Brij Mohan Dwivedi vs State of Madhya Pradesh

Dipak Misra, J.

The centripodal grievance of the petitioner is whether he would be entitled to the differential sum in the promotional post, though he had worked in the post, namely, Accounts Officer in the pay scale of Rs. 8000-275-13500/-. This being the short and straight away question the facts which are requisites to be stated may be encapsulated herein.

It is not disputed that as the petitioner was senior to one Kuldeep Singh Chouhan as per gradation list dated 1.4.97 contained in Annexure-P-1. The said gradation list relates to the Junior Grade Officers of the M.P. Accounts Service as on 1.4.97. It is not disputed at the Bar that the case of said Kuldeep Singh Chouhan was considered but the case of the petitioner was not considered because of non-availability of the ACR. In paragraph 3 of the return it has been stated as under :-

It is respectfully submitted that the petitioner was considered for grant of Junior Scale of Pay, but because of non-availability of relevant A.C.R. the case of the petitioner was referred for consideration by circulation of Departmental Promotion Committee. The petitioner was ultimately considered and was granted the benefit of Junior Scale by order dated 22.3.2001 and he was directed to place above Shri Kuldeep Singh Chouhan in the gradation list. It is respectfully submitted that, since the petitioner has not discharged his duties towards the promoted post proforma fixation was effect the order that he will not be entitled for arrears.

It is urged by Mr. Pathak, learned counsel for the petitioner that for no fault of the petitioner his case was deferred by the Departmental Promotion Committee met as a consequence of which he was promoted later on 22.3.2001. Though the petitioner has been given the benefit of seniority, he has been denied the benefit of differential pay scale.

The crux of the matter is that whether the petitioner should have been denied the benefit of pay scale on the foundation of "No work, no pay". Mr. Pathak would like this Court to appreciate that the case of the petitioner could have been considered, but was not done as ACRs were not available as per the circular dated 16.07.96 (Annexure-P-7). It is a case where the factual matrix does not make it clear that the petitioner suffered not because of any fault of his but because of the fault of the authorities as his case was deferred due to lack of alertness on the part of the authorities. Mr. Pathak has referred to a three Judge Bench decision rendered in the case of Union of India Vs. K.V. Jankiraman, etc. etc., wherein the Apex Court while dealing with the F.R. 17(1) and the concept of sealed cover procedure, ultimate exoneration and benefit of promotion expressed the view as under:

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 privatations 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.

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.

We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated from disciplinary/ criminal proceeding he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum "However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so.

To this extent we set aside the conclusion of the Tribunal on the said point.

Mr. Modh and Mr. Yadav, learned counsel appearing for the State have placed reliance on the decision rendered in the cases of Virender Kumar, General Manager, Northern Railways, New Delhi Vs. Avinash Chandra Chadha and others, and State of Haryana and Others Vs. O.P. Gupta, etc., . In my considered opinion both the aforesaid citations are distinguishable. In the case of Virendra Kumar (Supra) the two Judge Bench of the apex Court expressed the view in paragraph 15 as under: "15. As regards the emoluments of higher posts with retrospective effect, we find that the High Court had categorically denied the same to the respondents even on the basis of their claim to higher grades in Class III posts. Further, even the entitlement of the respondents to the higher grades in Class III posts as per the directions of the High Court was on the basis of the quota and rota rule which in itself is both inequitable and irrational. Time and again, the rule has been criticized on account of the absurd result to which it leads, viz. the deemed appointments have to be given to the concerned employees even from the dates when they were not in service and probably when they were still in their schools and colleges. We are informed across the bar that this is the situation even with respect to some of the respondents herein. The quota and rota rule had to be worked out in the present case from the year 1954 as per the direction of the High Court and the Tribunal. There is, therefore, neither equity nor justice in favor of the respondents to award them emoluments of the higher posts with retrospective effect. It is for this reason that we are of the view that the decisions of this Court such as in P.S. Mahal v. Union of India directing the payment of higher emoluments with retrospective effect on account of the deemed promotions of earlier dates will not be applicable to the facts of the present case and have to be distinguished."

If the ratio of the aforesaid case is understood in proper perspective it is clear that their Lordships were of the view that the quota and rota rule only became effective from the year 1954 and hence, there was neither equity nor justice in favor of the respondents to award emoluments of the higher posts with retrospective effect. In the case of O.P. Gupta (supra) the higher pay was denied as there was cavil over the factum of seniority and notional promotion was given. In the aforesaid case the law laid down in the case of Jankiraman (supra) was distinguished on the backdrop that the ratio has no application to the case where the claims for promotion are to be considered in accordance with the rules and the promotions are to be made in pursuant thereof. The law laid down in the case of O.P. Gupta (supra) is distinguishable as there was certain aspects were taken note of and Rule 9 of the Rules as that was a condition precedent but in the case at hand the factual scenario is differently depicted and the junior was considered and the case of the senior was deferred solely on the ground that the ACR was not available. In the counter affidavit nothing is perceivable against the petitioner that it was his fault. In view of the aforesaid the concept of "no work no pay" would not be attracted. It is definite that the petitioner was deprived to work in the promotional post due to laxity on the part of the respondents and hence, no blame can be put on him. Accordingly it is directed that the petitioner shall be paid the differential amount from the date of receipt of the order passed today. Keeping in view the financial crunch which has been assiduously put forth by the learned Government Advocate, no interest is granted.

The writ petition is allowed to the extent indicated above. There shall be no order as to costs.