Delhi High Court
R.K. Bhatia vs Union Of India (Uoi) on 25 August, 2005
Equivalent citations: 2005(84)DRJ258
Author: Mukul Mudgal
Bench: Mukul Mudgal, H.R. Malhotra
JUDGMENT
Mukul Mudgal, J.
1. Rule D.B. With the consent of the both the parties, the petition is taken up for final hearing.
2. The issue involved in the present writ petition relates to the pay and allowances of the petitioner in respect of the period from 15th February, 1986 which is the date of retrospective promotion of the petitioner until 26th September, 1987, the date when the petitioner joined the post of Second in Command (2-I-C) in the Border Security Force.
3. The order of 3rd September, 1987 in so far as the petitioner is concerned reads as follows:-
“To Dated the 03 Sept, 1987 The Deputy Director (Accounts) Pay and Accounts Division Dte Genl, Border Security Force Pushpa Bhavan, New Delhi 110 062 Subject: PROMOTION OF DEPUTY COMMANDANT JOINT ASSISTANT DIRECtorS TO THE GRADE OF SECOND-IN-COMMAND (OFFICIATING) IN THE BSF ‘REGARDING.
Sir, I am directed to convey the sanction of the President to the appointment of the following Deputy Commandants/ Joint Assistant Directors or equivalent on promotion to the grade of Second-in-Command on officiating basis with effect from 15th February, 1986:-
1. …
2. …
3. …
4. R.K. Bhatia – Vice Sh. K. K. Gupta promoted on 15.2.86
2. They will draw their pay in the scale of 4100-5300 (Revised).
3. Their promotion have the approval of the Government of India, Ministry of Home Affairs, New Delhi vide their Dy No. 2137/MOS(IS)/87 and No. 6105/DS(CPO)/87 dated 17th August, 1987.”
4. The order of posting in case of the petitioner reads as follows:-
“… TWENTY FIVE(.) SHRI R K BHATIA FHQ LAW BRANCH TO 11 BN(.) EFFECTIVE DATE OF PROMOTION WILL BE 28/9/87 OR JOINING DATE AS 2IC WHICHEVER LATER EXCEPT OFFICERS AT SRL 23/24/25(.) RELIEVE ALL OFFICERS TO JOIN THEIR NEW PLACES OF POSTING AND SUBMIT CHARGE HANDING/ TAKING OVER REPORT TO ALL CONCERNED(.) ALL IsG/TRG INSTTS WILL SUBMIT COMPLIANCE ON 01 OCT 87(.) ALL INFO”
5. The petitioner joined his post of 2IC i.e. Second-in- Command on 26th September, 1987 and the claim in the writ petition is founded on the plea taken by the writ petitioner who appeared in person that since the promotion is retrospective w.e.f. 15th February, 1986, he ought to have been granted the salary and allowances for the post of 2IC w.e.f. 15th February, 1986 and not w.e.f. 26th September, 1987 when he actually took charge of the post. The petitioner’s case is founded on the plea that the petitioner was not to be held responsible for delay in joining the post of 2IC as the decision was taken only on 4th September, 1987 and the petitioner was relieved on 25th September, 1987 and consequently he was not in a position to join the post of 2IC before 26th September, 1987. Since the petitioner was not responsible for the delay in his joining the post as 2IC, he ought to have been given salary and allowances for the post as 2IC from the date of his promotion i.e. 15th February, 1986. The petitioner appearing in person has relied upon the judgment of this Court dated 24th December, 1999 in CWP No. 4497/1996 titled ‘Kalyan Singh vs. Union of India & Ors. and the judgment of the Hon’ble Supreme Court in ‘Union of India etc.etc. vs. K.V. Jankiraman etc. etc’ reported as .
6. The FR-17 referred to in the above judgment of the Hon’ble Supreme Court in UOI’s case (supra) reads as follows:-
“F.R.17(1) : Subject to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge these duties.
In paragraph 25 of the said judgment the Hon’ble Supreme Court held as follows:-
“We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of ‘no work no pay’ is not applicable to cases such as the present case where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.”
7. The petitioner has further submitted that several officers who were junior in rank to the petitioner have been favored and the petitioner is being discriminated against as they have secured salary from 4th August, 1986 whereas the petitioner had only been given salary of the post of 2IC from September, 1987.
8. The case set up by the respondent in the counter affidavit is that on 16th July, 1985, the petitioner was sent a signal seeking his willingness to join as Second-in-Command. The relevant portion of the said communication dated 16th July, 1985 reads as follows:-
“FROM : HQ DG BSF OP IMMEDIATE
TO
IG BSF JAMMU/SRINAGAR UNCLAS
BSF ACADEMY NO. R-32
CLO(D&L)” Y HAND
FROM PERS (.) APPOINTMENT 2IC (.) DSB HELD RECENTLY HAVE EMPANELLED FEW DCs FOR APPOINTMENT AS 2IC (.) ASCERTAIN FROM FOLLOWING OFFICIALS NOW ON STAFF ASSIGNMENT/TRG INSTTS WHETHER THEY ARE WILLING TO BE APPOINTED AS 2IC IN UNIT OR INTERESTED TO REMAIN IN STAFF/TRG INSTTS FOREGOING SPECIAL ALLOWANCE OF 2IC (.) WILLINGNESS OF OFFICERS OR OTHERWISE BE SENT BY 25 JUL 85(.) ALFA (.) SHRI R.K. BHATIA LAW BRANCH FHQ(.)…
DELTA (.) …”
NO. 11/1696/69-ORG/BSF”
9. The said communication was responded by the petitioner on 25th July, 1985 as under:-
“I am not willing for the appointment of Second-in-Command as referred to in the aforesaid signal. This, however, is without prejudice to my right of seniority in the general cadre officers of the force.”
10. It is, therefore, contended by the learned counsel for the respondent that since the petitioner had expressed his inability to take up the posting for appointment of 2IC and he cannot, therefore, make a grievance of non-payment of the remuneration and allowances payable as 2IC allowances from 15th February, 1986 to 25th September, 1987 and that the respondent is not responsible for the delay in making the appointment of the petitioner on the post of 2IC and the petitioner in fact was granted notional appointment with effect from 15th February, 1986 so as not to disturb his seniority.
11. It is not in dispute that the petitioner was entitled to the benefit of seniority w.e.f. 15th February, 1986 and it is only the pay and allowances for the limited period of 15th February, 1986 to 25th September, 1987 which are the subject matter of the present writ petition.
12. The petitioner has relied upon the judgment in Kalyan Singh’s case 1996 (supra) to contend that in the said matter the pay and allowances were granted for the period of which the petitioner in that matter did not work on the rank of Deputy Commandant and even then was granted the arrears of pay and allowances. The petitioner has submitted that on a parity of reasoning similar relief should also be granted to him. In the said judgment reference has also been made to the violation of Article 14 of the Constitution of India as Mr. V.K. Gaur, the similarly situated BSF officer was also granted pay and allowances for the period for which he did not work. The relevant passages from Kalyan Singh’s judgment are as follows:-
“In January 1994, the respondents promoted the petitioner to the rank of Deputy Commandant and restored his seniority in that rank to that effect from 21.9.1989 i.e., the date on which his juniors were promoted to the said rank. However, the petitioner was not allowed the arrears of pay and allowances for the period 21.9.89 to 24.1.94 in the rank of Deputy Commandant despite the fact that the promotional post had been wrongly denied to him due to the adverse remarks which were found to be illegal, null and void by the Additional District Judge and upheld by the High Court of Punjab & Haryana.
Thus it will be seen that the respondents have not denied the averments of discrimination in favor of Shri V.K. Gaur but there is a bare denial which in the eyes of law does not amount to denial. Nothing has been stated in the counter affidavit to demonstrate how the case of Shri V.K. Gaur is in any manner different from that of the petitioner. Thus it would be seen that the petitioner has wrongly been denied the arrears of pay and allowances which were lawfully due to him. It is significant that there was a finding that there was clear-cut bias by the officers regarding the adverse entries against the petitioner which findings stood affirmed by the High Court and had become final, the petitioner cannot be denied the arrears of pay and allowances as claimed in the writ petition. Significantly in the present case not only the relevant reasons have not been recorded in the present case for denying the salary to the petitioner, but in fact there is a judgment which has attained finality which found the adverse entries against the petitioner to be actuated by clear-cut bias and findings were recorded that the petitioner was extremely well behaved and professionally sound. The petitioner’s case is further strengthened by the fact that in a similarly placed case, an officer Shri V.K. Gaur has been granted arrears of pay and allowances and this plea of discrimination has not been met sufficiently in the counter affidavit. The petitioner is entitled to succeed in the writ petition.”
13. It would thus be seen that in so far as the case of Kalyan Singh is concerned, it was based on denial of the post due to the adverse remarks against Kalyan Singh which were found illegal and consequently expunged up to the stage of High Court. In this view of the matter, it was found that the denial of the benefits of promotion to the said petitioner Kalyan Singh based on the expunged remarks was not justified. Hence, the said judgment cannot be termed applicable to the facts of the present case where it is the petitioner himself who expressed his disinclination to take up the post of Second-in-Command. The petitioner has contended that the signal dated 16th July, 1985 was merely an enquiry for willingness of the officials for working on the post of the Second in Command with special allowance of Rs.50/- per month and the same cannot be used against the petitioner to deny him the benefit of retrospective promotion.
14. The judgment in Janakiraman’s case (supra) the Hon’ble Supreme Court had held that the principle of no work no pay, is not applicable to such cases where the employee although is willing to work is kept away from work for no fault of the employee. In our view such is not a situation in the present case and on the contrary the petitioner himself expressed his disinclination to work as 2IC at the relevant time. Similar is the effect of FR 17(1) which permit the drawing of pay and allowance attached to or post from the date of the assumption of duties of that post and accordingly neither the aforesaid judgment nor FR 17(1) can come to the aid of the petitioner. Accordingly we find no merits in the writ petition and it is dismissed with no order as to costs.