M.P. Tiwari vs Union Of India And Ors.
2013 Latest Caselaw 5071 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 6521/1998

%                                                       6th November, 2013

M.P. TIWARI                                      .... Petitioner
                          Through: Ms. Jyoti Singh, Sr. Advocate with
                          Ms. Saahila Lamba, Advocate

                          versus

UNION OF INDIA AND ORS.                   ..... Respondents

Through: Mr. S.K. Taneja, Sr. Advocate with Mr. Rajesh Gupta, Mr. Harpreet Singh, Advocates for respondent Nos. 3 to 6.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Irrespective of the cause of action pleaded in the writ petition and the

prayer made in the same, before me today on behalf of the petitioner what is

argued and relief claimed, is the entitlement of the petitioner to stand

promoted as an Assistant Engineer with the respondent no. 3/employer in

terms of the selection process of February 1984. Since the petitioner has

retired on 30.6.2003, a higher monetary emolument package taking the

petitioner as having been promoted w.e.f 1.7.1983 as an Assistant Engineer

is claimed. During the course of argument it is agreed that the monetary

package to the petitioner be granted from a period of three years prior to

filing of the present writ petition and till the petitioner retired i.e on

30.6.2003.

2. Respondent no. 3/employer stated that though the petitioner was

selected as an Assistant Engineer in the selection process which culminated

in February 1984, petitioner cannot be given the promotion and monetary

benefits as an Assistant Engineer on the following grounds:

(i) There was a settlement to be entered into between the parties on

account of a court case filed by the petitioner being pending at the time of

the selection process which took place in February 1984 and the selection

process did not finalize qua the petitioner on account of petitioner‟s

objections to the settlement terms. Hence it is argued that the petitioner

cannot get benefit of the promotion post of Assistant Engineer.

(ii) Petitioner has not worked in the higher post and, therefore, no

monetary emoluments of the higher post can be granted to the petitioner

because of the principle of "no work no pay".

(iii) Petitioner pursuant to the promotion order had to join at a particular

place and the entitlement to the promotion is only on the petitioner joining

the particular place, but since the petitioner did not join at his place of

posting petitioner cannot get the benefit of promotion.

3. The facts of the case are that petitioner after working in Indian Air

Force in the Electrician cadre joined the Badarpur Thermal Power Plant

Project of the Central Government in 1972. Petitioner‟s original

appointment was on a work charged basis in the Badarpur Thermal Power

Plant, however, on the project coming to an end, and on account of a

settlement between the workers and the management, petitioner was offered

regular employment in the post of Foreman Grade-III by respondent no.3‟s

letter dated 20/21.11.1978 and which petitioner accepted by his acceptance

letter dated 16.4.1979. Petitioner, therefore, became employee with the

respondent no. 3 as a regular employee in the post of Foreman Grade-III

w.e.f 16.4.1979. From the post of Foreman Grade-III the petitioner was

subsequently promoted to a Foreman Grade-II and Foreman Grade-I and

which are not issues before me, but the issue is of promotion of the

petitioner from the post of Foreman Grade-I to an Assistant Engineer in

terms of selection process which culminated by preparing of a merit

list/panel after interviews were concluded on 7-8.2.1984. Petitioner after

having cleared the written test, and which was one of the requirements for

qualifying to the promotion post of Assistant Engineer, was called for

interview in terms of letter dated 2/3.2.1984 of the respondent no. 3.

Petitioner, however, in spite of being empanelled in the select list of

successful candidates was denied the promotion to the post of Assistant

Engineer and hence this writ petition was filed in December 1998.

4. During the course of hearing, I put it to the learned senior counsel for

the respondent no. 3 that whether there exists any pleadings on record of the

respondent no. 3 in this Court that the petitioner‟s name did not find mention

as a selected candidate in the panel prepared pursuant to the selection

process of February 1984, and in response to this query the learned senior

counsel for the petitioner had no option but to state that no such pleadings

are made in this Court by the respondent no.3. Another query was also put

as to whether respondent no. 3 has filed the merit list/panel which is

prepared in terms of selection proceeding concluded in February 1984 for

the post of Assistant Engineer, and again in reply to which it is admitted that

no select list of the selected persons as Assistant Engineers pursuant to the

selection process culminated in February 1984 has been filed on behalf of

the respondent no. 3. Therefore, in my opinion, it cannot be disputed that

the petitioner in fact was successful in the selection process for the post of

Assistant Engineer by clearing the written test and the interview. Petitioner,

therefore, was entitled to be appointed as an Assistant Engineer in terms of

the selection process of February 1984. Let us now examine the defences

which have been argued before me on behalf of the respondent no. 3 to

dispute the claim of the petitioner in the writ petition and alleged

disentitlement of the petitioner to the promotion post of an Assistant

Engineer culminating by preparing of the select list after the interviews were

concluded on 7-8.2.1984.

5. Before me, on behalf of the respondent no. 3, it is not disputed that

respondent no. 3 sent a letter dated 8.6.1984 to the petitioner with which the

terms and conditions of settlement with the petitioner were annexed. This

letter dated 8.6.1984 along with the annexed terms and conditions reads as

under :

      "Ref.No. 01:Pers:PF:                                8.6.1984

      Sh. B.P. Thakur
      Chief Personnel Manager
      NTPC
      NEW DELHI - 110044

Subject : Case of Shri M.P. Tiwari, Foreman, Badarpur Division

Dear Sir,

This has reference to the discussions Shri H.S. Bhattal, Deputy Manager (Law) had with the undersigned on 1.6.1984 and the subsequent discussions with Shri M.K. Kaul, Assistant Law Officer on 6.6.1984 regarding the terms of settlement and the modalities thereof, for the court case of Shri M.P. Tiwari (suit No. 23/77).

I am directed to inform you that the terms of settlement of the court case should be as per the terms enclosed herewith;

and that a joint application should be moved by both the petitioner and the respondent to the court with a view to obtaining this mutually agreed terms of settlement as an order of the Court itself.

In case of any doubt the matter can be discussed in Corporate Personnel.

                                                   Yours faithfully,


                                             ( R.N. Ramji )
      Encl: as above                  MANAGER (PERSONNEL)"

      "Terms of settlement

1. Consequent upon his qualifying in the interview held on 7 & 8th February, 84, the Management agrees to th

promote Sh. M.P. Tiwari to the post of Asstt. Engr.

(Erection) in the pay scale of Rs. 1000-50-1300-60-1900 w.e.f. 1.7.1983 with posting initially at Rihand Project of NTPC.

2. On the above promotion, Sh. M.P. Tiwari would be allowed the same basic pay w.e.f 1.7.1983 in the pay scale of Asstt. Engr. Which his contemporary namely Sh. R.S. Rathore has been getting from the said date with next date of increment falling due on 1.7.1984.

3. For the period up to 30.6.1983, Sh. Tiwari will get the pay and allowances as admissible for the post of Foreman Gr.-II which he would have held at Badarpur Division, but for his refusal vide his letter dated ..........

4. For the period beyond 30.6.1983 and up to the date of his relief from Badarpur Division, Sh. Tiwari would draw the same pay and allowances as mentioned at para 3 above. On his joining at Rihand Project after availing the joing time as per rules, he would be allowed the difference of pay and allowances

admissible to him as Asstt. Engr. For the period between 1.7.1983 and his actual date of relief from Badarpur Division as well as the pay and allowances admissible to him for the post of Asstt. Engr. On and from his date of relief from Badarpur Division."

(emphasis added)

6. It is argued before me on behalf of respondent no.3 that petitioner did

not accept the terms of settlement and on the contrary modified the offered

terms in terms of his letter dated 18.6.1984. When queried that what are

these „modified‟ terms of settlement, all that is pointed out to me is that at

the end of para 1 petitioner in hand had made an endorsement "with posting

initially at". It is contended that it is because of the terms and conditions of

the settlement not being agreed by the petitioner, that the petitioner is

disentitled to seek promotion to the post of an Assistant Engineer.

7. In my opinion, the argument urged on behalf of respondent no.3 by

contending that since there was no finality to the terms and conditions of the

settlement in view of the letter dated 8.6.1984 of the respondent no.3 and the

response thereto of the petitioner dated 18.6.1984, is an argument without

merit inasmuch as the promotion of a person takes place not because of the

exchange of correspondence but because of that person being successful in

the selection process for the post in question. Petitioner, as stated above, was

successful for being promoted to the post of Assistant Engineer in terms of

the selection process of February 1984 and therefore even if there was no

settlement as is being contended by respondent no.3 that will not take away

the finality of the recommendations of the DPC. Once the recommendations

of the DPC are final then all the necessary consequences thereof flow

including of giving the petitioner promotion to the post of Assistant

Engineer, and which promotion post has been given to various other persons

in terms of the selection process of February, 1984. At best, if the settlement

was not final, however that settlement only will not be final, but the same

cannot mean that the recommendations of DPC are also not final.

Recommendations of DPC are necessarily final, and all that I may state is

that it is not even the case of respondent no.3 as per the pleadings in this

Court that the recommendations of DPC are not final, more so because

various other persons have been promoted to the posts of Assistant

Engineers in terms of the same recommendations of the DPC.

8. The issue then arises is that has the petitioner refused appointment to

the promotion post of the Assistant Engineer as argued on behalf of

respondent no. 3 by refusing to join the place of posting. Even this

argument is without merit because there is admittedly no promotion order

issued against the petitioner asking him to join at a particular place. If the

petitioner in terms of the promotion order had refused to join at a particular

place and that was the pre-condition to the grant of promotion, then the

respondent no.3 could have argued before me that petitioner is estopped

from claiming promotion to the post of Assistant Engineer, but once no

promotion order or any other order is issued against the petitioner asking

him to join at a particular place then I fail to understand how failure of the

petitioner to join at a particular place can be taken against the petitioner to

deny him benefit of the selection which became final in terms of the DPC of

February 1984.

9. So far as the issue of application of principle of „no pay for no work is

concerned‟, this has been clarified by the Supreme Court in the judgment of

State of Kerala & Ors. Vs. E.K. Bhaskaran Pillai (2007) 6 SCC 524

wherein Supreme Court has said that principle of „no pay for no work‟ is

not an absolute principle and it depends on facts of each case as to what

reliefs can be granted to a person. It has been held that the rule of „no pay

for no work‟ is not an inflexible rule and if a person because of fault of the

management is denied the benefit of promotion post it cannot be held that

the person will not be entitled to benefits of the particular post. The ratio of

this judgment will squarely apply because there is no fault attributable to the

petitioner.

10. I may also note that there is no delay and laches in filing this petition

because once the recommendations of DPC became final, and documents

were issued in the office of respondent no.3 itself to this effect, and filed at

running pages 286-287 showing that petitioner was in fact promoted as an

Assistant Engineer w.e.f 1.7.1983, I would not like to hold the petition as

barred by delay and laches unless there was a specific refusal issued to the

petitioner denying the benefits of the post of Assistant Engineer, and only

when cause of action would have accrued to the petitioner to approach the

Court. In the absence of any refusal addressed to the petitioner, that he

would not be promoted to the post of Assistant Engineer in spite of his being

put on the merit list panel as per the DPC of February, 1984, there was no

need of the petitioner to approach the Court, albeit the petitioner will only be

entitled to monetary emoluments for the promoted post for a period not more

than three years prior to filing of the present writ petition.

11. The issue then arises is that what should be the relief which should be

granted to the petitioner in this case. I have put to learned senior counsel for

the petitioner, and who has accordingly taken instructions from the petitioner

who is present in Court, that petitioner will be satisfied on his getting 1/3rd of

the monetary emoluments as payable to an Assistant Engineer for 3 years

prior to filing of the present writ petition. This entitlement of 1/3 rd of the

monetary emoluments as payable to the Assistant Engineer will of course be

payable till the time the petitioner retired on 30.6.2003. Therefore, applying

the ratio of E.K. Bhaskaran Pillai's case (supra) I hold that in the facts of

the present case since petitioner without any fault of his has been denied the

promotion post of Assistant Engineer, and at no point of time the petitioner

refused to work at the post of Assistant Engineer, petitioner will be entitled

to 1/3rd of monetary emoluments payable for the post of Assistant Engineer

for the period of 3 years prior to the filing of the writ petition and till the

date of his retirement on 30.6.2003.

12. In view of the above, the writ petition is allowed. Petitioner will be

granted 1/3rd of the monetary emoluments payable to him as if he was an

Assistant Engineer for the period of 3 years prior to the filing of the writ

petition and which monetary emoluments will be payable till the retirement

of the petitioner on 30.6.2003. The monetary package be paid to the

petitioner within a period of three months from today, and if not paid within

three months, then petitioner thereafter will be entitled to interest at 7 ½ %

per annum simple till the amount is paid. Parties are left to bear their own

costs.

NOVEMBER 06, 2013                                   VALMIKI J. MEHTA, J
godara