Notional retrospective promotion does not entitle an employee to arrears absent actual service.

The applicant, an Administrative Officer in the Indian Council of Agricultural Research (ICAR), was placed at Serial No. 10 in the final seniority list dated 13 June 1996.

Although officers junior to him were promoted as Senior Administrative Officers (SAOs) in January 1997, he was not promoted because of adverse remarks in his ACR for 1995–96.

Following departmental proceedings against the concerned Director and the findings of the Central Vigilance Commission, the adverse remarks were expunged on 26 July 2000.

The applicant was thereafter promoted as SAO on 30 May 2001 and joined on 6 June 2001.

A Review DPC subsequently granted him notional promotion with effect from 31 January 1997 and revised his seniority, but denied arrears of pay and allowances for the notional period.

His earlier O.A. No. 1258 of 2005 was disposed of on 19 February 2010 with a direction to reconsider his claim in light of Supreme Court decisions.

The respondents reconsidered the matter and, by order dated 16 December 2011, again rejected the claim for arrears.

After contempt proceedings and a clarification granting liberty to challenge the compliance order, the applicant filed the present O.A.

Whether an employee granted retrospective or notional promotion pursuant to a Review DPC, after expunction of adverse ACR remarks, is entitled to arrears of pay and allowances for the period during which he did not actually work on the promotional post.

Whether the respondents’ reliance on paragraph 18.4.3 of the DoPT Office Memorandum dated 10 April 1989 and the principle of “no work, no pay” validly justified denial of such arrears.

Whether the applicant was entitled to interest on the alleged arrears.

The Tribunal applied paragraph 18.4.3 of DoPT O.M. No. 22011/5/86-Estt.(D) dated 10 April 1989, under which, where adverse remarks are subsequently toned down or expunged, the employee is to be considered by a Review DPC and granted promotion from the date on which the immediate junior was promoted; however, pay is notionally fixed under FR 27 and arrears are not admissible for the period of notional promotion.

It further applied the principle of “no work, no pay,” as explained in State of Haryana v. O.P. Gupta, (1996) 7 SCC 533, and the earlier decisions in Paluru Ramakrishnaiah v. Union of India and Virender Kumar v. Avinash Chandra Chadha, which deny arrears where the employee did not discharge duties on the higher post.

The Tribunal distinguished Union of India v. K.V. Jankiraman, (1991) 4 SCC 109, where arrears were awarded because the employee had been kept out of promotion owing to suspension, departmental proceedings, and a criminal case that ultimately ended in his favour.

It also relied on Delhi Transport Corporation v. Harish Chand Gupta and the principle that notional promotion may rectify seniority-related injustice without creating an entitlement to retrospective salary arrears.

The Tribunal held that the Review DPC had properly rectified the applicant’s seniority by granting him notional promotion from 31 January 1997, the date on which his juniors were promoted.

However, the applicant did not actually serve as SAO during the disputed period; he joined the promotional post only on 6 June 2001.

Under paragraph 18.4.3 of the DoPT O.M., the retrospective effect of promotion was therefore limited to seniority and notional pay fixation, and did not extend to payment of arrears.

The Tribunal found that Jankiraman was inapplicable because the applicant’s case concerned review of promotion under the applicable service rules, rather than denial of promotion during suspension or invalid disciplinary/criminal proceedings.

Applying the “no work, no pay” principle, the Tribunal concluded that the respondents had correctly rejected the monetary claim after reconsidering it in compliance with the earlier order.

It held that notional promotion and retrospective pay fixation did not entitle him to arrears of salary and allowances for the period during which he had not actually worked on the promotional post.

The claim for 18% interest necessarily failed because no arrears were payable.

The Original Application was dismissed, with no order as to costs, and all pending miscellaneous applications were also dismissed.