Nb. Subedar (Skt) Jasbir Singh vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 1313 Del

JUDGMENT

Mukundakam Sharma, J.

1. In this writ petition, the petitioner is aggrieved by the order passed by the respondents giving him only notional promotion to the rank of Nb. Subedar with effect from 1.11.1999 and denying him the arrears of difference of pay and allowances from the said date in the said rank.

2. The petitioner herein was enrolled in the Indian Army in the rank of Sepoy on 26.8.1981 and thereafter he was promoted to the rank of Naik and Havildar with effect from 1.4.1985 and 1.1.1988 respectively. Thereafter the petitioner was also detailed for the courses prescribed for the promotion to the rank of Nb. Subedar and the petitioner successfully completed the course and became eligible for the promotion to the rank of Nb. Subedar in the year 1996. The petitioner, however, did not and could not earn the two regimental annual confidential reports which is one of the criteria to earn promotion to the said rank. In order to enable the petitioner to earn the said criteria for promotion also, a posting order was issued from 14 Artillery Brigade posting the petitioner to 253 Medium Regiment under order dated 7th July,1998. The petitioner was also allowed to be moved out by 10th August, 1998. However, the petitioner was not released and the aforesaid order of posting of Naik Store Keeper Technical Hans Raj was cancelled and, therefore, the petitioner could not join his new posting. Consequent thereto a request to attach the petitioner to a unit within the formation Headquarters to enable him to earn another regimental annual confidential report was received from 14 Artillery Brigade as the petitioner was within the promotion zone and was lacking one regimental report. Subsequently, an attachment order in his respect was issued to 102 Medium Regiment by the respondents on 10th August, 1999. The said order of posting was again cancelled. A fresh posting order consequently was issued in respect of the petitioner on 17th August, 1999.

3. In view of the aforesaid difficulties and inability of the petitioner to satisfy the requirement, he submitted a statutory complaint on 16th August, 1999 for waiver of requirement of two regimental annual confidential reports. The said statutory complaint was considered and Chief of Army Staff granted his consent to waive off the requirement of one regimental annual confidential report in the peculiar facts of the case of the petitioner for consideration of his case for promotion to the rank of Nb. Subedar as a special case.

Accordingly the case of the petitioner was considered in the next promotion board held on 28-29th January 2000 but since the order of the Chief of Army Staff was not received by the promotion board till then, he was not declare fit for promotion.

4. In the meantime, an order was also passed setting aside the remarks and assessment of the reviewing officer from the confidential report for the year 1999 on the ground of inconsistency. After the aforesaid orders were passed by the Chief of Army Staff and by the Director General, Artillery setting aside the remarks and assessment of reviewing officer from the confidential report for the year 1999, the case of the petitioner was again considered for promotion and his case for promotion was accepted by the Board and he was promoted to the rank of Nb. Subedar with effect from 1st March, 2002 with notional seniority with effect from 1st November, 1999 when his batch mates were promoted.

5. Despite the said order the respondents did not pay the petitioner arrears of pay and allowances from the date of granting him the notional seniority on the ground that no such benefit is granted to and available to him. The said issue is, therefore, raised in the present writ petition.

6. Counsel appearing for the petitioner submitted that there was no fault on the part of the petitioner for his inability to satisfy the promotion criteria laid down by the respondents and that his case was not effectively considered by the respondents purely for lapses on the part of the respondents and, therefore, the petitioner cannot be deprived from getting the benefit of arrear pay and allowances. In support of the said contention counsel for the petitioner relied upon the decisions of the Supreme Court in Vasant Rao Roman v. The Union of India (Civil Appeal No.709/1993 decided on 4.3.1993) reported in Vol. 9 Supreme Court Service Rulings 213; Union of India v. K.V. Jankiraman ; State of Andhra Pradesh v. K.V.L.Narasimha Rao & Ors. .

7. We have considered the ratio of the aforesaid decisions. In Vasant Rao Roman (supra), the Supreme Court directed payment of all arrears of emoluments from a retrospective date in view of the fact that the employee was neither put under suspension nor any disciplinary proceeding was pending against him and that on the contrary he was made to suffer on account of administrative reasons for which the employee was not responsible. In the said case the employee, who was literate, was deputed for table work and therefore, for administrative reasons he could not complete requisite number of firing kilometers and, therefore, it was held that his claim was ignored on account of not having completed requisite number of firing kilometers.

8. In State of Andhra Pradesh (supra), it was held by the Supreme Court that in normal circumstances when the retrospective promotions are effected, all benefits flowing there from, including monetary benefits, must be extended to an officer who has been denied promotion earlier. In the said case the Supreme Court also held that there could be cases where grant of notional promotion should not legitimately give rise to a valid claim for payment of arrears of salary either on the ground that the officer did not actually hold the post at the relevant time or otherwise. It was, however, held in the facts of the said case by the Supreme Court that the said principles should not be applied to the facts of the said case as a wrong was committed in unduly delaying the finalisation of seniority and giving promotions thereto and hence denial of monetary benefits to them would be arbitrary in violation of Articles 14 and 16 of the Constitution.

9. In Union of India v. K.V. Jankiraman (supra), the Supreme Court was dealing with sealed cover procedure and in the context thereof it was held that the normal rule of "no work no pay" is not applicable to such cases where the employee although he is willing to work is kept away from work by the authorities for no fault of his. A direction was issued to pay the arrears salary on the ground that the said case was not a case where the employee remained away from work for his own reasons, although the work was offered to him.

10. Counsel appearing for the respondent, however, has relied upon the Army Instructions 84/68. Particular reliance was placed on para 3(b) of the said instructions, which provides that the promotion to the rank of Naib Subedar would be effective in anticipation from the date of assumption of the duties of such rank but pay and allowances would be admissible only after promotion is notified in the Gazette of India. It was submitted by him that since the petitioner was promoted to the rank of Nb. Subedar and assumed duties in the said rank on 1st March, 2002, therefore, the petitioner is not entitled for pay and allowances of higher rank from a retrospective date but the date on which he assumed charge of the duty of Nb. Subedar particularly when his seniority is protected and as because he would be considered for higher promotion at par with his batch mates.

11. Having regard to the submissions of the counsel for the parties, we have scrutinised the records. On appreciation thereof, we are of the considered opinion that in the present case the petitioner could not earn the requisite second regimental annual confidential reports as the respondents themselves could not execute and enforce their own posting orders passed to enable the petitioner to earn such report. Considering the said position and being conscious of their own administrative lapse, a waiver was also granted subsequently on the ground that the petitioner is entitled to such a waiver. The petitioner was also not promoted earlier as because there were certain adverse remarks against the petitioner in the annual confidential report of the year 1999. Subsequently, however, the matter was reassessed and an order was passed for setting aside the remarks of the reviewing officer from the confidential report for the year 1999 on ground of inconsistency. After passing of the said orders granting waiver and setting aside the remarks of the reviewing officer, the petitioner became fit for promotion and he has been given such promotion giving him seniority from a retrospective date, i.e., the date on which his batch mates were promoted.

12. In the facts of the present case, we are of the considered opinion that the claim of the petitioner for promotion to the post of Nb. Subedar was not accepted only because he had an average in his ACR for 1999 and also he did not possess the requisite second regimental annual confidential report. We find from the records that the aforesaid second regimental annual confidential report could not be earned by the petitioner due to administrative reasons but for no fault on the part of the petitioner. It is a settled law that in normal circumstances when the retrospective promotions are effected, all benefits flowing there from, including monetary benefits, must be granted to an officer who has been denied such promotion. It is true that there could be cases where grant of notional promotion should not legitimately give rise to a valid claim for payment of arrears of salary either on the ground that the officer did not actually hold the post at the relevant time or otherwise. The said principles cannot be applied to the facts of the present case because a wrong was done to the petitioner due to the administrative reasons for which the petitioner cannot be blamed. A wrong had been committed by not posting the petitioner which would have enabled him to earn the second regimental annual confidential report and also by recording conflicting reports in his annual confidential reports for 1999 for which the petitioner cannot be held to be responsible. The respondents accepted the wrong done inasmuch as waiver was subsequently granted of having two regimental annual confidential reports and remarks against the petitioner in the confidential report for 1999 were also set aside by the order of the Director General of Artillery. Therefore, we are of the considered opinion that the petitioner shall be entitled to not only his seniority in the post of Nb. Subedar from the date his batch mates were promoted but we also hold that the petitioner shall also be entitled to receive arrear pay and allowances in the said post from the said date.

13. In terms of the aforesaid observations and directions, this writ petition is allowed with a direction to the respondents to pay the arrear pay and allowances to the petitioner from 1st November, 1999.

14. The parties are left to bear their own costs.