Upender Pachnanda, ACF vs State of Jammu & Kashmir

O.P. Sharma, J.—The petitioners who are four in number were promoted as Deputy Conservator of Forest by Govt. Order No. 290FST

of 1994 dated 20.9.1994 during the pendency of this petition. The order of their promotion carried the stipulation that although they will be

deemed to have been promoted on notional basis with effect from 12.7.1985, the date their juniors were promoted, but they would not be entitled

to draw arrears of pay on account of notional promotion. As a consequence of this order the relief claimed by the petitioners stood granted except

the arrears of pay. So the petitioners filed amended petition seeking quashment of the stipulation denying them the arrears of pay from 12.7.1985

to 20.9.1994 i.e. the date when promotion order was issued.

The question involved is whether petitioners could be denied arrears of pay for the period they were promoted on notional basis. It is not

disputed that petitioners' services are regulated under J&K Forest Services (Gazetted) Recruitment Rules, 1970. Under the Recruitment Rules

promotion to the post of Deputy Conservator of Forest requires six years service as Assistant Conservator of Forest. Since petitioners were

appointed in the year 1984, therefore they were not qualified for the post and as such could not be promoted in the year 1985 when their junior

Asgar Inayatullah was promoted.

Mr. Kotwal appearing for the petitioners submits that the petitioners were wrongfully denied appointment when those figuring lower in the select

list of the Public Service Commission were appointed on 4.1.1978 and 8.4.1981 ignoring the merit of the petitioners. This action of the

respondents was challenged by them in a writ petition, but before the same could be decided, petitioners were also appointed Assistant

Conservator of Forest by Govt. Order No. FST208 of 1984 dated 24.2.1984. He further submitted that the question of seniority of those

appointed out of the select list on different dates was set at rest by the judgment of this court dated 10.8.1988 in Writ Petition Nos. 306, 307 and

326 of 1988 filed by the petitioners, holding that the inter se seniority will be determined not on the basis of date of appointment but according to

the merit determined by the Public Service Commission.

The question of seniority of the petitioners and those appointed out of the select list furnished by the Public Service Commission is not in dispute

because as per Govt. Order No. 71FST of 1991 dated 25.3.1991, petitioners along with four others were given notional appointment with effect

from 4.1.1978 though without arrears of pay and allowance. They had not actually held the post. In case notional appointments from 4.1.1978 as

Assistant Conservator of Forest can be counted as actual service, they would be eligible for the post of Deputy Conservator of Forest, not

otherwise. The petitioners having not claimed pay for the period they were denied appointment have accepted the fact that they were not entitled

to the arrears. Since they were appointed in the year 1984 they became eligible for the post only in the year 1990 when they completed six years

of service as Assistant Conservator of Forest. Thus they could not have been promoted to the post of Deputy Conservator of Forest in 1985

when their juniors were promoted. No doubt they became eligible in 1990 but eligiblity by itself is not a ground for promotion which depends upon

the vacancy. It is not the case of the petitioners that the vacancies were available before they came to be promoted in 1994. So while no arrears

can be granted for the period they were ineligible for promotion, they are not entitled to the same for the period they were not promoted for want

of vacancies. So it is not a case of denial of promotion but their ineligibility for promotion that stood in the way of their promotion on due date.

Moreover there was a dispute about the seniority of those appointed on different dates between 1978 and 1984 as Assistant Conservator of

Forest on the basis of the same select list. This court in its judgment dated 10.8.1986 (supra) had directed that seniority of the petitioners be fixed

in accordance with Rule 24 of Civil Services (Classification, Control & Appeal) Rules, 1956. Similarly while deciding SWP No. 1040/1985 filed

by Mohammad Hussain Shah decided on 28.7.1989, a Single Judge of this court directed that petitioner be deemed to have been appointed for

purpose of seniority on 4.1.1978, the date on which Shri Asgar Inayatullah though figuring much below him was appointed. The dispute about

seniority was finally resolved by Government Order No. 71FST of 1991 dated 25.3.1991 when the official respondents for the first time

accepted, that irrespective of the date of appointment, the seniority of the Assistant Conservator of Forest appointed on the basis of a common

select list furnished by the Public Service Commission in the year 1978 shall be determined under Rule 24 of the Civil Services (Classification,

Control & Appeal) Rules, 1956. Rule 24(1)(b) provides that :

in the case of those recruited direct except those who do not join their duties when vacancies are offered to them according to the positions

attained by and assigned to them in order of merit at the time of competitive examination.....

So it took the government more than a decade to settle the seniority while implementing two separate judgments of this court. It was thus only

thereafter that petitioners could be promoted to the next higher grade. The Apex Court in State of Haryana and others v. O.P. Gupta and others,

1996(7) SCC 533 ; 1996(2) SCT 294 (SC), the facts of which were almost similar to the facts of this case, held that :

Havind regard to the above contentions, the question arises whether the respondents are entitled to the arrears of salary ? It is seen that their

entitlement to work arises only when they are promoted in accordance with the Rules. Preparation of the seniority list under Rule 9 is a condition

precedent for consideration and then to pass an order of promotion and posting to follow. Until that exercise is done, the respondents cannot be

posted in the promotional posts. Therefore, their contention that they are willing to work, they were not given the work after posting them in

promotional posts has no legal foundation. The rival parties had agitated their right to seniority. Ultimately, this court had directed the appellant to

prepare the seniority list strictly in accordance with Rule 9 untrammelled by any other inconsistent observation of the Court or the instructions

issued in contravention thereof. Since the order had become final in 1990, when the appeal had been disposed of by the Court by the above

directions, the State in compliance thereof prepared the seniority list in accordance with the Rules and those directions and promotions were given

to all eligible persons and postings were made accordingly on 1.12.1992. In the interregnum some had retired. As stated earlier, though the

deemed date has been given as 1.1.1983, the respondents cannot legitimately claim to have worked in those posts for claiming arrears and, as a

fact, they did not work even on ad hoc basis.

This Court in Paluru Ramkrishnaiah v. Union of India, 1989(2) SCC 541 considered the direction issued by the High Court and upheld that

there has to be ""no pay for no work"", i.e., a person will not be entitled to any pay and allowance during the period for which he did not perform the

duties of higher posts, although after due consideration, he was given a proper place in the gradation list having been deemed to be promoted to

the higher post with effect from the date his junior was promoted. He will be entitled only to step up the scale of pay retrospectively from the

deemed date but is not entitled to the payment of arrears of the salary. The same ratio was reiterated in Virender Kumar, G.M., N. Rlys. v.

Avinash Chandra Chadha, 1990(3) SCC 472.

This applies to the facts of the case on all fours. The petitioners are, therefore, not entitled to arrears of pay for the period they had not

discharged the duties of Deputy Conservator of Forest not because they were wrongly denied promotion but because they were not eligible at the

time their juniors were promoted.

In view of the above, there is no merit in this petition which is dismissed accordingly.

Petition dismissed.