Delhi High Court
M.P. Tiwari vs Union Of India And Ors. on 6 November, 2013
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 6521/1998
% 6th November, 2013
M.P. TIWARI .... Petitioner
Through: Ms. Jyoti Singh, Sr. Advocate with
Ms. Saahila Lamba, Advocate
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. S.K. Taneja, Sr. Advocate with Mr.
Rajesh Gupta, Mr. Harpreet Singh, Advocates for
respondent Nos. 3 to 6.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Irrespective of the cause of action pleaded in the writ petition and the prayer made in the same, before me today on behalf of the petitioner what is argued and relief claimed, is the entitlement of the petitioner to stand promoted as an Assistant Engineer with the respondent no. 3/employer in terms of the selection process of February 1984. Since the petitioner has retired on 30.6.2003, a higher monetary emolument package taking the petitioner as having been promoted w.e.f 1.7.1983 as an Assistant Engineer is claimed. During the course of argument it is agreed that the monetary WPC 6521/1998 Page 1 of 11 package to the petitioner be granted from a period of three years prior to filing of the present writ petition and till the petitioner retired i.e on 30.6.2003.
2. Respondent no. 3/employer stated that though the petitioner was selected as an Assistant Engineer in the selection process which culminated in February 1984, petitioner cannot be given the promotion and monetary benefits as an Assistant Engineer on the following grounds:
(i) There was a settlement to be entered into between the parties on account of a court case filed by the petitioner being pending at the time of the selection process which took place in February 1984 and the selection process did not finalize qua the petitioner on account of petitioner‟s objections to the settlement terms. Hence it is argued that the petitioner cannot get benefit of the promotion post of Assistant Engineer.
(ii) Petitioner has not worked in the higher post and, therefore, no monetary emoluments of the higher post can be granted to the petitioner because of the principle of "no work no pay".
(iii) Petitioner pursuant to the promotion order had to join at a particular place and the entitlement to the promotion is only on the petitioner joining the particular place, but since the petitioner did not join at his place of posting petitioner cannot get the benefit of promotion. WPC 6521/1998 Page 2 of 11
3. The facts of the case are that petitioner after working in Indian Air Force in the Electrician cadre joined the Badarpur Thermal Power Plant Project of the Central Government in 1972. Petitioner‟s original appointment was on a work charged basis in the Badarpur Thermal Power Plant, however, on the project coming to an end, and on account of a settlement between the workers and the management, petitioner was offered regular employment in the post of Foreman Grade-III by respondent no.3‟s letter dated 20/21.11.1978 and which petitioner accepted by his acceptance letter dated 16.4.1979. Petitioner, therefore, became employee with the respondent no. 3 as a regular employee in the post of Foreman Grade-III w.e.f 16.4.1979. From the post of Foreman Grade-III the petitioner was subsequently promoted to a Foreman Grade-II and Foreman Grade-I and which are not issues before me, but the issue is of promotion of the petitioner from the post of Foreman Grade-I to an Assistant Engineer in terms of selection process which culminated by preparing of a merit list/panel after interviews were concluded on 7-8.2.1984. Petitioner after having cleared the written test, and which was one of the requirements for qualifying to the promotion post of Assistant Engineer, was called for interview in terms of letter dated 2/3.2.1984 of the respondent no. 3. Petitioner, however, in spite of being empanelled in the select list of WPC 6521/1998 Page 3 of 11 successful candidates was denied the promotion to the post of Assistant Engineer and hence this writ petition was filed in December 1998.
4. During the course of hearing, I put it to the learned senior counsel for the respondent no. 3 that whether there exists any pleadings on record of the respondent no. 3 in this Court that the petitioner‟s name did not find mention as a selected candidate in the panel prepared pursuant to the selection process of February 1984, and in response to this query the learned senior counsel for the petitioner had no option but to state that no such pleadings are made in this Court by the respondent no.3. Another query was also put as to whether respondent no. 3 has filed the merit list/panel which is prepared in terms of selection proceeding concluded in February 1984 for the post of Assistant Engineer, and again in reply to which it is admitted that no select list of the selected persons as Assistant Engineers pursuant to the selection process culminated in February 1984 has been filed on behalf of the respondent no. 3. Therefore, in my opinion, it cannot be disputed that the petitioner in fact was successful in the selection process for the post of Assistant Engineer by clearing the written test and the interview. Petitioner, therefore, was entitled to be appointed as an Assistant Engineer in terms of the selection process of February 1984. Let us now examine the defences which have been argued before me on behalf of the respondent no. 3 to WPC 6521/1998 Page 4 of 11 dispute the claim of the petitioner in the writ petition and alleged disentitlement of the petitioner to the promotion post of an Assistant Engineer culminating by preparing of the select list after the interviews were concluded on 7-8.2.1984.
5. Before me, on behalf of the respondent no. 3, it is not disputed that respondent no. 3 sent a letter dated 8.6.1984 to the petitioner with which the terms and conditions of settlement with the petitioner were annexed. This letter dated 8.6.1984 along with the annexed terms and conditions reads as under :
"Ref.No. 01:Pers:PF: 8.6.1984
Sh. B.P. Thakur
Chief Personnel Manager
NTPC
NEW DELHI - 110044
Subject : Case of Shri M.P. Tiwari, Foreman, Badarpur Division Dear Sir, This has reference to the discussions Shri H.S. Bhattal, Deputy Manager (Law) had with the undersigned on 1.6.1984 and the subsequent discussions with Shri M.K. Kaul, Assistant Law Officer on 6.6.1984 regarding the terms of settlement and the modalities thereof, for the court case of Shri M.P. Tiwari (suit No. 23/77).
I am directed to inform you that the terms of settlement of the court case should be as per the terms enclosed herewith; WPC 6521/1998 Page 5 of 11 and that a joint application should be moved by both the petitioner and the respondent to the court with a view to obtaining this mutually agreed terms of settlement as an order of the Court itself.
In case of any doubt the matter can be discussed in Corporate Personnel.
Yours faithfully,
( R.N. Ramji )
Encl: as above MANAGER (PERSONNEL)"
"Terms of settlement
1. Consequent upon his qualifying in the interview held on 7 & 8th February, 84, the Management agrees to th promote Sh. M.P. Tiwari to the post of Asstt. Engr.
(Erection) in the pay scale of Rs. 1000-50-1300-60-1900 w.e.f. 1.7.1983 with posting initially at Rihand Project of NTPC.
2. On the above promotion, Sh. M.P. Tiwari would be allowed the same basic pay w.e.f 1.7.1983 in the pay scale of Asstt. Engr. Which his contemporary namely Sh. R.S. Rathore has been getting from the said date with next date of increment falling due on 1.7.1984.
3. For the period up to 30.6.1983, Sh. Tiwari will get the pay and allowances as admissible for the post of Foreman Gr.-II which he would have held at Badarpur Division, but for his refusal vide his letter dated ..........
4. For the period beyond 30.6.1983 and up to the date of his relief from Badarpur Division, Sh. Tiwari would draw the same pay and allowances as mentioned at para 3 above. On his joining at Rihand Project after availing the joing time as per rules, he would be allowed the difference of pay and allowances WPC 6521/1998 Page 6 of 11 admissible to him as Asstt. Engr. For the period between 1.7.1983 and his actual date of relief from Badarpur Division as well as the pay and allowances admissible to him for the post of Asstt. Engr. On and from his date of relief from Badarpur Division."
(emphasis added)
6. It is argued before me on behalf of respondent no.3 that petitioner did not accept the terms of settlement and on the contrary modified the offered terms in terms of his letter dated 18.6.1984. When queried that what are these „modified‟ terms of settlement, all that is pointed out to me is that at the end of para 1 petitioner in hand had made an endorsement "with posting initially at". It is contended that it is because of the terms and conditions of the settlement not being agreed by the petitioner, that the petitioner is disentitled to seek promotion to the post of an Assistant Engineer.
7. In my opinion, the argument urged on behalf of respondent no.3 by contending that since there was no finality to the terms and conditions of the settlement in view of the letter dated 8.6.1984 of the respondent no.3 and the response thereto of the petitioner dated 18.6.1984, is an argument without merit inasmuch as the promotion of a person takes place not because of the exchange of correspondence but because of that person being successful in the selection process for the post in question. Petitioner, as stated above, was WPC 6521/1998 Page 7 of 11 successful for being promoted to the post of Assistant Engineer in terms of the selection process of February 1984 and therefore even if there was no settlement as is being contended by respondent no.3 that will not take away the finality of the recommendations of the DPC. Once the recommendations of the DPC are final then all the necessary consequences thereof flow including of giving the petitioner promotion to the post of Assistant Engineer, and which promotion post has been given to various other persons in terms of the selection process of February, 1984. At best, if the settlement was not final, however that settlement only will not be final, but the same cannot mean that the recommendations of DPC are also not final. Recommendations of DPC are necessarily final, and all that I may state is that it is not even the case of respondent no.3 as per the pleadings in this Court that the recommendations of DPC are not final, more so because various other persons have been promoted to the posts of Assistant Engineers in terms of the same recommendations of the DPC.
8. The issue then arises is that has the petitioner refused appointment to the promotion post of the Assistant Engineer as argued on behalf of respondent no. 3 by refusing to join the place of posting. Even this argument is without merit because there is admittedly no promotion order issued against the petitioner asking him to join at a particular place. If the WPC 6521/1998 Page 8 of 11 petitioner in terms of the promotion order had refused to join at a particular place and that was the pre-condition to the grant of promotion, then the respondent no.3 could have argued before me that petitioner is estopped from claiming promotion to the post of Assistant Engineer, but once no promotion order or any other order is issued against the petitioner asking him to join at a particular place then I fail to understand how failure of the petitioner to join at a particular place can be taken against the petitioner to deny him benefit of the selection which became final in terms of the DPC of February 1984.
9. So far as the issue of application of principle of „no pay for no work is concerned‟, this has been clarified by the Supreme Court in the judgment of State of Kerala & Ors. Vs. E.K. Bhaskaran Pillai (2007) 6 SCC 524 wherein Supreme Court has said that principle of „no pay for no work‟ is not an absolute principle and it depends on facts of each case as to what reliefs can be granted to a person. It has been held that the rule of „no pay for no work‟ is not an inflexible rule and if a person because of fault of the management is denied the benefit of promotion post it cannot be held that the person will not be entitled to benefits of the particular post. The ratio of this judgment will squarely apply because there is no fault attributable to the petitioner.
WPC 6521/1998 Page 9 of 11
10. I may also note that there is no delay and laches in filing this petition because once the recommendations of DPC became final, and documents were issued in the office of respondent no.3 itself to this effect, and filed at running pages 286-287 showing that petitioner was in fact promoted as an Assistant Engineer w.e.f 1.7.1983, I would not like to hold the petition as barred by delay and laches unless there was a specific refusal issued to the petitioner denying the benefits of the post of Assistant Engineer, and only when cause of action would have accrued to the petitioner to approach the Court. In the absence of any refusal addressed to the petitioner, that he would not be promoted to the post of Assistant Engineer in spite of his being put on the merit list panel as per the DPC of February, 1984, there was no need of the petitioner to approach the Court, albeit the petitioner will only be entitled to monetary emoluments for the promoted post for a period not more than three years prior to filing of the present writ petition.
11. The issue then arises is that what should be the relief which should be granted to the petitioner in this case. I have put to learned senior counsel for the petitioner, and who has accordingly taken instructions from the petitioner who is present in Court, that petitioner will be satisfied on his getting 1/3rd of the monetary emoluments as payable to an Assistant Engineer for 3 years prior to filing of the present writ petition. This entitlement of 1/3 rd of the WPC 6521/1998 Page 10 of 11 monetary emoluments as payable to the Assistant Engineer will of course be payable till the time the petitioner retired on 30.6.2003. Therefore, applying the ratio of E.K. Bhaskaran Pillai's case (supra) I hold that in the facts of the present case since petitioner without any fault of his has been denied the promotion post of Assistant Engineer, and at no point of time the petitioner refused to work at the post of Assistant Engineer, petitioner will be entitled to 1/3rd of monetary emoluments payable for the post of Assistant Engineer for the period of 3 years prior to the filing of the writ petition and till the date of his retirement on 30.6.2003.
12. In view of the above, the writ petition is allowed. Petitioner will be granted 1/3rd of the monetary emoluments payable to him as if he was an Assistant Engineer for the period of 3 years prior to the filing of the writ petition and which monetary emoluments will be payable till the retirement of the petitioner on 30.6.2003. The monetary package be paid to the petitioner within a period of three months from today, and if not paid within three months, then petitioner thereafter will be entitled to interest at 7 ½ % per annum simple till the amount is paid. Parties are left to bear their own costs.
NOVEMBER 06, 2013 VALMIKI J. MEHTA, J
godara
WPC 6521/1998 Page 11 of 11