Employees are entitled to pay on the higher post from the date their juniors were promoted, and the judgment passed by the Courts below, which have become final, must be implemented by the Executing Court.

Ram Chand Gupta, J.

1. The present revision petition has been filed under Section 115 of the Code of Civil Procedure by petitioners for setting aside order dated 16.12.2002 passed by learned Executing Court.

2. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned Executing Court.

3. Facts relevant for the decision of present revision petition are that a suit was filed by respondents-plaintiffs, namely, Raj Kumar and Sham Lal against the present petitioners, i.e., defendants No.1 and 2 and defendants No.3 to 12, which was decreed by learned trial Court vide judgment and decree dated 5.3.1997, operative part of which reads as under:-

"In view of my findings on the above issues, the suit of the plaintiffs succeed partly and a declaratory decree to the effect that the seniority of the plaintiffs has not been correctly fixed in the seniority list circulated by the defendants on 7.6.83 and they are entitled to be placed above defendants No.4 to 6,11 and 12 and are entitled to be considered for promotion from the dates on which any of these defendants was promoted and they will be given promotion if they are found fit for promotion from that date. However, the plaintiffs will be entitled to get arrears of salary, if any, only for a period of 38 months immediately preceding the date of filing of the suit. The relief of permanent injunction has not been pressed by the learned counsel for the plaintiffs as defendant Nos.6 to 9 have already been given promotion during the pendency of the suit, as such the suit qua permanent injunction is dismissed. Parties are left to bear their own costs."

4. Appeal filed by respondents-plaintiffs was partly accepted by teamed Additional District Judge, Patiala, vide judgment and decree dated 29.4.1999, operative part of which reads as under:-

"As a result of my above discussion, the appeal is accepted partly. The judgment and decree under appeal are set aside and seniority list dated 7.6.83 (Ex.P12) qua the plaintiffs and defendants Nos.3 to 5 and 7 to 12 is hereby quashed and defeadants Nos.1 and 2 are directed to refix the seniority of the plaintiffs qua defendants Nos.3 to 5 and 7 to 12 in accordance with the judgment and decree of this Court within three months. They will also be entitled to consequential benefits like promotion etc. from the date their juniors got. In the circumstances of the case, the parties are left to bear their own costs."

5. The judgment passed by learned Additional District Judge, Patiala, dated 29.4.1999 has become final as no appeal against the same was filed by petitioners. Execution petition was filed by respondent-decree holders. Seniority of respondents-decree, holders was fixed by the petitioners as per the judgment and decree. They were also given promotion from the date their juniors were promoted. However, arrears regarding retrospective promotion had not been given to respondents-decree holders and hence, learned Executing Court directed issuance of warrant of sale of the property, already attached vide impugned order.

6. It has been contended by learned counsel for the petitioners that it is settled law that an employee is not entitled to any pay and allowance during the period he did not perform the duties on higher post by applying principle of no work no pay. It is further contended that respondents-plaintiffs have been given their proper place in the gradation list and have also been given deemed promotion with effect from the date, their juniors were promoted and, however, it is contended that they are not entitled for the salary in the grade of promoted post for the period for which they had not worked on the promoted post and hence, it is contended that learned Executing Court has committed illegality in directing the petitioners to pay the salary of the promoted post for the period for which respondents-plaintiffs did not actually work on the promoted post. Le