of Haryana & Ors Vs. O.P. Gupta  INSC
57 (12 January 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
JT 1996 (3) 141 1996 SCALE (1)602
APPEAL NO. 2416 OF 1996 ---------------------------- (Arising out of SLP (C)
No. 3799 of 1995)
O R D
have heard the counsel on both sides. The controversy runs on a very narrow
the respondents were working in Haryana Service Engineers, Class II Public
Works Department (Irrigation Branch). They are governed by the Haryana Service
Engineers Class II Public Works Department (Irrigation Branch) Rules, 1970.
There was inter se dispute regarding the promotion to the higher echelons of
service which ultimately resulted in the order passed by this Court on August 7, 1990 in Civil Appeal No. 3837/90.
Therein, this Court had directed the Government to prepare the seniority list
in accordance with Rule 9 of the Rules ignoring the instructions contained in para
11.4 of the Manual and any other inconsistent instruction running counter to
the Rules and to prepare a fresh list strictly in accordance with the rules
untrammeled by inconsistent observations made by the High Court. It was also
mentioned that if any promotions had already been made, those promotions were
directed not to be disturbed. Following the directions, seniority list has been
prepared and promotions accordingly were given to all the eligible persons. We
are informed that about 90 persons have been promoted. They have also been given
the scale of pay to which they are eligible in the promoted posts. The
respondents in these appeals have approached the High Court by filing writ
petitions claiming payment of arrears. The High Court in the impugned order
dated 29.9.1993 made in CWP No. 6760/93 and batch directed payment of arrears
from the deemed date given in the seniority list to the date of their posting
in the promotional posts. Thus, these appeals by special leave.
only controversy in these cases is: whether the respondents are entitled to
arrears of salary for the period during which admittedly they had not worked
but they had been given national promotion from the deemed date. We have
computed the deemed date as January 1, 1983.
They have joined the duty on December 1, 1992.
Therefore, the period for which they claimed arrears would be from January 1, 1983 to November 30, 1992. We are informed that some of them had retired even before
that date and, therefore, they have been given national promotion till the date
of their retirement.
Gupta, learned counsel appearing for the State, contended that the State was
prepared to comply with the direction issued by the High Court in the first
instance for the preparation of the seniority list but the rival candidates who
claimed inter se seniority over the others approached the Division Bench and
also this Court for relief; since, ultimately, this Court has decided that
seniority has to be prepared strictly in accordance with Rule 9 of the Rules,
on receipt thereof, the Government have complied with the conditions of the
preparation of the seniority list. Accordingly, they have been given the
promotion with the deemed dates, though there was no specific direction in that
behalf. Others who had joined the service have not claimed, except the
respondents, but some of them were not even parties to the earlier writ
proceedings or to the appeal in this Court and consequently, they are not
entitled to the arrears. It is contended by Shri S.M. Hooda, learned counsel
appearing for the respondents that the respondents were willing to work in the
respective posts but they were not given the same. To avoid their entitlement,
a seniority list was wrongly prepared denying them their entitlement to work in
the promotional post; consequently, the respondents are entitled to the arrears
of salary and the High Court was right in granting the same.
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.
of the seniority list under Rule 9 is a condition precedent for consideration
and then to pass an order of 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.
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.
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 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.
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.
appeals are accordingly allowed. No costs.
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