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Himachal Pradesh High Court · body

2007 DIGILAW 401 (HP)

Naresh Kumar v. Union of India

2007-09-27

RAJIV SHARMA

body2007
JUDGMENT : RAJIV SHARMA, J. 1. The brief facts necessary for the adjudication of this petition are that the petitioner was appointed as Draftsman Grade-II against the reserved vacancy of Scheduled Caste on 18th October, 1988. He had submitted at the time of his recruitment the requisite testimonials including the certificate of belonging to Scheduled Caste category. According to him all the certificates were duly verified at the time of his appointment. The post of Draftsman Grade-II is in feeder category for promotion to the post of Draftsman Grade-I. A Master Seniority list was circulated vide letter dated 8th December, 1998 from which the petitioner came to know that one Shri Sat Parkash, i.e. respondent No. 5 who has joined as Draftsman Grade-II on 9.10.1989 stood promoted to the post of Draftsman Grade-I with effect from 18.4.1996 against the vacancy reserved for Scheduled Caste candidate. The name of the petitioner stood at Sr. No. 22 of Master Seniority list of Draftsman Grade-II and his category was mentioned as “UR.” He made a representation to the office Incharge GREF Records bringing to its notice that he was senior to Shri Sat Parkash, but has not been considered for promotion before him to the post of Draftsman Grade-I in the category of Scheduled Caste. The mistake committed by the authorities was rectified partially by promoting the petitioner to the post of Draftsman Grade-I vide letter dated 15th October, 1999 with effect from 15.10.1994, but he was denied the arrears of salary and allowances etc. with effect from 15.10.1994. He made representation to the respondent No. 2 on 14th March, 2000 stating therein that the necessary sanction be accorded for making payment of arrears of pay and allowances from the date he was promoted, i.e. 15.10.1994. The case of the petitioner was strongly recommended by the Administrative Officer on 29th May, 2000. While recommending the case of the petitioner, the Administrative Officer had specifically stated therein that the mistake of not considering the petitioner for promotion from the due date has resulted in grave financial loss to him and he was entitled to the same from the date of inter-se seniority, i.e. 15.10.1994. The case of the petitioner was also forwarded by the Chief Engineer on 27th June, 2000. The case of the petitioner was also forwarded by the Chief Engineer on 27th June, 2000. The representation made by the petitioner was rejected on 24th July, 2001 on the ground that since he was holding a lower post, higher pay scale could not be given to him. The gist of the reply filed by the respondents is that the petitioner was wrongly left out from consideration due to mistake which has occurred while drawing the seniority list where his category instead of being shown as “Scheduled Caste Candidate” was shown as “UR” and the same was rectified and the petitioner was promoted from the date his immediate junior (Scheduled Caste Candidate, Shri Kamaljit Ram Draftsman Grade-II) was promoted to the post of Draftsman Grade-I. The promotion was granted to the petitioner on the basis of the recommendations made by the review DPC held in August, 1999 with inter-se seniority of 15.10.1994. 2. Mr. Rahul Mahajan had strenuously argued that once the irregularity has been rectified by the respondents by granting the promotion to his client with effect from 15.10.1994, his client was also entitled to arrears of salary with all allowances etc. He further contended that his client has been prevented from discharging the duties of Draftsman Grade-I since 15.10.1994 and his client was always ready and willing to discharge the same if he had been promoted from the due date. Mr. Sandeep Sharma had supported the decision conveyed to the petitioner on 24th July, 2001 and has further submitted that the petitioner cannot be granted the arrears of salary and allowances on the principle of “no work no pay.” 3. I have heard the parties and perused the record carefully. 4. The petitioner was appointed as Draftsman Grade-II in the category of Scheduled Caste on 18.10.1988. The testimonials submitted by him including the Caste certificate were duly verified. The name of the petitioner was to be maintained against the category of Scheduled Caste in the seniority list. His name could not be reflected “UR” in the Master Seniority List. The only explanation put forth by the respondents in their reply is that it has happened due to wrong feeding in computer. The petitioner cannot be permitted to suffer due to the mistakes committed by the respondents. His name could not be reflected “UR” in the Master Seniority List. The only explanation put forth by the respondents in their reply is that it has happened due to wrong feeding in computer. The petitioner cannot be permitted to suffer due to the mistakes committed by the respondents. He was to be promoted in the year 1994 before his junior Shri Kamaljit Raj was promoted from the post of Draftsman Grade-II to the post of Draftsman Grade-I. He was again ignored when Shri Sat Parkash, respondent No. 5 was promoted to the post of Draftsman Grade-I with effect from 18.4.1996. The petitioner was appointed as Draftsman Grade-II on 18.10.1988 and Shri Sat Parkash, respondent No. 5 was appointed as Draftsman Grade-II on 9.10.1989. It was only after the petitioner had brought the mistake to the notice of the authorities that fresh review DPC was convened and that the petitioner has been promoted to the post of Draftsman Grade-I with effect from 15.10.1994, but he has been wrongly deprived of the arrears of salary with allowances. The petitioner was always ready and willing to discharge the duties of Draftsman Grade-I. It was only due to the mistake and irregularity committed by the respondents that the petitioner was left out from consideration to the post of Draftsman Grade-I in the year 1994. The petitioner was to be placed in the pay-scale of Rs. 5000-8000 on his promotion with effect from 15.10.1994. The stand taken by the respondents that since the petitioner was physically holding a lower post, he could not be granted higher pay-scale is erroneous. The case of the petitioner has been strongly recommended as is evident from the communication dated 29th May, 2000 read with letter dated 27th June, 2000. The case of the petitioner was required to be considered in accordance with law taking into consideration the vital fact that in fact he was due for promotion with effect from 15.10.1994. The Court is of the opinion that the petitioner has been wrongly deprived of the arrears of salary with allowances without any justifiable reasons. 5. The Hon’ble Supreme Court has held in Union of India and Others vs. K.V. Jankiraman and Others, (1991) 4 SCC 109 that the employee will be entitled to arrears of salary from due date if he has been prevented from discharging the duties of a higher post. 5. The Hon’ble Supreme Court has held in Union of India and Others vs. K.V. Jankiraman and Others, (1991) 4 SCC 109 that the employee will be entitled to arrears of salary from due date if he has been prevented from discharging the duties of a higher post. Their Lordships of the Hon’ble Supreme Court have held as under: “It was further contended on their behalf that the normal rule is “no work no pay.” Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed under suspension, When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly. 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 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.” 6. The Hon’ble Supreme Court has held in State of Kerala and Others vs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524 that the principle of “no work no pay” cannot be accepted as a rule of thumb and full back wages in certain circumstances may be justified, particularly when promotion is wrongly denied. The Hon’ble Supreme Court has held in State of Kerala and Others vs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524 that the principle of “no work no pay” cannot be accepted as a rule of thumb and full back wages in certain circumstances may be justified, particularly when promotion is wrongly denied. Their Lordships of the Hon’ble Supreme Court have held that where the administration has wrongly denied dues to an employee in that case he should be given full benefits including monetary benefit subject to there being any change in law or some supervening factors. Their Lordships of the Hon’ble Supreme Court have held as under: “Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15-6-1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah vs. Union of India, Virender Kumar vs. Avinash Chandra Chadha, State of Haryana vs. O.P. Gupta, A.K. Soumini vs. State Bank of Travancore and Union of India vs. Tarsem Lal. As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Union of India vs. K.V. Jankiraman, State of A.P. vs. D.V.L. Narasimha Rao, Vasant Rao Raman vs. Union of India and State of U.P. vs. Vinod Kumar Srivastava. We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hart-and-fast rule. The principle “no work no pay” cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.” 7. In the present case, there is no inordinate delay in approaching the Court. 8. Accordingly, in view of the observations made hereinabove and the law laid down by the Hon’ble Supreme Court, the writ petition is allowed. Annexure P-6 dated 24th July, 2001 is quashed and set aside. The petitioner is held entitled to arrears of salary alongwith allowances with effect from 15.10.1994. The respondents are further directed to carry out necessary corrections in the record showing the petitioner’s category as “Scheduled Caste Candidate” for all intents and purposes. The respondents are directed to work out the arrears of salary with allowances within a period of eight weeks from today. 9. There shall be no order as to costs.