2018 (2) TMI 1807 - HC - Indian Laws

Court sets aside order, denies back wages, approves notional promotion.

The court allowed the petition, setting aside the order dated 31st March, 2010, by the Chief Commissioner for Persons with Disabilities, New Delhi. The ... Notional promotion - entitlement to back wages / retrospective financial benefits - no work, no pay principle - reservation for persons with disabilities - extended zone of consideration - failure to apply mind / non-speaking orderNotional promotion - entitlement to back wages / retrospective financial benefits - no work, no pay principle - Whether the respondent was entitled to financial benefits with effect from the notional date of promotion. - HELD THAT: - The Court found that the respondent had been given notional promotion with effect from 6th December, 2002 and thereafter had joined on the promotional post and was receiving consequential incidental benefits from that date. However, having regard to the circumstances of cadre restructuring, revival of vacancies by judicial decision and the departmental practice that actual salary in the higher scale is payable only from the date of assumption of charge, the Court was not inclined to grant retrospective financial benefits or back wages from the notional date. The principle of 'no work, no pay' and the fact that notional promotions granted pursuant to the Andhra Pradesh High Court's decision did not carry automatic retrospective salary were pivotal to this conclusion. [Paras 26, 28]Respondent is not entitled to payment of back wages or retrospective financial benefits from the notional date of promotion.Reservation for persons with disabilities - extended zone of consideration - failure to apply mind / non-speaking order - Whether the respondent had been ignored for promotion or discriminated against in denial of promotional opportunity under the reserved quota for persons with disabilities. - HELD THAT: - The Court examined the chronology of promotions, qualifying service, the effect of GSR 1248 and ministry relaxations, and the fact that several senior officers were promoted in the interregnum. The Tribunal's brief reasoning (paragraph 5 of the impugned order) was held to be inadequate and not to have considered relevant departmental developments and the respondent's eligibility timeline. On the material before the Court, there was no convincing evidence of deliberate discrimination or of keeping the respondent away from promotion; the reduction in posts due to restructuring and subsequent judicial revival of vacancies explained the position. [Paras 23, 25, 27]No deliberate discrimination or wrongful denial of promotion was established; the claim of being ignored for promotion was not sustained.Failure to apply mind / non-speaking order - Whether the impugned order dated 31st March, 2010 passed by the Chief Commissioner for Persons with Disabilities, New Delhi was sustainable. - HELD THAT: - The Court held that the impugned order fell short of adequately considering material facts and developments, including departmental communications and the effect of earlier DPCs and review DPCs. The Tribunal's brief conclusion did not reflect application of mind to the chronological and factual matrix bearing on eligibility and relief. In view of these deficiencies and the contextual facts, the impugned order could not be sustained. [Paras 24, 29]Impugned order dated 31st March, 2010 is set aside.Final Conclusion: Writ petition allowed; impugned order of 31st March, 2010 set aside. Respondent retains notional promotion but is not entitled to retrospective financial benefits/back wages from the notional date; no deliberate discrimination is found. Issues Involved:1. Propriety, validity, and correctness of the order dated 31st March, 2010 by the Chief Commissioner for Persons with Disabilities, New Delhi.2. Eligibility and consideration for promotion of the respondent to the grade of Upper Divisional Clerk (UDC) and Inspector.3. Application of reservation and benefits for persons with disabilities in promotions.4. Entitlement to financial benefits from the date of notional promotion.5. Jurisdiction of the Chief Commissioner for Persons with Disabilities in service matters.Issue-wise Detailed Analysis:1. Propriety, Validity, and Correctness of the Order Dated 31st March, 2010 by the Chief Commissioner for Persons with Disabilities, New Delhi:The petitioner questioned the propriety, validity, and correctness of the order dated 31st March, 2010, passed by the Chief Commissioner for Persons with Disabilities, New Delhi. The court found that the tribunal did not consider all relevant aspects and prevailing circumstances, leading to the conclusion that the impugned decision was not sustainable on facts and circumstances. The order was set aside.2. Eligibility and Consideration for Promotion of the Respondent to the Grade of UDC and Inspector:The respondent joined as a Lower Division Clerk (LDC) on 31st May, 1993. According to the 1979 recruitment rules, LDCs were eligible for promotion to UDC after seven years. The respondent was promoted to UDC on 23rd August, 1999, following a relaxation of the seven-year service requirement. For promotion to Inspector, a five-year service as UDC was required, making the respondent eligible in August 2004. However, due to restructuring in 2003, promotional posts were reduced, affecting his eligibility. The respondent was eventually given notional promotion to Inspector with effect from 6th December, 2002, following a review DPC on 13th January, 2009.3. Application of Reservation and Benefits for Persons with Disabilities in Promotions:The respondent, a person with disabilities, claimed he was ignored for promotion despite being eligible under the reserved quota. The tribunal noted that other persons with disabilities were promoted, and the respondent was not considered despite his eligibility. The court, however, found that the respondent was given notional promotion in line with others and that there was no deliberate attempt to exclude him from promotion.4. Entitlement to Financial Benefits from the Date of Notional Promotion:The respondent sought financial benefits from the date of his notional promotion. The court observed that notional promotions do not entitle employees to back wages unless they have actually worked in the promoted post. The principle of 'no work, no pay' was upheld, and the respondent was not granted financial benefits from the notional date of promotion, consistent with the treatment of other promoted officers.5. Jurisdiction of the Chief Commissioner for Persons with Disabilities in Service Matters:The petitioner argued that the Chief Commissioner for Persons with Disabilities does not have the jurisdiction to entertain service matters and pass orders like the impugned one. The court found merit in this argument, noting that the tribunal's order did not adequately consider the jurisdictional limitations and relevant service rules.Conclusion:The court allowed the petition, setting aside the order dated 31st March, 2010, by the Chief Commissioner for Persons with Disabilities, New Delhi. The respondent's request for back wages was denied, and it was held that the notional promotion granted to the respondent was appropriate under the circumstances. The rule was made absolute in these terms.