IN THE HIGH COURT OF DELHI AT NEW DELHI
CONT. CASE (C) NO. 12 OF 2003
Judgment reserved on : March 11, 2004
Date of decision : March 19, 2004
Fixation of Seniority
Through : Mr. S.M. Garg, Advocate. .........Petitioner
V e r s u s
Director General, CISF
Through : Mr. H.S. Phoolka, Senior Advocate Mr. Vikas Mehta, Advocate. ........ Respondent
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
1.Whether the Reporters of local papers may be
allowed to see the judgment? Yes
2.To be referred to Reporter or not? Yes
3.Whether the judgment should be reported in the Digest? Yes
1 The petitioner filed civil writ petition bearing No. 427/1984 seeking quashing of the letter dated 08.07.1982, which proposed to include the name of the petitioner in the seniority list for the year 1977 since, according to the petitioner, he was appointed in the year 1970 and his seniority was liable to be fixed from the date of his initial appointment. The writ petition was allowed by the Order dated 04.10.1999 and the impugned letter dated 08.07.1982 was quashed. The respondents were directed to assign the petitioner proper place in the seniority list on the basis of his date of appointment in service in the rank w.e.f. 16.05.1970 and giving him consequential benefit in accordance with his rightful place in the seniority list.
2 An office order dated 22.02.2000 was issued on behalf of the competent authority of Central Industrial Security Force ( for short, `CISF' ) in pursuance to the aforesaid Order and the petitioner was assigned fresh seniority against the year 1970. It was stated in the said office order that case of the petitioner for promotion to higher ranks was to be reviewed separately.
3 The petitioner made various representations thereafter for his legitimate dues and consideration of promotion and in terms of the office order dated 28.09.2000, the petitioner was directed to be promoted to the rank of Sub-Inspector (Exe) notionally w.e.f. 15.01.1975, which was the date of promotion of his immediate junior. The petitioner was further informed that on the basis of his revised seniority in the promoted post, his case for promotion to the next higher ranks was being revised separately.
4 The petitioner made further representations for the aforesaid promotion as also for consequential arrears of pay. A further office order was issued in November, 2000 followed by the notification dated 01.08.2001 in terms whereof the petitioner was appointed to the rank of Assistant Commandant (Exe) on regular basis w.e.f. 27.11.1989. The office order, however, further stated that the petitioner would draw pay and allowances to the post from the date of assumption of charge of that post, which was 18.06.2001. It was specifically stated that the notional date of promotion in the rank of Assistant Commandant (Exe) was to safeguard the petitioner's seniority and he would not be entitled to arrears of pay and allowances of the post of Assistant Commandant (Exe) from 27.11.1989 to 17.06.2001. A further notification was issued on 11.09.2001 appointing the petitioner to the rank of Deputy Commandant on a regular basis w.e.f. 08.09.1998, but similarly, the same was only to safeguard his seniority and the petitioner was not entitled to arrears of pay and allowances of the post of Deputy Commandant from 08.09.1998 to 29.03.2001.
5 The petitioner was aggrieved by what he alleged to be the non-implementation in full of the Order of the Court in the writ petition since the petitioner was only assigned seniority, but the consequential financial benefits were not given to the petitioner. The application of the petitioner was forwarded through proper channel, but the same was rejected on 12.12.2001, 24.12.2001 and 23.04.2002 holding that the petitioner was not entitled to arrears of pay and allowances for the period from which he has been allowed such notional promotion. The petitioner has since superannuated from service on 31.01.2003.
6 The contempt petition has been filed by the petitioner alleging willful disobedience on the part of the respondent in not granting to the petitioner the arrears of pay, TA/DA, arrears of family planning and clothing allowances to the petitioner. The petitioner has in support of his stand specifically relied upon an inter-office note of 07.01.2000 by the Assistant Inspector General of CISF in favour of one SI/Exe Prem Chand in which it is stated that the individual is entitled to get the monetary benefits of the notional promotion as the High Court had clearly mentioned that all consequential benefits must accrue to the petitioner. It is stated in the contempt petition that Shri Prem Chand was identically situated and was granted all the monetary benefits.
7 The respondents have relied upon the provisions of FR 17(1) read with FR 27 and have stated that the judgment and order of this Court has been implemented in letter and spirit and the petitioner is not entitled to monetary benefits of the notional promotion on the basis of Government of India instructions. It is further stated that neither was any prayer made nor was any direction made in the writ petition for such monetary consequences of notional promotion. However, insofar as specific example given of Shri Prem Chand in para 28 of the contempt petition was concerned, there was no specific reply.
8 An Order was passed on 05.02.2004 asking learned counsel for the respondent to obtain instructions arising from the case of Shri Prem Chand and whether such payment was finally made since the order annexed by the petitioner was an inter-office memo. The additional affidavit was filed by the respondent admitting that in the case of Shri Prem Chand, such consequential benefits were, in fact, paid but the case of the petitioner was sought to be distinguished. It is stated in the affidavit that in the case of Shri Prem Chand, the impugned order of reversion from Head Constable to Constable was held illegal per se and contrary to rules and Shri Prem Chand completed the probation period successfully and was deemed to have been confirmed in the post. Since probation was attached only on regular appointment and not on ad hoc ones, his reversion order was held to be illegal and he was given consequential benefits. On the other hand, in the case of the petitioner, there was a question of revising seniority and assigning rightful place. The seniority of the petitioner was re-fixed and the petitioner was given notional promotion, but on the question of payment of monetary benefits arising from the notional promotion, the Department of Personnel and Training ( for short, `DOPT' ) refused the same being contrary to rules. It is stated that in such a case, the petitioner is not entitled to be paid actual financial benefits from the date / period of notional promotion, but shall be allowed from the date of actual promotion and this provision is supported by the provisions in FR 17 and FR 27. It is also stated in the affidavit that the case of Shri Prem Chand was referred to the administrative Ministry being the Ministry of Home Affairs, which in turn referred the matter to the Ministry of Law and Justice for the specific advice. The Ministry of Law and Justice opined that since the petitioner's reversion was itself illegal per se because he had completed probation in the rank of Head Constable, Shri Prem Chand, the petitioner therein, be granted consequential benefits.
9 In response to the said affidavit, the petitioner filed a reply stating that a specific direction has been passed in the present case for full consequential benefits as in the case of Shri Prem Chand and there was no distinguishing feature between the case of the petitioner and the case of Shri Prem Chand. In the present case also, the fixation of seniority by the respondent from 1977 was held to be illegal per se and contrary to rules and it is only in consequence thereof that the direction was passed in favour of the petitioner.
10 Learned counsel for the petitioner referred to judgment of the Supreme Court in Union of India & Ors. v. K.V. Jankiraman & Ors., (1991) 4 SCC 109 to contend that the plea that a person cannot be allowed to draw benefits of a post the duties of which he has not discharged was negated as not applicable where an employee, who is willing to work, is kept away from work by the authorities for no fault of his. The Supreme Court observed as under :-
" 24. 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.
25. 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."
11 Learned counsel further referred to judgment of the Supreme Court in State of A.P. v. K.V.L. Narasimha Rao & Ors., (1999) 4 SCC 181, where it was held that back wages are normally to be allowed in case of retrospective promotion, though in the peculiar facts of the case, it was held to the contrary.
12 Learned counsel lastly relied upon the Division Bench judgment of the Punjab & Haryana Court in Om Parkash Gupta v. State of Haryana & Anr., 2003 (4) SLR 410, where it was held that the petitioner would be entitled to all the benefits of the promoted post including salary.
13 Learned senior counsel for the respondent, on the other hand, referred to judgment of the Supreme Court in State of Haryana & Ors. v. O.P. Gupta & Ors., (1996) 7 SCC 533. The controversy involved in the said case was whether the employees were entitled to arrears of salary for the period for which they had admittedly not worked, but had been given notional promotion from the deemed date. The matter related to a seniority dispute where fresh seniority list was directed to be prepared in accordance with rules ignoring any inconsistent administrative instructions. The Supreme Court held that entitlement of the employees to work arose only when they were promoted in accordance with rules and the preparation of seniority list was a condition precedent for the exercise. The employees could not be posted in the promotional post till the exercise was carried out and, thus, their plea that they were willing to work had no legal foundation. The case of K.V. Jankiraman (supra) was discussed, but the ratio was not held applicable in the case where the claim of promotion had to be considered.
14 Learned senior counsel further referred to judgment of learned Single Judge of this Court in Amar Singh v. Union of India & Anr., 2002 III AD (DELHI) 264, where the principle of 'no work no pay' was applied and it was held that action of the respondent in not paying the arrears could not be said to be illegal or unreasonable.
15 Learned senior counsel lastly referred to judgment of the Supreme Court in Paluru Ramkrishnaiah & Ors. v. Union of India & Anr., (1989) 2 SCC 541, where it was held that in case the promotion granted with retrospective effect, back wages for the period for which the person actually did not work in the promotion post is not payable.
16 I have considered the submissions advanced by learned counsel for the parties.
17 In the present case, in my considered view, two aspects need to be considered. The first aspect relates to the principle whether in case of such notional promotion, back wages are to be granted as it was noticed that there are observations of the Supreme Court depending on the facts of the case in the aforesaid judgments. However, in K.V. Jankiraman's case (supra), the Supreme Court categorically held that where a person is deprived of the opportunity to work, the principle of 'no work no pay' would be applicable. Thus, what has to be seen is whether, in the present case, the petitioner was deprived of the opportunity of so working on the post. In my considered view, there can be no doubt that on account of the impugned letter, which was quashed by the Order dated 04.10.1999, the petitioner was sought to be deprived of an opportunity of so working. The case is not one of preparation of seniority list as in O.P. Gupta's case (supra) where the Supreme Court held that the occasion for a person to be deprived of working would only arise after finalisation of the seniority list. In the present case, the petitioner was not given due weightage of services rendered from 1970 to 1977.
18 It may be noted that the petitioner was earlier employed with the Indian Drugs and Pharmaceuticals Ltd. ( for short, `IDPL' ) in 1970 and the security of IDPL was taken over by CISF in January, 1977. The Government of India had issued a circular in 1977 laying down the principles for determining seniority of various persons employed in CISF and the benefit had to be made available of continuous unbroken service, which was denied to the petitioner. It was, in these circumstances, that while passing the Order dated 04.10.1999, the learned Single Judge of this Court specifically directed that not only the petitioner has to be placed in the proper seniority list on the basis of his date of appointment in service in the rank w.e.f. 16.05.1970, but must also be given the consequential benefits in accordance with rightful place in the seniority list. Thus, a specific direction has been made in this behalf which has not been challenged.
19 There is also a second aspect to this matter arising from the case of Shri Prem Chand. Another officer of the same organisation has been granted monetary benefits. The plea on which that case is sought to be distinguished from the present one is spacious. The only basis is that back wages were granted in that case since the order was illegal per se and contrary to rules. In the present case also, the order placing the petitioner at a particular seniority was held to be illegal per se and contrary to rules and directions of the respondents in the writ petition. Thus, the respondent cannot pick and choose between different persons while granting such benefits. It is also to be appreciated that in the similarly-situated case of Shri Prem Chand, the matter was referred to the Ministry of Law and Justice, which rightly came to the conclusion that in view of the reversion of Shri Prem Chand being illegal per se, the petitioner therein should be entitled to the consequential benefits. I see no reason why a different view should be taken in the present case.
20 The present proceedings are in the nature of contempt proceedings and there has to be willful disobedience of the Orders of the Court. The judgments referred to above clearly show that the petitioner was entitled to the benefit. Not only this, in the case of Shri Prem Chand, such benefits were extended. There was, in fact, no reason why the same should have been deprived to the petitioner and this would, in my considered view, constitute a willful disobedience of the Orders of the Court.
21 I was inclined to admit the petition and issue notice to the respondent as to why the respondent should not be punished for willful disobedience of the Orders of the Court. However, during the course of final submissions while hearing the contempt petition, learned senior counsel had submitted that the respondent is not interested in depriving any officer of his legitimate dues and refusal to pay the petitioner is as a consequence of the decision of DOPT. It was, thus, submitted that in case of any adverse conclusion, an opportunity should be given to the respondent to comply with the Order dated 04.10.1999 in full by paying all the monetary consequences thereof.
22 In view of the aforesaid position, I am inclined to keep the Order of admission in abeyance in order to enable the respondent to show compliance as stated aforesaid.
23 List for further directions on 23.04.2004.
March 19, 2004 SANJAY KISHAN KAUL, J.