Rajasthan High Court - Jaipur
Shyam Prasad Sharma vs R.C.D.F. & Ors on 27 March, 2012
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR D.B. CIVIL LETTER PATENT SPECIAL APPEAL (WRIT) NO.366/2009 IN S.B.CIVIL WRIT PETITION NO.3199/1991 Shyam Prasad Sharma Vs. Rajasthan Co-operative Dairy Federation, Jaipur & Anr. Date of Judgment: MARCH 27,2012 PRESENT HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I Mr. Shiv Charan Gupta with Mr. Saurabh Jain, for the appellant Mr. R.K. Kala, Sr. Counsel assisted by Mr. Rupin Kala, for the respondents Reportable BY THE COURT(Per Hon'ble Jain J.)
At the request of the parties, arguments were heard and special appeal is being disposed off finally.
2. This intra-court appeal is directed against order dated 1st February, 2006 passed by Single Bench, whereby writ petition filed by petitioner/appellant was allowed and the respondents were directed to consider the case of the petitioner for promotion to the post of Assistant Project Officer from the year 1985 and in case, he is found suitable, to give him promotion from the date, the person junior to him has been promoted. It was also directed that petitioner be held entitled for notional pay fixation on the higher post but not be given monetary benefits. Being aggrieved with the later part of the order relating to denial of monetary benefits, the present appeal has been preferred.
3. Submission of learned counsel for appellant is that petitioner was denied promotion on the post of Assistant Project Officer in the year 1985, whereas his junior person respondent No.3, was promoted on the said post. His writ petition has been allowed by Single Bench and it has been directed to consider his case on the promotional post and in case he is found suitable then to grant him promotion from the date his junior was promoted. However, he has been denied monetary benefits. He submitted that there was no fault on part of the petitioner and he was denied promotion only because of wrong action on part of the respondents. Therefore, respondents be directed to grant him monetary benefits also. He submitted that petitioner has been considered and has been promoted, but in view of judgment of learned Single Judge, he has not been granted monetary benefits. Therefore, necessary order in this regard may also be passed. In support of his submissions, he referred decisions rendered in cases Union of India & Ors. vs. K.V. Jankiraman & Ors. (1991 (4) SCC 109) and State of Kerala & Ors. vs. E.K. Bhaskaran Pillai (2007 (6) SCC 524).
4. Shri R.K. Kala, learned Sr. Counsel appearing alongwith Mr. Rupin Kala on behalf of the respondents submitted that there were adverse entries against the petitioner for the years 1984-85, 1985-86 and 1986-87, therefore, petitioner was not granted promotion. Since the said adverse entries were not communicated to petitioner earlier and they were communicated only vide letter dated 5th February, 1988, therefore, this Court directed the respondents to consider his case for promotion from the date his junior was promoted as at the time of consideration of promotion, the adverse entries had not been communicated to the petitioner. In these circumstances, respondents considered the case of the petitioner and have promoted him. But so far as award of back wages is concerned, the principle of no work and no pay applies and it has rightly been applied by the learned Single Judge. He has submitted that it is not in dispute that there were adverse entries against petitioner for the years 1984-85, 1985-86 and 1986-87, but due to some administrative error, the same were not communicated to the petitioner in time and since adverse entries were not communicated in time, therefore, this Court directed the respondents to consider the case of petitioner for promotion. There is no dispute that the petitioner did not work on promotional post, therefore, learned Single Judge was right in not awarding the monetary benefits. He further submitted that notional benefit has already been granted to him. Therefore, there is no merit in this appeal and the same is liable to be dismissed. In support of his submissions, he referred the decisions in the cases Paluru Ramkrishnaiah & Ors. vs. Union of India & Anr. (1989 (2) SCC 541), Union of India & Anr. vs. Tarsen Lal & Ors. (JT 2006 (12) SC 331), State of Haryana & Anr. vs. S.K. Khosla & Ors. (2007 (15) SCC 777) and decision of this Court in Nishi Kant Biswas vs. Union of India & Ors. (2008 (1) WLC 498).
5. We have considered the submissions of learned counsel for the parties and examined the impugned order of Single Bench and other documents available on record.
6. The undisputed facts of the case are that petitioner was senior to respondent No.3 in the cadre of Dairy Supervisor. Next promotional post is Assistant Project Officer. Respondent No.3 was initially promoted to the post of Assistant Project Officer in the year 1983. His promotion was challenged by petitioner by way of filing writ petition, which was decided on 8th March, 1989 directing the respondents to consider the case of petitioner for promotion ignoring the adverse entries, which have not been communicated to him. In the meanwhile in another writ petition filed by other employee, this Court vide order 10th September, 1987 directed the respondents to redetermine the year-wise vacancies for the post of Assistant Project Officers and to hold DPC accordingly. It appears that seven posts of Assistant Project Officers were determined for the year 1985. The order of promotion of respondent No.3 of the year 1983 was revised and he was promoted w.e.f. 1985 in place of 1983. There were adverse entries against the petitioner for the years 1984-85, 1985-86 and 1986-87, which were communicated to him vide letter dated 5th February, 1988. Since they were not communicated in the year 1985, therefore, Single Bench vide impugned order has directed that his case be considered for promotion on the post of Assistant Project Officer in terms of earlier order of this Court dated 8th March, 1989 ignoring adverse entries, which were not communicated to him. It was also directed that his pay may be notionally fixed and he may not be given monetary benefits.
7. Before discussing case further, it will be appropriate to refer and discuss the case law referred by learned counsel for the parties.
8. In case of Union of India & Ors. vs. K.V. Jankiraman & Ors. (supra), the Hon'ble Apex Court in Para 20 & 21 held as under:-
20. The Tribunal has, therefore, directed that on exoneration, full salary should be paid to such employee which he would have received on promotion if he had not been subjected to disciplinary proceedings.
21. We are afraid that the Tribunal's reference to paragraph 2 of the Memorandum is incorrect. Paragraph 2 only recites the state of affairs as existed on January 30, 1982 and the portion of the Memorandum which deals with the relevant point is the last sentence of the first sub-paragraph after clause (iii) of paragraph 3 of the Memorandum which is reproduced above. That sentence reads as follows:
But no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion.
9. In State of Kerala & Ors. vs. E.K. Bhaskaran Pillai's case (supra), the Apex Court observed that so far as situation with regard to monetary benefits with retrospective promotion is concerned that depends upon case to case. However, grant of back wages from the date of filing petition in the High Court, instead of due date of promotion, was held proper. Paras 4 & 5 of the judgment are reproduced 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), Virendra 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.
5. However, so far as present case is concerned, as per directions given by the Court, the petitioner's case was considered and it was found that persons junior to him were appointed and he was wrongly denied. Therefore, the petitioner was promoted from retrospective effect i.e. 15-9-1961 but he was not paid the benefit of promotion in terms of arrears of salary. Therefore, he approached the Court and learned Single Judge did not give him the monetary benefit of the promotional post from retrospective effect in terms of arrears of salary. In the review application, the benefit was given from the date he filed OP No. 585 of 1975 i.e. 15-6-1972. This appears to be reasonable. The petitioner did not approach the Court for the back wages from 15-91961 but he filed a petition dated 15-6-1972 and the Court granted the benefit from the date of filing of the petition before the Court i.e. 15-6-1972. The incumbent in the meanwhile has retired on 31-7-1980. Therefore, looking to the facts and circumstances of the case, the view taken by the High Court appears to be justified and there is no ground to interfere in it.
10. In case of Paluru Ramkrishnaiah & Ors. vs. Union of India & Anr. (supra), the larger Bench of Hon'ble Apex Court held that where promotion is granted with retrospective effect then back wages for the period for which a person actually did not work in the promotional post is not payable. Para 19 of the judgment reads as under:-
19. Since, however, the judgment of this 'Court dated February 2, 1981 in Civil Appeal No. 441 of 1981 has not been challenged and has become final, the next question which falls for consideration is as to what further relief, if any, are the appellants in Civil Appeal No. 441 of 1981 entitled in pursuance of the Civil Miscellaneous Petitions referred to above filed by them. The reliefs which they have claimed have already been indicated above. It is now not disputed that the appellants of this appeal have in pursuance of the order of this Court dated February 2, 1981 been given a back date promotion to the post of Chargeman II synchronising with the dates of completion of their 2 years of service as Supervisor 'A'. The grievance of the petitioners, however, is that this promotion tantamounts to implementation of the order of this Court dated February 2, 1981 only on paper inasmuch as they have not been granted the difference of back wages and promotion to higher posts on the basis of their back date promotion as Chargeman II. As already noticed earlier certain writ petitions filed in Madhya Pradesh High Court were allowed by that Court on April 4, 1983 relying on the judgment of this Court dated February 2, 1981 in Civil Appeal No. 441 of 1981. Against the aforesaid judgment of the Madhya Pradesh High Court dated April 4, 1983 Special Leave Petitions (Civil) Nos. 5987-92 of 1986 were filed in this Court by the Union of India and were dismissed on July 28, 1986. The findings of the Madhya Pradesh High Court in its judgment dated April 4, 1983 thus stand approved by this Court. In this view of the matter to put them at par it would be appropriate that the appellants in Civil Appeal No. 441 of 1981 may also be granted the same relief which was granted to the petitioners in the writ petitions before the Madhya Pradesh High Court. As regards back wages the Madhya Pradesh High Court held :
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 to 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.
Insofar as Supervisors 'A' who claimed promotion as Chargeman II the following direction was accordingly given by the Madhya Pradesh High Court in its judgment dated April 4, 1983 aforesaid:
All these petitioners ace also entitled to be treated as Chargeman Grade II on completion of two years satisfactory service as Supervisor Grade A. Consequently, notional seniority of these persons have to be refixed in Supervisor Grade A, Chargeman Grade II, Grade l and Assistant Foreman in cases of those who are holding that post.... 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.
11. In case of Union of India & Anr. vs. Tarsen Lal & Ors. (supra), the Hon'ble Apex Court held that where the employee having been promoted with retrospective effect was not entitled to the promotional pay from the date of proforma promotion. Paras 7 & 8 of the judgment are as under:-
7. This Court has occasion to deal with the same issue in Union of India and Ors. v. P.O. Abraham and Ors. in C.A. 8904 of 1994 decided on 13.8.1997. In that case the appeal was filed against the order of the Ernakulam Bench of CAT. Reliance was placed by the Union of India and its Functionaries in that case on Railway Board's Circular dated 15/17 September, 1964 which inter alia provided as follows:
No arrears on this account shall be payable as he did not actually shoulder the duties and responsibilities of the higher post.
8. One Bench of CAT held that clause to be invalid. But in Virender Kumar, General Manager, Northern Railways, New Delhi v. Avinash Chandra Chadha and Ors. (JT 1990 (3) SC 503) the view was held to be not correct. The order in Abraham's case (supra) reads as follows:
This appeal is directed against the order of the Central Administrative Tribunal, Ernakulam Bench, in O.A. No. 649/90 dated 30th September, 1991. Though the appeal challenges the order in its entirety. Mr. Goswami, learned senior counsel for the appellants, fairly stated that the appeal is now confined only to the payment of back-wages ordered to be given by the Tribunal.
By the order under appeal, the Tribunal has allowed the application which challenged the Railway Board Circular dated 15/17 September, 1964. The said Circular inter alia, contains the following clause:
No arrears on this account shall be payable as he did not actually shoulder the duties and responsibilities of the higher posts.
Consequent to the deletion of the above clause, further directions were given. Learned Counsel submits that the clause, which has been directed to be removed, is in accordance with the judgment of this Court in Virender Kumar, General Manager, Northern Railways, New Delhi v. Avinash Chandra Chadha and Ors. (JT 1990 (3) SC 503). This Court, in that case, held on principle of 'no work no pay' that the respondents will not be entitled to the higher salary as they have not actually worked in that post. The clause, which has been directed to be deleted by the Tribunal, being in consonance with the ruling of this Court, we are of the opinion that the Tribunal was not right in directing the deletion of that clause. Accordingly, to that extent this appeal is allowed. The result is that the respondents will be given deemed promotion, if any, before retirement and also the benefit in the matter of fixing pension. No costs.
12. In case of State of Haryana & Anr. vs. S.K. Khosla & Ors. (supra), the Hon'ble Apex Court considered the similar circumstances, which are available in the present case and held that employee is not entitled to the monetary benefits. Para 2 of the judgment is reproduced as under:-
2. Heard the learned counsel for the appellants. He brought to our notice a decision of this Court in State of Haryana v. O.P. Gupta (1996 (7) SCC 533) whereunder in respect of an identical matter arising out of similar proceedings of even date this Court while setting aside the decision of the High Court allowed the appeal at the instance of the State and held that in the circumstances noticed in that case which are identical as well in the cases before us, the question of payment of arrears of salary with retrospective effect from the notional dates does not arise since, indisputably the respondents had never worked during that period in the promotional post, the settled principle in such cases being, no work, no pay. The said principle applies with equal force to the cases before us too. Applying the ratio of the said decision these appeals are also allowed and the orders of the High Court are set aside and the writ petitions before the High Court shall stand dismissed. No costs.
13. In case of Nishi Kant Biswas vs. Union of India & Ors. (supra), the Division Bench of this Court considered the judgment of Hon'ble Apex Court in Union of India & Anr. vs. Tarsen Lal & Ors. (supra) and held that petitioner is not entitled to arrears on account of his promotion as he did not actually shouldered the duties and responsibilities of the promotional post. Paras 8, 9 & 10 of the judgment are reproduced as under:-
8. In the recent decision given by the Supreme Court in the case of Union of India & Another Versus Tarsem Lal & Others [AIR 2007 (SC) 259] while dealing with the case of a person, who lost the promotion on account of administrative error and the provision contained in paragraph 228, it was held that who did not actually shoulder the duties and responsibilities of the higher post is not entitled to arrears.
9. The judgment of the Supreme court in the case of Union of India Versus K.V. Janki Raman (AIR 1991 SC 2010) heavily relied upon by the counsel for the petitioner is not applicable to the fact situation of the present case. That was a case where an employee was not charge-sheeted departmentally nor a charge sheet in the criminal case against the employee was filed. Based on pendency of some preliminary investigation, the employee was denied promotion and sealed cover procedure was adopted. The Supreme court dealing with the fundamental Rule 17(1) held that principle of 'No work no pay' is not applicable in such a case. Insofar as the present case is concerned, as noticed above, the challan in the criminal case against the petitioner had already been filed and petitioner was denied promotion because of the pendancy of the criminal case. As a matter of fact during the pendancy of the criminal case, he retired on reaching the superannuation age. It was thereafter that he was acquitted by the criminal court and notionally promoted. In a case like this the principle laid down by the Supreme Court in the case of Tarsem Lal is attracted.
10. On the basis of notional promotion given to him, we are satisfied that on the principle of 'no work no pay', the petitioner shall not be entitled to the arrears of pay and allowances of the promotional post.
14. The case law referred above goes to show that as and when a promotion is made of an employee with retrospective effect then he becomes entitled for fixation of his pay notionally but the award of monetary benefits depends on case to case. The judgment of Supreme Court in Union of India Union of India vs. K.V. Jankiraman (supra) was considered by Division Bench of this Court in Para 9 in Nishi Kant Biswas's case (supra) and held that the same is not applicable. In our view also, looking to the facts of the present case, the said judgment is not applicable in the facts and circumstances of the present case also.
15. Similarly, the judgment of Hon'ble Apex Court in State of Kerala vs. E.K. Bhaskaran Pillai (supra) is also not applicable in the facts and circumstances of the present case. The Hon'ble Apex Court in this judgment has laid down a principle that so far as situation with regard to monetary benefits with retrospective promotion is concerned that depends upon case to case. In the present case, we find that there were adverse entries against the petitioner during the period 1984-85, 1985-86 and 1986-87 and he was rightly denied the promotion, but since these entries were not communicated to the petitioner before 1988, therefore, this Court directed to consider his case for promotion ignoring the adverse entries, which have not been communicated to him. But this fact has not been disputed that there were adverse entries against the petitioner during this period. Since this Court directed, to ignore the adverse entries, which were not communicated to him and to consider his case for promotion. Therefore, his case was considered and he was promoted and his pay has been fixed notionally but has not been paid arrears of the promotional post for the period during which he did not work.
16. The Hon'ble Apex Court in Paluru Ramkrishnaiah vs. Union of India's case (supra) and Union of India vs. Tarsem Lal's case (supra) took a view that an employee is not entitled to arrears of pay of his promotional post on the principle of 'no pay, no work'. The Division Bench of this Court in Nishi Kant Biswas's case (supra) considered the principle of 'no work and no pay' and the judgment of the Hon'ble Apex Court in Union of India vs. Tersem Lal (supra) and Union of India vs. K.V. Jankiraman (supra) and thereafter held that the petitioner shall not be entitled to arrears of pay and the allowances of the promotional post. Judgments referred by learned counsel for the respondents are more nearer and relevant to the facts and circumstances of the present case than the judgments referred by learned counsel for the appellant.
17. The Hon'ble Apex Court in Union of India vs. Tersem Lal's case (supra) while dealing with the case of a person, who lost the promotion on account of administrative error and the provisions contained in Paragraph 2 to 8, held that he did not actually shoulder the duties and responsibilities of the higher post is not entitled to arrears. This judgment applies fully to the facts of the present case. There were adverse entries against the petitioner, but the same were not communicated due to administrative error. In these circumstances, we are satisfied that learned Single Judge was absolutely right in directing that promotion be given to the petitioner from the date his junior person was promoted but he may not be given monetary benefits. We do not find any infirmity or illegality in the order passed by Single Bench.
18. In view of above discussion, we do not find any force in any of the submissions of the learned counsel for the appellant. The appeal is devoid of any merit and the same is, accordingly, dismissed with no order as to cost.
(NARENDRA KUMAR JAIN-I),J. (ARUN MISHRA),CJ. BKS/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
B.K. SHRIVASTAVA PRIVATE SECRETARY