@JUDGMENTTAG-ORDER
Honourable Mr. Justice S. Manikumar
1. At the time of filing of the Original Application before the Tamil Nadu Administrative Tribunal, Chennai, the petitioner was aged 51 years and was working as Assistant in Chozhapuram Town Panchayat, Thanjavur.
2. The Petitioner was originally appointed as a Bill Collector on 28.03.1981. Lateron, he was appointed as Junior Assistant, by transfer and his services were regularised in the said post.
3. According to the petitioner, he has passed the following tests:
(1) Panchayat Development Test in 1986
(2) District Office Manual Test in 1986
(3) Village Swaraj Test in 1987
(4) Community Development Manual Test in 1998
(5) Constitution of India Test in 1989, and
(6) Tamil Nadu District Municipalities Act Test in 1998.
4. The petitioner has submitted that his next avenue of promotion is the category of Executive Officer Grade II/Assistant/Head Clerk. According to the petitioner, he is fully qualified for promotion to the abovesaid category and when the vacancies arose, he made a representation dated 14.03.2002 to the respondents 1 and 2 to promote him to the abovesaid post. While so, the 2nd respondent promoted Mr. R. Sithivinayagamoorthi and Mr. V. Manohar as Head Clerks vide proceedings dated 05.10.2002. According to the petitioner, the abovesaid two persons were juniors to him. Hence, the petitioner gave a representation dated 14.11.2002 to the respondents, pointing out that those persons promoted on 05.10.2002 were juniors and since the petitioner did not suffer from any penalty nor there was any disciplinary proceedings, he should have been promoted on par with them.
5. As there was no response, the petitioner was constrained to send another representation dated 09.01.2003, to the District Collector, Thanjavur, the 2nd respondent herein, requesting him to furnish copies of the orders of promotion dated 05.10.2002, so as to enable him to seek legal remedies. Even this request was also not considered. In the abovesaid circumstances, the petitioner was constrained to file O.A.No. 673 of 2003, before the Tamil Nadu Administrative Tribunal, Chennai, seeking for a direction to the respondents, to promote him as Head Clerk of the Town Panchayat or Executive Officer Grade II. By order dated 26.02.2003, the Tribunal gave a direction to the respondents therein, to consider the case of the petitioner for promotion and pass further orders. Pursuant to the above directions, the 1st respondent passed an order dated 18.09.2003, rejecting the request of the petitioner, on the ground that he did not pass a test in Tamil Nadu Panchayat Development Act prescribed for promotion. Being aggrieved by the same, the petitioner has filed Original Application before the Tribunal, which lateron has been transferred to the file of this Court and renumbered as the present writ petition.
6. On the abovesaid pleadings and assailing the correctness of the order, Mr. M. Vivekanandan, learned counsel for the petitioner invited the attention of this Court to G.O.Ms.No. 300, Personnel and Administrative Reforms (Personnel-B) Department, dated 28.08.1992, and contended that only two departmental tests namely, Panchayat Development Account Test and District Office Manual Test, were prescribed for appointment by promotion to the post of Head Clerk and Assistants in Town Panchayat Department and it does not prescribe a test called as ''Tamil Nadu Panchayat Development Act'', for the purpose of promotion to the abovesaid post.
7. He further submitted that the respondents have erred in relying on a letter dated 22.07.1991 of the 1st respondent, which is only an executive instruction and it would not have any overriding effect on G.O.Ms.No. 300, Personnel and Administrative Reforms (Personnel-B) Department, dated 28.08.1992, which prescribes only two tests for promotion to the post of Head Clerk and Assistants in Town Panchayat Department. It is also his further contention that when G.O.Ms.No. 300, Personnel and Administrative Reforms (Personnel-B) Department, dated 28.08.1992, has been given retrospective effect from 13.05.1981, the executive instructions in the form of a letter dated 22.07.1991 has no force. In sum and substance, learned counsel for the petitioner submitted that what was required for promotion to the post of Head Clerk or Assistants in Town Panchayat is only a pass in Panchayat Development Account Test and District Office Manual Test, which the petitioner has acquired before the crucial date i.e., 15th March of every year.
8. Inviting the attention of this Court to a Notification dated 11.02.2002 issued by the Tamil Nadu Public Service Commission, inviting applications to appear in Departmental Tests Examinations, scheduled in May 2002, learned counsel for the petitioner further submitted that though five tests were prescribed for the officers of the Panchayat Development Department, candidates were given the option of answering either paper IV, namely, The Tamil Nadu Panchayat Act, 1994 and the Rules and Orders issued thereunder or paper V, namely, The Tamil Nadu District Municipalities Act, 1920 and the Rules and Orders issued thereunder. According to the learned counsel for the petitioner, even as per the abovesaid notification, it is suffice a candidate passes either Tamil Nadu Panchayat Act, 1994 and the Rules and Orders issued thereunder, or in Tamil Nadu District Municipalities Act, 1920 and the Rules and Orders issued thereunder and it is not necessary that a candidate should pass both the tests for promotion to the post of officer in Tamil Nadu Panchayat Development Department. According to him, as the petitioner had already passed the District Municipalities Act in 1998, much earlier to the crucial date i.e., 15.03.2002, he is fully qualified to be considered for promotion to the post of Head Clerk. He also submitted that the actual panel for promotion to the post of Head Clerk was drawn up only on 29.08.2002 and that the same was given effect to from 11.10.2002. He therefore submitted that when the petitioner had cleared six tests including the two prescribed tests in G.O.Ms.No. 300, Personnel and Administrative Reforms (Personnel-B) Department, dated 28.08.1992, rejection of his case for promotion to the post of Head Clerk along with his juniors is
9. Reiterating the averments made in the counter affidavit filed by the District Collector, Thanjavur, the 2nd respondent herein, Mr. Duraisolaimalai, learned Additional Government Pleader appearing for the respondents submitted that for promotion to the post of Head Clerk or Executive Officer Grade-II, the following departmental tests have been prescribed.
1) Community Development
2) Village Swaraj
3) Constitution of India
4) Tamil Nadu Panchayat Act 1958
5) Panchayat Development Account Test
6) District Office Manual.
10. According to him, the post of Head Clerk or Executive Officer Grade-II, is a pivotal post and persons should be acquainted with the provisions of relevant Act, then only any Town Panchayat could be administered in a proper manner. He further submitted that when the panel for promotion to the post of Head Clerk was prepared, Mr. R. Sithivinayagamoorthi and Mr. V. Manohar were considered, as they had passed the tests prescribed for promotion and that they were also more qualified than the petitioner, on the date of
11. Inviting the attention of this Court to the details of the departmental tests passed by the petitioner and the persons referred to above, learned Additional Government Pleader further submitted that as the petitioner did not pass either Tamil Nadu Panchayat Act, 1958, or Tamil Nadu Panchayat Act 1994, within the crucial date i.e., 15.03.2002, as prescribed in the proceedings of the Director of Town panchayat, Chennai, dated 22.07.1991, he was not considered for promotion. According to him, at the time of preparation of the panel, only two persons were eligible to the post of Head Clerk, and they have passed all the departmental tests. He further submitted that in 2004, the Government vide letter dated 30.03.2004, ordered that for promotion to the post of Executive Officer Grade-II, it is suffice a candidate passes either Panchayat Act 1994 or in District Municipalities Act, 1920. As the petitioner had passed the test in District Panchayat Municipalities Act 1920, he was promoted as Executive Officer Grade-II on 22.12.2004. According to the learned counsel, when the petitioner has accepted the promotion as per the letter dated 30.03.2004 stated supra, the prayer made in the writ petition has become infructuous. He also submitted that when the petitioner has accepted the order of promotion and retired from service, on attaining the age of superannuation, there is no need to consider the correctness of the impugned order, even assuming that it is erroneous. Though the learned Government counsel opposed the writ petition on merits, contending inter alia that the petitioner did not satisfy the requirement of a pass in Tamil Nadu Panchayat Act, for empanelment to the post of Head Clerk, at paragraph No. 8 of the counter affidavit, the District Collector, Thanjavur District, has stated that it is needless to point out that the Town Panchayat Act, 1994, is not applicable and only District Municipalities Act, 1920 is applicable for all the Town Panchayats. Therefore, after issuance of the Government letter dated 30.03.2004, the name of the petitioner has been considered and accordingly, he was promoted as Executive Officer Grade-II. He therefore submitted that there is no illegality or irregularity in the preparation of the panel for promotion to the post of Head Clerk. For the abovesaid reasons, he prayed for dismissal of the writ petition.
12. Heard the learned counsel for the parties and perused the materials available on record.
13. The contention that the petitioner is senior to Mr. R. Sithivinayagamoorthi and Mr. V. Manohar in the two seniority lists dated 14.08.2001 and 29.08.2002 issued by the District Collector, Thanjavur District, has not been disputed.
14. Pleadings disclose that the petitioner has passed the following tests
(1) Panchayat Development Test in 1986
(2) District Office Manual Test in 1986
(3) Village Swaraj Test in 1987
(4) Community Development Manual Test in 1998
(5) Constitution of India Test in 1989, and
(6) Tamil Nadu District Municipalities Act Test in 1998.
15. Reading of G.O.Ms.No. 300, Personnel and Administrative Reforms (Personnel-B) Department, dated 28.08.1992, discloses that certain amendments were issued to the Special Rules for the Tamil Nadu Ministerial Service and in Annexure I, after the heading "Town and Country Planning Department and the entries relating thereto, the Government have inserted the following heading namely,
TOWN PANCHAYAT DEPARTMENT
Head Clerks
Assistants
16. The amendments to the Tamil Nadu Ministerial Service further reads that, "provided that the holders of the posts of Head Clerks as on 4th April 1990 shall pass the tests within two years from 4th April 1990 failing which they shall not be eligible to draw subsequent increments in the time scale of pay applicable to the post until they pass the said tests.
17. Perusal of G.O.Ms.No. 271, Rural Development Department, dated 04.04.1990, shows that in G.O.Ms.No. 828, R.D. & L.A., dated 07.05.1981, the Government have constituted a separate Directorate for the administration of Town Panchayats and Panchayat Township with effect from 07.05.1981. In G.O.Ms.No. 64, R.D, dated 05.02.1985, the Government have provincialised the following categories of the staff in the Town Panchayats including Panchayat Township:
1) Head Clerk
2) Assistant
3) Revenue Inspector
4) Junior Assistant
5) Typists and Steno Typists
18. Thereafter, accepting the proposals of the Director of Town Panchayats, Chennai, in D.O. Letter No:4575/84/A3 dated 12.08.1985, in Annexure I of the Special Rules for the Tamil Nadu Ministerial Service under the heading "Selection Categories", the following sub heading and entries have been inserted, namely,
Town Panchayat Department
1) Head Clerk
2) Assistant
3) Revenue Inspector
The Director of Town Panchayats shall be the appointing authority for all the posts in his office and that the District Collector of the concerned District, shall be the appointing authority for the posts of Assistant, Revenue Inspector, Junior Assistant, Typist and Steno Typist.
19. As per G.O.Ms.No. 271, Rural Development Department, dated 04.04.1990, cited supra, Panchayat Development Account Test and the District Office Manual Test shall be the Departmental Tests, for appointment as Head Clerk and Assistants in Town Panchayat Department and those who have already been promoted before the date of issue of these rules, should pass the tests within two years from the date of issue of these rules. The abovesaid G.O., further reads that amendments to the Tamil Nadu Ministerial Service Rules in this regard would be issued by the Government by the Personnel and Administrative Reforms Department separately and that the Director of Town Panchayats, Chennai, had been requested to send necessary draft amendments to the Special Rules for the Tamil Nadu Ministerial Service. Accordingly, when the proposals were sent by the Director of Town Panchayats, in his letter dated 26.10.1990, the Personnel and Administrative Reforms Department has issued orders in G.O.Ms.No. 300, Personnel and Administrative Reforms (Personnel-B) Department, dated 28.08.1992, amending the Special Rules for the Tamil Nadu Ministerial Service Rules, with effect from 13th May 1981, in respect of Assistants on the 5th February, 1985, in respect of the posts of Head Clerks and Revenue Inspectors of Town Panchayats including Panchayat Townships and on the 16th December 1988 in respect of the post of Bill Collectors (Grade I) of Town Panchayats including Panchayat Townships.
20. Though the Director of Town Panchayats, Chennai, the 1st respondent herein, in the impugned order has rejected the case of the petitioner for promotion to the post of Head Clerk, placing reliance on the Directorate''s letter dated 22.07.1991, and further stated that the petitioner had not passed the test called, ''Tamil Nadu Panchayat Development Act'', as rightly contended by the learned counsel for the petitioner, there is no such test. Probably, the 1st respondent would have meant that as the petitioner had not passed the Tamil Nadu Panchayat Act, 1958, he was not eligible to be considered. At this juncture, it is relevant to consider as to whether passing of Tamil Nadu Panchayat Act, 1994, is required for promotion to the post of Head Clerk or Executive Officer Grade-II, this Court deems it fit to refer the averments made at paragraph 8 of the counter affidavit, wherein, the District Collector, Thanjavur, has candidly admitted that all the Town Panchayats are governed only by the provisions of the District Municipalities Act, 1920, and further stated that Panchayat Act, 1994, is not applicable to Town Panchayat and only District Municipalities Act, 1920, is applicable for all the Town Panchayats. Even in the Directorate''s letter dated 22.07.1991, addressed to all the District Collectors, reference has been made to G.O.Ms.No. 271, cited supra, wherein, the Government after prescribing the Panchayat Development Account Test and District Office Manual Test, as the departmental tests for appointment by promotion to the post of Head Clerk and Assistants in Town Panchayat Department, have ordered that amendments to the Tamil Nadu Ministerial Service Rules in this regard would be issued by the Government by the Personnel and Administrative Reforms Department separately. However, prior to the issuance of G.O.Ms.No. 271, Rural Development Department, dated 04.04.1990, promotions to the post of Head Clerk and Assistants in Town Panchayat Department were ordered only, if the Junior Assistants qualify themselves by passing four departmental tests and also a pass in Panchayat Development Account Test, perusal of the Directorate''s letter dated 22.07.1991 further discloses as the abovesaid five tests were not included in G.O.Ms.No. 271, cited supra, the Directorate by its letter dated 26.10.1990 has requested the Government to issue a fresh order and until then, the 1st respondent by his executive instructions dated 22.07.1991, has directed the District Collectors, to fill up the existing vacancies, with candidates who had passed the four tests and the Panchayat Development test, in addition to the Panchayat Development Account Test and District Office Manual Test. Even in the abovesaid Directorate''s letter put against the petitioner, there is no condition that a Junior Assistant should have passed both the tests namely, Tamil Nadu Panchayat Act, 1994 and the Rules and Orders issued thereunder and the Tamil Nadu District Municipalities Act, 1920 and the Rules and Orders issued thereunder, before the crucial date. It is well settled that administrative instructions cannot override the statutory rules. In this context it is useful to refer to few decisions.
(i) In L.K. Muthiah Pillai and others Vs. The Panchayat Union Commissioner and others reported in 1972 MLJ (2) 110, wherein it has been held that:-
Once a service is governed by rules framed under the proviso to Article 309 of the Constitution, then no executive instructions could supersede, or over-ride such a rule relating to such a class of service and any such rule or instruction given to the contrary would be ineffective in the eye of law.
(ii) In
7. It may be noted that herein we are dealing only with those who were promoted from the cadre of clerks in the Secretariat. The first question arising for decision is whether the Government was competent to add by means of administrative instructions to the qualifications prescribed under the Rules framed under Article 309. The High Court and the courts below have come to the conclusion that the Government was incompetent to do so. This Court has ruled in Sant Ram Shama v. State of Rajasthan that while the Government cannot amend or supersede the statutory rules by administrative instructions, if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Hence we have to see whether the instructions with which we are concerned, so far as relate to the clerks in the Secretariat amend or they alter the conditions of service prescribed by the rules framed under Article 309. Undoubtedly the instructions issued by the Government add to those qualifications. By adding to the qualifications already prescribed by the rules, the Government has really altered the existing conditions of service. The instructions issued by the Government undoubtedly affects the promotion of concerned officials and therefore they relate to their conditions of service. The Government is not competent to alter the rules framed under Article 309 by means of administrative instructions. We are unable to agree with the contention of the State that by issuing the instructions in question, the Government had merely filled up a gap in the rules. The rules can be implemented without any difficulty. We see no gap in the rules.
(iii) The abovesaid position has been re-affirmed by the Supreme Court in
7. The settled position of law is that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the Rules, Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a government order and ignoring the mandate of Article 309 of the Constitution.
(iv) In
11. It is thus apparent that an executive instruction could make a provision only with regard to a matter which was not covered by the Rules and that such executive instruction could not override any provision of the Rule. Notwithstanding the issue of instruction dated 6-11-1962 therefore, the procedure for making promotion as laid down in Rule 8 of the Rules had to be followed. Since Rule 8 in the instant case prescribed a procedure for making promotion the said procedure could not be abrogated by the executive instruction dated 6-11-1962. The only effect of the Circular dated 6-11-1962 was that Supervisors ''A'' on completion of two years'' satisfactory service could be promoted by following the procedure contemplated by Rule.
8. This Circular had indeed the effect of accelerating the chance of promotion. The right to promotion on the other hand was to be governed by the Rules. This right was conferred by Rule 7 which inter alia provides that subject to the exception contained in Rule 11, vacancies in the posts enumerated therein will normally be filled by promotion of employees in the grade immediately below in accordance with the provisions of Rule 8. The requirements of Rule 8 in brief have already been indicated above. Rule 12 provides that no appointment to the posts to which these Rules apply shall be made otherwise than, as specified in these Rules. This right of promotion as provided by the Rules was neither affected nor could be affected by the Circular. The order dated 28-12-1965 which provided a minimum period of service of three years in the lower grade for promotion to the next higher grade and the Circular dated 20-1-1966 which provided that promotions in future will be effected in accordance with the normal rules and not merely on completion of two years'' satisfactory continuous service had the effect of doing away with the accelerated chance of promotion and relegating Supervisors ''A'' in the matter of promotion to the normal position as it obtained under the Rules.
(v) In Collector of Thanjavur v. S. Rajagopal reported in 2002 SLR 552, the Court held that circular issued by the State Government could not have any statutory force.
(vi) In State of Orissa v. Prasana Kumar Sahoo reported in 2007 (15) SCC 129, the Apex Court held that exercise of powers by the State Government under Article 162 of the Constitution of India is subservient to the recruitment rules framed under the proviso to Article 309 of the Constitution of India. At Paragraphs 11 and 12, it held as follows:
11. It is now well settled that a State is bound by the constitutional scheme to treat all persons equally in the matter of grant of public employment as envisaged under Articles 14 and 16 of the Constitution of India.
12. Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative Act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions.
21. Prescription of only four tests and Panchayat Development Account Test coupled with the fact that the Town Panchayats are governed only by the provisions of the District Municipalities Act, would give a clear inference that in the case of the promotion to the post of Head Clerk or Assistant or Executive Officer Grade-II in Town Panchayats, there is no need to pass Tamil Nadu Panchayat Act, 1994 and the Rules and Orders issued thereunder and it is suffice to pass the Tamil Nadu District Municipalities Act, 1920 and the Rules and Orders issued thereunder, and that is why, the Tamil Nadu Public Service Commission in its Notification dated 11.02.2002, while inviting applications from the candidates for admission to the departmental tests examinations held May 2002, has made it clear that it is suffice if a candidate appears either in Tamil Nadu Panchayat Act, 1994 and the Rules and Orders issued thereunder or in Tamil Nadu District Municipalities Act, 1920 and the Rules and Orders issued thereunder, depending upon the service.
22. Paragraph 39 of the Notification dated 11.02.2002 is extracted hereunder.
Departmental Test for Officers of the Panchayat
Development Department.
Paper-I: Manual of Village Level Workers Community Development
Manual Part-I and a guide to Community Development
Paper-II: Village Swaraj
Paper-III: Constitution of India and Miscellaneous Acts
Paper-IV: The Tamil Nadu Panchayat Act, 1994 and the Rules and Orders issued therunder.
Paper-V: The Tamil Nadu District Municipalities Act, 1920 and the Rules and Orders issued thereunder.
Note-The candidate is given the option of answering either
Paper-IV or Paper-V
23. Though Panchayats and Town Panchayats are under the control of the Panchayat Development Department and for the post of Head Clerk falling under the Tamil Nadu Ministerial Service, if the Junior Assistant in Town Panchayat has to be considered for promotion to the post of Head Clerk or Executive Officer Grade-II, if he passes a test in Panchayat Development Account Test and District Office Manual Test which are mandatory under the Special Rules, a pass in four other tests, which includes the test namely, District Municipalities Act, 1920, and there is absolutely no need to insist that a Junior Assistant should also pass Tamil Nadu Panchayat Act, 1994, which is not applicable to Town Panchayats. Similarly, in a case where for promotion to the post of Head Clerk and Assistants in Panchayats, it would be proper and reasonable to insist for a pass in Tamil Nadu Panchayat Act. Insisting a Junior Assistant to pass departmental tests namely, a pass in Tamil Nadu Panchayat Act, 1994 and the Rules and Orders issued thereunder for promotion to the post of Head Clerk or Executive Officer Grade-II in Town Panchayat is arbitrary and therefore, rejection of the request of the petitioner to consider his case for promotion to the post of Head Clerk is contrary to the Special Rules. Therefore, the contention of the respondents that the petitioner did not qualify himself for consideration to the post of Head Clerk, as he did not pass the test namely, Tamil Nadu Panchayat Development Act, is wholly misconceived.
24. As rightly contended by the learned counsel for the writ petitioner, even in the Notification dated 11.02.2002, inviting applications from the candidates for admission to Departmental Tests Examinations, candidates have been given option to answer either one of the above two tests, depending upon the appointment to the post of Head Clerk or Assistants in Town Panchayat or Panchayat, as the case may be. The contention of the respondents that Mr. R. Sithivinayagamoorthi and Mr. V. Manohar, juniors to the petitioner have passed more number of tests before the crucial date and that therefore, they were considered for inclusion in the panel of the year 2002 for promotion to the post of Head Clerk, is liable to be rejected, for the reason that what is relevant for preparation of the panel is that the appointing authority should consider as to whether the candidates have come within the zone of consideration namely, the crucial date and whether they have passed the tests prescribed for promotion to the post. The contention of the respondents that a candidate has passed more number of tests and therefore, he has a preference over his seniors or others, is fallacious and liable to be rejected. The further contention of the District Collector, Thanjavur District, that pursuant to the Government Letter dated 30.03.2004 the petitioner has been considered for promotion to the post of Executive Officer Grade-II and that while accepting the same, he did not make any objections and thereafter, he retired on attaining the age of superannuation and therefore, the present writ petition has to be dismissed as infructuous, cannot be countenanced, for the reason that denial of the petitioner to the post of Head Clerk in Town Panchayat in the year 2002 is erroneous and it is apparent on the face of the statutory rules and the instructions stated supra. In
The expression infructuous means ineffective, unproductive and unfruitful. It is derived from the Latin word "Fructus" (fruit).
Therefore, merely because, a person retired from service that would not mean that the claim for promotion would become infructuous. If that interpretation is given, then denial of promotion even if challenged and pending on the file of this Court, then the aggrieved person would be remediless.
25. Pleadings and material on record disclose, by an erroneous approach, the petitioner has lost two years of service as Head Clerk and admittedly two of his juniors have marched ahead of him and drawn higher salary and increments. Had the petitioner been considered and promoted in the year 2002, as Head Clerk along with the above referred persons, who admittedly were his juniors, he would have drawn higher salary in the promotional post and also drawn increments periodically. For the reasons stated supra, this Court is of the considered view that the impugned order is liable to be set aside and accordingly, set aside.
26. The next question to be considered is whether the petitioner is entitled to salary for the period during which he was denied promotion. In this context it is useful to refer to few decisions.
(i) The Supreme Court in Union of India v. K.V. Janakiraman, reported in 1991 SC 2010, in Paragraph 7 of the judgment, held as follows:
The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R.17(1) will also be inapplicable to such cases.
At this juncture, it is relevant to extract Section 17(1) of the Fundamental Rules.
Subjects to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties:
Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence.
(ii) In Burn Standard Co. Ltd., and another v. Tarun Kumar Chakraborthy and others reported in 2003 SCC (L & S) 1015, the first respondent therein was kept out of service and not permitted to work. The appellants contended that due to pendency of a case filed by the association, they bona fidely believed that they could not permit him to join duty. The Supreme Court accepting the contention of the respondent therein, employer, held that if there was no impediment in law in permitting the employee in joining the duty, then there is no justification in denying the salary to him. Accordingly, the Court, directed the appellant to pay the salary and other emoluments for the period not covered by the litigation and interim orders.
(iii) In
In the above reported judgment, the employee was not allowed to work after the postulated day and therefore, he filed a Writ Petition, challenging the action of the employer, relieving him from service. The employee contended that the resignation had already been withdrawn and therefore, he should be permitted to continue in service. The Writ Petition was dismissed, on appeal, the Division Bench also concurred with the view of the learned Single Judge. On further appeal, the Supreme Court reversed the decision of the High Court and held that the employee had withdrawn his resignation before it was given effect to by the Employer and therefore, granted the relief prayed for, by the employee. As regards backwages, the Company contended that since the employee did not work for the later period, he would not be entitled to salary on the principle of "No work No pay". Rejecting the submission made on behalf of the Company, the Supreme Court at Paragraph 29 of the judgment held as follows:
We must frankly admit that we are unable to uphold the contention of the respondent company. A similar situation had arisen in J.N. Srivastava and a similar argument was advanced by the employer. The Court, however, negatived the argument observing that when the workman was willing to work but the employer did not allow him to work, it would not be open to the employer to deny monetary benefits to the workman who was not permitted to discharge his duties. Accordingly, the benefit were granted to him. In Shambhu Murari Sinha II also, this Court held that since the relationship of employer and the employee continued till the employee attained the age of superannuation he would be entitled to "full salary and allowances" of the entire period he was kept out of service. In Balram Gupta inspite of specific provision precluding the government servant from withdrawing notice of retirement this Court granted all consequential benefits to him. The appellant is, therefore, entitled to salary and other benefits.
(iv) In Punjab SEB v. Kuldip Singh reported in 2005 (13) SCC 362, the Supreme Court considered the case of Junior Engineer, who was not promoted to the post of Assistant Engineer (AE) by the State Electricity Board, as he had not taken the departmental examination. Subsequently, he passed the examination. One S was appointed as Assistant Engineer and his appointment was made subject to the rights of a candidate who may be appointed in regular course. When the said Junior Engineer (respondent therein) acquired qualifications after passing the departmental examination, neither S was reverted nor the respondent was promoted as Assistant Engineer. However, S preferred a suit, in which, interim injunction was granted restraining the State Electricity Board from reverting him to the post of Junior Assistant. Ultimately the suit came to be dismissed. On the Writ Petition filed by the respondent, the High Court directed the Electricity Board to decide the dispute on merits. Thereafter, the respondent was promoted to the post of Assistant Engineer with effect from 14.12.2001, instead of 20.03.1990, being the date, he had passed the departmental examination. A second Writ Petition was filed by the respondent, claiming notional promotion with effect from 20.03.1990 with all backwages and consequential benefits with interest at the rate of 18% until the payment was made. Before the High Court, the State Electricity Board contended that the respondent was not entitled to notional promotion or backwages for any period prior to 2001, as the number of posts had been reduced by way of amendment to the Rules. The second Writ Petition was also allowed and the High Court directed the Electricity Board to create a supernumerary post and pay all arrears of salary together with interest at the rate of 9% within two months from the date of passing of the order. On appeal, the Supreme court declined to accept the contention of the State Electricity Board and allowed the appeal only to the extent of rate of interest.
(v) In
So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facts which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full backwages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in the criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes, in the matter when the person in 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 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 "no work no pay" cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.
In the above reported case, persons junior to the respondent therein were promoted to the higher post, whereas, he was wrongly denied promotion. Thereafter, he was promoted with retrospective effect, without pay on the basis of "No work no pay". Learned Single Judge refused to grant him monetary benefits in the promotional post with retrospective effect. In the Review application, benefit was given from the date, when he filed the Original Application in the High court, i.e., 15.06.1992.
(vi) A Division Bench of this Court in
Once it is found that the decision of the respondents is illegal, it has to be held that the respondents have illegally prevented the petitioner from discharging his duties from 01.10.1999 and if the respondent''s illegally prevented the petitioner from attending to the duties, respondents are bound to pay salary fro the period for which the petitioner was not allowed to perform his duties.
(vii) In V. Mani v. The Secretary to Government reported in 2008 (2) CLT 241, this Court, after following the above decisions, at Paragraph 13, held that,
13. The legal principles which emerge from the decisions cited supra are that the normal rule of "No work, No pay" is not applicable to cases where the employee although was willing to work, is kept away from work by the authorities for no fault of him. The principle of "No Work No Pay" cannot be accepted as a Rule of Thumb, in a case where the administration has wrongly denied his due, the Government servant/employee should be given the benefits, as per the Fundamental Rules, including monetary benefits, subject there being any change in law or some supervening factors. As held by the Division Bench in Munivenkatappa''s case, once it is found that the decision of the respondent is illegal, it has to held that the respondents have illegally prevented the employee from discharging his duty and consequently he is entitled to the emoluments for the period for which he was not allowed to perform his duties. In all these decisions, the Apex Court as well as this Hon''ble Court have held that if the government servant or employee is denied of a benefit or deprived of his legitimate right due to the fault of the department/employer, then the government servant/employee should not be made to suffer, but for specific circumstances, such as change in law or some supervening circumstances.
27. As the petitioner has attained the age of superannuation, in the interest of justice, it is suffice that a direction is issued to the respondents to include the name of the petitioner in the panel of Head Clerk drawn up for the year 2002 notionally and consequently promote the petitioner as Head Clerk and place him at the appropriate place in the seniority list and the petitioner is entitled to all monetary and other service benefits. Accordingly, a direction is issued to the respondents 1 and 2 to promote the petitioner notionally with effect from 11.10.2002 and grant all service and monetary benefits, refix his pension and grant the arrears also within a period of two months from the date of receipt of a copy of this order.
28. With the above directions, the writ petition is allowed. No costs.
