Allahabad High Court
State Of U.P.Through The Prin. ... vs Kanhaiya Lal on 5 April, 2013
Bench: Devi Prasad Singh, Arvind Kumar (Ii)
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 27 A.F.R.
Case :- SERVICE BENCH No. - 75 of 2011
Petitioner :- State Of U.P.Through The Prin. Secy. Finance Anubhag -2
Respondent :- Kanhaiya Lal
Petitioner Counsel :- C.S.C.
Respondent Counsel :- Kunchan Kumar Pandey,R.K. Upadhayaya
Hon'ble Devi Prasad Singh,J.
Hon'ble Arvind Kumar Tripathi (II),J.
Heard learned Standing Counsel for the petitioner and Mr. R.K. Upadhyay, learned counsel for the respondents.
Present writ petition has been preferred against the judgment and order dated 10.9.2009, passed by State Public Service Tribunal, Lucknow in Claim Petition No.952 of 2003.
While adjudicating the promotional controversy, a decision was taken to grant promotion to the claimant respondent from 31.1.2000 on the post of Senior Finance and Accounts Officer. However, it is provided by the order dated 25.10.2012 that the claimant respondent shall not be entitled for arrears of salary in the promotional avenue. The order was impugned before the tribunal and the tribunal by the impugned judgment and order directed the petitioner State to pay salary of the period between 31.12.2000 to 25.10.2002 on the ground that the delay caused in providing promotional avenue is not because of the fault of the claimant respondent.
While assailing the impugned order, passed by the tribunal, the petitioner's counsel submits that the grant of promotional avenue notionally from anterior date does not confer any right to the employee to claim arrears of salary.He relied upon the cases reported in 1996 SCC (L&S) 633 State of Haryana and others versus O.P. Gupta and others, (2006)10 SCC 145 Union of India and another versus Tarsem Lal and others and a Constitution Bench judgment of Hon'ble Supreme Court reported in (1989)2 SCC 541 Paluru Ramkrishnaiah and others versus Union of India and another.
On the other hand, learned counsel for the claimant respondent submits that the claimant was deprived of promotional avenue for no fault on his part, hence he is entitled arrears of salary. He relied upon a judgment reported in AIR 1993 SC 1740 State of U.P. and others versus G.P. Swami and another judgment of this Court reported in [2005(23) LCD 173] Dhanpal Singh versus State of U.P. and another.
However, the fact remains that during the period in question, i.e. almost for two years, the petitioner had not discharged duty on the higher post of Senior Finance and Accounts Officer.
In the case of Paluru Ramkrishnaiah(supra), their Lordships of Hon'ble Supreme Court held that where promotion is granted from retrospective date, then the back wages for the period the petitioner actually did not work in the promotional post shall not be paid. For convenience, para 19 of the aforesaid judgment is reproduced as under :
" As regards back wages the Madhya Pradesh High Court held :
It is the settled service rule 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 a higher post although after due consideration he was given a proper place in the gradation list having deemed to be promoted to the higher post with effect from the date his junior was promoted. So the petitioners are not entitled to claim any financial benefit retrospectively. At the most they would be entitled to refixation of their present salary on the basis of the notional seniority granted to them in different grades so that their present salary is not less than those who are immediately below them."
In the case of O.P. Gupta(supra), controversy before the Apex Court was with regard to payment of arrears of salary in lieu of notional promotion made in the higher cadre. Notional promotion was granted in pursuance to Apex Court's judgment in view of fresh seniority list prepared of the cadre. Their Lordships of Hon'ble Supreme Court held that in such situation, the employee shall be entitled for the pay-scale retrospectively but without payment of arrears of salary. To quote relevant portion, to quote :
"7. This Court in Paluru Ramkrishnaiah v. Union of India (SCR at p. 109 : SCC p. 556, para 19) 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, G.M., N. Rlys. v. Avinash Chandra Chandha (SCC p. 482, para 16). "
The aforesaid proposition of law has been followed in the case of Tarsem Lal(supra) where in identical situation, Hon'ble Supreme Court has declined to grant arrears of salary.
The cases relied upon by the learned counsel for the claimant respondents seems to be based on different facts and circumstances. In the case of G.P. Swami (supra), an employee was dismissed from service but later on restored in service. Because of pendency of litigation, he could not be restored in service at earlier date. Their Lordships of Hon'ble Supreme Court held that since during the course of litigation, the employee retired, salary for the period when the employee was out of job may be paid to him.
The case of Dhanpal Singh(supra) was decided by one of us (Hon. Devi Prasad Singh, J) whereby while allowing for notional promotion, consequential benefit was granted with retrospective effect and from the judgment, it appears that the notional promotion was granted only for the purpose of pensionary benefits. This Court has not passed any order to pay arrears of salary in the case of Dhanpal Singh (supra).
In any case, the Constitution Bench judgment of Hon'ble Supreme Court in the case of Paluru Ramkrishnaiah(supra) and other judgments (supra) of Hon'ble Supreme Court is a binding precedent where Hon'ble Supreme Court held that where promotion is granted from retrospective date, then the salary for the period the petitioner actually had not worked in the promotional post shall not be paid. Accordingly, the tribunal seems to have failed to exercise jurisdiction vested in it. Thus, the impugned order seems to suffer from substantial illegality.
The writ petition deserves to be and is hereby allowed. A writ in the nature of certiorari is issued quashing the impugned judgment and order dated 10.9.2009, passed by State Public Service Tribunal, Lucknow in Claim Petition No.952 of 2003. The claim petition is also dismissed to the extent it relates to payment of arrears of salary in lieu of notional promotion.
No order as to costs.
Order Date :- 5.4.2013
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