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2017 DIGILAW 635 (ORI)

Narayan Chandra Mall v. State of Odisha

2017-06-27

D.P.CHOUDHURY

body2017
JUDGMENT : Dr. D.P. Choudhury, J. 1. Challenge has been made to the inaction of the opposite party no.2-Bank by not releasing the differential arrear salary to the petitioner in the post of Senior Assistant Manager, Assistant General Manager and Deputy General Manager with effect from the date of his promotion in the said posts. 2. FACTS The unshorn details of the facts relating to the writ petition is that the petitioner was initially appointed as a Typist in the year 1980 and subsequently he was promoted to the cadre of senior staff in the year 1991. While continuing as such, the petitioner became eligible for higher promotion but the Managing Committee took an erroneous decision in its resolution dated 16.02.1996 not to consider the case of the petitioner for promotion as the petitioner was not a graduate. So, the petitioner was deprived of getting promotion to the higher post, i.e, Senior Assistant Manager, Assistant General Manager and Deputy General Manager. When he was superseded, he filed a writ petition before this Court being W.P.(C) No.1303 of 2004 questioning the illegal and arbitrary action of the Management of the bank for not considering his case for promotion to the higher post. That writ petition was disposed of by this Court on 20.06.2012 directing the opposite party no.2 to consider the case of the petitioner for further promotion to the post of Senior Assistant Manager and Assistant General Manager or further promotional posts from the date he was entitled to such promotion in terms of the rules. In pursuance of the above order of this Court, the opposite party no.2-bank decided to give promotion to the petitioner to the higher post with effect from the date his junior Sri Parsuram Pattnaik was given promotion, but the salary attached to the higher post was not given to the petitioner. On the other hand, it is specifically mentioned in the order dated 22.09.2012 (Annexure-1) that no arrear financial benefits would be allowed to the petitioner. Now, the petitioner challenges such order in this present writ petition. 3. SUBMISSIONS Mr. D.K. Mohapatra, learned counsel for the petitioner submitted that for no fault of the petitioner, he has been superseded by the opposite party-bank. Now, the petitioner challenges such order in this present writ petition. 3. SUBMISSIONS Mr. D.K. Mohapatra, learned counsel for the petitioner submitted that for no fault of the petitioner, he has been superseded by the opposite party-bank. According to him, this is a case where principle of “no work no pay” will not be applicable because due to the fault of the opposite party-bank, the petitioner was deprived of getting promotion along with his juniors. There was no any allegation or any bad CCR preventing the petitioner from being promoted. It is only alleged that the higher post is meant for the persons having degree in graduation whereas the petitioner, while entered into service, was not a graduate. This Court, considering the submissions of the parties, directed in W.P.(C) No.1303 of 2004 to give promotion to the petitioner without insisting for qualification to the higher post, if he is found suitable for the post. 4. Mr. Mohapatra, learned counsel for the petitioner further submitted that when the petitioner was initially appointed, there was no qualification for the higher post and considering such aspect, this Court, in W.P.(C) No.1303 of 2004, passed order directing the opposite party no.2-bank to consider the case of the petitioner for further promotion to the post of Senior Assistant Manager and Assistant General Manager or further promotional posts from the date he was entitled to such promotion. There is no direction by this Court that the order of promotion to be effected from the date of issue of order whereas the opposite party no.2 passed order vide Annexure-1 stating that the order shall have the effect from the date of joining the post. It is again contended that in the impugned order, it is stated that the pay in the promotional post would be notionally fixed without any arrear financial benefits to the petitioner. According to him, when the Court has passed order, he should be promoted to the higher post when he is entitled to such promotion, it obviously directs the opposite party no.2 to allow the scale of pay of that post actually from the date when his junior got promotion but not notionally as it directs in the impugned order, Annexure-1. 5. In support of his contentions, Mr. 5. In support of his contentions, Mr. Mohapatra, learned counsel for the petitioner cited the decision of the Hon’ble Supreme Court in the case of Ramesh Kumar –V- Union of India and others; 2015 (8) SCALE 426 where Their Lordships have categorically observed that in the nature of fact and circumstances of this case, the arrear of pay and allowances should be allowed to the petitioner from the date he is entitled to such post till the date of his actual promotion. So, he submitted that the petitioner should be allowed the differential arrear salary in the higher post. 6. Per contra, Mr. K.P. Nanda, learned counsel for the opposite party no.2-bank, supporting the counter affidavit of opposite party no.2, submitted that as per the order of this Court passed in W.P.(C) No.1303 of 2004, the Appointment Committee of the Bank took decision that the petitioner be promoted to the Assistant General Manager and Deputy General Manager notionally from the date his junior Sri Parsuram Pattnaik got promoted to such post. Accordingly, the impugned order was issued on 22.09.2012 and the petitioner joined on the same day. He further submitted that since there was direction to consider the case of the petitioner to the post of Senior Assistant Manager and Assistant General Manager and for further promotion to the post which he was entitled to, the bank has complied the order keeping the inter-se-seniority of the petitioner over Sri Parsuram Pattnaik. The petitioner has not submitted his performance appraisal report from the year 2006-2007 onwards except for the year 2009-2010, his promotion could not be taken up as the Staff Service Rules mandates for promotion of any employee with the criteria of seniority-cum-merit and assessment of merit on the performance appraisal report. So, the management was not at all fault for skipping the case of the petitioner to the promotional posts. 7. Mr. Nanda, learned counsel for the opposite party no.2-bank further contended that the petitioner has been promoted with all consequential benefits and there is no order from the Court that the petitioner should be promoted with all financial benefits even if he has not discharged his duty in the promotional post. Since he has not actually discharged his duty in the promotional post, the impugned order has justifiably passed to promote him notionally and no actual financial benefits should be allowed to the petitioner. Since he has not actually discharged his duty in the promotional post, the impugned order has justifiably passed to promote him notionally and no actual financial benefits should be allowed to the petitioner. For this reason, the entire impugned order is correct, just and proper. 8. Mr. Prasanjeet Mohapatra, learned Additional Standing Counsel for the opposite party no.1 supported the submission of Mr.Nanda, learned counsel for the opposite party no.2. According to him, the State Government has nothing to do in this case as the petitioner was an employee of the opposite party no.2-bank. 9. POINT FOR DETERMINATION The main point for determination is; (1) Whether the petitioner is entitled for differential arrear salary even if he has not performed his duty in the promotional post in the facts and circumstances of this case? 10. DISCUSSIONS It is admitted fact that the petitioner was not promoted when his junior Sri Parsuram Pattnaik was got promoted. It is not in dispute that the petitioner has approached this Court by filing W.P.(C) No.1303 of 2004 for his supersession and this Court vide order dated 20.06.2012 passed the following order; “16. 20.6.2012- Heard learned counsel for the petitioner and Mr.Rath, learned counsel for the opposite party no.2-Orissa State Co-operative Bank Ltd. The prayer in this Writ Petition is for a direction to the opposite party no.2 to promote the petitioner to the post of Asst. General Manager from the date opposite party no.4 was given promotion with all financial benefits and differential salary as well as consequential service benefits. Undisputedly, the petitioner at the time of entry into service was matriculate, which was the minimum qualification required at that point of time. Staff Service Rules, 1980 came into existence sometime in October, 1981. In the meantime, it appears from record that all the recruits of 1980 having matriculation qualification have been given promotion to higher pots but the case of the petitioner has been ignored. The claim of the petitioner for further promotion shall be considered as a pre 1980 recruit where matriculation was the minimum qualification required for such appointment. Since the petitioner also stands on the same footing as other pre 1980 recruits who have been given promotion to higher posts even though they were matriculate, no discrimination can be done in respect of the petitioner. Since the petitioner also stands on the same footing as other pre 1980 recruits who have been given promotion to higher posts even though they were matriculate, no discrimination can be done in respect of the petitioner. We, therefore, dispose of this Writ Petition directing opposite party no.2 to consider the case of the petitioner for further promotion to the post of Senior Assistant Manager and Asst. General Manager or further promotional posts from the date he was entitled to such promotion. This exercise be completed within a period of three months from the date of communication of this order. Xx xx xx xx” From the aforesaid order of this Court, it appears that this Court clearly directed the opposite party no.2-bank to consider the case of the petitioner for further promotion to the post of Senior Assistant Manager and Asst. General Manager or further promotional posts from the date he was entitled to such promotion. 11. it is revealed from the counter affidavit that on 17.9.2012, the Appointment Committee of opposite party no.2-bank considered the case of the petitioner and the petitioner was promoted to the post of Deputy General Manager in the Scale of Pay of Rs.28350/- to 41400/- and his seniority was restored over his junior Sri Parsuram Pattnaik. Of course, the promotion order was issued on 22.09.2012 vide Annexure-A/2, which states as follows: “THE ODISHA STATE COOPERATIVE BANK LTD. Pandit Jawaharlal Nehru Marg, Bhubaneswar-751001 Ref No.OSCB/GAD/4119/2012-13 Date: 22.09.2012 OFFICE ORDER In pursuance of direction of Hon’ble Orissa High Court in W.P.(C) No.1303/2004 and Resolution No.2 dated 17.09.2012 of the Appointment Committee, Sri Narayan Chandra Malla, Manager is promoted to the rank of Deputy General Manager provisionally in the Scale of Pay of Rs.28350-1000-33350-1150-41400/- keeping his inter-se-seniority over Sri Parsuram Pattanaik, Deputy General Manager and fixing his pay notionally from the date of promotion of Sri Parsuram Pattanaik to the post of Assistant General Manager and Deputy General Manager respectively without any arrear financial benefits. This order shall have effect from the date of joining the post. Sd/-Managing Director xx xx xx xx” From the aforesaid order, it is not clear that from which date the petitioner was promoted to post of Senior Assistant Manager and then Assistant General Manager and after that to the post of Deputy General Manager. This order shall have effect from the date of joining the post. Sd/-Managing Director xx xx xx xx” From the aforesaid order, it is not clear that from which date the petitioner was promoted to post of Senior Assistant Manager and then Assistant General Manager and after that to the post of Deputy General Manager. But simply it is mentioned that his promotion is made notionally to the post of Assistant General Manager and Deputy General Manager when his immediate junior Sri Parsuram Pattanaik got promotion to such post. Of course, this Court has not passed any order as to from which date the petitioner should be allowed actual financial benefit. On the other hand, it appears from Annexure-B/2 that on 22.09.2012, the petitioner joined as Deputy General Manager. Even if there is no specific order of his promotion to the post of Sr. Assistant Manager and Assistant General Manager is passed, but since he has accepted the post of Deputy General Manager from 22.09.2012 vis-a-vis inter-se-seniority with his junior, it must be observed that the opposite party no.2-bank has promoted the petitioner to the post of Senior Assistant Manager and Assistant General Manager and then to the post of Deputy General Manager from the date his junior got promotion to the said post. The order dated 20.06.2012 passed in W.P.(C) No.1303 of 2004 clearly shows that the petitioner has filed the said writ petition for a direction to promote him to the post of Assistant General Manager from the date the opposite party no.4 in that writ petition was given promotion with all financial benefits and differential salary as well as consequential financial benefits. The court has also discussed that the petitioner, while entering into service in 1980, was a Matriculate but the Staff Service Rules came into existence in 1981. Therefore, this Court having taken note of the date of the entry of the petitioner into service prior to commencement of the Staff Service Rules and since with that qualification, other persons were given promotion to the higher post, the petitioner was ordered to be promoted. Of course, except directing the opposite party no.2-bank to consider the case of the petitioner for promotion to the higher posts from the date he is entitled to promotion, no other order was passed to give such promotion with all consequential service benefits. Of course, except directing the opposite party no.2-bank to consider the case of the petitioner for promotion to the higher posts from the date he is entitled to promotion, no other order was passed to give such promotion with all consequential service benefits. But it is rudimentary principle of service jurisprudence that whenever a retrospective promotion is given, it carries the consequential service benefits. So, obviously the petitioner was allowed by such order of this Court with all consequential service benefits. The impugned order directs for retrospective promotion by restoring his seniority with consequential service benefits but the same only limited to notional one without any financial benefits. 12. It is reported in the case of Ramesh Kumar (Supra) where Their Lordships, at paragraphs 12, 13 and 14, have observed as under: “12. In normal circumstances when retrospective promotions are effected, all benefits flowing therefrom, including monetary benefits, must be extended to an employee who has been denied promotion earlier. So far as monetary benefits with regard to retrospective promotion is concerned that depends upon case to case. In State of Kerala & Ors. vs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524 , this Court held that the principle of “no work no pay” cannot be accepted as a rule of thumb and the matter will have to be considered on a case to case basis and in para (4), it was held as under:- “..… 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 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. 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 hard-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.” 13. We are conscious that even in the absence of statutory provision, normal rule is “no work no pay”. In appropriate cases, a court of law may take into account all the facts in their entirety and pass an appropriate order in consonance with law. The principle of “no work no pay” would not be attracted where the respondents were in fault in not considering the case of the appellant for promotion and not allowing the appellant to work on a post of Naib Subedar carrying higher pay scale. In the facts of the present case when the appellant was granted promotion w.e.f. 01.01.2000 with the ante-dated seniority from 01.08.1997 and maintaining his seniority along with his batchmates, it would be unjust to deny him higher pay and allowances in the promotional position of Naib Subedar. 14. The impugned orders passed by the High Court are set aside and this appeal is allowed. The respondents shall release the arrears of pay and allowances to the appellant for the period from 01.08.1997 till the date of his actual promotion that is 13.11.2000 in the promotional post of Naib Subedar within eight weeks from today. No order as to costs.” With due respect to the aforesaid decision, it is clear that there is no thumb rule that in all cases, the principle of “no work no pay” would apply, but the monetary benefits can be allowed subject to facts and circumstances of each case. No order as to costs.” With due respect to the aforesaid decision, it is clear that there is no thumb rule that in all cases, the principle of “no work no pay” would apply, but the monetary benefits can be allowed subject to facts and circumstances of each case. In the aforesaid decision, the Hon’ble Supreme Court found that since the respondents in that case were in fault in not considering the case of the appellant for promotion and allowed the appellant to work in the post of Naik Subedar, the appellant in that case was allowed arrears of pay and allowances from the date he was due to get such promotion till actual promotion to the post of Naik Subedar. 13. Now adverting the facts of this case, it is clear that the petitioner’s promotion purportedly was not considered as his performance appraisal report was not made available by the petitioner when his promotion took place as the Staff Service Rules, 1980 directs for consideration for promotion subject to performance appraisal report submitted by the incumbent. But the order dated 20.06.2012 passed by this Court in W.P.(C) No.1303 of 2004 shows that because of his less qualification under the Staff Service Rules, he was not considered for promotion. So, the plea of the opposite party no.2-bank is prevaricating and disturbing one to deny the consequential service benefits to the petitioner. On the other hand, the petitioner, in his rejoinder affidavit, has clearly mentioned that he has been given commendation letter on 11.5.2005 for his achievement towards business growth of the bank. Further in the said rejoinder affidavit, he has submitted that Assistant General Managers and Deputy General Managers of the bank can discharge the duty of Manager except the scale of pay varies. For instance, he cited Annexure-3 to the rejoinder wherein the officers in the rank of Deputy General Manager have been transferred and posted as Branch Mangers of different branches. Thus, there is truth with the submission of the learned counsel for the petitioner that the petitioner even if in the lower rank was discharging the same duty as in the event of his promotion, he would continue to work as such with only the higher scale of pay paid to individuals. 14. Thus, there is truth with the submission of the learned counsel for the petitioner that the petitioner even if in the lower rank was discharging the same duty as in the event of his promotion, he would continue to work as such with only the higher scale of pay paid to individuals. 14. In terms of the above discussion, this Court is of the view that when the opposite party no.2-bank has failed to show that the petitioner has not worked in the higher responsible post and such plea has not been taken during the disposal of W.P.(C) No.1303 of 2004, the plea of debarring the petitioner from arrear salary in the promotional post with retrospective effect is untenable. So, it must be observed that due to the sole fault of the opposite party no.2-bank, the petitioner could not get the arrear salary in the promotional post and he is entitled to arrear salary from the date when his junior got promoted till his actual joining, i.e, 22.09.2012. The point for determination is answered accordingly. 15. CONCLUSION In the writ petition, it has been prayed for direction to modify the order dated 22.09.2012 (Annexure-1) for payment of arrear financial benefits retrospectively when the petitioner got promoted to different posts of Senior Assistant Manager, Assistant General Manager and Deputy General Manager from the date his juniors got promoted. On the other hand, Mr.Mohapatra, learned counsel for the petitioner submitted that instead of notional financial benefits, the actual financial benefits to the petitioner may be directed to be disbursed within a specific period. In the above paragraphs, it has been held that for no fault of the petitioner, he could not get promotion in time and this Court, in the earlier writ petition, has already directed for considering the case of the petitioner for retrospective promotion. It has been also observed in the aforesaid paragraphs that the petitioner is entitled to arrear salary from the date his juniors got promoted till his actual joining. Hence, the Court is of the view that the order dated 22.09.2012 (Annexure-1) has to be modified to the extent that the petitioner is entitled to the actual financial benefits instead of notional benefit for the promotion to the post of Senior Assistant Manager, Assistant General Manager and Deputy General Manager from the date his juniors got promoted and accordingly the Court direct so. The opposite party no.2-bank is thus directed to issue a revised office order by modifying the order dated 22.09.2012 (Annexure-1) within a period of eight weeks from today. The writ petition is disposed of accordingly.