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Judgment
ORDER
By Hon’ble Ms. Manju Pandey, Member (A):-Learned counsel for the parties are present and heard.
The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, praying for the following reliefs:–
“(A)To issue order or direction in the nature of certiorari quashing the order dated 16.12.2011 (Annexure No.A-1 to the O.Α. to Compilation No.I) passed by the respondent No.3, through which his legitimate arrears on notional promotion have been denied w.e.f. 31.01.1997 to 05.06.2011.
(B)To issue order or direction in the nature of mandamus directing the respondents to pay 18% interest on the arrears w.e.f. 31.01.1997 to 05.06.2011 till date the payment is actually made.
(B)To issue any order or direction, which this Hon'ble Tribunal may deem fit and proper under the circumstances of the case.
(C)To award cost to the applicants.”
The brief facts of the case, as stated in the Original Application, are that the applicant was appointed as an Administrative Officer in the Indian Council of Agricultural Research (ICAR) pursuant to Memorandum dated 28.01.1992 and joined service on 13.04.1992. Thereafter, he was transferred from the Indian Agricultural Research Central Administrative TribunalInstitute (IARI), New Delhi, to the Central Institute for Research on Buffaloes (CIRB), Hisar, vide Office Order dated 29.05.1992. In the final inter se seniority list of Administrative Officers issued on 13.06.1996, the applicant was placed at Serial No. 10. On 20.01.1997, several officers junior to the applicant were promoted to the post of Senior Administrative Officer (SAO). However, the applicant was denied promotion on account of adverse remarks recorded in his Annual Confidential Report (ACR) for the year 1995–96 by the then Director, CIRB, Hisar. The applicant submitted a representation against the adverse remarks, alleging that they had been recorded with mala fide intent because he had reported certain irregularities and malpractices against the Director. Subsequently, after departmental proceedings initiated against the Director and the findings of the Central Vigilance Commission, the competent authority expunged the adverse remarks from the applicant's ACR vide Memorandum dated 26.07.2000. Thereafter, the applicant was promoted as Senior Administrative Officer vide Office Order dated 30.05.2001 and joined the promotional post on 06.06.2001 after his transfer to the Indian Institute of Sugarcane Research (IISR), Lucknow. Subsequently, a Review Departmental Promotion Committee (Review DPC) was convened and, vide order dated 26.09.2002, the applicant was granted notional promotion to the post of Senior Administrative Officer with effect from 31.01.1997, and his seniority was revised accordingly. However, the respondents rejected his claim for arrears of pay and allowances for the period from 31.01.1997 to 05.06.2001 vide order dated 29.09.2004. Aggrieved thereby, the applicant filed O.A. No. 1258 of 2005 before this Tribunal. The said Original Application was disposed of vide order dated 19.02.2010 with a direction to the respondents to reconsider the applicant's claim in the light of the judgments of the Hon'ble Supreme Court. Pursuant thereto, the respondents passed the impugned order dated 16.12.2011. Dissatisfied with the same, the applicant initiated Contempt Petition No. 68 of 2012, which came to be disposed of on 10.02.2017. Subsequently, on a Modification Application, this Tribunal vide order dated 06.02.2018 clarified that if the applicant was still aggrieved by the compliance Central Administrative Tribunalorder, he would be at liberty to challenge the same by filing a fresh Original Application. Hence, the present Original Application.
Per contra, the respondents have filed a counter affidavit raising a preliminary objection that ICAR is a society registered under the Societies Registration Act and that, in terms of Rule 23(c) of the ICAR Rules and Bye-laws, the Council can sue or be sued only through the Secretary, ICAR. It has, therefore, been stated that respondent Nos. 1 to 3 are neither proper nor necessary parties for adjudication of the issues involved in the present Original Application. It has further been stated that the Original Application is highly barred by limitation and that the applicant has failed to implead the Central Institute for Research on Buffaloes (CIRB), Hisar, which is a necessary party. On merits, it has been stated that owing to the adverse entries recorded in the applicant's ACRs, the Departmental Promotion Committees held on 12.12.1996, 01.12.1997 and 03.12.1999 did not recommend the applicant for promotion to the post of Senior Administrative Officer. It has further been stated that after the adverse remarks were expunged with the approval of the competent authority, a Review Departmental Promotion Committee was convened on 21.08.2002 to review the proceedings of the DPC held on 12.12.1996, on the basis of whose recommendations the applicant was granted notional promotion to the grade of Senior Administrative Officer with effect from 31.01.1997. It has also been stated that, in compliance with the judgment and order dated 19.02.2010 passed by this Tribunal, the respondents examined the applicant's claim in consultation with the Department of Personnel and Training (DoPT). The DoPT, vide I.D. Note dated 12.01.2011, advised that in terms of paragraph 18.4.3 of DoPT Office Memorandum No. 22011/5/86-Estt.(D) dated 10.04.1989, where adverse remarks are toned down or expunged subsequent to consideration by the DPC, the officer should be promoted immediately on the basis of the recommendations of the Review DPC and, if no vacancy is available, the junior-most person officiating in the higher grade should be reverted to accommodate him. It has been further stated that, on such promotion, the officer's pay is to be fixed under FR Central Administrative Tribunal27 at the stage it would have reached had he been promoted from the date his immediate junior was promoted; however, no arrears of pay are admissible for the period of notional promotion. Accordingly, it has been pleaded that the applicant's request for arrears of pay and allowances could not be acceded to. It has further been stated that in the case of Shri K.G. Sudarsanam, the CAT, Jabalpur Bench, directed fixation of his seniority, against which the Institute preferred Writ Petition No. 4341 of 2004 before the Hon'ble High Court. It has been stated that the Hon'ble High Court upheld the fixation of seniority of Shri K.G. Sudarsanam with effect from 24.11.1982 and that consequential benefits were granted in compliance with the said judgment. It has been contended that, in the present case, the applicant's claim was duly reconsidered in compliance with the directions of this Tribunal and, in view of the applicable DoPT instructions dated 10.04.1989, the claim for arrears was rightly rejected.
The applicant has filed a rejoinder reiterating the averments made in the Original Application and denying the contentions raised in the counter affidavit. It is stated that the Director (Finance) has been impleaded in view of the objection taken by the respondents and that the Under Secretary (Administration), ICAR, has also been impleaded since the impugned order dated 16.12.2011 was issued by him. It is further submitted that after disposal of O.A. No. 1258 of 2005, the applicant had filed Contempt Petition No. 68 of 2012, which was disposed of on 10.02.2017 and later modified by order dated 06.02.2018 in Modification Application No. 861 of 2017, granting liberty to file a fresh Original Application. The applicant has relied upon the judgments in Food Corporation of India v. S.N. Nagarkar, Bir Singh Kadian v. State of Haryana & Others, and K.P. Srivastava v. Union of India, contending that where an employee is retrospectively promoted after being wrongly denied promotion for no fault of his own, he is entitled not merely to notional promotion but also to Central Administrative Tribunal consequential monetary benefits, including arrears of pay. The applicant has also placed reliance upon the case of Shri K.G. Sudarsanam, wherein, according to him, consequential monetary benefits were extended by the respondents after the dismissal of the writ petition filed before the Hon'ble High Court. It is contended that the applicant stands on an identical footing and has been discriminated against by denying him similar benefits, despite the fact that he was always willing to discharge the duties of the promotional post but was unlawfully prevented from doing so.
The applicant has relied upon the following judgments in support of his contentions:
Union of India v. K.V. Jankiraman, (1991) 4 SCC 109 : AIR 1991 SC 2010, decided on 27.08.1991.
Bir Singh Kadian v. State of Haryana & Others, CWP No. 12568 of 1993 (Punjab & Haryana High Court), decided on 26.04.1994.
Food Corporation of India v. S.N. Nagarkar, Civil Appeal No. 2489 of 2000, decided on 29.01.2002, reported in (2002) 2 SCC 475 : AIR 2002 SC 808.
We have heard the learned counsel for both the parties and have also gone through their pleadings.
The Applicant is before us for the second time for the same grievance. The earlier O.A. No. 1258 of 2005 before this Tribunal was decided vide order dated 19.02.2010, with a direction to the respondents to reconsider the applicant's claim in the light of the judgments of the Hon'ble Supreme Court. Pursuant thereto, the respondents passed the impugned order dated 16.12.2011. Dissatisfied with the same, the applicant initiated Contempt Petition No. 68 of 2012, which came to be disposed of on 10.02.2017. Subsequently, on a Modification Application, this Tribunal, vide order dated 06.02.2018, clarified that if the applicant was still aggrieved by the compliance order, he would be at liberty to challenge the same by filing a fresh Original Application. Central Administrative TribunalHence, the present Original Application.
The Rule position in the case of review DPC is clear, which has been described at para 18.4.3 of the DoPT Office Memorandum No. 22011/5/86-Estt.(D) dated 10.04.1989, where, if the adverse remarks are toned down or expunged subsequent to consideration by the DPC, the officer should be promoted immediately on the basis of the recommendations of the Review DPC and, if no vacancy is available, the junior-most person officiating in the higher grade should be reverted to accommodate him. It has been further stated that, on such promotion, the officer's pay is to be fixed under FR 27 at the stage it would have reached had he been promoted from the date his immediate junior was promoted; however, no arrears of pay are admissible for the period of notional promotion. The Respondent Department, based on the comments of DOPT, have decided the case as per the Rules on the subject.
The Rule position in the case is very clear. The Respondents have taken action as per the rule position in the matter and, as soon as the adverse remarks were expunged, review DPC was carried out and notional promotion was accorded to the applicant from the date his juniors had been promoted. This rule, in fact, is there to take care of officials where adverse remarks are subsequently expunged and to see to it that such officials do not lose their seniority and are not adversely affected. However, arrears of salary are not admissible as the official has not actually worked on the post, as he was not promoted along with his juniors initially because of his adverse APAR. Salary would only be admissible once the incumbent joins on the post.
In State of Haryana & Ors. v. O.P. Gupta & Ors., reported in (1996) 7 SCC 533, decided by the Hon’ble Supreme Court on 12 January 1996, it was held that:
“Having 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 Central Administrative Tribunal promotion and posting to follow. Until that exercise is done, the respondents cannot be posted in the promotional posts. Therefore, their contention that though they were 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 untrammeled 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 December 1, 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 Ramakrishnaiah & Ors. vs. Union of India & Anr. [(1989) 2 SCR 92 at page 109] 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 post, 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 vs. Avinash Chandra Chadha [(1990) 3 SCC 482] in paragraph 16.
It is true, as pointed out by Sri Hooda, that in Union of India vs. K.V. Jankiraman [AIR 1991 SC 2010] this Court had held that where the incumbent was willing to work but was denied the opportunity to work for no fault of him, he is entitled to the payment of arrears of salary. That is a case where the respondent was kept under suspension during departmental enquiry and sealed cover procedure was adopted because Central Administrative Tribunal of the pendency of the criminal case. When the criminal case ended in his favour and departmental proceedings were held to be invalid, this Court held that he was entitled to the arrears of salary. That ratio has no application to the cases where the claims for promotion are to be considered in accordance with the rules and the promotions are to be made pursuant thereto.
In these appeals unless the seniority list is prepared and finalised and promotions are made in accordance with the Rules on the basis of the above seniority list, the question of entitlement to work in the promotional posts does not arise. Consequently, the payment of arrears of salary does not arise since, admittedly the respondents had not worked during that period. The High Court was, therefore, wholly illegal in directing payment of arrears of salary. The order of the High Court accordingly is quashed.
Further, the Delhi High Court in Delhi Transport Corporation vs Harish Chand Gupta W.P.(C) No. 4728 of 2011 on 21 October, 2013t that:
9.This Court in Writ Petition No.1483/2003 has left it to the wisdom of the Competent Authority to take a decision with regard to wages on promotion keeping in view the terms of Fundamental Rules. The Competent Authority having taken a view on the basis of FR.27 and office memorandum dated February 20, 1967 coupled with the fact that the litigation for arrears of pay was initiated after 7 years, we do not find any infirmity in the order dated August 13, 2004 denying the arrears of salary.
10.The issue of grant of arrears of pay has come up for consideration before the Supreme Court and this Court on many occasions. This Court in its judgment in Writ Petition (Civil) No.7334/2012 decided on May 20, 2013 Union of India & Anr. vs. Thanglalmuon has held as under:
"Even this Court in the opinion reported as 2002 III AD Delhi 264 Amar Singh v. Union of India applying the principle of ‘No Work No Pay’ has held that the action of the Government denying the arrears of pay to an employee cannot be said to be unreasonable. In Para 5 and 6 it was noted as under:-
"5.The petitioner claimed a higher seniority position on the ground Central Administrative Tribunalthat he was drawing higher salary and a higher scale of pay from the date of his initial appointment in the establishment of respondent No.2. On amalgamation of different posts and creation of a new cadre, the petitioner was placed below some of the persons, who were drawing lesser pay scale than him. Consequently, he filed representations before the respondents for re-fixation of his seniority taking into consideration of the fact that he was in a higher grade of pay than the persons who were shown senior to him. The aforesaid contention of the petitioner was rightly found to be justified and accordingly the seniority list was re-drawn. Based on that revised seniority list the review DPC was held. It recommended his promotion from a retrospective deemed date. The issue is because he was given a notional promotion from a retrospective date should he be also paid arrears for the said period.
It is true that the petitioner was not at fault for his inability to actually work in the post of Research Officer from 1992, onwards till 1996 when actually the order of promotion was passed. It is, however, required to be considered that before giving the permission for holding a review DPC the Department of Personnel and Training made it explicitly clear that the said permission may be considered for giving notional promotion but the same shall have to be without payment of arrears. Such a decision was conveyed because of clear stipulation in Clause 18.4.3 of the circular issued by the Department of Personnel and Training. A bare reading of the said clause makes it apparent that in case where an injustice is created and a junior person is promoted earlier than the said mistake and injustice shall have to be rectified by giving notional promotion from the date his juniors were promoted. The very purpose of giving notional promotion is to take care of some injustice, inter alia, because some junior has come to be promoted earlier. In this connection, reference may be made to a decision of the Supreme Court in Union of India v. M.Bhaskar reported in 1996 (4) SCC 416.
In view of the Rule position of DOPT in the matter and the judicial discussions above, there seems to be no merit in the case as notional promotion has already been given and arrears of salary are not admissible since the applicant has not actually worked in the post.
Accordingly, the instant Original Application is dismissed. No order as to costs.
All pending MAs, if any, are also dismissed.