Man Mohan Prasad v. Nakuleshwar Prasad — 1986 DIGILAW 371 (PAT)

Judgment U. P. Singh, J. 1. This is an application for Contempt of Court alleging violation of the order of this Court dated 25-2-1985 passed in C. W. J. C. No.169 of 1978 (R ). 2. In view of the judgment of this Court dated 25-2-1985, the impugned order as contained in Annexure-10 and the cousequent gradation lists of technicians Grade 1 (Annexures-B, C and D) was quashed, whereby respondents 3 to 35 in the said writ petition were placed as senior to the petitioner. Since there was no firm policy and guide line to determine the inter se seniority it was directed by this Court in the said judgment that the unrest amongst the workmen and stagnation in the matter of fixation of seniority should now be put at rest by adopting a firm policy by the Bihar State Electricity Board (in short the Board)ana the question of seniority of the petitioners and respondents 3 to 35 was directed to be determined expeditiously in accordance with such firm policy so that several workmen affected by the said impugned order might not retire without securing the benefits of such promotion. 3. The affidavit by the Additional Secretary of the Board was filed in pursuance of the notice issued in the contempt matter. In the said affidavit dated 25-6-1986, it was stated that in pursuance of the order of this Court passed in C. W. J. C. No.169 of 1978 (R) on 25-2-1986, revised tentative gradation list of Technician Grade I (Patratu Thermal Power Station) was notified by the general Manager, Patratu Thermal Power Station on 17-5-1986. In accordance with the same, the seniority of petitioner Man Mohan Prasad has been restored and that he will get the usual benefits in the matter of fixation of pay, promotion to Selection Grade and next higher post as a result of final publication of this revised tentative gradation list according to the rules of the Board. The submission made in paragraphs 4 and 5 of the affidavit filed on behalf of the Board has been controverted in its reply filed by the petitioner. The submission made in paragraphs 4 and 5 of the affidavit filed on behalf of the Board has been controverted in its reply filed by the petitioner. It was urged on behalf of the petitioner that the said statement made in paragraphs 4 and 5 are not wholly correct and that only a tentative gradation list dated 17-5-1986 of the General manager, Patratu Thermal Power Station was published and notional seniority was given with effect from 8-10-1970, whereas, the respondents ought to have been allowed all the benefits of seniority like Selection Grade, promotion and monitory benefits in the same manner was given to respondents 3 to 35. On this ground, it was asserted that the judgment of this Court was not fully implemented. On 17-9-1986, a supplementary affidavit was filed on behalf of the respondents stating that consequent upon the publication of final gradation list, notional seniority of the petitioner and such other employees of the Board will be fixed and all benefits such as promotion, selection grade and fixation of pay etc. , as admissible by the Board will be made. Continuing further, another supplemetary affidavit filed on behalf of the Board is dated 27-10-1986. In paragraph 5 of the said supplementary affidavit, it was stated that the pay of the other persons including that of the petitioner would be fixed in the higher scale accordingly, but they will not be entitled to arrears of pay since they have not worked as Technicians Grade I. la reply to all these averments made in the supplementary affidavit filed on behalf of the Board, the petitioner has filed its reply on 10-11-1986 and in paragraph-4, it is stated that :- "a perusal of the aforesaid gradation list marked as Annexure-A, would show that only notional seniority with effect from 8-10-1970 has been given to the writ petitioners and in paragraph 5 of the supplementary affidavit under reply, they have stated that the writ petitioners would be fixed in the higher scale of pay with effect from 8-JO-1970, but they would not be entitled to arrears of pay. " 4. " 4. It is now contended on behalf of the petitioner that notional promotion without any benefit of salary and arrears of pay would be of no avail and it cannot be said that the respondents have restored the seniority of the petitioner and others in accordance with or in compliance of the order of this Court dated 25-2-1985. On the basis of the notional promotion having now been restored to the petitioner with effect from 3-10-1970, the entitlement of the pay in the time scale of pay of Grade I Technicians with effect from 8-10-1970 and the benefits as per the recommendation of the first Wage Board have been mentioned in detail in paragraph-5 of the said reply. 5. In short, the grievance of the petitioner is that once the notional seniority has been restored, as mentioned in the final gradation fist dated 14-10-1986 which the petitioner has been granted with effect from 8-10-1970, it should be for all purposes and all such benefits which could have been granted to him on 8-10-1970 should be granted to him. For this, reliance has been pla. ed on a decision in the case of Sardara Singh V/s. The Administration of Union territory, 1980 (3) SLR 702. In the said decision, it was held that once an order of the Government is found to be void or unsustainable in law and is quashed, the relief, may be a monetary relief, which flows from such a setting aside of the order, has to be allowed to the successful petitioner. "once an employee is promoted with effect from a retrospective date, he cannot be deprived of the pay and other benefits to which he would have been entitled had he in fact been promoted to the said post on the date on which he has been later promoted. "once an employee is promoted with effect from a retrospective date, he cannot be deprived of the pay and other benefits to which he would have been entitled had he in fact been promoted to the said post on the date on which he has been later promoted. Any condition imposed to the effect that the said employee would not be entitled to the pay and allowances as a result of the promotion would be illegal, the reason being that the Government be not promoting such an employee on the date on which he was entitled to be so promoted, cannot take advantage of its own wrong or illegal order in not promoting him and then while conceding the claim of the employee for promotion with retrospective effect it cannot withhold what is due to the said employee on account of such promotion in the matter of pay and allowances. " 6. Reference was further made to a decision of Kerala High Court in the case of Alappat Narayana Menon V/s. State of Kerala, 1977 (2) SLR, 656 wherein it was also held that :- "claim for arrears of salary and other material benefit cannot be denied to him on the plea that what was given to him was only a notional promotion and the policy of the Government is not to give the arrears of salary in such cases. A Government servant cannot be said to have forfeited his claim for arrears of salary when he did not get his due promotion for no fault of his. " 7. On the basis of these decisions referred to above, it is contended on behalf of the petitioner that in the present case, the petitioner was entitled to get his promotion from 8-10-1970 and the same has not been granted, and, therefore, his claim for arrears of salary and other material benefits cannot be denied to him on the plea that what was given to him was only a notional promotion. 8. On behalf of the Board, and Award passed by the Central administrative Tribunal (New Delhi) dated 7th March, 1986 has been relied upon to contend that the petitioner would not be entitled to arrears of pay as he had not actually worked during that period. The said Award is clearly distinguishable on the face of it. 8. On behalf of the Board, and Award passed by the Central administrative Tribunal (New Delhi) dated 7th March, 1986 has been relied upon to contend that the petitioner would not be entitled to arrears of pay as he had not actually worked during that period. The said Award is clearly distinguishable on the face of it. Since, it was a case of erroneous promotion and it was held that in the case of erroneous promotion, the employee is entitled to get notional pay fixation from the date his junior was promoted, but not entitled to arrears of pay as he had not actually worked as such during that period. The present case is not a case of erroneous promotion, but a case of promotion what was due to him as a matter of right. Secondly, the decisions here relied upon by the petitioner was not noticed in the said Award of the Central Administrative Tribunal presisely because the very question before the Central Administrative Tribunal was different than what was raised in the present case. 9. It has also been casually mentioned that this question could not be decided in this application. Technically, it may be correct but looking at the substance of the matter, particularly, keeping in view the fact that the petitioners who are the workmen were claiming their due seniority from 1970 and some of them are now likely to retire from services and it is stated that some of them have already retired and few of them have expired, it would not be in the interest of justice to ignore their claim and ask them to be driven to another course of litigation. It is not a new right or claim which is being raised for the first time. The very question of seniority was involved in the Writ Petition CWJC No.169 of 1978 (R) which was decided by this Court on 25-2-1985. The writ petition pending since 1978 itself took about seven years to have its final pronouncement, 10. In view of the affidavits filed on behalf of the Board, it has been conceded that the promotion was due to be given to the petitioner and others with effect from 8-10-1970 and, therefore, notional promotion was accorded and given to the petitioner and others. In view of the affidavits filed on behalf of the Board, it has been conceded that the promotion was due to be given to the petitioner and others with effect from 8-10-1970 and, therefore, notional promotion was accorded and given to the petitioner and others. Having done all that, could it now be reaso-nably said and will it now be justified in the interest of justice to ask them to open another round of litigation for demanding the consequencial benefits which legally flows from the notional promotion given to the petitioner and others. It is in the interest of justice and also in the circumstances of this case to direct that the respondents concerned will decide the amount of salary which is due to be paid to them, with effect from 8-10-1970 and the same shall be expeditiously decided, preferably within one month from the date of the receipt of this order. 11. In this view, the application is disposed of with the directions as indicated above. The rule in the contempt matter is discharged. Decided accordingly.