Dixit Krishna Shripad, J
1. Grievance of the petitioner is short & concrete. He is invoking the writ jurisdiction of this Court for laying a challenge to order dated 04.01.2024, which reads as under:
“In pursuance of the orders passed by the Vice-Chancellor/dated-02.01.2024 on the recommendation of the Committee constituted for this purpose, Sri Muralidhar Swain. Ex.-Senior Assistant is promoted to the post of Section Officer Level-II in the scale of pay (PB-2) Rs.9,300/- to Rs.34,800/- plus Grade Pay Rs.4,200/- with usual D.A. and other allowances as admissible under the rules of the University from time to time with effect from 15.12.2010 at par with his counterparts, subject to outcome of the final decision of the Hon’ble High Court of Orissa, in the vigilance appeal case.
The pay of Sri Swain shall be fixed notionally as attached to the promotional post.”
2. Learned counsel for the petitioner submits that although the promotion has been given to the next level vide impugned order, the financial benefits have been denied notwithstanding that the effective date of promotion is 15.12.2010; salary & emoluments payable to an employee are his property and therefore, denying them unjustifiably amounts to violation of Article 300A of the Constitution of India. He also tells the Court that another person, namely, Mr. Ashok Kumar Mishra, who was convicted in a criminal case and whose criminal appeal is still pending, has been granted promotion with retrospective effect and further accorded all consequential benefits. Counsel invoking E.P. Royappa v. State of Tamilnadu, AIR 1974 SC 555 says that the action of University is absolutely unjust, arbitrary & discriminatory qua the petitioner. Therefore, he seeks invalidation of that portion of the impugned order, which denies financial benefits on the ground that vigilance case is pending, after he having been acquitted at the hands of trial Court.
3. Learned Senior Panel Counsel appearing for the University, in his usual fairness, resists the petition contending that although petitioner was acquitted in the criminal case, the prosecution has preferred appeal and therefore, there is continuation of the criminal case; when criminal case is thus pending, the University cannot be faltered in denying financial benefits of promotion during such pendency. So far as discrimination is concerned, he submits that many hands work in the University without knowing each other and therefore, happening of such things are not uncommon. Lastly, he submits that, in the fitness of things, the action of the University should not be faltered and that the petitioner should await till the State’s criminal appeal is heard & decided.
4. Having heard learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter for the following reasons:
4.1. Petitioner has been granted promotion, vide order dated 04.01.2024 with retrospective effect from 15.12.2010, is apparent from the impugned order itself. When retrospective promotion is granted, the employer only rectifies the mistake which he had committed to the detriment of employee and therefore, ordinarily, in such a case, the principle of ‘no work, no pay’ is not invocable. An argument to the contrary would amount to placing premium on illegality. Mere pendency of criminal appeal, petitioner having been acquitted in the criminal trial, cannot be a ground for denying the financial benefits of promotion, in the absence of any rule to the contrary. No contra rule is brought to the notice of this Court, even when clarification was sought for, in that regard. Once promotion is granted with retrospective effect there is no reason or rhyme for denying its consequential benefits to the promotee, subject to all just exceptions.
4.2. Petitioner was tried in a criminal case and acquitted. An acquittal ordinarily removes the clog on the innocence of citizen. Merely because criminal appeal is filed, the clog is not revived. Appeal against conviction is one thing and appeal against acquittal is another. In the former, the guilt having been proved, the status of conviction continues, although it may be suspended in certain circumstances, as held by the Apex Court in Navjot Singh Sidhu v. State of Punjab, AIR 2007 SC 1003. In the case of latter, the complete innocence remains intact with the person against whom the appeal is filed after he secured acquittal. Be that as it may.
4.3. No explanation is offered by the University as to why Ashok Kumar Mishra, who was convicted in criminal case after a full-fledged trial, has been accorded promotion vide order dated 05.08.2022, that too with retrospective effect from 07.03.2020 and further with all consequential benefits. Merely because a criminal appeal is filed against the order of conviction & sentence, the convict does not become an innocent citizen, even when the same is stayed. It hardly needs to be stated, an order of stay keeps conviction & sentence in a suspended animation, but does not wipe it out. The action of the University against the petitioner is grossly violative of Article 14 of the Constitution of India, which prohibits arbitrary & discriminatory action, as has been discussed vide E.P. Royappa (supra). This is a fit case for levy of exemplary costs, since University has acted very unfairly qua petitioner. It ought to have conducted itself as a Model Employer vide Bhupendra Nath Hazarika v. State of Assam, AIR 2013 SC 234. The Apex Court in State of Kerala v. M. Padmanabhan Nair, 1985 AIR 356 has directed payment of interest on the delayed dispersal of moneys payable to the employees in public employment.
In the above circumstances, this Writ Petition succeeds; the impugned order, to the extent it denies consequential benefits of promotion accorded with retrospective effect, is set at naught. A writ of Mandamus issued to the OP No.1-University to compute & pay to the petitioner all financial benefits of retrospective promotion within a period of eight weeks with interest at the rate of 12% per annum and if delay is brooked the University shall pay interest at the rate of 2% per mensem. Further, University shall pay a sum of Rs.50,000/- (rupees fifty thousand) only by way of exemplary costs to the petitioner within a period of 45 days which shall be recovered from the erring officials.
