UNION OF INDIA Vs. C A T

JUDGEMENT

(1.) IN this group of writ petitions filed by the Railway Administration the question of wide ramification arises for consideration is as to whether an employee who was not promoted earlier due to administrative lapse, on his retrospective notional promotion to higher post subsequently w. e. f. the date of his juniors have been promoted would be entitled to the arrears of pay and allowances with retrospective date.

(2.) PARA 228 of the Indian Railway Establishment Manual provides that when a particular person does not work on a particular post, he cannot be granted the actual arrears of pay on the particular post as he has not discharged the duties on that post. The said PARA is held to be invalid and violative of Article 14 & 16 of the Constitution of India by a Full Bench decision of the Central Administrative Tribunal dated 11. 2. 2002. It is held therein that an employee who was not promoted earlier due to administrative lapse, on his retrospective notional promotion to higher post subsequently w. e. f. the date his juniors have been promoted would be entitled to the arrears of pay and allowances with retrospective date. The reasoning given by the Full Bench of the Tribunal find place in PARA 6 of the judgment, which is extracted as follows:- " Aforesaid decision of the Karnataka High Court is binding upon us. Besides it, the provisions of para-228 of IREM (Vol. I) have also been declared invalid by the Full Bench (supra ). Moreover, even on first principle, we find no justification in denying the employees pay and allowances for the period when they had been prevented from working not on account of any fault of theirs but on account of the fault of the management. Had they not been prevented from working by the management, they would have definitely worked, in which case they would have been entitled to pay and allowances. If they have prevented on account of the fault of the management, we find no justification in denying them the pay and allowances. " The decision of the Karnataka High Court on which the Tribunal has placed reliance has been referred in PARA 3 of the judgment, which is extracted as follows:- " The Karnataka High Court in the case of Saikh Mehboob vs. Railway Board and Others, 1982 (1) SLR 455, has observed, thus: " 3. . . . . . . . . 2. . . . . . The staff who have lost promotion on account of administrative errors 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 stage which the employee would have reached if he was promoted at the proper time. The enhanced pay may be allowed 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 grade posts. 4. The last portion of the above circular states that even if a civil servant was denied promotion at proper time, he was not entitled to arrears of salary on the ground that he did not shoulder the duties and responsibilities of the higher post. In my view, the denial of arrears of salary to the petitioner cannot be supported. The petitioner had a right to be considered for promotion on the dates when it was due in view of the right to equal opportunity in matters relating to employment guaranteed under Cause (1) of Article 16 of the Constitution. The said valuable rights guaranteed by the Constitution cannot be denied in the first instance and thereby deny the civil servant the opportunity to render service in the higher post and subsequently make it a ground for justifying the arrears of salary even after according retrospective promotion, at some point of time later. The giving effect to the circular as against the petitioner having regarding to the facts and circumstances of the case, would amount to violation of the fundamental rights guaranteed to the petitioner under Article 14 read with Clause (1) of Article 16 of the Constitution. "

(3.) IN the case of State of Haryana vs. O. P. Gupta (supra), the Apex Court has distinguished its earlier decision in Union of INdia etc. vs. K. V. Jankiraman, etc. (3), as follows:- " It is true, as pointed out by Shri Hooda, that in Union of INdia vs. K. V. Jankiraman this Court had held that where the incumbent was willing to work but was denied the opportunity to work for no fault of his, he is entitled to the payment of arrears of salary. That is a case where the respondent was kept under suspension during departmental enquiry and sealed cover procedure was adopted because of the pendency of the criminal case. When the criminal case ended in his favour and departmental proceedings were held to be invalid, this Court held that he was entitled to the arrears of salary. That ratio has no application to the cases where the claims for promotion are to be considered in accordance with the rules and the promotions are to be made pursuant thereto. "