Narayan Prasad Mohanty vs State of Odisha & another

Petitioner, in this writ petition, assails the order dated 22.01.2013 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack (for

short, ''the Tribunal'') in O.A. No. 2872(C) of 1999 (Annexure-1), whereby the learned Tribunal while allowing the Original Application filed by

the petitioner, directed the Collector, Cuttack-opposite party No.2 to convene a review DPC to consider the suitability of the petitioner for

promotion to the post of Revenue Supervisor on the basis of his service record till 01.07.1989. It has been further directed that the petitioner, if

found suitable for promotion, shall be deemed to have been promoted with effect from the date from which the first promotion order was issued

during 01.07.1989 to 21.07.1992. As the petitioner was superannuated by the time of disposal of the Original Application, it was directed that his

pay be notionally fixed in the promotional cadre and his pension should be revised accordingly. He has also been held to be entitled to arrears of

pension and other retiral benefits. However, the petitioner, being aggrieved by the observation of the learned Tribunal to the effect that he shall not

be entitled to the arrear salary for the period for which he has not discharged his duty in the promotional cadre, has filed this writ petition.

It is the contention of Mr. Tripathy, learned counsel for the petitioner that opposite party No.2-Collector, Cuttack gave promotion to 15

numbers of Revenue Inspectors in between 01.07.1989 and 21.07.1992 to the cadre of Revenue Supervisor ignoring the case of the petitioner.

The Revenue Inspectors, who got promotion, were not eligible to be considered for promotion, as they had not passed preliminary accounts

examination as required under Rule-12 of the Orissa District Revenue Service (Method of Recruitment and Conditions of Service) Rules, 1983.

However, the petitioner by then had completed R.I. training from the Training Institute at Khalikote and passed the final examination as per the

Board of Revenue notification dated 26.11.1983. He had also passed Preliminary Accounts Examination (Group-A) as per the Board of Revenue

notification dated 30.10.1990. Learned Tribunal, taking into consideration the rival contentions of the parties, has rightly held that non-

consideration of the case of the petitioner for promotion to the cadre of Revenue Supervisor was not proper and justified. Hence, the learned

Tribunal directed the Collector, Cuttack to convene a review DPC to consider suitability of the petitioner for promotion to the cadre of Revenue

Supervisor on the basis of his service record till 01.07.1989, i.e., the initial date on which some Revenue Inspectors were given promotion to the

cadre of Revenue Supervisor. Learned Tribunal further directed the opposite parties to promote the petitioner with effect from the date from which

first promotion order was issued during the period from 01.07.1989 to 21.07.1992, if found suitable. Since the petitioner had retired from

government service by the date of pronouncement of the impugned order, his pay was directed to be notionally fixed in the promotional cadre and

his pension be accordingly revised and arrears of pension and other retiral benefits be released in his favour. However, learned Tribunal most

erroneously directed that the petitioner would not be entitled to arrears of salary for the period for which he had not discharged his duties in the

promotional post. Learned counsel for the petitioner submitted that the case of the petitioner was ignored by the authorities and he was not given

promotion for no fault of his. He was illegally deprived from discharging his duties in the promotional cadre, although he was ready and willing for

the same. When learned Tribunal deprecated the action of the opposite parties in ignoring the case of the petitioner for promotion and directed to

consider the case of the petitioner for promotion with effect from the date his counterparts were given promotion, he should not have been

deprived of getting financial benefits. In support of his case, learned counsel for the petitioner relied upon a decision of the Hon''ble Supreme Court

in the case of State of Maysore -v- C. R. Seshadri, reported in AIR 1974 SC 460 and a decision of this Court in the case of Amarendera Kumar

Dash -v- Orissa Forest Development Corporation and others, reported in 81 (1996) CLT 393. He further relied upon an un-reported decision of

this Court passed in W.P.(C) No. 18497 of 2015 (State of Orissa and others -v- Gadadhar Parida and another), in which this Court considering

the fact that the petitioner was deprived of his promotional benefit illegally, granted the same with consequential financial benefits. Learned counsel

for the petitioner further placing reliance on a decision of the Hon''ble Supreme Court in the case of Union of India etc. -v- K.V.Jankiraman and

others, reported in AIR 1991 SC 2010 submitted that whether an employee will be entitled to actual monetary benefit or not depends upon the

facts and circumstances of each case. It has been held therein that the normal rule is ""no work no pay"" and hence, a person cannot be allowed to

draw the financial benefit of the post, in which he has not discharged his duty. To allow him to draw the financial benefit is against the elementary

rule that the person is to be paid only for the work he has done and not otherwise. But the same has been negatived by the Hon''ble Supreme

Court in Jankiraman (supra) holding therein that the normal rule of ""no work no pay"", is not applicable to the case, where the employee although

wiling to work is kept away from the work by the authorities for no fault of his. This is not a case where the employee remained away from work

for his own reason although the work was offered to him, but he was deprived of the same although he was entitled to. Hence, he prayed for

setting aside the impugned finding to the extent of refusing actual financial benefits and for a direction to release the same in favour of the petitioner.

Per contra, Mr. Sahu, learned Additional Government Advocate for the State-opposite parties stoutly refuted the submissions of learned

counsel for the petitioner. It is his submission that the ratio decided by the Hon''ble Supreme Court in the case of Jankiraman (supra) and by this

Court in the case of Amarendra Kumar Dash (supra) and the un-reported decision in the case of Gadadhar Parida (supra) are in a different

context. In those cases, promotion of the employees were held up either due to the criminal proceeding or disciplinary proceeding pending against

them although their results were kept in sealed cover. Further, in the case of Jankiraman (supra), the employee had worked in the promotional post

after being promoted pursuant to the direction of the Court. He, however, relied upon the decision in the case of Union of India -v- B.M.Jha,

reported in (2007) 11 SCC 632 and in the case of Nirmal Chandra Sinha Vs. Union of India, reported in (2008) 14 SCC 29 and submitted that in

case of notional promotion from retrospective date, the employee cannot be entitled to the arrears of salary automatically, particularly when the

incumbent has not worked in the promotional post. He, therefore, submitted that learned Tribunal has taken a correct view, which is supported by

the rule of law. Hence, he prayed for dismissal of the writ petition.

The factual aspect as narrated herein above is not disputed. Whether an employee is entitled to the arrears of salary, in case he was notionally

promoted from a retrospective date, is the question to be adjudicated in this writ petition. In the case of C. R. Seshadri (supra), Hon''ble Supreme

Court held as follows:-

The length of this litigation has really disappointed the petitioner by denying him the enjoyment of likely promotion. He retired the day before the

judgment of the High Court. No one in service would be affected by the allowance of the petitioner''s claim and what was a service issue has now

been reduced to one of money payment. A retired government official is sensitive to delay in drawing monetary benefits. And to avoid posthumous

satisfaction of the pecuniary expectation of the superannuated public servantnot unusual in government-we direct the appellant to consider

promptly the claim of the petitioner in the light of our directions and make payment of what is his due-if so found-on or before April 15, 1974. The

government''s inexplicable indifference in not placing before the Court the relevant rule regarding promotion to the post of Deputy Secretary merits

the order that the appellant pay the costs of the petitioner first respondent, for, the wages of winner''s sloth is denial of costs, and something more.

(emphasis supplied)

In the case of Jankiraman (supra), it is held as under:-

The normal rule of ""no work no pay"" is not applicable to cases 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.

In the case of Jankiraman (supra), the Hon''ble Supreme Court was considering a situation ""when an employee is due for promotion, increment etc.

but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in

a sealed cover to be opened after the proceedings in question are over."" Such is not the case at hand. In Jankiraman (supra), it is however held as

follows:-

.....An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a

selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished

record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of

a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination

when in the matter of promotion, he is treated differently....

Further, the case Amarendra Kumar Dash (supra) is also a case where the case of the petitioner for promotion was not considered due to

pendency of disciplinary proceeding. This Court took into consideration the case of Jankiraman (supra) and the case of State of Madhya Pradesh

and another -v- Syed Naseem Zahir and Others, reported in AIR 1993 SC 1165 and held as follows:

When an employee eager to work in a promotional post, is denied or deprived to do so because of pendency of a proceeding he faces

humiliation and ultimately when he is given promotion on being totally exonerated, his grievance is mitigated and reputation restored. But the

mitigation and restoration are not complete if he is denied the financial benefits9 The agony of the employee subsists, the humiliation continues and

the penury pursues. .... From the aforesaid analysis, it becomes absolutely clear that once an employee is promoted with effect from a

retrospective date on being completely exonerated, he cannot be deprived of the pay and other benefits to which he would have been entitled had

he in fact been promoted to the said post on the date on which he has been subsequently promoted. Any condition imposed to the effect that the

said employee would not be entitled to pay and allowances as a result of the promotion, is illegal and unsustainable. .... Grant of back wages is not

intrinsically inherent when retrospective promotion is granted..... We may hasten to add that in cases where promotion is denied illegally and later

on notional promotion is given, with retrospective effect, without financial benefits the same would be arbitrary. The principle behind this is that no

one can be penalised for no fault of his and the employer cannot take advantage of an illegal action.

Resultantly, this Court held that the petitioner was entitled to financial benefits although he had retired by the time, the case was decided. The same

is the position in the un-reported decision of Gadadhar Parida(supra).

Denial of promotion due to pendency of disciplinary/ criminal proceeding and non-consideration of promotion of an employee, albeit having

eligibility and suitability, are two different circumstances and eventualities in service. In the former eventuality, normally the result of the DPC is kept

in a sealed cover till finalization of the disciplinary/criminal proceedings and the promotion of the employee depends upon the said

disciplinary/criminal proceeding. But in the latter eventuality, the employee stands in a better footing. The employer has no legal constraint when

refuses to consider the case of the eligible and suitable employee for promotion. Such an action is depreciable being arbitrary and unreasonable.

Thus, the ratio decided in Jankiraman (supra), Syed Naseem Zahir (supra) and C.R.Seshadri (supra) by the Hon''ble Supreme Court as well as in

Amarendra Kumar Dash (supra) by this Court, are applicable to the case at hand.

Admittedly, the petitioner has not worked in the promotional post, as by the time the impugned judgment was passed by learned Tribunal he

was superannuated from service. The Hon''ble Supreme Court in the case of B.M. Jha (supra), taking into consideration the case of State of

Haryana and others -v- G.P. Gupta and others, reported in 1996 (7) SCC 533 and A.K. Soumini -v- State Bank of Travancore & another,

reported in JT 2003 (8) SC 35, held that in the case of a notional promotion from a retrospective date, it cannot entitle an employee to the arrear

salary as the incumbent has not worked in the promotional post. The said observation was made applying the principle of ""No Work No Pay"". In

the case of A.K. Soumini (supra), the Hon''ble Supreme Court relying upon the case of G.P. Gupta (supra) came to hold that ""notional promotion

given to the employee with suitable revision of such pay scales itself is more than sufficient to meet the requirements, be it either in law or in equity.

The further claim for payment of arrears as well, is farfetched and can have no basis in law"". In neither of the above three cases, the case of

Janakiraman (supra) nor the case of Syed Naseem Zahir (supra) have not been taken into consideration. In the case of B.M. Jha (supra), the

Hon''ble Supreme Court has not discussed and decided any law. It onlyh followed the ratio decided in A.K. Soumini (supra), which was in a

different context altogether. In the said case, the employee while challenging her non-selection for promotion, had also incidentally questioned the

provision in the promotional policy which required the candidates to get at least a minimum 61/2 qualifying marks in the interview. But, in the instant

case, the petitioner appears to have the eligibility and suitability for promotion, as pursuant to the direction of learned Tribunal in the impugned

judgment, a review D.P.C. was held and he was given notional promotion with retrospective effect. In the case of Nirmal Chandra Sinha (supra),

the Hon''ble Apex Court held that an employee has no right to the promotional post from the date it falls vacant.

The normal rule of service jurisprudence is ""no work no pay"". Hence, a person cannot be allowed to draw the benefits of a post in which he has

not discharged his duties. Discharging the duties in a post is the sine qua non for drawing the salary in that post. Further, an employee has no right

of promotion. He has only right to be considered for promotion. Seniority-cum-merit is the basic principle in the case at hand for promotion to the

post of Revenue Supervisor. Mr. Sahu, learned Additional Government Advocate submitted that the Revenue Inspectors who were promoted to

the cadre of Revenue Supervisor in between 01.07.1989 and 21.07.1992 were senior to the petitioner. Several factors are to be considered to

determine the suitability of an employee for promotion by the Departmental Promotion Committee. Each case has to be examined on its own merit

while considering promotion. Thus, the direction of learned Tribunal to give notional promotion to the petitioner from a retrospective date, does not

entitle him to the arrear salary automatically. It has to be considered on its own merit. In the case of C. R. Seshadri (supra), the Hon''ble Supreme

Court while discussion the scope of judicial review in the matter of promotion held as follows:-

While we agree that the High Court has been impelled by a right judicial instinct to undo injustice to an individual, we feel that a finer perception

of the limits of judicial review would have forbidden it from going beyond- directing the Executive to reconsider and doing it on its own, venturing

into an area of surmise and speculation in regard to the possibilities of escalation in service of the appellant. Judicial expansionism, like allowing the

judicial sword to rust in its armoury where it needs to be used, can upset the constitutional symmetry and damage the constitutional design of our

founding document.

In the case at hand, there is no material on record to come to a conclusion as to whether the petitioner was senior to those 15 Revenue Inspectors,

who were given promotion in between 01.07.1989 and 21.07.1992. He has also not made out any case whether he was suitable to be promoted

to the post of Revenue Supervisor ahead of others. He has only pleaded a case of discrimination.

In the light of the discussions made above, entitlement of the petitioner for arrear salary is a matter of consideration by the authorities. We refrain

ourselves to intrude into the domain of the Executive at the cost of judicial review. As such, we are constrained to disagree with the finding of the

learned Tribunal and set aside the finding to the extent that the petitioner is not entitled to arrear salary for the period for which he has not

discharged his duties in the promotional cadre. Entitlement of the petitioner to the arrear salary depends upon various factors which can only be

examined by the competent authority.

The writ petition therefore succeeds. The opposite parties are directed to consider the entitlement of the petitioner for the arrear salary in view

of his promotion to the post of Revenue Supervisor in the light of the discussions made above and take a decision and communicate the same to

the petitioner as expeditiously as possible, preferably within a period of four months from today. If the petitioner is held to be entitled to the arrear

salary, the actual financial benefit shall be released in his favour within a period of two months from the date of taking such decision. The writ

petition is allowed to the extent stated above.