Union Of India,Thr Gm And Anor vs De Godghate
2021 Latest Caselaw 2147 Bom

                                                                                             wp.3051.08.odt
                                                        1

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT NAGPUR, NAGPUR.
                                       ...

                                   WRIT PETITION NO. 3051/2008

1)       Union of India
         Through the General Manager
         Central Railway
         Mumbai-CST.

2)       Divisional Railway Manager
         Central Railway, Nagpur.                                             ..        PETITIONERS

                   versus

*        D.E. Godghate
         Aged 59 years, occu: Diesel Electrician Gr.I
         Working under Sr.Section Engineer
         (Diesel Loco), Central Railway Ajni, Nagpur
         R/o Kashibai Temple
         New Shukhrawari
         Near Akre Decoration
         Nagpur-440 002.                              ..                               RESPONDENT

..................................................................................................................
          Mr. P. H. Khobragade, Adv.h/for Mr. R.G.Agrawal, Advocate for the
          petitioners
          Mr. Anil B.Bambal, Advocate for respondent-sole
..................................................................................................................

                                                CORAM: DIPANKAR DATTA, CJ &
                                                       PUSHPA V. GANEDIWALA, J.

DATED: 2nd February, 2021

ORAL JUDGMENT : (PER DIPANKAR DATTA, CJ.):

1. The challenge in this writ petition is to a judgment and

order dated 28th March 2008 passed by the Central Administrative

Tribunal, Bombay Bench (Camp at Nagpur). The Tribunal by the said

judgment and order allowed Original Application No.2065/2007 on its

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file, by directing the respondents in such application to pay to the

original applicant the difference of pay with effect from 15 th May 1997,

i.e., the date on which the original applicant was granted notional

promotion by the order dated 18 th October, 2006. Such direction was

directed to be complied with, within a period of 3 (three) months.

2. The respondents in the original application, who are the

petitioners before us, had contended that in view of Rule 228 of the

Indian Railways Establishment Manual (Volume I), a staff who is

belatedly promoted due to any administrative error would be entitled to

enhanced pay from the date of actual promotion and that no arrears on

this count shall be payable as he did not actually shoulder the duties and

responsibilities of the higher post. To resist the claim in the original

application, reliance was placed by them on the decision of the Supreme

Court reported in (2006) 10 SCC 145 : Union of India and another vs.

Tarsem Lal and others, where, upon consideration of Rule 228 supra, it

was held on the principle of 'no work no pay' that the Tribunal as well as

the High Court was wrong in granting relief to the original applicants,

and that reliance placed on the decision of the Supreme Court in the

case reported in 1995 Supp (3) SCC 471 : Harbans Singh vs. State of

Punjab and others, by the Tribunal as well as the High Court was

misplaced.

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3. On behalf of the original applicant, who is the sole

respondent before us, reliance had been placed on the decision of the

Supreme Court reported in (1998) 8 SCC 388: Paramjeet Singh vs.

State of U.P. and others, where the employee having been found to be

deprived of his pay qua posting on promotion, the Court allowed his

prayer for back-wages.

4. The Tribunal preferred the decision in Paramjeet Singh

(supra) to the decision in Tarsem Lal (supra), although the latter had the

occasion to deal with Rule 228 and was a decision directly on the point.

Admittedly, the vires of Rule 228 had not been challenged before the

Tribunal by the original applicant. In the absence of such challenge, Rule

228 was the provision which held the field and governed the terms and

conditions of promotees like the original applicant. Once Rule 228 made

it clear that denial of promotion due to administrative error would not

clothe the promotee to claim back-wages/arrears of salary which he

would have been otherwise entitled to but for the delayed promotion,

there was absolutely no ground for the Tribunal not to be guided by the

decision in Tarsem Lal (supra).

5. We are of the considered opinion that the Tribunal exercised

its jurisdiction illegally and, therefore, the order under challenge is

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indefensible. Consequently, we have no other option but to allow this

writ petition and set aside the impugned order of the Tribunal with the

result that the original application filed before the Tribunal shall stand

dismissed. There shall be no order as to costs.

                JUDGE                               CHIEF JUSTICE

sahare