Central Administrative Tribunal - Delhi
Dr. Lal Chand Thakur S/O Shri Jawala ... vs Union Of India (Uoi) Through Secretary, ... on 24 August, 2007
ORDER V.K. Agnihotri, Member (A)
1. In this OA the applicant, while seeking quashing and setting aside of the impugned orders dated 27.01.2003 (Annexure A-1) and 03.09.2004 (Annexure A-2) to the extent they grant him promotion on notional basis, has sought a direction to the respondents to pay him arrears of pay and allowances, on actual basis, for the post of Professor Neurology w.e.f. 07.12.1989 to 26.04.1994 and, similarly, arrears of pay and allowances for the post of Director Professor from 26.04.1999 to 03.09.2004, with all consequential benefits.
2. The undisputed facts of the case are that the applicant was appointed as Associate Professor w.e.f. 20.11.84 as direct recruit. One vacancy of Professor of Neurology of the year 1985 was converted from Direct Recruitment Quota to Promotion quota, as no suitable candidates were found by the UPSC, in spite of two attempts. A DPC meeting was held on 30.06.1989, in which the applicant and Dr. (Mrs.) Meena Gupta were considered. The DPC recommended Dr. Meena Gupta for promotion. The selection of Dr. Meena Gupta was challenged by the applicant before this Tribunal in OA No. 1659/1989 on the grounds that Dr. Meena Gupta was not eligible for consideration as on 30.06.1989. This Tribunal quashed the selection of Dr. Meena Gupta and directed the respondents to hold a review DPC and consider only persons eligible as on 30.06.1989. SLP No. 16292/1991, filed by the unofficial respondent against this order, was dismissed by the Hon'ble Supreme Court, vide order dated 15.11.1991. Thereafter, a review DPC was convened on 01.01.1992. The DPC, however, did not find the applicant 'fit' for promotion due to non-fulfilment of the required criteria (Benchmark) of at least two "Very good" ACRs.
3. The applicant challenged the proceedings of the DPC held on 01.01.1992 before this Tribunal in OA No. 1235/1993, which was dismissed, vide order dated 24.10.1997. The applicant filed C.W.P. 4863/1998 in the High Court of Delhi, challenging the order of this Tribunal. The main issue involved in the pleading was the 'year of vacancy'. According to the respondents, the vacancy was of the year 1989 and, therefore, the DoPT O.M. dated 10.03.1989 effective from 01.04.1989, which introduced the concept of Benchmark, was applicable to this vacancy. On the other hand, the applicant contended that the vacancy pertained to a period prior to the issue of the O.M. dated 10.03.1989, and, therefore, the provision of O.M. aforementioned were not applicable to this vacancy. The Hon'ble High Court, in its judgment dated 12.04.2002, held that the vacancy pertained to a period prior to issue of DoPT's OM dated 10.03.1989 (supra) and as such the proceedings of the DPC meeting held on 01.01.1992 be reviewed and finalized in accordance with the DoPT instructions existing prior to 10.03.1989. A review DPC meeting was accordingly held in the UPSC on 04.09.2002. The Committee recommended the applicant for promotion to the Specialist Grade-I post of Professor of Neurology in the Teaching Specialist sub-cadre of CHS in the then existing scale of pay of Rs. 4500-5700 + NPA. The applicant was promoted to the said post notionally w.e.f. 07.12.1989 (i.e. the date of promotion of Dr. Meena Gupta) and actually w.e.f. 01.12.1991, i.e. the date from which he had assumed the charge of the post. Subsequently, respondents sent a proposal to UPSC for conducting a review DPC for promotion of the applicant as Director Professor. Meeting of DPC was held in UPSC on 25.09.2003. The applicant was consequently promoted as Director Professor notionally, w.e.f. the date of promotion of his immediate junior, i.e. with effect from 26.04.1994 and actually w.e.f. the date of assumption of charge of the post, i.e. 03.09.2004.
4. The applicant has contended that his notional promotions amount to denial of pay and allowances legitimately due to him, particularly when he was not at fault. He was thus deprived of his legitimate promotions illegally, which stand is vindicated in terms of the judgment of the Hon'ble High Court of Delhi aforementioned. The principle of "no work, no pay" would, therefore, not be applicable in the given facts and circumstances of the present case. The applicant has further contended that his claim is squarely covered by the judgment of Hon'ble High Court of Delhi in the case of Shri Kalyan Singh v. Union of India and Ors. 2001 (1) AISLJ 216. It is well settled that if promotion is denied because of wrongful action of the department, then in such a case of delayed promotion the applicant cannot be deprived of arrears of pay and allowances.
5. The respondents have entered appearance and contended that the applicant was given promotion in pursuance of judgment of Delhi High Court and orders regarding his promotion as Professor and Director Professor were issued after obtaining the approval of competent authority. He has been given consequential benefits of pay protection etc., for his notional promotion. However, since he had not actually worked during the period of notional promotion, no pay and allowances can be paid to him on the principle of "no work, no pay". Therefore, he has not been deprived of any financial benefits.
6. The applicant has not filed any rejoinder.
7. In the course of oral arguments, Shri Sachin Chauhan, learned Counsel for the applicant, placed reliance on certain judgments of the Hon'ble Supreme Court/High Courts to argue that if promotion is denied to an employee because of the mistake of the administration and due to no fault of the applicant, the authorities are then bound to pay the arrears of salary etc. upon giving him the benefit of retrospective promotion. A promotion in these circumstances cannot be just on notional basis but has to be on actual basis from the date from which the person should have been appointed and has in fact been appointed on notional basis Mohd. Ahmed v. Nizam Sugar Factory and Ors. 2004 (11) SCC 210; Nalini Kant Sinha v. State of Bihar and Ors. 1993 Supp (4) SCC 748; Shri Kalyan Singh v. Union of India and Ors. (supra); and Indraj Singh v. State of Haryana 2001 (2) SLR (P&H High Court) 372.
8. Shri V.S.R. Krishna, learned Counsel for the respondents, assisted by Shri Harvir Singh, reiterated the contention raised by the respondents that based on the principle of "no work, no pay", the applicant was not entitled to payment of arrears of salary and allowances from the dates of his notional promotions. He further contended that the Hon'ble High Court of Delhi in CWP No. 4863/1998 (supra) had ordered as follows:
In the event it is held that the petitioner, having regard to his qualification as was necessary when the selection process started, being the only candidate should have been selected by the Review DPC, he would despite his subsequent promotion get benefits as being promoted on an earlier date.
Thus there was no specific direction in the order of the Hon'ble High Court to pay the arrears of salary and allowances to the applicant with retrospective effect. When a relief is not specifically granted, argued the learned Counsel, it is deemed to have been denied.
9. We have heard the learned Counsel for the parties and perused the material on record.
10. In our opinion, the law laid down by the Hon'ble Supreme Court and High Courts, cited by the learned Counsel for the applicant, clearly favours grant of relief sought by the applicant. In the cases cited by the learned Counsel for the applicant and in the present case too, time and again respondents erred in their interpretation of rules and instructions and thereby denied the promotions to the applicant, which he richly deserved, especially since, as observed by the Hon'ble High Court of Delhi in CWP No. 4863/1998 (supra), he was admittedly the only candidate eligible for selection at the relevant point of time.
11. We also notice that in a recent judgment of the Hon'ble Supreme Court in the case of State of Kerala and Ors. v. E.K. Bhaskaran Pillai JT 2007 (6) SC 83, a similar matter had come up for consideration. The applicant therein was wrongly denied promotion by the respondents and, upon intervention of the Court, was given notional promotion w.e.f. 15.09.1961, vide order dated 04.01.1979, but without monetary benefits. Upon applicant again approaching the Court, the respondents were directed to give him arrears of salary w.e.f. 15.06.1972, i.e. the date of his filing the petition before the Court. While confirming the order of the Hon'ble High Court for grant of arrears of salary to the applicant w.e.f. 15.06.1972, and after noticing several judgments of the Apex Court, cited by both the parties, the Hon'ble Supreme Court gave the following ruling:
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 sometime 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.
12. In the conspectus of case law aforementioned, we are of the view that when there is a genuine dispute and two points of view are possible, until the matter is adjudicated by a Court, the relief of the nature sought by the applicant is not permissible. However, where due to sheer negligence, carelessness or on account of mala fides an employer denies a benefit to an employee and such action of the employer is totally indefensible, being contrary to rules and instructions in force, the Court can intervene to provide the desired relief by setting the clock back. In our opinion, the case before us deserves such a treatment.
13. We do not find any merit in the contention of the learned Counsel for the respondents that since the Hon'ble High Court of Delhi in CWP No. 4863/1998 (supra) had not specifically granted the relief of payment of arrears of pay and allowances with retrospective effect, it is presumed to have been denied. In the case before the Hon'ble High Court, the core question for consideration was as to whether norms for promotion fixed by Office Memorandum dated 10.03.1989, which came into force w.e.f. 01.04.1989, will or will not have application in relation to a vacancy which arose in the year 1985. Grant of arrears of pay and allowances with retrospective effect was not the matter specifically addressed by the Hon'ble High Court, yet in the operative portion of the judgment aforementioned there was direction that the applicant should "get benefit as being promoted on an earlier date". Moreover, Ld. Chief Justice of the High Court, inter alia, referred to the judgment of the Hon'ble Supreme Court in the case of Brahma Vart Sanatan Dharm Mahamandal v. Kanhaiya Lal Bagla and Ors. , in which it has been held that the principle of res judicata would not apply in respect of any question in a latter case if adjudication thereon was not necessary for decision in the earlier case.
14. Taking the totality of facts and circumstances of the case into consideration, we come to the conclusion that in the present case the applicant was wrongly denied promotion due to no fault of his. It is also not a case of exoneration in a departmental enquiry or acquittal in a criminal case. It is simply a case of non-promotion of the applicant, who, being the only eligible candidate, should have been promoted, but was denied the promotion because of mis-interpretation and mis-application of the rules and instructions by the respondents. The applicant, therefore, deserves to get the benefit of payment of arrears of pay and allowances from the date of his notional promotions, which have been already ordered by the respondents. There is no need, in the present case, to order the grant of relief from a subsequent date of filing of the petition/application, in the ratio of the judgment of the Apex Court in the case of State of Kerala and Ors. v. E.K. Bhaskaran Pillai (supra), since the applicant had approached this Tribunal in the same year in which the promotion was denied to him, i.e. 1989.
15. In the result, the OA is allowed and the respondents are directed to pay the arrears of salary and allowances to the applicant based on the assumption that he held the post of Professor Neurology (Specialist Grade-I), on actual basis, w.e.f. 07.12.1989 and the post of Director Professor, on actual basis, w.e.f. 26.04.1994, with consequential benefits. This exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order. In the peculiar facts of this case, costs are made easy.