JUDGMENT
R. Basant, J.
1. What is the normal rule to be followed when a Government employee is granted the legitimate promotion due to him – not promptly but later with retrospective effect? Is he entitled for all monetary benefits from the date with effect from which he is given such retrospective promotion or is he entitled for such monetary benefits only with effect from the date on which he starts work in the promoted post? What is the rule and which are the exceptions? These are the interesting questions which arise for consideration in these appeals.
2. The petitioner (we shall refer to the parties in the manner in which they are ranked in the Original Petition) joined service on 25.2.1957. While working as First Grade Draftsman his juniors were promoted but the petitioner was not promoted. He filed an application dt. 15.6.1972 calling upon the Government to make available to
him the benefits of the promotion to which he is entitled. As there was no prompt and favourable consideration of the said application, he filed O.P. 585 of 1975 and this Court as per judgment dt. 12.8.1977 in O.P. 585 of 1975 directed the Government to consider the representation of the petitioner without reference to any policy decision and on the merits of the representation made by the petitioner.
3. The Government considered the representation and by order dt. 26.12.1978 the Government directed that promotion be granted to the petitioner. By order dt. 4.1.1979 the petitioner was actually promoted. He could join service in the promoted category only on 11.5.1979 on account of various reasons. He retired from service on 31.7.1980. He made application that promotion may be effected and benefits paid with effect from 15.9.1961. By Ext. P1 order he was granted promotion from 15.9.1961. The monetary benefits were not paid. By Ext. P2 the officials computed the actual monetary benefits which would be due consequent on promotion with effect from 15.9.1961. By Ext. P3 a clarification was sought. Ext. P4 representation was in the meantime made by the petitioner. By Ext. P5 clarification it was directed that the petitioner will be entitled for monetary benefits only for the period 11.5.1979 to 31.7.1980 during which period he had actually worked in the promoted post. It was held that he will be entitled only for notional promotion with effect from 15.9.1961 and shall not be entitled for monetary benefits for the period 15.9.1961 to 11.5.1979. Against this Exts. P6 to P8 representations were made by the petitioner. They did not produce any useful result. It is in these circumstances that the petitioner approached this Court again with O.P. 6502 of 1996.
4. By judgment dt. IstJuly 1997 the learned Single Judge held that the petitioner is not entitled to get any monetary benefits for the period 15.9.1961 to 10.5.1979. However it was directed that pensionary benefits will be paid as if the petitioner had worked as Assistant Engineer from 15.9.1961.
5. Later R.P. 331 of 1997 was filed by the petitioner seeking a review of the order dt. 1.7.1997 in O.P. 6502 of 1996. The learned Single Judge by order dt. 3.12.1997 in R.P. 331 of 1997 held that the petitioner will be entitled to his salary for the period 15.6.1972 till 11.5.1979. It was made clear that no interest shall be payable.
6. Against the order in O.P. 6502 of 1996 as modified by the order in R.P. the petitioner has preferred W.A. 1560 of 1998. The petitioner asserts that all monetary benefits must be paid w.e.f. 15.9.1961. The State has preferred W.A. 1451 of 1998 against the order in R.P. 331 of 1997. The State contends that the review was unjustified. Arguments were heard. As agreed by the counsel both these appeals were heard and are taken up for disposal together.
7. We shall immediately dispose of W.A. 1451 of 1998 in which the order in the Review Petition is challenged. Reliance was placed on a decision reported in Parsion
Devi v. Sumitri Devi, (1997) 8 SCC 715, to contend that invocation of the powers of review was unjustified. As the order in the Original Petition is under challenge in W.A. 1560 of 1998, we shall at any rate consider whether the order in the Original Petition deserves modification by invocation of the appellate jurisdiction. The contention that at any rate the learned Single Judge in Review should not have considered the challenge against the order in the Original Petition on merits (as if in appeal) need not in these circumstances be considered in W.A. 1451 of 1998. W.A. 1451 if 1998 is thus closed without proceeding further in the matter.
8. Coming to the challenge raised against the order in the Original Petition by the petitioner/appellant, it is perhaps easy to opine that the facts in each case are of crucial importance while deciding whether monetary benefits from the date of retrospective promotion must be given to such promotee. Ultimately, the decision in each case will have to be taken on the facts of such case. But definitely courts have to ascertain the principles which have to be applied while considering the facts in each case. Two views appear to be prevalent. The first is that no person is entitled to wages for work which he has not actually performed. This is a reflection or extension of the well recognised maxim in labour/employment jurisprudence that no work will fetch no pay. But the maxim of “no work no pay” cannot be extended or applied to all cases ignoring factual realities. This is all the more so in the case of a Government employee who has been denied promotion. Fictionally at least, the entire time, competence and energies of a Government servant are available and due to the State. He is on duty round the clock in the service of the Government. He performs such work as is allotted to him making use of his acumen and energies. Whether he works at the lower post or promoted post he is expected to give in his best. In these circumstances the doctrine of no work no pay cannot be blindly, mechanically or rigidly applied to a person entitled to promotion and whose claim is initially not recognised but recognised later with retrospective effect. Such person has always remained willing and prepared to perform the work assigned to him. He has not been able to do such work for reasons beyond his control and for no fault of his. It is very poor consolation for him that his superior authorities had made a mistake which is honest and not mala fide. The fact remains that he who was willing to work and who has entitled to perform higher work for higher remuneration has been denied of such opportunity to perform such work for no fault of his. He did actually perform the work assigned to him.
9. It will in this context be only apposite to refer to the decision reported in Union of India v. K.V Jankiraman (AIR 1991 SC 2010), where the Supreme Court had occasion to consider this specific aspect. That was also a case where the Supreme Court was dealing with the claims of a person in the service of the State for benefits consequent to promotion denied to him for no fault of his. In paragraph 7 the Supreme Court expresses its mind in the following words:-
“……. The normal rule of “no work no pay” is not applicable to such cases 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”.
We need only observe that the maxim no work no pay is not to be applied rigidly and universally under all circumstances without reference to facts.
10. Several decisions have been cited before us in which courts have awarded full monetary benefits to employees who were denied their promotion initially but were granted such promotion later with retrospective effect. Several cases in which such monetary benefits were not made available have also been brought to our notice. Our endeavour must Hence be to identify the principles which are applicable. While one school of thought holds that grant of monetary benefits from the date of retrospective promotion is the rule and refusal the exception, the other holds that application of the doctrine of no work no pay must be the rule and grant the exception. We have therefore got to first identify what the rule for general application is and then attempt to identify exceptions if any. Such principles deduced will have to be applied to the facts of the instant case.
11. The first decision in which the matter received detailed consideration appears to be the one in Narayana Menon v. State of Kerala, 1978 KLT 29. A Single Judge of this Court in that case considering the precedents on the point came to the conclusion that:
“… A Government servant cannot be said to have forfeited his claim for arrears of salary
when he did not get his due promotion for no fault of his”.
Later a Division Bench of this Court considered the same decision in Rajappan Nair v. State of Kerala (1984 KLT 141) and approved the conclusion of the learned Single Judge. The Division Bench made the following observations in paragraph 1 :-
“It quite often happens that a Government Servant does not get his due promotion on the
date he ought to have got it, but later it is given to him with retrospective effect from an earlier
date. If for no fault of his, promotion to a Government servant is delayed and it is given to him
later with retrospective effect from the date on which it was due, the Government servant is
naturally entitled to restoration of the benefits which he has lost not on account if his, conduct
or laches. It is only proper that the Government should restore to himall that is lost by way of
salary or other emoluments”.
The Division Bench later proceeded to make the following further observations in paragraph 2:-
“..We have found the Statequiteoften taking a stand that even if a person isretrospectively
promoted in recognition of his rights since the person so promoted had not actually worked in
that post he is not entitled to the emoluments of that post. We have not been shown the support
of any rule or logic to deny the benefit of the salary to the person so promoted. It may be that
such delayed promotion was not on account of any fault of the Government, but on account of
conduct of the party himself. But in the normal run of cases where no such conduct can be
attributed to the person who has lost the benefit of his appointment at the proper time when that
is restored to him such restoration would be effective only if whatever would accompany that
office would go to him. Otherwise it will only be a partial restoration resulting in loss to the person,
a loss which he is not bound to bear…”
12. In the later decision in Philomina v. State of Kerala (reported earlier in 1984 KLT 59) another Division Bench of this Court proceeded to consider both the decisions referred above. The Division Bench speaking through Justice Kochu Thommen struck a different note. We extract below the relevant observations appearing in paragraphs 15 and 16:-
“15. It is, therefore, clear that, subject to certain exceptional cases, no government servant is entitled to be paid for work which he has not done. The case of a person kept out of work or denied or deprived of his rightful place by an illegal order which upon the declaration or admission of its illegality becomes wholly destitute of legal efficacy is one of the exceptions. Another exception is where the authority has acted malevolently such as where the authority is shown to have deliberately and wilfully denied the officer his due promotion or other benefits with intent to injure him or where the authority has in disobedience of a dilrection of a competent court, denied the officer what has been held to be his due: in all such cases different considerations arise.
16. There may be cases, where on account of some mistake in the method of reckoning a person’s length of service, seniority and the like- innocent errors which are not uncommon in matters of administration – the authority makes an honest attempt to do justice to the concerned officers by proper readjustment of promotions and ranks. A person so rewarded cannot justifiably claim salary for the period when he actually did not work in the higher post, albeit for no fault of his. This is unavoidable and, absent malice, it must be endured with grace. Any other view would not only impose an undue burden on the economy of the State, but might even considerably inhibit any honest endeavour to redeem the plight of the officers whose promotions have been innocently overlooked”.
13. The Division Bench in Philomina has thus clearly held that the general rule to be followed is that a Government servant is not entitled to be paid for work which he has not done. Specific exceptions were indicated in paragraph 15 referred above. Thus it would appear that no work no pay is the rule to be followed and unless the case on hand falls within one of the specified exceptions, or other exceptions if any identifiable (the Division Bench was only being indicative and not exhaustive), the Government servant retrospectively promoted shall not be eligible for monetary benefits.
This certainly is an improvement from the dictum in 1984 KLT 141 but in Philomina, Rajappan Nair was specifically referred to by the Division Bench.
14. Subsequently two Single Judges of this Court in Subramoniam v. Kerala Agrl. University, 1987 (2) KLT 203, and Soman v. State of Kerala, 1992 (1) KLT 83, considered almost identical situations and held that such a promotee who was denied promotion for no fault of his is entitled to restoration of all benefits which he could otherwise have got. The decision in 1992 (1) KLT 83 does not of course refer to Philomina. The decision in 1987 (2) KLT 203 did refer to Philomina also specifically.
15. Later another Division Bench of this Court in Sivarajan v. State of Kerala, (1993 (2) KLT 287) considered all the earlier and subsequent decisions including Philomina. The dictum in Philomina was not dissented, but it was held that it was distinguishable on facts. The Division Bench in that case also took the view that a person who was promoted with retrospective effect, unless there are satisfactory reasons to deny the same to him, is entitled for all monetary benefits consequent on such promotion.
16. Out attention has been drawn to some subsequent decisions of the Kerala High Court also. In State of Kerala v. Jacob, 2000 (3) KLT 556, the Division Bench on the facts of that case held that such a promotee is entitled for monetary benefits only from the date he actually worked in the post. Another Division Bench in State of Kerala v. V.J. Joseph Ceasar, ILR 1998 (3) Ker 190, took the view that a teacher who had not actually rendered any work is entitled for monetary benefits for the period she was kept out of service unjustifiably. Our attention has been drawn to many such individual cases in which on the facts of such cases, directions were issued to grant monetary benefits consequent to such retrospective promotion. In some cases such monetary benefits have been denied also. There is no detailed discussion of the principles involved in such decisions and we are hence not advening to such decisions in greater detail.
17. It would appear to us that the principles laid down in Philomina have not been varied or altered by any decision of the Kerala High Court and continue to remain in force. In no subsequent decision has the correctness of the dictum in the said decision been doubted.
18. The learned counsel for the petitioner strenuously relies on two decisions of the Supreme Court in which the Supreme Court appears to have taken a contra view. In State of A.P. v. K.V.L Narasimha Rao, (1999) 4 SCC 181, the Supreme Court stated the principle which ought to apply in such a situation. We extract below the passage which appears in paragraph 5:
“In normal circumstances when the retrospective promotions are effected all benefits flowing therefrom, including monetary benefits, must be extended to an officer who has.been denied promotion earlier..”.
The counsel places reliance on the statement of law extracted above and contends that the normal rule must hence be to grant monetary benefits when promotion is granted with retrospective effect. It is contended that it would be unjust and inequitable to deny claimants who have been deprived of such legitimate promotion due to them when there is no fault on their part.
19. In a still earlier decision reported in Vasant Rao Raman v. Union of India, 1993 Supp (2) SCC 324, the Supreme Court considered an identical situation. The Central Administrative Tribunal had denied such monetary benefits to the promotee. The reasons which promoted the Tribunal to withhold such monetary benefits to the employee are summarised by the Supreme Court in the following words:-
“…. The Tribunal placing reliance on the aforesaid memorandum has taken the view that on the analogy of the instructions mentioned in the aforesaid memorandum and on the principle of ‘no-work no-pay’ on a particular post, the appellant was not entitled to any arrears of pay”.
The Supreme Court later in paragraph 4 proceeded to consider the reasons given by the Tribunal. They were disapproved in the following words:-
“In our view, the Tribunal was wrong in applying the aforesaid memorandum in the case of the appellant before us. Admittedly, neither the appellant had been put under suspension nor any disciplinary proceedings were pending against him. On the contrary, he had been made to suffer on account of administrative reasons for which the appellant was not responsible. There was shortage of literate Shunters at Gwalior during 1960. The appellant being literate was deputed for table work and therefore for administrative reasons he could not complete requisite number of firing kilometers. Thus, with no fault on his part his juniors had been promoted as Shunters and Drivers and his claim was ignored on account of having not completed the requisite number of firing kilometers. The Tribunal itself has allowed the claim of the appellant regarding seniority over his juniors, considering force in the contention of the appellant. Thus, in the facts and circumstances of this case, we find no justification whatsoever for not allowing the arrears of emoluments to the appellant of the post of Shunter ‘B’ from June 12, 1961 and that of the post of Driver ‘C’ from December 17, 1965”.
Relying on the above passage, it is contended that no employee can be made to suffer monetary prejudice on account of administrative reasons for which he is not responsible.
20. The observations in the two decisions of the Supreme Court referred above do convey that it may not be possible any longer to assume that the normal rule when
retrospective notional promotions are granted is that the claimant is not entitled to monetary benefits. Such a rigid statement of the law does not appear to be possible now. Of course the principle of no work no pay must be borne in mind. But if the officer concerned was willing to work and he was denied opportunity to work in such promoted post for no fault of his, that principle should definitely not operate to his prejudice.
21. The three classes of cases referred to in Philomina are:-
i. When such promotee is kept out of work or denied or deprived of his rightful place by an illegal order which, upon the declaration or admission of its illegality becomes wholly destitute of legal efficacy.
ii. Where the authority has acted malevolently and without bona fides such as where the authority is shown to have deliberately and wilfully denied the officer his due promotion or other benefits with intent to injure him.
iii. Where the authority has in disobedience of a direction of a competent court, denied the officer what has been held to be his due.
If the case on hand falls under any of the above three categories there could be no deprivation and all monetary benefits will have to be restored to such a promotee. Of course if such person is guilty of any contumacious conduct, behaviour, negligence or want of due diligence in the prosecution of his own cause, he cannot be permitted to claim such monetary benefits and encumber the coffers of the State unnecessarily by claiming such monetary benefits.
22. In short the normal rule must be that where there is no fault on the part of the officer concerned, he must be paid the monetary benefits due to him consequent to the retrospective promotion. In appropriate cases it could be denied to him for valid reasons. In the three categories of cases enumerated in Philomina such benefits cannot be denied to him. The dictum in Philomina cannot be held to be valid any more in view of the decisions of the Supreme Court referred above to the extent that it stipulates a rule of general application that no Government servant is entitled to be paid for work which he has not done. This conclusion appears to be inevitable in view of the subsequent declaration of law by the Supreme Court’in the decisions referred above.
23. Coming to the facts it is evident from the data available that it was on 15.6.1972 that the petitioner filed a petition claiming the promotion due to him with effect from 15,9.1961. He approached this Court with O.P. 585 of 1975 only in 1975. That Original Petition was disposed of only on 12.8.1977 and the Government was directed to consider the petitioner’s application dt. 15.6.1972. There is nothing before us to show that between 15.9.1961 and 15.6.1972 the petitioner was diligently representing
or prosecuting his cause. The submission that he has been making periodical representations is by itself insufficient to persuade us to hold that he has been diligently prosecuting his cause. He had put forward diligently all his claims by filing O.P. 585 of 1975 in which the only prayer was that his petition dt. 15.6.1972 must be considered. In these circumstances we are of opinion that the final conclusion of the Single Judge that the petitioner/appellant is entitled to monetary benefits with effect from 15.6.1972 is absolutely just and equitable. We cannot lose sight of the fact that the petitioner/ appellant who has been engaged in a long fight had to retire from service on 31.7.1980 before he enjoyed the benefits which were granted to him. It is taking into account all the relevant circumstances including the fact of his retirement on 31.7.1980 that we choose to accept that the petitioner/appellant is entitled for monetary benefits with effect from 15.6.1972. Ordinarily we might have been inclined to direct such payment only with effect from the date of the judgment in O.P. 585 of 1975 or from a date after elapse of a reasonable period from the date of such judgment.
24. We are in these circumstances satisfied that both these appeals can be disposed of with the observation that the appellant shall be entitled to restoration of all monetary benefits consequent to his retirement with effect from 15.6.1972.
25. In the result
i. Writ Appeal 1451 of 1998 is dismissed.
ii. Writ Appeal 1560 of 1998 is allowed in part with the direction that the appellant/ petitioner shall be entitled to monetary benefits with effect from 15.6.1972. All amounts due shall be paid within 90 days of this date failing which such amounts shall bear interest at the rate of 9% per annum from the date on which such amounts became due.
iii. No costs.