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State Of Haryana And Others v. O.P Gupta And Others
Factual and Procedural Background
The respondents were employed as Haryana Service Engineers, Class II, Public Works Department (Irrigation Branch) and were governed by the Haryana Service Engineers, Class II, PWD (Irrigation Branch) Rules, 1970. An inter se dispute over promotion culminated in a Supreme Court order dated 7 August 1990 in Sushil K. Arora v. State of Haryana (C.A. No. 3837 of 1990). That order required the State to prepare a seniority list strictly in accordance with Rule 9 and without reference to inconsistent administrative instructions; existing promotions were not to be disturbed.
The State subsequently finalized a fresh seniority list and, on 1 December 1992, granted promotional postings and pay scales to about 90 eligible engineers, including the present respondents. The respondents then filed writ petitions in the Punjab & Haryana High Court seeking arrears of salary from the deemed date of promotion (1 January 1983) until their actual posting (30 November 1992). By order dated 29 September 1993 in C.W.P. No. 6760 of 1993 and connected matters, the High Court directed the State to pay such arrears. The State appealed; the Supreme Court granted leave and heard the present civil appeals.
Legal Issues Presented
- Whether the respondents, who were given notional promotion with a deemed date of 1 January 1983 but actually assumed the higher posts only on 1 December 1992, are entitled to arrears of salary for the intervening period during which they did not perform the duties of the higher post.
Arguments of the Parties
State/Appellant’s Arguments
- The State complied with the 1990 Supreme Court direction by preparing the seniority list and granting promotions; there was no mandate to pay arrears.
- Some respondents were not parties to the earlier litigation and therefore could not claim consequential monetary benefits.
- Under the principle of “no pay for no work,” arrears cannot be awarded for periods when the employees did not actually work in the promoted posts.
Respondents’ Arguments
- The respondents were ready and willing to discharge duties in the higher posts but were denied the opportunity because the State prepared an incorrect seniority list.
- Because the delay was attributable to the State, the respondents should receive full arrears from the deemed date of promotion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sushil K. Arora v. State of Haryana, C.A. No. 3837 of 1990 (7-8-1990) | Directed preparation of seniority list strictly under Rule 9; existing promotions not to be disturbed. | Formed the basis for the State’s preparation of the 1992 seniority list and the deemed date of promotion. |
| Paluru Ramkrishnaiah v. Union of India, (1989) 2 SCC 541 | Doctrine of “no pay for no work” for employees granted retrospective promotion. | Relied upon to hold that employees not actually working in the higher post are not entitled to salary arrears. |
| Virender Kumar, G.M., N. Rlys. v. Avinash Chandra Chadha, (1990) 3 SCC 472 | Reaffirmed “no pay for no work” in the context of retrospective promotion. | Used to reinforce the conclusion reached in Paluru Ramkrishnaiah. |
| Union of India v. K.V. Jankiraman, (1991) 4 SCC 109 | Entitles an employee to arrears when willing to work but prevented by employer’s fault (e.g., suspension under sealed-cover procedure). | Distinguished as inapplicable; the present case involved delay due to seniority determination, not wrongful suspension. |
Court's Reasoning and Analysis
The Court observed that under the 1970 Rules, an engineer’s right to occupy and draw salary for a higher post crystallizes only after:
- Preparation and finalization of the seniority list in accordance with Rule 9, and
- Issuance of a formal promotion and posting order.
Because the seniority list was finalized only in 1992, the respondents had no legal entitlement to occupy the promotional posts before 1 December 1992. Their assertion that they were “willing to work” lacked legal foundation absent a formal posting.
Invoking Paluru Ramkrishnaiah and Virender Kumar, the Court reiterated the principle of “no pay for no work”: retrospective fixation of seniority and pay scales does not give rise to a claim for back wages when the employee did not in fact discharge the higher duties. The Court distinguished K.V. Jankiraman on the ground that it concerned employees kept out of service by wrongful suspension, not by the procedural necessity of seniority determination.
Holding and Implications
Holding: The appeals are allowed; the High Court’s direction awarding arrears of salary is quashed. No order as to costs.
Implications: The respondents retain their notional promotions and stepped-up pay scales but receive no salary arrears for the period 1 January 1983 – 30 November 1992. The judgment reinforces the “no pay for no work” doctrine in situations involving retrospective promotions based on later-finalized seniority lists, while clarifying that K.V. Jankiraman does not apply to such promotional disputes.
Order
1. Leave granted.
2. We have heard the counsel on both sides. The controversy runs on a very narrow thread.
3. Admittedly, the respondents were working in Haryana Service Engineers, Class II, Public Works Department (Irrigation Branch). They are governed by the Haryana Service Engineers, Class II, Public Works Department (Irrigation Branch) Rules, 1970. There was inter se dispute regarding the promotion to the higher echelons of service which ultimately resulted in the order passed by this Court on 7-8-1990 in Sushil K. Arora v. State of Haryana CA No. 3837 of 1990. Therein, this Court had directed the Government to prepare the seniority list in accordance with Rule 9 of the Rules ignoring the instructions contained in para 11.4 of the Manual and any other inconsistent instruction running counter to the Rules and to prepare a fresh list strictly in accordance with the rules untrammelled by inconsistent observations made by the High Court. It was also mentioned that if any promotions had already been made, those promotions were directed not to be disturbed. Following the directions, seniority list has been prepared and promotions accordingly were given to all the eligible persons. We are informed that about 90 persons have been promoted. They have also been given the scale of pay to which they are eligible in the promoted posts. The respondents in these appeals have approached the High Court by filing writ petitions claiming payment of arrears. The High Court in the impugned order dated 29-9-1993 made in CWP No. 6760 of 1993 and batch directed payment of arrears from the deemed date given in the seniority list to the date of their posting in the promotional posts. Thus, these appeals by special leave.
4. The only controversy in these cases is whether the respondents are entitled to arrears of salary for the period during which admittedly they had not worked but they had been given notional promotion from the deemed date. We have computed the deemed date as 1-1-1983. They have joined the duty on 1-12-1992. Therefore, the period for which they claimed arrears would be from 1-1-1983 to 30-11-1992. We are informed that some of them had retired even before that date and, therefore, they have been given notional promotion till the date of their retirement.
5. Shri Gupta, learned counsel appearing for the State, contended that the State was prepared to comply with the direction issued by the High Court in the first instance for the preparation of the seniority list but the rival candidates who claimed inter se seniority over the others approached the Division Bench and also this Court for relief; since, ultimately, this Court has decided that seniority has to be prepared strictly in accordance with Rule 9 of the Rules, on receipt thereof, the Government has complied with the conditions of the preparation of the seniority list. Accordingly, they have been given the promotion with the deemed dates, though there was no specific direction in that behalf. Others who had joined the service have not claimed, except the respondents, but some of them were not even parties to the earlier writ proceedings or to the appeal in this Court and consequently, they are not entitled to the arrears. It is contended by Shri S.M Hooda, learned counsel appearing for the respondents that the respondents were willing to work in the respective posts but they were not given the same. To avoid their entitlement, a seniority list was wrongly prepared denying them their entitlement to work in the promotional post; consequently, the respondents are entitled to the arrears of salary and the High Court was right in granting the same.
6. Having regard to the above contentions, the question arises whether the respondents are entitled to the arrears of salary? It is seen that their entitlement to work arises only when they are promoted in accordance with the Rules. Preparation of the seniority list under Rule 9 is a condition precedent for consideration and then to pass an order of promotion and posting to follow. Until that exercise is done, the respondents cannot be posted in the promotional posts. Therefore, their contention that though they were willing to work, they were not given the work after posting them in promotional posts has no legal foundation. The rival parties had agitated their right to seniority. Ultimately, this Court had directed the appellant to prepare the seniority list strictly in accordance with Rule 9 untrammelled by any other inconsistent observation of the Court or the instructions issued in contravention thereof. Since the order had become final in 1990, when the appeal had been disposed of by the Court by the above directions, the State in compliance thereof prepared the seniority list in accordance with the Rules and those directions and promotions were given to all eligible persons and postings were made accordingly on 1-12-1992. In the interregnum some had retired. As stated earlier, though the deemed date has been given as 1-1-1983, the respondents cannot legitimately claim to have worked in those posts for claiming arrears and, as a fact, they did not work even on ad hoc basis.
7. This Court in Paluru Ramkrishnaiah v. Union of India (1989) 2 SCC 541, (1989) 10 ATC 378, (1989) 2 SCR 92 (SCR at p. 109 : considered the direction issued by the High Court and upheld that there has to be “no pay for no work”, i.e, a person will not be entitled to any pay and allowance during the period for which he did not perform the duties of higher post, although after due consideration, he was given a proper place in the gradation list having been deemed to be promoted to the higher post with effect from the date his junior was promoted. He will be entitled only to step up the scale of pay retrospectively from the deemed date but is not entitled to the payment of arrears of the salary. The same ratio was reiterated in Virender Kumar, G.M, N. Rlys. v. Avinash Chandra Chadha (1990) 3 SCC 472, (1990) 14 ATC 732.
8. It is true, as pointed out by Shri Hooda, that in Union of India v. K.V Jankiraman (1991) 4 SCC 109, (1993) 23 ATC 322, AIR 1991 SC 2010 this Court had held that where the incumbent was willing to work but was denied the opportunity to work for no fault of his, he is entitled to the payment of arrears of salary. That is a case where the respondent was kept under suspension during departmental enquiry and sealed cover procedure was adopted because of the pendency of the criminal case. When the criminal case ended in his favour and departmental proceedings were held to be invalid, this Court held that he was entitled to the arrears of salary. That ratio has no application to the cases where the claims for promotion are to be considered in accordance with the rules and the promotions are to be made pursuant thereto.
9. In these appeals unless the seniority list is prepared and finalised and promotions are made in accordance with the Rules on the basis of the above seniority list, the question of entitlement to work in the promotional posts does not arise. Consequently, the payment of arrears of salary does not arise since, admittedly the respondents had not worked during that period. The High Court was, therefore, wholly illegal in directing payment of arrears of salary. The order of the High Court accordingly is quashed.
10. The appeals are accordingly allowed. No costs.
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