- 1 - S.B.CIVIL WRIT PETITION NO.4240/2006 (Krishna Gopal Gupta vs. Union of India & ors..) DATE OF ORDER : 27/5/2008 HON'BLE JUSTICE GOPAL KRISHAN VYAS Mr.S.N.Trivedi, for the petitioner. Mr.Vineet Mathur, for the respondents. In this petition, petitioner has prayed for direction to the respondents to pay the actual encashment benefits on his promotion to the post of TES Grade `B' w.e.f. 21/10/1998 with all consequential benefits including pay and allowances and further prayed for interest @ 12% on arrears of salary and increments. Petitioner preferred an original application before the Central Administrative Tribunal for promotion to the post of TES Grade `B' from the date person junior to him Shri Chhablani was promoted i.e. 28/10/1998. The said original application was dismissed, against which a writ petition was preferred before this Court, the said writ petition was registered as D.B.Civil Writ Petition No.417/2002 and was decided by the Division Bench on 6/4/2004. While disposing of the writ petition, the Division Bench issued direction to the respondents to consider the case of petitioner for regular promotion to the post of TES Grade B w.e.f. the date when his junior was promoted on regular basis. - 2 - In pursuance of above directions, respondent authorities considered the case of petitioner for regular promotion and passed an order on 6/12/2004 by which the petitioner was promoted but he was granted notional benefits w.e.f. 21/10/1998 and actual monetary benefits were denied. The case of petitioner is that person junior to him was promoted on 21/10/1998 and he has enjoyed the fruits of promotional post, therefore, when his case was considered and it was found that petitioner was wrongly denied promotion from the date of promotion to his junior then obviously he was to be given actual monetary benefits at least from the date when person junior to him was granted actual monetary benefits. After filing representation for the above cause, petitioner has preferred this writ petition and claimed the actual monetary benefits on the ground that he is entitled for actual encashment of benefits from the date his junior person was granted said benefit, however, respondents have granted him the actual encashment benefits from the date of assumption of charge on promotional post, which is totally illegal action of respondents and against the principle of natural justice. It is also argued by learned counsel for the petitioner that Division Bench of this Court has specifically passed an order for considering the case of petitioner for regular promotion to TES - 3 - Grade `B' w.e.f. the date when his junior has been promoted on regular basis and in pursuance of those directions after due consideration it was found that petitioner was wrongly denied promotion, therefore, petitioner is entitled for actual encashment benefits w.e.f. the date when person junior to him was allowed actual monetary benefits as a result of promotion. Learned counsel for the petitioner has invited the attention of Court towards judgment of Division Bench in case of Union of India & others vs. Central Administrative Tribunal, Jodhpur & another (D.B.Civil Writ Petition No.4760/2003) decided on 27/8/2004 in which the Division Bench of this Court held that in the event of granting promotion after due consideration from the date person junior to petitioner was promoted as per directions of the Court, the respondents are required to make payment of actual monetary benefits from the date of promotion to junior person. While inviting attention towards above judgment it is prayed that relief prayed for by the petitioner may be allowed along with interest. In reply, it is contended by the respondents that although case of petitioner was considered in pursuance of directions issued by the Division Bench of this Court and petitioner was found entitled for promotion from the date person junior to him - 4 - Shri H.S.Upadhaya was promoted but he is not entitled for actual encashment benefits because his junior Shri H.S.Upadhaya was extended the actual monetary benefits in IDA Pay scale from the date of assumption of charge of promotion post and actual benefits have also been extended to petitioner from the date of assumption of charge by the petitioner, therefore, petitioner is not entitled for financial benefits w.e.f 21/10/1998 and it cannot be said that respondents have committed any violation of Article 14 and 21 of the Constitution of India. In support of his contention learned counsel for the respondents has invited my attention towards the judgment of Apex Court reported in AIR 2007 SC 705 (Govt. of India & Anr. vs. George Philip), (2005) 7 SCC 406 (Rajasthan State Road Transport Corporation and Ors. vs. Shyam Bihari Lal Gupta) and (2007) 1 SCC 324 ( Banshi Dhar vs. State of Rajasthan & Ors.). I have given my thoughtful consideration to the arguments advanced by both the sides and perused the judgments and material on record. It is obvious that the petitioner was held entitled for promotion w.e.f the date person junior to him was promoted. It is admitted position of the case that under the directions issued by the Division Bench of this Court case of petitioner was considered and it is found that petitioner was - 5 - wrongly denied promotion w.e.f. 21/10/1998. In my opinion, in these set of facts when petitioner was wrongly denied promotion due to non-consideration of his case by the respondent for which respondents are responsible, therefore, respondents cannot deny actual monetary benefits to petitioner at least from the date from which his junior person was allowed actual monetary benefits. The controversy arose before Division Bench of this court in D.B.Civil Special Appeal No.4760/2003 decided on 27/8/2004, in which the Division Bench has held that : “Learned counsel for the petitioners, however, relied on decision of Supreme Court in 2003 (7) SCC 23. In this case, the appellant was appointed as a Clerk under the respondent Bank. She appeared in the written test for promotion to the post of Officer, (Junior Management Grade). She was declared successful in the examination. Thereafter, she appeared in the interview but was not selected as she failed to obtain the minimum marks in the interview. Aggrieved by the decision, she filed a writ petition. The single Judge of the Kerala High Court held the stipulation of obtaining the minimum marks in the interview to be bad in law. Accordingly, the learned Single Judge directed that the result of the appellant be determined de hors the stipulation. On appeal by the Bank, the Division Bench of - 6 - the High Court affirmed the order of the learned Single Judge. In further appeal, the Supreme Court held the stipulation to be valid. Having held that, the Supreme Court took the view that the matter remained pending in appeal before it for more than a decade and, therefore, the respondent should not be allowed to suffer on account of the pendency of appeal. The Supreme Court directed that the respondent should be given the benefit of the High Court's decision. The grant of relief to the respondent by the Supreme Court was in the nature of gesture of gratis and not by way of right. Consequently, the notional promotion given by the Bank to her with suitable modifications was held to be sufficient to meet the ends o flaw and equity. Further payment of arrears of pay was not granted. The facts of aforesaid case are different from the facts of instant case. As already pointed out the Supreme court granted the relief as a matter of gesture of gratis and not by way of any entitlement of the respondent; but in the instant case, the relief given to the second respondent by the Tribunal, was based on the right of the respondent and it was not a gesture of gratis. The second respondent (herein) was wrongly denied promotion, therefore, he cannot be allowed to suffer for the mistake of the petitioners in not granting promotion to him when the same was due to him on 19.09.1996. the principle of no work, no pay cannot be - 7 - invoked by the petitioners as the second respondent was not unwilling to work but the opportunity to work was not given to him though he was eligible for being promoted. In the circumstances, therefore, we do not find any merit in the writ petition. The writ petition is, therefore, dismissed.” In the instant case also, respondents have wrongly denied promotion to the petitioner, therefore, he cannot be allowed to suffer for the inaction/mistake of respondent Department. Therefore, principle of no work no pay cannot be invoked by the respondents to deny actual benefits to the petitioner. Further, petitioner was not unwilling to work but opportunity to work was not given to him though he was eligible for promotion. I have also gone through the judgments cited by learned counsel for the respondents. With regard to judgment reported in AIR 2007 SC 705 (Govt. of India vs. George Philip) the question of departmental inquiry was under consideration, whereas, in this case admittedly petitioner was denied promotion while granting the same to his junior person, therefore, facts of George Philip's case are altogether different and as such the same is not applicable to the facts of present case. Similarly in - 8 - Banshi Dhar vs. State of Rajasthan & Anr. the appellant was placed under suspension pursuant to his prosecution and by the time he was acquitted he reached the age of superannuation. His claim for back wages was denied and not interfered with by Hon'ble Apex Court. However, the present case is denial of promotion from the date when petitioner became eligible and which ignoring candidature of the petitioner his junior was promoted thereafter as per direction of this Court petitioner was promoted, therefore, obviously respondents are responsible for delay and denial of promotion to the petitioner for which petitioner cannot be allowed to suffer. Therefore, the judgment cited by learned counsel for the respondent in case of Banshi Dhar is also not applicable in present case. Another judgment cited by learned counsel for the respondent in case of RSRTC Vs. Shyam Bihari lal Gupta is also distinguishable on facts as that was case of reinstatement and the Hon'ble Apex Court observed that since there was no decree for grant of any monetary benefits, the respondent is not entitled to back wages. In these circumstances, while following the decision rendered by Division Bench in D.B.Civil Writ Petition No.4760/2003 (Union of India & others vs. Central Administrative Tribunal, Jodhpur & another), decided on 27/8/2004, this writ petition is allowed. Respondents are - 9 - directed to grant actual monetary benefits and pay arrears to the petitioner w.e.f.21/10/1998 within a period three months from today. No order as to costs. (GOPAL KRISHAN VYAS), J. pankaj baweja