Delhi High Court
Ajay Pal vs Union Of India & Ors on 6 October, 2022
$~9
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 06.10.2022
+ W.P.(C) 3605/2019
AJAY PAL ..... Petitioner
versus
UNION OF INDIA & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Sourabh Ahuja, Advocate.
For the Respondents: Ms. Shiva Lakshmi, CGSC with Mr. Ritwik
Sneha and Ms. Srishti Rawat, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner impugns order dated 10.12.2018 passed by the
Central Administrative Tribunal whereby, the application of petitioner
seeking pay and allowances for the period from 15.01.2014 to
08.06.2015 has been dismissed.
2. Petitioner is an ex-serviceman, who was severely injured in the
Mine Blast on 07.06.1995 and transferred to Pension Establishment
after 17 years of service.
3. Respondent - Ministry of Railways issued an advertisement on
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17.12.2010 inviting applications from ex-servicemen, who had retired
after 15 years of service and had passed Army Class-I Certificate or
equivalent for filling up of vacancies of Helper, Cleaner, Gang-man,
Line Man etc.
4. Petitioner applied and gave the preference for being appointed
as Gate-Man, Helper, Cleaner and Gang-Man.
5. Initially, petitioner was declared as not successful on the ground
that he had not completed 22 years of military service. The rejection
was challenged by the petitioner by filing an Original Application
before the Tribunal being O.A. No. 2927/2011.
6. The Tribunal allowed the Original Application vide its
judgment dated 26.09.2013 with the direction to the respondents to
consider the application of the petitioner as physically disabled ex-
serviceman in accordance with the rules, and if found eligible be
appointed to a suitable post along with all consequential benefits, as
his batch mates except back wages. Respondents were directed to
comply with the order within a period of two months.
7. Petitioner was called for a medical examination on 20.12.2013.
The petitioner was found medically fit on 15.01.2014. On 27.02.2014,
petitioner was informed that he had been empanelled for the post of
Safaiwala.
8. As noticed hereinabove, petitioner had applied for the post of
Gate-Man, Helper, Cleaner and Gang-Man and had not applied for the
post of Safaiwala.
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9. Petitioner thereafter, filed a contempt petition before the
Tribunal contending that the petitioner was not offered the post for
which petitioner had applied and found fit. The contempt petition was
disposed of on 06.05.2015 when the respondents decided to appoint
the petitioner as a Helper. The petitioner was consequently appointed
as a Helper with effect from 09.06.2015.
10. The seniority of the petitioner was initially reckoned as of
09.06.2015. The petitioner thereafter gave representations to the
respondents to fix his seniority along with his batch mates and
requested for release of his pay and allowances for the period from
15.01.2014 (i.e. when he was found medically fit) up to 08.06.2015
(petitioner having been appointed on 09.06.2015 as a Helper).
Petitioner contended that he was available and willing to work but was
not allowed to work or join duties.
11. Since the respondents failed to accede to the representation of
the petitioner, subject execution application was filed before the
Tribunal. During the pendency of the proceedings before the Tribunal,
the respondents agreed to grant retrospective seniority to the petitioner
w.e.f., 23.09.2013 (i.e. the date when his batch mates were appointed).
12. The only issue remaining is with regard to the back wages for
the period when petitioner was found medically fit for joining the
duties i.e., 15.01.2014 up to the date when petitioner was permitted to
join the duties.
13. The contention of the respondents is that since petitioner has
only joined the duties on 09.06.2015, petitioner should not be granted
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any back wages on the principal of "no work no pay". It is further
contended that pursuant to the orders of the Tribunal, petitioner was
posted as a Safaiwala in Moradabad Division against three vacancies
which were lying vacant in Moradabad Division. Since petitioner did
not accept the same and filed the contempt petition, an affidavit was
filed pursuant to the directions of the Tribunal informing that there
were posts lying vacant of Gate-Man, Helper, Cleaner in Delhi
Division, Ambala Division and Moradabad Division, as some persons
who were appointed against those posts had not joined. Consequently,
petitioner was given appointment on 09.06.2015 as a Helper in
Ambala Division.
14. Learned counsel for the petitioner submits that the petitioner
was always ready and willing to join his duties and it is only because
of the lapse on the part of the respondents that he was not offered an
appointment. He further contends that the respondents have
themselves reckoned the seniority of the petitioner w.e.f., 23.09.2013
(i.e. the date when his batch mates have joined) consequently, there is
no ground for denial of the back wages to the petitioner w.e.f., from
the date that he was found fit.
15. Reliance is placed on the decision of a Co-ordinate Bench of
this Court in Government of NCT of Delhi vs. Rakesh Beniwal 2014
(213) DLT 748.
16. It is an admitted position that petitioner was found medically fit
on 15.01.2014. It is also not in dispute that petitioner had not applied
for the post of Safaiwala, for which an appointment was offered to the
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petitioner. It is only after the petitioner initiated proceedings of
contempt that the post of Helper was offered to the petitioner.
17. In the Original Application, the Tribunal had specifically
directed the respondents to appoint the petitioner to one of the posts
that he had applied for, if otherwise found fit. The only fitness
required post the decision of the Tribunal was the medical fitness of
the petitioner, which also the petitioner qualified on 15.01.2014.
18. Respondents had incorrectly offered the post of Safaiwala to the
petitioner as petitioner had not even applied for the same. There is no
material on record placed by the respondents to show that as on
15.01.2014 there were no posts of Helper available in any of the
Divisions.
19. The stand taken by the respondents is that pursuant to the
directions of the Tribunal, enquiry was made from various Divisions
and it was found that posts were lying vacant in the Delhi Division,
Ambala Division and Moradabad Division, since the persons
appointed against the said post had not joined.
20. The counter affidavit also does not indicate as to what was the
date when those posts became available. Consequently, it cannot be
held that as on the date when petitioner was found fit and offered the
post of Safaiwala, there was no post of Helper available in any of the
Divisions.
21. Clearly, the petitioner who had offered for joining the duties
was denied the opportunity of serving for no fault of his.
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22. The case of the petitioner is squarely covered by the decision in
Rakesh Beniwal (supra) wherein, the Co-ordinate Bench of this Court,
relying on the decisions of the Supreme Court in State of Kerala and
Ors. vs. E.K. Bhaskaran Pillai 2007 (6) SCC 524; The Commissioner,
Karnataka Housing Board vs. C. Muddaiah 2007 (7) SCC 689 and
Union of India vs. K.V. Jankiraman AIR 1991 SC 2010, held that the
principal of no work no pay, cannot be applied as an absolute
proposition and has no universal application.
23. The Court in Rakesh Beniwal (supra) has further held that if
promotion is denied to an employee because of mistake of the
administration and due to no fault of the applicant/ employee, then the
authorities are bound to pay the arrears of salary etc. upon giving him
the benefit of retrospective promotion after realizing that mistake.
24. It was further held that delay in appointment and the
consequential denial of benefits is the direct corollary of the inaction
of the petitioners (the administration). Consequently, they cannot take
advantage of their own delays in declaring result and issuing
appointment letter to deny promotion to the respondent (employee).
25. In similar circumstances, in Rakesh Beniwal (supra), this Court
directed the appointing authorities to consider the employees for
promotion from the date when their immediate juniors were appointed
and additionally grant them all consequential benefits and arrears of
pay.
26. As noticed hereinabove, the respondents have already granted
the benefit of seniority to the petitioner w.e.f. 23.09.2013 and the only
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issue is with regard to the pay and allowances for the period
15.01.2014 to 08.06.2015.
27. Petitioner was denied the opportunity to serve the respondents
w.e.f. 15.01.2014 when he was found medically fit for no fault of his
and it was only on account of the lapse of the respondents that
petitioner was denied the said opportunity. Consequently, we are of
the view that the Tribunal has erred in rejecting the application of the
petitioner for grant of pay and allowances for the period afore-
mentioned only by taking the actual date of joining into account.
28. In view of the above, the impugned order dated 10.12.2018, to
the extent, is set aside. The Respondents are directed to grant the
entire pay and allowances to the petitioner for the period 15.01.2014
to 08.06.2015 within a period of eight weeks from today.
29. Petition is allowed in the above terms.
SANJEEV SACHDEVA, J
TUSHAR RAO GEDELA, J
OCTOBER 6, 2022
nd
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