge the functions and duties of higher post.
24. Consequently we find no merit in the present Writ Petition as we could not find any infirmity or illegality in the impugned judgement of the Tribunal dated 24th October, 2002, hence the Writ Petition is hereby dismissed. However, Respondent shall not be entitled to count his officiating period as a Principal from 27th April, 1998 till 14th December, 2001 for all other purposes.
13. In this case, the Applicants have actually worked on the post of Principal and Head of School for various periods. Thus to deny them the benefit of salary on the principle of no work no pay would be absolutely arbitrary.
14. Thus, to sum up, on promotion of notional basis, the Applicants would be eligible for proper fixation of salary from the date of their notional promotion and their benefits on retirement would be recalculated. By virtue of the fact that the Applicants have actually worked on the post of Principal, they would, on the basis of ratio laid down by the Honourable Supreme Court and the Honourable High Court, be eligible for payment of back wages also beside salary for the post of Principal from the date they have been notionally promoted to that post.
15. The OA succeeds. The Respondents are directed to fix correct salary of the Applicants from the dates each one of them has been promoted notionally to the aforesaid post and pay the arrears of salary for the period they were in service and revised retirement benefits after their retirement with six per cent interest on the arrears. The aforesaid directions would be complied with within four months from the date of receipt of a certified copy of this order. No costs.
(L.K. JOSHI) (V.K. BALI) VICE CHAIRMAN (A) CHAIRMAN /dkm/