Entitlement to arrears of salary from retrospective promotion and the legality of notional promotion

1. Heard learned counsel for the petitioner and learned counsel for the State.

2. This writ petition has been filed for a direction to the authorities concerned for payment of all monetary and other consequential benefits flowing out of the retrospective promotion given to the petitioner to the post of Executive Engineer with effect from 25.8.1973 and also for fixation of pension on the basis of the aforesaid promotion and for payment of pension and other retiral dues accordingly.

3. It is not in dispute that the petitioner was earlier working on the post of Assistant Engineer and by order of 1982, he was given promotion to the post of Executive Engineer with effect from 1.10.1982, whereafter he retired in the year 1988 while working on the post of Executive Engineer. It is also not in dispute that by order dated 29.11.1996 (annexure-2), an order was passed by the authority concerned giving promotion to the petitioner on the post of Executive Engineer with retrospective effect from 25.8.1973 the date when person junior to him was promoted on that post. However, in the aforesaid order, the said promotion was directed to be only notional promotion which is being challenged in the instant writ petition.

4. Law is well settled that in each and every case, an employee cannot claim arrears of salary if he is retrospectively promoted, but in certain case, an employee can be entitled for the same. There can be two circumstances for such retrospective promotions, which can thus be classified in two categories. The first is that when the authorities themselves nationally promote a person without any right accruing to him and in this case such person cannot claim arrears of salary for the period of such retrospective promotion until the authorities themselves decide to grant the same under the provision of Rule 74 of the Bihar Financial Rules. In this category, the principle of no work no pay can also be made applicable. The second one is that if on the basis of any right accrued to a person he is promoted, but due to any action or inaction of the authorities concerned, he is not promoted in time and in spite of that notional promotion has been given with retrospective date, such person is definitely entitled for arrears of salary for such retrospective promotion even if he has not worked on the said post for the period concerned. This view finds support from the decision of this Court in case of Sri Mahavir Pandey vs. The State of Bihar & Ors., reported in 2000 (1) PLJR 768 relying upon decisions of the Hon ble Apex Court as well as decisions of this court, namely, in case of Union of India vs. K. V. Jankiraman etc., reported in AIR 1991 SC 2010, in case of Paras Nath Prasad vs. State of Bihar & Ors. reported in 1990(2) PLJR 248, in case of State of Haryana vs. O.P. Gupta & Ors., reported in (1996)7 SCC 537 as well as order passed by this court in case of Ramakant Singh & Others vs. State of Bihar & Ors. (CWJC No. 11130 of 1998) on 13.5.1999.

5. In the instant case, it is apparent that earlier promotion was not given to the petitioner due to none of his laches as is also clear from the averments made in the counter affidavit filed on behalf of the respondents, whereas the person junior to the petitioner had been promoted with effect from 25.8.1973 by the authorities concerned without considering the case of the petitioner. In this regard, the Division Bench of this Court in the case of Paras Nath Prasad (supra) held that the petitioner of that case is entitled to be promoted with effect from the due date with fixation of pay and emoluments on that scale for receiving difference of pay and emoluments of that grade of promotion and fixation of pay etc. on that scale for the purpos of determination of pension, gratuity etc. and is accordingly, entitled to receive them with effect from the due date.

6. On the other hand, learned counsel for the respondents relies upon two decisions, one of the Hon ble Apex Court in case of Hari Govi