The respondents have advanced the argument that
the denial of pay and allowances is on the principle of “no
work no pay” and no injustice has been done to the appellant
since he has not actually worked in the promotional post of
Naib Subedar during the aforesaid period. It was submitted
that the benefit of pay and allowances was rightly awarded
w.e.f. 13.11.2000, the date on which the appellant actually
assumed the rank of Naib Subedar but his seniority was
maintained so as to protect his interest in his further
promotions.
12. In normal circumstances when retrospective
promotions are effected, all benefits flowing therefrom,
including monetary benefits, must be extended to an
employee who has been denied promotion earlier. So far as
monetary benefits with regard to retrospective promotion is
concerned that depends upon case to case. In State of
Kerala & Ors. vs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524,
this Court held that the principle of “no work no pay” cannot
be accepted as a rule of thumb and the matter will have to be
considered on a case to case basis and in para (4), it was
held as under:-
“… We have considered the decisions cited on behalf of both the
sides. So far as the situation with regard to monetary benefits
with retrospective promotion is concerned, that depends upon
case to case. There are various facets which have to be
considered. Sometimes in a case of departmental enquiry or in
criminal case it depends on the authorities to grant full back
wages or 50 per cent of back wages looking to the nature of
delinquency involved in the matter or in criminal cases where
the incumbent has been acquitted by giving benefit of doubt or
full acquittal. Sometimes in the matter when the person is
superseded and he has challenged the same before court or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 from the date persons junior to him
were appointed, in that 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.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 811 OF 2007
RAMESH KUMAR ...Appellant
Versus
UNION OF INDIA & ORS. ...Respondents
Citation;AIR 2015 SC 2904
R. BANUMATHI, J.
Challenge in this appeal is the order of the High
Court of Delhi in W.P. (C) No.6466 of 2002 dated 02.12.2004,
whereby the High Court dismissed the writ petition filed
against the order of denial of pay and allowances to the
appellant for the period from 01.08.1997 till the date of his
actual promotion i.e. 13.11.2000 and also the order dated
18.03.2005 dismissing the Review Application No.55 of 2005.
2. Background facts which led to the filing of this
appeal are as under:- The appellant got enrolled in the Indian
Army on the post of Store Keeper Technical/Sepoy on
19.03.1983 and was subsequently promoted to the rank of
Havildar on 01.08.1989. While the appellant was so working,
a Summary Court Martial (SCM) for the offences under
Sections 41(i), 39 (a) and 63 of the Army Act was initiated
against him. After completion of the inquiry and on proved
charges by an order dated 03.06.1992, the appellant was
sentenced to:- (i) reduction in rank; (ii) dismissal from service
and (iii) rigorous imprisonment for one year in civil prison.
Aggrieved by the Order passed in Summary Court Martial,
the appellant preferred a statutory complaint under Section
164 of the Army Act. The Central Government vide Order
dated 17.08.1994 commuted the punishment modifying it to
one of severe reprimand and further remitted the sentence of
dismissal from service directing reinstatement in service.
However, it was held that the appellant was not entitled to
any pay and allowances for the period between the date of
dismissal and the date of reinstatement in service. In
compliance with the Order passed by the Central
Government, the appellant was reinstated in service w.e.f.
2Page 3
29.10.1994. The appellant was again put to Summary Court
Martial for committing offence under Section 54(b) of the
Army Act and by an Order dated 18.02.1995; the appellant
was awarded severe reprimand/red ink entry for the offence
of loosing identity card.
3. Case of the appellant for promotion to the rank of
Naib Subedar came up for consideration before Departmental
Promotion Committee (DPC) on 01.08.1997; but the
appellant was not considered for promotion and according to
the respondents, the appellant did not meet the discipline
criteria for promotion as the appellant was having two red
ink entries during preceding five years. On appellant’s
repeated representations for his promotion as per his
seniority, finally his claim was considered by the DPC held
on 15.03.2000 and he was granted promotion w.e.f.
01.01.2000 with ante-dated seniority w.e.f. 01.08.1997
alongwith his batchmates. However, no direction was issued
regarding any pay and allowances to the appellant in the
higher rank of Naib Subedar from the back date; but his
3Page 4
seniority was maintained from 01.08.1997 when his
batchmates have been promoted.
4. Aggrieved by the order of the DPC, denying pay
and allowances in the promotional post for the period
between 01.08.1997 to 13.11.2000, the appellant filed
W.P.(C) No.6466 of 2002 before the High Court of Delhi. Vide
impugned order dated 02.12.2004, the High Court dismissed
the writ petition observing that the appellant has no
legitimate claim for payment of pay and allowances from a
retrospective date on the principle of “no work no pay”. The
Review Application No.55 of 2005 also came to be dismissed
on 18.03.2005. This appeal assails the correctness of the
above orders passed in the writ petition and also the review
application.
5. Contention of the appellant is that subsequently
when the fresh DPC was held on 15.03.2000, the appellant
was declared fit for promotion to the rank of Naib Subedar
w.e.f. 01.01.2000 with ante-dated seniority w.e.f. 01.08.1997
and while so, the appellant was arbitrarily deprived from
getting pay and allowances and other benefits from
4Page 5
01.08.1997 and hence the appellant is entitled to get his pay
and allowances for the period from 01.08.1997 till the date of
his actual promotion on 13.11.2000. It was submitted that
the respondents erroneously denied pay and allowances to
the appellant when they themselves have granted him
ante-dated seniority w.e.f. 01.08.1997.
6. Learned Senior Counsel for the respondents
Mr. A.K. Panda contended that although the order imposing
punishment on the appellant was passed by the Summary
Court Martial on 03.06.1992 but the same was commuted
only on 17.08.1994 and therefore the period of five years was
rightly counted w.e.f. 17.08.1994 and therefore the appellant
was not eligible to be considered for promotion prior to
17.08.1999. It was further submitted that on 01.08.1997,
when the appellant’s case came up for promotion to the rank
of Naib Subedar, he did not meet the criteria for promotion
as he had incurred two red ink entries during preceding five
years and rightly the appellant was not given the pay and
allowances from 01.08.1997 which benefit was given to him
w.e.f. 13.11.2000 when he actually joined the said rank of
5Page 6
Naib Subedar, but to avoid any injustice, his seniority was
maintained from 01.08.1997 alongwith his batchmates.
7. We have carefully considered the rival contentions
of the parties and perused the impugned judgment and the
materials on record.
8. By perusal of the records it is seen that
considering the petition dated 31.08.1992 submitted by the
appellant against the order dated 03.06.1992 passed in the
SCM, the Central Government vide its order dated
17.08.1994 commuted the punishment of reduction of rank
and one year rigorous imprisonment to severe reprimand and
remitted the sentence of dismissal directing reinstatement of
the appellant. However, it was mentioned in the said order
dated 17.08.1994 the period between the date of dismissal
and date of reinstatement in service will not be treated as
duty and the appellant will not be paid pay and allowances
due to him for the said period. Order dated 17.08.1994 does
not specifically state the date from which the commutation of
punishment shall take effect. The appellant rejoined the
duty on 29.10.1994 and from that date he is taken to have
6Page 7
been reinstated. In the ASC records (Sup.), letter No.6442/
TB3/ST12 dated 23.07.1997, it is clearly mentioned that the
punishment was set aside by the Court and was reinstated
into service and his name was again placed in the original
place in the seniority list. In the said letter it was further
stated that the award of punishment for the second time for
loss of temporary identity card will not affect the appellant’s
promotion to the rank of Naib Subedar. However, as noticed
earlier, in the DPC held on 01.08.1997, the appellant’s case
was not considered, observing that he was having two red ink
entries during the last five years and the appellant was
denied promotion to the rank of Naib Subedar w.e.f.
01.08.1997.
9. It is pertinent to note that the case of the appellant
was again examined in consultation with Judge Advocate
General (JAG) Department and vide letter No.77701/DPC/
Q/II/ST-12 dated 17.05.2000 of the DPC proceedings, the
Department opined that the date of commutation of
punishment would only be from 03.06.1992, the date on
which punishment was announced and not from 17.08.1994.
7Page 8
We may usefully refer to the relevant portion of the said DPC
proceedings which reads as under:
“The case was examined in consultation with JAG Deptt this HQ.
JAG Deptt has opined that Govt. order dated 17 Aug 94 does not
specifically spell out the date from which the commutation of
punishment shall take effect. In the absence of any specific date,
the order of the Govt. would be deemed to have been taken from the
date of original sentence was passed. Therefore, the date of
commutation of punishment would be from 03 June 92 (the date on
which punishment was announced) and not 17 Aug 94.”
From above referred proceedings, it is clear that the
respondents took the view that the date of commutation of
punishment would be from 03.06.1992, the date on which
the punishment was awarded and not on 17.08.1994, the
date on which the punishment was commuted.
10. As per the policy of the respondents, an individual
cannot be considered for promotion to the rank of Naib
Subedar, if he has earned more than three red ink entries
during the entire service and more than one red ink entry in
the preceding five years of service. It is noticeable that when
the case of the appellant came up for consideration on
01.08.1997, the first punishment/red ink entry had already
expired i.e. on 03.06.1997 and only one red ink entry made
on 18.02.1995 was on the record; but the DPC appears to
have erred in ignoring the same. Considering the
8Page 9
genuineness of the representations made by the appellant,
DPC again considered the claim of the appellant and granted
him promotion w.e.f. 01.01.2000 to the rank of Naib Subedar
with a further direction that the seniority of the appellant will
be maintained alongwith his batchmates from 01.08.1997.
When appellant was granted ante-dated seniority w.e.f.
01.08.1997 alongwith his batchmates, we find no reason as
to why he should be denied pay and allowances in the
promotional post as Naib Subedar w.e.f. 01.08.1997 till the
date of his actual promotion on 13.11.2000. The High Court
has not properly appreciated these aspects and erred in
holding that on 01.08.1997, the appellant was not eligible to
be considered for promotion. When the respondents
themselves have taken the view that the Order of the
Government would be deemed to have taken from the date of
original sentence was passed i.e. 03.06.1992 and not from
17.08.1994, the date on which commutation/remission was
granted by the Government, the High Court was not right in
holding that the appellant was not eligible to be considered
9Page 10
for promotion on 01.08.1997 and the impugned order cannot
be sustained.
11. The respondents have advanced the argument that
the denial of pay and allowances is on the principle of “no
work no pay” and no injustice has been done to the appellant
since he has not actually worked in the promotional post of
Naib Subedar during the aforesaid period. It was submitted
that the benefit of pay and allowances was rightly awarded
w.e.f. 13.11.2000, the date on which the appellant actually
assumed the rank of Naib Subedar but his seniority was
maintained so as to protect his interest in his further
promotions.
12. In normal circumstances when retrospective
promotions are effected, all benefits flowing therefrom,
including monetary benefits, must be extended to an
employee who has been denied promotion earlier. So far as
monetary benefits with regard to retrospective promotion is
concerned that depends upon case to case. In State of
Kerala & Ors. vs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524,
this Court held that the principle of “no work no pay” cannot
be accepted as a rule of thumb and the matter will have to be
considered on a case to case basis and in para (4), it was
held as under:-
“… We have considered the decisions cited on behalf of both the
sides. So far as the situation with regard to monetary benefits
with retrospective promotion is concerned, that depends upon
case to case. There are various facets which have to be
considered. Sometimes in a case of departmental enquiry or in
criminal case it depends on the authorities to grant full back
wages or 50 per cent of back wages looking to the nature of
delinquency involved in the matter or in criminal cases where
the incumbent has been acquitted by giving benefit of doubt or
full acquittal. Sometimes in the matter when the person is
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 from the date persons junior to him
were appointed, in that 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.”
13. We are conscious that even in the absence of
statutory provision, normal rule is “no work no pay”. In
appropriate cases, a court of law may take into account all
the facts in their entirety and pass an appropriate order in
consonance with law. The principle of “no work no pay”
would not be attracted where the respondents were in fault
in not considering the case of the appellant for promotion
and not allowing the appellant to work on a post of Naib
Subedar carrying higher pay scale. In the facts of the
11Page 12
present case when the appellant was granted promotion
w.e.f. 01.01.2000 with the ante-dated seniority from
01.08.1997 and maintaining his seniority alongwith his
batchmates, it would be unjust to deny him higher pay and
allowances in the promotional position of Naib Subedar.
14. The impugned orders passed by the High Court
are set aside and this appeal is allowed. The respondents
shall release the arrears of pay and allowances to the
appellant for the period from 01.08.1997 till the date of his
actual promotion that is 13.11.2000 in the promotional post
of Naib Subedar within eight weeks from today. No order as
to costs.
…………………………J.
(T.S. THAKUR)
…………………………J.
(R. BANUMATHI)
New Delhi;
July 31, 2015
12
Print Page
the denial of pay and allowances is on the principle of “no
work no pay” and no injustice has been done to the appellant
since he has not actually worked in the promotional post of
Naib Subedar during the aforesaid period. It was submitted
that the benefit of pay and allowances was rightly awarded
w.e.f. 13.11.2000, the date on which the appellant actually
assumed the rank of Naib Subedar but his seniority was
maintained so as to protect his interest in his further
promotions.
12. In normal circumstances when retrospective
promotions are effected, all benefits flowing therefrom,
including monetary benefits, must be extended to an
employee who has been denied promotion earlier. So far as
monetary benefits with regard to retrospective promotion is
concerned that depends upon case to case. In State of
Kerala & Ors. vs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524,
this Court held that the principle of “no work no pay” cannot
be accepted as a rule of thumb and the matter will have to be
considered on a case to case basis and in para (4), it was
held as under:-
“… We have considered the decisions cited on behalf of both the
sides. So far as the situation with regard to monetary benefits
with retrospective promotion is concerned, that depends upon
case to case. There are various facets which have to be
considered. Sometimes in a case of departmental enquiry or in
criminal case it depends on the authorities to grant full back
wages or 50 per cent of back wages looking to the nature of
delinquency involved in the matter or in criminal cases where
the incumbent has been acquitted by giving benefit of doubt or
full acquittal. Sometimes in the matter when the person is
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 from the date persons junior to him
were appointed, in that 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.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 811 OF 2007
RAMESH KUMAR ...Appellant
Versus
UNION OF INDIA & ORS. ...Respondents
Citation;AIR 2015 SC 2904
R. BANUMATHI, J.
Challenge in this appeal is the order of the High
Court of Delhi in W.P. (C) No.6466 of 2002 dated 02.12.2004,
whereby the High Court dismissed the writ petition filed
against the order of denial of pay and allowances to the
appellant for the period from 01.08.1997 till the date of his
actual promotion i.e. 13.11.2000 and also the order dated
18.03.2005 dismissing the Review Application No.55 of 2005.
2. Background facts which led to the filing of this
appeal are as under:- The appellant got enrolled in the Indian
Army on the post of Store Keeper Technical/Sepoy on
19.03.1983 and was subsequently promoted to the rank of
Havildar on 01.08.1989. While the appellant was so working,
a Summary Court Martial (SCM) for the offences under
Sections 41(i), 39 (a) and 63 of the Army Act was initiated
against him. After completion of the inquiry and on proved
charges by an order dated 03.06.1992, the appellant was
sentenced to:- (i) reduction in rank; (ii) dismissal from service
and (iii) rigorous imprisonment for one year in civil prison.
Aggrieved by the Order passed in Summary Court Martial,
the appellant preferred a statutory complaint under Section
164 of the Army Act. The Central Government vide Order
dated 17.08.1994 commuted the punishment modifying it to
one of severe reprimand and further remitted the sentence of
dismissal from service directing reinstatement in service.
However, it was held that the appellant was not entitled to
any pay and allowances for the period between the date of
dismissal and the date of reinstatement in service. In
compliance with the Order passed by the Central
Government, the appellant was reinstated in service w.e.f.
2Page 3
29.10.1994. The appellant was again put to Summary Court
Martial for committing offence under Section 54(b) of the
Army Act and by an Order dated 18.02.1995; the appellant
was awarded severe reprimand/red ink entry for the offence
of loosing identity card.
3. Case of the appellant for promotion to the rank of
Naib Subedar came up for consideration before Departmental
Promotion Committee (DPC) on 01.08.1997; but the
appellant was not considered for promotion and according to
the respondents, the appellant did not meet the discipline
criteria for promotion as the appellant was having two red
ink entries during preceding five years. On appellant’s
repeated representations for his promotion as per his
seniority, finally his claim was considered by the DPC held
on 15.03.2000 and he was granted promotion w.e.f.
01.01.2000 with ante-dated seniority w.e.f. 01.08.1997
alongwith his batchmates. However, no direction was issued
regarding any pay and allowances to the appellant in the
higher rank of Naib Subedar from the back date; but his
3Page 4
seniority was maintained from 01.08.1997 when his
batchmates have been promoted.
4. Aggrieved by the order of the DPC, denying pay
and allowances in the promotional post for the period
between 01.08.1997 to 13.11.2000, the appellant filed
W.P.(C) No.6466 of 2002 before the High Court of Delhi. Vide
impugned order dated 02.12.2004, the High Court dismissed
the writ petition observing that the appellant has no
legitimate claim for payment of pay and allowances from a
retrospective date on the principle of “no work no pay”. The
Review Application No.55 of 2005 also came to be dismissed
on 18.03.2005. This appeal assails the correctness of the
above orders passed in the writ petition and also the review
application.
5. Contention of the appellant is that subsequently
when the fresh DPC was held on 15.03.2000, the appellant
was declared fit for promotion to the rank of Naib Subedar
w.e.f. 01.01.2000 with ante-dated seniority w.e.f. 01.08.1997
and while so, the appellant was arbitrarily deprived from
getting pay and allowances and other benefits from
4Page 5
01.08.1997 and hence the appellant is entitled to get his pay
and allowances for the period from 01.08.1997 till the date of
his actual promotion on 13.11.2000. It was submitted that
the respondents erroneously denied pay and allowances to
the appellant when they themselves have granted him
ante-dated seniority w.e.f. 01.08.1997.
6. Learned Senior Counsel for the respondents
Mr. A.K. Panda contended that although the order imposing
punishment on the appellant was passed by the Summary
Court Martial on 03.06.1992 but the same was commuted
only on 17.08.1994 and therefore the period of five years was
rightly counted w.e.f. 17.08.1994 and therefore the appellant
was not eligible to be considered for promotion prior to
17.08.1999. It was further submitted that on 01.08.1997,
when the appellant’s case came up for promotion to the rank
of Naib Subedar, he did not meet the criteria for promotion
as he had incurred two red ink entries during preceding five
years and rightly the appellant was not given the pay and
allowances from 01.08.1997 which benefit was given to him
w.e.f. 13.11.2000 when he actually joined the said rank of
5Page 6
Naib Subedar, but to avoid any injustice, his seniority was
maintained from 01.08.1997 alongwith his batchmates.
7. We have carefully considered the rival contentions
of the parties and perused the impugned judgment and the
materials on record.
8. By perusal of the records it is seen that
considering the petition dated 31.08.1992 submitted by the
appellant against the order dated 03.06.1992 passed in the
SCM, the Central Government vide its order dated
17.08.1994 commuted the punishment of reduction of rank
and one year rigorous imprisonment to severe reprimand and
remitted the sentence of dismissal directing reinstatement of
the appellant. However, it was mentioned in the said order
dated 17.08.1994 the period between the date of dismissal
and date of reinstatement in service will not be treated as
duty and the appellant will not be paid pay and allowances
due to him for the said period. Order dated 17.08.1994 does
not specifically state the date from which the commutation of
punishment shall take effect. The appellant rejoined the
duty on 29.10.1994 and from that date he is taken to have
6Page 7
been reinstated. In the ASC records (Sup.), letter No.6442/
TB3/ST12 dated 23.07.1997, it is clearly mentioned that the
punishment was set aside by the Court and was reinstated
into service and his name was again placed in the original
place in the seniority list. In the said letter it was further
stated that the award of punishment for the second time for
loss of temporary identity card will not affect the appellant’s
promotion to the rank of Naib Subedar. However, as noticed
earlier, in the DPC held on 01.08.1997, the appellant’s case
was not considered, observing that he was having two red ink
entries during the last five years and the appellant was
denied promotion to the rank of Naib Subedar w.e.f.
01.08.1997.
9. It is pertinent to note that the case of the appellant
was again examined in consultation with Judge Advocate
General (JAG) Department and vide letter No.77701/DPC/
Q/II/ST-12 dated 17.05.2000 of the DPC proceedings, the
Department opined that the date of commutation of
punishment would only be from 03.06.1992, the date on
which punishment was announced and not from 17.08.1994.
7Page 8
We may usefully refer to the relevant portion of the said DPC
proceedings which reads as under:
“The case was examined in consultation with JAG Deptt this HQ.
JAG Deptt has opined that Govt. order dated 17 Aug 94 does not
specifically spell out the date from which the commutation of
punishment shall take effect. In the absence of any specific date,
the order of the Govt. would be deemed to have been taken from the
date of original sentence was passed. Therefore, the date of
commutation of punishment would be from 03 June 92 (the date on
which punishment was announced) and not 17 Aug 94.”
From above referred proceedings, it is clear that the
respondents took the view that the date of commutation of
punishment would be from 03.06.1992, the date on which
the punishment was awarded and not on 17.08.1994, the
date on which the punishment was commuted.
10. As per the policy of the respondents, an individual
cannot be considered for promotion to the rank of Naib
Subedar, if he has earned more than three red ink entries
during the entire service and more than one red ink entry in
the preceding five years of service. It is noticeable that when
the case of the appellant came up for consideration on
01.08.1997, the first punishment/red ink entry had already
expired i.e. on 03.06.1997 and only one red ink entry made
on 18.02.1995 was on the record; but the DPC appears to
have erred in ignoring the same. Considering the
8Page 9
genuineness of the representations made by the appellant,
DPC again considered the claim of the appellant and granted
him promotion w.e.f. 01.01.2000 to the rank of Naib Subedar
with a further direction that the seniority of the appellant will
be maintained alongwith his batchmates from 01.08.1997.
When appellant was granted ante-dated seniority w.e.f.
01.08.1997 alongwith his batchmates, we find no reason as
to why he should be denied pay and allowances in the
promotional post as Naib Subedar w.e.f. 01.08.1997 till the
date of his actual promotion on 13.11.2000. The High Court
has not properly appreciated these aspects and erred in
holding that on 01.08.1997, the appellant was not eligible to
be considered for promotion. When the respondents
themselves have taken the view that the Order of the
Government would be deemed to have taken from the date of
original sentence was passed i.e. 03.06.1992 and not from
17.08.1994, the date on which commutation/remission was
granted by the Government, the High Court was not right in
holding that the appellant was not eligible to be considered
9Page 10
for promotion on 01.08.1997 and the impugned order cannot
be sustained.
11. The respondents have advanced the argument that
the denial of pay and allowances is on the principle of “no
work no pay” and no injustice has been done to the appellant
since he has not actually worked in the promotional post of
Naib Subedar during the aforesaid period. It was submitted
that the benefit of pay and allowances was rightly awarded
w.e.f. 13.11.2000, the date on which the appellant actually
assumed the rank of Naib Subedar but his seniority was
maintained so as to protect his interest in his further
promotions.
12. In normal circumstances when retrospective
promotions are effected, all benefits flowing therefrom,
including monetary benefits, must be extended to an
employee who has been denied promotion earlier. So far as
monetary benefits with regard to retrospective promotion is
concerned that depends upon case to case. In State of
Kerala & Ors. vs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524,
this Court held that the principle of “no work no pay” cannot
be accepted as a rule of thumb and the matter will have to be
considered on a case to case basis and in para (4), it was
held as under:-
“… We have considered the decisions cited on behalf of both the
sides. So far as the situation with regard to monetary benefits
with retrospective promotion is concerned, that depends upon
case to case. There are various facets which have to be
considered. Sometimes in a case of departmental enquiry or in
criminal case it depends on the authorities to grant full back
wages or 50 per cent of back wages looking to the nature of
delinquency involved in the matter or in criminal cases where
the incumbent has been acquitted by giving benefit of doubt or
full acquittal. Sometimes in the matter when the person is
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 from the date persons junior to him
were appointed, in that 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.”
13. We are conscious that even in the absence of
statutory provision, normal rule is “no work no pay”. In
appropriate cases, a court of law may take into account all
the facts in their entirety and pass an appropriate order in
consonance with law. The principle of “no work no pay”
would not be attracted where the respondents were in fault
in not considering the case of the appellant for promotion
and not allowing the appellant to work on a post of Naib
Subedar carrying higher pay scale. In the facts of the
11Page 12
present case when the appellant was granted promotion
w.e.f. 01.01.2000 with the ante-dated seniority from
01.08.1997 and maintaining his seniority alongwith his
batchmates, it would be unjust to deny him higher pay and
allowances in the promotional position of Naib Subedar.
14. The impugned orders passed by the High Court
are set aside and this appeal is allowed. The respondents
shall release the arrears of pay and allowances to the
appellant for the period from 01.08.1997 till the date of his
actual promotion that is 13.11.2000 in the promotional post
of Naib Subedar within eight weeks from today. No order as
to costs.
…………………………J.
(T.S. THAKUR)
…………………………J.
(R. BANUMATHI)
New Delhi;
July 31, 2015
12
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