JUDGMENT 1. - The petitioner filed an Original Application under Section 19 of the Administrative Tribunals Act, 1985 before the Central Administrative Tribunal, Jaipur Bench, Jaipur praying therein that Rule 228 of the Indian Railway Establishment Manual (IREM) be declared illegal insofar as it deprives the benefits of arrears on account of retrospective promotion. In the Original Application, the petitioner also prayed that the order dated 18th January, 1995 be modified and the respondents may be directed to pay the arrear of difference of pay along with reasonable rate of interest and consequently his pension may be revised and other consequential benefits like gratuity, commutation etc. be given. The Central Administrative Tribunal by its order dated 23rd March, 2000 dismissed the Original Application. Upset thereby the present writ petition has been filed. 2. The facts in brief to the extent these are relevant for disposal of the writ petition may be summarised thus : (a) The petitioner joined the service in Western Railway in the year 1957. He was promoted as Fireman-II and thereafter as Diesel Assistant and then as Shunter. (b) That in the year 1986, the petitioner was working as Shunter. (c) That on 20th May, 1986, a First Information Report (FIR) was lodged against the petitioner of an offence under Railway Property (Unlawful Possession) Act. (d) On 30th May, 1986 due to the registration of criminal case against the petitioner under Section 3 of Railway Property (Unlawful Possession) Act, he was suspended. The suspension order was withdrawn on 25th July, 1987 and he was taken back in service. (e) That in the year 1987 the departmental examination for the post of Driver was held. He was not promoted due to the criminal case pending against him. (f) That by the order dated 26th April, 1994 passed by the Chief Judicial Magistrate, Ajmer, the petitioner was acquitted in the criminal case. (g) However before the order of acquittal came to be passed, in the year 1989 (to be specific on 31.12.1989), the petitioner retired on attaining the age of superannuation. (h) That on his retirement, the provisional pension was fixed on the basic pay of Rs. 1410/- that the petitioner was drawing at the time of his retirement. (g) However before the order of acquittal came to be passed, in the year 1989 (to be specific on 31.12.1989), the petitioner retired on attaining the age of superannuation. (h) That on his retirement, the provisional pension was fixed on the basic pay of Rs. 1410/- that the petitioner was drawing at the time of his retirement. (i) That after the acquittal of the petitioner by criminal court, vide judgment dated 26th April, 1994, the respondents passed an order on 18th January, 1995 appointing the petitioner notionally on the post of the Driver in the pay scale of 1350-2200 and proforma fixation of the petitioner was done. According to the order dated 18th January, 1995 as on 1st March, 1989, the petitioner's pay on proforma promotion was fixed at Rs. 1530/-. The proforma promotion with effect from 22nd March, 1987 was given on the basis of his junior Kedar Nath Mishra was promoted to the post of Driver. 3. The petitioner's grievance is that having been notionally promoted with effect from 22nd March, 1987 retrospectively on the post of Driver, he is entitled to the arrears of pay on that basis and also entitled to re-fixation of pension as if he was drawing the salary of Rs. 1530/- per month on the date of his retirement. 4. Paragraph 228 of I.E.R.M. reads thus : "228. Erroneous Promotions.-(l) Sometimes due to administrative errors, staff are over-looked for promotion to higher grades could either be on account of wrong assignment of relative seniority of the eligible staff or full facts not being placed before the competent authority at the time of ordering authority at the time of ordering promotion or some other reasons. Broadly, loss of seniority due to the administrative errors can be of two types : (i) Where a person has not been promoted at all because of administrative error, and (ii) Where a person has been promoted but not on the date from which he would have been promoted but for the administrative error. Each such case should be dealt with on its merits. The staff who have lost promotion on account of administrative error should on promotion be assigned correct seniority vis-a-vis their juniors already promoted, irrespective of the date of promotion. Pay in the higher grade on promotion may be fixed proforma at the proper time. Each such case should be dealt with on its merits. The staff who have lost promotion on account of administrative error should on promotion be assigned correct seniority vis-a-vis their juniors already promoted, irrespective of the date of promotion. Pay in the higher grade on promotion may be fixed proforma at the proper time. The enhanced pay may be allowed from the date of actual promotion. No arrears on this account shall be payable as he did not actually shoulder the duties and responsibilities of the higher posts. (ii) In pursuance of Rule 1326-R. II, 1987 Edition the following provisions shall govern the pay and increments of the Railway servant whose promotions or appointments in a substantive or officiating in a substantive or officiating capacity to a post is later found to be erroneous on the basis of facts- (a) The orders of notification of promotion or appointment of a railway servant should be cancelled as soon as it is brought to the notice of the appointing authority that such a promotion or appointment has resulted from a factual error and the railway servant concerned, should, immediately on such cancellation, be brought to the position which he would have held but for the incorrect orders of promotion or appointment. In the case, however, of a railway servant, who has been erroneously promoted and appointed to a post in a substantive capacity, procedure prescribed in Board's letter No. E50/RCI/16/3 dated 23.7.1954 for rescinding the irregular confirmation of railway servant should be followed/and only thereafter the railway servant concerned should be brought down to the position which he would have held but for the erroneous promotion/appointment by the issue of orders as mentioned above. Service rendered by the Railway servant concerned in the post to which he was wrongly promoted/appointed, as a result of the error of should not be reckoned for the purpose of increments or for any other purpose in that grade/post to which he would not normally be entitled but for the erroneous promotion/appointment. (b) Any consequential promotion or appointments of other railway servants made on the basis of the incorrect promotion or appointment of a particular railway servant will also be regarded as erroneous and such cases also will be regulated on the lines indicated in the preceding paragraph. (b) Any consequential promotion or appointments of other railway servants made on the basis of the incorrect promotion or appointment of a particular railway servant will also be regarded as erroneous and such cases also will be regulated on the lines indicated in the preceding paragraph. (c) Except where the appointing authority is the Railway Board or the President, the question whether promotion/appointment of a particular railway servant to a post was erroneous or not should be decided by an authority next higher than the appointing authority in accordance with the established/appointments. Where the appointing authority is the Railway Board or the President, the decision should rest with the President and shall be final. (d) Cases of erroneous promotion/appointment in a substantive or officiating capacity should be viewed with serious concern, and suitable disciplinary action should be taken against the officers and staff responsible for such erroneous promotion or appointment. The orders refixing the pay should be issued expressly under Rule 2927-R.II." 5. Though challenge to the constitutional validity of paragraph 228 was made in the Original Application, the counsel for the petitioner did not canvass anything in this regard before us. He, however, submitted that as a matter of fact Rule 228 has no application in the fact situation as the promotion of the petitioner was not lost on account of administrative error. 6. It is true that the petitioner was not promoted to the post of Driver in the year 1987 though he cleared departmental examination because of the criminal case pending against him under Section 3 of Railway Property (Unlawful Possession) Act. Technically speaking, therefore, the petitioner may be right in canvassing that his promotion was not lost on account of administrative error. However, in our considered view, if the promotion of an employee is lost on account of administrative error and such error is corrected later on and the employee is granted promotion notionally, in that situation the employee is not entitled to arrears of pay and the enhanced pay is permissible from the date of actual promotion, a-fortiori, in our considered view, the employee who was not given promotion at the relevant time because of pendency of the criminal case and upon acquittal by the criminal court, he is granted promotion then in that event he is entitled to enhanced pay only from the date of actual promotion and no arrears are payable. The petitioner who had retired before the acquittal by the criminal court, on his proforma promotion with retrospective effect shall not be entitled to the arrears since had he been in service he would have got enhanced pay only from the date of actual promotion. 7. The principle of 'No work and no pay' shall be applicable. This view finds support from the Division Bench judgment of this Court in the case of Union of India & Others v. Central Administrative Tribunal & Others [2004(1) Administrative Total Judgments 141] , The Division bench of this Court while dealing with the case of an employee not promoted earlier on account of administrative lapse and the provisions of I.R.E.M., para 228, observed thus : "Thus, in our view a person will not be entitled to any pay or allowances during the period for which he did not perform the duties on higher post although after due consideration, he was given proper place in gradation list having been deemed to be promoted to the higher post w.e.f. the date his junior was promoted. No employee can be held to be entitled to claim any financial benefits retrospectively. At the most he may be entitled to re-fixation of the salary on the basis of the notional seniority granted to him in different grades and he may also be entitled to the pensionary benefits. The provisions contained in Para 228 deny the arrears from the date of notional promotion in the case where the promotion is with-held or not granted due to administrative lapse. It is based on principle of 'no work no pay'. The rule allows promotion as such it cannot be said that such a principle is arbitrary or unreasonable. In our opinion, the view of the Full Bench of the Tribunal holding Para 228 of IREM as invalid and violative of Articles 14 & 16 of the Constitution of India is not correct. We hold para 228 of IREM intra vires of the Constitution. Each case will have to be decided on its own merit." 8. In our opinion, the view of the Full Bench of the Tribunal holding Para 228 of IREM as invalid and violative of Articles 14 & 16 of the Constitution of India is not correct. We hold para 228 of IREM intra vires of the Constitution. Each case will have to be decided on its own merit." 8. In the recent decision given by the Supreme Court in the case of Union of India & Another v. Tarsem Lal & Others [ AIR 2007 (SC) 259 ] while dealing with the case of a person, who lost the promotion on account of administrative error and the provision contained in paragraph 228, it was held that who did not actually shoulder the duties and responsibilities of the higher post is not entitled to arrears. 9. The judgment of the Supreme court in the case of Union of India v. K.V. Janki Raman ( AIR 1991 SC 2010 ] heavily relied upon by the counsel for the petitioner is not applicable to the fact situation of the present case. That was a case where an employee was not charge-sheeted departmentally nor a charge sheet in the criminal case against the employee was filed. Based on pendency of some preliminary investigation, the employee was denied promotion and sealed cover procedure was adopted. The Supreme court dealing with the fundamental Rule 17(1) held that principle of 'No work no pay' is not applicable in such a case. Insofar as the present case is concerned, as noticed above, the challan in the criminal case against the petitioner had already been filed and petitioner was denied promotion because of the pendancy of the criminal case. As a matter of fact during the pendancy of the criminal case, he retired on reaching the superannuation age. It was thereafter that he was acquitted by the criminal court and notionally promoted. In a case like this the principle laid down by the Supreme Court in the case of Tarsem Lal is attracted. 10. On the basis of notional promotion given to him, we are satisfied that on the principle of 'no work no pay', the petitioner shall not be entitled to the arrears of pay and allowances of the promotional post. 11. However, the denial of fixation of pension on the basis of proforma fixation of pay to the petitioner by the respondents cannot be justified. 11. However, the denial of fixation of pension on the basis of proforma fixation of pay to the petitioner by the respondents cannot be justified. The order dated 18th January, 1995 clearly shows that as on 1st March, 1989 notionally his pay was fixed at Rs. 1530/-. The petitioner superannuated on 31st December, 1989. Obviously on the date of his retirement he was drawing the salary of shunter and not the salary of the driver. Once the petitioner has been fixed proforma to the post of Driver with effect from 22nd March, 1987 and as on 1st Mach, 1989 his pay has been fixed at Rs. 1530/-, the pay fixation has to be as if the petitioner had drawn the salary of Rs. 1530/- on the date of his superannuation. The view that we have taken finds support from paragraph 501(4)(3) of the Manual of Railway Pension Rules, 1950 which provides that in cases of wrongful reversion caused by administrative errors, where on re-promotion, the pay of the railway servant is fixed proforma, the emoluments that the railway servant would have drawn but for his reversion should be taken into account. Applying the same anology where the petitioner has been promoted and fixed proforma to the post of Driver the emoluments which he would have drawn on that post on the date of retirement should be taken into consideration and not the lower pay which he was drawing at the time of retirement. If the petitioner's pension is not to be fixed based on proforma promotion and the proforma fixation of pay and he is also not to be given the arrears on account of 'No work no pay' then the order dated 18th January, 1995 of proforma promotion and proforma fixation of pay is of no use insofar as the petitioner is concerned. That could not be and was not the intention while issuing the order dated 18th January, 1995. The petitioner has been proforma promoted to the post of Driver and got his pay fixed notionally on that basis. The proforma fixation surely is for the purposes of pension and other consequential benefits even if he was not entitled to the arrears of the enhanced pay notionally fixed by that order. 12. The petitioner has been proforma promoted to the post of Driver and got his pay fixed notionally on that basis. The proforma fixation surely is for the purposes of pension and other consequential benefits even if he was not entitled to the arrears of the enhanced pay notionally fixed by that order. 12. The counsel for the respondents sought to place reliance on the judgment of the Supreme Court in the case of E. Gopalakrishnan and Others v. Union of India [(1996) 32 Administrative Tribunals Cases 131]. Having thoughtfully perused the said judgment, we find that the said judgment does not apply to the facts of the present case. The counsel for the respondents also relied upon the judgment of the Central Administrative Tribunal in the case of Kamta Prasad v. Union of India [1995(30) Administrative Tribunals Case 699]. The judgment of the Central Administrative Tribunal in Kamta Prasad also does not help the stand of the respondents. In that case, rather the Tribunal held that pension cannot be related to increased quantum of pay over and above what was actually drawn unless the pay was notionally increased retrospectively. In the present case the petitioner's pay on the promotional post and so also the promotion has been given retrospectively. Once the petitioner's pay has been notionally increased retrospectively because of the promotion given to him with retrospective effect, obviously the pension has to be fixed based on notionally increased pay. 13. We, accordingly, dispose of the writ petition by the following order: (i) The petitioner is not entitled to arrears on account of his promotion to the post of Driver with effect from 22nd March, 1987 as he did not actually shoulder the duties and responsibilities of the Driver. (ii) The petitioner shall, however, be entitled to fixation of his pension on the basis of his pay fixed at Rs. 1530/- with effect from 1st March, 1989 retrospectively. The re-fixation of pension shall be done within six weeks from today. The arrears of pension shall be paid immediately thereafter. (iii) The parties shall bear their own costs. Writ petition disposed of as above. *******