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2015 DIGILAW 1661 (RAJ)

Nand Lal Jangid v. State of Rajasthan

2015-09-11

AJIT SINGH, NIRMALJIT KAUR

body2015
JUDGMENT : NIRMALJIT KAUR, J. This is Civil Special Appeal against the order and judgment dated 29.7.2005, vide which, the writ petition of the petitioner was dismissed by learned Single Judge holding that he was not entitled to the payment of arrears of salary for the period he has not worked on the promotional post. The order and judgment has been impugned on the ground that although the petitioner/ appellant had specifically prayed vide clause (ii) of the relief clause that a positive direction/mandate be issued to the respondents to provide entire monetary benefits to the petitioner with effect from a date on which he was promoted but Hon'ble Single Judge has decided the relief sought by the petitioner without taking the judgments cited by the petitioner into consideration. Further, vital questions raised in the writ petition have been omitted. Secondly, although the appellant was granted promotion as aforesaid upto the post of C.T.O. (Senior Scale) in compliance with the directions given by the High Court vide judgment dated 11.10.1993 but he was deprived of the consequential benefit of getting difference of salary and other emoluments. The same has wrongly and illegally been denied to him by giving weightage to the contentions raised on behalf of the respondents on the basis of sub-rule (11-A) of Rule 18 of the Rajasthan Commercial Taxes Service Rules, 1971 (hereinafter referred to athe Rules of 1971). In fact, this rule is not at all applicable in the facts and circumstances of the present case. It was further argued by learned counsel for the appellant that sub-rule (11-A) of Rule 18 has no application which applies only in a situation where there is non-determination of vacancies. So far as the instant case is concerned, it cannot be said that there was non-determination of vacancies during the relevant years and, therefore, in view of the said judgment it can very well be said that sub-rule (11-A) of Rule 18 has been erroneously and illegally applied and the appellant has been at the same time illegally denied the difference of payment of arrears of salary and other emoluments. It was further contended that sub-rule (11-A) of Rule 18 of the Rules of 1971 is wholly arbitrary, unreasonable and against the basic principles of law and also violative of Article 14 and hit by Article 300-A of the Constitution of India. It was further contended that sub-rule (11-A) of Rule 18 of the Rules of 1971 is wholly arbitrary, unreasonable and against the basic principles of law and also violative of Article 14 and hit by Article 300-A of the Constitution of India. Learned counsel for the appellant further submitted that all the seniors to the appellant were promoted on the post of Deputy Commissioner and were assigned the quota of year 1993-94. At the same time, it was also submitted that Shri N.S. Bordia, who was admittedly junior to the appellant, was also promoted vide order dated 4.6.1993 against the vacancies of the year 1993-94. The appellant only was deprived from his fundamental right of getting promotion on the post of Deputy Commissioner in the aforesaid manner which was wholly illegal and contrary to the basic principles of law. Reliance was placed on the judgment rendered by Apex Court in the case of Mohd. Ahmed vs. Nizam Sugar Factory and Others, 2005 AIR SCW 3364 as well as the judgment of Punjab & Haryana High Court rendered in the case of Shri Charan Dass Chadha vs. State of Punjab and Another, 1980 (3) SLR 702 and the judgment of Apex Court rendered in the case of State of Kerala and Others vs. E.K. Bhaskaran Pillai, 2007 AIR SCW 4766 to contend that any condition imposed to the effect that an employee is not entitled to the pay and allowances as a result of retrospective promotion for the period he had not worked on the said post, was wrong and illegal. Learned counsel for the parties were heard at length. The facts in short are that the appellant was appointed as an Inspector in the respondent-Department on 19.10.1964. Since there was dispute with regard to the determination of seniority of Inspectors in the respondent-Department, a number of writ petitions were preferred before this High Court for determination of their seniority from the date of their initial appointment. The said writ petitions were allowed vide order dated 22.8.1990. After almost 2 years of the final decision, the appellant woke up from slumber and filed the writ petition bearing Civil Writ Petition No. 5509 of 1992 seeking similar relief. The said writ petitions were allowed vide order dated 22.8.1990. After almost 2 years of the final decision, the appellant woke up from slumber and filed the writ petition bearing Civil Writ Petition No. 5509 of 1992 seeking similar relief. The writ petition was disposed of on 11.10.1993 by observing as under:- “In view of the decision referred hereinabove, this writ petition is disposed of with the direction that the petitioner should approach the Departmental Authorities by making a representation for grant of similar relief. If such representation is made by the petitioner, the Departmental Authorities should give relief to the petitioner by way of confirmation as Commercial Taxes Inspector and promotion of Assistant Commercial Taxes Officer as have been given to other persons on the basis of directions given by this Court. It is expected that such order will be issued within three months of the date of submission of copy of this order.” In pursuance to the above order, the petitioner/appellant filed representation which was accepted and the appellant was confirmed as Inspector, Grade-II, w.e.f. 1.9.1967 and as a consequence thereof, the earlier order dated 8.5.1980, by which the appellant was confirmed w.e.f. 1.5.1971 was cancelled. Thereafter, vide order dated 6.5.1994, the appellant was promoted to the post of Assistant Commercial Taxes Officer on urgent temporary basis w.e.f. 27.12.1967 subject to the screening as directed by the Court and the appellant was allowed the benefit of seniority but he was not allowed any arrears for the period from 27.12.1967 to 6.5.1973. The appellant was treated as Commercial Taxes Officer (Ordinary Scale) and was assigned the quota of year 1982-83. Thereafter, on 18.7.1994, the appellant was ordered to be treated as Commercial Taxes Officer (Senior Scale) and was assigned the quota of year 1988-89. On 9.9.1994, the appellant filed representation to the respondent-Department claiming that he should also be treated as Deputy Commissioner. His name was considered for the promotion on the post of Deputy Commissioner and subsequently, his name was kept in review/revision list. However, the appellant superannuated on 31.12.1993 and by that point of time, no person junior to him had been given the benefit of promotion, he could not be appointed on the post of Deputy Commissioner after his retirement. His name was considered for the promotion on the post of Deputy Commissioner and subsequently, his name was kept in review/revision list. However, the appellant superannuated on 31.12.1993 and by that point of time, no person junior to him had been given the benefit of promotion, he could not be appointed on the post of Deputy Commissioner after his retirement. One Shri N.S. Bordia was promoted as Deputy Commissioner vide order dated 18.7.1994 on the basis of the review and revision list but after retirement of the appellant. Being aggrieved, the appellant preferred a writ petition before this High Court bearing Civil Writ Petition No. 3520 of 1995. The learned Single Judge dismissed the writ petition vide order and judgment dated 29.7.2005 holding that the provisions of sub-rule (11-A) of Rule 18 of the Rules of 1971 are applicable in the case of the petitioner and they do not permit the grant of arrears of pay for the period during which an employee has not actually performed the duties of the post to which he would have been promoted but could be counted only for determination of seniority and re-fixation of the pay. The appellant's challenge to sub-rule (11-A) of Rule 18 of the Rules of 1971 being in violation of Article 300-A was rejected as the appellant could not support his contention by any valid argument. The main grievance of the appellant appears to be the rejection of his prayer for the grant of arrears on the promotional post with effect from the date on which he was promoted but had not actually worked on the said post. Thus, only two questions that arise for consideration before this Court are – (i) whether sub-rule (11-A) of Rule 18 of the Rules of 1971 applies in the facts of the present case or not and (ii) whether sub-rule (11-A) of Rule 18 is in violation of Article 300-A of the Constitution of India? Thus, only two questions that arise for consideration before this Court are – (i) whether sub-rule (11-A) of Rule 18 of the Rules of 1971 applies in the facts of the present case or not and (ii) whether sub-rule (11-A) of Rule 18 is in violation of Article 300-A of the Constitution of India? Sub-rule (11-A) of Rule 18 of the Rules of 1971 reads as under:- “Rule 18(11-A) - Revised Criteria, Eligibility and Procedure for Promotion to Junior, Senior and other posts encadered in the Service – If in any subsequent year, after promulgation of these Rules, vacancies relating to any earlier year are determined under sub-rule (2) of rule relating to determination of vacancies which were required to be filled by promotion, the Departmental Promotion Committee shall consider the cases of all such persons who would have been eligible in the year to which the vacancies relate irrespective of the year in which the meeting of the Departmental Promotion Committee is held any such promotions shall be governed by the criteria and procedure for promotion as was applicable in the particular year to which the vacancies relate, and the service/experience of an incumbent who has been so promoted, for promotion to higher post for any period during which he has not actually performed the duties of the post to which he would have been promoted, shall be counted. The pay of a person who has been so promoted shall be re-fixed at the pay which he would have derived at the time of his promotion but no arrears of pay shall be allowed to him.” A perusal of the said Rule leaves no doubt that there was no question of giving the arrears to the appellant in the light of sub-rule (11-A) of Rule 18 of the Rules of 1971. In view of the statutory position, the appellant was not entitled to the arrears of pay. Still, learned counsel for the appellant has referred to the judgment rendered by the Apex Court in the case of Mohd. Ahmed vs. Nizam Sugar Factory and Others (supra). The appeal of the appellant-Mohd. Ahmed was allowed and a direction was issued to the respondent-Department to pay the difference of salary for the period he was denied the promotion. Still, learned counsel for the appellant has referred to the judgment rendered by the Apex Court in the case of Mohd. Ahmed vs. Nizam Sugar Factory and Others (supra). The appeal of the appellant-Mohd. Ahmed was allowed and a direction was issued to the respondent-Department to pay the difference of salary for the period he was denied the promotion. However, the appellant herein cannot derive the benefit from the said judgment inasmuch as no statutory rule, order or any special provision of the Act barring the grant of arrears was referred or held to be applicable to the appellant in that case. Meaning thereby, Mohd. Ahmed was not governed by any such of service rules, whereas, in the present case, the appellant has been denied the arrears of pay on account of statutory rule i.e. sub-rule (11-A) of Rule 18 of the Rules of 1971 as applicable to him. Similarly, the writ petition of Shri Charan Dass Chadha (supra) was allowed by the learned Single Bench of Punjab and Haryana High Court taking note of the fact that the respondents had not brought any judgment or provision of law under which the condition imposed could be supported or sustained. In the case of State of Kerala and Others vs. E.K. Bhaskaran Pillai (supra) as relied on by the learned counsel for the appellant, the Apex Court while granting the benefit held in no uncertain terms that the same depends upon case to case as there are various facets which require to be considered. In the said case also, there was no reference to any statutory rule or provision specifically denying the arrears in such like cases. Moreover, the Apex Court in a judgment given at later point of time of which one of the Hon'ble Judges happened to be common Union of India vs. B.M. Jha, 2007 (99) DRJ 3 (SC), took a different view and held that arrears of salary could not be granted in view of the principle of no work no pay in case of retrospective promotion, by observing in para 4 of the judgment as under:- “We have heard learned counsel for the parties. It was argued by learned counsel for the respondent that when a retrospective promotion is given to an incumbent normally he is entitled to all benefits flowing therefrom. It was argued by learned counsel for the respondent that when a retrospective promotion is given to an incumbent normally he is entitled to all benefits flowing therefrom. However, this Court in the case of State of Haryana and Others vs. D.P. Gupta and Others, (1996) 7 SCC 533 and followed in the case of A.K. Soumini vs. State Bank of Travancore, JT 2003 (8) SC 35 has taken the view that even in case of a notional promotion from retrospective date, it cannot entitle the employee to arrears of salary as the incumbent has not worked in the promotional post. These decisions relied on the principle of no work no pay. The learned Division Bench in the impugned judgment has placed reliance on the case of State of Andhra Pradesh vs. K.V.L. Narasimha Rao and Others, JT 1999 (3) SC 205. In our view, the High Court did not examine that case in detail. In fact in the said judgment the view taken by the High Court of grant of salary was set aside by this Court. Therefore, we are of the view that in the light of the consistent view taken by this Court in the above mentioned cases, arrears of salary cannot be granted to the respondent in view of the principle of no work no pay in case of retrospective promotion. Therefore, we are of the view that in the light of the consistent view taken by this Court in the above mentioned cases, arrears of salary cannot be granted to the respondent in view of the principle of no work no pay in case of retrospective promotion. Consequently, we allow this appeal and set aside the impugned order of the High Court dated 17.5.2000 passed by the Division Bench of the High Court as also the order dated 11.1.2000 passed by the Central Administrative Tribunal, Principal Bench.” In fact, the question whether an employee is entitled to the arrears for the period he has not worked on the promotional post came up in the case of Union of India and Another vs. Tarsem Lal and Others, (2006) 10 SCC 145 , wherein the Supreme Court after taking into consideration various judgments held that the Tribunal was not right in deleting the clause in the Circular dated 15.9.1964 of the Railway Board, which was as under:- “No arrears on this account shall be payable as he did not actually shoulder the duties and responsibilities of the higher posts.” And, while relying on the said judgment rendered by the Apex Court in the case of Union of India vs. Tarsem Lal and Others (supra), the Division Bench of this High Court in the case of Shyam Prasad Sharma vs. Rajasthan Co-operative Dairy Federation, Jaipur and Another, 2012 (4) RLW (Raj.) held that in case, promotion is granted with retrospective effect, then arrear for the period for which a person actually did not work in the promotional post, is not payable. Para 17 of the said judgment reads:- “17. The Hon'ble Apex Court in Union of India vs. Tarsem Lal's case (supra) while dealing with the case of a person, who lost the promotion on account of administrative error and the provisions contained in paragraph 2 to 8, held that he did not actually shoulder the duties and responsibilities of the higher post is not entitled to arrears. This judgment applies fully to the facts of the present case. There were adverse entries against the petitioner, but the same were not communicated due to administrative error. This judgment applies fully to the facts of the present case. There were adverse entries against the petitioner, but the same were not communicated due to administrative error. In these circumstances, we are satisfied that learned Single Judge was absolutely right in directing that promotion be given to the petitioner from the date his junior person was promoted but he may not be given monetary benefits. We do no find any infirmity or illegality in the order passed by Single Bench.” Coming back to the present case, the appellant approached this Court in the year 1992 only after the writ petitions filed by the similarly situated persons were allowed on 22.8.1990. The writ petition of the petitioner came to be decided on 11.10.1993 and he was finally promoted to the post of Assistant Commercial Officer on urgent temporary basis on 6.5.1994 w.e.f. 27.12.1967 subject to the screening as directed by the Court and the appellant was allowed the benefit of seniority. Admittedly, the appellant had meanwhile retired after attaining the age of superannuation on 31.12.1993 and no person junior to him had been promoted till the said date. Thus, in these circumstances, this Court is satisfied that sub-Rule (11-A) of Rule 18 of the Rules of 1971 are applicable to the facts of the present case and the appellant is not entitled to the arrears of salary for the period he has not worked on the promotional post, even though, he was granted promotion with retrospective effect although the same is to be counted towards seniority and for the purpose of re-fixation of pay. With respect to the second contention of the learned counsel for the appellant that the provision of sub-rule (11-A) of Rule 18 is in violation of Article 300-A of the Constitution, it is necessary to reproduce Article 300-A. The same reads:- “300A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law.” As also observed by the Single Bench, we too are of the view that the learned counsel for the appellant has not been able to show to this Court as to how the said provision is hit by Article 300-A of the Constitution of India. The same pertains to Right to Property. The same pertains to Right to Property. In fact, the said Right to Property is also no longer a fundamental right though it is a constitutional right. No doubt, property in this reference may also include salary but there is nothing to show that the same cannot be withheld in accordance with or by authority of law. We have already held above that the appellant was not entitled to the same. Thus, we find no good ground or reason to quash the provision of sub-rule (11-A) of Rule 18 of the Rajasthan Commercial Taxes Services Rules, 1971, which is in keeping with the principle of no work no pay. Accordingly, the Civil Special Appeal is dismissed being devoid of merit.