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CASE NO.: Appeal (civil)  4222 of 2006

PETITIONER: Union of India & Anr.                                    

RESPONDENT: Tarsen Lal & Ors.                                                

DATE OF JUDGMENT: 21/09/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (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

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(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:

"228. Erroneous Promotions \026 (I). 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:-

i.      Where a person has not been  promoted at all because of  administrative error, and  ii.     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

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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.