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PETITIONER: STATE OF HARYANA & ORS. ETC.

       Vs.

RESPONDENT: O.P. GUPTA ETC.

DATE OF JUDGMENT:       12/01/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (3)   141        1996 SCALE  (1)602

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CIVIL APPEAL NO. 2416 OF 1996                 ----------------------------          (Arising out of SLP (C) No. 3799 of 1995)                          O R D E R      Leave granted.      We  have   heard  the   counsel  on   both  sides.  The controversy runs on a very narrow thread.      Admittedly, 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.

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    The 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.      Shri 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.      Having 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. Preparation  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.      This 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

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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.      It is  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.      In 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.      The appeals are accordingly allowed. No costs.