Delhi High Court
Shri Bhagwan Dass vs Indian Airlines Limited And Ors. on 27 November, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.2775/2000
% 27th November, 2013
SHRI BHAGWAN DASS ..... Petitioner
Through: Mr. V. Shekhar, Senior Advocate
with Mr. Nishal Saxena, Advocate.
Versus
INDIAN AIRLINES LIMITED AND ORS. ...Respondents
Through: Mr. Lalit Bhasin, Advocate with
Ms. Ratna D. Dhingra, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition, the petitioner seeks the relief of being
appointed as an Assistant Civil Engineer in the pay band of Rs.2285-
3395/- on account of his being selected in the selection process for direct
appointment to the post which commenced as per the advertisement dated
25.7.1991 and culminated in the petitioner being selected by the selection
board on 30.6.1992 and proceedings of the selection board being approved
on 2.12.1992 by the competent authority being the Chairman-cum-
Managing Director of respondent no.1.
W.P.(C) No.2775/2000 Page 1 of 6
2. At the outset, I may state that counsel for the petitioner does
not press relief of being appointed in the pay scale of Rs.2285-3395/- and
only prays for pay scale of Rs.2005-2965/- inasmuch as the respondent
no.1 (now Air India Ltd.) had by mistake mentioned the pay scale of
Assistant Civil Engineer as Rs.2285-3395/- whereas actually the pay band
is Rs.2005-2965/-.
3. The only issue which has to be decided in this petition is the
date from which the petitioner will get employment as an Assistant Civil
Engineer in the pay scale of Rs.2005-2965/- with the respondent no.1.
There was earlier a litigation initiated by the petitioner against the
respondent no.1 being CWP No.5389/1993 and which was decided by a
judgment of a Division Bench of this Court on 27.11.1996. That was a
writ petition in which petitioner had claimed appointment to the post which
is claimed in this petition, however, the relief was not granted only for one
reason that against the petitioner certain disciplinary proceedings were
pending and he was hence not given vigilance clearance. While dismissing
the writ petition however the Division Bench made it clear that if the
petitioner is successful in departmental proceedings, then, the petitioner in
accordance with law will be entitled to the relief of appointment including
the fact that in case any person junior to the petitioner is appointed in the
W.P.(C) No.2775/2000 Page 2 of 6
meanwhile, then, the appointment of the petitioner will relate back to the
date on which his junior is appointed to the post in question. It is not
disputed before me that the disciplinary proceedings against the petitioner
culminated in favour of the petitioner inasmuch as a learned Single Judge
of this Court allowed a writ petition filed by the petitioner against the order
passed by the disciplinary authorities and the appeal filed by the
respondent no.1 against the order of the learned Single Judge was
dismissed.
4. The issue is that which is the date from which the petitioner
should be appointed. The last para of the judgment dated 27.11.1996 states
the obvious, and which is that if no order of punishment is passed in the
disciplinary proceedings or the petitioner succeeds in getting such order set
aside, then, the petitioner has to by natural consequence be entitled to the
appointment which has been granted by the Managing Director of the
respondent no.1 on 2.11.1993. Pursuant to this decision dated 2.11.1993
petitioner would have got an offer of appointment in the coming few days
thereafter, and therefore in my opinion, I can take the date of 1.12.1993 as
the date on which petitioner would have joined on being given an offer for
being appointed to the post of Assistant Civil Engineer pursuant to the
decision of the Chairman-cum- Managing Director of the respondent no.1
W.P.(C) No.2775/2000 Page 3 of 6
dated 2.11.1993. I may state that the Division Bench in the judgment
dated 27.11.1996 when it stated that appointment of the petitioner will
relate back to the date on which his junior is appointed cannot mean that by
such language petitioner's appointment date will be the date when his
junior is appointed and that the date of appointment of the petitioner is
postponed to the date of appointment of the junior of the petitioner to the
post in question, but the language was basically to put on record the fact
that any appointment in the meanwhile till the petitioner gets appointment
will not prejudice the seniority of the petitioner.
5. Accordingly, I hold that once the petitioner was successful in
the selection process for being appointed to the post of
Assistant Civil Engineer, and which process culminated in the decision of
the competent authority being the Chairman -Managing Director of the
respondent no.1 in directing appointment to be given to the petitioner as
per the decision dated 2.11.1993, petitioner will be entitled to the post of
Assistant Civil Engineer w.e.f 1.12.1993.
6. The issue which arises is that actually the petitioner joined the
post of Assistant Civil Engineer on 2.2.2000 as per order of the same date,
and notional benefits were given to him from 29.10.1997, therefore what
should be the monetary benefits which should be granted to the petitioner
W.P.(C) No.2775/2000 Page 4 of 6
from 1.12.1993 to 2.2.2000. The Supreme Court in the judgment in the
case of State of Kerala & Ors. Vs. E.K. Bhaskaran Pillai (2007) 6 SCC
524 has held that the principle, of 'no work no pay' is not an inflexible
rule/principle, and applicability of the said principle will depend upon the
facts of each case, and it is always open to the Courts to grant the pay
scales or monetary benefits although the concerned employee has not
worked at the higher post. In the present case, considering that the
petitioner could not join only on ground of the disciplinary proceedings
initiated against him, but these disciplinary proceedings culminated in
favour of the petitioner, I deem it fit that for the period from 1.12.1993 to
2.2.2000 petitioner will get 20% of the total monetary emoluments which
would have been payable to the petitioner if petitioner actually would have
been appointed on 1.12.1993. In cases such as the present there cannot be
any universal rule or a thumb rule as to what should be the amounts of
monetary emoluments to be granted and therefore I grant 20% of the
monetary emoluments taking a holistic view of the situation including the
issue of 'no work no pay', also of petitioner having to incur expenditure
before earning a higher pay and so on. However, the entire arrears which
have to be paid to the petitioner being 20% of the total emoluments for the
period from 1.12.1993 to 2.2.2000, the same will carry interest @ 5% per
W.P.(C) No.2775/2000 Page 5 of 6
annum from the date of filing of this petition and till a period of three
months from today during which period amounts which are now due and
payable to the petitioner in terms of this judgment should be paid by the
respondent no.1. In case, amounts due to the petitioner in terms of this
judgment are not paid within three months, then thereafter, petitioner will
be entitled to interest @ 7 ½ % per annum simple. In case, any amounts
have already been received by the petitioner for this period, the respondent
no.1 will be entitled to adjust such amounts for the payments to be made in
terms of this judgment.
7. In view of the above, writ petition is allowed and disposed of
by directing that petitioner will have notional benefits of appointment to
the post of Assistant Civil Engineer including seniority w.e.f 1.12.1993,
and with respect to the monetary emoluments the petitioner will be entitled
to 20% of the total monetary emoluments from 1.12.1993 till 2.2.2000 in
terms of the aforesaid observations including of interest. Parties are left to
bear their own costs.
NOVEMBER 27, 2013 VALMIKI J. MEHTA, J.
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