ORDER
Mukesh Kumar Gupta, Member (J)
1. How to treat the period in between the date of relieving till the date of joining on transfer, particularly when the concerned official did not discharge duties and functions of the post concerned and validity of such order is upheld by the Court, is the question posed in the present O.A.
2. Admitted facts are that: The applicant belonging to SC category joined initially as LDC in the year 1957 and earned various promotions. He was promoted as Public Relations Officer on ad hoc basis on 18th July, 1994 and was transferred from Calcutta to Jaipur vide order dated 14.3.1985. Accordingly, he was relieved to join the said post as Jaipur on 15th March, 1985, but did not join. Ultimately, he reported for duty only on 7th August, 1989.
3. Being aggrieved by the said transfer and release order, he submitted representation dated 16th March, 1985, which came to be rejected on 30th March, 1985. He was informed that failing to join Jaipur would invite disciplinary proceedings against him. The aforesaid action was challenged before the High Court of Calcutta in C.O. No. 6078-W of 1985 and as an interim measure the respondents were restrained from giving effect to the said transfer and release order. Since the order was not complied with, contempt proceedings being C.R. 15253-W/1985 were instituted on which directions were issued to respondents to allow him to join at Calcutta as well as to pay arrears of salary. Number of other orders were passed in applicant’s favour.
4. On constitution of this Tribunal with effect from 1.1.1985, the aforesaid writ petition was transferred to this Bench and Registered as T.A. No. 452/1997. As an interim measure, a sum of Rs. 10,000/- was directed to be paid to the applicant. All these interim orders were challenged before the Hon’ble Supreme Court and the same were set aside in Civil Appeals arising out of SLP Nos. 6835 to 6837/1986. Ultimately, vide order dated 30th November, 1987, the aforesaid T.A. was also dismissed with the following observations:
“There was no unfairness or mala fides in selecting the applicant for transfer. The transfer was necessary because of two PROs at Calcutta had become surplus and the applicant along with another officer, Mr. Gupta were selected for transfer after taking into account all the relevant facts.”
The Bench further observed that :
“It is admitted that the vacancy at Jaipur is no longer available. Therefore, a new transfer order had to be issued for the posting of the applicant at an outstation office. But no release order should be issued for the release of the applicant from Calcutta again until and unless all his arrears dues of salaries are paid as per orders of the Hon’ble High Court. Mr. Banerjee submits on instruction that the applicant will be paid all his arrear salaries by 31st December, 1987. The applicant can therefore be released on transfer only after 31st December, 1987.”
The aforesaid order passed by this Bench, on an appeal filed by the Union of India, was set aside by the Hon’ble Supreme Court vide order and judgment dated 12th July, 1989 in Union of India v. H.N. Kirtania, with the following observations :
“We find that the Tribunal acted in excess of its jurisdiction in issuing impugned direction. The Tribunal recorded positive findings that the transfer order was legal and valid and it was not vitiated by any unfairness, or mala fide, thereupon already been released from the Calcutta office w.e.f. 15.3.1985, therefore, there was no question of issuing any fresh release order. We accordingly allow the appeal and set aside the impugned directions of the Tribunal. There will be no order as to costs.”
As noted herein above, the applicant reported for duty only on 7th August, 1999 and immediately thereafter he submitted representation seeking regularisation of the period from 16th March, 1985 to 6th August, 1989. Vide memorandum dated 28th February, 1991, the respondents informed the applicant that payments made pursuant to the order passed by the High Court of Calcutta as well as the Tribunal became inadmissible in as much as no orders for regularisation of the period of absence as well as payments made, were issued by the Hon’ble Supreme Court and since payment made to him were without prejudice to the right of the parties, therefore, the respondents decided that a sum of Rs. 86,729.35 paid to him be recovered after adjusting the amount of Rs. 19,055.87 which became payable as a result of regularisation of period of absence and balance amount of Rs. 68,673.98 was ordered to be recovered from him as per the due and drawn statement enclosed therewith. The applicant submitted representation to all concerned including the Hon’ble Prime Minister on 16th September, 1991. Since the applicant retired on attaining the age of superannuation with effect from 31st January, 1992, the aforesaid amount was ordered to be recovered from the amount payable to him on account of DCRG, leave encashment and balance from his dearness relief vide order dated 3rd June, 1992. Immediately thereafter, I.A. No. 1-4 in Civil Appeal No. 2943-45 and 2942/89, filed by the applicant, came to be disposed of vide order dated 2nd November, 1992 with the following orders:
“Counsel heard. In our opinion no further directions is called for as the appellants have already given the applicant the benefit of adjusting his Earned Leave against the period in question. We are shown an order dated 13.7.1990 which is at Annexure-VI and in view of the order we direct that the applicant may make a representation to the authorities for similar relief and the said representation will be considered and disposed of according to law as early as possible.
I.A. No. 1-4 are disposed of.”
(Emphasis supplied)
Pursuant to the aforesaid order, the applicant submitted representation, followed by reminders, which came to be rejected vide communication dated 19th December, 1994.
5. In the present O.A. it is contended that the respondents action is illegal, without jurisdiction and bad in law besides violative Articles 14, 21 and 300A of the Constitution of India; the respondents were duty bound and it was obligatory on their part to disburse the pensionary benefits without any deduction. The order dated 13th July, 1990 is applicable and the respondents were not justified in rejecting his representation; malice and mala fide were the foundation in rejecting his request vide communication dated 19.12.1994. Vide order dated 13th July, 1990, the respondents conveyed approval of the Competent Authority to treat the period from 11th April, 1999 to 16th August, 1999, i.e. when effect of such order in respect of 4 officials was stayed by the Tribunal, as duty period. It is contended that the applicant was similarly situated to those officials who were named in the aforesaid order dated 13th July, 1990, and therefore he was entitled to same and similar treatment and the period from 16th March, 1985 to 6th August, 1989 was to be treated as period spent on duty.
6. The respondents vehemently contested the relief prayed for in the present O.A. and stated that the applicant’s transfer to Jaipur was held to be valid and the applicant did not work during the period from 16th March, 1985 to 6th August, 1989 and therefore, the question of counting the said period as duty period did not arise. The applicant’s representation made pursuant to the Hon’ble Supreme Court directions vide order dated 2.11.1992 was considered but it could not be agreed to as his case was not analogous with the order dated 13th July, 1990. The applicant was paid an amount pursuant to interim orders passed by the High Court as well as this Tribunal, which were set aside by the Hon’ble Supreme Court as noticed in the aforementioned judgment , particularly Para -3. Despite the payment of pay and allowances as well as on issue of fresh posting orders, the applicant did not report for duty at Jaipur and remained absent. Since the Hon’ble Supreme Court accepted the Union of India respondents, contention and nullified the interim order as well as the final order passed by this Tribunal, the question of payment of pay and allowances as well as treating the said period as duty did not arise.
7. We heard both sides at length and perused the pleadings carefully. Mr. S.K. Dutta, learned Counsel appearing for the applicant vehemently contended that the pay and allowances paid pursuant to the orders passed by the High Court of Calcutta as well as this Tribunal cannot be adjusted and since the transfer as well as relieving was stayed, (he respondents were not justified to adjust the said payment against his terminal benefits. It was further contended that the respondents action in treating the applicant differently than the 4 officials for whom an order dated 13th July, 1990 was passed is discriminatory and arbitrary and therefore, violative of the principles of equity as well as natural justice.
8. Mrs. Sanyal, learned Counsel appearing for respondents on the other hand vehemently opposed the aforementioned contention and urged that once the Hon’ble Supreme Court quash and set aside various interim orders passed by the High Court of Calcutta as well as this Tribunal, including the final order passed by this Tribunal and thereby upholding the transfer order, the applicant was not entitled to any pay and allowances particularly when he had not discharge the functions and duties to the post in question and had not even reported for duty after dismissal of the O.A. by the Tribunal on 30.11.1997. The applicant reported for duty on 7th August, 1989. In other words, there was no justification for such belated reporting for duty. The applicant cannot be allowed either regularisation of said period or paid pay and allowance at the cost of administration and exchequer.
9. We have given our anxious consideration to contentions raised and the facts noticed herein above. It is not denied by me applicant that various interim orders passed by the High Court as well as this Tribunal were quashed and set aside by the Hon’ble Supreme Court as noticed in Para 3 of wherein it had been observed that:
“The respondent instead of joining at Jaipur filed a writ petition before the Calcutta High Court and obtained interim injunction. Later on contempt proceedings were initiated by the respondents against the appellants and the High Court passed an order dated 11.10.1985 directing the appellants to allow the respondents at Calcutta office to pay all arrears of salary to him. A number of orders were passed by the High Court in respondent’s favour but all those orders have been set aside by this Court in Civil Appeals rising out of Special Leave Petition Nos. 6385 to 6837 of 1986.”
(Emphasis supplied)
It is also not denied that the applicant’s absence from 16th March, 1985 to 6th August, 1989 has been treated as unauthorised absence by the respondents. It is further not denied that the applicant submitted detailed representation pursuant to the Hon’ble Supreme Court order dated 2.11.1992 and the same was considered and rejected vide communication dated 19.12.1994. We find force in the contention raised by the respondents that the applicant cannot equate himself with the 4 officials in whose favour the order dated 13th July, 1990 was passed treating certain period as duty, particularly in view of the observations made by the Hon’ble Supreme Court while allowing the Union of India Civil Appeal as well as disposing of the I.As. filed by the applicant on 2.12.1992. Merely because some other person has been allowed certain benefits, could not be a ground to claim parity. Similarly when a mistake is committed by the Department, it could not be a ground to perpetuate the same by issuing directions by the Court. The Hon’ble Supreme Court in , Chandigarh Administration and Anr. v. Jagjit Singh and Anr. has been observed that:
“We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order is in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent authority to repeat the illegality or to pass another unwarranted order.”
On perusal of the aforesaid Hon’ble Supreme Court orders, extracted herein above, we do not find any direction to treat the said period from 16th March, 1985 till 6th August, 1989 as either duty or directing the respondents to adjust pay and allowances paid for the said period. On the other hand, as we have noticed, the interim orders passed by the Court/ Tribunal issuing directions to make payment of pay and allowances were specifically quashed and set aside. We may also note that there is no explanation furnished by the applicant about his delayed reporting on 7th August, 1989 particularly when T.A. No. 452/ 97 upholding the transfer and posting order was dismissed on 30th November, 1987.
10. We may also note that the applicant has sought more than one relief in the present O.A., which would be evident from perusal of Para 8 dealing with the relief sought for, which reads as under:
"(a) To direct the respondents: (i) to implement the order dated 8.10.92 granting the pensionary/retiral benefits including a portion of G.P.F. to the applicant; (ii) to count the service from 12.4.95 to 6.8.89 as duty period; (iii) to extend the benefits of the judgment and order delivered by the Hon'ble Supreme Court of India in C.As. No. (S) 2943-45 and 2952/ 89 dated 2.11.92, arising out of S.L.P. No. 1449 of 1988 (Union of India and Ors. v. H.N. Kirtaniya). (b) To produce the records of the case for proper adjudication of the subject matter at issue; (c) To pay the interest for the payment of the retiral benefits from the due date to the actual date of disbursement at the current rate of interest; (d) To deal with and/or dispose of the representation dated 26.8.94; (e) And to pass such further or other order or orders and/or direction or directions as to this Hon'ble Tribunal may deem fit and proper. Under Rule 10 of C.A.T. (Procedure) Rules, 1987 one cannot claim more than one relief unless they are consequential to each other. Therefore, on this account the present O.A. is not maintainable.
11. Though the applicant seeks implementation of an order dated 8.10.1992, the said order has neither been annexed to the O.A. or produced during the course of hearing and as such we are unable to appreciate its contents and its mandate, if any. In our considered view, once a transfer order is upheld and the challenge made to it is rejected by the Court of law and also when the concerned official did not discharge the duties and functions attached to the post in question, the period in between his relieve and joining duty, cannot but be treated as period not spent on duty. The administration, in the given circumstances cannot be saddled with the payment of salary for the work not discharged by the concerned official. If any other view is taken particularly in the given circumstances, it will tantamount to conceding premium to those transfer order whose validity though stood upheld but the concerned official is allowed to enjoy pay and allowances without discharging duties. Principle of no work no pay is a settled legal proposition and it has been necessarily invoked in a case of present nature. The payment made by the respondents pursuant to the interim orders passed by the High Court of Calcutta as well as this Tribunal, which were ultimately quashed and set aside, would deemed to be put into operation if the applicant’s request to treat the period in question as duty and also to pay him, pay and allowances for the said period is allowed, which course of action in our considered view would not be tenable in law and justified on the face of it particularly when the Hon’ble Supreme Court chose not to issue such direction though sought for in the I.As. filed and disposed of on 2.12.1992.
12. In view of the discussion made herein above, we do not find any merit in the present O.A. and accordingly the same is dismissed. No costs.