Shaji M.P. vs Union Of India & Ors.

By Shri Kumar Rajesh Chandra, AM.

The Original application has been filed by the applicant being aggrieved by the non grant of arrears of pay and allowances on account of his belated promotion orders dated 03.03.2015, 07.05.2015 and 19.05.2015 despite order of this Tribunal dated 07.05.2014 directing to grant him promotion with consequential seniority and other benefits.

Briefly, the case of the applicant is that the applicant was appointed on 29.08.1996 on the post of Engineer under respondent no.3 establishment. He belongs to Scheduled Caste category. In the Departmental Promotion Committee meeting held on 01.06.2006 for promotion to the post of Senior Engineer from the post of Engineer, there were 3 posts, one of which was reserved for scheduled caste category. Even though the applicant was under the zone of consideration, his name was not recommended on the ground of non fulfillment of minimum requirement. Copy of minutes of that meeting is annexed as Annexure A/1. The meeting of the Departmental Promotion Committee was again held on 16.06.2007 for the same promotion exercise, but again the name of the applicant was withheld and his junior was given promotion (Annexure A/2). Even in the subsequent Departmental Promotion Committee meeting held on 18.11.2008, the applicant's name was not recommended for promotion as Senior Engineer and his Junior, Shri Promod Panchoniya was promoted (Annexuге А/3). The applicant submitted his representations to the respondents from time to time, copy of the same are collectively annexed as Annexure A/4. The representations were rejected by order dated 29.08.2011 (Annexure A/5) issued by respondent no 3. On these facts the applicant approached this Tribunal with O.A. No.242/2013 and by order dated 07.05.2014 (Annexure A/6), this Tribunal directed the respondents to consider the case of the applicant afresh excluding uncommunicated adverse entries and if he is found suitable, he should be given promotion with consequential benefits. In pursuance of the aforesaid order, the respondent no.3 issued an order dated 03.03.2015 (Annexure A/7) granting the applicant promotion to the post of Senior Engineer w.e.f. 01.07.2006, but this order was made effective w.e.f. 07.06.2014 and arrears were not paid to the applicant. Another order in the form of corrigendum was issued on 07.05.2015 (Аnnexure A/8) by respondent no.3 changing the date of promotion of the applicant from 01.07.2006 to 01.08.2007 and here again the arrears of pay and allowances to the promotional post were given w.e.f. 07.05.2014 and not from the date of retrospective promotion. The respondent no. 3 issued consequential order of revision of pay of the applicant on 19.05.2015 (Annexure A/9) fixing notionally pay of the applicant, but payments were made w.e.f 07.05.2014 instead of from 01.08.2007. As the entire relief granted by this Tribunal was not given to the applicant, he filed Contempt Petition No. MA/201/1067/2018 before this Tribunal and by an order dated 13.03.2019 (Annexure A/10), this Tribunal permitted the applicant to withdraw this Contempt Petition with liberty to file a fresh application. Accordingly, this application was filed. The applicant submits that when he was found fit for promotion to the post of Senior Engineer w.e.f 01.08.2007, all arrears of pay and allowances of the promotional post should have been granted to the applicant w.e.f 01.08.2007 instead of from 07.05.2014 because the applicant did not refuse to work on the promotional post, but he was deliberately kept away from the promotional post, without any fault on the part of the applicant and his juniors were given all these financial benefits.

The respondents have filed their reply, wherein it has been submitted by the respondents that contempt petition filed by the applicant was numbered as Civil Contempt Petition No. 201/42/2017. The contempt petition filed by the applicant was dismissed by holding that order dated 07.05.2014 has been substantially complied with. The M. A. No. 201/1067/2018 was certainly withdrawn by the applicant. A perusal of the Original Application, Misc Application and Contempt Petition filed by applicant would show that applicant had claimed arrears of pay. This Tribunal has denied the relief of arrears of pay in original application, dismissed the contempt petition and the applicant had withdrawn the Misc application. Hence the present application filed by the applicant is barred by principle of res judicata and the application deserves to be dismissed on this ground alone. Copy of the order passed in Civil Contempt Petition No. 201/42/2017 is hereto annexed as Annexure R/1 to the reply.

This Tribunal has considered the matter and perused the documents annexed herewith the Original Application. The judgments relied upon by the counsel for both the parties have also been taken into consideration.

The counsel for the respondents submitted that earlier the O.A. was allowed and thereafter the respondents proceeded as per the directions of the Tribunal. The contempt filed by the applicant was also dismissed by this Tribunal stating that the order of this Tribunal has been substantially complied. Furthermore, the M.A. was also dismissed as withdrawn by this Tribunal.

It is clear that the applicant had filed OA No.242/2013 before this Hon'ble Tribunal, which was allowed and the respondent no.3 was directed to re-consider the case of the applicant excluding the uncommunicated adverse remarks and to give him promotion and also assign consequential seniority and other benefits may be granted if allowable under law. Thereafter, the applicant was found fit for promotion to the post of Senior Engineer w.e.f 01.08.2007, but the arrears of the promotional post were given to him only w.e.f 07.05.2014.

It is clear that the earlier in the O.A.242/2013 the order was passed in favour of the applicant (Annexure A/6). The M.A./201/1067/2018 was withdrawn by the applicant with liberty to file afresh if occasion arise. Pursuant to it, the applicant filed this Original Application as per the directions of this Tribunal for grant of arrears and other benefits from 2007.

The Hon’ble High Court of Madhya Pradesh at Gwalior in the similar circumstances in the case of State of Madhya Pradesh and others vs. Jham Singh Pandre in its para 8 & 9 has held that:

The principle of No work No pay will not be applicable in the present case as the applicant was not allowed to work for the fault on behalf of the respondents which is solely attributed to the respondents not the applicant. We do not find any proper justification on behalf of the respondents that if promotion is granted w.e.f 01.08.2007 then why the arrears of pay and allowances to the promotional post were given w.e.f. 07.05.2014 and not from the date of retrospective promotion.

The applicant was kept away from the benefits of promotional post of Senior Engineer, without any fault on his part. This Tribunal while deciding the O.A. No.242/2013 has also allowed the case of the applicant. Accordingly, the applicant is entitled to the benefits of promotional post right from the date of his being found fit for such promotion i.e., 01.08.2007 with all arrears.

Accordingly, this Original Application is allowed with directions to the respondents as applicant is entitled to the benefits of promotional post right from the date of his promotion i.e, 01.08.2007 so the arrears of pay and allowances be given to the applicant from the same date i.e. w.e.f. 01.08.2007. It is made clear that interest on the payment of arrears for the interregnum period at the G.P.F. rate shall be paid to him. No order as to costs.