Sardar Singh vs State of Haryana and Others

Tejinder Singh Dhindsa, J.—Vide order dated 9.11.2011, Annexure P4, passed by the Superintending Engineer, Gurgaon Circle PWD B & R Branch, Gurgaon, the petitioner has been promoted to the post of Road Inspector notionally w.e.f. 15.3.2005 against a reserved quota post. The instant writ petition has been filed challenging the order dated 9.11.2011, Annexure P4, to the extent that pay and allowances for the post of Road Inspector have been made admissible only w.e.f. 23.1.2009 and not w.e.f. 15.3.2005.

Brief facts that are necessary for disposal of the present writ petition and as would emerge from the pleadings are that the petitioner had filed Civil Writ Petition No. 2377 of 2006 praying for the issuance of a writ of mandamus for directing the respondent-Authorities to consider his case for promotion to the post of Road Inspector against the roster point reserved for Scheduled Caste candidates as per reservation policy. Such writ petition came to be disposed of vide order dated 31.3.2008 with directions having been issued to consider the petitioner''s claim for promotion to the post of Road Inspector against a post reserved for Scheduled Caste category as per relevant rules and regulations and as per petitioner''s eligibility. Since the directions issued by this Court were not being complied with, petitioner initiated contempt proceedings and whereupon an order was passed promoting the petitioner as Road Inspector w.e.f. 19.1.2009. The petitioner then preferred Civil Writ Petition No. 2320 of 2011 claiming promotion to the post of Road Inspector w.e.f. 15.3.2005 instead i.e. with effect from the date the post reserved for Scheduled Caste category at the roster point had fallen vacant. Such claim was put forth on the strength of the dictum laid down by the Supreme Court in R.K. Sabharwal and others Vs. State of Punjab and others, . Civil Writ Petition No. 2320 of 2011 was disposed of on 29.7.2011 with a direction to the respondents to consider the claim of the petitioner in the light of the relevant policy instructions as also law laid down by the Supreme Court in RK Sabharwal''s case (supra).

It is in purported compliance of the directions issued by this Court dated 29.7.2011 while disposing of Civil Writ Petition No. 2320 of 2011 that order dated 9.11.2011, Annexure P4, has been passed promoting him to the post of Road Inspector w.e.f. 15.3.2005 i.e. the date of passing the departmental examination against reserved quota post. However, vide such order even though the benefit of seniority has been granted w.e.f. 15.3.2005, but the pay and allowances for the period in question have been denied.

Learned counsel would argue that the claim as regards promotion to the post of Road Inspector w.e.f. 15.3.2005 against a reserved quota post having been accepted and even benefit of" seniority with effect from such date having been admitted, there would be no justifiable basis to deny the actual arrears for the period in question.

Upon notice of motion having been issued, a joint written statement had been filed on behalf of respondents No. 1 to 3 wherein even though the basic facts have not been disputed, yet a plea had been raised that arrears of salary cannot be granted on the principle of ''no work no pay''.

Having heard learned counsel for the parties, this Court is of the considered view that the writ petition deserves to succeed.

A Division Bench of this Court in State of Haryana v. Bani Singh Yadav, 2005 (1) SCT 355 had laid down the following principle:

"The principle of ''no work no pay'' can be invoked by the employer to deny wages or pay to the employee only in those cases in which the employee voluntarily abstains from discharging the duties assigned to him/her. It cannot be applied in cases in which the employee/workman is kept away from duty or is prevented or rendered ineligible to discharge duties of a particular post due to an act or omission of the employer."

In the present case, it is not a situation where there was dispute regarding seniority and promotion could not have been given because of uncertainty on the issue of seniority as per the law laid down by Hon''ble the Supreme Court in the case of State of Haryana and Others Vs. O.P. Gupta, etc., . However, Hon''ble the Supreme Court in the case of State of Kerala and Others Vs. E.K. Bhaskaran Pillai, , has held that the principle of ''no work no pay'' cannot be regarded as a rule of thumb and grant of full back wages in certain eventualities is inoperative particularly when promotion is wrongly denied. In Para 4, their Lordships have made reference to various judgments rendered by the Supreme Court in the cases of Paluru Ramkrishnaiah and Others Vs. Union of India (UOI) and Another, ; Virender Kumar, General Manager, Northern Railways, New Delhi Vs. Avinash Chandra Chadha and others, ; A.K. Soumini v. State Bank of Travancore, 2004 (2) SCT 315 : (2003) 7 SCC 233; Union of India (UOI) and Another Vs. Tarsem Lal and Others, ; Union of India Vs. K.V. Jankiraman, etc. etc., ; State of Andhra Pradesh Vs. K.V.L. Narasimha Rao and Others, ; Vasant Rao Roman Vs. Union of India (UOI) through the Central Railway, Bombay and Others, ; State of U.P. v. Vinod Kumar Srivastava, (2006) 9 SCC 621; and O.P. Gupta''s case (supra) and held as under:

".....So far as the situation with regard to monetary 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 criminal case it depends on the authorities to grant full back wages or 50 per cent 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 and 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 then in that case he should be given full benefits including monetary benefit 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 monetary benefits also."

Applying the aforesaid principle to the facts of the present case, it would be seen that the petitioner has been agitating his claim for promotion to the post of Road Inspector against roster point meant for Scheduled Caste category as per reservation policy. In this regard, the petitioner had to approach this Court on two earlier occasions by filing Civil Writ Petition No. 2377 of 2006 as also Civil Writ Petition No. 2320 of 2011. It is only on account of intervention by this Court by issuance of directions to the respondent-authorities/employer that his claim for promotion to the post of Road Inspector w.e.f. 15.3.2005 gained impetus and was finally accepted by passing an order dated 9.11.2011, Annexure P4. In the light of such order, petitioner has been granted anti-dated promotion to the post of Road Inspector w.e.f. 15.3.2005 and has also been accorded benefit of seniority from such date. Passing of the order dated 9.11.2011, Annexure P4, is towards acceptance of the claim of the petitioner as regards the post of Road Inspector w.e.f. 15.3.2005 as per roster point. It is not a case where the petitioner had declined to discharge duties against the promotional post or that the delay in acceptance of such claim was attributable to him. It would not be open for the employer, on the one hand, not to grant promotion to an employee with effect from the date the same is due and thereafter having admitted such claim, to turn around and deny to the employee the consequential benefits as regards payment of arrears of salary. The principle of ''no work no pay'' would not be attracted to the facts of the present case.

Even the reasoning furnished in the impugned order while restricting the pay and allowances w.e.f. 23.1.2009 i.e. there being no post of Road Inspector available against the reserved quota is wholly misconceived. In this very order, the petitioner having been accorded anti-dated promotion to the post of Road Inspector w.e.f. 15.3.2005 has been granted the benefit of seniority from such date. As such, the pay and allowances would also enure to the benefit of the petitioner w.e.f. 15.3.2005.

Consequently, the writ petition is allowed. The order dated 9.11.2011, Annexure P4, to the extent it denies arrears of salary to the petitioner on the promoted post is quashed. The petitioner is held entitled to arrears of salary w.e.f. 15.3.2005 to 23.1.2009. Let the requisite financial benefit be computed and released to the petitioner within a period of six weeks from the date of receipt of a certified copy of this order. Petition allowed.