I.Nazir Ahamed vs The Secretary To Government
2022 Latest Caselaw 15367 Mad

                                                                                   W.P.No.2844 of 2010


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 15.09.2022

                                                   CORAM:

                                  THE HON'BLE MR. JUSTICE K.KUMARESH BABU

                                                W.P.No.2844 of 2010


            I.Nazir Ahamed
            Additional Supdt. of Police,
            Kancheepuram District,
            Kancheepuram.                                                              ...Petitioner

                                                      Vs.

            1.The Secretary to Government,
              Home (Police IA) Department,
              Fort St.George, Chennai – 600 009.

            2.The Director General of Police,
              Mylapore, Chennai - 4.                                               …Respondents


            Prayer: Writ Petition filed under Article 226 of Constitution of India, for issuance of

            Writ of Certiorarified Mandamus, to call for the records of the 1st respondent in

            connection with the impugned order passed in G.O.Ms.No.1005 Home (Police 1A)

            Department dated 26.11.09 and quash the same in so far as the notional fixation of pay

            as per Rule 17 under F/R 27 and further direct the respondents to draw and disburse

            the arrears of salary with effect from 26.11.07 to 26.11.09 and grant him all

            consequential service and monetary benefits.

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                                                                                        W.P.No.2844 of 2010

                                     For Petitioner         :   Mr.K.Venkatramani, Senior Counsel
                                                                for Mr.M.Muthappan

                                     For Respondents        :   Mr.C.Selvaraju
                                                                Additional Government Pleader

                                                      ORDER

The instant Writ Petition has been filed seeking for a Certiorarified Mandamus

to call for the records of the first respondent made in G.O.Ms.No.1005 Home (Police

1A) Department dated 26.11.2009 and quash the same insofar as notional fixation of

pay as per Rule 17 under Fundamental Rule 27 and further direct the respondents to

to draw and disburse the arrears of salary with effect from 26.11.2007 to 26.11.2009

and grant him all consequential service and monetary benefits.

2.Heard Mr.K.Venakataramani, learned Senior Counsel appearing for the

petitioner and Mr.C.Selvaraju, learned Additional Government Pleader appearing on

behalf of the respondents.

3.The case of the petitioner is that he was directly recruited as Sub Inspector of

Police on 13.10.1976 and thereafter, promoted as Inspector of Police on 07.10.1987.

He was further promoted as Deputy Superintendent of Police in February 2007. Even

though, he was fit for promotion as Additional Superintendent of Police for the year

2007-08 his name was not considered as he had not completed probation in the post of

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W.P.No.2844 of 2010

Deputy Superintendent of Police. Aggrieved by the same, the petitioner had preferred

a Writ Petition in W.P.No.2091 of 2009 and this Court by order dated 01.07.2009 had

ordered to promote the petitioner as per the seniority within the stipulated time. Based

on the said direction, the Government had issued G.O.Ms.No.1005 Home (Police 1A)

Department dated 26.11.2009, directing inclusion of the name of the petitioner in the

panel of Deputy Superintendent of Police fit for promotion as Additional

Superintendent of Police Panel for the year 2007-08 and the petitioner was also

promoted as Additional Superintendent of Police, Kancheepuram by the orders of the

Government in Police Note No.22 Home Police 1A Department dated 17.11.2009.

However, while passing the Government Order, the Government had also held that the

petitioner was eligible only for notional fixation of pay as per Rule 17 of Fundamental

Rule 27 and he is not eligible for drawal of any arrears. Being aggrieved against this

portion only, the present Writ Petition has been filed.

4.Mr.K.Venkataramani, learned Senior Counsel appearing for the petitioner

would vehemently contend that the belated promotion was not his fault and was based

on a pending disciplinary proceedings in which he has exonerated himself. When that

being so, denial of arrears, even though, his pay is notionally fixed would amount to

penalty and in support of his contention, he has relied upon a judgment of the Hon'ble

Apex Court reported in 1991 4 SCC 109. He also relied upon the orders of the

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W.P.No.2844 of 2010

learned Single Judge of this Court in W.P.No.29442 of 2012 dated 14.03.2018. He

drew the attention of this Court to paragraph No.15 of the judgement where the

promotion was denied to the petitioner therein on the fact of a criminal prosecution

which was pending and he was acquitted in the said criminal prosecution and

accepting the same, he was promoted notionally with effect from an earlier date.

However, he was denied the salary. According to him, the Court had held denial of

salary for the said period would tantamount of punishment by the Department without

any disciplinary action and hence directions to sanction the salary to the petitioner was

issued. The Government has preferred an appeal against the same which was also

dismissed. The same was also confirmed by the Hon'ble Apex Court in the SLP filed

by the Government. Hence, he had prayed for allowing the Writ Petition.

5.Countering his arguments, Mr.C.Selvaraju, learned Additional Government

Pleader appearing on behalf of the respondents would submit that the impugned order

is in conformity with the Rule 17 of the Fundamental Rule 27. According to him, the

non-inclusion of name of the petitioner was his own creation, if had he conducted

himself in such a manner that no disciplinary proceedings were initiated against him,

the said situation would not have arisen. He heavily placed reliance on the said

Fundamental Rule 27 to drive home his contention and hence submitted that the

petitioner is not entitled to drawal of any arrears on the basis of the principle 'no work

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W.P.No.2844 of 2010

no pay' and that the pay should commensurate the work.

6.I have considered the arguments advanced by the learned counsel appearing

on both sides and perused the material available on record.

7.It is an admitted case that the petitioner was given a promotion on a

retrospective date pursuant to various proceedings. The Government relies upon Rule

17 of Fundamental Rule 27 to state that he is eligible only for notional fixation of pay

and is not eligible of drawal of any arrears.

8.It would be relevant to analysis the judgments relied upon by the learned

Senior Counsel to drive home his contention to the facts of the case R17 of

Fundamental Rule 27 is inapplicable. The first judgment, he relied upon a judgment of

the Hon'ble Apex Court in the case of Union of India and Others vs.

K.V.Janakiraman and Others reported in 1991 4 SCC 109 has held as follows:

22. This sentence is preceded by the observation that when the employee is completely exonerated on the conclusion of the disciplinary/court proceedings, that is, when no statutory penalty, including that of censure, is imposed, he is to be given a notional promotion from the date he would have been promoted as determined by the Departmental Promotion Committee. This direction in the Memorandum has also to be read along with the other direction which follows in the next sub-paragraph and which states that if it is found as a result of the proceedings that some blame attaches to the officer then the penalty of censure at https://www.mhc.tn.gov.in/judis

W.P.No.2844 of 2010

least, should be imposed. This direction is in supersession of the earlier instructions which provided that in a case where departmental disciplinary proceedings have been held, “warning” should not be issued as a result of such proceedings.

23. There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post. It was urged on behalf of the appellant-authorities in all these cases that a person is not entitled to the salary of the post unless he assumes charge of the same. They relied on F.R. 17(1) of the Fundamental Rules and Supplementary Rules which reads as follows:

“F.R. 17. (1) Subject to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties:

Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence.”

24. It was further contended on their behalf that the normal rule is “no work no pay”. Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed under suspension, When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly.

25. We are not much impressed by the contentions advanced on behalf of https://www.mhc.tn.gov.in/judis

W.P.No.2844 of 2010

the authorities. The normal rule of “no work no pay” is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.

An analysis of the aforesaid judgment would clearly show that such restoration of

disallowing the pay otherwise, which he would be entitled to is unjust.

9.The second judgment relied upon by the learned Senior Counsel is that of the

learned Single Judge made in W.P.No.29442 of 2012 dated 14.03.2018. The relevant

portion of the judgment is as follows:

15. As rightly contended by the learned senior counsel for the petitioner that the ratio laid down in the case of Union of India Vs. K.V.Janakiraman and others, is directly on the issue raised in the writ petition and the claim of the petitioner is also covered by the said ratio of the Hon'ble Supreme Court of India. At the risk of repetition, it is reiterated that the petitioner had been acquitted by the Trial Court itself which has become admittedly final without any appeal and the reason for his non promotion for the year 2003, was only because of the fact that he was facing criminal prosecution and after the authority accepted the case of the petitioner and promoted him notionally with effect from 12.12.2003, it is without any justification to deny the petitioner the salary due for the period in the promoted post. The denial of salary for the said period would tantamount to punishment by the Department without any disciplinary action initiated against him. Such position is not envisaged in any service rules and therefore, the petitioner has made out a clear case for grant of relief.

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W.P.No.2844 of 2010

10.The said view of the learned Single Judge has been affirmed in Writ Appeal

No.330 of 2019 dated 01.02.2019. The SLP preferred against the same in SLP No.(C)

8262 of 2019 was also dismissed by the Hon'ble Apex Court in its order dated

17.01.2022. From the factual analysis of the aforesaid judgment, it is very clear that

such denial of salary is without any justifications and would also tantamount to

punishment by the Department without any disciplinary action initiated against them.

Hence, I am of the considered view that the Writ Petition has to be ordered as prayed

for and the order insofar as it holds that the petitioner is only eligible for notional

fixation of pay by applying Rule 17 of Fundamental Rule 27 and that he has not

eligible for drawal of any arrears is set aside and consequently, the second respondent

is directed to pay all the monetary benefits in accordance with law within a period of

four weeks from the date of receipt of a copy of this order.

11.With the above directions, this Writ Petition is allowed. However, there shall

be no order as to costs.

15.09.2022 Index: Yes/No Speaking Order/Non-Speaking Order pam

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W.P.No.2844 of 2010

To

1.The Secretary to Government, Home (Police IA) Department, Fort St.George, Chennai – 600 009.

2.The Director General of Police, Mylapore, Chennai - 4.

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W.P.No.2844 of 2010

K.KUMARESH BABU, J.

pam

W.P.No.2844 of 2010

15.09.2022

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