State of Jharkhand vs Ashok Kumar Tiwary

Sujit Narayan Prasad, J

The appeal is under Clause 10 of the Letters Patent directed against the order/judgment dated 10.05.2023 passed by the learned Single Judge of this Court in W.P.(S) No. 559 of 2023 by which the State of Jharkhand has been directed by holding the writ petitioner entitled for notional fixation of pension on the basis of his notional promotion at the basic grade of the promotional post and accordingly, subsequent direction has been passed for revision of pension and release of arrears of pension in favour of the writ-petitioner within the stipulated period of five months from the date of the representation.

The brief facts of the case as per the pleading made in the writ petition which is required to be enumerated reads as under:-

“The petitioner (respondent no.1 herein) 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.

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 issue regarding grant of out of turn promotion to the petitioner (respondent no.1 herein) has been forwarded to the Police Headquarters, Bihar, Patna vide Letter No.578/G dated 18.05.2006. In the meantime, the petitioner (respondent no.1 herein) 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.

The petitioner (respondent no.1 herein) 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 (respondent no.1 herein) 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 parity and to pass reasoned order. Thereafter, a reasoned order vide memo no. 1940/G dated 18.11.2021 has been passed by the Inspector General of Police (Human Rights), Jharkhand.

Being aggrieved with the part of the order dated 18.11.2021 by which petitioner (respondent no.1 herein) has been deprived from all financial benefits arising out of his notional promotion w.e.f. 29.03.1997, the petitioner (respondent no.1 herein) has preferred writ petition being W.P.(S) No.559 of 2023 before the learned single Judge of this Court.

The learned Single Judge vide order dated 10.05.2023 has set aside the order dated 18.11.2021 only to the extent it relates to claim of pension on the basis of notional promotion and has held that the petitioner (respondent no.1 herein) 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 (respondent no.1 herein) is required to be revised and the arrears of pension is also required to be paid to the petitioner (respondent no.1 herein).

The State being aggrieved with the order dated 10.05.2023 has preferred the present appeal.

It is evident from the factual aspect that the writ petitioner while working as Constable has claimed for out of turn promotion as he had shown bravery along with other police personnel while conducting the encounter of the dacoits, who looted 11 lakhs rupees from the LIC officials in Hazaribagh on 29.03.1997.

It is stated that on 06.05.2006, notional promotion was granted to other persons who had accompanied the writ petitioner (respondent No.1 herein). As per the record, the petitioner had filed certain representations to claim similar relief in the year 2013 and ultimately superannuated in the year 2014 without getting the out of turn promotion.

Being aggrieved writ petitioner has approached to this Court by filing writ petition being W.P.(S) No. 3530 of 2020 which was disposed of vide order dated 15.12.2020 wherein the following direction was passed: -

“6. 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 were worked as a team along with 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.”

In pursuance of the aforesaid order the writ petitioner has preferred representation and acting on the said representation the respondents- authorities have come out with an order dated 18.11.2021 granting the writ petitioner notional promotion with effect from 29.03.1997 but denied the petitioner to 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.

The writ petitioner has again raised the grievance by filing the writ petition being W.P.(S) 559 of 2023 for quashing the part of the order dated 18.11.2021, bearing Memo No. 1940/G. by which the petitioner has been 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. In the said writ petition further prayer was made for issuance of 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 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. Further direction was sought the respondents to revise the pension of the petitioner after granting the benefits as prayed in the preceding prayers.

The said writ petition being W.P.(S) No.559 of 2023 has been disposed of vide order dated 10.05.2023 with the following observation and directions: -

“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 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.

So far as the claim of back wages from 29.03.1997 or 6. 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.

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.

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.

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.

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.

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.”

The aforesaid judgment/order dated 10.05.2023 is the subject matter of the present appeal preferred by the State of Jharkhand.

Submission of the learned Counsel for the Respondents

Mr. R.K. Shahi, learned Associate Counsel to the Standing Counsel Mr. Ratnesh Kumar has submitted that the judgment passed by the learned Single Judge suffers from patent illegality due to the following reasons: -

(i) The learned Single Judge has not appreciated the fact about the applicability of the principle of delay and laches. The writ petitioner has claimed the promotion said to be retrospective one with effect from 29.03.1997, which has been claimed by him after lapse of considerable period, that too, after his retirement in the year 2014 by filing a writ petition being W.P.(S) No.3530 of 2020.

(ii) It has been submitted that there is no error in the order passed by the authority/order passed by the State in denying the financial benefit by applying the principle of “no work no pay”. The learned Single Judge has not appreciated the aforesaid fact.

(iii) It has been contended that since the writ petitioner has already retired from service in the year 2014 and, as such, he had got no occasion to join the said post and, as such, there is no occasion to discharge duty of the said post.

(iv) The learned Associate Counsel appearing for the State-appellant, based upon the aforesaid ground, has submitted that the judgment passed by the learned Single Judge suffers from an error and, as such, not sustainable in the eye of law.

It requires to refer herein that from perusal of the order dated 22.04.2025 it is evident that notice has been issued to the respondent no.1 (writ petitioner) on 10.12.2024. However, today no representation has been made on behalf of the respondent no.1 (writ petitioner herein).

Mr. Sunil Kumar Agarwal appearing for the respondent no.2 states that the respondent no.2 is only Performa party.

Analysis

We have heard the learned counsel for the parties and gone through the pleadings made in the writ petition as also the finding recorded by the learned Single Judge in the impugned judgment.

The issues which require consideration in the present appeal are as under: -

(i) Whether in the facts and circumstances of the case the principle of delay and laches will be applicable i.e. in a case where the State itself has acted upon on the basis of the direction passed by this Court granting promotion with retrospective effect i.e. with effect from 29.03.1997.

(ii) Is it available for the State to question its retrospectivity by denying the financial benefit for the purpose of refixation of the pension?

(iii) Whether in the matter of pensionary benefit the principle of delay and laches is made applicable where the pension has been held to be recurring cause of action?

Since all the issues are interlinked and, as such, being taken up together.

So far as the issue of delay and laches is concerned, we are conscious that the writ Court being the court of equity where the Limitation Act is not applicable but the principle of delay is certainly applicable.

The Hon’ble Apex Court in the case of Mrinmoy Maity Vs. Chhanda Koley and others 2024 INSC 314 has categorically observed that delay or laches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India but the discretion to be exercised would be with care and caution and if the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances delay can be condoned and there may be circumstances which gives rise to the invoking of the extraordinary jurisdiction and it all depends on facts and circumstances of each case, same cannot be described in a straight jacket formula with mathematical precision. It has further been observed that the ultimate discretion to be exercised by the writ court depends upon the facts that it has to travel or the terrain in which the facts have travelled.

It needs to refer herein that the Hon’ble Apex Court in the case of Tridip Kumar Dingal and others v. State of W.B and others., (2009) 1 SCC 768 has held that “there is no upper limit and there is no lower limit as to when a person can approach a court and the question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose.”

Thus, the applicability of delay and laches is to be assessed on the basis of the facts and circumstances i.e. if the State has acted in order to decide the entitlement of one or the other employees, then it is not available for the State to take the ground of delay and laches to extend the benefit to the similarly situated persons and in that circumstances the principle of fence-sitter will not be applicable, reference in this regard is made to the judgment rendered in the case of State of U.P. Vs. Arvind Kumar Srivastava reported in (2015) 1 SCC 347. For ready reference, the relevant paragraph is quoted hereunder:

22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.

We are also conscious that the principle of back-wages is not to be made admissible on the principle of “no work no pay”. But denial of back-wages on the principle of applicability of “no work no pay” is also not a normal rule rather it is also to be assessed on the basis of the applicability of the facts and circumstances of the case.

If the concerned employee who is claiming the back-wages if deprived from performing his duty forcefully then in such circumstances the principle of “no work no pay” will not be applicable, reference in this regard is made to the judgment rendered in the case of Union of India Vs. K.V. Jankiraman reported in (1991) 4 SCC 109. For ready reference, the relevant paragraphs are quoted hereunder:

It was further contended on their behalf that the normal rule is “no work no pay”. Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed under suspension, When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly.

We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of “no work no pay” is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.

But equally, it is settled that if the employee concerned on its own has not discharged his duty, then in such circumstances the principle of “no work no pay” will be applicable and the back-wages will be denied. The same position of law has been reiterated by the Hon’ble Apex Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others reported in (2013) 10 SCC 324 which is being reproduced hereinbelow: -

38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.

38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.

38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-àvis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80] .

38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal [(2007) 2 SCC 433] that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80] , [Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443] referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman

It is evident from the aforesaid judgment, more particularly para-38.3 which starts as “Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments”.

It is, thus, evident from the aforesaid paragraph that the ordinarily a pleading is to be made before the adjudicating authority of the court of first instance that he/she was not gainfully employed.

Thus, it is evident that para-38.5 stipulates condition to award back wages in the following situation, where :

(i) employer has acted in gross violation of the statutory provisions, and/or;

(ii) the employer has acted in violation of the principles of natural justice or;

(iii) the employer is guilty of victimising the employee or workman.

The second issue which is to be considered regarding the applicability of the principle of delay and laches in the matter of refixation of the pension due to the consequence of grant of retrospective promotion as has been granted by the State in compliance to the direction passed by this Court dated 15.12.2020 in W.P.(S) No.3530 of 2020.

The pension being the recurring cause of action and due to denial or less payment of the amount of pension, the pensioner is made to suffer on day to day basis, and as such, the cause of action will be said to be accrued on day to day basis and that is the reason the claim of pension has been held to be recurring cause of action, reference in this regard is made to the judgment in the case of Union of India v. Tarsem Singh [(2008) 8 SCC 648] wherein at paragraph-4 of the Judgment, the Hon’ble Apex Court has observed as under:

The principles underlying continuing wrongs and recurring/successive wrongs have been applied to service law disputes. A “continuing wrong” refers to a single wrongful act which causes a continuing injury. “Recurring/successive wrongs” are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan [AIR 1959 SC 798] explained the concept of continuing wrong (in the context of Section 23 of the Limitation Act, 1908 corresponding to Section 22 of the Limitation Act, 1963) : (AIR p. 807, para 31)

“31. … It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury”

The law is also settled by Hon'ble Apex Court that the pension will be said to be recurring cause, reference in this regard be made to the judgment rendered in the case of M.L. Patil (Dead) through Legal Representatives v. State of Goa, (2023) 1 SCC 660. For ready reference the relevant paragraph of the aforesaid judgment is being quoted hereunder as:—

“6. As such, the High Court may be right and/or justified in denying any salary for the period of two extra years to the writ petitioners if they would have continued in service, on the ground of delay. However, as far as the pension is concerned, it is a continuous cause of action. There is no justification at all for denying the arrears of pension as if they would have been retired/superannuated at the age of 60 years. There is no justification at all by the High Court to deny the pension at the revised rates and payable only from 1-1-2020. Under the circumstances, the impugned judgment and order [Laxman J. Chavan v. State of Goa, 2020 SCC OnLine Bom 236] passed by the High Court is required to be modified to the aforesaid extent.”

This issue has also been considered by Hon'ble Apex Court in the case of Rushibhai Jagdishbhai Pathak v. Bhavnagar Municipal Corporation, 2022 SCC OnLine SC 641 wherein at paragraph-10, it has been held which is being referred and quoted hereunder as:—

“10. At the same time, the law recognises a “continuing‟ cause of action which may give rise to a “recurring‟ cause of action as in the case of salary or pension. This Court in M.R. Gupta v. Union of India has held that so long as the employee is in service, a fresh cause of action would arise every month when they are paid their salary on the basis of a wrong computation made contrary to the rules. If the employee's claim is found to be correct on merits, they would be entitled to be paid according to the properly fixed pay-scale in future and the question of limitation would arise for recovery of the arrears for the past period. The Court held that the arrears should be calculated and paid as long as they have not become time-barred. The entire claim for the past period should not be rejected.”

Adverting to the factual aspect of the present case which is admitted from the available pleading that the writ petitioner who has claimed his promotion to the higher post at the time when he was working as Constable. The promotion was denied and thus, he approached to this Court by filing a writ petition being W.P.(S) No. 3530 of 2020 wherein the writ petitioner was directed to file a fresh representation within a period of three weeks along with all the credentials, on which, he is relying and pointing out that the persons who were worked as a team along with the writ petitioner in the encounter of dacoits, have been promoted and the writ petitioner has not been promoted. If such representation is filed within the aforesaid period, a decision shall be taken in accordance with rules, regulations and guidelines including the claim of parity as made out by the writ petitioner and pass appropriate reasoned order, within a period of eight weeks thereafter.

The admitted fact is that the State has not challenged that part of the order by filing any Letters Patent Appeal rather has acted upon on the basis of the said direction passed by this Court and the moment the representation was filed in compliance to the order passed in W.P.(S) No. 3530 of 2020, the State has granted notional promotion in favour of the writ petitioner with effect from 29.03.1997 but however, without any financial benefit.

The question of denial of the financial benefit has been assailed by the writ petitioner. The learned Single Judge has agreed to the contention raised on behalf of the State so far as it relates to denial of the arrears of difference of salary to the writ petitioner, but has disagreed with the view taken for not holding the writ petitioner entitled for the consequential benefits of the promotion in the refixation of the pensionary benefit.

That part of the order is under challenge by way of the instant appeal on the grounds as agitated on behalf of the State-appellant as referred hereinabove.

The State has chosen to file an appeal. This Court has posed a pin-pointed question to the learned State Counsel that why the State has preferred an appeal once the notional promotion has been granted by the State acting upon on the basis of the direction passed by the High Court in W.P.(S) No. 3530 of 2020.

Upon which, learned State counsel has become speechless and there cannot be any argument, since the State cannot be allowed to blow hot and cold at a time. If the State was having any intention not to extend any benefit of back-wages particularly, the consequential benefits of the refixation of the pension then the State would ought to have challenged the order passed by this Court in W.P.(S) No. 3530 of 2020 instead of acting upon on the basis of that order by granting promotion in favour of the writ petitioner to the higher post.

The contention which has been raised on behalf of the learned State Counsel that the writ petitioner has retired sometime in the year 2014 and the writ petition was filed in the year 2020, so, there is delay and laches. We are not disagreeing with this contention but the question is that if that was the issue then why the order passed by this Court in W.P.(S) No. 3530 of 2020 was accepted instead of challenging it by filing appeal before the higher forum rather than acting upon the said order.

The State once has acted on the basis of the direction passed in W.P.(S) No. 3530 of 2020, then it is not available for the State to now question its own conduct by taking the ground that the writ petitioner is not entitled for the financial benefit particularly for the pensionary benefit as directed by the learned Single Judge which is impugned in the present appeal.

Pension being the recurring cause of action and applying the same principle the learned Single Judge is correct in denying the financial benefit particularly for the pensionary benefit so far as the arrears of difference of salary is concerned, but if the learned Single Judge has commanded the State to give benefit of the consequences of the promotion by refixing the pension, the same cannot be said to be improper as it being claimed by the State by filing the instant appeal.

If the contention of the State will be accepted then the question is that for what reason the notional promotion was given to the writ petitioner, that too, in compliance to the direction passed by this Court in W.P.(S) No. 3530 of 2020.

The further reason for not accepting such submission is that the State now is willing to revise or review its own decision which has already been taken by the State in compliance to the order passed by this Court in W.P.(S) No. 3530 of 2020.

This Court after having discussed the aforesaid legal and factual aspect and adverting to the finding recorded by the learned Single Judge in the impugned order dated 10.05.2023, is aware of the fact about the applicability of the principle of “no work no pay” has been taken into consideration, but segregating it on account of the consequence of the promotion for the purpose of refixation of pension, according to our considered view, the view so taken by the learned Single Judge cannot be said to suffer from an error.

Accordingly, the instant appeal fails and is dismissed.

Interim order dated 24.06.2025 passed by this Court stands vacated.

I.As., if any, stand disposed of.