IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 15135-CAT of 2003 Date of Decision : January 04, 2011 Union of India through the Deputy Chief Personnel Officer (Const.) ....Petitioner Versus Rajinder Kumar and others .....Respondents CORAM : HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR. JUSTICE T.P.S.MANN Present : Mr. Puneet Jindal, Advocate for the petitioner. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M.KUMAR, J. 1. The Deputy Chief Personnel Officer of the Railway has challenged order dated 5.5.2003 passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh while allowing the Original Application filed by Rajinder Kumar-respondent No.1 (P4). The Tribunal has granted the applicant-respondent the benefit of arrears of difference of pay of the promotional post from the date the persons junior to him were promoted on the post of Signal Inspector Grade II and Grade I from that of Junior Engineer II. It has come on record that CWP No. 15135-CAT of 2003 -2- one Shri R.K.Bansal, who was junior to the applicant-respondent, was given promotion on 6.3.1995 but the difference of pay of the promotional post were not granted to the petitioner. Accordingly, the Tribunal has directed the grant of the arrears w.e.f. 6.3.1995. 2. Despite the service effected on original applicant- respondent No.1, no one has put in appearance and, therefore, we have proceeded to hear the matter. 3. Mr. Puneet Jindal, learned counsel for the petitioner, has placed reliance on para 228 of the Indian Railways Establishment Manual and argued that in cases where the promotions have been given erroneously then on re-affixation the arrears are not to be disbursed to an employee but he would be granted the enhanced pay from the date of actual promotion. According to learned counsel, the Tribunal has committed patent error in law by misinterpreting para 228 of IREM. Mr. Jindal has also placed reliance on a judgment of Hon'ble the Supreme Court rendered in the case of Union of India & Anr. V Tarsem Lal & Ors. 2006(10) S.C.C. 145 wherein the view taken by the Tribunal in granting arrears from the date the juniors of an employee were promoted was set aside. Accordingly, it has been suggested that a contrary view taken by the Tribunal would not stand scrutiny of law on the bare perusal of para 228 of IREM, as interpreted by Hon'ble the Supreme Court in the case of Tarsem Lal (Supra). CWP No. 15135-CAT of 2003 -3- 4. In order to appreciate the submissions made by learned counsel for the petitioner, it would be pertinent to extract para 228 of IREM, which reads as follows:- “228. Erroneous Promotions- (I). Sometimes due to administrative errors, staff are over looked for promotion to higher grades could either be 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 (ii) Where a person has been promoted but not on the date from 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 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 CWP No. 15135-CAT of 2003 -4- from the date of actual promotion. No arrears on this account shall be payable as he did not actually shoulder the duties and responsibilities of the higher posts.” 5. A bare perusal of para 228 would show the two types of cases where on account of an administrative error, a number of staff is over-looked for promotion to higher grades. These two types of cases are as under:- (a) Where a person has not been promoted at all because of administrative error; and (b) Where a person has been promoted but not on the date from which he was entitled to be promoted but for the administrative error. 6. According to the Statute, each case is required to be dealt with on its own merits. It has not been disputed that seniority has to be given to the member of the staff by fixing his pay in the higher grade on promotion on proforma basis. The enhanced pay may be allowed on the date of actual promotion. In other words, an employee would be entitled to fixation of his pay from the due date but no arrears would be payable. The aforesaid rule came up for consideration before Hon'ble the Supreme Court in Tarsem Lal's case (Supra) where the view similar to the one taken in the impugned order by the Chandigarh Bench of the Tribunal, has been taken. In Tarsem Lal's case (Supra), an earlier CWP No. 15135-CAT of 2003 -5- judgment of Hon'ble the Supreme Court has also been relied upon, i.e. Virender Kumar, General Manager, Northern Railways, New Delhi V Avinash Chandra Chadha and others 1990(2) SCR769 wherein similar question was also considered. The aforesaid view has been relied upon by Hon'ble the Supreme Court in Tarsem Lal's case (supra) by holding as under:- “By the order under appeal, the Tribunal has allowed the application 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”. 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 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 CWP No. 15135-CAT of 2003 -6- 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 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 the what has been stated in Virendra's case (supra) and P.O. 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.” 7. We have examined the facts of the present case on the anvil of the law laid down in para 228 of IREM as upheld by Hon'ble the Supreme Court in the cases of Virender Kumar as well as in Tarsem Lal (Supra). It becomes evident that the Tribunal in the impugned order could not have granted the benefit of arrears of pay of the promotional post w.e.f. 6.3.1995 and it should have granted the benefit of arrears only from the date the respondent started actually shouldering the duty and responsibility of the higher post. It has come on record that the respondent started discharging the duty of the Signal Inspector Grade-I w.e.f. 28.1.2003. Accordingly, respondent No.1 is held entitled to the pay scale of the post of Signal Inspector Grade-I. His pay in that scale CWP No. 15135-CAT of 2003 -7- be fixed on notional benefits from 6.3.1995 but arrears be paid to him w.e.f. 28.1.2003 when he actually started discharging duties of the promoted post. Accordingly, the order of the Tribunal is modified to the aforesaid extent and the writ petition to the aforesaid extent is allowed. ( M.M.KUMAR ) JUDGE ( T.P.S.MANN ) January 04, 2011 JUDGE ajay-I