B.K. Diwan vs State of Chhattisgarh and Another

Satish K. Agnihotri, J.—Challenge in this petition is to the order dated 8-4-2008 (Annexure P/1) whereby the petitioner has been granted notional promotion w.e.f. 5-9-2000 without arrears, for the purpose of fixation of his pay scale. The facts, in brief, as projected by the petitioner are that the junior to the petitioner was promoted to the post of Principal, Higher Secondary School, on the pay scale of Rs. 8000-275-13500, on 5-9-2000. The petitioner was denied consideration and promotion without any rhyme or reason. Being aggrieved, the petitioner preferred a writ petition, being W.P. No. 6326/2005, which was disposed of on 15-12-2005 (Annexure P/2), directing the petitioner to make a fresh representation raising his grievances before the competent authority. It was further directed that if the representation is made within a period of one month, the same shall be considered in accordance with law by the authorities within a period of four months from the date of receipt of the representation. Thereafter, a representation was made by the petitioner but it was not decided within the prescribed time as directed by this Court on 15-12-2005 (Annexure P/2). Thus, a contempt petition was filed, being Contempt Petition No. 87/2004. After notice in the contempt petition, the representation of the petitioner was decided on 7-5-2007 (Annexure P/3), holding that the petitioner could not be considered and promoted on account of non-availability of his Annual Confidential Reports (for short ''the ACRs'') in the Departmental Promotion Committee (for short, ''the DPC) meeting held on 21-12-1999 and 3-3-2000. Thus, his representation was rejected. Thereafter, the impugned order dated 8-4-2008 (Annexure P/1) was passed granting notional promotion for fixation of monetary benefits w.e.f. 5-9-2000 when his junior Jagdish Prasad Patel, was promoted, without arrears of salary.

Shri Virendra Sharma, learned counsel appearing for the petitioner would submit that the petitioner cannot be denied benefit of promotion for the wrong committed by the officers as it was for the officers to produce and circulate the ACRs of the petitioner for consideration at the relevant time. Even if the same was not available, the petitioner ought to have been considered on the basis of other materials available to them. There was no departmental enquiry or criminal case pending against the petitioner. Thus, the petitioner was entitled to promotion w.e.f. the date his junior was promoted, with consequential benefits. Further, the respondents'' stand that on the principle of ''no work, no pay'' the petitioner was not entitled to arrears of salary as he has not worked on the post, is contrary to the well settled principle of ''no work, no pay''. Shri Sharma would rely on the decisions of the Supreme Court in Union of India Vs. K.V. Jankiraman, etc. etc., 9 and The Commissioner, Karnataka Housing Board Vs. C. Muddaiah,

On the other hand, Shri Ajit Singh, learned Panel Lawyer appearing for the State/respondents would submit that since the petitioner could not be considered and promoted and he had, in fact, not worked on the higher post i.e. Principal, Higher Secondary School, the petitioner is not entitled to arrears of salary on the principle of ''no work, no pay''. He would rely on a decision of the Supreme Court in Union of India (UOI) and Another Vs. Tarsem Lal and Others, and State of Haryana and Others Vs. O.P. Gupta, etc.,

Having heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto, it is indisputable as also admitted by the respondents in the order dated 7-5-2007 (Annexure P/3) that the case of the petitioner could not be considered in the DPC meetings held on 21-12-1999 and 3-3-2000 for want of ACRs of the petitioner. The relevant clause i.e. clause (5) of the order dated 7-5-2007, reads as under:

Shri Singh, in his submission, referred a circular dated 20-3-1974 (Annexure R/A) wherein the circular is applicable to those government employees who were under suspension or there was a departmental proceeding pending against them. In the circular, it was mentioned that if an employee is exonerated in the departmental enquiry, the grant of payment would be considered on the ground that he had not worked during the said period. The relevant portion of the said circular reads as under :

In the case on hand, there is no dispute that there was no suspension or departmental enquiry pending against the petitioner. Thus, the circular dated 20-3-1974 would not be applicable to the facts of the case.

The question arises in this case for consideration is that if an employee has been denied consideration and promotion on account of non-circulation of ACRs and his junior has been considered and promoted, whether on account of subsequent promotion w.e.f. that date he would be entitled to consequential arrears of salary and other benefits.

The Supreme Court, in K.V. Jankiraman, held that normal rule of ''no work, no pay'' is not applicable to the cases where the employee, although, is willing to work, is kept away from work by the authorities for no fault on his part. It was held as under:

We are not much impressed by the contentions advanced on behalf of 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.

The case of Tarsem Lal and others and O.P. Gupta and others relied on by the State/respondents is not applicable to the facts of the case as in Tarsem Lal and others, there was a Railway Board''s circular dated 15-9-1964/17-9-1964, which provided for no payment of arrears as the employee was not discharging the duties and responsibilities of the higher post. Case of Babu Lal Vs. Haryana State Agricultural Mkt. Board, relied on by the State /respondents, is also not applicable to the facts of the case as it appears that in that case, the promotion was denied due to criminal prosecution and departmental proceedings, which exonerated ultimately. In the instant case, firstly, there is no executive instructions or circular which prevents from making payment of arrears of salary, and secondly, the petitioner was denied promotion not on account of his fault, but on account of the fault of the authorities, who failed to make the ACR of the petitioner available at the time of consideration of his junior''s case by the DFC.

The Supreme Court, in Commissioner, Karnataka Housing Board, observed as under:

The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a court of law. The court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged.

We are conscious and mindful that even in absence of statutory provision, normal rule is ''no work no pay''. In appropriate cases, however, a court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering "as if he had worked". It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected.

Applying the well-settled proposition of law to the facts of the case on hand, wherein, indisputably the petitioner was denied the benefit not on account of any suspension, pending departmental proceeding or criminal case, but on account of the fact that he was not considered for want of ACRs, which were in possession of the respondent authorities. This is a gross case where if the petitioner is not granted the benefit of arrears, grave injustice would be perpetrated. It is accordingly held that the principle of ''no work, no pay'' is not applicable to the facts of the instant case, where the petitioner was denied the work, though he was eligible and was ready to discharge the duty and responsibility of the higher post i.e. Principal, Higher Secondary School, to which his junior was considered and promoted.

It is accordingly directed that the petitioner is entitled to all monetary benefits and other service benefits w.e.f. 5-9-2000 including fixation of his pensionary benefits on that basis.

Accordingly, the writ petition is allowed. No order as to costs.