Central Administrative Tribunal - Allahabad
Suneel Kumar Sharma vs M/O Water Resources on 18 August, 2023
1
RESERVED ON 10.08.2023
Central Administrative Tribunal, Allahabad
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Original Application No. 98 of 2010
This the 18th day of August, 2023.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Suneel Kumar Sharma son of Suraj Pal Sharma, resident of
Chaujitpur Post Balwar Ganj, District Jaunpur at present employed as
Driver in the office of Executive Engineer Central Ground Water Board
Div. III Varanasi, U.P.
...Applicant
By Advocate: Shri Vinod Kumar Maurya
Shri A.D Prakash
Shri H.P Pandey
Versus
1. Union of India through Chairman Central Ground Water Board,
New C.G.O Complex Faridabad, Haryana Ministry of Water
Resources Govt. of India.
2. The Director (Admn.) Central Ground Water Board N.H. IV,
Faridabad.
3. The Executive Engineer, Central Ground Water Board Division
III, Varanasi U.P.
4. Assistant Engineer, Central Ground Water Board, Division III
Varanasi U.P.
Respondents
By Advocate: Shri R.K. Srivastava
ORDER
By Hon'ble Mr. Justice Om Prakash VII, Member (J) By means of present original application, applicant seeks following reliefs:-
Page 1 of 9 2"(i) direct the respondents to treat the period from 16.12.1995 to 14.12.2000 as on administrative account caused due to arbitrary action of respondent NO. 4 as on duty.
(ii) direct the respondents to grant proper fixation of salary after granting annual increments and pay arrears thereof.
(iii) direct the respondents to grant notional promotion to the applicant with w.e.f date his juniors were promoted and he was not called.
(iv) direct the respondents not to victimize the applicant and protest his rightful interest as per rules".
2. The brief facts of the case are that applicant was appointed in the department as Cleaner and posted in the office of Executive Engineer, Central Ground Water Board Division - III, Varanasi w.e.f. 19.4.1990 and since then he is working regularly without any break. Applicant went on two days casual leave for 24.08.1995 and 25.08.1995 with permission to leave headquarter and thereafter became sick and reported for duty on 16.12.1995 and submitted his medical certificate. Due to ill-motive, respondents did not permit him to join the duty. Thus, applicant filed original application No. 285 of 1996, which was disposed of by order dated 30.11.2000 directing the respondents to take the applicant on duty and decide the period of absence in accordance with rules. In pursuance of aforesaid order of the Tribunal, applicant was taken on duty w.e.f. 15.12.2000 as Cleaner. During the intervening period, a number of applicants were promoted as Driver but the applicant was not given any opportunity to be considered for promotion. Thereafter applicant submitted an application dated 04.01.2001 for regularizing the relevant period of absence upto 14.12.2000. He has further represented by letter dated 12.02.2001 regarding payment of arrears of pay and grant of increments. Aggrieved against the non-consideration of his representation, applicant filed OA No. 1251 of 2002, which was disposed of by order dated 13.11.2002 with a direction to the respondents to decide the representation of the applicant by a reasoned and speaking order. Respondent No. 3 rejected the claim of the applicant for regularization of the period from 15.12.1995 to Page 2 of 9 3 14.12.2000 by order dated 24.02.2003. Thereafter applicant submitted representation dated 03.03.2003 to the respondent No.1 against the order dated 24.4.2003. Thereafter applicant has been granted promotion as Driver by order dated 8.9.2003 but the respondent No. 3 has not paid his salary of driver's grade so far his claim for promotion from the date his juniors were promoted. The period from 24.08.1995 to 14.12.2000 has been treated as extraordinary leave by order dated 13.10.2003 while the applicant was sick from 26.08.1995 to 15.12.1995. The applicant, thereafter made a representation to the respondents regarding his entitlement of back wages as well as the fact that since persons junior to the applicant had been posted on Driver, thus, the petitioner was entitled to be posted accordingly apart from the other admissible service benefits by treating the applicant to be in continuous service from 26.08.1995 to 15.12.1995. Since no decision was taken in respect of the aforesaid issues, the petitioner yet again preferred an original application No. 138 of 2004, which was disposed of by order dated 3.7.2009 directing the respondents to consider the appeal of the applicant. In compliance of the direction of the Tribunal passed in OA No. 138 of 2004, appeal of the applicant was rejected by order dated 24.09.2009.
3. Per contra, learned counsel for the respondents submitted that applicant was absconded from duty w.e.f. 24.08.1995 to 14.12.2000 without any intimation to department. The applicant applied for two days casual leave for 24.08.1995 to 25.08.1995 and thereafter no extension of leave application was received. Applicant send a Photostat copy of medical certificate but did not appear physically for duty. Respondents have stated in the counter affidavit that the promotion of the applicant on the post of Driver was not considered during the absence period of applicant. DPC for promotion to the post of Driver (OG) was convened only during 2003 and he was appeared before the committee for trade test and he was promoted as Driver (OG) vide order dated 08.09.2010.
4. We have heard learned counsel for the parties and perused the entire record.
5. Submission of the learned counsel for the applicant is that due to sickness of applicant, he could not join his duty and when applicant Page 3 of 9 4 became fit for duty, he reported to the respondents to join his duty but respondents did not permit him to join the duty. Learned counsel further submitted that aggrieved against the denial of respondents for permission to join the duty, applicant filed OA No. 285 of 1996 before this Tribunal which was disposed of by order dated 30.11.2000. Learned counsel also submitted that in compliance of order of the Tribunal dated 30.11.2000, the applicant has joined his duty w.e.f. 15.12.2000 as Cleaner. He vehemently contended that during the intervening period, a number of applicant's juniors were promoted as Driver but the applicant was not given any opportunity to be considered for promotion. Thereafter applicant submitted an application dated 04.01.2001 for regularizing the relevant period of absence upto 14.12.2000. Respondents have regularized the absence period from 16.12.1995 to 14.12.2000 by granting extra ordinary leave.
6. Learned counsel for the respondents vehemently contested the claim of the applicant and has submitted that applicant sent a registered letter dated 8.1.1996 enclosing therewith a photostat copy of medical certificate dated 16.12.1995 and seeking permission to join duty but applicant did not appear physically on duty. Thereafter, applicant was directed to report for duty through telegrams dated 25.3.1996 and 11.4.1996 but he did not comply with the direction of the respondents. Learned counsel further submitted that applicant had applied for 2 days casual leave for 24.8.1995 and 25.8.1995 and thereafter no extension of leave application was sent to the respondents. He further contended that the applicant filed original application No. 285/1996 before this Tribunal regarding joining of duty and Tribunal vide order dated 30.11.2000 directed the respondents to allow the applicant to join the duty and in compliance of order of the Tribunal, respondents have benefited the applicant to join the duty. It has also been submitted that after joining the duty, applicant had applied for the leave for the entire absence period and after approval by the Ministry, the same had been regularized in the shape of extraordinary leave vide order dated 12.01.2004. Since applicant did not participate in the examination for promotion during the absence period, there is no question to grant him notional promotion. Pay for Page 4 of 9 5 the leave period can also not be allowed on the basis of no work no pay.
7. We have considered the rival submissions advanced by the learned counsel for the parties.
8. From the perusal of the impugned order dated 24.09.2009, it would indicate that applicant has not joined duty w.e.f. 24.08.1995 to 14.12.2000. However, after direction of the Tribunal, applicant was permitted to join the duty on 15.12.2000. Applicant had applied for leave for entire period of absence and after approval of concerned authority, the same had been regularized by granting extra ordinary leave vide order dated 12.01.2004. It is mentioned in the impugned order that as per existing rule of Driver, the trade test is essential for considering promotion to the post of Driver from the post of Cleaner. It is also mentioned in the impugned order that since applicant remained unauthorized absent from duty w.e.f. 24.8.1995 to 14.12.2000, therefore, his trade test could not be conducted and accordingly the name of applicant for promotion to the post of Driver (OG) was ignored during the year 1998 due to his unauthorized willful absence. Later-on DPC for promotion to the post of Driver (OG) was convened in the year 2003 he appeared before the committee for trade test and was promoted as Driver (OG) vide order dated 08.09.2003. As such his seniority cannot be granted over his juniors who were promoted during the year 1995 to 1998.
9. The Tribunal is of the considered view that if the respondents had given a liberty to consider the case of the applicant for absence duty, it was open for the respondents to regularize the absence period of applicant. Hence, respondents after approval of higher authority regularized the absence period of applicant in the shape of extraordinary leave. It is relevant to mention here that during the period of extraordinary leave, concerned employee is not entitled for grant of salary for the period of extraordinary leave. For ready reference, Rule 32 of CCS (Leave) Rules is quoted below:-
"32. Extraordinary leave (1) Extraordinary leave may be granted to a Government servant (other than a military officer) in special circumstances-Page 5 of 9 6
(a) when no other leave is admissible:
(b) when other leave is admissible, but the Government servant applies in writing for the grant of extraordinary leave.
(2) Unless the President in view of the exceptional circumstances of the case otherwise determines, no Government servant, who is not in permanent employ or quasi-permanent employ, shall be granted extraordinary leave on any one occasion in excess of the following limits:-
(a) three months;
(b) six months where the Government servant has completed one year's continuous service on the date of expiry of leave of the kind due and admissible under these rules, including three months' extraordinary leave under Clause (a) and his request for such leave is supported by a medical certificate as required by these rules;
(c) Deleted.
(d) eighteen months, where the Government servant who has completed one year's continuous service is undergoing treatment for -
(i) Pulmonary Tuberculosis or Pleurisy of tubercularorigin, in a recognized sanatorium;
NOTE.- The concession of extraordinary leave up to eighteen months shall be admissible also to a Government servant suffering from Pulmonary Tuberculosis or Pleurisy of tubercular origin who receives treatment at his residence under a Tuberculosis Specialist recognized as such by the State Administrative Medical Officer concerned and produces a certificate signed by that Specialist to the effect that he is under his treatment and that he has reasonable chances of recovery on the expiry of the leave recommended.
(ii) Tuberculosis of any other part of the body by a qualified Tuberculosis Specialist or a Civil Surgeon or Staff Surgeon;
or -
(iii) Leprosy in a recognized leprosy institution or by a Civil Surgeon or Staff Surgeon or a Specialist in leprosy hospital recognized as such by the State Administrative Medical Officer concerned;
(iv) Cancer or for mental illness, in an institution recognized for the treatment of such disease. (MOF Notification No. P-11012/1/77-E-IV(A) dated 21.11.1979) Page 6 of 9 7
(e) twenty-four months, where the leave is required for the purpose of prosecuting studies certified to be in the public interest, provided the Government servant concerned has completed three years' continuous service on the date of expiry of leave of the kind due and admissible under these rules, including three months' extraordinary leave under Clause (a).
(3)(a) Where a Government servant is granted extraordinary leave in relaxation of the provisions contained in Clause (e) of sub-rule(2), shall be required to execute a Bond in Form 6 undertaking to refund to the Government the actual amount of expenditure incurred by the Government during such leave plus that incurred by any other agency with interest thereon in the event of his not returning to duty on the expiry of such leave or quitting the service before a period of three years after return to duty.
(b) The Bond shall be supported by Sureties from two permanent Government servants having a status comparable to or higher than that of the Government servant.
(4) Government servants belonging to the Scheduled Castes or the Scheduled tribes may, for the purpose of attending the Pre-Examination Training Course at the centers notified by the Government from time to time, be granted extraordinary leave by Head of Department in relaxation of the provisions of sub-rule (2).
(5) Two spells of extraordinary leave, if intervened by any other kind of leave, shall be treated as one continuous spell of extraordinary leave for the purposes of sub-rule (2).
(6) The authority competent to grant leave may commute retrospectively periods of absence without leave into extraordinary leave."
9. From the analysis of above leave rules, we are of the view that respondents were free to consider the case of applicant for grant of extraordinary leave with salary or without salary. At this stage, the principle of no work no pay has come to play. In the case of State of Kerala and Others Vs. E.A. Bhaskaran Pillai 2007 (6) SCC 524, the Hon'ble Supreme Court has specifically held as under:-
"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 : 1989 SCC (L&S) 375] , Virender Kumar v. Avinash Page 7 of 9 8 Chandra Chadha [(1990) 3 SCC 472 : 1991 SCC (L&S) 62 : (1990) 14 ATC 732] , State of Haryana v. O.P. Gupta [(1996) 7 SCC 533 : 1996 SCC (L&S) 633] , A.K. Soumini v. State Bank of Travancore [(2003) 7 SCC 238 : 2003 SCC (L&S) 1041] and Union of India v. Tarsem Lal [(2006) 10 SCC 145 : (2007) 1 SCC (L&S) 63] . 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 : 1991 SCC (L&S) 387] , State of A.P. v. K.V.L. Narasimha Rao [(1999) 4 SCC 181 : 1999 SCC (L&S) 841] , Vasant Rao Roman v. Union of India [1993 Supp (2) SCC 324 : 1993 SCC (L&S) 590 : (1993) 24 ATC 363] and State of U.P. v. Vinod Kumar Srivastava [(2006) 9 SCC 621 : 2006 SCC (L&S) 1940] . 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."
10. Since the occurrence was an outcome of the negligence on the part of the applicant to join the duty as respondents has already sent two telegraphs dated 25.3.1996 and 11.4.1996 directing the applicant to report for duty but he did not comply with the aforesaid direction. Accordingly, the principle of 'no work no pay' was applicable in the present facts and circumstances Thus, in the present facts and circumstances of the case the applicant is not entitled to the relief as prayed including the arrears of salary and promotion over his junior to the post of Driver.
11. So far as relief for grant of notional promotion with effect from the date his juniors were promoted, it is necessary to qualify the trade test towards promotion to the post of Driver (OG). Since applicant was Page 8 of 9 9 absent from the period when trade test was conducted, thus he could not be given benefit for notional promotion.
12. In view of the facts and circumstances of the case, we are of the view that the applicant is not entitled to arrears of salary on the principle of 'No work, No pay' and notional promotion. For the reasons mentioned above, we find that no case has been made out for interference whatsoever with the impugned order. The O.A. being meritless, is dismissed. No orders as to costs. All associated MAs are disposed of.
(Mohan Pyare) (Justice Om Prakash -VII)
Member (A) Member (J)
Manish/-
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