A person is entitled to arrears of salary on retrospective promotion if he had a right to be promoted but was not promoted in time due to some action or inaction on the part of the authorities.

S.J.Mukhopadhaya, J.

1. The case relates to payment of arrears of salary on promotion from retrospective date. The petitioner, who started his career as writer constable on 18.3.1964, was promoted as A.S.I. Police in 1968. His promotion to the post of Sub-Inspector of Police was due since 1979 but his case remained pending and subsequently granted such promotion from retrospective date. Initially, he was provisionally promoted as Sub-Inspector of Police w.e.f. 1.6.1988 and subsequently from further retrospective date of 1.12.1979 granted vide order dated 8.2.1997. The arrears of salary having not granted on such retrospective promotion, the writ petition was preferred.

2. The respondents opposed the writ petition on the ground that there is bar of promotion from retrospective date under rule 58 of Bihar Service Code and rule 74 of Bihar Financial Rules. Reliance was placed on (unreported) decision of this court in the case of Ramakant Singh and others V/s. State of Bihar & ors in C.W.J.C. no. 11130/98, disposed of on 13.5.1999. Plea has been taken that the petitioner having not performed the duty of higher post of sub-Inspector of Police since 1979, is not entitled for arrears of salary on the principle of no work no pay.

3. The sole question to be determined in the case is as to whether a person is entitled for arrears of salary on retrospective promotion or not.

4. This question fell for consideration before Division Bench of this Court in the case of Paras Nath Prasad V/s. State of Bihar & ors. (1990 (2) P.L.J.R. 248). The writ petition was allowed giving benefit of arrears of salary taking into consideration of rule 58 of Bihar Service Code and the Court held as follows :

"The other contention of the learned counsel for the respondents that Rule 58 of the Bihar Service Code prohibits any grant of pay and allowances to the petitioner on a fictional and notional promotion granted to him is, in my view, misconceived. A notional promotion has to be as if, for service benefits, he had been given due promotion. A person who is entitled to promotion and is not promoted, can always invoke jurisdiction of this Court under Article 226. of the Constitution for a mandamus to the employer State to consider his case for such promotion. Such due promotion is not a claim of anything notional but it is something that is really attached to the status and service contract of the employee concerned............."

In the case of Alappat Narana Menon V/s. State of Kerala (1977 (II) S.L.R. 656), the Supreme Court observed as follows :

"The foregoing discussion with reference to pronouncement of the Supreme Court and Gujrat, Allahabad and Mysore High Courts clearly establish that a Government servant cannot be said to have forfeited his claims for arrears of salary when he did not get his due promotion for no fault of his. The Governments plea the petitioner was given only a notional promotion is not sustainable in law. What the petitioner got was not a notional promotion and it is wrong to call this promotion as notional in the context of the peculiar facts and circumstances of this case. The concept of notional promotion cannot enter the realm of discussion in this case. Notional promotion is one which a Government servant gets under particular exigencies of situation, which he cannot claim as a right. Here the petitioner is entitled as of right to get the promotion from 1.4.1955 and, therefore, his claim for arrears cannot be denied to him on the plea that what was given to him was only a notional promotion and the policy of the Government is not to give the arrears of salary in such cases. It is no argument to say that many have been promoted ignoring the petitioners laim. I, therefore, hold that the petitioner is entitled to succeed."

In the case of Union of India V/s. K.V. Jankiraman etc. (A.I.R 1991 S.C. 2010), the Supreme Court took into consideration the fact that the respondent of the said case was not promoted because of pendenc