Union Of India (Uoi) And Anr. vs S.K. Mandal
2002 Latest Caselaw 1346 Del

JUDGMENT

S.B. Sinha, C.J.

1. The respondent herein joined services of the petitioner as a Junior Engineer (in short, 'J.E.') on or about 06.07.1974. Superceding his claim one Shri B.K. Roy was promoted to the post of Extra Assistant Director (in short 'E.A.A.') on regular basis and later on promoted to the post of Assistant Director (in short, 'A.D') on 05.08.1985 and 18.12.1997 respectively. Such promotions had been granted to the said Shri B.K. Roy out of turn. As the respondent herein at the relevant point of time was posted in remote areas of Jammu & Kashmir and North Eastern Region, he was not aware of such out of turn promotion. Admittedly as soon as he came to know the fact that the said Shri B.K. Roy, who was junior to him had been given out of turn promotion, he made a representation. As his representation had not been favorably considered, he moved the Central Administrative Tribunal, Principal Bench, New Delhi (in short, 'the Tribunal') by way of filing an Original Application, which was registered as O.A. No. 1946 of 2000.

2. The aforesaid Original Application was disposed of by the learned Tribunal vide its impugned judgment dated 22.03.2001 whereby and whereunder it has been held that the respondent being a candidate belonging to Scheduled Caste category was entitled to be promoted from the date his junior was promoted i.e., 30.09.1985. The respondents accepted their mistake and as such it was directed:-

"6. In view of the aforesaid reasons and also the judgment of the Tribunal dated 7.11.1997 in O.A. No. 2442/1996, the order dated 4.9.1998 is quashed and set aside and the respondents are directed to pay arrears of salary to the applicant with effect from the date he has been promoted as EAD/AE on notional basis i.e., 30.9.1985, within a period of three months from the date of receipt of a copy of this order."

3. Mr. D.S. Mahendru, the learned counsel appearing on behalf of the petitioner, would raise only one contention in support of this writ petition. The learned counsel would contend that the learned Tribunal committed an error insofar as it failed to take into consideration the Office Memorandum dated 10.04.1989 of the Department of Personnel & Training (in short, 'DOPT') wherein a clear embargo has been put in the matter of grant of arrears. The relevant portion of the said O.M. reads thus:-

"18.4.3. If the officer 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 FR 27 at the stage it would have reached, had he been promoted from the date of 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 in any such case a minimum period of qualifying service is 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."

The learned counsel would contend that apart from the question of arrears, the petitioners herein are not aggrieved by any other directions contained in the impugned judgment.

4. The learned counsel appearing on behalf of the respondent, on the other hand, would contend that grievance of the respondent herein is covered by a statutory rule, namely FR 27, which reads thus:-

"F.R. 27. Subject to any general or special orders that may be made by the President in this behalf, an authority may grant a premature increment to a Government servant on a time-scale of pay, if it has power to create a post in the same cadre on the same scale of pay."

5. It is not in dispute that the respondent being posted in remote areas could not know about the said out of turn promotions granted to his junior, namely, Shri B.K. Roy. No delay or laches had been attributed on his part. By reason of an Office Memorandum, which is not an Executive instruction in terms of Article 77 of the Constitution of India, the statutory right of an employee cannot be taken away. Right to get salary is akin to the Right to Property and deprivation of such constitutional Right would be permissible only in accordance with law and not otherwise.

In the instant case, although the respondent made his representation only in 1994, but till 1998, no action had been taken thereupon. Furthermore, no satisfactory explanation has been put forth for non-consideration of the respondent's representation for so many years.

6. We may, however, notice that the learned Tribunal has found that the case is covered by its earlier judgments and it has not been contended that the said earlier judgments of the learned Tribunal have been questioned or otherwise.

7. It is not a case where the respondent had intentionally refused to report for duty. It is also not a case where he had avoided to do any work, although an offer in this behalf was made. The doctrine of no work, no pay, in the aforementioned situation, cannot be said to have any application in the instant case.

8. In Rabindra Kumar Battick and Anr. v. State of Orissa and Ors. , it has been held:-

"5. Having regard to the fact that after completing the training the appellants had reported for duty but they were not taken back on duty, it cannot be said that the appellants were at fault. They were not taken back on duty on account of the erroneous action of Respondent 4. The Tribunal was, therefore, not right in denying salary to the appellant for the period from the date when they reported for duty after the training till they were taken back on duty in pursuance of the directions contained in the judgment of the Tribunal dated 4.7.1995."

9. In Union of India and Ors. v. K.V. Jankiraman and Ors. , the Apex Court observed:-

"25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.

26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted. but for the disciplinary/criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardize public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after Clause (iii) of paragraph 3 of the said memorandum, viz, "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:-

"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."

10. Yet again recently in Food Corporation of India v. S.N. Nagarkar 2002 (2) ATJ 137, the Apex Court though in a different situation while upholding an order of Punjab & Haryana High Court held:-

"15. Learned counsel appearing on behalf of the appellant submitted that this was a case where notional promotion and seniority was given to the respondent. In such a case the concerned employee is entitled to the pay scale of the promotional post only with effect from the date he joins the post and not from the date of his promotion. He sought to rely on two judgments of this Court . State of Haryana and Ors. v. O.P. Gupta and Ors. and . Paluru Ramkrishnaiah and Ors. etc. v. Union of India and Anr. On the other hand counsel for the respondent submitted that this is not a case where this Court is called upon to consider the submission urged on behalf of the appellant. In the instant case, the writ petition filed by the respondent was allowed by judgment and order dated 6th May, 1994 passed in civil writ petition No. 4983 of 1993. That order attained finality as it was not appeared from. In execution proceedings, the appellant cannot go beyond the order passed by the Court in the writ petition and therefore, what has to be considered is whether the High Court was right in holding that in terms of the order of the Court dated 6th May, 1994 passed in civil writ petition No. 4983 of 1993, the respondent is entitled to the arrears of pay and allowances with effect from the date of promotions. If the answer is in the affirmative, the question whether such relief ought to have been grant cannot be agitated in execution proceeding. We find considerable force in the submission urged on behalf of the respondent. In these proceedings it is not permissible to go beyond the order of the learned judge dated 6th May, 1994 passed in civil writ petition No. 4983 of 1993. The execution application giving rise to the instant appeal was filed for implementing the order dated 6th May, 1994 and in such proceeding, it was not open to the appellant either to contend that the judgment and order dated 6th May, 1994 was erroneous or that it required modification. The judgment and order aforesaid having attained finality has to be implemented without questioning its correctness. The appellant therefore, cannot be permitted to contend in these proceedings that the judgment and order dated 6th May, 1994 was erroneous in as much as it directed the appellant to pay to the respondent arrears of salary with effect from the dates of the promotion, and not from the dates the respondent actually joined the promotional posts.

16. The learned judge dealing with the execution application, in our view, rightly held that the order dated 6th May, 1994 disposing of the writ petition clearly entitled the respondent to arrears of pay and allowances with effect from the dates of promotion and not from the dates he actually joined the promotional posts."

11. For the reasons aforementioned, we are of the opinion that it is not a fit case wherein this Court should exercise its discretionary jurisdiction under Article 226 of the Constitution of India. This writ petition is, therefore, dismissed with costs quantified at Rs. 2,000/-.