Amar Singh vs Union Of India And Anr.
2001 Latest Caselaw 1598 Del

JUDGMENT

Mukundakam Sharma, J.

1. The only issue that arises for my consideration in this writ petition is whether or not any direction should be issued to the respondents, as sought for by the petitioner herein to pay arrear wages/back wages to the petitioner from the date of his notional promotion granted by the respondents.

2. The petitioner herein was initially appointed as a Trainee Officer in the pay-scale of Rs. 650-1200. The said appointment of the petitioner was made in the year 1977. There was another post in the establishment of the respondent, which was called Assistant Research Officer and was in the pay-scale of Rs. 550-900. Somewhere in 1991 the governing body of respondent no. 2 decided to combine the three cadres, namely, Training, Education and Research Officer, carrying the pay-scale of Rs. 650-1200. Consequent upon the institute formulating a combined cadre of research staff, posts of training officer and health instructors were also included and the said posts were redesignated as Assistant Research Officer. Based on the aforesaid decision a seniority list was also prepared. In the said seniority list, the petitioner was shown as S.No. 6. Immediately after receipt of the said seniority list, the petitioner submitted representations contending, inter alia, that as he was drawing a higher pay scale of Rs. 650-1200 when he joined the respondent No. 2 in 1977, which pay sacle was higher then that of Assistant Research Officer carrying the pay scale of Rs. 550-900, therefore, he should be given a higher seniority position.The aforesaid contention of the petitioner was accepted by the respondents and a fresh seniority list was drawn after obtaining advice from the Department of Personal and Training. The aforesaid advice was received in 1995 and accordingly a fresh seniority list was prepared taking into account the higher pay scale of training officers at the initial stage. The said inter-se seniority list was circulated on 16.3.93 requesting for comments within 10 days. However, no representation was received for revising inter-se seniority list based on pay scales. In the said inter-se seniority list, the name of the petitioner was shown at S.No.2. Consequent thereto and on advice received from the Department of Personnel and Training, it was decided that a review DPC should be held. Accordingly, as per representation of the petitioner, the matter was again reviewed in consultation with the Ministry and it was decided to hold a review DPC for considering the candidature of the petitioner from promotion to the next higher grade i.e. the post of Research Officer. As per the recommendations of the review DPC the petitioner was promoted to the post of Research Officer with retrospective date w.e.f. 3.11.1992, but it was decided that the financial benefits from the date of holding DPC i.e. 6.3.96 would be given as per existing rules on the subject. It was stated that the aforesaid notional retrospective deemed promotion was given to the petitioner w.e.f. 3.11.1992 without any financial benefits which would be granted only from the date of actual order of promotion on the basis of the circular of the Department of Personnel and Training, a copy of which is annexed. Particular reference was made to para 18.4.3, which provides as under:-

"If the officers placed junior to the officer concerned have been promoted, he should be promoted immediately and if there is no vacancy the junior most person officiating in the higher grade should be reverted to accommodate him. On promotion, his pay should be fixed under F.R.27 at the stage it would have reached, had he been promoted from the date the officer immediately below him was promoted but no arrears would be admissible. The seniority of the officer would be determined in the order in which his name, on review, has been placed in the select list by DPC. If any such case a minimum period of qualifying service prescribed for promotion to higher grade, the period from which an officer placed below the officer concerned in the select list was promoted to the higher grade, should be reckoned towards the qualifying period of service for the purpose of determining his eligibility for promotion to the next higher grade."

3. Counsel appearing for the petitioner, however, submitted that withholding of the monetary benefits for the period for 3.11.1992 to 5.3.1996 is inconsistent with the very concept of the decision of the respondents themselves to give promotion to the petitioner to the post of Research Officer from a retrospective deemed date as there was administrative lapse. It was also submitted by him that the promotion of the petitioner to the post of Research Officer was delayed for no fault of the petitioner and due to administrative lapse of the respondents and that the said promotion was given by the respondents after repeated requests made by the petitioner himself and, therefore, he is entitled to be paid the arrear salary for the aforesaid period.

4. The aforesaid contention was, however, refuted by the counsel appearing for the respondents on the ground that the very purpose of giving retrospective deemed promotion is to take care of some injustice, inter alia, because some junior has come to be promoted earlier. It was submitted by him that since the said mistake was rectified by giving notional promotion to the petitioner, the petitioner cannot ask for payment of entire arrear wages without actually working on the said post for the entire period. He also drew my attention to the aforesaid Para 18.4.3 and relying on the same submitted that since the aforesaid provision makes it amply clear that in case of notional promotion no arrears are admissible, therefore, there is illegality in the order passed by the respondents. He also submitted that the petitioner is not entitled to arrears on the principle of "No wok - No Pay".

5. The petitioner claimed a higher seniority position on the ground that he was drawing higher salary and a higher scale of pay from the date of his initial appointment in the establishment of respondent No.2. On amalgamation of different posts and creation of a new cadre, the petitioner was placed below some of the persons, who were drawing lesser pay scale than him. Consequently, he filed representations before the respondents for re-fixation of his seniority taking into consideration of the fact that he was in a higher grade of pay than the persons who were shown senior to him. The aforesaid contention of the petitioner was rightly found to be utilised and accordingly the seniority list was re-drawn. Based on that revised seniority list the review DPC was held. It recommended his promotion from a retrospective deemed date. The issue is because he was given a notional promotion from a retrospective date should he be also paid arrears for the said period.

It is true that the petitioner was not at fault for his inability to actually work in the post of Research Officer from 1992. onwards till 1996 when actually the order of promotion was passed. It is, however, required to be considered that before giving the permission for holding a review DPC the Department of Personnel and Training made it explicitly clear that the said permission may be considered for giving notional promotion but the same shall have to be without payment of arrears. Such a decision was conveyed because of clear stipulation in Clause 18.4.3 of the circular issued by the Department of Personnel and Training. A bare reading of the said clause makes it apparent that in case where an injustice is created and a junior person is promoted earlier then the said mistake and injustice shall have to be rectified by giving notional promotion from the date his juniors were promoted. The very purpose of giving notional promotion is to take care of some injustice, inter alia, because some junior has come to be promoted earlier. In this connection, reference may be made to a decision of the Supreme Court in UNION OF INDIA v. M. BHASKAR .

6. Clause 18.4.3 of the circular issued by the Department of Personnel and Training makes it categorically clear that if the officers placed junior to the officer concerned have been promoted, the concerned officer should be promoted immediately giving notional promotion from the deemed date when his juniors have been promoted but no arrears would be admissible. When the decision in the present case to give notional promotion, without any arrears, is taken on the basis of the aforesaid mandate of the circular, no fault could be found in the actions of the respondents in not making payment of the arrears to the petitioner. In my considered opinion, the principle of "No Work - No Pay" is also applicable to the facts and circumstances of the present case. While coming to the aforesaid conclusions I am fortified by the decision f the Supreme Court in State of Haryana & Others v. O.P.Gupta, wherein also the claim for arrears of pay from the date of notional promotion was rejected as the persons did not actually work in the said posts. The petitioner in the present writ petition has also not challenged the legality of the aforesaid circular, which is in the nature of guidelines and in absence of any statutory rule governing the field, the mandate of the aforesaid circular would hold the field.

7. In view of the aforesaid discussion, I hold that the action of the respondent in not paying the arrears to the petitioner for the period from 3.11.1992 to 6.3.1996, cannot be said to be illegal or unreasonable. Therefore, there is no merit in the writ petitioner and the writ petition is dismissed.