Kamal Kishore Tembhurne vs Assistant Director General (Part V) Bharat Sanchar Nigam

This petition has been filed seeking payment of arrears of salary for the period from 2.2.1996 to 14.12.2001 when the petitioner was denied promotion and working on the post of Assistant Engineer, petitioner claimed promotion on the post of Assistant Engineer at par with his junior who was promoted. He was promoted when the matter went to the Central Administrative Tribunal in O.A. No. 619/1996 and vide order dated 18.02.2002 the Original Application was disposed of directing the respondents to consider the case of the petitioner for promotion on the post of Assistant Engineer at par with his junior and on such consideration, the petitioner was promoted as Assistant Engineer w.e.f. 14.12.2001. But, as the immediate junior of the petitioner was promoted on 2.2.1996 and the petitioner was denied this promotion upto 14.12.2001, the matter again went at the instance of the petitioner for reconsideration and finally, when the entire period was treated on the principle of ''No Work No Pay'', the mater travelled to the Central Administrative Tribunal and the Central Administrative Tribunal having rejected the claim, the petitioner has filed this writ petition. Shri Vijay Tripathi, learned counsel for the petitioner submits that the petitioner''s claim at par with his immediate junior was not considered properly and therefore, the Tribunal directed for reconsideration of the matter in OA No. 619/1996 and on such reconsideration, as the petitioner was promoted prayed for all consequential benefits. In support thereof, learned counsel for the petitioner has invited our attention to the following judgments; Union of India Vs. K.V. Jankiraman, etc. etc., and State of Kerala and Others Vs. E.K. Bhaskaran Pillai, ; a Judgment of Supreme court again in the case of Virender Kumar, General Manager, Northern Railways, New Delhi Vs. Avinash Chandra Chadha and others, ; a judgment of Division Bench of this court in the case of R.B. Guhe Vs. The State of Madhya Pradesh, and another judgment of Division Bench of this court in the matter of Anand Mohan Saxena Vs. State of M.P. and another, . So also, a judgment of Single Bench of this Court in the case of Brij Mohan Dwivedi Vs. State of Madhya Pradesh, , in support of his contention.

Shri S.P. Singh, refuting the aforesaid and tried to submit that in OA No. 619/1996 the Tribunal decided the matter on 18.2.2002, the only direction was issued to consider his case and the case having been considered and benefits have been granted and now, the petitioner has not worked for the entire intervening period and has not discharged his duties of Assistant Engineer, he is not entitled to the salary for this period on the principle of ''No Work No Pay''. Shri Singh submits that the petitioner having no discharged the higher responsibility, he cannot be granted the said benefit.

The Tribunal has also rejected the claim on such consideration.

The question of payment of salary on a higher post, if an employee is denied promotion on a due date in comparison to his junior has been elaborately considered in all the cases referred to hereinabove. In para 4 of the judgment rendered in the case of State of Kerala and Others Vs. E.K. Bhaskaran Pillai, , the law has been crystallized in the following manner:

So far as the situation with regard to monitory benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in a criminal case it depends upon the authorities to grant full back wages or 50% of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded an he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due them in that case he should be given full benefits including monitory benefits subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle ''No Work No Pay'' cannot be accepted as a rule of thumb. There are exceptions where courts have granted monitory benefits also.

(Emphasis supplied)

Thereafter, this principle is followed in various other cases and finally, the law is clear to the effect that if an employee is denied promotion because of some mistake or error on the part of the department and if, it is denied chance to work on a higher post, salary for the period in question when he was denied chance to work cannot be denied to him. It is only an exceptional circumstance, when some reason which is attributable to the employee concerned, the promotion is delayed then such an action is taken. In the present case, no such exceptional situation warranting or holding the petitioner guilty in any manner brought out to the notice of this court.

Accordingly, it is the case where due to mistake or error on the part of the department, the petitioner was not denied promotion on due date at par with his junior and when promotion is denied to the petitioner on the error of the department, the petitioner is entitled for all consequential benefits and the Central Administrative Tribunal has committed error.

Accordingly, keeping in view the law laid down as indicated hereinabove and evaluating the same in the backdrop of the facts and circumstances of this case, this petition is allowed. Order impugned dated 26.4.2013 (Ann. P/1) is quashed. Treating the period, the respondents are directed to grant the petitioner his actual salary of the promoted post. Certified copy as per rules.