B.K. DIWAN Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Challenge in this petition is to the order dated 8-4-2008 (Annexure P/1) whereby the petitioner has been granted notional promotion w.e.f. 5-9-2000 without arrears, for the purpose of fixation of his pay scale. The facts, in brief, as projected by the petitioner are that the junior to the petitioner was promoted to the post of Principal, Higher Secondary School, on the pay scale of Rs. 8000-275-13500, on 5-9-2000. The petitioner was denied consideration and promotion without any rhyme or reason. Being aggrieved, the petitioner preferred a writ petition, being W.P. No. 6326/2005, which was disposed of on 15-12-2005 (Annexure P/2), directing the petitioner to make a fresh representation raising his grievances before the competent authority. It was further directed that if the representation is made within a period of one month, the same shall be considered in accordance with law by the authorities within a period of four months from the date of receipt of the representation. Thereafter, a representation was made by the petitioner but it was not decided within the prescribed time as directed by this Court on 15-12-2005 (Annexure P/2). Thus, a contempt petition was filed, being Contempt Petition No. 87/2004. After notice in the contempt petition, the representation of the petitioner was decided on 7-5-2007 (Annexure P/3), holding that the petitioner could not be considered and promoted on account of non-availability of his Annual Confidential Reports (for short 'the ACRs') in the Departmental Promotion Committee (for short, 'the DPC) meeting held on 21-12-1999 and 3-3-2000. Thus, his representation was rejected. Thereafter, the impugned order dated 8-4-2008 (Annexure P/1) was passed granting notional promotion for fixation of monetary benefits w.e.f. 5-9-2000 when his junior Jagdish Prasad Patel, was promoted, without arrears of salary.

(2.) Shri Virendra Sharma, learned counsel appearing for the petitioner would submit that the petitioner cannot be denied benefit of promotion for the wrong committed by the officers as it was for the officers to produce and circulate the ACRs of the petitioner for consideration at the relevant time. Even if the same was not available, the petitioner ought to have been considered on the basis of other materials available to them. There was no departmental enquiry or criminal case pending against the petitioner. Thus, the petitioner was entitled to promotion w.e.f. the date his junior was promoted, with consequential benefits. Further, the respondents' stand that on the principle of 'no work, no pay' the petitioner was not entitled to arrears of salary as he has not worked on the post, is contrary to the well settled principle of 'no work, no pay'. Shri Sharma would rely on the decisions of the Supreme Court in Union of India and others v. K.V. Jankiraman and others, 1991 4 SCC 109 and Commissioner, Karnataka Housing Board v. C. Muddaiah, 2007 7 SCC 689.

(3.) On the other hand, Shri Ajit Singh, learned Panel Lawyer appearing for the State/respondents would submit that since the petitioner could not be considered and promoted and he had, in fact, not worked on the higher post i.e. Principal, Higher Secondary School, the petitioner is not entitled to arrears of salary on the principle of 'no work, no pay'. He would rely on a decision of the Supreme Court in Union of India and another v. Tarsem Lal and others, 2006 10 SCC 145 and State of Haryana and others v. O.P. Gupta and others, 1996 7 SCC 533.