JUDGMENT By the Court—This writ petition arises out of the order dated 16th November, 1998 passed by the State Public Services Tribunal, Lucknow deciding 606 claim petitions involving similar issues with respect to seniority of Social Workers, Family Planning Health Assistants, Sanitary Inspectors, Health Supervisors and Epidemic Assistants, Extension Educators working in the Department of Family Welfare, Directorate of Medical Health, Govt. of U.P. 2. Learned Tribunal has disposed of the claim petitions by issuing following directions : ORDER All the Claim Petitions of aforementioned are hereby finally disposed of in terms and to extent of the following directions : “(1) The O.P.s are hereby directed to : (i) Prepare and finalise by 15.1.1999 district-wise seniority list (briefly to be known as D.S.L.) in respect of incumbents of all social Workers, Family Planning Health Assistants, Sanitary Inspectors, Health Educators and Epidemic Assistants constituting the feeding cadres for promotion to the posts of Extension Educators, in accordance with the Government Orders or Rules of Seniority in force on the date of the incumbents’ appointments. (ii) Thereafter draw a combined State Level Seniority list (to be known as SSL) by 15.2.1999 of the incumbents of all the feeding cadres aforesaid covered by G.O. No. 285/XVI/C-III-FP-31/1967 dt. 4.8.1967 indicating against each name the date of promotion on regular basis and date of ad hoc promotion or the date of direct appointment to the post of Extension Educator. (2) Sort out and prepare short list of the incumbents promoted against promotion quota on regular basis and another short list of incumbents promoted on ad hoc basis or in excess of the promotion quota and a third list of the incumbents appointed directly as Extension Educator (Briefly known the first list as R.P. second list as AD-P and third list as d.K.) by 15.3.1999. (3) Identify those petitioners and the incumbents of other feeding cadre whose immediate juniors according to the SSL have been promoted substantively within the prescribed promotion quota as Extension Educator during the period 4.8.1967 till June 1976 and prepare the list of rightful Claimants (to be briefly known as R.c.) by 31.3.1999 for consideration of their promotion as Extension Educators within the vacancies calculated on the basis of promotion quota as revised from time to time. (4) Consider the petitioners and other incumbents mentioned in the R.C. for promotion to the post of Extension Educators (re-designated subsequently as Health Education Officer) though a regularly constituted Selection Committee on the basis of their respective service record for the relevant period from the date of the substantive promotion of the respective junior by 30.4.1999. (5) Promote those petitioners who are found fit for promotion by the Selection Committee and specify the date on which they are found fit for promotion and issue the orders of promotion with effect from the retrospective due date by 15.5.1999. (6) Pay to the promoted petitioners the amount of arrears of difference of salary due on promotion from the due date either in cash partly or wholly or by crediting the amount partly or wholly in the GPF account of the concerned promotees but to pay the whole amount in cash to the promoted petitioners who have since superannuated, by 31.5.1999. (7) Deal with the ad hoc promotees including those promotees promoted in excess of the prescribed promotion quota in accordance with the provisions of the U.P. Regularisation of Ad hoc Promotion Rules, 1988 as may be found applicable and in accordance with the decision of the Hon’ble Supreme Court in the case of Mahmodd Hasan v. State of U.P. 1997 (3) SCC 138 pertaining to the promotion of Supply Inspectors in the Food & Civil Supplies Deptt. Of the Govt. of U.P. (8) Take such other action as may be found just and proper either to increase the promotion quota or decrease the quota for direct recruitment or vice versa with a view to accommodate the rightful Claimants and those ad hoc promotees who are adjudged suitable for regularisation after proper assessment, in accordance with the relevant rules aforesaid during the relevant period.” 3. Aggrieved by the aforesaid order of the Tribunal, the State of U.P. has filed this writ petition. It is asserted in the writ petition that some of the directions the tribunal has issued are not correct. Since various cadres are independent and differently governed by their own provisions preparations of combined inter se seniority list is not feasible. It is further said that payment of consequential benefits of arrears of salary and allowances with retrospective date of promotion to the claimants is illegal and contrary to law. 4. Since various cadres are independent and differently governed by their own provisions preparations of combined inter se seniority list is not feasible. It is further said that payment of consequential benefits of arrears of salary and allowances with retrospective date of promotion to the claimants is illegal and contrary to law. 4. Learned Standing Counsel has fairly stated that there are two aspects on which the impugned judgment of learned tribunal needs to be considered by this Court. Firstly, he submits that it is a settled principle of law that the persons who have not shouldered responsibility of the higher post cannot be paid salary and the principle of ‘no work no pay’ would be applicable in such cases. He further contended that once it is found that promotions could not be granted to some persons on account of their wrong determination of seniority and after re-determination of seniority, if such persons are found entitled for promotion from back date, in such cases they shall not be entitled for payment of salary of the higher post from back date and in their cases, the principle of ‘no work no pay’ would be applicable. In support thereof he placed reliance on the Hon’ble Apex Court judgment in the case of Virendra Kumar, General Manager, Northern Railways, New Delhi v. Avinash Chandra Chadha and others, AIR 1991 SC 958 and State of Haryana and others v. O.P. Gupta etc., AIR 1996 SC 2936 and Union of India v. K.V. Jankiraman, AIR 1991 SC 2010 . He, therefore, contends that the direction contained in item No. 6 of the operative part of the judgment of the tribunal directing the State Government to pay amount of arrears of difference of salary on promotion from due date, either in cash partly or wholly or by crediting amount partly or wholly in the G.P.F. Account of the concerned employees is unjust and contrary to the law laid down by the Hon’ble Apex Court 5. He further contended that direction of the tribunal in item No. 8 of the operative part of the judgment requiring the State Govt. He further contended that direction of the tribunal in item No. 8 of the operative part of the judgment requiring the State Govt. to consider and take such other action as it may found just and proper either to increase promotion quota or decrease the quota for direct recruitment or vice-versa with a view to accommodate the rightful claimants and those ad hoc promotees who are adjudged suitable for regularisation after their proper assessment amounts to legislation directing the competent authority to legislate and such direction given to the authority by the tribunal, therefore, is without jurisdiction. 6. On the contrary, learned Counsels appearing for the contesting respondents submitted that since they were denied due promotion on account of non-preparation/wrong determination of their seniority, therefore, for the fault of the State , they cannot be denied benefit due to them to which they are entitled as a result of determination of their correct seniority and promotion from due date. Since payment of arrears of salary is their rightful entitlement, it should not be denied to them. It is contended that the principle of ‘no work no pay’ has no application in the present case. They further submit that the direction contained in item No. 8 is in order to comply with and for due implementation of various other directions of the tribunal and therefore by itself it cannot be said to be a direction to legislate for taking such action as may be necessary for implementing the directions of the tribunal. 7. We have heard learned Counsel for the parties and perused the record. 8. The first question is with respect to entitlement of the respondents for arrears of salary as a result of grant of promotions from back date. The entitlement of salary from a particular date, is regulated by statutory rule namely Fundamental Rule 17 which reads as under : "17.(1) Subject to any exception specifically made in these rules, and to the provisions of sub-rule (2) a Government servant shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties. (2) The date from which a person recruited overseas shall commence to draw pay on first appointment shall be determined by the general or special orders of the authority by whom he is appointed." 9. The exceptions referred to in FR 17 are the eventualities like leave, joining time allowed to the Government servant on transfer, suspension etc. In case of dismissal or removal, FR 52 provides that pay and allowances of Government servant shall cease from the date of dismissal or removal, and in case of suspension FR 53 provides that though he would not be discharging any duty but subject to furnishing a certificate that he has not been engaged in any other business, profession or vocation, he would be entitled for subsistence allowance which may be 50% or 75% of the leave salary which he would have been drawing had he been on leave. The cases in which payment of salary is governed expressly by the rules, they do not create much difficulty but the litigation pertaining to service matters had brought a number of circumstances before the Court where the employees are denied benefit of salary or higher salary for one or the other reasons beyond their control or for which they are not responsible or nothing can be attributed to them and such situations are not answered by any rule or executive order having force of law necessitating judicial pronouncements time and again for such entitlement. Initially the Courts were of the view that once it is found that the employee was wrongly denied such salary, he is entitled for entire arrears irrespective of the fact whether he actually discharged duties of the post or not. Initially the Courts were of the view that once it is found that the employee was wrongly denied such salary, he is entitled for entire arrears irrespective of the fact whether he actually discharged duties of the post or not. There was a dichotomy of the judicial pronouncements in the matters dealing with labour cases and those dealing with Government service inasmuch as in the labour matters since the power of discretionary relief was conferred upon the adjudicatory forum under the labour laws, the issue was decided in the light of such provisions and the facts and circumstance of the concerned case but in the matter of Government servants, initially the Courts allowed arrears of salary virtually as a matter of course once it is found that such denial was inconsistent to law, but, subsequently it was noticed that failure on the part of the authorities in observance of or the strict compliance of the statute was more frequent then desired and the consequence of allowing arrears as a matter of course was so drastic that huge public money used to be siphoned off to such employees who have rendered no public duty or have not actually shouldered any responsibility of higher post and therefore a necessity arose to have a balance in two situations so as not to waste the public money for the follies of the authorities who were under the obligations to observe certain procedure, norms and failure whereof may not enrich certain employees being against the interest of the public exchequer but simultaneously the interest of the employees who were not at fault was also to be observed. This gave occasion to consider the question of arrears of salary not as a matter of right but in each case depending upon multifarious reasons and factors which we will be discussing later on. 10. Though this issue has been considered in a catena of cases involving various aspects of matter but in the present case, we confine ourselves with respect to those cases where the question of ‘no work no pay’ was considered on account of promotion allowed from back date as a result of re-determination of seniority. 11. 10. Though this issue has been considered in a catena of cases involving various aspects of matter but in the present case, we confine ourselves with respect to those cases where the question of ‘no work no pay’ was considered on account of promotion allowed from back date as a result of re-determination of seniority. 11. In P.S. Mahal v. Union of India, AIR 1984 SC 1291 while deciding the dispute pertaining to seniority, the Apex Court directed the employees to be treated as deemed promoted from retrospective date and also directed for payment of salary of the higher post for the past period. However in Paluru Ramkrishnaiah and others v. Union of India and another, 1989(2) SCC 541 despite allowing promotion with back date, the back wages were denied for the reason that earlier in other matters certain writ petitions were allowed by the Hon’ble Madhya Pradesh High Court on 4.4.1983 following the Apex Court judgment dated 2.2.1981 in Civil Appeal No. 441 of 1981 wherein back wages were denied despite retrospective promotion and a Special Leave Petition Civil No. 5987-92 of 1986 filed by the Government of India against the judgment of Hon’ble Madhya Pradesh High Court was dismissed on 28.7.1986. Therefore the Court took the view that same relief should be granted to the appellant in Paluru Ramkrishnaiah (supra) also. 12. Subsequently relying on P.S. Mahal (supra), arrears of salary on account of back dated promotions was claimed but the aforesaid dictum was not followed in Virender Kumar v. Avinash Chandra Chadha and others, AIR 1991 SC 958 and for denying arrears of salary to the employees who were allowed promotion from an earlier date the Apex Court gave the following reasons : “ (1) 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. (2) Neither equity nor justice is in favour of the respondents to award them emoluments of higher posts with retrospective effect and the decision in P.S. Mahal (supra) was distinguishable. (3) The matter was agitated in 1972 but remained pending for more than one and half decade for no fault of the employer. (2) Neither equity nor justice is in favour of the respondents to award them emoluments of higher posts with retrospective effect and the decision in P.S. Mahal (supra) was distinguishable. (3) The matter was agitated in 1972 but remained pending for more than one and half decade for no fault of the employer. (4) The higher posts were not vacant during the entire period and were manned by others The employer had paid the incumbents who were working on the higher post emoluments of the said posts. (5) The employees have not actually worked in the higher post and on the principle of “no work, no pay”, were not entitled for higher salary.” In the aforesaid case, therefore, on the facts and circumstances of the case as referred above, the employees were denied arrears of salary despite of allowing promotion from an earlier date. 13. In Union of India v. K.V. Jankiraman, AIR 1991 SC 2010 the validity of a Government order came up for consideration which provided that during the pendency of the disciplinary or criminal proceedings when an employee is to be considered for promotion, his matter shall be kept in sealed cover and he shall not be allowed actual promotion even if selected till the disciplinary/criminal proceeding is finalised and only after conclusion of such proceeding, the sealed cover shall be opened and if he is to be promoted, no arrears of salary shall be paid. The validity of this Government order to the extent it denied arrears of salary to employee against whom as a result of departmental inquiry or criminal proceedings nothing ultimately is proved and who is exonerated and found entitled for promotion from due date yet arrears denied came up for consideration and it was contended that this gives a leverage to the employer to take advantage of his own wrong and despite the fact that the employee is not at fault and has done everything possible and permissible, yet he cannot get arrears of salary for an act for which the employer is solely responsible and therefore such provision is arbitrary. A Full Bench of the Central Administrative Tribunal declared the aforesaid part of the Government Order violative of Articles 14 and 16 of the Constitution and the matter came up in appeal before a three Judge Bench of the Apex Court which held that FR 17 would not be applicable to a case where the employee though is willing to work is kept away by the authorities for no fault of his. The Court held : “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. It is for this reason that F.R. 17 (1) will also be inapplicable to such cases." 14. The Apex Court, expressed its agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post alongwith other benefits from the date on which he would have been normally promoted but for the disciplinary/criminal proceedings. However, the Apex Court further held that in such matters a discretion must be left to the employer to decide as to whether the entire salary is to be paid or not for the reason that there may be cases where the proceedings, whether disciplinary or criminal, were delayed at the instance of the employee or clearance in the disciplinary proceeding or acquittal in the criminal proceeding is with benefit of doubt or on account of non availability of evidence due to the acts attributable to the employee etc. The concerned authority therefore, must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. The concerned authority therefore, must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. The Apex Court further hold that it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary but to ignore such circumstances when they exist, however, and lay down an inflexible rule of payment of arrears once an employee is exonerated would undermine discipline in the administration and jeopardize public interests. Thus the legal exposition as laid down in K.V. Jankiraman (supra) is where an employee is not guilty of being away from work but is prevented from doing so by the authorities, the normal rules of “no work, no pay” is not applicable but in such cases considering various complexities of life and the history of the proceedings etc., the departmental authority must decide entitlement of the Government servant about the arrears and the quantum thereof. 15. In Vasant Rao Roman v. Union of India and others , 1993 Suppl (2) SCC 324 arrears of salary was denied to the employee though it was held that denial of promotion on the higher post on account of wrong fixation of seniority was illegal. The Apex Court held that the principle of “no work, no pay” would have no application to the said case since the employee was neither under suspension nor any disciplinary proceeding was pending against him and on the contrary he was made to suffer on account of administrative reason for which he was not responsible. There was shortage of literate Shunters at Gwalior during 1960 and the employee being literate was deputed for table work and therefore for administrative reason he could not complete requisite number of firing kilometers. The juniors were promoted as Shunters and Drivers and his claim was ignored on account of lack of requisite number of firing kilometers. Thus on the one hand the employee was utilised by the department to benefit itself with the qualification of the employee since literate Shunters to discharge table work were not readily available and on the other hand for the same qualification he was denied promotion on the ground that he has not completed requisite number of firing kilometers. Thus on the one hand the employee was utilised by the department to benefit itself with the qualification of the employee since literate Shunters to discharge table work were not readily available and on the other hand for the same qualification he was denied promotion on the ground that he has not completed requisite number of firing kilometers. Hence the Apex Court held that there was no justification in denying him arrears of emoluments from the date he was allowed promotion to the post of Shunter Grade “B" and Driver Grade “C”. 16. In Smt. Sudha Srivastava v. Comptroller and Auditor General of India, 1996 (1) SCC 63 following K.V. Jankiraman (supra) the Apex Court allowed arrears of salary to the legal heirs of the deceased employee on the ground that he was denied promotion on account of criminal proceedings wherein he was honourably acquitted. 17. In State of Haryana and others v. O.P. Gupta and others, 1996 (7) SCC 533 : AIR 1996 SC 2936 as a result of redetermination of seniority, pursuant to the direction of the Apex Court, promotions were allowed retrospectively but arrears denied. The Apex Court noted that the incumbents who approached the Court claiming arrears of salary though contended that they were ready but were not allowed to work on the higher post on account of wrong determination of seniority but their contention could not withstand judicial scrutiny for the reason that they were not the persons who agitated the issue of seniority earlier. Some other persons disputed the seniority list which was ultimately decided by the Apex Court directing for redetermination of seniority and therefore the contention of the employees that they were ready to work was contrary to record. It was also held where a seniority list has to be redrawn and the promotions have to be made and until that exercise is undertaken, it was not open to the employees concerned to claim that they were ready to work on the higher post and thus the question of entitlement of arrears on promotional post would not arise. The law laid down in K.V. Jankiraman (supra) was distinguished on the ground that it was a case of sealed cover procedure but would have no application to the case of promotion as a result of redetermination of seniority. 18. The law laid down in K.V. Jankiraman (supra) was distinguished on the ground that it was a case of sealed cover procedure but would have no application to the case of promotion as a result of redetermination of seniority. 18. This Bench had also considered entire aspect of matter in a recent judgment in Writ Petition No. 1320 (S/B) of 2002, Satya Narain Singh v. U.P. Public Service Tribunal and others decided on 10th July, 2007. It is evident from the various decisions of the Hon’ble Apex Court that where promotion is allowed from back date as a result of redetermination of seniority list, the Apex Court has clearly held that the employees shall not be entitled for arrears of salary from back date automatically but shall be allowed salary on the promoted post from the date of actual promotion, as the case may be. The entitlement of back wages has been held to be considered in the light of the facts and circumstances of each case. Applying the said dictum in the case in hand we find that the respondents confine their claim for promotion with respect to such denial during the period from May, 1967 to June, 1976. A perusal of the order of the tribunal makes it clear that the question as to whether the respondents were entitled for promotion from back date i.e. from the date when the alleged juniors were promoted itself was not clear and the situation was very complex in the matter which cannot justify the claim of the respondents that they were ready to undergo responsibilities of higher post but were denied for no fault of their own. Since the various categories were treated differently, it is an admitted position that there was no combined seniority list of various categories of Family Planning Health Assistants at the State level and, therefore, there was no occasion to consider promotion of respondents qua others. Therefore, in the aforesaid facts and circumstances of the case, we have no hesitation in holding that the directions contained in Item No. 6 of the judgment of the tribunal cannot be sustained in the manner it has been issued and is liable to be set aside. 19. Therefore, in the aforesaid facts and circumstances of the case, we have no hesitation in holding that the directions contained in Item No. 6 of the judgment of the tribunal cannot be sustained in the manner it has been issued and is liable to be set aside. 19. Coming to the next question namely the correctness of the direction No. 8, we found that where in order to give effect to a judgment or direction of the Court the authorities’ requirement to make any rule or amend a provision or not is a matter to be considered by these authorities and it is for the Court to direct the authorities to make suitable changes or alternations in the provisions. Since such directions fall in the domain of legislation, the tribunal ought not to have issued such directions. Therefore, the direction No. 8 of the impugned judgment cannot be sustained and are liable to be set aside. In the result, the writ petition is partly allowed and the impugned order dated 16.11.1998 of tribunal in so far as the direction Nos. 6 to 8 in the operative part of the judgment are set aside and instead we substitute the same with the following directions : (i) The State shall give notional promotions and all other benefits to the claimants but so far as payment of arrears of salary is concerned, the same shall be given from the date of actual promotion. However, the salary on promoted post of the concerned employees shall be fixed notionally from the due date of promotion for all other purposes and in case where the employees have retired the benefits may be taken into account for the purposes of retiral benefits and retiral benefits shall be paid to such employees from the date of retirement. (ii) In order to give effect to the directions of the tribunal as amended in this judgment it is open to the State to take all such other actions as is permissible in law and are necessary in the facts and circumstances of the case. 20. There shall, however, be no order as to costs. ————