JUDGMENT - S.M. DAUD, J.:---This petition under Article 226 of the Constitution is now restricted to deciding whether or not petitioner is entitled to the differential vis-a-vis the salary received by her and that allegedly due to her for the period 1-8-1982 to 25-4-1989. 2. Petitioner and respondent 3 both joined the employment of the second respondent - hereinafter referred to as the 'BPT'-in the secretarial cadree. The BPT until April 1975 had a Chairman without a deputy. In April 1975 the post of a deputy Chairman was created. The Chairman as also the Deputy Chairman had private secretaries. The private secretaries though attached to Officers enjoying a difference in pay, rank and status, drew the same salary i.e. 950-40-1110-45-1245-EB-45-1380-50-1630. Sometime, in December 1961 a question arose as to who as between petitioner and the third respondent was senior. The then Secretary of the BPT recorded a decision holding the third respondent to be senior to the petitioner. The decision as such is untraceable but the noting relating thereto was intimated in, June 1963 to both the persons concerned. The posts being equal in so far as the monetary benefits were concerned, petitioner and the third respondent worked sometime with the Chairman and at other for the Deputy Chairman. The question of sanctioning the substantive appointment of the rivals came up for consideration and the Departmental Promotion Committee recommended that petitioner be confirmed as the private secretary to the Chairman and the 'third respondent as the private secretary to the Deputy Chairman. Accepting the recommendation of the Departmental Promotion Committee, the Chairman had this order communicated to the Chief Accountant of the BPT and also the incumbents thus :--- "The Chairman has sanctioned the substantive appointment of Smt. J.C. Tatpati (respondent No. 3) and Smt. R.J. Parakh (petitioner) as private secretary to the Deputy Chairman and private secretary to the Chairman respectively, with effect from 12th April, 1975. Confirmation will not affect their inter se seniority." The Government of India in the Ministry of Shipping and Transport (port wing) took a policy decision to review the pay and allowances of Class I and Class II officers in the major Port Trusts and the Dock Labour Boards. This decision was communicated to the Chairman of all the Major Port Trusts and the Dock Labour Boards under Ex. A dated 1st February, 1984. This decision was communicated to the Chairman of all the Major Port Trusts and the Dock Labour Boards under Ex. A dated 1st February, 1984. By this revision a distinction was made between the two posts. The post of private secretary to the Chairman was upgraded with a pay-scale of 1560-60-2100-EB-60-2400. There was a raise in the pay-scale of the private secretary to the Deputy Chairman also but on a far more modest scal, the range being 1060-50-1260-EB-60-1680-EB-60-1980. On 1st February, 1984, it was third respondent who was attached to the Chairman. Petitioner was then working with the Deputy Chairman. Petitioner made a representation to the first respondent claiming monetary benefits annexed to the upgradation of the post of private secretary to the Chairman. This representation not having been acceded to, petitioner moved this Court. The benefits of the enhancement in the pay and allowances have gone to respondent 3 who obtained voluntary retirement in July 1990. Prior thereto, i.e. from 25-4-1989, petitioner was given a post where her emoluments were the same as those being paid to the third respondent. Pursuant to the retirement of the third respondent BPT has given to petitioner the status as also the pay-scale admissible to the private secretary to the Chairman. 3. Petitioner's case is that having regard to the order passed on 28th November, 1977 whereby she was given the substantive appointment of the private secretary to the Chairman and the respondent No. 3 that of private secretary to the Deputy Chairman, the BPT could not confer on respondent 3 the benefit of the pay-scale not annexed to her post. Conversely, the BPT could not deny to her the benefit of the pay-scale attached to the post of private secretary to the Chairman. As a result of the wrongful acts of the BPT she had been deprived of dues admissible to her for the period 1-8-1982 to 25-4-1989. The BPT in its return contends that the order dated 28th November, 1977 made it clear that appointments of petitioner and respondent 3 in different capacities would not affect their confirmation to the said post. This was because that depended upon inter se seniority. In so far as seniority was concerned, respondent 3 was senior to the petitioner. This fact had been made known to petitioner as also respondent 3. This was because that depended upon inter se seniority. In so far as seniority was concerned, respondent 3 was senior to the petitioner. This fact had been made known to petitioner as also respondent 3. Petitioner had not taken exception to the declaration of respondent 3 being senior to her. The upgradation of the post of the private secretary to the Chairman proceeded on a rational basis inasmuch as the said private secretary carried a heavier and more responsible workload as compared to that borne by the private secretary to the Deputy Chairman. By virtue of seniority the upgraded post had to go to the third respondent and the mere fact that by an accident petitioner happened to be holding that designation when the revision came into force, would not deprive respondent 3 of their rank. In any case petitioner not having functioned as private secretary to the Chairman, apart from the rightness or wrongfulness thereof, she was not entitled to a salary and allowances for work not done by her. The first respondent's return explains the reasons for the upgradation of the post of private secretary to the Chairman of the Major Port Trust. With that aspect of the matter we are not concerned in this petition. 4. The short question arising for determination in this petition is whether petitioner is entitled to difference between pay and allowances between 1-8-1982 and 25-4-1989? I find in the affirmative and my reasons for so doing are given below. 5. It is contended that petitioner not having taken exception to the upgradation of the post of Private Secretary to the Chairman as also the inter se seniority between herself and the respondent No. 3, is not entitled to claim the benefit of differential. Respondent 3 was her senior in service and this fact had been made known to both of them way back in 1963. Petitioner had not taken exception to that decision. The substantive appointments made in November 1977, though they were to have effect as from 12th April, 1975, were subject to claims arising out of inter-se seniority and these claims related to future promotions. As stated, there is an element of plausibility to this submission. But the contention is more in the nature of a digression from the crucial issue viz. what was the position as on the date the revisions in the pay-scales took place. As stated, there is an element of plausibility to this submission. But the contention is more in the nature of a digression from the crucial issue viz. what was the position as on the date the revisions in the pay-scales took place. That is indisputable having regard to the order of 28-11-1977. Shortly stated, the position was that petitioner was the holder of the substantive post of private secretary to the Chairman while respondent 3 was the holder of the substantive post of private secretary to the Deputy Chairman. That they were functioning in the reverse roles did not make any difference to their substantive holdings. By being attached to the Deputy Chairman of the BPT, the petitioner did not become a private secretary to the Deputy Chairman. Neither did respondent No. 3 get elevated to the substantive post of a Private Secretary to the Chairman, by merely functioning in that capacity. The resolution of 1st February, 1984 upgraded post and the benefits were to go to the holder of the post and not those who were discharging the functions annexed to that post, irrespective of what post they held. It is argued that the order of 28-11-1977 made it clear that confirmation would not affect the inter-se seniority vis-a-vis petitioner and respondent No. 3. I do not see what bearing this clarification in the order has. It did not mean that the BPT was entitled to change the substantive appointments of petitioner and respondent 3 at any time it liked to do so in future. 6. The next contention urged by Mr. Kapadia is that whatever be the entitlement of the petitioner, she had not worked as private secretary to the Chairman for the period 1-8-1982 to 25-4-1989 and is therefore not entitled to the monetary benefits annexed to that post. Counsel relies upon the following passage from (Virender Kumar v. Avinash Chandra Chadha and others)1, 1990(3) S.C.C. 472 :--- "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 higher 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. Further, even the entitlement of the respondents to the higher 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 had been criticised 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....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 no be applicable to the facts of the present case and the to be distinguished." Read carefully the passage dis-entitles emoluments annexed to higher posts with retrospective effect because of the fiction of deemed appointments and deemed promotions intruded into service jurisprudence. Petitioner was holding the post of private secretary to the Chairman of the BPT. It was not a reversion which made her function as the private secretary to the Deputy Chairman. As long as there was no difference in the scale of pay, neither incumbent bothered as to whom they worked for. Therefore the petitioner is not claiming any benefit on the basis of a deemed promotion. If anyone got any benefit of that theory it was respondent 3 and that by the accident of her continuing to work for the Chairman though her substantive status was that of private secretary to the Deputy Chairman. Learned Counsel refers me to the situation described in para 16 of the judgement in Virender Kumar's case (supra) to contend that even in cases where equity dictated payment of emoluments to deemed promotees, the Supreme Court thought it fit to deny the operation of emoluments of higher posts being awarded to deemed promotees. Learned Counsel refers me to the situation described in para 16 of the judgement in Virender Kumar's case (supra) to contend that even in cases where equity dictated payment of emoluments to deemed promotees, the Supreme Court thought it fit to deny the operation of emoluments of higher posts being awarded to deemed promotees. The passage relied upon by learned Counsel reads thus:--- "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 higher salary." This passage does not apply to the facts of the present case for the petitioner was holding the higher post and was wrongfully deprived of the pay-scale attached to that post. In other words, without reverting the petitioner and promoting the third respondent, the BPT wanted to confer on the one, ignominy and the glory, on the other. That is not permissible and hence the order. O R D E R Declared that BPT do pay to the petitioner the difference in the pay-scale and allowances drawn by her and that admissible to her as the holder of the post of the private secretary to the Chairman for the period 1-8-1982. Rule in these terms made absolute, with parties being left to bear their own costs. Mr. Kapadia prays for the over-ruling Mr. Talsania's objection, I stay the operation of this judgment for a period of six weeks as from today. Rule made absolute. -----