Research › Search › Judgment

Meghalaya High Court · body

2022 DIGILAW 178 (MEG)

Nd AR-272a Shri. Ganesh Kumar v. Union of India

2022-07-07

W.DIENGDOH

body2022
JUDGMENT 1. This Court vide order dated 01.02.2018 in WP(C) No. 232 of 2013, between the same parties herein indicating that in the third round of litigation between the same parties on the petitioner's claim for promotion and consequential benefits, in the operative part of the order has held as follows:- 'This Court is clearly of the view that in the given set of facts and circumstances and particularly in view of the concluded findings in the case of the petitioner, the requirement of notional promotion and fixing of seniority carried inherently the requirement of fixation of scale pay of the petitioner w.e.f. 22.01.1997 and for further fixation of pay on notional basis after placement in appropriate scale as applicable at the relevant point of time in all the cadres of progression. For what has been discussed hereinabove, this writ petition is allowed in terms of the relief prayed for. The respondents shall carry out the corresponding modifications and take all necessary corrective steps at the earliest, preferably within 60 days from today.' 2. Pursuant to the said order, the respondent No. 2 through his assign, has issued a speaking order dated 28.08.2018 indicating thereto that the pay of the petitioner has been fixed at Rs.8,000/- in the pay scale of Rs. 8,000/- 275-13,5000/- per month w.e.f. 22-01-1997 (date of appointment of the batchmates) on notional basis and corresponding re-fixation in the rank of Dy. Comdt (Rs. 10,000-325-15,200/-) on 01-04-2004, in the rank of 2IC (Rs. 31,420/- plus Grade pay Rs. 7,600/-) on 01-07-2008 and in the rank of Comdt. (Rs. 37,400/- plus Grade pay Rs. 8,700/-) on 11-03-2013, have also been done. After detailed work out, it has been found that there is no difference in pay of the officer and his pension has been calculated correctly based on his last pay (Rs.1,34,500/-) drawn. All his pensionary benefits have already been assessed/granted to him as per CCS (Pension) Rules, 1972 and PPO (Pension Payment Order) No. 234981807077 dated 18-05-2018 has been issued in his favour. 3. All his pensionary benefits have already been assessed/granted to him as per CCS (Pension) Rules, 1972 and PPO (Pension Payment Order) No. 234981807077 dated 18-05-2018 has been issued in his favour. 3. It now appears that in this fourth round of litigation, the petitioner has once again approached this Court by way of this instant writ petition with a prayer to direct the respondents to pay the arrear pay and allowances with effect from 22.01.1997 till 31.12.2005 correspondingly in the scale of pay due and payable to the Assistant Commandant with effect from 22.01.1997 to 31.03.2004, and as Deputy Commandant from 01.04.2004 to 31.06.2008 and again as Commandant from 01.07.2008 to 11.03.2013, since the same has not been paid to him and also, since the speaking order dated 28.08.2018 has failed to address the issue of arrear pay and allowance due and payable to the petitioner. 4. The brief background of the case between the parties, is that the petitioner was enrolled as Rifleman in Assam Rifles on 31.10.1977. In 1996 he was selected by the Departmental Promotion Committee (DPC) as Assistant Commandant and was accordingly sent for training and on completion of the same, had waited for the piping ceremony, but when the said piping ceremony was held, seven of his batch-mates were selected while he was not selected nor promoted on account of a departmental proceeding against him. 5. The petitioner then approached this Court (the then Shillong Bench of the Gauhati High Court) by way of a writ petition being WP(C) No. 209 (SH) 2001 and vide order dated 07.04.2003, his prayer was allowed. The petitioner was then granted promotion to the post of Assistant Commandant w.e.f. 01.08.2006. Again, this Court was approached by the petitioner by filing a writ petition being WP(C) No. 312 (SH) 2006 and vide order dated 23.03.2010, this Court directed that the petitioner be given notional promotion in the cadre of Assistant Commandant from the date of promotion of his batch-mates i.e. 22.01.1997. The authorities by relevant order has re-fixed the seniority of the petitioner and has granted him promotion in the cadre of Assistant Commandant w.e.f. 22.01.1997. It may be noted that the order of the Single Bench in the said WP(C) No. 312 (SH) 2006 was assailed by the respondents before the Division Bench of this Court (the then Shillong Bench of the Gauhati High Court) in WA. It may be noted that the order of the Single Bench in the said WP(C) No. 312 (SH) 2006 was assailed by the respondents before the Division Bench of this Court (the then Shillong Bench of the Gauhati High Court) in WA. No. 20 (SH) 2010 which was dismissed by this Court. 6. Yet again, the petitioner said to have been aggrieved by the failure of the respondent authority to carry out adequate compliance of the order passed by this Court (the then Shillong Bench of the Gauhati High Court) in WP(C) No. 312 (SH) 2006, inasmuch as, the benefits of notional fixation of pay in the cadre of Assistant Commandant w.e.f. 22.01.1997 and consequential re-fixation of pay in other cadres of progression was denied to him, has approached this Court by way of WP(C) No. 232 of 2013 and as indicated above vide order dated 01.02.2018, this Court has passed the order indicated above leading to the passing of the said speaking order dated 28.08.2018 which is impugned herein. 7. Heard Mr. M. Chanda, learned counsel for the petitioner who has submitted that in view of the many orders and directions issued by this Court whereby the petitioner was finally given notional promotion right from the level of Assistant Commandant w.e.f. 22.01.1997 and was also notionally promoted progressively till he finally retired in the rank of Commandant, the pay and allowance as applicable to him has also been given. However, as to the arrear pay and allowance from the time he was notionally promoted as Assistant Commandant on 22.01.1997 to 31.12.2005 when he was promoted to the rank of Deputy Commandant, the same was denied to him. Hence this case. 8. The learned counsel has further submitted that since the respondents has paid the arrear pay and allowances to the petitioner from 01.01.2006 to 31.03.2013, they are also duty bound to pay the same arrear for the period w.e.f. 22.01.1997 to 31.12.2005. The case of Nand Kumar Verma v. State of Jharkhand & Ors: (2012) 3 SCC 580 at para 40 & 41 was referred to in this regard. 9. The case of Nand Kumar Verma v. State of Jharkhand & Ors: (2012) 3 SCC 580 at para 40 & 41 was referred to in this regard. 9. On the contention of the respondents that the petitioner cannot be given the arrear pay and allowance for the period 22.01.1997 till 31.12.2005 since he was only notionally promoted to the rank of Assistant Commandant and has actually not functioned as one during the relevant period, therefore the principle of 'no work no pay' would be applicable. The learned counsel for the petitioner has submitted that under the facts and circumstances of the case of the petitioner, the same is not applicable as it was not the fault of the petitioner having not performed his duty as Assistant Commandant during the relevant period, but the fault squarely lies with the respondents who have not promoted the petitioner along with his batch-mates at the relevant period, that is, during the year 1997. The case of Ramesh Kumar v. Union of India & Ors: (2015) 14 SCC 335 at para 14 & 15 was also cited in this regard. 10. Mr. R. Debnath, learned CGC on the other hand while supporting the action of the competent authority has submitted that though the petitioner was notionally promoted to the rank of Assistant Commandant in the year 1997, yet because he has not actually served in that capacity during the relevant period since the promotion was given to him notionally by virtue of the Court's order and as such, it was only w.e.f. 01.08.2006 that the arrear pay and allowance was given to him as he has physically assumed the rank in officer category from that date. The principle of 'no work no pay' would therefore be applicable. The case of State of Haryana & Ors v. O.P. Gupta & Ors: (1996) 7 SCC 533 , para 7, 8 & 9 was referred to by the respondents in this regard. 11. The case of the parties has been examined in the light of the pleadings and the argument advanced by both sides. The case of State of Haryana & Ors v. O.P. Gupta & Ors: (1996) 7 SCC 533 , para 7, 8 & 9 was referred to by the respondents in this regard. 11. The case of the parties has been examined in the light of the pleadings and the argument advanced by both sides. It is not necessary to revisit the history of how the matter has come to a pass in this fourth round of litigation, suffice it to say that the only issue to be decided here is whether the petitioner is entitled to arrears of pay and allowances w.e.f. 22.01.1997 till 31.03.2004 when he was notionally promoted as Assistant Commandant and correspondingly from 01.04.2004 to 31.12.2005 when he has attained the rank of Deputy Commandant at the relevant period. 12. The only contention raised by the respondents is that though the petitioner was notionally promoted to the cadre of Assistant Commandant w.e.f. 22.01.1997 in compliance with this Court's order dated 23.03.2010, he is actually entitled to arrears only w.e.f. 01.08.2006 i.e., on the date of physical assumption in the rank of Officer category. 13. The respondents in their affidavit-in-opposition have pleaded that in compliance to the direction of this Court, due-drawn statement along with pay fixation of the Officer has been carried out and the Department has fixed the pay of the petitioner w.e.f. 22.01.1997 tabulated as under:- Rank and pay scale Date Notional pay fixation Remarks Assistant Commandant (8000-275- 13500/-) 22.01.1997 Pay notionally fixed wef 22.01.1997 with date of next increment on 01.01.1998 8000/- No arrear of pay and allowances is entitled to the officer as pay was fixed notionally as per direction of the Hon'ble Court on principle of 'NO WORK NO PAY'. Granted annual increment notionally wef 01.01.1998 to 01.01.2004 @ Rs. 275/- (7 x 275/-) 1,925/- Pay raised to 9,925/- Deputy Commandant (10000-325- 15200/-) 01.04.2004 Pay notionally fixed wef 01.04.2004 with date of next increment on 01.04.2005 10,325/- Granted one annual increment notionally on 01.04.2005 and one addl. increment on 01.01.2006 under 6th CPC provision @ Rs. 325/- (2 x 325/-) 650/- Pay raised to 10,975/- Pay revised under 6th CPC 01.01.2006 Pay revised on 01.01.2006 as per 6th CPC and pay fixed at Rs. (including Grade Pay Rs. increment on 01.01.2006 under 6th CPC provision @ Rs. 325/- (2 x 325/-) 650/- Pay raised to 10,975/- Pay revised under 6th CPC 01.01.2006 Pay revised on 01.01.2006 as per 6th CPC and pay fixed at Rs. (including Grade Pay Rs. 6,600/-) 27,020/- Granted annual increment notionally on 01.07.2006 @ 3% of basic pay 810/- Pay raised to 27,830/- Date of physically assumption of rank in officer category. 01.08.2006 Notional pay as on 01.08.2006 27,830/- Officer was actually entitled for arrear from 01.08.2006 Granted annual increment on 01.07.2007 @ 3% of basic pay 840/- Pay raised to 28,670/- Second-in- Command 15600-39100/- with Grade Pay Rs. 7600/- pm. 01.04.2008 Pay notionally fixed wef 01.07.2008 duly exercised option and annual increment and notional increment on promotion for Rs. 860 and 890 respectively with date of next increment on 01.07.2009 (including Grade pay Rs. 7,600/-) 31,420/- Granted annual increment notionally on 01.07.2009 and 01.07.10 @ 3% of basic pay Rs. 950/- and 980/- respectively 1930/- Pay raised to 33,350/- Date of physically assumption of rank of 21C 22.02.2011 Notional pay as on 22.02.2011 33,350/- Officer was actually entitled for arrear from 22.02.2011 in the rank of 21C Granted annual increment on 01.07.2011 and 01.07.2012 @ 3% of basic pay Rs. 1000/- and 1030/- respectively 2,030/- Pay raised to 35,380/- Commandant Pay Band-4 (37400-67000 with Grade Pay Rs. 8,700/- pm) 11.03.2013 Pay fixed wef 11.03.2013 on promotion to the Commandant with date of next increment on 01.07.2014 46,100/- Granted annual increment on 01.07.2014 and 01.07.2015 @ 3% of basic pay Rs. 1390/- and 1430/- respectively 2,820/- Pay raised to 48,920/- Pay revised under 7th CPC 01.01.2016 Pay revised on 01.01.2016 as per 7th CPC and pay fixed in the Pay Matrix Level-13 with date of increment on 01.07.2016 1,26,800/- Proceeded on Superannuation pension on 31.05.2018 Granted annual increment on 01.07.2016 and 01.07.2017 Rs. 3800/- and 3900/- respectively 7,700/- Pay raised to 1,34,500/ 14. To strengthen their case, the respondents has relied upon the case of O. P. Gupta (supra) wherein at paras 7 & 8, the Hon'ble Supreme Court has observed as follows: - '7. This Court in Paluru Ramakrishnaiah & Ors. 3800/- and 3900/- respectively 7,700/- Pay raised to 1,34,500/ 14. To strengthen their case, the respondents has relied upon the case of O. P. Gupta (supra) wherein at paras 7 & 8, the Hon'ble Supreme Court has observed as follows: - '7. This Court in Paluru Ramakrishnaiah & Ors. v. Union of India: (1989) 2 SCR 92 at page 109 considered the direction issued by the High Court and upheld that there has to be "no pay for no work", i.e., a person will not be entitled to any pay and allowance during the period for which he did not perform the duties of higher post, although after due consideration, he was given a proper place in the gradation list having been deemed to be promoted to the higher post with effect from the date his junior was promoted. He will be entitled only to step up the scale of pay retrospectively from the deemed date but is not entitled to the payment of arrears of the salary. The same ratio was reiterated in Virender Kumar v. Avinash Chandra Chadha: (1990) 3 SCC 472 (SCC p. 482, para 16). 8. It is true, as pointed out by Shri Hooda, that in Union of India v. K.V. Jankiraman: AIR 1991 SC 2010 , this Court had held that where the incumbent was willing to work but was denied the opportunity to work for no fault of his, he is entitled to the payment of arrears of salary. That is a case where the respondent was kept under suspension during departmental enquiry and sealed cover procedure was adopted because of the pendency of the criminal case. When the criminal case ended in his favour and departmental proceedings were held to be invalid, this Court held that he was entitled to the arrears of salary. That ratio has no application to the cases where the claims for promotion are to be considered in accordance with the rules and the promotions are to be made pursuant thereto.' 15. In reply to this, in the case of Ramesh Kumar (supra) cited by the petitioner at paragraphs 14 & 15, the Hon'ble Supreme Court has held as under:- '14. 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. In reply to this, in the case of Ramesh Kumar (supra) cited by the petitioner at paragraphs 14 & 15, the Hon'ble Supreme Court has held as under:- '14. 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 are concerned that depends upon case to case. In State of Kerala v. 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: (SCC p. 527) '4. ... 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. 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.' 15. We are conscious that even in the absence of statutory provision, normal rule is 'no work no pay'. 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.' 15. 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. 1-1-2000 with the ante-dated seniority from 1-8-1997 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'. 16. It may be mentioned that as regard the DPC held in the month of August 1996, nine candidates including the petitioner were selected for the post of Assistant Commandant and were accordingly sent for training before actually being promoted to the said post. On completion of the training, the normal procedure followed by the Department is that there has to be a piping ceremony and in the said piping ceremony, only seven candidates were called excluding the petitioner herein. This means that while the batch-mates of the petitioner were promoted, the petitioner was not promoted. The reason being that there was an allegation against him for improper submission of TA/DA claim for which after summary trial, 'Severe Reprimand' was imposed upon him. 17. However, the petitioner had approached this Court (the then Shillong Bench of the Gauhati High Court) at the relevant time and this Court vide order dated 07.04.2003 in WP(C) No. 209 (SH) 2001 had directed the respondent authority, particularly the respondent No. 2 herein to examine the case of the petitioner. 18. 17. However, the petitioner had approached this Court (the then Shillong Bench of the Gauhati High Court) at the relevant time and this Court vide order dated 07.04.2003 in WP(C) No. 209 (SH) 2001 had directed the respondent authority, particularly the respondent No. 2 herein to examine the case of the petitioner. 18. Again, the petitioner has approached this Court in the year 2006 by way of WP(C) No. 312 (SH) 2006 and the Court while disposing of the petition has opined that the petitioner is entitled to be appointed to the cadre of Assistant Commandant from the time where his batch-mates were also appointed as Assistant Commandant, though the same is only a notional exercise. 19. To the extent of repetition, on not being granted arrear pay and allowances w.e.f. 22.01.1997 and progressively, the petitioner has again approached this Court by way of a writ being WP(C) No. 232 of 2013 and vide order dated 01.02.2018, the Court has allowed the prayer of the petitioner and has directed the respondents to carry out corresponding modifications and take all necessary corrective steps at the earliest, preferably within 60 days. 20. In response to this, the respondents have accordingly issued the speaking order dated 28.08.2018 confirming the notional promotion of the petitioner to the cadre of Assistant Commandant and progressively till the rank of Commandant. However, the arrear pay and allowances was admittedly given to the petitioner only w.e.f. 01.08.2006. 21. In the light of the above, though the principle of 'no work no pay' would be applicable, meaning that a person will not be entitled to pay and allowances during the period for which he did not perform his duties, but as pointed out, in the case of Ramesh Kumar (supra) this principle cannot be accepted as a rule of thumb and that the matter will have to be considered on a case to case basis. In the case of the petitioner by a series of judicial pronouncement, he was directed to be promoted to the cadre of Assistant Commandant w.e.f. 22.01.1997, though notionally, therefore the principle of 'no work no pay' will not be applicable to his case as it is incumbent upon the respondent Authority to comply with the direction of the Court. 22. In the case of the petitioner by a series of judicial pronouncement, he was directed to be promoted to the cadre of Assistant Commandant w.e.f. 22.01.1997, though notionally, therefore the principle of 'no work no pay' will not be applicable to his case as it is incumbent upon the respondent Authority to comply with the direction of the Court. 22. In the final analysis, this Court finds that the petitioner has been able to make out a case for grant of arrear pay and allowances as prayed for in this petition and accordingly, the same is allowed. The respondent Authority, particularly the respondent No. 2 is hereby directed to issue necessary orders in this regard preferably within two months from the date of this order. 23. Petition disposed of. No costs.