State Of Uttarakhand And Another vs Surendra Singh Rana

Ramesh Ranganathan, C.J.

This writ petition is preferred by the State of Uttarakhand against the order passed by the Public Services Tribunal, Dehradun in Claim Petition No. 117/T/2009 (Old No. 1840 of 1998) dated 13.03.2012.

Facts, to the limited extent necessary, are that the respondent - claim-petitioner was appointed as a Village Panchayat Development Officer on 03.08.1968. He was confirmed in the said post on 01.01.1974. He was promoted, on an officiating basis, as a Panchayat Udyog Nideshak on 02.06.1984 with a rider that he could be reverted later. While stating that the post of Panchayat Udyog Nideshak was itself abolished, Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand, would fairly submit that neither is he aware nor does the record disclose the date from which the said post was abolished. The respondent - claim-petitioner was again appointed on an officiating basis as an Assistant Development Officer (Panchayat) on 30.03.1991; and his services were regularized in the said post on 03.02.1991. The grievance of the claim-petitioner, in the claim petition filed by him before the Tribunal, was that he was not treated on par with Sri Ramiram, who was junior to him in service.

Sri Pradeep Joshi, learned Standing Counsel appearing on behalf of the State of Uttarakhand, would submit that Sri Ramiram belonged to scheduled castes and was appointed on a temporary basis as an Assistant Development Officer (Panchayat) on 29.01.1979. He was, subsequently, promoted to the said post on 01.02.1980, and he was later treated as having been appointed on a regular basis with effect from 29. 01.1979 i.e. the date on which he was promoted as an Assistant Development Officer (Panchayat) on a temporary basis. We are informed that Sri Ramiram was earlier shown as junior to the petitioner in the seniority list.

In the claim petition filed by him before the Tribunal in the year 1998, the respondent - claim-petitioner sought the following reliefs:

"i. To direct the opposite parties to give notional promotion and other consequential benefits to him with effect from the date of junior persons to the petitioner were promoted on the post of Assistant Development Officer (Panchayat).

ii. To direct the opposite parties that the name of the petitioner may be placed it appropriate place and given the benefits on the Post of A.D.O. Panchayat.

iii. To pass other order which this Hon'ble Court deem fit and proper in the circumstances of the case.

iv. To allow the claim petition with costs in favour of the petitioner."

However, by way of an application made on 5. 05.2010, the petitioner sought substitution of the first relief, and prayed as under:

"Direct and order the respondents to pay to the petitioner the arrears of pay, D.A. etc. that has become due and payable to the petitioner w.e.f. 29.01.1979 on account of stepping up of his pay together with interest @ 12% per annum from the date of accrual till the actual date of payment to the petitioner."

In effect, the amendment is that, instead of being granted notional promotion, the petitioner should be paid arrears of pay and DA etc. with effect from 29.01.1979, on account of his pay having been stepped up, together with interest @ 12% per annum.

In the order, impugned in this writ petition, the Tribunal observed that the respondent - claim-petitioner had been promoted to the post of Assistant Development Officer with effect from 29.01.1979; the only question, which remained to be decided in the petition, was with regards payment of arrears of pay; the claim-petitioner had specifically averred that pay had not been paid to him; once the petitioner had been promoted to the post of Assistant Development Officer (Panchayat), with effect from 29.01.1979, he was entitled to get the pay in the promoted post; in Gian Singh Vs. State of Punjab reported in 2011 (2) Service Law Reporter 362, the Punjab and Haryana High Court had held that, when an employee has been wrongly denied promotion for no fault of his due to some lapse on the part of the employer, the principle of 'No work, No pay' would apply; therefore, the question - as to whether there is any exception to the principle of 'No work No pay' should be replied in the affirmative; no reply has been filed by the respondents regarding this issue; therefore, the claim-petitioner was entitled to get pay, in the promotional post, from the date of promotion i.e. 29.01.1979; and as it has been clearly stated, on behalf of the claim-petitioner, that pay had not been paid in the promotional post from the date of promotion, and it had not been countered on behalf of the respondents, the claim-petitioner was entitled to get pay, in the promotional post of Assistant Development Officer (Panchayat), with effect from 29.01.1979. The claim petition was allowed, and the respondents were directed to make payment of the pay to the petitioner, in the post of Assistant Development Officer, with effect from 29.01.1979 with all consequential benefits within a period of three months. Aggrieved thereby, the present writ petition.

Sri Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand, would contend that, since the respondent claim-petitioner was given the benefit of notional promotion, in the post of Assistant Development Officer (Panchayat), by the order dated 30.12.2006, the respondent - claim-petitioner was not entitled to claim arrears of pay; it is only if the said order was subjected to challenge, and was set aside by the Tribunal, would the Tribunal have been be justified in granting the relief sought for in the claim petition; as no finding has been recorded by the Tribunal, to the effect that the petitioner had been wrongly denied promotion for no fault of his and due to the lapse on the part of the employer, the judgment of the Punjab and Haryana High Court has no application; and as the proceedings dated 30.12.2006 had attained finality, the respondent - claim-petitioner cannot now be heard to contend that he is entitled for arrears of pay with effect from 29.01.1979, the day on which Sri Ramiram was promoted as an Assistant Development Officer (Panchayat).

On the other hand Sri M.C. Pant, learned counsel for the respondent - claim-petitioner, would submit that the order of the Tribunal does not necessitate interference as the said order does not suffer from an error apparent on the face of record; the very fact that the order dated 30.12.2006 was passed, granting promotion to the petitioner with effect from 29.01.1979, would itself show that the employer had himself realized that the petitioner had wrongly been deprived of his promotion; the only consequence, of the order dated 30.12.2006, is for payment of arrears of pay from the date of promotion i.e. 29.01.1979; and no interference is, therefore, called for.

As noted hereinabove, the respondent - claim-petitioner was promoted as an Assistant Development Officer (Panchayat) vide proceedings dated 30.12.2006, and was granted notional promotion in the said post with effect from 29.01.1979. The effect of the order dated 30.12.2006 is only that, while the respondent - claim-petitioner was actually promoted as an Assistant Development Officer (Panchayat) with effect from 30. 12.2006, his notional promotion with effect from 29.01.1979 required him to be given notional fitment from that day, and for his salary, as an Assistant Development Officer (Panchayat), to be fixed as on 30.12.2006, taking into account the notional increments for this duration, i.e. from 29.01.1979 till 30.12.2006, in fixing his pay scales in the post of Assistant Development Officer (Panchayat).

While the respondent - claim-petitioner had sought amendment of the prayer in the year 2010, he chose only to claim payment of arrears of pay, instead of challenging the order dated 30. 12.2006 giving him the benefit of notional, and not actual, promotion with effect from 29.01.1979. It is only if the said order dated 30.12.2006 had been subjected to challenge, and was set-aside by the Tribunal, could the Tribunal have granted the respondent - claim-petitioner the benefit of arrears of salary with effect from 29.01.1979.

Even if the law declared by the Punjab and Haryana High Court in Gian Singh is held to be applicable to the case of the respondent - claim-petitioner, the fact remains that the Tribunal has not even examined whether the respondent - claim-petitioner had been wrongly denied promotion for no fault of his, and for the lapse on the part of the employer, for only such cases, even according to the Punjab and Haryana High Court in Gian Singh, would constitute an exception to the general rule of 'No Work No Pay'. In the absence of any such finding having been recorded in this regard, the Tribunal was not justified in directing the appellant (respondents in the claim petition) to pay the petitioner arrears of salary in the post of Assistant Development Officer (Panchayat) with effect from 29.01.1979.

The order of the Tribunal is set-aside, and the writ petition is allowed. However, in the circumstances, without costs.