Holding

The respondents are not entitled to arrears of salary because they did not perform the duties of the promoted posts during the period in question.

Summary

The respondents, engineers of the Haryana Public Works Department, were given notional promotions based on a seniority list prepared under Rule 9 of the 1970 Service Engineers Rules, with a deemed promotion date of 1 January 1983, but they only assumed the higher posts on 1 December 1992. They filed writ petitions seeking arrears of salary for the period between the deemed date and their actual posting. The Punjab & Haryana High Court ordered payment of such arrears, which the State appealed. The Supreme Court held that arrears could not be awarded because the respondents did not actually perform the duties of the promoted posts during that interval; promotion becomes effective only after the seniority list is finalized and the posting is made. The Court relied on the principle of "no pay for no work" from Paluru Ramakrishnaiah v. Union of India and Virender Kumar v. Avinash Chandra Chadha, distinguishing Union of India v. K.V. Jankiraman. Consequently, the High Court's order was set aside and the appeals were allowed.

Issues considered

Whether the respondents are entitled to arrears of salary for the period between the deemed promotion date and their actual posting in the promotional posts.
Whether the High Court's direction to pay such arrears is consistent with the Haryana Service Engineers Rules and established judicial precedents.

Subjects

PromotionSeniority listArrears of salaryNo pay for no workService rulesHaryana Service EngineersPublic Works Department

Judgment

A STATE OF HARYANA AND ORS. ETC. \

'
v.
O.P. GUPTA ETC.

JANUARY 12, 1996

B [K.RAMASWAMY AND G.B. PATTANAIK, JJ.]
)
Servil·e Law :

Har_vana Stale Service Engineers Class II Public Works Department
C (lrrigalio11 Branch) Rules, 1970-Ru/e 9-Se11iority--Nolio11al promolion-
E11title1neut to arrears of sahuy froni that date--Held; Not entitled to since
e1nployees had 11ot actually 11,iorked in the pron1otional posts during the said
period--High Court's order directing payn1ent o.f arrears o.f salary--Quashed.

Palul'll Ramakrishnaiah & Ors. v. Union of India & Am:, (1989] 2
D SCR 92 at page 109 and Virellller Kumar v. Avinash Chandra Chadlw, ..
(1990] 3 sec 482, relied on.

Union ()f India v. K. V. Ja11kirama11, AIR (1991) SC 2010, held
inapplicable.

E CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2415 of 1996
Etc.

From the Judgment and order dated 29.9.93 of the Punjab & Haryana .._
High Court in C.W.P. No. 6760 of 1993.

F Sunil Kumar Gupta, Ms. Shruti Pandey and Ms. Indu Malhotra for the
appellants.

Ms. K. Sharda Devi, S.M. Hooda and M.S. Dahiya for the Respond-
en ts.

The following Order of the Court was delivered :
G
Leave granted.

We have heard the counsel on both sides. The controversy runs on a
very narrow thread.

H Admittedly, the respondents were working in Haryana Service Engi-
468
)
STATE v. 0.P. GUPTA 469
ncers, Class II Public Works Department (Irrigation Branch). They are A
governed by the Haryana Service Engineers Class II Public works Depart-
ment (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 August 7, 1990 in Civil Appeal No. 3837/
90. Therein this Court had directed the Government to prepare the seniority B
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,
c
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 D
arrears. The High Court in the impugned order dated 29.9.1993 made in
CWP No. 6760/93 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.
E
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 January 1, 1983. They have
joined the duty on December l, I 99L. Therefore, the period for which they
F
claimed arrears would be from January I, 1983 to November 30, 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
retiremeht.

' Shri Gupta, learned counsel appearing for the State, contended that the G
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 clairned Inter se seniority over the others approached the
Division Bench and also this Court for relief; since, ulti1nately, this Court
has decided that seniority has to be prepared strictly in accordance with Rule H
470 SUPREME COURT REPORTS [1996] I S.C.R.
A 9 of the Rules, on receipt thereof , the Government have 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
B 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 respondent that the resp0ndents 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 respond-
c ents arc entitled to the arrears of salary and the High Court was right in
granting the same.

Having regard to the above contentions, the question arises : whether
the respondents are entitled to the arrears of salary? It is seen that their
D 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
E were willing to work, they were not given the work after posting them in
promotional posts has no legal foundatioti. 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
F
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 pro1notio11s were given tu ali eligible persons and
postings mere made accordingly on December I, 1992·. In the interregnum
some had retired. As stated earlier, though the deemed date has been given
G 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 even on ad hoc
basis.

This Court in Paluru Rcunakr;shnaiah & Ors. v. Union of India & Anr.,
H [1989] 2 SCR 92 at page 109 considered the direction issued by the High
STATE v. O.P. GUPTA 47 l
Court and upheld that there has to be "no pay for no work", i.e., a person will A
not be entitled to any pay and allowance during the period for which he did
not perform the duties of higher post, allhough after due consideration, he
was given a proper place in the gradation list having been deerned 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 B
<, from the deemed date but is not entitled to the payment of arrears of the
). salary. The same ratio was reiterated in Virender Ku111ar v. Avinash Chandra
Chadha, [1990] 3 SCC 482 in paragraph 16.

It is true , as pointed out by Sri Hooda, that in Union of India v. K. V.
Jankiraman, AIR 1991 SC 2010 this Court had held that where the C
incumbent was willing to work but was denied the opportunity to work for
no fault of him, 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 depart- D
mental 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 promotions are to be made pursuant thereto.

In these appeals unless the seniority list is prepared and finalised and
E
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 an-ears 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 F
salary. The order the High Court accordingly is quashed.

The appeals are accordingly allowed. No Costs.

G.N. Appeals allowed