HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 4341/2008 (OA No.940/1997) Date of Decision: May 6, 2009 R.C. Batta ……. Petitioner Versus H.P.S.E.B. . …….. Respondent. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes For the petitioner : Mr. Bhuvnesh Sharma, Advocate. For the respondent : Ms. Anjula Khajuria, Advocate Sanjay Karol, J. (Oral) Petitioner has prayed for the following relief(s):- i) That the communication dated 27.7.1992 (Annexure P-7) may very kindly be quashed and set aside to the extent it refused the financial benefits on the notional promotion as Assistant Engineer w.e.f. 27.7.78 to 22.6.1986. ii) That the respondent may very kindly be directed to pay the arrears of salary of the applicant for the period w.e.f. 27.7.78 to 22.6.1986 as fixed in the communication dated 27.2.1992 (Annexure P-7) with interest. iii) That entire record pertaining to the case may kindly be summoned for the kind perusal of this Hon’ble Tribunal. Petitioner was appointed as Sectional Officer (Electrical) in the Electrical Branch of PWD on 27.7.1962. He was promoted as Junior Engineer (Electrical). 2 FIR No. 22 dated 1.5.1972 was registered with Police Station, Jawalamukhi under Section 5(1)(a) read with Section 5(2) of the Prevention of Corruption Act. Petitioner was the main accused as he was allegedly found taking illegal gratification in the course of discharge of his official duties. With the completion of the investigation, challan was presented in the Court by the Investigating Agency for trial. Petitioner was charged and tried for the aforesaid offence but however, was acquitted by the Special Judge, Kangra at Dharamshala, H.P. vide judgment dated 20.5.1978, in Corruption Case No. 6 of 1975, titled as State v. Romesh Chand. He was given benefit of doubt by the said Court. With the registration of FIR, petitioner was immediately put under suspension vide order dated 5.5.1972 (Annexure P-1). However, after acquittal, vide order dated 28.12.1978 (Annexure P-3), the order of suspension was revoked and the Board treated the period of suspension i.e. 1.5.1978 upto 28.12.1978 on duty for all intents and purposes. During the period of suspension, respondents took steps for filling-up the posts of Assistant Engineer (Electrical). Since there was a criminal case pending against the petitioner, hence sealed cover procedure was adopted by the respondents. It is not clear from the record as to why immediately after the revocation of the suspension order, sealed cover was not opened and the case of the petitioner considered for promotion as Assistant Engineer (Electrical). The fact of the matter being that sealed cover was opened only on 14.11.1985 and vide order dated 22.2.1986, petitioner was promoted as Assistant Engineer (Electrical) (Annexure R-1) from the date of taking over the charge of the said post. 3 It appears that the petitioner represented for his promotion w.e.f. 27.7.1978 and the respondents in terms of order dated 31.5.1991 (Annexure P-6), in partial modification of its earlier order dated 22.2.1986, promoted the petitioner on “notional basis” w.e.f. 27.7.1978 in the pay- scale of Rs.450-1000 (pre-revised scale). With regard to the fixation of pay, in terms of letter dated 27.2.1992 (Annexure P-7) petitioner was duly informed that for the period July 1978 upto July 1985, his pay was fixed on notional basis. Petitioner’s subsequent request for the same was not considered favourably. Consequently, petitioner filed the present petition in the year 1997. While opposing the petitioner’s prayer, the respondents have relied upon the provisions of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The contention is misconceived. These Rules are not applicable for the simple reason that the petitioner is claiming fixation of his salary, for the promotional post, for the period subsequent to the period of revocation of his suspension order. Petitioner’s claim is confined to the period w.e.f. 27.7.1978 upto 22.6.1986. The undisputed position which emerges from the record is that between the period 1978 upto 1985 petitioner could not be promoted as the sealed cover was not opened. Petitioner admittedly has not worked for the said period. The question for consideration is as to whether petitioner is entitled for arrears of pay for the period of his notional promotion preceding the date of his actual promotion. The Apex Court after noticing its earlier decisions including the ratio of law laid down in Virender Kumar v. Avinash Chandra Chadha & Ors. 4 (1990) 3 SCC 472, in State of Kerala & Ors. v. E.K. Bhaskaran Pillai (2007) 6 SCC 524 held as under:- “So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 percent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle of ‘no work no pay’ cannot be accepted as Rule of thumb and there are exceptions where courts have granted monetary benefits also.” In Union of India & Ors. v. K.V. Jankiraman & Ors. (1991) 4 SCC 109, the Apex Court while also dealing with the issue of payment of arrears and salary has held that it is a matter which is to be considered by the appropriate authority by taking into consideration all the attending facts and circumstances. 5 In R. Veerabhadram v. Govt. of A.P. (1999) 9 SCC 43, the Apex Court has also held that mere acquittal in a criminal case by itself would not entitle the petitioner for a deemed promotion with retrospective effect from the date of promotion of a junior. This Court in CWP(T) No. 3078/2008, titled as Mani Chand v. H.P. State Forest Corpn. Ltd., directed the payment of consequential benefits, including salary for the period for which the petitioner had not worked. But, however, the case in hand is totally distinguishable on facts. The facts being that the benefit of the Demobilized Armed Forces Personnel (Reservation of Vacancies in H.P. State Non-Technical Service), Rules, 1972 was not accorded to the petitioner therein, inspite of his having repeatedly written and reminded the authorities for the same. The State was enjoined with the statutory duty of according benefits of the said Rules, benefits of which had accrued to the employee immediately either on his joining the service or arising of a subsequent vacancy. Petitioner therein was appointed in the year 1978 and the benefits were not accorded even till the year 1996 when he approached the Court. These are not the facts herein, hence reliance thereupon by the learned counsel for the petitioner is misconceived. The concerned authorities have taken a conscious decision, taking into account all the attending circumstances. One cannot loose sight of the fact that the petitioner was acquitted by the Court after giving him benefit of doubt. That apart, it is not the petitioner’s case that the respondents have exercised the power either arbitrarily , capriciously or malafidely. Nothing has been placed on record to show as to why the sealed cover was not opened for more than 7 years. Be that as it may be, it 6 is equally true that the petitioner had not worked on the said post. Hence, in my considered view, petitioner shall not be entitled to the arrears of salary as prayed for. The authorities have taken a conscious decision. There is nothing irrational or illegal about the same. Simply because the petitioner was treated to be on duty during the suspension period for all intents and purposes, that by itself would not be a ground, entitling the petitioner for the arrears of salary. For all the aforesaid reasons, I find no merit in the present petition and the same is dismissed. ( Sanjay Karol ), Judge. May 6, 2009 (rana)