Shri Sudhir Kumar vs Union of India And Ors

Shri Sudhir Kumar has filed this O.A. on 29.10.2015 seeking quashing and setting aside of the order dated 30.03.2015 (Annex-A-1) regarding claim of the applicant for payment of arrears of difference of wages from 31.07.2001 to 14.11.2014 in various grades as per promotion order dated 14.11.2014 along with 12% interest till the actual payment is made. He also seeks cost of this application.

Facts of the case:

2(a). The applicant belongs to staff of ministerial category (Non-Personnel S&T branch) and at the time of filing of the O.A. he was working as Chief Office Superintendent with Senior Divisional Signal & Telecommunication Engineer, Nagpur under the administrative control of Respondent No.2 i.e. D.R.M., Central Railway, Nagpur.

2(b). The applicant has stated that he joined service as directly recruited Sr. Clerk on 11.11.1994 against the Graduate quota and was posted in Nagpur Division as per the seniority list of Senior Clerks dated 13.11.1997. In that seniority list he was at Sr.No.12 with date of appointment as 11.11.1994 (Annex-A-2). The applicant claims that in the seniority list of Sr. Clerks published by Respondent No.2 on 15.12.2000, Smt.Rajkumari Malhotra who passed the Departmental examination for promotion from Junior Clerk to Senior Clerk on 21.03.1997 and was granted retrospective promotion and seniority as Sr. Clerk from 26.03.1990. Similarly Shri P.K. Singh was appointed as Jr. Clerk on 09.02.1998 and after passing the examination for Sr. Clerks on 25.08.1998 has also been promoted as Sr. Clerk from 23.06.1990.

2(c). He further claims that he joined as Sr. Clerk on 11.11.1994 after being directly recruited whereas Smt.Rajkumari Malhotra and Shri P.K. Singh had joined earlier as Jr. Clerks and after passing the examination in 1997 and 1998 were granted seniority from 26.03.1990 above the applicant i.e. by placing them at Sr.No.1 and 2 whereas the applicant was placed at Sr.No.10.

2(d). Being aggrieved by the above mentioned seniority, the applicant made several representations and thereafter filed O.A.2188/2001. This O.A. was allowed by order of the Tribunal dated 25.10.2005 directing the placement of the applicant in the cadre of Sr. Clerks above Respondent No.5 and 6 in the O.A. i.e. Smt.Rajkumari Malhotra and Shri P.K. Singh (Annex-A-4 and 5).

2(e). Against the order of the Tribunal dated 25.10.2005 in O.A.2188/2001, the respondents filed Writ Petition No.3820/2006 which was dismissed on 12.08.2014 upholding the decision of Tribunal (Annex-A-6). Subsequently the respondents issued order on 14.11.2014 granting proform promotion and seniority to the applicant on par with Shri P.K. Singh in the cadre of Head Clerks from 31.07.2001, in the cadre of Office Superintendent Gr.II from 16.10.2003 and in the cadre of Chief Office Superintendent from 07.12.2009 but without any arrears of pay stating that the applicant is not eligible for any arrears of pay since he had not shouldered any higher responsibility (Annex-A-7).

2(f). Representation of the applicant submitted on 26.02.2015 for payment of arrears of wages was also rejected on 30.03.2015 stating that the applicant had been granted only proform promotion and pay fixation and benefit of seniority, and he was not eligible for payment of arrears of wages with interest (Annex-A-1). The applicant has challenged in this O.A. the order of 30.03.2015.

Contentions of the parties: The applicant contends that -

3(a). the Respondent No.2 illegally promoted Smt.Rajkumari Malhotra and Shri P.K. Singh as Head Clerk/O.S. Gr.II and Chief O.S. before the applicant. Based on the order of the Tribunal, although the applicant has been promoted on the dates when Shri P.K. Singh was promoted but he has been deprived of the wages of the higher post, although he was willing to work in the higher grades and thus he was kept away from performing duties of higher grade. Therefore, the principle of 'No work no pay' is not applicable in his case;

3(b). by challenging the order of the Tribunal in O.A.2188/2001 dated 25.10.2005 which was in favour of the applicant, the respondents unnecessarily indulged in litigation by filing the Writ Petition and thereby they deprived the applicant of actual work on higher post. The applicant has also cited a decision in O.A.2079/2007 filed by Shri H.R. Raut decided by the Tribunal on 29.11.2012 directing the respondents that Shri Raut would be entitled for monetary benefits for 3 years preceding the date of filing of the O.A.;

3(c). since the applicant was senior to Shri P.K. Singh even as Sr. Clerk and also to Shri H.R. Raut, he is entitled for arrears of wages with interest. When counsel for the respondents submitted that the present applicant ought to have sought the relief of payment of arrears to him on his notional promotions in his earlier O.A. i.e. 2188/2001, the counsel for the applicant categorically stated that he had not claimed payment of arrears of wages in his earlier O.A. and as per Section 22 of the Administrative Tribunal Act, the O.A. can be allowed.

The counsel for the respondents have contended that -

3(d). although the applicant seeks payment of arrears of wages on promotion from 31.07.2001 to 14.11.2014, in the earlier O.A. filed by him i.e. O.A.2188/2001 decided on 25.10.2005, he did not seek this relief. The relief sought by him in the earlier O.A. is at page 25 of the O.A., it was to declare the seniority list published on 15.12.2000 be illegal and direction to respondents No.1,2,3 and 4 to correct the above seniority list by placing the applicant at Sr.No.8, and in the interim relief he also sought direction to the respondents no.1,2,3 and 4 to consider the applicant for promotion from the post of Sr. Clerk to the post of Head Clerk by treating him as being at Sr.No.8 in the seniority list dated 15.12.2000;

3(e). since he had not claimed arrears of pay in his earlier O.A., neither the Tribunal nor the High Court in Writ Petition No.3820/2006 ordered payment of arrears to the applicant. Since the applicant had failed to raise the issue of entitlement of arrears of pay and the earlier adjudication by the Tribunal and the High Court is conclusive and final not only as regards to the actual matter determined therein but also every other matter which the applicant might and ought to have raised in offence or defence and he ought to have got it decided as incidental to or essentially connected with the subject matter of the earlier O.A. Therefore, the claim of the applicant for payment of arrears is barred by constructive res-judicata hence the O.A. is not maintainable;

3(f). to clarify his submission, the counsel for the respondents has further cited the following caselaws:

(i). In Devilal Modi Vs. Sales Tax Officer, Ratlam, AIR 1965 SC 1150, it was pointed out that if constructive res-judicata is not applied, a party can file as many writ petitions as he likes and take one or two issues at every point and to permit the same would be opposed to considerations of the public policy on which res-judicata is based.

(ii). In The Workmen of Cochin Port Trust Vs. The Board of Trustees, 1978 AIR 1283, the Apex Court view was thus-

"It is well-known that the doctrine of res judicata is codified in Section 11, Civil Procedure Code but it is not exhaustive, Section 11 general comes into play in relation to civil suits. But apart from the codified law the doctrine of res judicata has been applied since long in various other kinds of proceedings and siutations by Courts in England, India and other countries. The rule of constructive res judicata is engrafted in Explanation IV of Section 11 and in many other situation also principles not only of direct res judicata but of constructive res judicata are also applied. If by any judgment or order any matter in issue has been directly and explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties. The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, i.e. it must be deemed to have been necessarily decided by implication, then also the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defense or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, is taken a decided."

(iii). In Forward Construction Co. Vs. Prabhat Mandal, AIR 1986 SC 391, it was held that in view of explanation IV to Section 11 of Civil Procedure Code, it could not be said that the earlier judgment would not operate as res judicata as one of the grounds taken in the subsequent petition was absent in the earlier petition.

(iv). In P.K. Vijayan Vs. Kamalakshi Amma, AIR 1994 SC 2145, it has been held that it is a sheer abuse of process of the Court to raise at each successive stage different pleas to protract the proceedings or to drive the party to multiplicity of proceedings. It would be fair and just that the parties do raise all available relevant pleas in the suits or the proceedings when the action is initiated and the omission thereof does constitute constructive res judicata to prevent raising of the same at a later point of time and thereby it must be deemed that they are waived.

In view of the above caselaws, the respondents claim that the present O.A. is not maintainable and should be dismissed as misconceived; and 3(g). since he is seeking payment of arrears on his promotion from 31.07.2001 to 14.11.2014 in various grades, he ought to have sought this relief in the earlier O.A. Since he had not sought this relief in the earlier O.A., he cannot seek relief dependent on his promotions in the new O.A. i.e. present O.A. as principle of constructive res-judicata applies. Hence the present O.A. is not maintainable and the Tribunal cannot grant arrears of wages to him now. Therefore, this O.A. should be dismissed.

Analysis and conclusions:

I have perused the O.A. memo and its annexes, and rejoinder of the applicant, reply filed by the respondents, various caselaws cited by the parties and considered the arguments advanced by both of them.

4(a). In the earlier O.A.2188/2001, the present applicant had sought relief for declaring the seniority list dated 15.12.2000 as illegal and direction to the respondents No.1,2,3 and 4 to correct that list by placing the applicant at Sr.No.8 in that list and also direction to those respondents to consider the applicant for promotion from the post of Senior Clerk to the post of Head Clerk by treating him as being at Sr.No.8 in the seniority list on 15.12.2000.

4(b). In the present O.A. relief sought by the applicant is for quashing and setting aside the order of 30.03.2015 by which his claim for payment of arrears of difference of wages was rejected, and direction to the respondents to pay the arrears of difference of wages from 31.07.2001 to 14.11.2014 in various grades as per promotion order of 14.11.2014. From these reliefs sought in the two OAs it is clear that the submission of counsel for the applicant that he did not seek any relief in the earlier O.A. in terms of payment of arrears of wages on his promotion is false. Since whatever relief was sought by him in O.A.2188/2001, which by implication also included his request for payment of higher wages on promotion, he cannot claim that relief now in the new O.A.

4(c). On this point, the submission of the respondents that principle of constructive res-judicata will apply is correct. The applicant cannot seek the same relief again and again when it has already been sought and decided in the earlier O.A. and the Writ Petition.

4(d). By order of 14.11.2014, the respondents have promoted the present applicant from the post of Sr. Clerk to the post of Head Clerk from 31.7.2001, from the post of Head Clerk to Office Superintendent Gr.II from 16.10.2003, and from the post of Office Superintendent Gr.II to Chief Office Superintendent from 07.12.209 (Annex-A-7). That order also specifically mentioned that the applicant is not eligible for payment of arrears since he had not shouldered higher responsibility.

4(e). In addition to the clear position that the applicant in the earlier O.A. had sought relief not only in terms of the fixation of seniority at the claimed position in the seniority list, he had also sought promotion which by implication meant that he had also claimed payment of higher wages. However, in the order of the Tribunal in O.A.2188/2001, the relief in terms of the payment of arrears to the applicant was not granted. So the applicant cannot seek this relief now in the present O.A. It means this relief had been waived by him.

4(f). In addition to the above analysis in the context of the O.A. about payment of arrears of pay when only notional promotion is granted the law settled in the following case laws is pertinent:-

4(g). In Civil Appeal No.2013/1990 decided on 25.04.1990 in Virender Kumar, General Manager, Northern Railways, New Delhi Vs. Avinash Chandra Chadha and others, (Para 13), it has been mentioned that High Court had categorically denied the emoluments of higher post to the respondents with retrospective effect. This is because the respondents had not actually worked on the said post and, therefore, on the principle of 'No work no pay' they were not entitled for higher salary. In view of the similar facts in the present case, the applicant is also not entitled for payment of salary based on his notional promotions. This contention of the respondents has force and is justified.

4(h). In a number of writ petitions (Civil) dated 28.03.1989 Paluru Ramakrishniah and others Vs. Union of India and another/others, it was held that rule of 'No work no pay' will also apply where a person was given a notional promotion with effect from the date his junior was promoted. No financial benefits can be claimed retrospectively by such persons and they would be entitled only to refixation of pay on the basis of notional seniority granted to them. In that decision a decision of the Madhya Pradesh High Court was cited in which it had been held that the service rule is that there has to be no pay for no work, that a person will not be entitled to any pay and allowances during the period for which he did not actually perform the duties of higher post. At the most the entitlement would be only to refixation of salary on the basis of notional seniority. In view of the settled law on this aspect as above, the respondents have rightly contended that the applicant is not entitled for the payment of higher salary from the dates of his notional promotions.

4(i). In a decision of the High Court of Delhi in Writ Petition (Civil) No.7334/2012 decided on 20.05.2013 (Union of India & another Vs. Thanglalmuon), the issue of payment of arrears dealt with in various Supreme Court decisions was mentioned, such as in State of Haryana Vs. O.P. Gupta [(1996) 7 SCC 533], Paluru Ramkrishnaiah & Ors. Vs. Union of India & Another [1989 2 SCC 541] and Virender Kumar G.M., Nrlys. Vs. Avinash Chandra Chadha, in which the Apex Court directed for preparation of fresh seniority list and accordingly promotion to eligible persons on notional basis from due dates but without arrears of pay. The view taken in the Union of India Vs. B.N. Jha [(2007) 11 SCC 632] was also cited here in which it had been held that arrears of salary cannot be granted in view of the principle of 'No work no pay' in case of retrospective promotion. A decision in Amar Singh Vs. Union of India [2002 III AD Delhi 264] was also cited in which denial of arrears based on promotion from retrospective deemed date was held as fully justified.

After careful consideration of the issue raised in the present O.A. along with various caselaws cited by the respondents as well as the additional caselaws mentioned above, I conclude that the present O.A. lack maintainability and also is devoid of merits and, therefore, it fails.

Decision:

The O.A. is dismissed as not maintainable and also on merits. The parties to bear their own cost.