Central Administrative Tribunal - Delhi
Abdul Ahad vs Secretary on 13 September, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
OA NO.2773/2011
Order reserved on 20.04.2012
Order pronounced on 13.09.2012
HONBLE DR. DHARAM PAUL SHARMA, MEMBER (J)
HONBLE MR. SUDHIR KUMAR, MEMBER (A)
Abdul Ahad
(Group. B)
S/o Shri Mohd. Ibrahim
Assistant (Retired)
D-112, #rd floor
Gali No.5, Laxminagar
Delhi-1100092. -Applicant
(By Advocate: Shri B.S. Mathur)
Union of India
Through
1. Secretary,
Department of DOPT
North Block, New Delhi.
2. Secretary,
Ministry of Defence,
South Block, New Delhi. -Respondents
(By Advocate: Shri Tanveer Ahmed Ansari)
O R D E R
Mr. Sudhir Kumar, Member (A):
The applicant is an Orthopedically Handicapped (OH, in short) person, who was appointed as a Peon in the Directorate General of Supply and Disposal (DGS&D, in short) in the Department of Supply, Government of India on 06.03.1969. In the course of time, he got promotion as a Lower Division Clerk (LDC, in short) on 15.06.1987, and was confirmed on 31.12.1989. Consequent upon decentralization of DGS&D, he was transferred to Ministry of Defence (MoD, in short) w.e.f. 01.05.1992, and taken on the strength of MOD Secretariat from that date. On 29.06.1994, the Department of Personnel and Training fixed the range for promotions to the grade of Upper Division Clerk (UDC, in short) against the Select List vacancies for the year 1993 under the Zoning Scheme, and the range for Physically Handicapped (PH, in short) category was fixed as LDCs with 8 years approved service as on 30.06.1994. As the applicant had just been taken on the rolls of MOD two years back, from 01.05.1992, there was no entry in his Service Book about his having completed 8 years of approved service, because of which his name came to be omitted from the UDCs Select List Year 1993. For the same reasons, he was also not considered against the Select List Year 1994, and was finally included in the Select List Year 1995 of UDCs. He is aggrieved by this delay on the part of the respondents, and filed this OA on 29.07.2011, praying for the following reliefs:-
a) To issue appropriate time-bound directions in the nature of mandamus to the Respondents to grant the Applicant actual and not notional promotions as UDC and as Assistant from due dates and allow consequential benefits of arrears of pay and allowances.
b) To direct Respondents to issue revised order granting pensionary benefits and arrears consequent to actual pay fixation.
c) To grant any other relief or direction which the Honble Court deems fit and proper.
2. The applicant, however, did not represent against the injustice done to him immediately after his promotion as UDC against the Select List Year 1995. As per Para 4.8 of the OA, he gave his representation dated 17.05.2006, eleven years later, addressed to Under Secretary (Estt.I) against the Government Order dated 22.04.1997 through which he had been informed that his name had been covered in the Select List of UDCs in the year 1995 at Serial No.162 but he had not been shown under the Handicapped category.
3. On 08.05.2007, a person junior to the applicant was promoted as Assistant w.e.f. 17.04.2007, and his pay was fixed provisionally at Rs.6500/- p.m. (Annexure-2). The applicant then pursued the matter, and Respondent No.2 issued an OM dated 24.04.2008 (Annexure A-3) recommending that his name may be included in the Select List Year 1993 for UDCs, and be placed below the incumbent at Serial No. 3186, as a special case, as no vacancy had been earmarked for PH category in the UDCs grade of the Central Secretariat Clerical Service (CSCS, in short) cadre of MoD for the year 1993. It was further recommended that he may be granted notional promotion on ad hoc basis to the Assistants Grade with effect from the date on which his immediate junior had been promoted as Assistant on ad hoc basis, and that other benefits and allowances may be granted to him at par with his junior. The facts regarding the case of the applicant had also been encapsulated in the Annexure to that letter dated 24.04.2008.
4. Vide Notification dated 07.08.2008 (Annexure A-4), the respondent MoD included his name in the Select List Year 1993 of UDCs of CSCS cadre of MoD, and granted him promotion against the Select List vacancies for the year 1993, under the Zoning Scheme, at par with others, w.e.f. 30.08.1994. The consequential order placing his seniority at the appropriate level was also issued through Annexure-5(ii) dated 27.08.2008. The respondents also interpolated the name of the applicant at Serial No.358-A/93 in the Combined Seniority List (CSL, in short), and an order dated 29.08.2008 was also passed, appointing the applicant as an Assistant, on ad hoc basis.
5. Through Annexure A-7 dated 02.09.2008, such ad hoc basis appointment of the applicant as Assistant was ordered to be up to 31.10.2008, or until further orders, whichever is earlier. In the meanwhile, the others had exercised their option in response to the letter dated 15.09.2008 (Annexure A-8) issued by the respondents in respect of fixation of pay in the Sixth Central Pay Commission (CPC, in short) Revised Pay Band-II, and 5 such persons were benefitted. The applicant then again represented through his letter dated 29.10.2008 (Annexure A-9), but on 15.01.2009, through Annexure A-10, the matter was referred by the MoD to the Department of Personnel and Training (DoP&T, in short) as to whether the applicant can be granted the actual benefit of the grade of UDC w.e.f. 30.08.1994, the antedated date from which his name was included in the Select List Year 1983 vide Ministrys order dated 07.08.2008. He also represented to the respondent department through Annexure-10(i) dated 29.10.2008. It is in response to this that the impugned Annexure A-1 dated 13.10.2008 has been issued, fixing the applicants pay in the grade of UDC notionally w.e.f. 30.08.1994, and notionally granting him annual increment w.e.f. 01.08.1995, and ante-dated pay fixation was also granted to him under the Vth CPC, in the pay scale of Rs.4000-6000, w.e.f. 01.01.1996. Cognizance was also taken of his promotion as Assistant on ad hoc basis w.e.f. 30.06. 2005, and under FR 22 1 (a) (1), his pay from that date was fixed in the pay scale of Rs.5500-9000 at Rs. 5500/-, the beginning of the pay scale. On 14.10.2008, through the second impugned order (Annexure A-2), the applicant was granted the benefit of pay fixation of his pay under the VIth CPC, and his pay was fixed from the date of his option dated 15.09.2006 for the ad hoc period of his appointment as Assistant. The applicant has submitted that injustice has been done to him when the Revised Pension Order dated 24.05.2011 was forwarded to him through letter dated 30.05.2011, fixing his pensionary and other benefits and granting him Basic Pension, Commuted Pension and Reduced Pension payable after Commutation. The applicant is not satisfied with the notional fixation of his seniority and his notional promotion as UDC w.e.f. 30.08.1994, and as Assistant w.e.f. 21.04.2007, because he was not at fault for the administrative mistakes committed by the respondents. He has, therefore, sought through this OA the benefit of actual promotions from the above due dates, with all consequential benefits.
6. In their reply written statement, the respondents admitted all the relevant dates involved, and also the fact that for some time there was no entry in his Service Book, because of which initially he had been denied the promotion to the UDC Grade of CSCS cadre for the Select List Year 1993. But it was submitted that though he was appointed as a Peon under OH category, but he was never given the benefit of PH category at any point of time thereafter, nor did he claim for the same during his entire service period before 2006. The respondents, however, relied upon the DoP&T Clarification issued on 20.09.2011 (Annexure R-11) stating as follows:-
Subject: OA No.2773/2011 in CAT PB., New Delhi, filed by Shri Abdul Ahad, retired ad-hoc Assistant from M/o Defence.
----
In continuation of this Departments OM of even number dated 01.09.2011 on the subject cited above the undersigned is directed to say that the matter has been examined in this Department. It is informed that on his regular promotion to UDC Grade, actual benefit of pay fixation may be granted to Shri Abdul Ahad w.e.f. 30.08.1994, i.e., the date of appointment of his juniors in UDC Grade. However, in the case of promotion to Assistant Grade, on ad-hoc basis, granting of benefit of pay fixation with retrospective effect or stepping up of pay with juniors is not in consonance with the orders/instructions of this Department. For availing of the promotion on ad-hoc basis, the official has to assume the charge of the post. Hence his pay should be fixed with effect from the date of assumption of the charge of the post of Assistant.
2. Ministry of Defence may, accordingly take necessary action and defend the case on behalf of UOI. While defending the case, the interest of this Department may also be kept in mind.
7. Following the DoP&Ts advice, the respondent MoD has granted the applicant the actual benefits of pay and consequential arrears of pay from the date of his ante-dated regular promotion to the UDC Grade w.e.f. 30.08.1994, i.e., at par with the date of appointment of his juniors in UDC Grade against Select List Year 1993, through Annexure R-12 dated 23.09.2011. They, however, submitted that as his promotion to the Assistants Grade was only on ad hoc basis, and not on regular basis, he cannot claim stepping up of his pay in the Assistants Grade with reference to the date of his juniors appointment, since, according to them, ad hoc appointment does not confer upon the appointee any right to continue in the Grade indefinitely, and for inclusion in the Select List, and to claim seniority in the Assistants Grade of the Central Secretariat Service (CSS, in short), since an ad hoc appointment may be terminated at any point of time, without giving any reason therefor, even though such ad hoc appointment may have taken effect from the date of his taking over charge of the post of Assistant in the CSS cadre. In view of this, the respondents had submitted that the OA is devoid of any legal merit, and had prayed that it deserves to be dismissed.
8. It was admitted by the Respondents that one Shri Gyanendra Kumar Shukla was promoted as Assistant w.e.f. 17.04.2007 on an ad hoc basis, but it was submitted that the applicant was much junior to him on that date, as his representation for granting him benefit of PH category was still under consideration, and was yet to be decided. It was submitted that there cannot be equivalence or stepping up of pay as against any juniors ad hoc promotion, as the principle regarding stepping up of pay applies only as regards substantive holding of the post. The respondents had also annexed photocopies of the entire service record of the applicant.
9. The applicant chose to file a rejoinder on 19.03.2012. He submitted that he was totally unaware of the DoP&T instructions dated 29.06.1994 regarding the requirement of fixed 8 years of approved service in respect of LDCs of PH category, and he submitted that it was only in 2005 that through some senior colleagues, the applicant learnt that there was reservation for persons with disability in the matter of promotions to Group D and Group C posts, and that he was entitled to the benefit of seniority as UDC from an earlier date, if his disability had been taken into account. In the result, he had reiterated his prayers, and had submitted that he should have been first to be promoted as Assistant against the first available vacancy of Assistant. He, therefore, prayed that the impugned orders be quashed, and had prayed that the delay on his part in staking his legitimate claim should be appreciated in the proper background, as explained above.
10. Admitting that while the promotion granted to his junior Shri Gyanendra Kumar Shukla, cannot be undone, the applicant had prayed that in the interest of fair play, justice and equity, he has to be held to be entitled to stepping up of his pay vis-`-vis his junior Shri Shukla, and that the fact that his posting as Assistant was not regular, and was only on an ad hoc basis, does not change the nature of relief to be given to him.
11. Heard. The case was argued at length, on the basis of the applicants representations dated 17.05.2006, 20.11.2006, and the respondents letter addressed to DoP&T dated 07.12.2006 requesting for considering the case of the applicant.
12. During the course of arguments the learned counsel for the applicant submitted his arguments in detail, and relied upon the following judgments:
i) Manga Ram v. Delhi Administration and others, CAT PB Judgment dated 05.10.1993, OA No.1088 of 1988, as reported in Swamys Case Law Digest 1993 at serial No.518.
ii) Ranjan Krishnan (Mrs.) and K. Damodaran v. Union of India & Another, OA No.202 of 1992 of Bombay Bench of this Tribunal, judgment dated 26.04.1994, reported in Swamys Case Law Digest, 1994 at serial No.362.
iii) The Judgment dated 24.08.2007 in OA-2603/2005 of the Principal Bench in the case of Dr. Lal Chand Thakur v. Union of India & Others.
iv) The Honble Delhi High Courts judgment dated 14.03.2008 in WPC No.23332/2005 in Balwant Singh Bisht v. Union of India & others.
v) CAT Ernakulam Bench Judgment dated 26.08.2012 in OA No.517/2010 N. Chandu v. The Chairman-cum-Managing Director, BSNL & others.
13. In the case of Manga Ram (supra), it had been held on 5.10.1993 by the Principal Bench of the Tribunal that when promotion is denied due to administrative lapse to include the name in the seniority list, the concerned official is entitled to the promotion from the date his junior is promoted, with consequent pay fixation.
14. In the case of Ranjan Krishnan (Mrs.) (supra) the Bombay Bench had quoted the judgment of the Full Bench of the Ernakulam Bench of this Tribunal in N.T. Joseph v. Union of India in OA No.37/1991 decided on 10.06.1992, in which it was held as follows:
A supersession is a supersession, whether it is for ad hoc promotion or for regular promotion. Supersession of the applicant by Respondent No.4 for ad hoc promotion in view of the applicant having been included in the panel before that in preference to Respondent No.4 cannot be sustained.
15. In Dr. Lal Chand Thakurs case (supra) the issue was regarding notional promotion, and it was submitted by the respondents that on the principle of no work no pay the applicant was not entitled to payment of arrears of salary and allowances from the date of his notional promotion, and in saying so, the respondents had relied upon the Honble High Court of Delhis judgment in CWP No.4863/1998 that there was no specific direction in the order of the Honble High Court to pay the arrears of salary and allowances to the applicant therein with retrospective effect when the promotion had been antedated notionally by two years as compared to the actual date of substantive promotion. The Bench had relied upon the judgment of the Honble Apex Court in the case of State of Kerala & others v. E.K. Bhaskaran Pillai, JT 2007 (6) SC 83, wherein the applicant had been wrongly denied promotion by the respondents, was later given notional promotion upon intervention by the Court but without monetary benefits, and the respondents were directed to give him arrears of salary from the date of his filing of the Petition before the Court by holding as follows:
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. (Emphasis supplied).
16. The Bench of this Tribunal had thereafter expressed its views as follows in deciding Dr. Lal Chand Thakurs case (supra):
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 Honble 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 Honble 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 Honble 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 Honble Supreme Court in the case of Brahma Vart Sanatan Dharm Mahamandal v. Kanhaiya Lal Bagla & Ors., 2001 (9) SCC 562, 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 & 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. (Emphasis supplied).
17. In the case of Balwant Singh Bisht (supra), once again it was a case of delayed consideration of promotion of the applicant because of enquiry proceedings against him, which had not been properly considered by the DPC, but was later considered by the review DPC, and the applicant was granted notional seniority and pay fixation, but the actual pay in the higher pay scale was granted only with effect from the actual date of promotion, and not for the past period. In such circumstances, the Honble High Court had relied upon its judgment in WPC No.4657/2005, summarizing the law on this aspect, and summarizing the legal position as follows:
13. The principle which can be deduced is that if a promotion is denied to an employee because of the mistake of the administration and due to no fault of the said employee, then the authorities are bound to pay the arrears of salary etc. upon giving him the benefit of retrospective promotion after realizing that mistake. This principle would be extended even to those cases where due to sheer negligence, carelessness or on account of malafides an employer denies the benefit of promotion to the employee at a proper time when it becomes due and gives him afterwards though retrospectively. (Also see State of Kerala and Others v. E.K. Bhaskaran Pillai - JT 2007 (6) SC 83; Mohd. Ahmed v. Nizam Sugar Factory and Others (2004) 11 SCC 210; Nalini Kant Sinha v. State of Bihar and Others - 1993 Supp (4) SCC 748). On the other hand, where there is genuine dispute and the promotion was delayed because of pendency of such a dispute and before the settlement of the dispute the promotion could not have been granted, the salary for the past period can be denied even when promotion is given retrospectively after the resolution of the dispute. Further the benefit of arrears of salary for past period can also be denied if it is found that it was not fault or mistake of the administration because of which the promotion was delayed.
14. In those cases where concerned employees seniors as well as juniors are granted the benefit of promotion and the salary for the period in question, same should invariably be given to such an employee who is given belated promotion retrospectively as non grant of arrears of pay and allowances of the higher post for the relevant period, in such circumstances, would amount to hostile discrimination. (Emphasis supplied).
18. In the result, in the case of Balwant Singh Bisht (supra) also, the Writ Petition had been allowed, and the respondents had been directed to pay the arrears of salary to the petitioner on the promotional post w.e.f. 6.1.2001, the date of promotion of his junior when his case was kept in sealed cover.
19. In the case of N. Chandu (supra) the Ernakulam Bench of this Tribunal had cited with approval the Full Bench decision of the Principal Bench in OA No.1387/2010 with OA No.900/2009 as follows:
6.The issue to be decided in the present OA, is whether adhoc promotion can be given with retrospective effect or not. In OA No. 1387 of 2010 with OA No.900 of 2009 the Full Bench of the Principal Bench of this Tribunal considered the issue and held as under:-
"5. In the light of the above, we are of the view that a Government servant would be eligible for ad hoc promotion retrospectively from the date of promotion of the person junior to him, if the circumstances which caused impediment in his ad hoc promotion have been resolved in his favour and the DPC has found him fit for ad hoc promotion. The decision whether such promotion should be notional without any payment of back wages and counted only for the purposes of increments or it should be regular for the payment of back wages also has to be decided by the competent authority according to the rules."
7 8 With regard to payment of back wages also in the very same decision the Principal Bench has held as under:-
"7. In the light of the above discussion we are of the considered opinion that in such cases where the Government servant has been deprived of the benefit of ad hoc promotion because of the pendency of criminal/disciplinary proceedings, in which the Government servant has subsequently been exonerated, he will be eligible for ad hoc promotion retrospectively from the date the person junior to him has been promoted. However, it would be left to the Competent Authority to decide, on consideration of the facts and circumstances of the case, whether the promotion should be notional without back wages or regular with back wages. The benefit of increments, however, shall be available in both cases." (Emphasis supplied).
20. It was finally held that the applicant therein was entitled to be considered for promotion in preference to his junior, and the respondents were directed to consider and promote the applicant also to the Super Time Scale of ITS Group A on ad hoc basis with reference to and at par with his junior, and they were further directed to grant all consequential benefits including arrears of pay and allowances arising therefrom.
21. We have given our anxious consideration to the facts of the case, as well as the cited case-law of the Principal Bench, and the Ernakulam Bench of the Tribunal, and of the Honble High Court, and Apex Court, cited and reproduced as above. It is our most respectful submission that none of these decided cases come to the rescue of the applicant herein, as all the cited cases is applicable to a single line of hierarchy of promotion, in a single service cadre, where a junior in the same Service for some reasons stolen a march over his senior, and therefore, under the applicability of Next Below Rule (NBR, in short), the senior has to be compensated by placing him at par with his junior in the service, from the date his junior was so granted the seniority above him in the service.
22. The case of the present applicant is unique, inasmuch as the whole issue concerns two different services altogether, the Central Secretariat Clerical Service (CSCS, in short) consisting of the cadres of LDCs and UDCs, and the Central Secretariat Service (CSS, in short), consisting of the cadres of Assistants/Section Officers/Under Secretaries/Deputy Secretaries/Directors and above. In none of the case-law cited by the learned counsel of the applicant, it has been held that the NBR would apply, and that the juniority and seniority in a given Service would be carried over even when the movement is from one organized Service (CSCS) to another entirely different organized service (CSS). In the instant case, the applicant was first denied promotion within CSCS from the grade of LDCs to the grade of UDCs for a period of two years, because of the missing entries in his Confidential Reports, for a period of two years. On the basis of the case-law cited by the learned counsel of the applicant, the case of the applicant upto that stage is covered on all fours by the cited case-law, as far as the fixation of his pay and seniority within CSCS with effect from 30.08.1994 against the Select List of UDCs for the year 1993 is concerned. The respondents have realized their mistake, and have since already granted him antedated promotion and arrears of salary with effect from 30.08.1994, at par with the date when the Select List Year 1993 persons were promoted to the cadre of UDCs within the CSCS.
23. But CSS is a different organized service altogether. The appointment from UDCs, the highest pay scale of CSCS to the post of Assistant, the entry level lowest cadre in the CSS, is not automatic, and also the UDCs of CSCS do not constitute the only source of recruitment for the CSS Assistants cadre. On moving from the CSCS Service to CSS Service, the seniority of CSCS in the grade of UDCs has no relevance for the purpose of determining seniority in the grade of Assistants of CSS, since there are more than one modes of entry into the Assistants grade of CSS, and a number of factors get involved even in the process of induction of UDCs of CSCS into Assistants cadre of CSS.
24. Therefore, an appointment of a person on ad hoc basis in CSS, does not give rise to any vested right in favour of another person, who is still in the CSCS, like the applicant who had till that date not yet entered the CSS Assistants cadre, and was still in substantive capacity in another service, CSCS. Therefore, whether the appointment of a person in the cadre of CSS Assistants cadre is ad hoc or regular, it can have no effect whatsoever on the promotional channels of any other persons who are still in the UDCs grade of the CSCS cadre. The Articles 14 and 16 of the Constitution of India do not provide for equality in the negative terms. Equality can only be among equals, and pay parity can only be sought against a person who is equal.
25. If a person, who may have been applicants junior earlier in the UDCs grade of CSCS, has left that service, and joined the other organized service of CSS, in its lowest entry level Assistants cadre, the applicant, while he was still a UDC in the CSCS, cannot claim parity with such a person. Therefore, to our mind the respondents have acted fairly in granting the applicant seniority and all monetary benefits, including arrears of pay, in respect of his antedated promotion as UDC w.e.f. 30.08.1994 against Select List Year 1993, for which he had been inadvertently left out due to the mistake of the Administration, without applying the no-work, no-pay principle, which is the distilled ratio of the case-law cited by the learned counsel of the applicant. However, in none of these cited cases, a case of parity being provided when a person had left one organized service, and moved to another service, has been considered by either the Principal Bench, or the Ernakulam Bench or the Full Bench of the Principal Bench of this Tribunal, or by the Honble High Court of Delhi, or by the Honble Apex Court, in the judgments cited above.
26. Therefore, while the applicant is fully entitled to both notional and actual promotion as UDC from the date of appointment of UDCs of the Select List Year 1993, which benefit has already been provided to him, he cannot claim either notional or actual appointment as Assistant, on the basis of a claim of parity with a person who was earlier his junior in the CSCS UDCs cadre, but had since vacated that lien, and had moved on to the become an Assistant in the CSS, on ad hoc basis. Therefore, the request, as prayed for by the applicant cannot be granted, and the OA is rejected, but there shall be no order as to costs.
(Sudhir Kumar) (Dr. Dharam Paul Sharma) Member (A) Member (J) cc.