Central Administrative Tribunal - Gauhati
Bhagirathi Mahapatra vs Union Of India (Uoi) And Anr. on 2 May, 2005
Equivalent citations: 2006(1)SLJ33(CAT)
ORDER
G. Sivarajan, J. (Vice Chairman)
1. The question that arises for consideration in this case is as to whether the applicant, an Officer Surveyor on his promotion as Superintending Surveyor is entitled to arrears of salary for the period during which, admittedly he had not worked but he has been given notional promotion from the deemed date i.e. the date from which his junior was promoted to the said post.
2. The applicant was initially appointed as Surveyor (Gr. 'C') with effect from 1.7.1976; he was promoted as Office Surveyor with effect from 16.7.1987 through Limited Department Competitive Examination (LDCE for short), 1986, he was further promoted as Superintending Surveyor (Gr. 'A') on ad hoc basis with effect from 17.12.1999 and on regular basis as per order dated 26.7.2001 (Annexure-1 to the O.A.). The applicant was subsequently promoted as Deputy Director (Gr. 'A') as on 11.6.2002.
3. In this application the applicant challenges the orders dated 28.11.2001 (Annexure-A) issued by the Director, North Eastern Circle Shillong and 29.4.2003 (Annexure-8) issued by the Deputy Surveyor General, Dehra Dun (Uttaranchal) to the extent it did not grant arrears of salary in the promoted post of Superintending Surveyor with effect from 15.12.1995 though it is stated that the date of promotion will be the date the applicant's junior got promoted, i.e. 15.12.1995 and its confirmation. In the circumstances, the applicant seeks to set aside and quash the order dated 28.11.2001 and 29.4.2003 with a further direction to the respondents to pay the applicant the arrears of salary with effect from 15.12.1995 to 17.12.1999 also in the post of Superintending Surveyor alongwith interest at the rate of 21 % per annum on such delayed settlement.
4. The respondents have filed a written statement wherein they have taken the stand that since the applicant did not work in the promoted post he is not entitled to arrears of salary for the period from 15.12.1995 to 17.12.1999. The respondents have also stated that there was no direction in regard to the monetary benefits for the period from the date of retrospective promotion till the date of actual promotion either in the order of the Competent Authority or in the order of the Tribunal in the applicant's case.
5. The applicant has filed a rejoinder. Alongwith the said rejoinder the applicant had also produced copies of the order dated 4.5.1998 passed by the Cuttack Bench of the Tribunal in O.A. No. 221 of 1996 and the order dated 23.4.1999 in O.A. No. 438 of 1998 passed by the said Bench. An order dated 27.3.2000 passed in the said O.A. was also produced. The applicant reiterated the stand that he is entitled to arrears of salary for the period between 15.12.1995 to 17.12.1999.
6. Mr. S. Sarma, learned Counsel for the applicant, submitted that the applicant had vigilantly prosecuted the claim for promotion to the post of Superintending Surveyor right from 1996 before the Cuttack Bench of the Tribunal, evinced by the order dated 4.5.1998 in O.A. No. 221 /1996, that the Cuttack Bench had issued clear directions to the respondents to prepare a revised seniority list and to give due promotion to the applicant in accordance with such seniority list. The Counsel submitted that when the respondents, pursuant to such directions, had passed the impugned order on 26.7.2001 giving retrospective promotion to the applicant in the post of Superintending Surveyor with effect from 15.12.1995, i.e. the date on which the applicant's junior got promoted there was no justification on the part of the respondents in not granting the monetary benefits attached to the promoted post from that date. The Counsel submitted that the delay in giving promotion to the applicant is not attributable to any lapses on the part of the applicant and that it is only on the misinterpretation of the relevant rules and the factual circumstances that the delay occurred. The Counsel also submitted that it is well settled position in law that when promotion was denied to an employee for no fault of his and subsequently promotion is given with retrospective effect, all benefits attached to the promoted post must be granted to such employee. The Counsel in support of his submission has relied on the decisions of the Supreme Court in H.S. Chandra Shekara Chari v. Divisional Controller, KSRTC and Ors. ; State of A.P. v. K.V.L Namsimha Rao and Ors. ; Paramjeet Singh v. State of U.P. and Ors. ; Rabindra Kumar Battack and Anr. v. State of Orissa and Ors. ; J.N. Srivastava v. Union of India and Anr. and a decision of the Delhi High Court in Sunder Dass v. The Management of M/s Asthetic Exports Pvt. Ltd. and Ors. 1985(1) SLJ 577. Counsel accordingly submitted that the applicant is entitled to get all dues in salary in the promoted post from 15.12.1995 to 17.12.1999.
7. Mr. A.K. Chaudhuri, learned Adl. C.G.S.C. appearing for the respondents, on the basis of the averments in the written statement filed on behalf of the respondents particularly with reference to the proceedings and order in O.A. No. 221 of 1996 and O.A. No. 438 of 1998 submitted that based on the revised seniority list of Officer Surveyors published in implementation of the directions issued in the judgment in O.A. No. 221/1996 of the Cuttack Bench, notwithstanding the fact that the said seniority list was made provisional as per the interim order in O.A. No. 438/1998 filed by one Shri Sampath Kumar and Anr., the applicant was promoted from the post of Officer Surveyor to the post of Superintending Surveyor (Gr. 'A') onad hoc basis with effect from 17.12.1999. The Standing Counsel also submitted that after the Full Bench decision in O.A. No. 438/1998 revised seniority list for Officer Surveyors (Gr. 'B') has been finalised and circulated vide letter dated 29.1.2001. Since the applicant came in the zone of consideration for promotion to the post of Superintending Surveyor (Gr. 'A') being senior to the last officer recommended for promotion in 1995 panel and the Competent Authority approved the promotion of the applicant to the grade of Superintending Surveyor (Gr. 'A') with effect from 15.12.1995, Counsel submitted that no orders for consequential benefits were issued either by the Competent Authority or in the Tribunal's order. The Standing Counsel submitted that it is in the above circumstances the pay of the applicant was notionally fixed with effect from 15.12.1995 and annual increments due thereafter have been allowed, but arrears have been granted to him from 17.12.1999 i.e. the date of assumption of charge of the post of Superintending Surveyor on ad hoc basis vide order dated 17.5.2002. The Standing Counsel submitted that since the applicant did not perform the duties of the post of Superintending Surveyor from 15.12.1995 till 17.12.1999 he was not entitled for arrear benefits from 15.12.1995. The Standing Counsel relied on a decision of the Principal Bench of the Tribunal rendered on 14.3.2002 in O.A. No. 2197 of 2000 and also the decision of the Supreme Court in State of Haryana and Ors. v. O.P. Gupta and Ors. and submitted that the applicant is not entitled to any monetary benefits other than fixation of pay and increments in the post of Superintending Surveyor (Gr. 'A') from 15.12.1995 to 17.12.1999.
8. The applicant while working as Officer Surveyor at SECO, Survey of India, P.O., R.R. Lab, P.S. Shahidnagar, District Khurda alongwith 5 others had filed O.A No. 221 of 1996 seeking for a direction to respondent No. 2 in the said application to recast the seniority list by properly fixing the inter se seniority positions of the applicants who passed the LDC Examination, 1986 in respect of vacancies of 1984 vis-a-vis the DPC promotees, who were promoted through the DPC in the vacancies of the same year in accordance with the 3:1 roster. They had also sought for setting aside the order dated 15.12.1995 promoting 33 Officer Surveyors to the post of Superintending Surveyor and for a direction to the respondent No. 2 therein to issue fresh order of promotion after recasting the seniority list. The Cuttack Bench of the Tribunal by order dated 4.4.1998 after due consideration of the rival contentions held that the applicants must be shown in between 1985 DPC appointees according to their roster points. The Tribunal, however, did not order inter se fixation of positions in respect of certain LDC Examination appointees who were not parties to the application and held that their position cannot be usurped by the applicants. Various directions have been issued including a direction to consider the case of the applicants for promotion to the post of Superintending Surveyor from the date their juniors, if any, in the revised seniority list got promoted. The Tribunal declined to interfere with the promotion granted to other persons in the order dated 15.12.1995. The respondents prepared a revised seniority list pursuant to the direction issued in the Tribunal's order assigning proper place to the applicants in the post of Officer Surveyor. However, this seniority list was challenged by two other Officer Surveyors before the Cuttack Bench of the Tribunal in O.A. No. 438/ 1998 which culminated in the reference to a Full Bench of the Tribunal and the Full Bench finally decided the issues referred to it by its order dated 23.4.1999. During the pendency of O.A. No. 438/1998 the applicant was promoted to the post of Superintending Surveyor on ad hoc basis and he was continuing in the said post since then. After the preparation of the seniority list based on the decision of the Full Bench the applicant has been regularly promoted to the post of Superintending Surveyor by order dated 26.7.2001 with retrospective effect from 15.12.1995.
9. It is in this background the claim of the applicant for arrears of salary in the promoted post from 15.12.1995 till 17.12.1999, i.e. the date of ad hoc promotion to the said post has to be considered. The Hon'ble Supreme Court had occasion to consider the question of grant of arrears of salary etc., in case of notional promotions with retrospective effect in Paluru Ramkrishnaiah and Ors. v. Union of India and Anr. , Virender Kumar, General Manager, Northern Railways, New Delhi v. Avinash Chandra Chadha and Ors. and in State of Haryana v. O.P. Gupta and Ors. (supra).
10. A three Judges Bench of the Supreme Court in Paluru Ramkrishnaiah's case (supra) had incidentally considered the claim of the appellants therein for grant of difference of back wages in the promoted post on the basis of their back date promotion as Chargeman-II pursuant to the orders of the Supreme Court. It was contended before the Supreme Court that the promotion tantamounts to implementation of the order of the Supreme Court 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. The Supreme Court noted that as regards the back wages the Madhya Pradesh High Court 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 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.
The Supreme Court endorsed the said view and denied the relief of arrears of back wages in the promoted post to the appellants there.
11. In Virendra Kumar's case (supra) the Supreme Court considered the question of payment of emoluments of higher post with retrospective effect on account of deemed promotion with effect from an earlier date. In Paragraphs 15 and 16 of the said decision it is observed thus:
15. As regards the emoluments of higher posts with retrospective effect, we find that the High Court had categorically denied the same to the respondents even on the basis of their claim to higher grades in Class-III posts. Further, even the entitlement of the respondents to the highest grades in Class-III posts as per the directions of the High Court was on the basis of the quota and rota rule which in itself is both inequitable and irrational. Time and again, the rule has been criticized on account of the absurd result to which it leads, viz. the deemed appointments have to be given to the concerned employees even from the dates when they were not in service and probably when they were still in their schools and colleges. We are informed across the bar that this is the situation even with respect to some of the respondents herein. The quota and rota rule had to be worked out in the present case from the year 1954 as per the direction of the High Court and the Tribunal. There is, therefore, neither equity nor justice in favour of the respondents to award them emoluments of the higher posts with retrospective effect. It is for this reason that we are of the view that the decisions of this Court such as in P.S. Mahal v. Union of India directing the payment of higher emoluments with retrospective effect on account of the deemed promotions of earlier dates will not be applicable to the facts of the present case and have to be distinguished.
16. It is true that the appellant-Railways had failed to give correct effect to the decision dated July 30, 1975 of the High Court in L.P.A. No. 220 of 1972, and had kept the matter hanging till this day for no fault of the respondents. The High Court by its said decision had directed the appellant-Railways to prepare a seniority list within three months from the date of the decision, and also to proceed to make further promotions in the higher grades in accordance with law, rules and orders in force from time to time. But it is equally true that during all these years the higher posts were not vacant and were manned by others and the appellant-Railways had paid the incumbents concerned the emoluments of the said posts. The respondents have not actually worked in the said posts and therefore, on the principle of "no work no pay" they will not be entitled to the higher salary. Hence, we give no directions in this behalf and leave it to the appellant to give such relief as they may deem fit.
12. The Supreme Court considered an almost identical situation in O.P. Gupta's case (supra). In that case the respondents were working in Haryana Service Engineers, Class-II, Public Works Department (Irrigation Department), governed by the Haryana Engineers Service Class-II, PWD (Irrigation Department) Rules, 1970. There was inter se dispute regarding the promotion to the higher echelon of service, which ultimately resulted in the order passed by the Supreme Court on 7.8.1990. The Supreme Court had directed the Government to prepare the seniority, in accordance with Rule 9 of the Rules ignoring the instructions contained in Para 11.4 of the Manual and any other inconsistent instructions running counter to the rules and to prepare a fresh list strictly in accordance with the rules untrammeled by inconsistent observation made by the High Court. Following the directions seniority list has been prepared and promotions accordingly were given to all the eligible persons. The respondents approached the High Court by filing writ petition claiming payment of arrears. The High Court directed the payment of arrears from the due date given in the seniority list to the date of their posting in the promotional post. On these facts the Supreme Court observed that the controversy is as to whether the respondents arc entitled to arrears of salary for the period during which, admittedly they had not worked but they have been given notional promotion from the deemed date. The Supreme Court answered the question in Para 6 of the judgment thus:
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. The rival parties had agitated their right to seniority. Ultimately, this Court had directed the appellant to prepare the seniority list strictly in accordance with Rule 9 untrammeled by any other inconsistent observation of the Court or the instructions issued in contravention thereof. Since the order has become final in 1990, when the appeal had been disposed of by the Court by the above directions, the State in compliance thereof prepared the seniority list in accordance with the Rules and those directions and promotions were given to all eligible persons and postings were made accordingly on 1.12.1992. In the interregnum some had retired. 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.
13. The earlier decisions in Paluru Ramkrishnaiah's case (supra) and Virendra Kumar's case (supra) were also relied. The Counsel for the respondents in that case relied on a decision of the Supreme Court in Union of India v. K.V. Jankiraman where 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. However, the Supreme Court distinguished the said decision by stating that it was a case 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 department proceedings were held to be invalid the Supreme Court held that he was entitled to arrears of salary. It was observed that the said ratio has no application to the cases where the claim for promotion are to be considered in accordance with rules and the promotions are to be made pursuant thereto. Finally it was held that payment of arrears of salary does not arise since, admittedly the respondents had not worked during that period.
14. Now we will deal with the decisions relied on by the learned Counsel for the applicant, H.A. Chandra Shekara Chari's case (supra) was concerned with the dismissal of a Workman from service. The Labour Court set aside the said dismissal with back wages. The learned Single Judge modified the award by stating that, "It is not as if that the worker was totally innocent and he was illegally terminated. The facts in this case clearly show that with better proof the charges could have been established. If so, the worker cannot be rewarded with full back wages. Besides, he has a record of 40 previous similar conducts. Hence the order of dismissal of the workman from service is set aside and the management is directed to reinstate the Workman in service to his original post with continuity of service. A portion of back wages must be disallowed to him by way of punishment." The Supreme Court in appeal held that there may be circumstances justifying non-payment of full back wages, but they cannot be denied for the reason that the charges could have been established with better proof. If better proof was available with the management and it was not furnished or produced before the Court the presumption would arise that such proof, if furnished, would have gone against the management. The Court observed that it is surprising that the view propounded by the Single Judge which falls in the realm of speculation had been upheld by the Division Bench. The Supreme Court accordingly remitted the case back to the Single Bench to re-hear it on merits. The said decision has no application to the facts of this case for that was not a case of promotion with retrospective effect. That apart, no immutable principle regarding the payment of arrears has been laid down in the said decision.
15. K.V.L. Narasimha Rao's (supra) of course was a case of retrospective promotion on notional basis, but were not given monetary benefits. In that case the respondents relied on the provisions of Rule 26(aa) of the Fundamental Rules and Rule 14(aa) of the Hyderabad Civil Service Regulations. The Hyderabad Civil Service Regulations provided that pay of a Government servant whose seniority by promotion has been revised and refixed from an earlier date, may be refixed on the basis of notional duty in the post from time to time. Note thereto provided that monetary benefit arising out of refixation as above shall be limited to the duty periods and arrears shall be payable only for the period during which the Government servant actually discharged the duties of the post. Arrears shall not be payable for the notional duty periods assigned as a result of revision of seniority position. In the case before the Supreme Court there was inter se seniority dispute among the judicial officers of different regions. Certain litigations arose as to the norms to be adopted for fixing the seniority and ultimately the High Court in a writ proceeding directed the judicial officers in Telangana must be given their due promotions with effect from the date their juniors being actually promoted. The respondents filed representations before the authorities regarding payment of arrears of salary and their monetary benefits flowing from their respective dates of notional promotion to the higher post from the grade of Munsif to subordinate Judge and from subordinate Judge to District Judge. In the writ petitions filed by the respondents the High Court directed payment of arrears of salary, which was affirmed in appeal. The High Court took the view that the State Government cannot deny the monetary benefit to officers whose ranks in the seniority list were adjusted and notional promotions were effected as a result of review of the common seniority list which attained finality under the provisions of the Act. The Supreme Court considered the matter in the light of the rules mentioned above and observed thus:
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 Rules 26 or Rule 40 of the Hyderabad Civil Services Regulations have been framed. As a matter of fact, rules of the erstwhile Slate 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 corning under the Act. There is no contention either in the High Court or before us that they are framed in contravention of the At. In this background, we fail to see as to why the rules are not applicable to the respondents as held by the High Court.
This decision according to us, instead of supporting the applicant only supports the case of the respondents that if the circumstances so warrant the monetary benefits for the period of notional promotions can be denied.
16. In Paramjeet Singh's case (supra) the appellant before the Supreme Court was originally working as Assistant Engineer in Minor Irrigation Department of the State of U.P. By order dated 22.7.1997, he was promoted as Executive Engineer in the Hill Cadre on the recommendations of the DPC and he was posted in the Minor Irrigation Department at Nainital in 1997. He also took charge of the said post on 21.8.1997. Respondent No. 4 in the said case who was posted as Executive Engineer, Minor Irrigation at Nainital was transferred from Nainital and was attached to the Superintending Engineer, Pauri. He challenged the said order in writ petition before the Allahabad High Court and obtained an interim order of stay on 2.9.1997. The operation of the order dated 19.8.1997 posting the appellant at Nainital was also stayed. Consequently, the appellant was deprived of the post of Executive Engineer at Nainital by an order dated 11.9.1997. He was not given aposting thereafter in the said post. The applicant also filed a writ petition seeking to quash the order dated 11.9.1997 and sought for giving a posting as Executive Engineer, Minor Irrigation, Nainital and for payment of salary and allowances since August 1997. The writ petition filed by respondent No. 4 was subsequently dismissed and the writ petition filed by the applicant was dismissed as infructuous. The appellant took up the matter in appeal before the Supreme Court. The Supreme Court observed thus:
We are unable to appreciate the order passed by the High Court on the writ petition filed by the appellant. The appellant was deprived of the post of Executive Engineer, Minor Irrigation, on the basis of the interim order dated 2.9.1997 passed by the High Court in the writ petition filed by respondent 4. After dismissing the writ petition of respondent 4 it was necessary for the High Court to have given appropriate directions in the writ petition of the appellant with regard to his posting as well as for payment of his salary. The writ petition could not be dismissed as infructuous.
The appeals are, therefore, allowed and it is directed that the appellant be given suitable posting as Executive Engineer, Minor Irrigation, in the Hill Cadre and till he is given such posting he should be paid the salary for the period he has not been paid the salary on account of his being deprived of the post of Executive Engineer, Minor Irrigation, Nainital on 11.9.1997. The said amount of salary should be paid with one month. No order as to costs.
17. This case is distinguishable for the reason that the appellant was promoted and posted as Executive Engineer at Nainital and lie took charge in the promoted post. It is thereafter, by virtue of the interim order passed by the Allahabad High Court in a writ petition filed by the respondent No. 4, the posting order was cancelled. It is pertinent to note that after cancellation of the posting order on 11.9.1997 the appellant was not given a posting to any other place at all. It is in the above circumstances the Supreme Court directed payment of arrears of salary etc.
18. In Rabindra Kumar Batticks case (supra) the Supreme Court was concerned with a situation where the appellants were untrained teachers employed in Upper Primary School which was initially a private school but subsequently taken over by the Notified Area Council, CT Rourkela. The appellants were thereafter sent to undergo the CT training course and after completing the training course they were not allowed to join their respective posts. The appellants filed applications before the Orissa Administrative Tribunal and the Tribunal by judgment dated 4.7.1995 allowed the said applications and directed that the applicants joining reports be accepted with effect from the date they submitted the same to the Executive Officer of the Notified Area Council and they be deemed to be continuing in service for the purpose of seniority, pension etc., but they would not be entitled to back salary. Though the applicants sought review of the said order the same was dismissed. The appellants thereafter took up the matter in appeal before the Supreme Court. The Supreme Court observed that since the appellants concerned were not at fault the Tribunal was not right in denying salary to the appellants for the period from the date when they reported for duty after completing the training till they were taken back on duly in pursuance of the directions contained in the judgment of the Tribunal dated 4.7.1995. The Supreme Court accordingly directed that the appellants shall be paid salary for the said period. This decision also has no application to the facts of the present case.
19. The Supreme Court in J.N. Srivastava's case (supra) was concerned with a case of an employee who submitted notice for voluntary retirement from service and he sought to withdraw the said notice within the notice period itself, which was rejected. The appellant went to the Tribunal, but without success. The Supreme Court observed that, "It is now well settled that even if the voluntary retirement notice is moved by an employee and gels accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement." The Supreme Court accordingly allowed the appeal and set aside the orders of the Tribunal as well as the orders of the authorities and directed the respondents to treat the appellant to have validly withdrawn his proposal for voluntary retirement with effect from the date of coining into force of the notice. The effect of the said order was that the appellant will have to be treated in service till the date of his superannuation on his completing 58 years of age. The Supreme Court also directed that the authorities will have to make good to the appellant all monetary benefits by treating him to have continuously worked till the date of his actual superannuation and further held that this entitles him to get all arrears of salary and other emoluments including increments and to get his pensionary benefits rcfixed accordingly. The contention of the respondent authorities that no back salary should be allowed to the appellant as the appellant did not work and therefore, on the principle of "no work, no pay" this amount should not be given to the appellant. This contention was negatived by stating that the appellant was always ready and willing to work, but the respondents did not allow him to work. This decision also turns on the peculiar facts of the said as and consequently the ratio of the said decision cannot be applied to the case on hand. The decision of the Delhi High Court in Sunder Dass (supra) relied on by the Counsel for the applicant also says that when termination/dismissal of a workman is set aside by the Court normal rule is reinstatement of workman with back wages. The said decision also mentions about exceptional circumstances which make it impossible or wholly inequitable. This decision also does not help the applicant.
20. The principles laid down by the Supreme Court in the aforesaid decisions can be summed up thus :
1. There will be no pay for no work; i.e., ? person will not be entitled to any pay and allowances during the period for which he did not perform the duties attached to a post or of a higher post. In exceptional circumstances, when there is absolutely no fault on the part of the Government servant and the Government servant was always willing to do the work attached to the post but he was denied employment/promotion then the Government is obliged to give the pay and allowances attached to the post from the dale from which he was denied the pay and allowances. [, , . Exceptional cases are , , ].
2. In normal circumstances when retrospective promotions are effected all benefits flowing therefrom, including monetary benefits must be extended to an officer who has been denied promotion earlier. If there are specific rules which provides that if the officers concerned did not actually work in the higher posts they have no right to claim monetary benefits or that arrears shall not be payable for the notional duty periods assigned as a result of revision of seniority position then Courts are bound to honour the said rules .
3. To lay down as an inflexible rule that in every case where retrospective promotion is granted the concerned person is entitled to all salary from the date of notional promotion is not practicable. The concerned authorities must be vested with the power to decide whether the officer concerned is entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion and if so to what extent on a consideration of the totality of the circumstances of each case. , .
21. The principles, thus deduced from the decisions of the Supreme Court discussed above there appears to have apparent inconsistency between principles specified above. If there is no pay for no work there is no question of payment of back wages when a person is reinstated after disciplinary proceedings and likewise when notional promotion is given retrospectively. However, Supreme Court itself has not taken it as an absolute rule. In certain circumstances it is held otherwise. The Supreme Court has also stated that when a person is fully absolved of all the charges in a disciplinary proceeding or in a criminal case on merits and on that basis he is reinstated in service or promoted with retrospective effect he must be entitled to all monetary benefits on such reinstatement or retrospective promotion. If there is a statutory rule which prohibits payment of arrears of salary in any such situation that will bind the authorities and the Court. On a harmonious reading of all the above principles it is clear that the common approach is that the question of payment of arrears of salary/back wages on the situations mentioned above will depend on the facts and circumstances of each case and there cannot be an hard and fast rule in the matter except when there is a statutory prohibition as discussed in K.V.L Narasimha Rao's case (supra).
22. Coming to the facts of the case on hand, as already noted, the applicant alongwith others while working as Officer Surveyor had filed O.A. No. 221/1996 before the Cuttack Bench of the Tribunal seeking for directions to the Surveyor General of India, Dehra Dun, to recast the seniority list by properly refixing the seniority position of the applicants who have passed the LDC Examination, 1986 in respect of vacancies of 1984 vis-a-vis the DPC promotees who were promoted by the DPC in accordance of 3:1 vacancy roster and for cancellation of the order dated 15.12.1995 promoting 33 Officer Surveyors to the post of Supenntending Surveyors and to issue fresh order of promotion after recasting the seniority list. As already noted the Cuttack Bench of the Tribunal in the order dated 4.5.1998 did not quash the order dated 15.12.1995 nor did it interfere with the promotion given to 33 Officer Surveyors. The Tribunal had only issued certain directions including the preparation of revised seniority list in accordance with the observations made in the said order and to consider the case of the applicant and others for promotion to the post of Superintending Surveyor from the date their juniors, if any, in the revised seniority list got promotion. The respondent authorities on the basis of the direction issued by the Tribunal prepared a revised seniority list but at the instance of one Shri Sapan Kumar Chakrabarty and another who were Officer Surveyors, the Cuttack Bench of the Tribunal in O.A. No. 438/1998 passed an interim order of stay of the revised seniority list. Hence the revised seniority list prepared pursuant to the directions of the Tribunal in O.A. No. 221/1996 was treated as provisional and the applicant was promoted to the post of Superintending Surveyor on ad hoc basis from 17.12.1999. The applicant took charge in the post of Superintending Surveyor on 17.12.1999 and continued as such. O.A. No. 438/1998 was referred to a Full Bench posing certain questions and the Full Bench of the Tribunal decided the said application finally by its order dated 27.3.2000 (Annexure-RJ3). Following the principles laid down by the Full Bench in the said decision a final seniority list of Officer Surveyor has been prepared and on the basis of the applicants position in the said list he was promoted on regular basis notionally with retrospective effect from 15.12.1995. The applicant was given arrears of salary and other monetary benefits from 17.12.1999, i.e. the date of ad hoc promotion from which date he had worked in the post of Superintending Surveyor. However, he was denied the monetary benefits for the earlier period from 15.12.1995. The Competent Authority while giving promotion to the applicant in the post of Superintending Surveyor notionally from 15.12.1995 did not thought it proper, in the circumstances, to order arrears of salary also. It is relevant to note that a Full Bench decision of the Tribunal necessitated for setting certain relevant principles in regard to fixation of seniority of Officer Surveyors under the respondents which would clearly demonstrate that it required lot of adjustments and equities based on certain ratios and roster points to determine the seniority position of the applicant and other similarly situated persons. This would be finally settled only by the Full Bench decision.
23. In the circumstances it cannot be said that the respondents are responsible for the delay in giving promotion to the applicant from an anterior date. As soon as the Tribunal had decided the applicant's case the respondents had prepared a revised seniority list and the same was published. However, the said list was stayed by the Tribunal in another case. In spite of this the respondents have promoted the applicant onad hoc basis from 17.12.1999 and he is given arrears of salary also from that date. The decision of the Principal Bench of the Tribunal in O.A. No. 2197/2000 (Manjula Rani (Smt) v. Government NET, of Delhi and Ors. dated 14.3.2002) also shows that in almost similar circumstances claim for monetary benefits for periods prior to the actual date of promotion on the basis of notional promotion was denied.
24. Considering the questions posed in the opening paragraph of this order in the factual background discussed in Paragraphs 9 and 20 hereinabove and in the light of the legal principles laid down by the Supreme Court and specified in Paragraph 18 above as reconciled in Paragraph 19 we are of the view that the challenge against the impugned orders cannot be sustained.
The application is accordingly dismissed. In the circumstances there will be no order as to costs.