IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, DAY OF TWENTYSEVENTH DAY OF APRIL TWO THOUSAND AND TEN HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE G. BHAVANI PRASAD W.P.No.6461 of 2010 Between: Ghulam Rasool .. Petitioner AND The Deputy Director General, Geological Survey Of India, Bangalore and two others .. Respondents ORDER: (Per. Hon’ble Sri Justice Ghulam Mohammed) Being aggrieved by the order of the Central Administrative Tribunal (for short “Tribunal”) dated 08-12-2009 in O.A.No.599 of 2009, whereby and whereunder the Tribunal dismissed the O.A. filed by the petitioner herein seeking for a direction to pay the monetary benefits from date of his promotion till his retirement including pay and allowances, holding the same to be devoid of merits, the present writ petition has been filed. The factual matrix leading to filing of the writ petition is that the petitioner was initially appointed as Durwan in June 1972 and on passing of a departmental examination, he was appointed as Lower Division Clerk during March, 1992. Thereafter, in spite of putting in the required service of eight years to be eligible for promotion as Upper Division Clerk, he could not be promoted to the same in 2000 for want of vacancy. In the seniority list of LDCs, he was shown at Sl. No.5, while one Smt. T.V. Usha was shown at Sl.No.1 as she was appointed directly as LDC and was senior to be promoted as UDC for the year 2004. On the consequential arising of one vacancy of UDC during 2004, a Departmental Promotion Committee was held and recommended the name of Smt. T.V. Usha, offering the promotion of UDC with a posting to AMSE Wing located at Jaipur during February, 2005, but she refused to join in the said promoted post and thus, declined the same during February, 2005, and therefore, the said Smt. T.V. Usha was eligible to be promoted only after one year i.e. February, 2006 as per the rules. Because of her refusal to join in the said promoted post, the next person in the seniority list was promoted in the said post during the said year. Further, during 2005, consequent upon arising of three vacancies of UDCs, a DPC was held in August, 2005 for considering the eligible persons, who were in the seniority list commencing from Sl.No.3, to be promoted in the said three vacancies and accordingly, two persons viz., M.M. Suryanarayana and Nanjamari Gowda were considered and promoted as UDCs, since they were seniors to the petitioner, leaving the third one vacant without considering the petitioner. Surprisingly, Smt. T.V. Usha was given promotion during March, 2006 though she was not eligible to be considered even for that promotion during 2005 vacancy, for which the petitioner made a representation on 19-04- 2006, but in vain. After making another representation dated 12- 06-2006, the 1st respondent herein issued proceedings dated 05- 06-2006 informing that the promotion of Smt. T.V. Usha was in order. Questioning the said action, he filed O.A.No.206 of 2007 and the Tribunal allowed the O.A. setting aside the promotion order dated 02-03-2006 and further directing the 1st respondent to hold a review DPC as early as possible to consider the case of the petitioner as on the date when the DPC was held and then promote him if he was found eligible with effect from the date of vacancy of UDC. Pursuant to the said orders, a review DPC was held and the petitioner was promoted as UDC notionally w.e.f. 01-01-2006 by the proceedings dated 16-11-2007 without any monetary benefits as he had been promoted notionally, for which he made several representations, but in vain. In the meanwhile, he retired from service on 30-09-2007 on attaining the age of superannuation. Challenging such inaction of the respondents, the petitioner filed O.A.No.599 of 2009 before the Tribunal and the Tribunal dismissed the said O.A. by its order dated 08-12-2009. Aggrieved by the said order of the Tribunal, the present writ petition has been filed. Heard the learned counsel for the writ petitioner and the learned Assistant Solicitor General of India. Learned counsel for the writ petitioner vehemently contended that though the petitioner became eligible for promotion during 2005, he was denied of getting promotion for that period, and hence, the laches on the part of the department would not lead to find fault with the petitioner. He further contended that when once he was eligible for promotion as per the recommendations of review DPC, he became entitled to all benefits including the financial benefits with retrospective effect and hence, the impugned order needs to be interfered with. On the other hand, learned Assistant Solicitor General vehemently opposed the same contending that when the petitioner was promoted notionally, he was not entitled to any monetary benefits on the principle of “NO WORK NO PAY” and hence, the impugned order does not require any interference. On the above factual background, the points that arise for consideration is as to whether the petitioner became entitled to all benefits including the financial benefits with retrospective effect irrespective of the fact that he was given promotion notionally and as to whether the impugned order suffers from any legal infirmity? It is not in dispute that during 2005 three vacancies of UDCs arose for which a DPC was held in August 2005 and two persons were considered and promoted as UDCs as they were seniors to the petitioner, while ignoring the case of the petitioner for promotion though he became eligible in spite of showing his name at Sl.No.3 in the seniority list of LDCs. It is also not in dispute that pursuant to the directions of the Tribunal in O.A.No.206 of 2007 dated 11-10-2007, a review DPC was held and the petitioner was promoted as UDC notionally w.e.f. 01-01-2006 by proceedings dated 16-11-2007. It is further not in dispute that the petitioner retired from service on 30-09-2007 on attaining the age of superannuation. Therefore, the only issue left to be determined herein is the entitlement of the petitioner to the arrears arising out of the pay fixation with all financial benefits with retrospective effect. The perusal of the material on record made it clear that in the earlier O.A.No.209 of 1997, the Tribunal, while finding fault with the department due to the laches committed by them under the circumstances stated in the order, allowed O.A. setting aside the promotion order dated 02-03-2006 of Smt. T.V. Usha with a direction to the 1st respondent therein to hold a review DPC as early as possible so as to consider the case of the applicant, who is the petitioner herein, as on that date i.e. when the DPC was held and then promote him if he was found eligible with effect from the date of vacancy of UDC, for which a DPC was held on 02-08- 2005, pursuant to which, a review DPC was held and the petitioner was considered and promoted notionally w.e.f. 01-01- 2006 by the proceedings dated 16-11-2007 imposing a clause about his disentitlement to the arrears arising out of the pay fixation, as the promotion was given notionally. The said proceedings were the subject matter of O.A.No.599 of 2009 before the Tribunal. But, the Tribunal dismissed the said O.A., with reference to the precedents cited before it and Rule 17 of the Fundamental Rules, holding that no direction was given regarding payment of consequential benefits while directing to hold a review DPC, besides applying the rule “NO WORK NO PAY”. In this regard, the learned counsel for the petitioner, relied on a decision reported in The Commissioner, Karnataka Housing Board v. C. Muddaiah[1]. The Apex Court held at para 32 reads thus: “It is true while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie, injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court, in the circumstances, directs the Authority to extend all benefits, which he would have obtained had he not been illegally deprived of them. …….. In appropriate cases, however, a Court of Law, must take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering as if he had worked. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country. Similarly, in S. Ramalingam v. The Chairman and Managing Director, Tamil Nadu Civil Supplies Corporation Limited & another[2], the High Court of Madras while reiterating the principle laid down by the Apex Court stated earlier, held the petitioner therein to be entitled to get promotion to which he was entitled with all benefits, as he was prevented from discharging the duties by the authorities erroneously and therefore, he was entitled to get difference in pay and other benefits. Here, in the instant case also, the petitioner was being deprived of discharging duties by the department due to their laches, though he was willing to do in the promotional post. Further, even pursuant to the orders of the Tribunal in O.A.No.206 of 2007, he was promoted notionally, but deprived of getting any financial benefits arising out of his pay fixation. It is only due to the laches on the part of the department only, but not the petitioner. So, in the absence of any obvious laches on the part of the petitioner, he cannot be penalized for no fault of his. Further, in the promotion order of Smt. T.V. Usha, which was the subject matter of O.A.No.209 of 2007, the department extended all benefits to her, but why the same benefit could not be extended in respect of the petitioner even for no fault of his, is incomprehensible. Had he been allowed to get promotion at the earlier time, he could have entitled to all benefits including financial benefits, but due to the laches of the department, he was being deprived of getting any financial benefits, though he became entitled from the date from which he was initially promoted. In the impugned order, the Tribunal observed that in the earlier O.A. only a direction was given to hold a review DPC to consider the case of the petitioner, but no direction was given regarding payment of consequential benefits, besides further observing that as the applicant was not illegally, unlawfully, wrongly, unfairly and with oblique motive prevented from working as UDC, his pay has to be fixed in terms of Fundamental Rule 17 and that he is entitled to draw pay and allowances attached to the tenure of a post with effect from the date when he assumes duties of that post and he ceases to draw them once he ceased to discharge those duties. The Apex Court in the precedent cited above has categorically held that while granting a relief in favour of a party, the Court directs the authority to extend all benefits, which he would have obtained had he not been illegally deprived of them. It was also held that the Court directs the authority to grant him all benefits considering as if he had worked. But, in the earlier O.A., the Tribunal did not pass any order about the consequential benefits of the petitioner, and that for that reason only the authorities might have not issued any orders regarding any financial benefits. So, under the facts and circumstances stated, following the principles laid down by the Apex Court, the petitioner can be said to be entitled to all financial benefits arising out of his pay fixation as if he had worked. Therefore, the order under challenge suffers from serious legal infirmity so as to call for interference of this Court in exercise of judicial review. Accordingly, the writ petition is allowed and the order dated 08-12-2009 passed by the Andhra Pradesh Administrative Tribunal, in O.A.No.599 of 2009 is set aside. However, it is made clear that the petitioner is entitled to all consequential monetary benefits arising out of his pay fixation from the date when he was given promotion notionally i.e. 01-01-2006 till the date of his retirement i.e. 30-09-2007. No order as to costs. _____________________ GHULAM MOHAMMED, J _____________________ G. BHAVANI PRASAD, J Date: 27-04-2010 Ksn [1] AIR 2007 SC 3100 [2] CDJ 2009 MHC 2732 – W.P.NO.3221 OF 2001 & 24963 of 2002 DATED 15.07.2009 OF THE HIGH COURT OF JUDICATURE AT MADRAS.