UNION OF INDIA AND ANR.versusTARSEM LAL AND ORS.

A                          UNION OF INDIA AND ANR.
                                           \~

                             TARSEM LAL AND ORS.

                               SEPTEMBER 21, 2006

B           [ARIJIT PASAYAT AND LOKESHWAR SINGH PANT A. JJ.]


         Service Law:

          Pay and allowance-l'laim of from the date of proforma promotion-
C   Denial of on the ground that during that period the employee had not
    worked on that post-Held: Since the employee had not worked on the post
    during that period, he was not entitled for the claim on the basis of principle
    of 'no work no pay'-Railway Board Circular dated 15117 September 1964-
    Railway Establishment Manual, Volume I-Paragraph 228.

D          Respondent-employee filed application before Central Administrative
    Tribunal claiming that he was entitled to pay and allowance from the date on
    which prc..forma promotion was given to him and not from the date of actual
    promotion. Appellant-Government, relying on Railway Board Circular dated
    15/17 September, 1964 and Paragraph 228 of Indian Railway Establishment
E   Manual, Volume I contended that the claim was untenable. Tribunal denied
    the claim of the respondent relying on judgment passed by this Court. Writ
    Petition of the respondent was also dismissed by High Court. Hence the present
    appeal

          Allowing the appeal, the Court
F         HELD: In view of the judgment passed by this Court holding that the
    clause "No arrears on this account shall be payable as he did not actually
    shoulder the duties and responsibilities of the higher posts." in the Railway
    Board Circular dated 15/17 September, 19~ is in consonance with the ruling
    that on principle of 'no work no pay' employees will not be entitled to the
G   higher salary as they have not actually worked in that post, Tribunal and the
    High Court were not justified in granting relief to the respondent.
                                                                  (459-G; 460-B(

       Union of India and Ors. v. P.O. Abraham and Ors. order passed by
  Supreme Court in C.A. 8904 of(l994) decided on 13.8.1997; Virender Kumar.
H                                   456
                     U.0.1.v.TARSEMLAL(PASAYAT. J.]                         457
General Manager, Northern Railways, New Delhi v. Avinash Chandra Chadha            A
and Ors.. (1990( 3 SCC 472, relied on.

      Harbans Singh v. State of Punjab and Ors.. (1995( Supp. 3 SCC 471,
referred to.

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4222 of20Q6.                  B
     From the Judgment and Order dated 31.3.2005 of the High Court of
Punjab and Haryana at Chandigarh in C.W.P. No. 6737/2004.

     T.S. Doabia, Shailendra Sharma, D.S. Mahra and B. Krishna Prasad for
the Appellants.                                                                    C
      The Judgment of the Court was delivered by

      ARIJIT PASAYAT, J. Leave granted.

      Union of India and its functionaries call in question correctness of the     D
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 :                              E
      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.
                                                                                   F
      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 G
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
'lREM') 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 H
    458                     SUPREME COURT REPORTS (2006) SUPP. 6 S.C.R.

A 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 Ors., [ 1995] Supp. 3 SCC 471 held that
    the stand was unsustainable. Tribunal's order was assailed before the High
    Court.
B
          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
C   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.
D
          There is no appearance on behalf of the respondent in spite of notice.

            Para 228 of IREM reads as follows:

            "228. Erroneous Promotions (I). Someties due to administrative errors,
            staff are over looked for promotion to higher grades could either be
E           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
F
                 ii. Where a person has been promoted but not on the date !tom
                 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
G           lost promotion on account of administrative error should on promotion
            be assigned correct seniority vis-a-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
H
                    U.0.1. v. TARSEM LAL[PASA YAT, .I.]                   459
        duties and responsibilities of the higher posts."                         A
       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(l994) decided on 13.8.1997.
In that case the appeal was filed against the order of the Emakulam 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     B
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            C
Kumar, General Manager, Northern Railways, New Delhi v. Avinash Chandra
Chadha and Ors., [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. 649190 dated 30th September,         D
       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 E
       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."                                                               F
           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 G
       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 H
    460                     SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A            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. 0.
B 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.

    K.K.T.                                                         Appeal allowed.