* IN THE HIGH COURT OF DELHI Writ Petition (C) No. 6466 of 2002 + % r>iirpnfflpHRir.n; December. 2004. Nb. Sub. Ramesh Kumar Petitioner. representedbyMr.V.P.Sharma,Advocate % versus Unionof India andothers Respondents. representedby Mr.AmietAndley, Advocate CORAM: HON'BLE JUSTICE DR.MUKUNDAKAMSHARMA. HON'BLE MS. JUSTICE GITA MITTAL. 1. Whether reportersoflocalpapersmay beallowed to see the Judgment? 2. TobereferredtotheReporterornot? N/U 3. WhetherthejudgmentshouldbereportedintheDigest? , T>r. Mnlnmdakam Sharma, J: 1. By filingpresentwrit petition,the petitionerhas prayed for quashingof the orders dated 14'''July, 2001 and 21" July, 2000 giving promotionto the petitionerto the rank of Nb. Subedar only with effectfrom P January,2000 with seniorityfrom V of August, 1997butnotgrantinganybenefitsofpromotionfrom P' August,1997 as paymentof salaryand otheremolumentsfrom the said date in the WP(C) 6466/2002 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified post of Nb. Subedar, 2, The petitionerwas enrolledin the Army on 19'^ March, 1983 as Sepoy. The petitionerwaspromotedto dierank of Havaldar on 1" August, 1989. While working in the aforesaid capacity, a Summary Court Martial was initiatedagainst the petitionerfor an offenceunder Sections41(i), 39(a) and 63 of die Army Act. After completionofthe saidCourtMartial,thepetitionerwas imposedwith the punishmentof reductionof the ranks, rigorousimprisonmentfor one year in civil prison and also dismissal from the service. 3- Aggrievedby die finding and sentenceof the Summary CourtMartial,die petitionerfileda statutorycomplaintunderSection 164 of die Army Act. The said complaint was considered and disposed of by die order dated IT^ August, 1994 by the Central Government by commuting die punishment and sentence of die SummaryCourt Martial of reductionto ranks and one year rigorous imprisonmentto severe reprimand and also remitted die sentence of dismissal widi a furdier direction diat die individual would be reinstated in service. It was also observed in die said order that die period between die date of dismissal and date of reinstatement in servicewill not be treatedas duty and he would not bepaid pay and allowancesdue tohimfor the saidperiod. WP{C)6466/2002 pugeno.2of10 \ 4. Consequent to the said order passed by the Government of India the petitioner was reinstated in service with effect from 29^ October, 1994 in terms of the said order passed by the Government of India. It further transpires from the records that t! e petitioner was again tried summarily on 18"" B.bmary, 1995 for an offence under Army Act SeC'ion 54(b) and was awarded severe reprimand. 5. The case of the petitioner came up for promotion to the rank of Nb. Subedar with effect from P August, 1997 and the case of the petitioner was considered by the Departmental Promotion Committeeheld on 17"" May, 1997. He was, however, found not fit for promotion and was superceded as he could not meet the criteria having incurred two red ink entries during last five years. It is provided in para 3(a) of promotion policy issued vide Army Headquartersletter dated 10*^October, 1997 that the concernedperson should not have incurred more than one red ink entry during the last five years. 6. It is the case of the respondents that though the petitioner was awarded punishmentby Summary Court Martial on 3''' Juno, 1992 but the punishment period of the last five years was counted with effect from IT'* August, 1994, tlie date commutation/remission was granted by the Government. WP{C) 6466/2002 page no.3 of10 7- As the Goveinmentorder dated 17"^ August, 1994 did not specifically spell the date from which the commutation of punishmentis deemed to take effect, therefore, in absence of any specificdate, it was held that thegovernmentorder wouldbe deemed to have taken effect from the date of original sentence i.e. from 3'^ June, 1992 and not IT** August, 1994. Therefore, a fresh DPC proceedingwas ordered. The Departmental Promotion Committee considered thecase of die petitionerfor promotionto therank of Mb. Subedar on IS*** March 2000 and duly recommendedfor promotion with effectfrom P' January,2000with ante datedseniorityalong with hisbatch mateswidieffectfrom P August, 1997. 8. Thepetitionerhad consequentlyassumedtherank of Nb. Subedar on 13"* November, 2000. It is stated that there was no directionfor paymentof any pay and allowancesto the petitionerin the higherrank ashe is entitledto the samefrom the date he actually assumedthe chargeof die saidrank and not from ante datedseniority whichis grantedforfurtherpromotion. Sincetherespondentsrefused to give promotionto the petitionerby giving him pay and allowances in the rank of Nb. Subedar widi effect from P' August, 1997, therefore,diepresentwrit petitionwasfiledin diis Courtseekingfor the aforesaid relief. WP{C)6466/2002 pttgeno.4of10 9. It was submittedby the counsel for the petitioner that sincethepetitionerhas beengivenante datedseniorityalong with his batch mates with effect from l"* August, 1997, therefore, there was no scope for recommending for promotion only with effect from 1" January, 2000 and not from P' August, 1997 thereby depriving the petitioner from getting the pay and allowances and other benefits from r' August, 1997. 10. The petitionerwas triedby SummaryCourt Martialand was awarded punishment on 3'^June, 1992 which, however, later on came to be commuted to severe reprimand with remission of the sentence of dismissal. However, a clear direction was also issued diat the period between the date of dismissal and date of reinstatement in service would not be treated as duty andhe would not be paid pay and allowances due to him for die said period. The said order was passed on 29"* October, 1994. The petitioner even thereafter was tried summarily on IS'** February, 1995 and was again awarded a punishmentof severereprimand. On IT*" May, 1997when thecase of the petitioner was considered for promotion to die rank of Nb. Subedar with effect from T' August, 1997, he was not found fit for promotion as he had incurred two red ink entries during the last five years. The first sentence was imposed on the petitioner on 3"* June, WP(C) 6466/2002 page no.5 of 10 1992 and the second sentence was imposed on 18''' February, 1995, According to the extant consideration of the respondents, an individual, who is considered for promotion to the rank of Nb. Subedar, should not have more than three red ink entries during the entire service and more dian one red ink entry in the last five years. The case of die petitioner for promotion to the rank of Nb, Subedar widi effect from I'' August, 1997 came up for consideration but on die date of consideration, die petitioner did not satisfy the criteria for promotion as he had two red ink entries in his service career. However, subsequently a fresh DPC was held after the orders passed by die government and it was held diat petitioner could be promoted widi effect from T' January, 2000, die date when die first available vacancy had arisen widi a furdier direction diat he should be given ante dated seniority widi his batch mates widi effect from T' August, 1997. Since petitioner has also been given seniority from August, 1997, therefore, for furdier promotion, die petitioner would have to be considered along widi his batch mates and, dierefore, from die point of view of seniority diere could be no grievance of die petitioner. The only grievance diat survives now for consideration is whedier die petitioner would also be held to be entitled to receive pay and allowances widi effect from T' of August, 1997. The respondents WP{C)646&2002 page no.6 of10 have denied the said benefit on die ground that die commutation of the sentence of die dismissal from service and die rigorous imprisonment came to be passed by the Central Government on l?"* August, 1994 and, dierefore, die said order would be effective from the said date. It was also stated in die said order that die period between die date of dismissal and date of reinstateirent in service would not be treated as duty. Therefore, for all practical purposes die order passed by the Central Government had been given effect from the date die said orderwas passedi.e. on IT** August, 1994 and since die petitionerhad two red ink entries on IT'' August, 1997, it cannot be held diat he should be given pay and allowances in die post of Nb. Subedar from 1" August, 1997. 11. Counsel for die petitioner relied upon die decisions of die Supreme Court in Vasant Rao Roman v. The Union ofIndia (Civil Appeal No.709/1993 decided on 4.3.1993) reported in Vol. 9 Supreme Court Service Rulings 213; Union of India v. K.V, Jankiraman reported in AIR 1991 SC 2010; State of Andhra Pradesh V. K,V.L.Narasimha Rao Ors. reported in JT 1999 (3) SC 205. 12. We have considered die ratio of die aforesaid decisions. In Vasant Rao Roman (supra), die Supreme Court directed for payment of all arrears of emoluments from a retrospective date in WP(C) 6466^002 page no.7 of10 view of the fact that the employeewas neitherput under suspension nor any disciplinary proceeding was pending against him and that on the contrary he was made to suffer on account of administrative reasons for which the employee was not responsible. In the said case the employee, who was literate, was deputed for table work and therefore, for administrative reasons he could not complete requisite number of firing kilometers and, therefore, it was held that there was no fault on his part for which his juniors had been promoted as Shunters and Drivers and his claim was ignored on account of not having completed requisite number of firing kilometers. 13. In State of Andkra Pradesh (supra), it was held by the Supreme Court that in normal circumstances when the retrospective promotions are effected, all benefits flowing dierefrom, including monetary benefits, must be extended to an officer who has been denied promotion earlier. In the said case the Supreme Court also held that there could be cases where grant of notional promotion should not legitimately give rise to a valid claim for payment of arrears of salary either on the ground that the officer did not actually hold the post at the relevant time or odierwise. It was, however, held in the facts of the said case by the Supreme Court diat die said principles should not be applied to the facts of the said case as a WPiQ 6466/2002 piige no.8 of10 wrong was committed in unduly ddaying the finalisation of seniority and giving promotions thereto and hence denial of monetary benefits to diem would be arbitrary in violation of Articles 14 and 16 of the Constitution. 14. In Union of India v. K.V. Jankiraman (supra), die Supreme Court was dealing widi sealed cover procedure and in the context thereof it was held diat die normal rule of "no work no pay" is ^ not applicable to such cases where die employee aldiough he is willing to work is kept away from work by die audiorities for no fault of his. A direction was issued to pay die arrears salary on die ground that die said case was not a case where die employee remained away from work for his own reasons, aldiough die work was offered to him 15. In our considered opinion, none of die ratio laid down in die said decisions is applicable to die facts of die present case. The petitionerhad two red ink entries. By order dated 3"^ June, 1992, he was dismissedfrom servicebutby die subsequentorderpassedon 17*^ August, 1994, his sentence was commuted and he was given a ^ sentenceof severe reprimandbut clearinstractionswere given diat the period between the date of dismissaland date of reinstatementin service would not be treated as duty. The said order was, dierefore, held to be operativefrom the said date i.e. 17"' August, 1994. The WP(C)6466/2002 pugeno.9 of10 / r petitioner,therefore,was rightly not given the pay and allowances from P August, 1997,which benefithas beengiven to him only with effect from 13"" November, 2000 when he actuallyjoined the said rank of Nb. Subed^ but maintaininghis seniorityfrom 1" August, 1997 when his batch mates were promoted. Therefore, the interest of the petitionerfor furtherpromotionhas beenprotected. In the factsof the presentcase,we are of the consideredopinion,that the petitioner has no legitimate and valid claim for payment of salary and allowancesfrom a retrospectivedate i.e. from T' August, 1997 as the principleof 'no work no pay' is applicablein the facts of thecase and also as he did not actuallyhold the saidpost. It is also not a case of administrativelapseorfaultwhichcouldentitlethepetitionerforsuch benefit. 16. We find no infirmityin the impugnedorderspassedby the respondents. We find no merit in this petition and the same is dismissed. (DrJVmkimdakam Sharma) Judge GitaMttal) Judge December. 20Q4. mn WP(C) 6466/2002 U page no,10 of10