Full Judgment Text
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PETITIONER:
VIRENDER KUMAR, GENERAL MANAGER, NORTHERNRAILWAYS: NEW DELHI
Vs.
RESPONDENT:
AVINASH CHANDRA CHADHA AND ORS.
DATE OF JUDGMENT25/04/1990
BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
SHARMA, L.M. (J)
CITATION:
1991 AIR 958 1990 SCR (2) 769
1990 SCC (3) 472 JT 1990 (3) 503
1990 SCALE (1)857
ACT:
Service Law--Railways--Class 111 Service--Traffic Ap-
prentices --Recruitment of--25 by direct recruitment and
75 by promotion to departmental officials called
Rankers--Merger of sources of recruitment and constitution
of a single unified cadre of "Relieving Transportation
Assistants"--Seniority and promotion--Initial claim before
High Court confined to seniority and promotion in Class-III
service--Railways working out promotions upto Class-II
service--Concerned employees gaining substantially--Held
employees not entitled to further promotions in Class-I as a
matter of right.
Service Law--Deemed promotion--Payment of emoluments on
higher posts with retrospective effect--Held entitlement to
higher grades. on account of deemed promotions on the basis
of quota and rota rule is inequitable and irrational--Prin-
ciple of "no work no pay"-Held applicable.
HEADNOTE:
The respondent-employees, are Traffic Apprentices be-
longing to Class-III Railway service which has four grades
carrying different payscales. Above Class-III posts, are
Class-II and Class-I posts. The entire Class-II service was
filled by promotion by selection from Class-III service. The
Class-III service in the Traffic and Transportation Depart-
ment consisted not only of Traffic Apprentices but also of
other categories. However, the promotion to Class-II post
was not made exclusively from Class-III service of the said
Department, but the incumbents of Class-III service in the
Commercial Department were also entitled to be considered
for promotion. Consequently, a combined seniority list of
Class-III service both of the Traffic and Transportation
Department as well as the Commercial Department, was main-
tained. The promotions to further posts, viz., to Class-I
posts were thereafter made from the incumbents of Class-II
posts. In Class-I service, 60 per cent posts were filled by
direct recruitment and 40 per cent by promotion from Class-
II service.
The appointment to the posts of Traffic Apprentices was by
direct
770
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recruitment to the extent of 25% and this quota was to be
carried forward in the case of shortfall in any particular
year. The remaining 75% of the vacancies were earmarked to
other departmental officials for promotion who were called
rankers. Subsequently, both the sources of recruitment were
merged and a new single unified cadre of "Relieving Trans-
portation Assistants" was constituted.
The respondents filed a writ petition in the High Court
challenging the seniority list in the aforesaid newly con-
stituted cadre on the ground that their seniority in the
newly constituted cadre was not correctly fixed according to
quota rota rule of 25:75 either because the quota rule was
not observed properly or the unfilled vacancies in the 25%
quota reserved for them were not carried forward since 1954
onwards.
A single judge of the High Court rejected the petition
on the ground of laches.
On appeal, the Division Bench set aside the decision of
the single judge on the question of laches and directed the
Railway Administration to draw a revised seniority list.
Against the decision of the Division Bench, the Railways
preferred a Special Leave Petition in this Court which was
dismissed. Accordingly, the Railways prepared a fresh sen-
iority list in 1976. Since the said seniority list took care
of the grievances only of the employees who were parties to
the petition, some of the Traffic Apprentices fried an
application before the Central Administrative Tribunal for a
direction to quash the seniority list of 1976 and to prepare
a fresh seniority list. In the meanwhile pursuant to the
directions of the High Court the Railways prepared a fresh
seniority list in 1983 superseding the seniority list of
1976. The Tribunal disposed of the application by its order
dated June 25, 1986 by directing that the seniority list of
1983 shall be acted upon, and that the confirmations and
promotions be made on the basis of that list. Consequently
the Railways worked out the promotions upto and inclusive of
Class II posts.
Subsequently the respondent fried a contempt petition
before the Tribunal contending that full effect had not been
given to its judgment dated June 25, 1986. The Tribunal by
its order dated 14th September, 1986 held that the respond-
ents are entitled to further promotions to Class II and
Class I; and are entitled to emoluments on such higher posts
with retrospective effect. Hence this appeal by the Railways
771
against the Tribunal’s order dated 14th September, 1986.
Allowing the appeal, this Court,
HELD: 1. The Tribunal has gone beyond the scope of the
original petition while dealing with the contempt petition.
The promotions to Class-II and above were not the subject
matter of the writ petition before the High Court, and in
its direction the High Court said nothing about the promo-
tions to Class-II service. However, the appellant Railways
worked out the promotions to Class-ii service on the basis
of the new seniority list of class-Iii service of the year
1983 under which the respondents have gained substantially.
Therefore, the respondents are not entitled to claim as a
matter of right promotions to any higher posts. This Court,
however, does not desire to make any observations which will
come in their way if the Union Public Service Commission is
inclined to look into the matter. [780D-G]
2. The entitlement of the respondents to the higher
grades in Class111 posts as per the directions of the High
Court was on the basis of quota and rota rule, which in
itself is both inequitable and irrational. Time and again,
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the rule has been criticised on account of the absurd result
to which it leads, viz., the deemed appointments have to be
given to the concerned employees even from the dates when
they were not in service and probably when they were still
in their schools and colleges. [780H; 781A-B]
In the instant case, this is the situation with respect
to some of the respondents. The quota and rota rule had to
be worked out from the year 1954 as per the directions of
the High Court and the Tribunal. There is, therefore, nei-
ther equity nor justice in favour of the respondents to
award them emoluments of the higher posts with retrospective
effect. [781B-C]
P.S. Mahal & Ors. v. Union of India & Ors., [1984] 3 SCR
847, held inapplicable.
2.1 On the principle of "no work no pay", the respond-
ents will not also be entitled to the higher salary as they
have not actually worked in the said posts. [781F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2013 of
1990.
772
From the Judgment and Order dated 14.9.1988 of the
Central Administrative Tribunal, Delhi in C.C.P. No. 17 of
1987 in T. 246 of 1985.
Anil Dev Singh, C.V.S. Rao, T.C. Sharma and B.K Pershad
for the Appellant.
Subodh Markandeya, W.A. Nomani, G. Seshagiri Rao, A.K.
Raina, Mrs. Chitra Markandeya, G.D. Gupta and Ashok K.
Mahajan for the Respondents.
The Judgment of the Court was delivered by
SAWANT, J. Leave granted.
2. The appeal is filed by the General Manager, Northern
Railways against the decision dated 14th September, 1988 of
the Central Administrative Tribunal, New Delhi.
3. In order to appreciate the grievance of the appel-
lant-Railways against the impugned order, it is necessary to
state the relevant facts in brief. Respondent-employees who
are Traffic Apprentices belonged to Class-III Service which
has four grades, and the four grades carry different pay-
scales as follows:
(i) Grade-I -- Rs.250-380
(ii) Grade-II -- Rs.335-425
(iii) Grade-III -- Rs.370-475
(iv) Grade-IV -- Rs.450-575
The promotion to the alternate grade in the said four grades
is by selection. However, the appointments to all the four
grades is by promotion. Above Class-III posts, are Class-II
and Class-I posts. Class-I posts are in Junior Scale grade,
Senior Scale grade, Junior Administrative Grade and Senior
Administrative Grade. The entire Class-II service is filled
by promotion by selection from Class-III service. In Class-I
service, 60 per cent posts are filled by direct recruitment
and 40 per cent by promotion from Class-II service. The
recruitment as well as promotion to Class-I is through the
Union Public Service Commission (’UPSC’ for short). All
these posts are available as a promotion avenue to the
incumbents of Class-III posts. Class-III service in the
Traffic and Transportation Department consists not only
773
of Traffic Apprentices but also of other categories. Howev-
er, the promotion to Class-II post is not made exclusively
from Class-III service of Traffic and Transportation Depart-
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ment. The incumbents of Class-III service in Commercial
Department are also entitled to be considered for promotion
to Class-II posts. Hence, a combined seniority list of
Class-III service both in the Traffic and Transportation
Department as well as the Commercial Department, is pre-
pared. The promotions to further posts, viz., to Class-I
posts and to the posts of Junior Administrative Grade are
thereafter made from the incumbents of the Class-II posts.
4. It has further to be noted that the appointments to
the posts of Traffic Apprentices is by direct recruitment to
the extent of 25 per cent of the annual vacancies in the
posts of Section Controllers who are in the grade of
Rs.200-300 (PS) and in other posts in the same cadre in the
Yard and Station categories. This was according to the
scheme prepared by the Railway Board for improving control
organisations on the Railways. The Traffic Apprentices thus
directly recruited are, on completion of the training, first
absorbed as Assistant Movement Inspectors etc. in the grade
of Rs. 150-225 and are eligible for promotion to the grade
of Rs.200-300 (PS)/Rs.250-380 (AS) in the normal manner
after selection as Section Controllers, Station Masters,
Assistant Station Masters, Yard Masters etc. provided they
complete at least one year’s service in the grade of Rs.
150-225. Such promotions are, however, to be considered
against 25 per cent of the annual vacancies. The Railway
Board had further clarified the position that 25 per cent of
the total annual vacancies in the grade Of Rs.200-300 (PS)/
Rs.250-380 (AS) were to be earmarked for Traffic Appren-
tices, and if during any particular year it was not found
possible to utilise this quota fully on account of suffi-
cient number of Traffic Apprentices being not eligible for
promotion (owing to their not having completed one year’s
service in the grade of Rs.150-225), the deficit was to be
carried forward to the next selection. By their further
letter of December 18, 1963, the Railway Board directed that
with immediate effect, the Traffic Apprentices on successful
completion of the three years’ training, should be straight-
away brought on the scale of Rs.200-300 (PS)/ Rs.250-380
(AS) instead of being first absorbed in the scale of Rs.
150225 (PS)/Rs.205-270 (AS) as prevalent then.
Thus, it would be clear that Traffic Apprentices were
to be directly recruited to fill vacancies to the extent of
25 per cent of the vacancies and the posts of Section Con-
trollers etc- After recruitment, they were to be imparted
three years’ special training and thereafter
774
they were required to serve for one year in the grade of Rs.
150-225/ Rs.205-270 after which they were considered for
selection to the grade of Rs.200-300 (PS)/Rs.250-380 (AS).
From 1963, they were to be straightaway absorbed in the
grade of Rs.200-300/Rs.250-380 after completion of their
training period of three years, but without having to quali-
fy through Selection Board first and without the condition
of one year’s service. The Traffic Apprentices were thus to
fill vacancies to the extent of 25 per cent. This quota had
to be carried forward in case of shortfall in any particular
year, and the remaining 75 per cent of the vacancies were
earmarked for promotion to other departmental officials who
were called rankers. After both the sources of recruitment
merged in the scale of Rs.200-300/Rs.250-300, a single
unified cadre known as "Relieving Transportation Assist-
ants" stood constituted.
5. It appears that the respondent’s grievance in the
writ petition filed before the Delhi High Court was that
their seniority in the cadre of Relieving Transportation
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Assistants was not correctly fixed according to the quota
rule of 25:75, either because the quota rule was not ob-
served properly or the unfilled vacancies in the 25 per cent
quota reserved for them were not carried forward from 1954
onwards. Hence, they wanted their seniority list as Traffic
Apprentices to be recast according to quota and rota rule,
and the seniority list which was prepared allegedly contrary
to the said rule, quashed. The learned Single Judge had
rejected the petition on the ground that they had approached
the Court too late and, therefore, their petition suffered
from laches. The Division Bench in Letters Patent Appeal No.
220 of 1972 did not agree with the learned Single Judge and
decided the matter on merits, and gave the finding that the
Northern Railways had for the first time communicated by
their letter of December 26, 1967 to all the Divisional
Superintendents that it was decided that the seniority of
Traffic Apprentices appointed prior to December 18, 1963
would be determined from the date of their promotion to the
grade of Rs.250-380 and not according to their quota against
the vacancies which occured from 1.4.1954 onwards, the date
from which the direct recruitment of the Traffic Apprentices
was permitted. The Court held that according to the correct
interpretation of the various letters of the Railway Admin-
istration, Traffic Apprentices were to be assigned seniori-
ty, vis-a-vis rankers (promotees) according to their roster
position, taking into account the positions reserved for
them, viz., 25 per cent of the actual annual vacancies with
effect from 1.4.1954 carried forward in subsequent years.
The Court also held that the Railway Administration subse-
quently modified its instructions contained in
775
their letter of December 26, 1967 and issued another letter
on April 19, 1968 stating that the Traffic Apprentices would
be deemed to have been promoted from the dates they were
eligible provided vacancies were available in the particular
year for theft absorption and that their interests would be
protected by giving benefit of pro forma fixation of pay
etc. A further letter of December, 18, 1968 thereafter
followed from the headquarters of the Northern Railways in
which it was made clear that the seniority had to be fixed
with reference to the dates from which the Traffic Appren-
tices would have been promoted in the grade of Rs.250-380
had the quota of the vacancies from 1954 onwards always been
calculated correctly, i.e., the vacancies from 1954 onwards
should always have been taken into account to work out 25
per cent quota for the Traffic Apprentices. On these find-
ings, the Division Bench stated as follows:
"We may state here that all the Rankers who are likely to be
affected by the decision in this case are party respondents.
No right of any innocent third party is involved in the
case. We are ’also not quashing any rule executive instruc-
tion or letter of the Railway Administration or any seniori-
ty list issued by the earlier than February 1971. The Su-
preme Court has not laid down any rigid rule of limitation
in entertaining a writ petition under Article 32 or Article
226 of the Constitution of India. The Supreme Court was
pleased to observe that it will almost always be proper for
the court to hold that it is unreasonably delayed if the
writ petition is filed beyond the period of limitation
prescribed for a similar civil action. Thus, if there are
any exceptional facts and circumstances even the delay
beyond the period of limitation prescribed for a civil
action for the remedy may be reasonable or justified and the
writ petition may still be entertained. The Court may,
however, be reluctant to entertain such writ petitions but
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that does not mean that the court has no jurisdiction. If we
are right in holding that the cause of action arose in
February 1971, or even earlier in April 1968, then there is
no question of any delay. But, if we are not, even then on
the facts and circumstances of the case, as discussed above,
we have not been able to persuade ourselves to agree with
the learned single Judge that the writ petition is enormous-
ly delayed. By issuing the writ of mandamus in this case, we
are only setting at rest the uncertainty and disparity which
is prevailing in the various divisions of the Northern
Railway in the
776
matter of fixation of inter seniority of Traffic Apprentices
and Rankers. The Railway Administration have themselves
admired that in Allahabad division of Northern Railway,
Seniority has been granted to Traffic Apprentices according
to their quota against the vacancies which occurred from
1.4.1954 onwards. In case of commercial apprentices who are
similarly situated seniority has been assigned vis-a-vis
remain according to their quota on the basis of their roster
positions, 1, 5, 9 etc. There is no reason why the appel-
lants should be deprived of what is legally due to them even
if they have approached this Court after some delay.
For the reasons stated above, the Letters Patent Appeal is
accepted, the judgment of the learned single judge on ques-
tion No. 1 is set aside and reversed and we hold that the
writ petition was not belated and was not liable to dismiss-
al on the ground of laches. The finding on question No.2,
having been upheld by us, the appellants, are entitled to
the grant of writ of mandamus directing respondents 1 to 3
to fix the seniority of Traffic Apprentices, in the light of
the observations made by the learned single Judge and as
upheld by us. The seniority list, Annexure E attached to the
writ petition is quashed. The respondent Railway Administra-
tion shall draw the seniority list within 3 months from
today and proceed to make confirmations and/or further
promotions in the higher grades in accordance with the law,
rules and orders in force from time to time. In the circum-
stances of the case we leave the parties to bear their own
costs."
This decision of the Division Bench is of July 30, 1975.
Against this decision the Railways preferred a special leave
petition which was dismissed. Thereafter, the Railways
prepared a fresh seniority list in 1976. It appears that
this seniority list took care of the grievances only of the
employees who were parties to the petition. Against the said
seniority list, therefore, some of the Traffic Apprentices
filed a writ petition being Writ Petition No. 948 of 1976
challenging the seniority. That writ petition was trans-
ferred to the Tribunal and numbered as T.A. No. 246 of 1985.
It appears that in the meanwhile in 1983, the Railways, in
compliance with the judgments delivered by the High Courts
of Allahabad and Punjab & Haryana prepared a fresh seniority
list, and the Tribunal disposed of the transfer petition (TA
No. 246 of
777
1985) by order dated June 25, 1986. By this order, the
Tribunal observed that the application before the Tribunal
was to direct the respondent-Railways (the appellant herein)
to quash the impugned seniority list, i.e., the seniority
list of 1976 and to prepare a fresh seniority list and to
make the confirmations and promotions inaccordance with the
fresh seniority list. The Tribunal observed that that relief
had already been granted by the Delhi High Court in LPA No.
220 of 1972 by its decision which is already referred to
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above. Hence, no fresh directions were necessary. The Tribu-
nal also found that a fresh seniority list had been prepared
in 1983 in pursuance of the directions given by the High
Court. It appears further that since the seniority list was
not prepared within three months as directed by the High
Court and according to respondent No. 8 in that application
before the Tribunal, the seniority list was also not in
conformity with the other directions contained in the High
Court judgment, a contempt petition was filed before the
High Court and the same was pending before it. The Tribunal,
therefore, stated that it expressed no opinion as regards
the validity or otherwise of the seniority list prepared in
pursuance of the High Court’s directions. The Tribunal also
made it clear that unless otherwise ordered by the competent
authority or the High Court, as the case may be, the senior-
ity list prepared in pursuance of the directions of the High
Court shall be acted upon and:
"the confirmations and promotions made on the basis of that
list within a period of four months from the date of the
receipt of this order. Further, promotions shall be made
strictly in accordance with the list prepared in 1983 in
pursuance of the directions of the High Court in LPA NO. 220
of 1972."
6. It appears, therefore, that the Railways had prepared
a seniority list of 1983 in pursuance of the directions of
the Delhi High Court in LPA No. 220 of 1972 decided on July
30, 1975. The grievance of the petitioners in TA No. 246 of
1985 (Writ Petition No. 948 of 1976) was against the senior-
ity list of 1976 and since that seniority list was supersed-
ed by 1983 list which the Tribunal observed was in pursuance
of the High Court’s directions, nothing survived in the
grievance of the applicants there (viz., Chadha and others
in that application).
7. It further appears that according to the statement
made on behalf of the appellant-Railways, the Railways had
already worked out the promotions upto and inclusive of
Class-II posts by 14th
778
February, 1988. However, the applicants, Chadha and others
in TA No. 246 of 1985 filed a contempt petition being CCP
No. 17 of 1987 before the Tribunal making a grievance that
full effect had not been given to the judgment dated June
25, 1986 of the Tribunal in TA No. 246 of 1985. On that
application, the Tribunal passed the impugned order of
September 14, 1988, which is the subject matter of the
present appeal. The Tribunal has observed that the full
consequences of the judgment of the Tribunal were spelt out
by the General Manager of the Railways in his letter of July
30, 1982 forwarded to the Railway Board. The Tribunal then
set out the said consequences as contained in General Manag-
er’s letter and observed that the General Manager had cor-
rectly appreciated the consequences of the directions of the
High Court and of the Tribunal. The Tribunal then stated
that, however, in implementing the order, the Railways did
not give effect to the said judgments. The Tribunal then
directed that the seniority list prepared on the basis of
the panels of 1972-73 and 1978-79 for promotion to Class-II
posts should be revised. We are not concerned here with the
said directions. However, the Tribunal observed further that
the Railways’ contention that the earlier direction of the
Tribunal did not entitle the petitioners, i.e., Chadha and
others to be considered for promotion to Class-II or Class-I
or Junior Administrative Grade was not correct and the same
was contrary to its order as well as to the implications of
the said order spelt out by the General Manager himself. The
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Tribunal then went on to observe as follows:
" ..... When the Tribunal had directed not only confirma-
tion and promotion be made in accordance with the revised
seniority list but also directed further promotions to be
made on that basis, it was the duty of the respondent not
only to give promotion in Class-III but also to give further
promotion to Class-II, Class-I and Junior Administrative
Grade. Of course, these promotions have to be given in
accordance with the rules with effect from the date when the
juniors were given promotion. The petitioners should have
also been considered and promoted to Class-II, Class-I or
Juniors Administrative Grade just as their juniors were
considered and promoted. Further inclusion in the panel of
1978-79 cannot, therefore, be insisted upon since they have
already qualified.
4. After the above clarification, we do not think
that there would be any further difficulty in implementing
the order and in granting promotion to Shri Chadha and Shri
779
Sandhu in respect of whom alone this petition is pressed.
5. It is stated that although the implications were
correctly understood by the General Manager, even where the
orders were implemented to a certain extent, no arrears have
been paid. It is hereby clarified that on such promotion,
they would also be entitled to payment of arrears. The order
of the Tribunal in T-246/85 (sic) as further clarified
hereinabove shall be implemented accordingly and compliance
reported to the Tribunal within six weeks from today. ’ ’
The Tribunal also kept the matter before it on October
31, 1988, and the Special Leave Petition giving rise to the
present appeal was filed against the said decision of the
Tribunal.
8. Two additional facts need be stated. The combined
seniority list which was prepared in 1983 of Class-III posts
for promotion to Class-II posts was finalised in March 1987
and was made the basis of the postponed selection to Class-
II service as per orders of the Tribunal and panel was
issued on 13.3.1987. Thereafter, on the basis of orders
passed by the Tribunal on 9.12.1987, the Traffic Apprentices
who became eligible for promotion in the first ’batch after
revision of seniority were considered by a Review Departmen-
tal Promotion Committee and interpolated in. the Class-II
panels of 1972-73 and 1975-76. As a result, the seniority of
the personnel from the Commercial Department was affected
since direct recruit-Traffic Apprentices from the Traffic
and Transportation Department were given seniority according
to the quota and rota rule from 1954 onwards. Hence, M/s.
A.P. Chowdhary and K.N. Saxena, officers belonging to the
Commercial Department approached the Tribunal by their
applications Nos. 360 of 1988 and 936 of 1989 respectively,
challenging the new seniority list, and also on the ground
that they were not parties to the earlier proceedings.
9. It further appears that three of the respondents,
Chadha, Sandhu and Malik filed an application before the
Tribunal making a grievance that they were not given their
due promotion. That application is also pending before the
Tribunal.
10. It also appears that the Departmental Promotion
Committee prepared two fresh panels--the first panel was for
promotions to the posts which were vacant between 1972-73
and 1975-76 and the second
780
for the vacant posts for the year 1978-79. In the second
panel, KN Saxena stands selected.
11. In this appeal, we are concerned with two limited
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issues, viz., (i) whether in the context of the history of
the litigation and the decisions and directions of the High
Court and the Central Administrative Tribunal, the respond-
ents should be given promotions in all posts above Class-II
service as a logical corollary to their new ranking in the
revised seniority list of 1983, and (ii) whether on such
promotions being given, they should be paid emoluments of
such higher posts with retrospective effect. We have stated
that we are concerned with the promotions of the respondents
in the posts above Class-II service because, as stated
earlier, the appellant-Railways have already worked out
their promotions in Class-II service. There is, therefore,
no dispute with regard to the respondents’ promotions in
Class-II service. However, the dispute still survives with
regard to their entitlement to the emoluments in Class-II
service with retrospective date.
12. As regards the promotion to posts above Class-II
service, we find that initially when the petitioners ap-
proached the court, their grievance was with regard to their
seniority in and promotions to the grades in Class-II serv-
ice. The High Court had also in its direction said nothing
about the promotions to Class-II service. However, as stated
earlier, the appellants have worked out the promotions to
Class-II service on the basis of the new seniority list of
Class-III service of the year 1983. The respondents, there-
fore, have gained substantially since, as stated earlier,
the promotions to Class-II and above were not the subject
matter of the writ petition before the High Court. We are
afraid the Tribunal has gone beyond the scope of the origi-
nal petition while dealing with the contempt petition. The
respondents, therefore, are not entitled to claim in these
proceedings as a matter of right promotions to any higher
posts. We, however, do not desire to make any observations
which will come in their way if the UPSC is inclined to look
into the matter. In that case the UPSC may constitute review
Departmental Promotional Committee and give them proforma
promotions and seniority in the promotional posts from the
relevant years, if they are otherwise eligible to the same.
We say nothing more on the subject.
13. As regards the emoluments of nigher posts with
retrospective effect, we find that the High Court had cate-
gorically denied the same to the respondents even on the
basis of their claim to higher grades in Class-III posts.
Further, even the entitlement. of the respon-
781
dents to the higher grades in Class-III posts as per the
directions of the High Court was on the basis of the quota
and rota rule which in itself is both inequitable and irra-
tional. Time and again, the rule has been criticised on
account of the absurd result to which it leads, viz., the
deemed appointments have to be given to the concerned em-
ployees even from the dates when they were not in service
and probably when they were still in their schools and
colleges. We are informed across the Bar that this is the
situation even with respect to some of the respondents
herein. The quota and rota rule had to be worked out in the
present case from the year 1954 as per the direction of the
High Court and the Tribunal. There is, therefore, neither
equity nor justice in favour of the respondents to award
them emoluments of the higher posts with retrospective
effect. It is for this reason that we are of the view that
the decisions of this Court such as in P.S. Mahal & Ors. v.
Union of India & Ors., [1984] 3 SCR 847 directing the pay-
ment of higher emoluments with retrospective effect on
account of the deemed promotions of earlier dates will not
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be applicable to the facts of the present case and have to
be distinguished.
It is true that the appellant-Railways had failed to
give correct effect to the decision dated July 30, 1975 of
the High Court in LPA No. 220 of 1972, and had kept the
matter hanging till this day for no fault of the respond-
ents. The High Court by its said decision had directed the
appellant-Railways to prepare a seniority list within three
months from the date of the decision, and also to proceed to
make further promotions in the higher grades in accordance
with law, rules and orders in force from time to time. But
it is equally true that during all these years the higher
posts were not vacant and were manned by others and the
appellant-Railways had paid the incumbents concerned the
emoluments of the said posts. The respondents have not
actually worked in the said posts and, therefore, on the
principle of "no work no pay" they will not be entitled to
the higher salary. Hence, we give no directions in this
behalf and leave it to the appellant to give such relief as
they may deem fit.
14. The directions given above would be subject, to the
petitions which are already pending before the Central
Administrative Tribunal, New Delhi. The appeal is allowed
accordingly with no order as to costs.
T.N.A. Appeal al-
lowed.
782