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PETITIONER: VIRENDER KUMAR, GENERAL MANAGER, NORTHERNRAILWAYS: NEW DELHI

       Vs.

RESPONDENT: AVINASH CHANDRA CHADHA AND ORS.

DATE OF JUDGMENT25/04/1990

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. SHARMA, L.M. (J)

CITATION:  1991 AIR  958            1990 SCR  (2) 769  1990 SCC  (3) 472        JT 1990 (3)   503  1990 SCALE  (1)857

ACT:     Service  Law--Railways--Class 111  Service--Traffic  Ap- prentices  --Recruitment of--25  by direct  recruitment  and 75    by   promotion  to   departmental   officials   called Rankers--Merger  of sources of recruitment and  constitution of  a  single  unified cadre  of  "Relieving  Transportation Assistants"--Seniority  and promotion--Initial claim  before High Court confined to seniority and promotion in  Class-III service--Railways  working  out  promotions  upto   Class-II service--Concerned  employees  gaining   substantially--Held employees not entitled to further promotions in Class-I as a matter of right.     Service Law--Deemed promotion--Payment of emoluments  on higher posts with retrospective effect--Held entitlement  to higher grades. on account of deemed promotions on the  basis of quota and rota rule is inequitable and  irrational--Prin- ciple of "no work no pay"-Held applicable.

HEADNOTE:     The  respondent-employees, are Traffic  Apprentices  be- longing  to Class-III Railway service which has four  grades carrying  different  payscales. Above Class-III  posts,  are Class-II and Class-I posts. The entire Class-II service  was filled by promotion by selection from Class-III service. The Class-III service in the Traffic and Transportation  Depart- ment  consisted not only of Traffic Apprentices but also  of other  categories. However, the promotion to  Class-II  post was not made exclusively from Class-III service of the  said Department,  but the incumbents of Class-III service in  the Commercial  Department were also entitled to  be  considered for  promotion. Consequently, a combined seniority  list  of Class-III  service  both of the Traffic  and  Transportation Department  as well as the Commercial Department, was  main- tained.  The promotions to further posts, viz.,  to  Class-I posts  were thereafter made from the incumbents of  Class-II posts. In Class-I service, 60 per cent posts were filled  by direct recruitment and 40 per cent by promotion from  Class- II service. The  appointment to the posts of Traffic Apprentices was  by direct 770

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recruitment  to the extent of 25% and this quota was  to  be carried  forward in the case of shortfall in any  particular year.  The remaining 75% of the vacancies were earmarked  to other  departmental officials for promotion who were  called rankers. Subsequently, both the sources of recruitment  were merged  and a new single unified cadre of "Relieving  Trans- portation Assistants" was constituted.     The respondents filed a writ petition in the High  Court challenging  the seniority list in the aforesaid newly  con- stituted  cadre  on the ground that their seniority  in  the newly constituted cadre was not correctly fixed according to quota  rota rule of 25:75 either because the quota rule  was not  observed properly or the unfilled vacancies in the  25% quota reserved for them were not carried forward since  1954 onwards.     A  single judge of the High Court rejected the  petition on the ground of laches.     On appeal, the Division Bench set aside the decision  of the single judge on the question of laches and directed  the Railway Administration to draw a revised seniority list.     Against the decision of the Division Bench, the Railways preferred  a Special Leave Petition in this Court which  was dismissed.  Accordingly, the Railways prepared a fresh  sen- iority list in 1976. Since the said seniority list took care of the grievances only of the employees who were parties  to the  petition,  some  of the Traffic  Apprentices  fried  an application before the Central Administrative Tribunal for a direction to quash the seniority list of 1976 and to prepare a  fresh  seniority list. In the meanwhile pursuant  to  the directions  of the High Court the Railways prepared a  fresh seniority  list  in 1983 superseding the seniority  list  of 1976. The Tribunal disposed of the application by its  order dated June 25, 1986 by directing that the seniority list  of 1983  shall  be acted upon, and that the  confirmations  and promotions  be made on the basis of that list.  Consequently the Railways worked out the promotions upto and inclusive of Class II posts.     Subsequently  the respondent fried a  contempt  petition before the Tribunal contending that full effect had not been given  to its judgment dated June 25, 1986. The Tribunal  by its order dated 14th September, 1986 held that the  respond- ents  are  entitled to further promotions to  Class  II  and Class I; and are entitled to emoluments on such higher posts with retrospective effect. Hence this appeal by the Railways 771 against the Tribunal’s order dated 14th September, 1986. Allowing the appeal, this Court,     HELD:  1. The Tribunal has gone beyond the scope of  the original petition while dealing with the contempt  petition. The  promotions to Class-II and above were not  the  subject matter  of the writ petition before the High Court,  and  in its  direction the High Court said nothing about the  promo- tions  to Class-II service. However, the appellant  Railways worked  out the promotions to Class-ii service on the  basis of  the new seniority list of class-Iii service of the  year 1983 under which the respondents have gained  substantially. Therefore,  the respondents are not entitled to claim  as  a matter of right promotions to any higher posts. This  Court, however, does not desire to make any observations which will come in their way if the Union Public Service Commission  is inclined to look into the matter. [780D-G]     2.  The  entitlement of the respondents  to  the  higher grades  in Class111 posts as per the directions of the  High Court  was  on the basis of quota and rota  rule,  which  in itself  is both inequitable and irrational. Time and  again,

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the rule has been criticised on account of the absurd result to which it leads, viz., the deemed appointments have to  be given  to the concerned employees even from the  dates  when they  were not in service and probably when they were  still in their schools and colleges. [780H; 781A-B]     In the instant case, this is the situation with  respect to  some of the respondents. The quota and rota rule had  to be  worked out from the year 1954 as per the  directions  of the  High Court and the Tribunal. There is, therefore,  nei- ther  equity  nor justice in favour of  the  respondents  to award them emoluments of the higher posts with retrospective effect. [781B-C]     P.S. Mahal & Ors. v. Union of India & Ors., [1984] 3 SCR 847, held inapplicable.     2.1  On the principle of "no work no pay", the  respond- ents will not also be entitled to the higher salary as  they have not actually worked in the said posts. [781F]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2013  of 1990. 772     From  the  Judgment  and Order dated  14.9.1988  of  the Central  Administrative Tribunal, Delhi in C.C.P. No. 17  of 1987 in T. 246 of 1985.     Anil Dev Singh, C.V.S. Rao, T.C. Sharma and B.K  Pershad for the Appellant.     Subodh  Markandeya, W.A. Nomani, G. Seshagiri Rao,  A.K. Raina,  Mrs.  Chitra  Markandeya, G.D. Gupta  and  Ashok  K. Mahajan for the Respondents. The Judgment of the Court was delivered by SAWANT, J. Leave granted.     2. The appeal is filed by the General Manager,  Northern Railways against the decision dated 14th September, 1988  of the Central Administrative Tribunal, New Delhi.     3.  In order to appreciate the grievance of  the  appel- lant-Railways against the impugned order, it is necessary to state the relevant facts in brief. Respondent-employees  who are Traffic Apprentices belonged to Class-III Service  which has  four grades, and the four grades carry  different  pay- scales as follows: (i)       Grade-I            --       Rs.250-380 (ii)      Grade-II          --        Rs.335-425 (iii)     Grade-III         --        Rs.370-475 (iv)      Grade-IV          --        Rs.450-575 The promotion to the alternate grade in the said four grades is  by selection. However, the appointments to all the  four grades is by promotion. Above Class-III posts, are  Class-II and Class-I posts. Class-I posts are in Junior Scale  grade, Senior  Scale grade, Junior Administrative Grade and  Senior Administrative Grade. The entire Class-II service is  filled by promotion by selection from Class-III service. In Class-I service, 60 per cent posts are filled by direct  recruitment and  40  per cent by promotion from  Class-II  service.  The recruitment  as well as promotion to Class-I is through  the Union  Public  Service Commission (’UPSC’  for  short).  All these  posts  are  available as a promotion  avenue  to  the incumbents  of  Class-III posts. Class-III  service  in  the Traffic and Transportation Department consists not only 773 of Traffic Apprentices but also of other categories.  Howev- er,  the promotion to Class-II post is not made  exclusively from Class-III service of Traffic and Transportation Depart-

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ment.  The  incumbents of Class-III  service  in  Commercial Department are also entitled to be considered for  promotion to  Class-II  posts.  Hence, a combined  seniority  list  of Class-III  service  both in the Traffic  and  Transportation Department  as  well as the Commercial Department,  is  pre- pared.  The  promotions to further posts, viz.,  to  Class-I posts  and to the posts of Junior Administrative  Grade  are thereafter made from the incumbents of the Class-II posts.     4.  It has further to be noted that the appointments  to the posts of Traffic Apprentices is by direct recruitment to the  extent  of 25 per cent of the annual vacancies  in  the posts  of  Section  Controllers  who are  in  the  grade  of Rs.200-300 (PS) and in other posts in the same cadre in  the Yard  and  Station  categories. This was  according  to  the scheme  prepared by the Railway Board for improving  control organisations on the Railways. The Traffic Apprentices  thus directly recruited are, on completion of the training, first absorbed as Assistant Movement Inspectors etc. in the  grade of  Rs. 150-225 and are eligible for promotion to the  grade of  Rs.200-300  (PS)/Rs.250-380 (AS) in  the  normal  manner after  selection  as Section Controllers,  Station  Masters, Assistant  Station Masters, Yard Masters etc. provided  they complete  at  least one year’s service in the grade  of  Rs. 150-225.  Such  promotions are, however,  to  be  considered against  25  per cent of the annual vacancies.  The  Railway Board had further clarified the position that 25 per cent of the total annual vacancies in the grade Of Rs.200-300  (PS)/ Rs.250-380  (AS)  were to be earmarked for  Traffic  Appren- tices,  and if during any particular year it was  not  found possible  to utilise this quota fully on account  of  suffi- cient  number of Traffic Apprentices being not eligible  for promotion  (owing to their not having completed  one  year’s service  in the grade of Rs.150-225), the deficit was to  be carried  forward  to the next selection.  By  their  further letter of December 18, 1963, the Railway Board directed that with immediate effect, the Traffic Apprentices on successful completion of the three years’ training, should be straight- away  brought  on the scale of Rs.200-300  (PS)/  Rs.250-380 (AS)  instead  of being first absorbed in the scale  of  Rs. 150225 (PS)/Rs.205-270 (AS) as prevalent then.      Thus,  it would be clear that Traffic Apprentices  were to be directly recruited to fill vacancies to the extent  of 25  per cent of the vacancies and the posts of Section  Con- trollers  etc- After recruitment, they were to  be  imparted three years’ special training and thereafter 774 they were required to serve for one year in the grade of Rs. 150-225/  Rs.205-270  after which they were  considered  for selection  to the grade of Rs.200-300 (PS)/Rs.250-380  (AS). From  1963,  they were to be straightaway  absorbed  in  the grade  of  Rs.200-300/Rs.250-380 after completion  of  their training period of three years, but without having to quali- fy  through Selection Board first and without the  condition of one year’s service. The Traffic Apprentices were thus  to fill vacancies to the extent of 25 per cent. This quota  had to be carried forward in case of shortfall in any particular year,  and the remaining 75 per cent of the  vacancies  were earmarked for promotion to other departmental officials  who were  called rankers. After both the sources of  recruitment merged  in  the  scale of  Rs.200-300/Rs.250-300,  a  single unified cadre  known  as  "Relieving Transportation  Assist- ants" stood constituted.     5.  It  appears that the respondent’s grievance  in  the writ  petition  filed before the Delhi High Court  was  that their  seniority  in the cadre of  Relieving  Transportation

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Assistants  was not correctly fixed according to  the  quota rule  of  25:75, either because the quota rule was  not  ob- served properly or the unfilled vacancies in the 25 per cent quota  reserved for them were not carried forward from  1954 onwards. Hence, they wanted their seniority list as  Traffic Apprentices  to be recast according to quota and rota  rule, and the seniority list which was prepared allegedly contrary to  the  said rule, quashed. The learned  Single  Judge  had rejected the petition on the ground that they had approached the  Court too late and, therefore, their petition  suffered from laches. The Division Bench in Letters Patent Appeal No. 220 of 1972 did not agree with the learned Single Judge  and decided the matter on merits, and gave the finding that  the Northern  Railways  had for the first time  communicated  by their  letter  of December 26, 1967 to  all  the  Divisional Superintendents  that it was decided that the  seniority  of Traffic  Apprentices  appointed prior to December  18,  1963 would be determined from the date of their promotion to  the grade of Rs.250-380 and not according to their quota against the vacancies which occured from 1.4.1954 onwards, the  date from which the direct recruitment of the Traffic Apprentices was permitted. The Court held that according to the  correct interpretation of the various letters of the Railway  Admin- istration, Traffic Apprentices were to be assigned  seniori- ty, vis-a-vis rankers (promotees) according to their  roster position,  taking  into account the positions  reserved  for them, viz., 25 per cent of the actual annual vacancies  with effect  from 1.4.1954 carried forward in  subsequent  years. The  Court also held that the Railway Administration  subse- quently modified its instructions contained in 775 their letter of December 26, 1967 and issued another  letter on April 19, 1968 stating that the Traffic Apprentices would be  deemed  to have been promoted from the dates  they  were eligible provided vacancies were available in the particular year for theft absorption and that their interests would  be protected  by  giving benefit of pro forma fixation  of  pay etc.  A  further  letter of December,  18,  1968  thereafter followed  from the headquarters of the Northern Railways  in which  it was made clear that the seniority had to be  fixed with  reference to the dates from which the Traffic  Appren- tices  would have been promoted in the grade  of  Rs.250-380 had the quota of the vacancies from 1954 onwards always been calculated correctly, i.e., the vacancies from 1954  onwards should  always have been taken into account to work  out  25 per  cent quota for the Traffic Apprentices. On these  find- ings, the Division Bench stated as follows: "We may state here that all the Rankers who are likely to be affected by the decision in this case are party respondents. No  right  of any innocent third party is  involved  in  the case. We are ’also not quashing any rule executive  instruc- tion or letter of the Railway Administration or any seniori- ty  list issued by the earlier than February 1971.  The  Su- preme  Court has not laid down any rigid rule of  limitation in entertaining a writ petition under Article 32 or  Article 226  of  the Constitution of India. The  Supreme  Court  was pleased to observe that it will almost always be proper  for the  court  to hold that it is unreasonably delayed  if  the writ  petition  is  filed beyond the  period  of  limitation prescribed  for a similar civil action. Thus, if  there  are any  exceptional  facts  and circumstances  even  the  delay beyond  the  period  of limitation prescribed  for  a  civil action for the remedy may be reasonable or justified and the writ  petition  may  still be entertained.  The  Court  may, however,  be reluctant to entertain such writ petitions  but

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that does not mean that the court has no jurisdiction. If we are  right  in  holding that the cause of  action  arose  in February 1971, or even earlier in April 1968, then there  is no  question of any delay. But, if we are not, even then  on the facts and circumstances of the case, as discussed above, we  have not been able to persuade ourselves to  agree  with the learned single Judge that the writ petition is enormous- ly delayed. By issuing the writ of mandamus in this case, we are only setting at rest the uncertainty and disparity which is  prevailing  in  the various divisions  of  the  Northern Railway in the 776 matter of fixation of inter seniority of Traffic Apprentices and  Rankers.  The Railway  Administration  have  themselves admired  that  in Allahabad division  of  Northern  Railway, Seniority has been granted to Traffic Apprentices  according to  their  quota against the vacancies which  occurred  from 1.4.1954 onwards. In case of commercial apprentices who  are similarly  situated  seniority has been  assigned  vis-a-vis remain according to their quota on the basis of their roster positions,  1, 5, 9 etc. There is no reason why  the  appel- lants should be deprived of what is legally due to them even if they have approached this Court after some delay. For  the reasons stated above, the Letters Patent Appeal  is accepted, the judgment of the learned single judge on  ques- tion  No. 1 is set aside and reversed and we hold  that  the writ petition was not belated and was not liable to dismiss- al  on the ground of laches. The finding on  question  No.2, having  been upheld by us, the appellants, are  entitled  to the  grant of writ of mandamus directing respondents 1 to  3 to fix the seniority of Traffic Apprentices, in the light of the  observations  made by the learned single Judge  and  as upheld by us. The seniority list, Annexure E attached to the writ petition is quashed. The respondent Railway Administra- tion  shall  draw the seniority list within  3  months  from today  and  proceed  to make  confirmations  and/or  further promotions in the higher grades in accordance with the  law, rules and orders in force from time to time. In the  circum- stances  of the case we leave the parties to bear their  own costs." This  decision  of the Division Bench is of July  30,  1975. Against this decision the Railways preferred a special leave petition  which  was  dismissed.  Thereafter,  the  Railways prepared  a  fresh seniority list in 1976. It  appears  that this seniority list took care of the grievances only of  the employees who were parties to the petition. Against the said seniority  list, therefore, some of the Traffic  Apprentices filed  a writ petition being Writ Petition No. 948  of  1976 challenging  the  seniority. That writ petition  was  trans- ferred to the Tribunal and numbered as T.A. No. 246 of 1985. It  appears that in the meanwhile in 1983, the Railways,  in compliance  with the judgments delivered by the High  Courts of Allahabad and Punjab & Haryana prepared a fresh seniority list, and the Tribunal disposed of the transfer petition (TA No. 246 of 777 1985)  by  order  dated June 25, 1986. By  this  order,  the Tribunal  observed that the application before the  Tribunal was to direct the respondent-Railways (the appellant herein) to  quash the impugned seniority list, i.e.,  the  seniority list  of 1976 and to prepare a fresh seniority list  and  to make the confirmations and promotions inaccordance with  the fresh seniority list. The Tribunal observed that that relief had already been granted by the Delhi High Court in LPA  No. 220  of  1972 by its decision which is already  referred  to

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above. Hence, no fresh directions were necessary. The Tribu- nal also found that a fresh seniority list had been prepared in  1983  in pursuance of the directions given by  the  High Court. It appears further that since the seniority list  was not  prepared  within three months as directed by  the  High Court and according to respondent No. 8 in that  application before  the  Tribunal, the seniority list was  also  not  in conformity  with the other directions contained in the  High Court  judgment,  a contempt petition was filed  before  the High Court and the same was pending before it. The Tribunal, therefore,  stated that it expressed no opinion  as  regards the validity or otherwise of the seniority list prepared  in pursuance of the High Court’s directions. The Tribunal  also made it clear that unless otherwise ordered by the competent authority or the High Court, as the case may be, the senior- ity list prepared in pursuance of the directions of the High Court shall be acted upon and: "the confirmations and promotions made on the basis of  that list  within  a period of four months from the date  of  the receipt  of  this order. Further, promotions shall  be  made strictly  in  accordance with the list prepared in  1983  in pursuance of the directions of the High Court in LPA NO. 220 of 1972."     6. It appears, therefore, that the Railways had prepared a  seniority list of 1983 in pursuance of the directions  of the Delhi High Court in LPA No. 220 of 1972 decided on  July 30, 1975. The grievance of the petitioners in TA No. 246  of 1985 (Writ Petition No. 948 of 1976) was against the senior- ity list of 1976 and since that seniority list was supersed- ed by 1983 list which the Tribunal observed was in pursuance of  the  High Court’s directions, nothing  survived  in  the grievance  of the applicants there (viz., Chadha and  others in that application).     7.  It further appears that according to  the  statement made  on behalf of the appellant-Railways, the Railways  had already  worked  out the promotions upto  and  inclusive  of Class-II posts by 14th 778 February,  1988. However, the applicants, Chadha and  others in  TA No. 246 of 1985 filed a contempt petition  being  CCP No.  17 of 1987 before the Tribunal making a grievance  that full  effect had not been given to the judgment  dated  June 25,  1986  of the Tribunal in TA No. 246 of  1985.  On  that application,  the  Tribunal  passed the  impugned  order  of September  14,  1988,  which is the subject  matter  of  the present  appeal.  The Tribunal has observed  that  the  full consequences of the judgment of the Tribunal were spelt  out by the General Manager of the Railways in his letter of July 30,  1982 forwarded to the Railway Board. The Tribunal  then set out the said consequences as contained in General Manag- er’s  letter and observed that the General Manager had  cor- rectly appreciated the consequences of the directions of the High  Court  and of the Tribunal. The Tribunal  then  stated that,  however, in implementing the order, the Railways  did not  give  effect to the said judgments. The  Tribunal  then directed  that the seniority list prepared on the  basis  of the panels of 1972-73 and 1978-79 for promotion to  Class-II posts should be revised. We are not concerned here with  the said directions. However, the Tribunal observed further that the  Railways’ contention that the earlier direction of  the Tribunal  did not entitle the petitioners, i.e., Chadha  and others to be considered for promotion to Class-II or Class-I or Junior Administrative Grade was not correct and the  same was contrary to its order as well as to the implications  of the said order spelt out by the General Manager himself. The

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Tribunal then went on to observe as follows: "  .....  When the Tribunal had directed not only  confirma- tion  and promotion be made in accordance with  the  revised seniority  list but also directed further promotions  to  be made  on that basis, it was the duty of the  respondent  not only to give promotion in Class-III but also to give further promotion  to  Class-II, Class-I and  Junior  Administrative Grade.  Of  course,  these promotions have to  be  given  in accordance with the rules with effect from the date when the juniors  were given promotion. The petitioners  should  have also  been considered and promoted to Class-II,  Class-I  or Juniors  Administrative  Grade just as  their  juniors  were considered  and promoted. Further inclusion in the panel  of 1978-79 cannot, therefore, be insisted upon since they  have already qualified.          4.  After the above clarification, we do not  think that  there would be any further difficulty in  implementing the order and in granting promotion to Shri Chadha and Shri 779 Sandhu in respect of whom alone this petition is pressed.          5. It is stated that although the implications were correctly understood by the General Manager, even where  the orders were implemented to a certain extent, no arrears have been  paid. It is hereby clarified that on  such  promotion, they would also be entitled to payment of arrears. The order of  the  Tribunal  in T-246/85 (sic)  as  further  clarified hereinabove shall be implemented accordingly and  compliance reported to the Tribunal within six weeks from today. ’ ’     The  Tribunal also kept the matter before it on  October 31, 1988, and the Special Leave Petition giving rise to  the present  appeal was filed against the said decision  of  the Tribunal.     8.  Two  additional facts need be stated.  The  combined seniority list which was prepared in 1983 of Class-III posts for promotion to Class-II posts was finalised in March  1987 and was made the basis of the postponed selection to  Class- II  service  as  per orders of the Tribunal  and  panel  was issued  on  13.3.1987. Thereafter, on the  basis  of  orders passed by the Tribunal on 9.12.1987, the Traffic Apprentices who became eligible for promotion in the first ’batch  after revision of seniority were considered by a Review Departmen- tal  Promotion Committee and interpolated in.  the  Class-II panels of 1972-73 and 1975-76. As a result, the seniority of the  personnel from the Commercial Department  was  affected since  direct recruit-Traffic Apprentices from  the  Traffic and Transportation Department were given seniority according to  the quota and rota rule from 1954 onwards.  Hence,  M/s. A.P.  Chowdhary and K.N. Saxena, officers belonging  to  the Commercial  Department  approached  the  Tribunal  by  their applications Nos. 360 of 1988 and 936 of 1989  respectively, challenging  the new seniority list, and also on the  ground that they were not parties to the earlier proceedings.     9.  It  further appears that three of  the  respondents, Chadha,  Sandhu  and Malik filed an application  before  the Tribunal  making a grievance that they were not given  their due  promotion. That application is also pending before  the Tribunal.     10.  It  also appears that  the  Departmental  Promotion Committee prepared two fresh panels--the first panel was for promotions  to the posts which were vacant  between  1972-73 and 1975-76 and the second 780 for  the  vacant posts for the year 1978-79. In  the  second panel, KN Saxena stands selected.     11.  In this appeal, we are concerned with  two  limited

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issues,  viz., (i) whether in the context of the history  of the litigation and the decisions and directions of the  High Court and the Central Administrative Tribunal, the  respond- ents should be given promotions in all posts above  Class-II service  as a logical corollary to their new ranking in  the revised  seniority  list of 1983, and (ii) whether  on  such promotions  being given, they should be paid  emoluments  of such higher posts with retrospective effect. We have  stated that we are concerned with the promotions of the respondents in  the  posts  above Class-II service  because,  as  stated earlier,  the  appellant-Railways have  already  worked  out their  promotions in Class-II service. There is,  therefore, no  dispute  with regard to the respondents’  promotions  in Class-II  service. However, the dispute still survives  with regard  to their entitlement to the emoluments  in  Class-II service with retrospective date.     12.  As  regards the promotion to posts  above  Class-II service,  we  find that initially when the  petitioners  ap- proached the court, their grievance was with regard to their seniority in and promotions to the grades in Class-II  serv- ice.  The High Court had also in its direction said  nothing about the promotions to Class-II service. However, as stated earlier,  the appellants have worked out the  promotions  to Class-II  service on the basis of the new seniority list  of Class-III service of the year 1983. The respondents,  there- fore,  have gained substantially since, as  stated  earlier, the  promotions to Class-II and above were not  the  subject matter  of the writ petition before the High Court.  We  are afraid the Tribunal has gone beyond the scope of the  origi- nal  petition while dealing with the contempt petition.  The respondents,  therefore, are not entitled to claim in  these proceedings  as a matter of right promotions to  any  higher posts.  We, however, do not desire to make any  observations which will come in their way if the UPSC is inclined to look into the matter. In that case the UPSC may constitute review Departmental  Promotional Committee and give  them  proforma promotions  and seniority in the promotional posts from  the relevant years, if they are otherwise eligible to the  same. We say nothing more on the subject.     13.  As  regards  the emoluments of  nigher  posts  with retrospective effect, we find that the High Court had  cate- gorically  denied  the same to the respondents even  on  the basis  of their claim to higher grades in  Class-III  posts. Further, even the entitlement. of the respon- 781 dents  to  the higher grades in Class-III posts as  per  the directions  of the High Court was on the basis of the  quota and rota rule which in itself is both inequitable and  irra- tional.  Time  and again, the rule has  been  criticised  on account  of the absurd result to which it leads,  viz.,  the deemed  appointments have to be given to the  concerned  em- ployees  even from the dates when they were not  in  service and  probably  when  they were still in  their  schools  and colleges.  We are informed across the Bar that this  is  the situation  even  with  respect to some  of  the  respondents herein. The quota and rota rule had to be worked out in  the present case from the year 1954 as per the direction of  the High  Court and the Tribunal. There is,  therefore,  neither equity  nor  justice in favour of the respondents  to  award them  emoluments  of  the higher  posts  with  retrospective effect.  It is for this reason that we are of the view  that the decisions of this Court such as in P.S. Mahal & Ors.  v. Union  of India & Ors., [1984] 3 SCR 847 directing the  pay- ment  of  higher  emoluments with  retrospective  effect  on account  of the deemed promotions of earlier dates will  not

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be  applicable to the facts of the present case and have  to be distinguished.     It  is  true that the appellant-Railways had  failed  to give  correct effect to the decision dated July 30, 1975  of the  High  Court in LPA No. 220 of 1972, and  had  kept  the matter  hanging till this day for no fault of  the  respond- ents.  The High Court by its said decision had directed  the appellant-Railways to prepare a seniority list within  three months from the date of the decision, and also to proceed to make  further promotions in the higher grades in  accordance with  law, rules and orders in force from time to time.  But it  is equally true that during all these years  the  higher posts  were  not vacant and were manned by  others  and  the appellant-Railways  had  paid the incumbents  concerned  the emoluments  of  the  said posts. The  respondents  have  not actually  worked  in the said posts and, therefore,  on  the principle  of "no work no pay" they will not be entitled  to the  higher  salary. Hence, we give no  directions  in  this behalf and leave it to the appellant to give such relief  as they may deem fit.      14. The directions given above would be subject, to the petitions  which  are  already pending  before  the  Central Administrative  Tribunal, New Delhi. The appeal  is  allowed accordingly with no order as to costs. T.N.A.                                          Appeal   al- lowed. 782