Rakesh Verma vs Government of NCT and Another

Valmiki J Mehta, J.—By this writ petition, the petitioner who was an employee of the respondent no. 4 school was given benefit of promotion to the post of Head Clerk w.e.f. 31.03.1994, (the effective date given by the respondent no.2 for promotion) has sought the benefit of promotion from an earlier date i.e. 18.11.1986, when the petitioner completed the eligibility period for promotion to the post of Head Clerk. The facts of the case are that the petitioner was appointed as an Upper Division Clerk(UDC) in the respondent no. 4 school on 16.11.1983. The petitioner became eligible as per the Rules for promotion to Head Clerk on 18.11.1986 i.e. after working for three years as a UDC. The petitioner, therefore, on 11.02.1987 made a representation to respondent no. 4 to promote him to the post of Head Clerk and the petitioner kept on making representations till the year 1992. Nothing was however, heard on the representations. The respondent no. 4 school, ultimately convened a DPC for considering the case of the petitioner for the post of Head Clerk on 31.03.1994. The DPC recommended the petitioner fit for promotion to the post of Head Clerk and gave the effective date of promotion as 18.11.1986.

Since the respondent no. 4 school is an aided school i.e. 95% of the financial requirements are met by respondent no.2/ Director of Education, on the case being put up of the petitioner before the respondent no.2, the respondent no.2 vide letter dated 29.01.1996 accepted the recommendation of DPC, subject to the condition that promotion to the petitioner was to be granted to the post of Head Clerk not from 18.11.1986 as recommended by the DPC but from 31.03.1994 i.e. from the date when the DPC was held. It is this communication dated 29.01.1996 which is challenged by the petitioner seeking change of the date of his promotion from 31.03.1994 to an earlier date of 18.11.1986.

Learned senior counsel for the petitioner urges two points in support of the writ petition. The first point is that the entitlement of the petitioner to be promoted as Head Clerk will be w.e.f. 18.11.1986 i.e. on the petitioner completing three years inasmuch as there did exist a vacant post of Head Clerk on 18.11.1986 and therefore merely because the petitioner for no fault of his was not promoted, the petitioner could not be deprived of the benefits of the post of Head Clerk from 18.11.1986. Reference in this regard is placed on the portion of paragraph 7 of the judgment of the Supreme Court in the case of Union of India Vs. K.V. Jankiraman, etc. etc., . The second point argued in respect of the petition is with reference to para 7 of the writ petition wherein reference is made to two persons who got promotion not from the date of DPC, but from a retrospective date.

So far as the first argument urged on behalf of the petitioner is concerned, one will have to refer to the relevant portion of para 7 of the judgment in Janakiraman (supra), which reads as under:-

.............

.............

F.R. 17(J) 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.

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.

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.

.......

.......

I am of the opinion that the aforesaid portion of the judgment of the Supreme Court in Janakiraman(supra) relied upon by the petitioner in this case has no application in as much as all that the judgment of the Supreme Court lays down is that if a person is prevented from joining the post due to circumstances beyond his control, then in such a case a person must be granted the pay and benefits of the post from an earlier date because he was not allowed to join the post on account of no fault of his. This ratio is in my opinion different than the issue as to the date on which promotion is to be granted. The joining date post grant of promotion is a different issue than the date of grant of promotion. The observations of the Supreme Court in Janakiraman(supra) have to be read in the context of the date of joining the post after promotion and not with respect to the date of grant of promotion.

In this regard, one may refer to the relevant Establishment and Administrative Manual governing respondent no.2/Director of Education and para 17.10 of which reads as under:-

17.10 The general principle is that promotion of officers included in the panel would be regular from the date of validity of the panel or the date of their actual promotion, whichever is later.

The aforesaid Rule 17.10 makes it more than abundantly clear that the date of promotion is either the date of preparation of the panel or the date of promotion whichever is later. In the present case, the date when the petitioner was promoted by the DPC i.e. 31.03.1994 is clearly the date for grant of promotion in terms of para 17.10. The petitioner will only be entitled to promotion from 31.10.1994 being the later date in terms of para 17.10, inasmuch as admittedly, there was no panel prepared with respect to the post of Head Clerk prior to the convening of the DPC.

Of course, the petitioner in a way seems to have been prejudiced, however, this is a peculiarity in service law/service jurisprudence inasmuch as the running of administration does not function perfectly like a computer programme and it is not unknown that although vacancies exist DPCs are held after a long period of time. It is possible that to avert disputes of this nature the respondent no. 2 has applied Rule 17.10 uniformly, and once Rule 17.10 is applied uniformly, the petitioner cannot complain of any discrimination.

So far as the second argument of the petitioner is concerned, para 7 of writ petition is reproduced as under:-

That there are instances in the Department that the department has accepted promotion with retrospective effect in a few cases; one such case is that of Shri Om Prakash Yadav in Adarsh Senior Sec. School who was given promotion as PGT (Sanskrit) with effect from 1.9.88, even though the DPC met on 8.2.89. Further there is yet another case of Ms. Michael who is working in Butler Memorial Girls S.S. School and was promoted to the post of PGT (History) with effect from 1.11.81, when the DPC was held on 29.3.82. The aforesaid submission shows that there is nothing illegal to give promotion to the petitioner from the date he became eligible; moreover when there were instances in the Department that such retrospective promotions have been made. Further, there is no fault on the part of the petitioner for delay in convening the DPC. The petitioner in his representation dated 18.12.95, has brought the aforesaid fact to the respondent no. 3. The representation is enclosed as Annexure P-11.

In response in the counter affidavit filed by the respondent no.2, the following averments have been made:-

That the allegation of one Sh. Omprakash Yadav (in para 7 of W.P.) it is submitted that he was also given promotion from the date of D.P.C i.e. 1.9.1988 instead of with immediate effect vide corrigendum No: F-4(21) Z. IV/Pay/Fixation/90/1038 dated 11.7.1990. A copy of which is annexed as ANNEXURE R-II and regarding the other case referred the difference is only about one or two years but in the instant case it is more than 8 years, for which the arrears have to be paid and it will become a precedent for others.

When we read the aforesaid para of the writ petition and its response, it is clear that one person, Ms. Michael seems to have been given retrospective benefit for about a year or so. So far as the second person, Om Prakash Yadav is concerned, the respondent has clarified that after issuing a corrigendum, Om Prakash Yadav has got the benefit only from the date of his actual promotion of holding of the DPC and not from retrospective date.

Article 14 of the Constitution of India is a positive concept. This is settled by the judgments of the Supreme Court which hold that Article 14 cannot be invoked to enforce an illegality. Courts imprimature cannot be sought for enforcing of an illegal action. As per Rule 17.10, the effective date of promotion would be the date of the DPC. Merely because one person Michael (or for that matter may be others) have got promotion from a retrospective date in violation of Rule 17.10 cannot mean that the petitioner should get promotion not from the date of DPC, but from retrospective date in violation of Rule 17.10. Courts cannot become a party to violation of the rules which are otherwise to be uniformly applied. In view of the above, there is no merit in the petition, and it is therefore dismissed, leaving the parties to bear their own costs.