Ashok Kumar Tiwary v. The State of Jharkhand

: Mr. Diwakar Upadhyay, Advocate : Ms. Abhilasha Kumari, Advocate : Mr. Faisal Allam, Advocate : Mr. Sunil Kr. Agarwal, Advocate 05/10.05.2023 1. 2. Learned counsel for the parties are present. This writ petition has been filed for the following reliefs: - “(a) For issuance of an appropriate writ / order / direction in the nature of ‘Certiorari’ for quashing the part of the order dated 18.11.2021, bearing Memo No. 1940/G. (Ann-5), whereby and whereunder, the petitioner has been arbitrarily denied any financial benefit arising due to grant of notional promotion on the post of Sub Inspector of Police w.e.f. from the due date i.e. 29.03.1997. And/Or (b) For a further direction upon the respondent authorities to pay the difference in the arrears of salary alongwith statutory as well as penal interest, and other consequential benefits, which would have accrued to the 2 petitioner if his case for out of turn promotion would have been considered within time from the due date i.e. w.e.f. 29.03.1997, unlike the other similarly situated police personnel’s, who have received all such benefits in the year 2006 itself, as prayed by the petitioner in the instant writ petition. (c) For a further direction upon the respondents to revise the pension of the petitioner after granting the benefits as prayed in the preceding prayers. And/Or (d) Pass such order/writ/direction as your Lordship may deem fit &proper in the facts and circumstances of the case and accordance with law.” Arguments on behalf of the petitioner 3. Learned counsel for the petitioner submitted that the petitioner was appointed as Constable on 25.05.1973 in the erstwhile State of Bihar at Dhanbad and superannuated from the post of Sub-Inspector of Police from Palamau on 31.01.2014. On 29.03.1997, while the petitioner was posted as A.S.I., he displayed extreme courage and bravery alongwith other police personnel while conducting the encounter of the dacoits, who looted 11 lakhs rupees from the LIC officials in Hazaribagh. 4. The learned counsel submittedthat the other police personnel, who were involved in the operation, were granted out of turn promotion on account of bravery vide Memo No. 1165 dated

08.07.2006 with retrospective effect i.e. from 29.03.1997, but the petitioner was left out. The petitioner filed a representation before the Inspector General of Police (Human Rights), Jharkhand, Ranchi (Respondent No. 4) and the Respondent No. 4 wrote a letter bearing Memo No. 210/G dated 23.02.2013 to the Superintendent of Police, Palamau wherein it has been stated that the issueregarding grant of out of turn promotion to the petitioner has been forwarded to the Police Headquarters, Bihar, Patna vide Letter No.578/G dated 18.05.2006. In the meantime, the petitioner superannuated from his service on

31.01.2014 and ultimately, till his date of retirement, the out of turn promotion was not granted to the petitioner. 3

5. The petitioner moved this Court for grant of the aforesaid benefit in writ petition being W.P. (S) No. 3530/2020 which was disposed of vide order dated 15.12.2020, wherein the petitioner was directed to file a fresh representation alongwith all the credentials and the Director General-cum-Inspector General of Police, Jharkhand, Ranchi was directed to take a decision in accordance with law, rules, regulations and guidelines including the claim of parityand to pass reasoned order. The learned counsel submitted that the reasoned order as contained in Annexure-5 has been passed, which is impugned in the present writ petition. 6. The learned counsel submitted that upon verification of the record, it was found that the petitioner had participated in the incident on 29.03.1997 alongwith other police officials. The petitioner is aggrieved by only a portion of the impugned order dated 18.11.2021, wherein out of turn promotion has been granted to the petitioner from

29.03.1997, but the financial benefit has been completely denied. The learned counsel submitted that for no reason and no fault from the side of the petitioner, out of turn promotionwas not granted and when it was ultimately granted, the monetary benefits should be given at least from 06.05.2006 i.e. the date when the relief was granted to other personswho had participated in the operation. 7. The learned counsel for the petitioner also submitted that notional promotion from 29.03.1997 remainsof no use to the petitioner, if the petitioner is not granted any monetary benefit out of such promotion. 8. He further submitted that without prejudice to the claim of entire arrears of salary and the monetary benefit w.e.f. 06.05.2006, at least the petitioner is entitled for revision of pension on the basis of notional promotion. Once the notional promotion has been granted, the petitioner cannot be deprived of the pensionary benefits out of such notional promotion. He further submitted that the pension be revised and arrears of pension be also paid to the petitioner. 9. The learned counsel relied upon the judgment passed by the Hon’ble Supreme Court reported in (2007) 6 SCC 524 (State of 4 Kerala & Others -vs- E. K. Bhaskaran Pillai) and submitted that in the said case, the monetary benefit with retrospective effect was duly granted. He also relied upon the judgement reported in (2008) 8 SCC 648 (Union of India -versus- Tarsem Singh). Arguments on behalf of the respondents 10. Learned counsel appearing on behalf of the respondents, while opposing the prayer of the writ petitioner, submitted that incident was of the year 1997 and the other persons were granted the benefit in the year 2006. The petitioner had retired in the year 2014 and ultimately, he filed a writ petition before this Court only in the year 2020. The learned counselsubmitted that the petitioner had essentially slept over his right and did not take any step before this Court at appropriate time, even when the other persons were granted promotion in the year

2006. The learned counsel further submitted that the pension can be paid to the petitioner only as per the last pay drawn and there is no question of revision of pension. He further submitted that the petitioner has not discharged any duty on the promotional post and there was delay and latches on the part of the petitioner in approaching this Court only in the year 2020 and therefore, there is no question of payment of any arrearsof salary or revision of pension. 11. The learned counsel also relied upon the judgment passed by the Hon’bleSupreme Court reported in (1989) 2 SCC 541 (Paluru Ramkrishnaiah and Others -vs- Union of India &Another) and referred to Paragraph-19 thereof to submit that the law in connection with payment of back wages is mentioned in the said paragraph. Findings of this Court 12. After hearing learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that it is not in dispute that the petitioner had shown bravery in dealing with the incident, which had taken place on 29.03.1997 and on

06.05.2006, notional promotion was granted to other persons who had accompanied the petitioner. As per the writ record, the petitioner had filed certain representations to claim similar relief only in the year 5 2013 and ultimately retired in the year 2014 without getting the out of turn promotion. 13. Much after his retirement, the petitioner filed a writ petition before this court being W.P. (S) No. 3530/2020 and this Court passed the following order: - “In view of the above facts, the petitioner is directed to file a fresh representation before respondent no.2 within a period of three weeks from today along with all the credentials, on which, he is relying and pointing out that the persons who worked as a team alongwith the petitioner in the aforesaid encounter of dacoits, they have been promoted and the petitioner has not been promoted. If such representation is filed within the aforesaid period, respondent no.2 shall take a decision in accordance with rules, regulations and guidelines including the claim of parity as made out by the petitioner and pass appropriate reasoned order, within a period of eight weeks thereafter.”

14. Pursuant to the aforesaid order passed by this Court, the respondents have passed an order granting him notional promotion w.e.f. 29.03.1997, but has denied the financial benefit out of such promotion. 15. So far as the claim of the petitioner with regard to back wages from 29.03.1997 or at least from 06.05.2006 (i.e. when his other colleagues were granted out of turn promotion) is concerned, this Court is of the considered view that the petitioner is not entitled for any back wages in view of the fact that the petitioner had admittedly not performed any duty on the promotional post and the petitioner filed writ petition only in the year 2020 i.e. much after the cause of action arising way back in the year 2006. 16. In the judgement passed by the Hon’ble Supreme Court reported in (1989) 2 SCC 541 (Paluru Ramkrishnaiah and Others - vs- Union of India & Another), the view of the Hon’ble Madhya Pradesh High Court with regard to payment of arrears of pension has been considered and relief was granted to the original writ petitioners of the case in the same lines. The view of the High Court as quoted in the judgement in Para-19 is as follows: “As regards back wages, the Madhya Pradesh High Court held: 6 It is the settled service rule 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 a higher post, although after due consideration, he was given a proper place in the gradation list having deemed to be promoted to the higher post with effect from the date his junior was promoted. So the petitioners are not entitled to claim any financial benefit retrospectively. At the most, they would be entitled to refixation of their present salary on the basis of the notional seniority granted to them in different grades so that their present salary is not less than those who are immediately below them.”

17. The judgment relied upon by the learned counsel for the petitioner reported in (2007) 6 SCC 524 (supra) is an elaborate judgment in connection with payment of back wages. It has been held that there are circumstances where full back wages are to be granted and the principle of “No Work No Pay’ is not accepted as a thumb rule, but it ultimately depends upon the facts and circumstances of each case. In the said case, ultimately the back wages were granted to the respondent therein from the date he had filed his claim before the court concerned. Paragraph-4 and 5 of the said judgement are quoted as under: “4. Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15-6- 1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah v. Union of India [(1989) 2 SCC 541 : 1989 SCC (L&S) 375], Virender Kumar v. Avinash Chandra Chadha [(1990) 3 SCC 472 : 1991 SCC (L&S) 62 : (1990) 14 ATC 732], State of Haryana v. O.P. Gupta [(1996) 7 SCC 533 : 1996 SCC (L&S) 633], A.K. Soumini v. State Bank of Travancore [(2003) 7 SCC 238 : 2003 SCC (L&S) 1041] and Union of India v. Tarsem Lal [(2006) 10 SCC 145 : (2007) 1 SCC (L&S) 63]. As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Union of India v. K.V. Jankiraman [(1991) 4 SCC 109 : 1991 SCC (L&S) 387], State of A.P. v. K.V.L. Narasimha Rao [(1999) 4 SCC 181 : 1999 SCC (L&S) 841], Vasant Rao Roman v. Union of India [1993 Supp (2) SCC 324 : 1993 SCC (L&S) 590 : (1993) 24 ATC 363] and State 7 the court may grant sometimes of U.P. v. Vinod Kumar Srivastava [(2006) 9 SCC 621 : 2006 SCC (L&S) 1940]. We have considered the decisions cited on behalf of both the sides. 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 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. 5. However, so far as present case is concerned, as per directions given by the Court, the petitioner's case was considered and it was found that persons junior to him were appointed and he was wrongly denied. Therefore, the petitioner was promoted from retrospective effect i.e. 15-9-1961 but he was not paid the benefit of promotion in terms of arrears of salary. Therefore, he approached the Court and learned Single Judge did not give him the monetary benefit of the promotional post from retrospective effect in terms of arrears of salary. In the review application, the benefit was given from the date he filed OP No. 585 of 1975 i.e. 15-6-1972. This appears to be reasonable. The petitioner did not approach the Court for the back wages from 15-9-1961 but he filed a petition dated 15-6-1972 and the Court granted the benefit from the date of filing of the petition before the Court i.e. 15-6- 1972. The incumbent in the meanwhile has retired on 31-7-1980. Therefore, looking to the facts and circumstances of the case, the view taken by the High Court appears to be justified and there is no ground to interfere in it.”

18. The principle relating to delay and latches under service jurisprudence and relief with consequential relief has been considered by the Hon’ble Supreme Court in the judgement reported in (2008) 8 8 SCC 648 (Union of India -versus- Tarsem Singh). Para-7 to 9 are quoted as under: “7. To summarise, normally, a belated service-related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service-related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring / successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition. 8. In this case, the delay of sixteen years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to sixteen years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances. 9. In view of the above, these appeals are allowed. The order of the Division Bench directing payment of disability pension from the date it fell due, is set aside. As a consequence, the order of the learned Single Judge is restored.”

19. Considering the ratio of the aforesaid judgements, the claim of back wages is to be seen in the light of the facts and circumstances of this case. So far as claim of back wages from 29.03.1997 or

06.05.2006 till his date of superannuation in the year 2014 is 9 concerned, admittedly the petitioner did not discharge his duties on the promotional post and the petitioner had slept over his right for quite some time and approached this Court only in the year 2020 after having retired in the year 2014. However, further claim of the petitioner is that he should be entitled to revision of pension on account of notional promotion with effect from 29.03.1997. 20. So far as the claim of back wages from 29.03.1997 or

06.05.2006 is concerned, this Court is of the considered view that the petitioner having not worked on the promotional post and having approached this Court belatedly after his retirement only in the year 2020, the petitioner is not entitled to such back wages on the principles of “no work no pay”. The impugned order in connection with back wages for the period from 29.03.1997 or 06.05.2006 till his date of superannuation in the year 2014 does not call for any interference. 21. So far as revision of pension on account of notional promotion is concerned, this Court finds that the plea of “no work no pay” will not be available. The fact remains that the respondents have already granted notional promotion to the petitioner pursuant to the order passed by this Court. The respondents have verified the records and have already granted notional promotion to the petitioner w.e.f.

29.03.1997, but without giving monetary benefit. 22. This Court is of the considered view that grant of notional promotion w.e.f. 29.03.1997 will certainly have abearing on the pension of the petitioner. Once notional promotion has been granted with effect from w.e.f. 29.03.1997, such revision of pension cannot be denied on the basis of the principle of ‘no work, no pay’. The respondents having granted notional promotion to the petitioner w.e.f.

29.03.1997 cannot be permitted to deprived the petitioner of its impact on the pension and payment on account of arrears of pension. The consequential monetary benefits arising out of notional promotion cannot be denied to the petitioner. Revision of pension on the basis of notional promotion will not affect any third-party rights. 10

23. Accordingly, this Court holds that the pension of the petitioner is to be re-fixed by taking the notional date of promotion i.e.

29.03.1997. Upon re-fixation of pension, the arrears of pension are also required to be paid to the petitioner. 24. Accordingly, the impugned order dated 18.11.2021 whereby the petitioner has been deprived from all financial benefits arising out of his notional promotion w.e.f. 29.03.1997 is hereby set aside only to the extent it relates to claim of pension on the basis of notional promotion. It is held that the petitioner is entitled for notional fixation of pension on the basis of his notional promotion at the basic grade of the promotional post and consequently, the pension of the petitioner is required to be revised and the arrears of pension is also required to be paid to the petitioner. 25. The needful be done by the Respondent No.2 within a period of two months from the date of receipt of a copy of this order alongwith the writ records. The necessary instructions be issued to the office of the learned Accountant General, Jharkhand, Ranchi in connection with revision of pension and also for payment of arrears of pension to the petitioner. The Respondent No.2 should make all endeavor to ensure that the monetary benefit arising out of this order is remitted to the petitioner within a period of 5 months from the date of the representation. 26. This writ petition is accordingly disposed of with the aforesaid observations and directions. 27. Pending interlocutory application, if any, is closed. Mukul (Anubha Rawat Choudhary, J.)