Retrospective promotion entitles employees to refixation of pay and grant of arrears of salary, pension, and gratuity, even if they did not actually work on higher posts due to employer's failure to issue promotion orders.

Jawahar Lal Gupta and J JJ.

1. Are the petitioners who have been granted promotion vide order dated November 30, 1992, with retrospective effect entitled to the relixation of their pay, pension, gratuity and the payment of the arrears of salary etc? This is the short question that arises for consideration in this case.

2. The petitioners had initially joined service as Junior Engineers. They were ordered to be promoted to the posts of Suh Divisional Engi-neers on January 28, 1982. However on account of litigation mat ensued, orders of posting were not issued. As a result, the petitioners could not work on the higher posts.

3. The litigative process finally ended on November 11, 1992 when their Lordship of the Supreme Court gave certain directions in petitions arising out of Civil Appeal No.3837 of 1991 ). Thereafter, the State of Haryana issued an order dated November 30, 1992, by which various persons including the petitioners were promoted retrospectively with effect from various dates. However, in this order it was inter alia mentioned that "the officers who have been given earlier deemed dates of promotion will not be paid any arrears of pay and allowance," The petitioners are aggrieved by this stipulation in the order.

4. We have heard learned counsel for the parties. Mr. Harish Rathee, learned counsel for the petitioners has contended thai the petitioners were illegally denied the right to work on the higher posts and that during the pendency of the litigation, they had even retired from service. However, their claim for retrospective promotion having been sustained even by their Lordships of the Supreme Court, the consequential benefits ensuing thereform cannot he denied, and the petitioners have a right to the payment of arrears of salary as well as the redeterniination of the retiral benefits. On the other hand, Mr. R. C. Setia, learned counsel for the respondents has contended that the principle of no work no pay has been duly recognised by Courts and since tite petitioners had not actually discharged their duties of higher posts, they cannot claim the salary therefor.

5. It is the admitted position that the petitioners had never refused to work on the higher posts. It is only on account of either the failure of the respondents to act in accordance with the Rules or the pendency of litigation that the orders of their promotion with effect from me due dates of posting were not issued. As a result, they were deprived of the right to work on the higher posts. If the petitioners had refused to work on the higher posts in spite of the fact that orders of their promotion and posting had been issued, it may have been possible for the respondents to contend that they are not entitled to the arrears of salary. However, this is not the position. Accordingly, on principle we find that there is no basis for the impugned stipulation in the order dated November 30, 1992.

6. Still further, it is clear that it is in compliance with directions of their Lordships of the Supreme Court that the orders of promotion have been issued. In fact the controversy regarding the interpretation of rules and instructions had existed which was resolved by their Lordships of the Supreme Court vide Judgment dated August 7, 1990 in Civil Appeal No.3837 of 1990. Still, the directions were not complied with and various interlocutory applications and contempt petition No.79 of 1991 were filed. These were disposed of by their Lordships vide order dated November 11.1992. It was in pursuance to the directions given by their Lordships that me petitioners were promoted. They were thus entitled to he promoted with effect from the dates now assigned by respondents. If the arrears of salary and other consequential benefits are now denied to the petitioners, they would have fought and waited in vain. This would be unjust and unfair. Such is not the position of law. We cannot persuade ourselves to hold that even-though the denial of promotion in the year 19