A person entitled to retrospective promotion cannot be denied arrears of pay on the plea of not working on the promotional post prior to the promotion order.

Surya Kant, J.

1. With the consent of the Learned Counsel for the parties, the main case itself is taken up on the board for final disposal. C. M. stands disposed of. Re: Petition ex-captain Darshan Lal Khanna, who has retired from the excise and Taxation Department, has approached this Court for quashing of the order dated 6/9/2002 (Annexure P-4) whereby his claim for payment of arrears of pay from the date of retrospective promotion as Joint Excise and taxation Commissioner and Additional Excise and Taxation Commissioner, has been turned down. The petitioner has also sought a direction to the respondents to release the arrears of pay as admissible against the aforementioned two posts along with interest.

2. Shorn of the details, the petitioner served during emergency period in the Indo-Pak war in the year 1965. After his release from the army, he joined as Excise and Taxation Officer on 12/4/1981. The petitioner sought the benefit of emergency service according to the Demobilised armed Forces Personnel (Reservation of Vacancies) in the Punjab State non-Technical (Services) Rules, 1968. Since the said benefit was denied to him, he approached this Court by way of C. W. P. No.5007 of 1985 which was disposed of with a direction to consider his claim in the light of judgment dated 10.7.1990 passed by this Court in LPA No.766 of 1985.

3. The petitioners representation was accepted and vide the order dated 12.11.1990, he was assigned the deemed date of promotion as Excise and taxation Officer with effect from 11.4.1970. He was also granted retrospective promotion as Assistant Excise and Taxation Commissioner with effect from 1.1.1978 and Deputy Excise and Taxation Commissioner with effect from 22.4.1983. These retrospective promotions were, however, granted to him subject to the decision of SLP Nos.13778 and 13779 of 1990 pending in the Supreme Court against the judgment dated 10.7.1990 passed by this Court in LPA No.766 of 1985. The aforementioned SLPs were finally dismissed by the Supreme Court vide order dated 24.7.1998. Meanwhile, the petitioner retired from service upon superannuation with effect from 29.2.1996.

4. After the dismissal of the SLP by the Supreme Court, the State govt. passed an order dated 19.8.1998 (Annexure P-3) whereby the petitioner has been granted retrospective promotions, firstly, as Joint Excise and Taxation Commissioner from 28.8.1991 and then as Additional Excise and taxation Commissioner with effect from 4.6.1993. It was stipulated in the aforesaid order that "no arrears be paid until and unless the supernumerary posts are created by the Department of Finance".

5. The petitioner, thereafter, represented to create the supernumerary post and to pay him the arrears of pay. His representation having been turned down, he has approached this Court. Notice of motion was issued and in response thereto written statement has been filed.

6. There is hardly any serious dispute with regard to the factual matrix as stated above, except that the petitioners claim for the grant of arrears of pay is contested on the ground that the Finance Department did not create supernumerary posts and he is also not entitled to the same in view of the principle of "no work, no pay".

7. The only question which requires consideration is as to whether or not the petitioner is entitled for the arrears of pay on account of his retrospective promotion. The issue is no longer res integra. In the case of ram Pal V/s. State of Haryana, 2003 (2) SCT 894 and State of Haryana V/s. Bani singh Yadav, 2005 (1) SCT 355, two Division Benches of this Court have held that once a person is held entitled for retrospective promotion, he cannot be denied the arrears of pay on the plea that he has not worked on the promotional post prior to his promotion order. The fact remains that had the petitioner been granted the benefit of military service at the earliest opportunity, he would have worked on the promotional posts of Joint Excise and Taxatio