# Others v. Committee of Management of

- **Citation:** Service Bench No. 75 of 2011
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-05
- **Case number:** Service Bench No. 75 of 2011
- **Bench:** Devi Prasad Singh, Arvind Kumar Tripathi(Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/others-v-committee-of-management-of-42857
- **Pages:** 3

## Headnote

Constitution Of India, Art.-226- Service
Law-arrears of Salary-entitlement-Notional
promotion with retrospective effect givenwhether entitled for salary for the period
without discharge of duty on promotional
post-held-'No'
Held: Para-12
In any case, the Constitution Bench
judgment of Hon'ble Supreme Court in
the case of Paluru Ramkrishnaiah(supra)
and other judgments (supra) of Hon'ble
Supreme Court is a binding precedent
where Hon'ble Supreme Court held that
where
promotion
is
granted
from
retrospective date, then the salary for
the period the petitioner actually had not
worked in the promotional post shall not
be paid. Accordingly, the tribunal seems
to have failed to exercise jurisdiction
vested in it. Thus, the impugned order
seems
to
suffer
from
substantial
illegality.

Case Law discussed:
1996 SCC(L&S)633; (2006) 10 SCC 145;
(1989)2 SCC 541; AIR 1993 SC 1740;
[2005(23) LCD 173

## Text

1 All Chandrabhan Awasthi and others Vs. State of U.P. and others
439
Others Vs. Committee of Management of
Hansraj Lal Intermediate College). The
Supreme Court decided whether a Junior
High School having primary sections if
approved as a High School after June,
1973 can claim that the primary sections
should be recognized within the grant-inaid scheme of the State Government of
Uttar Pradesh. The Supreme Court held
that the scheme was applicable only to the
High Schools which had primary sections
attached to it prior to June, 1973. The
respondent-Intermediate College of that
case was recognized as a High School
only in August, 1973 and since that date
was after June, 1973, the Supreme Court
held that the said School cannot claim
benefit of the scheme for grant-in-aid for
its primary sections.

7. In view of such clear judgment of
the Supreme Court, we have no option but
to dismiss this Special Appeal. It is,
accordingly, dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.04.2013.

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ARVIND KUMAR TRIPATHI(II),J.

Service Bench No. 75 of 2011

State of U.P.

...Petitioner
Versus
Kanhaiya Lal

 ...Respondent

Counsel for the Petitioner:
C.S.C.

Counsel for the Respondent:
Sri Kunchan Kumar Pandey
Sri R.K. Upadhayaya

Constitution Of India, Art.-226- Service
Law-arrears of Salary-entitlement-Notional
promotion with retrospective effect givenwhether entitled for salary for the period
without discharge of duty on promotional
post-held-'No'
Held: Para-12
In any case, the Constitution Bench
judgment of Hon'ble Supreme Court in
the case of Paluru Ramkrishnaiah(supra)
and other judgments (supra) of Hon'ble
Supreme Court is a binding precedent
where Hon'ble Supreme Court held that
where
promotion
is
granted
from
retrospective date, then the salary for
the period the petitioner actually had not
worked in the promotional post shall not
be paid. Accordingly, the tribunal seems
to have failed to exercise jurisdiction
vested in it. Thus, the impugned order
seems
to
suffer
from
substantial
illegality.

Case Law discussed:
1996 SCC(L&S)633; (2006) 10 SCC 145;
(1989)2 SCC 541; AIR 1993 SC 1740;
[2005(23) LCD 173

(Delivered by Hon'ble Devi Prasad Singh, J)

1. Heard learned Standing Counsel
for the petitioner and Mr. R.K. Upadhyay,
learned counsel for the respondents.

2. Present writ petition has been
preferred against the judgment and order
dated 10.9.2009, passed by State Public
Service Tribunal, Lucknow in Claim
Petition No.952 of 2003.

3.

While
adjudicating
the
promotional controversy, a decision was
taken to grant promotion to the claimant
respondent from 31.1.2000 on the post of
Senior Finance and Accounts Officer.
However, it is provided by the order dated
25.10.2012 that the claimant respondent
shall not be entitled for arrears of salary in
the promotional avenue. The order was
impugned before the tribunal and the
440 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
tribunal by the impugned judgment and
order directed the petitioner State to pay
salary of the period between 31.12.2000
to 25.10.2002 on the ground that the delay
caused in providing promotional avenue
is not because of the fault of the claimant
respondent.

4. While assailing the impugned
order, passed by the tribunal, the
petitioner's counsel submits that the grant
of promotional avenue notionally from
anterior date does not confer any right to
the employee to claim arrears of salary.He
relied upon the cases reported in 1996
SCC (L&S) 633 State of Haryana and
others versus O.P. Gupta and others,
(2006)10 SCC 145 Union of India and
another versus Tarsem Lal and others
and a Constitution Bench judgment of
Hon'ble Supreme Court reported in
(1989)2
SCC
541
Paluru
Ramkrishnaiah
and
others
versus
Union of India and another.

5. On the other hand, learned
counsel for the claimant respondent
submits that the claimant was deprived of
promotional avenue for no fault on his
part, hence he is entitled arrears of salary.
He relied upon a judgment reported in
AIR 1993 SC 1740 State of U.P. and
others versus G.P. Swami and another
judgment of this Court reported in
[2005(23) LCD 173] Dhanpal Singh
versus State of U.P. and another.

6. However, the fact remains that
during the period in question, i.e. almost
for two years, the petitioner had not
discharged duty on the higher post of
Senior Finance and Accounts Officer.

7.

In
the
case
of
Paluru
Ramkrishnaiah(supra), their Lordships
of Hon'ble Supreme Court held that where
promotion is granted from retrospective
date, then the back wages for the period
the petitioner actually did not work in the
promotional post shall not be paid. For
convenience, para 19 of the aforesaid
judgment is reproduced as under:

"As regards back wages the Madhya
Pradesh High Court held :

. It is the settled service rule 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 a higher post
although after due consideration he was
given a proper place in the gradation list
having deemed to be promoted to the
higher post with effect from the date his
junior was promoted. So the petitioners
are not entitled to claim any financial
benefit retrospectively. At the most they
would be entitled to refixation of their
present salary on the basis of the notional
seniority granted to them in different
grades so that their present salary is not
less than those who are immediately
below them."

8. In the case of O.P. Gupta(supra),
controversy before the Apex Court was
with regard to payment of arrears of
salary in lieu of notional promotion made
in the higher cadre. Notional promotion
was granted in pursuance to Apex Court's
judgment in view of fresh seniority list
prepared of the cadre. Their Lordships of
Hon'ble Supreme Court held that in such
situation, the employee shall be entitled
for the pay-scale retrospectively but
without payment of arrears of salary. To
quote relevant portion, to quote :

"7.
This
Court
in
Paluru
Ramkrishnaiah v. Union of India (SCR at
1 All State of U.P. Vs. Kanhaiya Lal
441
p. 109 : SCC p. 556, para 19) 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 Chandha (SCC p. 482, para 16).
"

9. The aforesaid proposition of law
has been followed in the case of Tarsem
Lal(supra) where in identical situation,
Hon'ble Supreme Court has declined to
grant arrears of salary.

10. The cases relied upon by the
learned
counsel
for
the
claimant
respondents seems to be based on
different facts and circumstances. In the
case of G.P. Swami (supra), an employee
was dismissed from service but later on
restored in service. Because of pendency
of litigation, he could not be restored in
service at earlier date. Their Lordships of
Hon'ble Supreme Court held that since
during the course of litigation, the
employee retired, salary for the period
when the employee was out of job may be
paid to him.

11.

The
case
of
Dhanpal
Singh(supra) was decided by one of us
(Hon. Devi Prasad Singh, J) whereby
while allowing for notional promotion,
consequential benefit was granted with
retrospective
effect
and
from
the
judgment, it appears that the notional
promotion was granted only for the
purpose of pensionary benefits. This
Court has not passed any order to pay
arrears of salary in the case of Dhanpal
Singh (supra).

12. In any case, the Constitution
Bench judgment of Hon'ble Supreme
Court
in
the
case
of
Paluru
Ramkrishnaiah(supra)
and
other
judgments (supra) of Hon'ble Supreme
Court is a binding precedent where
Hon'ble Supreme Court held that where
promotion is granted from retrospective
date, then the salary for the period the
petitioner actually had not worked in the
promotional post shall not be paid.
Accordingly, the tribunal seems to have
failed to exercise jurisdiction vested in it.
Thus, the impugned order seems to suffer
from substantial illegality.

13. The writ petition deserves to be
and is hereby allowed. A writ in the
nature of certiorari is issued quashing the
impugned judgment and order dated
10.9.2009, passed by State Public Service
Tribunal, Lucknow in Claim Petition
No.952 of 2003. The claim petition is also
dismissed to the extent it relates to
payment of arrears of salary in lieu of
notional promotion.

14. No order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.04.2013

BEFORE
THE HON'BLE SAEED-UZ-ZAMAN
SIDDIQI,J.