S.I. Bhim Singh v. State of Haryana

appellant-plaintiff. The case set up in the suit for declaration preferred at the instance of appellant-plaintiff was that he was entitled for arrears of promotional post of Junior Auditor w.e.f. 22.03.1980 along with interest from the date of accrual till the date of payment.

2.1 Upon notice, the respondents-defendants appeared and filed joint written statement while submitting that the suit was not maintainable as the appellant-plaintiff did not actually worked on the promoted post of Junior Auditor from the deemed date of promotion as such, he was not entitled to the arrears of pay and allowance on the promoted post for the said period and prayed for dismissal of the suit. RSA-442-2000 (O&M) --3--

#3. The learned Trial Court vide judgment and decree dated

30.01.1999 dismissed the suit filed at the instance of the appellant-plaintiff.

#4. Aggrieved thereof, the appellant-plaintiff preferred the first appeal, however, the same came to be dismissed vide judgment and decree dated 26/27.07.1999 passed by the learned First Appellate Court while upholding the judgment passed by the learned Trial Court. Hence, the present regular second appeal. CONTENTION(S): ON BEHALF OF THE APPELLANT(S)-PLAINTIFF(S):

#5. Impugning the aforementioned judgments and decrees, learned counsel for the appellant submits that once the appellant was granted the benefit of counting of military service from 20.08.1963 to 10.01.1968 vide order dated 09.12.1994 (Ex.P-4) towards seniority and increment followed by subsequent order dated 15.03.1995 (Ex.P-5), whereby his deemed date of promotion as Junior Auditor was fixed as 22.03.1980 for pay fixation and other benefits, the appellant-plaintiff was required to be granted the benefit of actual arrears as against the post of Junior Auditor w.e.f. 22.03.1980 to

15.03.1995. In support, he places reliance upon judgment passed by this Court in “S.I. Bhim Singh vs. State of Haryana” reported as 1995(3) RSJ

#141. Learned counsel thus submits that the judgments and decrees passed by the Courts below were liable to be set aside and the suit preferred at the instance of appellant-plaintiff was to be decreed. ON BEHALF OF THE RESPONDENT(S)-DEFENDANT(S):

#6. Per contra, learned counsel appearing on behalf of respondents- defendants submits that the judgments and decrees passed by the Courts below being based on proper appreciation of material facts, thus call for no RSA-442-2000 (O&M) --4-- interference and as such, present appeal was liable to be dismissed. DISCUSSION AND REASONING:

#7. I have heard learned counsel for the parties and gone through the paper book and the records of the case. I find substance in the submissions made on behalf of the appellant-plaintiff.

#8. In the present case, admittedly, the appellant-plaintiff joined the respondent-Department as Clerk on 25.02.1977. Vide order dated

09.12.1994 (Ex.P-4), he was given the benefit of counting his military service, rendered from 20.08.1963 to 10.01.1968, towards seniority and increments. As a result, his deemed date of joining was changed from

25.02.1977 to 04.10.1972. Later, vide order dated 15.03.1995 endorsed on 21/22.03.1995 (Ex.P-5), his deemed date of promotion as Junior Auditor was fixed as 22.03.1980, though on a notional basis, for fixation of other benefits. The short grouse raised on behalf of the appellant-plaintiff is that he is entitled to the arrears of the promotional post of Junior Auditor for the period 22.03.1980 to 15.03.1995, along with interest.

#9. A perusal of the record shows that the learned Courts below denied the claim on the ground of "no work no pay", holding that since the appellant-plaintiff had not actually worked on the promotional post during this period, he was not entitled to the arrears. The reliance was placed upon the decisions of the Hon'ble Apex Court in "State of Haryana vs. O.P. Gupta etc.", 1996 (7) SCC 533 and "Paluru Ramakrishnaiah vs. Union of India", 1989 (2) SCC 541. In the humble opinion of this Court, the aforementioned judgments are clearly distinguishable on the given facts. In the case of O.P. Gupta (supra), actual arrears of salary were denied despite the grant of retrospective promotion, for the reason that the delayed RSA-442-2000 (O&M) --5-- promotion was an effect of a pending dispute relating to seniority. In Paluru Ramakrishnaiah's case (supra), the actual difference of arrears of pay was denied for the reason that as on the deemed date of promotion granted in favour of the petitioner therein, no vacancies to the promoted posts were available, and actual promotion was ordered as soon as the vacancies became available.

9.1. On the other hand, the claim of the appellant-plaintiff was that, consequent upon the benefit of counting of military service fixing his deemed date of joining as 04.10.1972 (as against his actual date of joining on 25.02.1977) and the resultant grant of deemed date of promotion as

22.03.1980; he was entitled to release of actual arrears against the promotional post of Junior Auditor for the period 22.03.1980 to 15.03.1995. Reference in this regard can be made to SI Bhim Singh’s case (supra). Relevant paras 8 to 11 are reproduced hereunder:- “8. In T.P. Sivasankaran and others v. State of Kerala and others, 1980(3) S.L.R. 224. a Full Bench of the Kerala High Court held that when promotions are given pursuant to the directions even by the High Court the Government's action of giving only notional promotions and refusal to pay back wages will be deemed to be contrary to the directions of the High Court.

#9. In Bir Singh Kadian v. State of Haryana, 1994(3) SCT 423 (PAH)(DB): 1994(4) S.L.R. 424. a Division Bench of this Court followed the law laid down in K.V. Jankiraman's case (supra) and declared that with retrospective promotion an employee is entitled to all monetary benefits including fixation of his pay and grant of arrears of salary.

#10. In view of the principles of law laid down by the Supreme Court and by this Court, 1 have no hesitation to hold that denial of monetary benefits to the petitioners in spite of their retrospective promotions is without any legal or constitutional sanction. By denying monetary benefits to the petitioners, the respondents have directly infringed their right of equality before law. A direct consequence of denial of monetary benefits to the petitioners would be that the persons juniors to them would have enjoyed the actual benefits of promotions and the petitioners despite having been RSA-442-2000 (O&M) --6-- declared senior and having been found entitled to promotion from earlier dates will stand deprived of the real and substantial benefits.

#11. Consequently, the writ petition is allowed. The conditions incorporated in Annexures P.5 and P.6 denying monetary benefits to the petitioners are declared illegal and are hereby quashed. The respondents are directed to pay to the petitioners all monetary benefits to which they became entitled as a result of their retrospective promotions. Such benefits shall be calculated and granted to the petitioners within a period of four months of the submission of a certified copy of this order before the Director General of Police, Haryana, failing which the petitioners shall get interest at the rate of 18% per annum with effect from the date of this order. In the event thye respondent-Government is required to pay interest to the petitioners, the Government shall recover that amount from the salary of the officers of the Government who may be responsible for not giving effect to this order.”

#10. The present case is distinguishable from O.P. Gupta’s case (supra) and Paluru Ramakrishnaiah’s case (supra) on the source of the delay itself. In those cases, the delay in promotion arose either from a pending inter-se seniority dispute or from the non-availability of vacancies on the deemed date, both being circumstances that were, in a real sense, beyond anyone's remedy at the relevant time and thus attracted the "no pay for no work" principle in its strict form. In the present case, by contrast, the delay flowed solely from the belated processing and grant of the military- service benefit already due to the appellant-plaintiff, a default squarely attributable to the respondent-Department and not to any act, omission or disqualification on the part of the appellant-plaintiff.

#11. Moreover, this Court is mindful that the principle of "no work no pay" is not an absolute rule. The Hon’ble Apex Court in Union of India v. K.V. Jankiraman, (1991) 4 SCC 109, authoritatively held that the normal rule of "no work no pay" is not applicable to cases where the employee, although willing to work, is kept away from work by the authorities for no RSA-442-2000 (O&M) --7-- fault of his. Similarly, in State of Kerala v. E.K. Bhaskaran Pillai, (2007) 6 SCC 524, the Hon’ble Apex Court held that denial of monetary benefits would be unjust where promotion is delayed due to reasons beyond the control of the employee. The relevant portion thereof is extracted hereunder:- "…..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 sometime 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….."

#12. In the present case, the appellant-plaintiff was, at all material times, present, working and available to serve on the promoted post; he was kept out of it only because the respondent-Department delayed in extending to him the benefit it was otherwise bound to grant. The "no work no pay" principle, being founded in equity, cannot be pressed into service to shield the very administrative delay that occasioned the loss. Further, State, being a model employer, is expected to act fairly. When it corrects an illegality by granting retrospective promotion, it must, as far as possible, restore the employee to the same financial position in which he would have been but for the wrongful act.

#13. In view of the aforesaid discussion, the judgments and decrees RSA-442-2000 (O&M) --8-- dated 30.01.1999 and 26/27.07.1999 passed by the Courts below are hereby modified to the extent that the appellant-plaintiff shall be entitled for grant of benefit of release of difference of arrears of salary for the post of Junior Auditor w.e.f. 22.03.1980 to 15.03.1995 along with interest @ 6% per annum upto the date of actual release.

#14. Pending application(s), if any, also stand disposed of.

21.07.2026 sonika (HARKESH MANUJA) JUDGE Whether speaking/reasoned: Yes/no Yes/no Whether reportable: