K. K. R. NAIR v. FOOD CORPORATION OF INDIA — 1991 DIGILAW 366 (GUJ)

C. K. THAKKAR, J. ( 1 ) THIS petition is filed by the petitioner who is serving as Deputy Manager (Legal) for a writ of mandamus directing the respondent-Corporation to give him deemed date of promotion to the post of Joint Manager (Legal) from the date when the respondent No. 3-Gian Singh junior to the petitioner came to be promoted to the said post by granting all consequential benefits. He has also prayed that he should be granted salary and arrears of pay from 17/10/1981 till 17/09/1989 because during that period he was illegally deprived of back-wages. He has further prayed to grant revision of his salary with effect from 1/01/1986 which has not been granted. ( 2 ) TO appreciate the legal controversy few facts may now be stated. ( 3 ) IT is the case of the petitioner that he was appointed with the Food Corporation of India-respondent No. 1 herein on 22/12/1976 as Deputy Manager (Legal ). In August 1981 he was serving at Hyderabad. It is his case that since he was not keeping good health he went to his native place in Kerala by taking necessary leave which was sanctioned. The Corporation however felt that the petitioner had over-stayed without getting leave sanctioned and in these circumstances his services came to be terminated with effect from 17/10/1981 It was the case of the petitioner that the said action of terminating his services was contrary to law and violative of the principles of natural justice inasmuch as no notice was issued no explanation was sought and no opportunity whatsoever was afforded to him before taking that action. He therefore moved the High Court of Andhra Pradesh by filing a writ petition which came to be allowed by the learned Single Judge of that Court by a judgment dated 19/01/1985 The order passed by the learned Single Judge of Andhra Pradesh High Court is annexed at Annexure-A to the petition. The operative part reads as under:"for all the aforesaid reasons this writ petition is allowed with costs". ( 4 ) IT appears that being aggrieved by and dissatisfied with the order passed by the learned Single Judge an appeal was filed before the Division Bench of that Court by the respondent-Corporation and it also appears that interim order against implementation of the order passed by the learned Single Judge was also obtained by the Corporation. ( 4 ) IT appears that being aggrieved by and dissatisfied with the order passed by the learned Single Judge an appeal was filed before the Division Bench of that Court by the respondent-Corporation and it also appears that interim order against implementation of the order passed by the learned Single Judge was also obtained by the Corporation. Ultimately however the Division Bench dismissed the appeal by an order dated 22/11/1987 by confirming the order passed by the learned Single Judge. The Corporation approached the Honble Supreme Court by filing Special Leave Petition (Civil) No. 12714 of 1988 which was summarily dismissed by refusing to grant leave on 20/02/1989 and the said order is annexed at Annexure-8 to the petition. The resultant effect of the aforesaid proceedings is that the action taken against the petitioner- was held to be contrary to law and was set aside by the Court. After the appeal was dismissed by the Division Bench in November 1987 the petitioner made a representation and reported himself for duty on November 3 1988 Similarly he also made representation after the dismissal of Special Leave Petition by the Honble Supreme Court on 17/03/1989 and 25/04/1989 respectively. He was however not reinstated even after the order passed by the Supreme Court. In fact after the appeal was dismissed in November 1987 by the Division Bench of Andhra Pradesh High Court though S. L. P. was filed by the Corporation no any interim order was obtained by the Corporation and in these circumstances the Corporation was under obligation to reinstate the petitioner. But the Corporation failed to do so. Special Leave Petition was dismissed on 20/02/1989 but even thereafter the petitioner was not reinstated in service. It was only on 18/09/1989 that the petitioner was reinstated and posted at Ahmedabad. ( 5 ) MR. P. B. Majmudar learned Counsel for the petitioner submitted that the petitioner is entitled to back wages from the date on which his services were illegally terminated on 17/10/1981 till 17/09/1989 when he was reinstated and posted at Ahmedabad. It was only on 18/09/1989 that the petitioner was reinstated and posted at Ahmedabad. ( 5 ) MR. P. B. Majmudar learned Counsel for the petitioner submitted that the petitioner is entitled to back wages from the date on which his services were illegally terminated on 17/10/1981 till 17/09/1989 when he was reinstated and posted at Ahmedabad. Alternatively he submitted that the petitioner is entitled to salary with effect from 19/01/1985 - the date on which his petition was allowed by the Single Judge of Andhra Pradesh High Court and finally alternatively he submitted that the petitioner was entitled to get salary with effect from 20/02/1989 when the S. L. P. of the Corporation was dismissed by the Supreme Court. ( 6 ) HE further submitted that since the petitioner was ordered to be reinstated on 19/01/1985 he was entitled to revision of pay which was granted to all the employees with effect from 1/01/1986 ( 7 ) REGARDING promotion the case of the petitioner is that the next promotional post from the post of Deputy Manager (Legal) is Joint Manager (Legal ). Even though he was eligible and his case was required to be considered in accordance with law it was not considered on the ground that he was not reinstated in service. The submission of Mr. Majmudar is that when the order of termination of service was set aside by the competent Court the Corporation was duty bound to consider the case of the petitioner in accordance with law and the petitioner is entitled to get all benefits with effect from the date on which respondent No. 3 who was junior to the petitioner came to be promoted to the said post. ( 8 ) MR. P. V. Nanavati appeared for all the respondents. He submitted that the petition filed by the petitioner is misconceived and required to be dismissed. With regard to the back-wages Mr. Nanavati submitted that neither the petitioner made a specific prayer before the High Court of Andhra Pradesh for granting back-wages from 17/10/1981. nor the Court while allowing the petition granted the said relief. This Court is not exercising Appellate power over the order passed by the High Court of Andhra Pradesh. With regard to the back-wages Mr. Nanavati submitted that neither the petitioner made a specific prayer before the High Court of Andhra Pradesh for granting back-wages from 17/10/1981. nor the Court while allowing the petition granted the said relief. This Court is not exercising Appellate power over the order passed by the High Court of Andhra Pradesh. In these circumstances it is not open to this Court to grant the benefit which is not specifically granted by the High Court of Andhra Pradesh either by substituting the said order or by modifying/clarifying the said order. Regarding the period between 19/01/1985 and 17/09/1989 Mr. Nanavati submitted that initially the matter was sub judice. When the appeal was preferred even stay order was obtained by the Corporation which continued upto November 1987. It is true according to him that the Corporation had not obtained any interim relief from the Supreme Court. but when the Special Leave Petition was filed it could be said that the matter was sub judice. The said S. L. P. was dismissed in February 1989. Thereafter the case of the petitioner was considered by the Corporation and he was reinstated and posted at Ahmedabad on 18/09/1989 and from that date the salary is paid. ( 9 ) REGARDING revision of pay according to Mr. Nanavati the petitioner was not in service on 1/01/1986 and therefore the said benefit was not extended in favour of the petitioner in January 1986. but at present he is granted revision of pay in accordance with law. ( 10 ) ABOUT promotion to the post of Joint Manager (Legal ). Mr. Nanavati submitted that in April 1989 the case of eligible officers for promotion to the post of Joint Manager (Legal) was considered by the Departmental Promotion Committee but the petitioner was not reinstated at that time and therefore his case could not be considered. After the petitioner was reinstated and posted at Ahmedabad he was given his original seniority and therefore placed at serial No. 1 in the seniority list and his case was considered in March 1991 but as he was found only good and some other employees were found to be very good and superior to that of the petitioner the petitioner was not promoted. He submitted that the post of Joint Manager (Legal) is a selection post. He submitted that the post of Joint Manager (Legal) is a selection post. Obviously therefore promotion to the said post cannot be claimed merely on the basis of seniority. ( 11 ) I have heard the Advocate for both the parties at considerable length. I am of the opinion that the petition requires to be partly allowed. So far as back wages between 17/10/1981 and 18/01/1985 is concerned I find considerable force in the argument of Mr. Nanavati that no such order can be passed by this Court. Apart from the fact that no specific prayer was made in the petition filed in the High Court of Andhra Pradesh no specific order was passed by that Court and I cannot modify and/or clarify the order passed by the High Court of Andhra Pradesh by granting said benefits when these benefits are not specifically granted in favour of the petitioner. In these circumstances the said prayer is rejected. ( 12 ) WITH regard to back wages between 19/01/1985 till 18/09/1989 I am of the opinion that the petitioner is entitled to back wages for that period. Mr. Nanavati contended that the petitioner is entitled to back wages only with effect from 18/09/1989 when he was actually reinstated and posted at Ahmedabad and he is accordingly paid. Relying on the doctrine of No work no pay Mr. Nanavati contended that the petitioner has not worked from 18/01/198 5/09/1989 He placed reliance on the decision of the Supreme Court in the case of Tarlochan Singh v. Punjab State Warehousing Corporation and Others reported in 1991 S. C. 1740 I am not inclined to accept the arguments of Mr. Nanavati for the simple reason that after the order terminating the services of the petitioner was set aside by the competent Court on 19/01/1985 the petitioner ought to have been reinstated by the Corporation but that was not done. It is true that the Corporation filed an appeal against that order and obtained interim relief against the order passed by the learned Single Judge. However the petitioner cannot be blamed for that. It is true that the Corporation filed an appeal against that order and obtained interim relief against the order passed by the learned Single Judge. However the petitioner cannot be blamed for that. I therefore do not find any justifiable cause or reason to deprive the petitioner from payment of salary between 19/01/1985 and 17/09/1989 In fact even after the appeal was disposed of and interim relief was vacated by the Division Bench in November 1987 neither the petitioner was reinstated by the Corporation nor he was paid salary. Even after the order passed by the Supreme Court on 20/02/1989 the petitioner had to wait for about 7 months without reinstatement and posting and also without payment of salary. In these circumstances I do not find any substance in the argument of Mr. Nanavati that the petitioner should not be paid salary between January 1985 and September 1989. ( 13 ) THE ratio laid down in Tarlochan Singhs case (supra) does not apply to a case-wherein an employee is deprived of performing his work and discharging his duties. The point is concluded by a recent pronouncement of the Supreme Court in the case of Union of India v. K. V. Jankiraman reported in A. I. R. 1991 S. C. 2010. In that case a similar contention was advanced on behalf of the employer and speaking for the Court Sawant J. observed;"we are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of no work no pay is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons although the work is offered to him". (Emphasis supplied.) ( 14 ) IN the instant case also it is not that the petitioner has not worked but that he was prevented from discharging his duties. Normally therefore he would be entitled to get all benefits. Still however when specific order has not been passed for the period between 1981 and 1985 by the competent Court i. e. High Court of Andhra Pradesh as stated by me earlier I am not passing any order for that period. Normally therefore he would be entitled to get all benefits. Still however when specific order has not been passed for the period between 1981 and 1985 by the competent Court i. e. High Court of Andhra Pradesh as stated by me earlier I am not passing any order for that period. However the petitioner would be entitled to get back wages from 19/01/1985 till 17/09/1989 since the petitioner was reinstated and posted at Ahmedabad and with effect from 18/09/1989 he has been paid salary. So far as the period between 1981 and 1985 is concerned I am not expressing any opinion since according to me I cannot decide the said issue. ( 15 ) IN view of the fact that the petitioner was required to be reinstated as per the findings recorded by me above on 19/01/1985 the petitioner is entitled to revision of pay which has been granted to similarly situated employees on 1/01/1986 Therefore the petitioner is also entitled to the said relief and is accordingly granted. ( 16 ) WITH regard to promotion to the post of Joint Manager (Legal) it is a selection post. Therefore the right of any employee is only the right to be considered for said post and promotion cannot be claimed as of right. In these circumstances the prayer of the petitioner that he must be given promotion by granting deemed date of promotion of respondent No. 3 - Junior to the petitioner - and all consequential benefits cannot be accepted. However the stand taken by the Corporation cannot be justified for not considering the case of the petitioner for promotional post in April 1989 when the Departmental Promotion Committee met for the purpose of considering the case of Deputy Manager (Legal) to the promotional post i. e. Joint Manager (Legal) on the ground that the petitioner was not reinstated at that time. ( 17 ) IF the contentions of the authorities will be upheld the authorities will be taking undue advantage of their own wrong. Though the services of the petitioner were unlawfully terminated and the said action was set aside by the Court and the petitioner was required to be reinstated the order was not implemented even after the Special Leave Petition was dismissed by the Supreme Court. There was no earthly reason for the authorities not to reinstate the petitioner. Though the services of the petitioner were unlawfully terminated and the said action was set aside by the Court and the petitioner was required to be reinstated the order was not implemented even after the Special Leave Petition was dismissed by the Supreme Court. There was no earthly reason for the authorities not to reinstate the petitioner. It is really surprisingly that even though the litigation was over and the matter was finally concluded in February 1989 and even though the Departmental Promotion Committee met in April 1989 the case of the petitioner was not put before the Departmental Promotion Committee for consideration. This is clearly illegal and cannot be approved. In these circumstances the only direction which can be issued to the Authorities would be to consider the case of the petitioner alongwith the other eligible candidates as if the case of the petitioner is considered and decided alongwith these candidates in April 1989. The point is concluded by the pronouncement of the Supreme Court in the case of State of Mysore and Another v. Syed Mahmood and Others reported in A. I. R. 1968 S. C. page 1113. In that case for the higher post of promotion a writ of mandamus was issued by the High Court directing the Authorities to promote the petitioner. The Authorities approached the Supreme Court and the Supreme Court reversed the decision of the High Court holding that when the higher post was to be filled in on the basis of seniority-cum-merit an officer cannot claim promotion as a matter of right by virtue of his seniority alone and the High Court was not right in issuing a writ of mandamus directing the authorities to promote the petitioner. The only direction which could be issued against the Authorities was to consider the fitness of the petitioner for promotion when the cases of the persons similarly situated to that of the petitioner were considered by the Authorities. In the instant case promotion is to Class-I post and as stated in the Affidavit-in-reply of the Corporation the said promotion cannot be claimed as of right either on the basis of seniority or even on the basis of seniority-cum-merit but only on the basis of selection. If this is the position I am not inclined to accept the contention of Mr. If this is the position I am not inclined to accept the contention of Mr. Majmudar that the petitioner is entitled to be promoted and a direction should be issued to the Authorities to grant promotion to the petitioner with deemed date and consequential benefits. The only direction which can be issued against the Corporation would be as per the direction issued in the case of Syed Mahmood (supra) to consider the case of the petitioner alongwith other similarly situated candidates whose cases were considered in April 1989 in accordance with law. It goes without saying that since the petitioner was wrongfully deprived of reinstatement and posting even after he succeeded his case is again required to be considered in March 1991 in accordance with law and if the petitioner is found fit either from April 1989 or from March 1991 when the Panels of Selected candidates were prepared he would be entitled to get the said promotion in accordance with law from the said period. ( 18 ) IN the result this petition is partly allowed and the rule is made absolute to the above extent with no order as to costs. Petition party allowed. .