Holding

A notional promotion granted as a gesture of gratis does not confer a right to arrears of salary; the "no work, no pay" principle applies.

Summary

A.K. Soumini, a clerk appointed in 1972, cleared the written test for promotion to Junior Management Grade in 1980 but was not selected after the interview, which required a minimum of 61% marks. She challenged both her non‑selection and the promotion policy before the Kerala High Court; the single judge and division bench held the policy invalid and ordered her selection. The Supreme Court earlier upheld the policy but, considering the long pendency of the appeal, directed that she be given a notional promotion as a gesture of justice. The bank effected a retrospective promotion with revised pay scales but the appellant sought full arrears of salary from 1980 onward. The High Court’s single judge awarded the arrears, but the division bench reversed, applying the "no work, no pay" principle. On appeal, the Supreme Court affirmed that the notional promotion was a gratuitous gesture, not a legal right, and therefore the claim for arrears could not be sustained, dismissing the appeal.

Issues considered

The validity of the promotion policy requiring a minimum qualifying mark in the interview.
Whether a notional promotion granted as a gesture of justice creates a right to arrears of salary.
The applicability of the "no work, no pay" principle to a notional promotion.
Whether the High Court's award of full salary arrears should be set aside.

Subjects

promotion policyminimum interview marksnotional promotionarrears of salaryno work no payservice lawseniorityretrospective promotionequity

Judgment

A.K. SOUMINI A
v.
STATE BANK OF TRA VANCORE AND ANR.

AUGUST 14, 2003

[S. RAJENDRA BABU, DORAISWAMY RAJU AND RUMA PAL, JJ.] B

Service Law:

Promotion-Non-selection/or-Non-selection and the promotion policy
challenged-High Court held the policy invalid-Supreme Court held the C
policy as valid but in view of lapse of time due to pendency of the appeal
candidate granted benefit of promotion-Notional promotion· granted from
back date-Claim for arrears of salary-Granted by Single Judge of High
Court-Denial by Division Bench on the principle of "no work no pay"-
On appeal, held since her promotion was only in the nature of a gesture of D
gratis and not by way of any right, notional promotion is proper-Candidate
not entitled to arrears of salary.

Appellant, appointed with respondent-Bank, appeared in written test for
promotion, but was ultimately not selected. She challenged her non-selectioJt
and also the promotion policy. Single Judge as well as Division Bench of High E
Court held promotion policy as not valid and directed her selection. In appeal,
this Court held the promotion policy valid but keeping in view the lapse of
time due to the pendency of the appeal and the fact that the appellant had not
appeared in subsequent test, in the interest of justice benefit of promotion
was granted to her.
F
Respondent-Bank promoted the appellant with retrospective effect giving
her notional seniority. Appellant filed petition before High Court seeking
arrears of salary. Single Judge held that she was entitled to get full salary
from the date of her promotion. Division Bench allowed the appeal of the bank
and dismissed that of the appellant observing that employer-bank was justified G
in declining to pay the full salary for the period in respect of which notional
promotion was given with revision of pay scale, as the case attracted the
principle of"no work no pay". Hence these appeals.

Oismis~ing the appeals, the Court

577 H
578 SUPREME COURT REPORTS !.2003) SUPP. 2 S.CR.

A HELD: The Division Bench properly approached the question in the light
of the relevant guiding principles and the same could not be said to be either
arbitrary, unreasonable ~r unsound in law to Warrant interference of this
Court. The fact that her .non-promotion was legal and there has been no
unlawful interference with her right to promotion or to serve in the promoted
B <ategory was obvious a_nd could not be minced over or completely ignored in
the light of the judgment of this Court, allowing the appeal by the Bank. The
grant of relief to her, keeping in view the delay merely due to pendency of
proceedings before court, was more in the nature of a gesture of gratis and
not by way of any right, to which she was found to be entitled to. Consequently,
the notional promotion given to her by the Bank with suitable revision of her
C pay scales itself is ·more than sufficient to moet the requirements, be it either
in law or in equity. The further claim for payment of arrears as well, is far
fetched and can have no basis in law. (582-C-FJ

, State of Haryana and Ors. v. O.P. Gupta and o,.s., (1996) 7 SCC 533,
relied on.
D
· · UnionoflndiaandAnr. v. P. SathikumaranaNairandOrs., (1997) IO
SCC 663 and State Bank of India and Ors. v. T.J. Paul, )1999) 4 SCC 759,
distinguished.

Paluru Ra,;,akrishnaiah v. Union of India, )1989) 2 SCC 541 and
E Virender Kum;,r, G.M. N. Riys v. Avinash Chandra Chadha, (1990) 3 SCC
472, referred to.
/
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6378-6388 of
2003.

F From the Judgment and Order dated 10.3.2000 of the Kerala High Court
in W.A. Nos. 1378 and I I03 of 1998. ·

K. Sukumaran, Ms. Karthika, S.N. R. Shonker and Ms. Baby Krishnan
for the Appellant.

G T.L. Viswanatha Iyer, A.V. Rangam and A. Rangan.~dhan for the
Respodents.

The Judgment of the Court was ·delivered by

RAJ END RA BABU, J. Leave granted.
H
A.K.SOUMINlv. STATE BANKOFTRAVANCORE [RAJENDRA BABU,!.] 579
The appellant, having initially succeeded partially before a [earned Single A
Judge but lost before a Division Bench of the Kerala High Court in W.A.
No.1378 and 1103 of 1998 has filed the above appeals. The appellant was
appointed as clerk/typist in the service of the respondent-bank on 28.2.1972.·
She undertook written' test for promotion to officer - Junior M_aiagement
Grade (Group A & B) on 20.7.80. Having come out successful, as per the
procedure required she appeared for an interview on 27.11.80 and though B
according to her claim she fared well she was not included in the final list of
180 employees selected for promotion. The appellant filed O.P. No.1323 of
1981 challenging her non-selection for promotion, questioning also incidentally
the provision in the promotion policy which required the candidates to get
at least a minimum of 61/, qualifying marks, in the interview. The learned Single C
Judge, by his order dated 1.8,83 held that such predominance cannot be given
to the interview by stipulating for a minimum qualifying marks of 6Y, to be
secured in the interview and allowed the petition in the following terms:

"Jn moulding relief in this case, I think it wouid be unjust at this
distance of time to quash the whole selections. Persons who have not D
approached the court in ;m~ would not be en#tle to any relief and
therefore interest of jusfr;e would be served if I dlrect that the petitioner
· also be selected if the'aggregate total marks she has obtained both
in the written and oral tests exceeds that of any one who is now
selected. It has to be proceeded on the basis that there is no qualifying E
minimum marks fixed for the interview. In the matter of seniority
among those selected etc. the petitioner on the basis of this order
should be given consequential benefits if she is selected. 0rder
accordingly. Original petition is allowed as above. There will be no
order as to costs."

On appeal by the bank, the Division Bench also seems to have affirmed F
the same by its judgment dated 29.J 1.83, and the same was said to have been
reported also in J.L.R. 1984(1) Ker.135 ..

"
Thereupon, the Bank pa.Sued the matter further before this Court in
C.A. No. !056 of 1984, and this Court by an· order dated 5.8.93 while following G
the earlier decisions upholding the provisions prescribing minimum inarks for
interview in a selection, held that the requirement of 61/, marks for qualifying
in the viva voce, as prescribed in the promotion policy of the Bank cannot
be held to be invalid and the judgment of the High Court ta~ing the contrary
view, cannot be upheld. At the .same time, keeping in view the lapse of time
due to the pendency of the appeal in this Court and the fact that the appellant H
580 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A herein also did not appear in subsequent tests held as follows:

"We, however, cannot lose sight of the fact that in view of the
decision of the High Court in her favour whereby it has been directed
that the respondent should be treated as selected if the aggregate
total marks both in written and oral tests exceed that of anyone who
B is now selected, the respondent did not appear in subsequent tests.
She should not be made to suffer on account of the pendency of the
appeal in this Court for more than 10 years. We, therefore, consider
it appropriate in the interest of justice to direct that the decision of
this Court reversing the view of the High Court with regard to the
validity of requirement of minimum marks for qualifying in viva-voce
c should not operate to the prejudice of the respondent and she should
be given the benefit of the decision of the High Court. Before we part
with this case it may also be mentioned that the learned counsel for
the respondent has pointed out that the requirement of 33 marks for
viva-voce is not in consonance with the norms laid down by this
D Court for the marks to be prescribed for viva-voce and for written test
in a selection. Since we have not disturbed the decisions of the High
Court in so far as the respondent is concerned we do not propose to
go into this question. It is left to the Bank, if so advised, to take
necessary steps and review its promotion policy in the light of the
decision of this Court.
E
The appeal is allowed and the judgment of the High Court quashing
that requirement of the minimum marks for qualifying in viva-voce in ·
the promotion policy of the Bank, is set aside subject to the directiop
that in so far as the respondent is concerned she would be given the
benefit of the judgment of the High Court. No order as to costs."
F
The Bank promoted the appellant to the cadre of JMG-1, with retrospective
effect from 30.12.80, and her seniority also seems to have been fixed,
accordingly, while at the same time fixing notionally and revising her pay
scales as on 5.8.93 at Rs. 3900, indicating also that the annual increment will
G fall due on 1.2.94 and thereafter on the first of February every year. But, the
appellant wanted also arrears of salary, for all such period and seeking such
relief tiled O.P.No. 9673 of 1994. A learned Single Judge by his order dated
30.3.98 held that she would be entitled to get the full salary from 1980 onwards
and further observed, "Therefore, while calculating and disbursing the salary
due to the petitioner for the above period, allowances must be made in the
H salary which the petitioner drew after getting the promotion in 1980." The
A.K. SOU MINI v. STA TE BANK OF TRA VANCORE [RAJENDRA BABU, J.] 581

Bank was directed to pass orders in this regard within one month from foe A
date of receipt of the copy of the order.

Aggrieved the Bank filed W.A. No.1378 of 1998. The appellant, aggrieved
by non-award of interest on the arrears directed to be paid, filed W.A.No.1103
of 1998. The Division Bench allowed the appeal filed by the Bank and dismissed
the appeal filed by the appellant, observing that the case on hand is one to B
which, the principles of "no work, no pay" can be legitimately pressed into
service and the employer-Bank was justified in declining to pay the full salary
for the period in respect of which notional promotion and revision of pay
scales was also made. Hence, this appeal.

l The respective learned senior counsel on either side, reiterated the C
, ..... stand taken before the High Court. On a careful consideration of the entire
materials on record including the earlier decision of this Court in the very
matter between parties, we are unable to approve the reasoning of the learned
Single Judge, which is the sheet anchor of the submission for the appellant
before us, besides placing reliance upon the decisions reported in Union of D
India and Anr., v. P.Sathikumarana Nair and Ors., [1997] 10 SCC 663 and
State Bank of India and Ors. v. T.J. Paul, [1999] 4 SCC 759. Even on a cursory
glance of the decision in [1997] 10 SCC 663 (supra) it could be seen no
principle of law for any guidance or to operate as any precedent seem to be
laid down therein and relief was granted for the reason that there was no val id
justification to deny a particular scale to a few only based on geographical E
location of the institutions in which they served and therefore it has no
relevance at all to the issue raised in this case. The decision in [1999] 4 SCC
759 (supra) dealt with a case of penalty of removal imposed on the empi.Jyee
concerned and on such punishment being found to be ultra vires, the powers
of the authority and the court remitting the case for consideration of the p
appellate Authority for imposition of any punishment lesser than the loss of
job. This case cannot be of any assistance to the issue raised in this case.

In State of Haryana and Ors., v. O.P. Gupta and Ors., [1996] 7 SCC 533],
this Court had an occasion to deal with a claim for arrears, in a case where
in adjudicating a dispute relating to seniority this Court directed the department G

• concerned to prepare a fresh seniority list strictly in accordance with rules
ignoring inconsistent administrative instructions and in compliance thereof a
fresh seniority list came to be prepared and eligible persons were even given
notional promotion by the department from a deemed date. When such
promotees claimed for payment of arrears of salary as well, this Court rejected
H
582 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A the claim applying the principle of'No work, No pay' and set aside the orders
of the High Court, countenancing such claims, to be illegal for the reason that
the promotees did not work for the period in the promoted capacities. In
coming to such conclusions this Court followed the earlier decisions reported
in Paluru Ramakrishnaiah v. Union of India, (1989] 2 SCC 541 and Virender
B Kumar, G.M, N. Rlys. v. Avinash Chandra Chadha, [I 990] 3 SCC 472.

So far as the case on hand is concerned, the appellant was denied
promotion in terms of the promotion policy under which it was necessary for
a candidate to secure at least a minimum eligibility mark of 6Yi at the interview
and the learned Single Judge, allowed the claim only on the ground that such
C prescription of a minimum mark was not valid. Though, the Division Bench
also affirmed the same, this Court overruled the said decision and upheld
such prescription. But taking into account the pendency of the appeal in this
Court for considerable time, and on account of which the appellant also did
not appear in the subsequent tests, benefit to promote her was not denied.
The fact that her non-promotion was legal and there has been no unlawful
D interference with'her right to promotion or to serve in the promoted category
was obvious and could not be minced over or completely ignored in the light
of the judgment of this Court, allowing the appeal by the Bank. While that
be the position, the grant of relief to her, keeping in view the delay merely
due to pendency of procee~ings before court, was more in the nature of a
E gesture of gratis and not by way of any right, to which she was found to be
entitled to. Consequently, the notional promotion given to her by the Bank
with suitable revision of her pay scales itself is more than sufficient to meet
the requirements, be it either in law or in equity. The further claim for payment
of arrears as well, is far fetched and can have no basis in law. The Division
Bench, in our view, properly approached the question in the light of the
F relevant guiding principles and the same could not be said to be either
arbitrary, unreasonable or unsound in law to warrant of our interference.

The appeals, in the light of the above conclusions, fail and shall stand
dismissed. No costs.

G K.K.T. Appeal dismissed.

I