IMPORTANT POINT
When an employee is unjustly denied promotion for no fault of his, he cannot be deprived of pay and allowances of promotional post.

Headnote:(a) Service law – Army service – Appellant punished on 03.06.1992 – Sentence commuted on 17.08.1994 – Respondents taking the view that commutation deemed to be effective from date of punishment and not date of commutation – Five years’ time limit of this red ink entry expiring on 03.06.1997 – Appellant earning second red ink entry on 18.02.1995 – DPC held on 01.08.1997 – DPC holding appellant having two red ink entries within last five years and denying his consideration for promotion – Erroneous – On date of DPOC only one red ink entry surviving – Appellant wrongly not considered for promotion – Finally promoted in 2000 with retrospective seniority – Held, entitled to pay etc. from the date of first DOC i.e, 01.08.1997 till the date of his actual promotion on 13.11.2000. (Para 10)
       (b) Service law – No work no pay – Not a rule of thumb – Respondent employer at fault in not considering the case of the appellant for promotion and not allowing the appellant to work on the promotional post of Naib Subedar carrying higher pay scale – Appellant was granted promotion w.e.f. 01.01.2000 with the ante-dated seniority from 01.08.1997 – His seniority maintained alongwith his batchmates – Denying him higher pay and allowances in the promotional position of Naib Subedar wouod be unjust. (Para 13)
       (2007) 6 SCC 524 – Relied upon
       Facts of the case:
       The appellant was 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.
       A Summary Court Martial (SCM) for the offences under Sections 41(i), 39 (a) and 63 of the Army Act was initiated against him. Ultimately he was sentenced to:-(i) reduction in rank; (ii) dismissal from service and (iii) rigorous imprisonment for one year in civil prison.
       The Central Government 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.
       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 seniority was maintained from 01.08.1997 when his batchmates had been promoted.
       The appellant filed W.P.(C) before the High Court which was dismissed.
       The Review Application was also dismissed.
       Finding of the Court:
       Impugned judgment cannot be sustained.
       Result: Appeal allowed.

JUDGMENT

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. 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 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 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 respondent

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2015 Supreme(SC) 761

SUPREME COURT OF INDIAT.S. THAKUR, R. BANUMATHI, JJ.RAMESH KUMAR – AppellantVersus UNION OF INDIA & ORS. – RespondentsCIVIL APPEAL NO. 811 OF 2007Decided On : 31-07-2015

IMPORTANT POINTWhen an employee is unjustly denied promotion for no fault of his, he cannot be deprived of pay and allowances of promotional post.

Cases Referred (1)

SUPREME COURT OF INDIA
T.S. THAKUR, R. BANUMATHI, JJ.
RAMESH KUMAR – Appellant
Versus
UNION OF INDIA & ORS. – Respondents
CIVIL APPEAL NO. 811 OF 2007
Decided On : 31-07-2015

IMPORTANT POINT
When an employee is unjustly denied promotion for no fault of his, he cannot be deprived of pay and allowances of promotional post.