Chander Shekhar vs Delhi Jal Board And Ors.
2007 Latest Caselaw 1460 Del

JUDGMENT

Hima Kohli, J.

1. By way of the present petition, the petitioner inter alia has prayed for the issuance of a writ of mandamus or any other writ/direction thereby directing the Delhi Jal Board, respondent No. 1 (hereinafter referred to as 'the respondent DJB') to promote the petitioner with effect from 21st March, 2003 and also to declare him senior to respondents No. 2 and 3.

2. Brief facts of the case are that the petitioner was working with the respondent DJB as Assistant Security Officer, with effect from 11th October, 1996. According to the seniority list circulated by the respondent DJB in September 2001, the petitioner was shown at Sr. No. 9 on the basis of seniority list and reservation roster. In February 2003, three posts of Security Officer fell vacant and a Departmental Promotion Committee (hereinafter referred to as 'DPC') was held in the same month to select three Assistant Security Officers for promotion to the post of Security Officer. On 21st March, 2003, the DPC promoted only two persons excluding the petitioner for the post of Security Officer. In the year 2004, a decision was taken by the DPC not to fill up the third vacancy on the ground that there were inadequate number of posts available in the feeder cadre. Another DPC was held in January, 2005 for filling up three posts of Security Officers as till that time, two more vacancies had arisen at the said post against point 8 and 9 of the reservation roster. This time, on the recommendation of the DPC, vide Office Order dated 27th January, 2005, three persons were promoted to the post of Security Officers including the petitioner. However, the name of the petitioner was shown at Sr. No. 3 after that of Mr. Jaipal Singh, respondent No. 2 and Mr. S.P. Dalal, respondent No. 3.

3. Aggrieved by the aforesaid action of the respondent DJB in showing his name at Sr. No. 3 in the seniority list, i.e. after respondents No. 2 and 3 and in not granting him the consequential benefits of promotion with effect from 21st March, 2003, the petitioner approached this Court and filed the present petition. However, during the pendency of this petition, vide Office Order dated 1st February, 2007, the respondent DJB granted the petitioner notional promotion to the post of Security Officer with effect from 21st March, 2003 and it was further stated therein that the issue of his seniority would be dealt with separately. In the Seniority List dated 22nd June, 2007 circulated subsequently, the petitioner was shown to be senior to respondents No. 2 and 3, i.e., while the petitioner is shown at Sr. No. 6, the respondent No. 2 is shown at Sr. No. 8 and the respondent No. 3 is shown therein at Sr. No. 9. Thus, the said grievance of the petitioner was also redressed by the respondent DJB. In this view of the matter, the petitioner sought to limit the relief sought in the present petition only to the grant of consequential benefits of promotion to him w.e.f. 21st March, 2003, i.e., from the date he was granted notional promotion by the respondent DJB.

4. Counsel for the petitioner contended that once the petitioner was granted notional seniority w.e.f. 21st March, 2003, the respondent DJB ought to grant him consequential benefits also w.e.f. from the said date itself. It was submitted that the petitioner was entitled to be considered for promotion on the date on which it was due, and therefore, even if he was granted promotion on a later date on notional basis but w.e.f. from the date on which he became eligible for promotion, he could not be deprived of his salary and other consequential benefits payable to him from 21.3.2003, the date from which promotion was granted to him. Reliance in this respect was placed on the following judgments:

a) Alappat Narayan Menon v. State of Kerala represented by the Chief Secretary to the Govt. Trivandrum and Ors. 1977 (2) SLR 656 (Ker);

b) Shri Charan Dass chadha v. The State of Punjab and Anr. 1980 (3) SLR 702 (PandH);

c) Shaikh Mehaboob v. Railway Board and Ors. 1982 (1) SLR 455; and

d) Bhom Singh Taxak v. State Trading Corporation of India Limited and Ors.

5. Counsel for the respondent DJB on the other hand, canvassed that the petitioner is not entitled to consequential benefits of promotion w.e.f. 21st March, 2003, on the basis of the principle of 'No work, No pay'. It was stated that since the petitioner was promoted only in the year 2005, he was entitled to the benefits of promotion only from the said date and not from the date with effect from which he was granted notional promotion. He relied on the following judgments rendered by the Supreme Court in support of his contention:

a) Virender Kumar, General Manager, Northern Railways, New Delhi v. Avinash Chandra Chadha and Ors. ; and

b) A.K. Soumini v. state Bank of Travancore and Anr.

6. The second limb of the arguments advanced by the counsel for the respondent DJB was that the decisions to fill up only two posts as against the available vacancy of three in the year 2003 and to not fill up the third vacancy even in the year 2004, was purely an administrative measure because of the absence of adequate staff in the feeder cadre and that the possession of qualification is not enough to be considered for promotion nor does it confer any automatic right on the claimant unless the post meant for promotion is decided to be filled up. It was further submitted that since the said decision to keep the third post vacant was taken keeping in view the administrative exigencies, coupled with the fact that no extraneous considerations were taken into account, no malafides could be attributed to said decision of the respondent DJB.

7. Counsel for the petitioner rebutted the arguments advanced on behalf of the respondent DJB and stated that while three persons were promoted in the year 2005, the respondent DJB had not produced anything to establish that there was any enhancement in the strength in the feeder cadre in the previous couple of years, and therefore, the contention of the respondent DJB that the petitioner was not promoted in the relevant years due to insufficient persons in the feeder cadre, cannot be sustained and that the conduct of the respondent DJB seems to be tainted with malafides and arbitrariness. He also contended that the petitioner was never considered for promotion to the post of Security Officer, though he was entitled to be so considered.

8. I have heard the counsels for the parties and have also perused the material placed on record including the original records produced by the respondent DJB.

9. The limited issue that needs to be addressed herein is whether the petitioner is entitled to any consequential benefits from the date from which notional promotion was granted to him by the respondent DJB, i.e., w.e.f. 21st March, 2003, or not.

10. An inspection of the original records of the respondent DJB shows that in the Minutes of the D.P.C. Meeting held on 7th February, 2003, a mention has been made about the scarcity of staff in the feeder grade of Asst. Security Officer, because of which out of the three vacant posts, two posts in the unreserved category were decided to be filled up and one post in the reserved post of SC was decided to be kept vacant till all the posts in the feeder cadre were filled up.

11. A perusal of the records of the respondent DJB reveals that the petitioner was duly considered by the DPC for promotion. The administrative considerations because of which the petitioner was not granted promotion in the year 2003, also find a mention in the Minutes of Meeting of the DPC held on 7th February, 2003, thereby negating any imputation of malafides or arbitrariness on the conduct of the respondent DJB.

12. There is force in the plea of the respondent DJB that the petitioner does not deserve to be given the consequential benefits of promotion from the date of notional promotion and he is entitled to claim the benefits of promotion only from the date of his actual promotion, on the basis of the principle of 'No work, No pay'. In the case of A.K. Soumini (supra), the Supreme Court relying on a series of earlier judgments including the judgment rendered in the case of Virender Kumar (supra), held as under:

8. In State of Haryana and Ors. v. O.P. Gupta and Ors. , this Court had an occasion to deal with a claim for arrears, in a case where in adjudicating a dispute relating to seniority, this Court directed the department concerned to prepare a fresh seniority list strictly in accordance with rules ignoring inconsistent administrative instructions and in compliance thereof a fresh seniority list came to be prepared and eligible persons were even given notional promotion by the department from a deemed date. When such promotees claimed for payment of arrears of salary as well, this Court rejected the claim applying the principle of 'no work, no pay' and set aside the orders of the High Court, countenancing such claims, to be illegal for the reason that the promotees did not work for the period in the promoted capacities. In coming to such conclusions this Court followed the earlier decisions reported in Paluru Ramakrishnaiah v. Union of India and Virender Kumar, G.M., N. Rlys. v. Avinash Chandra Chadha .

9. So far as the case on hand is concerned, the appellant was denied promotion in terms of the promotion policy under which it was necessary for a candidate to secure at least minimum eligibility marks of 6 1/2 at the interview and the learned Single Judge, allowed the claim only on the ground that such prescription of minimum marks was not valid. Though, the Division Bench also affirmed the same, this Court overruled the said decision and upheld such prescription. But taking into account the pendency of the appeal in this Court for considerable time, and on account of which the appellant also did not appear in the subsequent tests, benefit to promote her was not denied. The fact that her non-promotion was legal and there has been no unlawful interference with her right to promotion or to serve in the promoted category was obvious and could not be minced over or completely ignored in the light of the judgment of this Court, allowing the appeal by the Bank. While that be the position, the grant of relief to her, keeping in view the delay merely due to pendency of proceedings before court, was more in the nature of a gesture of gratis and not by way of any right, to which she was found to be entitled to. Consequently, the notional promotion given to her by the Bank with suitable revision of her pay scales itself is more than sufficient to meet the requirements, be it either in law or in equity. The further claim for payment of arrears as well, is far fetched and can have no basis in law. The Division Bench, in our view, properly approached the question in the light of the relevant guiding principles and the same could not be said to be either arbitrary, unreasonable or unsound in law to warrant of our interference.

13. On the other hand, the judgments on which reliance was placed by the counsel for the petitioner, are distinguishable from the case in hand, on facts as well as on law. While in the case of Bhom Singh Taxak (supra), the Court has not discussed the law of notional promotion at all, in the case of Shaikh Mehaboob (supra), the issue revolved around a specific circular of the Railway Board and the observations of the Court came in the context of non-promotion of the petitioner therein on account of administrative error.

14. Similarly the decision of the Punjab and Haryana High Court in the case of Charan Dass Chadha (supra), was specific to the facts of the case and in the said case, the action of the Government was found to be void, unsustainable and illegal and therefore, it was observed that by refusing benefits from the date on which the employee became entitled to promotion, the Government cannot be allowed to take benefit of its own wrong. In the case of Alappat Narayan Menon (supra) also, the employee got ignored for promotion earlier on account of some mistake committed by the Government, and therefore it was held that the employee could not be penalized for no fault of his. The said judgments are not applicable to the facts of the present case in hand.

15. The case in hand is not of administrative error on the part of the respondent DJB in neglecting/overlooking the petitioner for promotion, but of duly considering the petitioner for promotion but not promoting him on account of administrative exigencies. Thus on the principle of 'No work, No pay', the petitioner cannot claim entitlement to the benefits of promotion with effect from 21st March, 2003.

16. It is also a settled position of law that the Court ought not to interfere with administrative actions in exercise of its powers of judicial review under Article 226 of the Constitution of India unless the impugned action is tainted with malafides, is based on extraneous considerations, is arbitrary or it amounts to abuse of power or what is sometimes called, fraud on power. The trend is that of judicial restraint in interfering with administrative actions unless at least one of the conditions as mentioned above, is satisfied. However, since none of the aforestated conditions are found to exist in the present case, this Court does not deem it appropriate to exercise its discretion and interfere with the decision of respondent DJB in not granting consequential benefits to the petitioner w.e.f 21st March, 2003, i.e. the date from which he was granted notional promotion.

17. In view of the above discussion, as also the position of law, the present writ petition is dismissed as being devoid of merits. No order as to costs.