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CASE NO.: Appeal (civil)  7953 of 2004

PETITIONER: State of Kerala  & Ors.

RESPONDENT: E.K. Bhaskaran Pillai

DATE OF JUDGMENT: 17/04/2007

BENCH: A.K.MATHUR & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

A.K. Mathur, J.

                        Heard learned counsel for the parties.

This appeal has been filed against the order dated 28.11.2002 passed  by the Division Bench of Kerala High Court whereby the Division Bench of  the High Court  has granted limited relief to the writ-petitioner (respondent  herein) by which he was given the benefit of arrears of salary on the date of  his filing the application, i.e., 15.6.1972 and not with effect from 15.9.1961  as prayed by him.   

The facts necessary for disposal of this appeal are that the writ- petitioner joined the service on 25.2.1957 and while working as First Grade  Draftsman his juniors were promoted and the petitioner was not  He filed a  representation dated 15.6.1972 calling upon the Government to give him all  the benefits of promotion which were given to his juniors.  His  representation was not considered.  Therefore, he filed O.P. No. 585 of 1975  and the High Court by order dated 12.8.1977 directed the Government to  consider the representation of the petitioner with reference to any policy  decision and on the merits of the representation made by the petitioner.  The  Government considered the representation of the petitioner sympathetically  and directed that the petitioner be granted promotion with effect from  15.9.1961.  By order dated 4.1.1979 the petitioner was actually promoted  and he joined the promotional post  on 11.5.1979 and retired from service on  31.7.1980.  Thereafter, he made an application that he may be given all  benefits of promotional post with effect from 15.9.1961.  The monetary  benefits were not given to the petitioner.  Lots of correspondence transpired  in between and ultimately Government by order, Ext.P5  directed that the  petitioner would be entitled to monetary benefits only for the period i.e.,  11.5.1979 till 31.7.1980 during which period he actually worked on the  promotional post.  It was also clarified that he would be entitled to all  benefits from 15.9.1961 except the monetary benefits.  The petitioner made  further representation but without any result.  Therefore, he again filed a writ  petition  and the learned Single Judge held that the petitioner was not  entitled to get any monetary benefits from 15.9.1961 to 10.5.1979.  But it  was directed that pensionary benefits would  be paid to the petitioner as if he  had worked as Assistant Engineer from 15.9.1961 i.e., from the date he was  promoted.  Thereafter, a review petition was filed.  The learned Single Judge  by his order dated 3.12.1997 in R.P. No.331 of 1997 held that the petitioner  was entitled to his salary for the period from 15.6.1972 till 11.5.1979.   However, it was made clear that no interest would be paid.  Then again, the  petitioner filed a Writ Appeal which came to be registered  as W.A. 1560 of  1998 for the monetary benefits from 15.9.1961.  The State also preferred a  Writ Appeal which came to be registered as  W.A. 1451 of 1998.  The State  claimed that the review was not justified.  Both the appeals were taken

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together.  However, question of review order passed by the Court was not  interfered with and the Writ Appeal filed by the State challenging the review  order passed by the learned Single Judge was dismissed.  However, the  Division Bench examined the question of grant of monetary benefits to the  petitioner on his retrospective promotion from 15.9.1961.  The Division  Bench referred to various decisions of this Court as well as the judgment of  the Kerala High Court.  After going through all case laws on the subject,  the  High Court directed that  the petitioner would be entitled to higher pay on  account of retrospective promotion with effect from 15.6.1972 when he filed  O.P. 585 of 1975 but declined to grant any benefit from 15.9.1961.   Ultimately the Court passed the order that the petitioner should be paid all  the monetary benefits with effect from 15.6.1972 within 90 days failing  which the petitioner was entitled to interest @ 9 per cent on the date on  which such amount was due.  Aggrieved against this order dated 28.11.2002,  the State of Kerala preferred this Special Leave Petition. Learned counsel for the State has submitted that grant of retrospective  benefit on promotional post cannot be given to the incumbent when he has  not worked on the said post.  Therefore, he is not entitled to any benefit on  the promotional post from 15.6.1972.  In support thereof, the learned counsel  invited our attention to  the decisions of this Court in Paluru Ramkrishnaiah  & Ors. Vs. Union of India & Anr. [(1989) 2 SCC 541], Virender Kumar,  G.M., Northern Railways Vs. Avinash Chandra Chadha & Ors.[ (1990) 3  SCC 472] ,  State of Haryana & Ors. Vs. O.P. Gupta & Ors. [ (1996) 7 SCC  533], A.K. Soumini Vs. State Bank of Travancore & Anr.[ (2003) 7 SCC  238] and Union of India & Anr. Vs. Tarsem Lal & Ors. [ (2006) 10 SCC  145].  As against this, the learned counsel for the  respondent has invited our  attention to the decisions  given by this Court in Union of India & Ors. Vs.  K.V. Jankiraman  & Ors.[ (1991) 4 SCC 109], State of A.P. Vs. K.V.L.  Narasimha Rao & Ors.[ (1999) 4 SCC 181], Vasant Rao Roman Vs. Union  of India & Ors. [1993 Supp. (2) SCC 324] and  State of U.P. & Anr. Vs.  Vinod Kumar Srivastava [(2006) 9 SCC 621].  We  have considered the  decisions cited on behalf of both the sides.  So far as the situation with  regard to monetary benefits with retrospective promotion is concerned, that  depends upon case to case.  There are various facets  which have to be  considered.  Sometimes in a case of departmental enquiry or in criminal case   it depends on the authorities to grant full back wages or 50 per cent of back  wages looking to the nature of delinquency  involved in the matter or in  criminal cases where the incumbent has been acquitted by giving benefit of  doubt or full acquittal.  Sometimes in the matter when the person is  superseded and he has challenged the same before  Court or Tribunal and he  succeeds in that and  direction is given  for reconsideration of his case from  the date persons junior to him were appointed, in that case the Court may  grant sometime  full benefits with retrospective effect and sometimes it may  not.  Particularly  when the administration has  wrongly denied his due then  in that case he should be given full benefits including monetary benefit  subject to there being any change in law or some other supervening factors.  However,   it is very difficult to set down any hard and fast rule.  The  principle  ’no work no pay’ cannot be accepted as a rule of thumb. There are  exceptions  where courts have granted monetary benefits also. However, so far as present case is concerned, as per directions given  by the Court, petitioner’s case was considered and it was found that persons  junior to him were appointed  and he was wrongly denied.  Therefore, the  petitioner was promoted from retrospective effect i.e. 15.9.1961 but he was  not paid the benefit of promotion in terms of arrears of salary.  Therefore, he  approached the Court  and  learned Single Judge did  not give him the  monetary benefit of the promotional post from retrospective effect in terms  of arrears of salary.  In the review application, the benefit was given  from  the date he filed O.P. No. 585 of 1975 i.e. 15.6.1972. This appears to be  reasonable.  The petitioner did not approach the Court for the back wages  from 15.9.1961 but he filed a petition  dated 15.6.1972 and the Court granted  the benefit from the date of filing of the petition before the Court i.e.  15.6.1972.       The incumbent in the meanwhile has retired on 31.7.1980.   Therefore, looking to the facts and circumstances of the case, the view taken  by the High Court appears to be justified and there is no ground to interfere  in it.

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The appeal is accordingly dismissed with no order as to costs.