Union of India & Anr Vs. Tarsen Lal
& Ors [2006] Insc 603 (21 September 2006)
Arijit
Pasayat & Lokeshwar Singh Panta
(Arising
out of SLP (C) No. 23021 of 2005) ARIJIT PASAYAT, J.
Leave
granted.
Union
of India and its functionaries call in question correctness of the judgment
rendered by a Division Bench of the Punjab and Haryana High Court dismissing
the writ petition filed by the present appellants and affirming the order of
the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (in short the
'CAT').
Background
facts in a nutshell are as follows:
Respondent
filed the Original Application claiming that he was entitled to pay and
allowance from the date on which proforma promotion was given and not from the
date of actual promotion. Appellants relied on circular dated 15/17 September,
1964 to contend that the claim was untenable.
According
to CAT the only question which was to be decided was whether the respondent was
entitled for his pay and allowance from August, 2001 on which date he was actually
promoted as M.C.M. or with effect from 9.9.1997 from which date he has been
given promotion on proforma basis.
Appellants
denied him the arrears with effect from 9.9.1997 on the ground that he has not
worked on the promotional post during the said period and as such he was not
entitled for the revised pay from that date. Reliance was placed on paragraph
228 of Indian Railway Establishment Manual (in short 'IREM') Volume I dealing
with employees who have lost promotion on account of administrative error. It
inter alia provides that in such cases the pay should be fixed on proforma
basis and the enhanced pay was to be allowed from the date of actual promotion
and no arrears on this account was to be paid for the past period as he did not
actually perform duties and responsibilities of the higher post. The Tribunal
relying on a decision of this Court in Harbans Singh v. State of Punjab and Others (1995 Supp. (3) SCC 471)
held that the stand was unsustainable. Tribunal's order was assailed before the
High Court.
The
High Court as noted above dismissed the writ petition relying on the judgment
in Harbans Singh's case (supra).
Learned
counsel for the appellant submitted that the view of the Tribunal as affirmed
by the High Court does not reflect the correct position in law. Para 228 of
IREM was pressed into service to contend that the Tribunal or the High Court in
the instant case did not express any view on the legality of the provision. The
CAT and the High Court merely relied on Harbans Singh's case (supra) without
indicating as to how the factual scenario of that case has any application to
the facts of the present case.
There
is no appearance on behalf of the respondent in spite of notice.
Para 228 of IREM reads as follows:
-
"Erroneous
Promotions
-
Someties due to
administrative errors, staff are over looked for promotion to higher grades
could either be on account or wrong assignment of relative seniority of the
eligible at the time of ordering promotion or some other reasons. Broadly, loss
of seniority due to the administrative errors can be of two types:-
-
Where a person
has not been promoted at all because of administrative error, and
-
Where a person
has been promoted but not on the date from which he would have been promoted
but for the administrative error.
Each
such case should be dealt with on its merits. The staff who have lost promotion
on account of administrative error should on promotion be assigned correct
seniority vis-`- vis their juniors already promoted, irrespective of the date
of promotion. Pay in the higher grade on promotion may be fixed proforma at the
proper time. The enhanced pay may be allowed from the date of actual promotion.
No arrears on this account shall be payable as he did not actually shoulder the
duties and responsibilities of the higher posts." This court has occasion
to deal with the same issue in Union of India and Ors. v. P.O. Abraham and Ors.
in C.A. 8904 of 1994 decided on 13.8.1997.
In that case the appeal was filed against the order of the Ernakulam Bench of
CAT.
Reliance
was placed by the Union of India and its Functionaries in that case on Railway
Board's Circular dated 15/17 September, 1964 which inter alia provided as
follows:
"No
arrears on this account shall be payable as he did not actually shoulder the
duties and responsibilities of the higher post. " One Bench of CAT held
that clause to be invalid. But in Virender Kumar, General Manager, Northern
Railways, New Delhi v. Avinash Chandra Chadha and Others (1990(3) SCC 472) the
view was held to be not correct. The order in Abraham's case (supra) reads as
follows:
"This
appeal is directed against the order of the Central Administrative Tribunal, Ernakulam
Bench, in O.A.No. 649/90 dated 30th September, 1991. Though the appeal challenges the order in its entirety. Mr. Goswami,
learned senior counsel for the appellants, fairly stated that the appeal is now
confined only to the payment of back-wages ordered to be given by the Tribunal.
By the
order under appeal, the Tribunal has allowed the application which challenged
the Railway Board Circular dated 15/17 September, 1964. The said Circular inter
alia, contains the following clause:
"No
arrears on this account shall be payable as he did not actually shoulder the
duties and responsibilities of the higher posts." Consequent to the
deletion of the above clause, further directions were given. Learned counsel
submits that the clause, which has been directed to be removed, is in
accordance with the judgment of this Court in Virender Kumar, General Manager,
Northern Railways, New Delhi V. Avinash Chandra Chadha & Ors. (1990 (2) SCR
769). This Court, in that case, held on principle of 'no work no pay' that the
respondents will not be entitled to the higher salary as they have not actually
worked in that post. The clause, which has been directed to be deleted by the
Tribunal, being in consonance with the ruling of this Court, we are of the
opinion that the Tribunal was not right in directing the deletion of that
clause.
Accordingly,
to that extent this appeal is allowed. The result is that the respondents will
be given deemed promotion, if any, before retirement and also the benefit in
the matter of fixing pension. No costs." In view of what has been stated
in Virendra's case (supra) and P.O. Abraham's case (supra), Tribunal and the
High Court were not justified in granting relief to the respondent.
Reliance
on Harbans Singh's case (supra) was uncalled for.
The
orders are set aside. The appeal is allowed but in the circumstances without
any orders as to costs.
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