G. George Paracken:
1. This is the second round of litigation by the applicant. The first round was by way of O.A. No.3926/2010 decided on 30.09.2011. The brief facts of the case are that the applicant was selected as Constable (Executive) during the recruitment held in the year 1998. However, at the time of submitting the form for the aforesaid post, he mentioned his date of birth as 22.10.1979 whereas, according to him, his actual date of birth is 22.10.1977. Thereupon, the respondents issued a show cause notice to him on 23.02.2000 and finally his services were terminated under Rule 5 (1) of CCS (Temporary) Service Rules, 1965 vide order dated 25.04.2000. Simultaneously, FIR No.153/2000 u/s 420/468/471 IPC was also filed against him at P.S. Mukherjee Nagar. He had submitted a representation to the Commissioner of Police, Delhi against the order of termination but it was rejected vide order dated 25.04.2001. Thereafter, he filed an O.A.No.1494/2001 before this Tribunal and it was partially allowed vide Order dated 15.04.2002 and the order of the appellate authority dated 25.04.2001 was quashed and set aside. This Tribunal has also directed the Appellate Authority to issue a fresh order after considering all the points raised in the representation and keeping in mind the observations made by the Tribunal with regard to the harshness of the penalty. Thereafter, he filed R.A.No.108/2002 seeking a direction from this Tribunal for returning the original certificate and it was allowed vide order dated 16.05.2002 and the original certificate was returned to him against proper receipt. Subsequently, in compliance of the direction of this Tribunal, the Commissioner of Police, Delhi passed an order on 05.08.2002 but rejected his appeal. The C.P. No.426/2002 filed by him was also dismissed vide order dated 17.01.2003 but with the direction to the appellate authority to pass a self speaking revised order. Accordingly, the appellate authority passed the speaking order dated 27.01.2003 but again rejecting his appeal. While passing the said order, the Appellate Authority has also taken into consideration the following observation of this Tribunal that âhis explanation that he was waiting the result of the correction by U.P. Board to intimate Delhi Police Authorities, in the above circumstances, sounds a bit hollow, especially as the acceptance of 22.10.79 as his date of birth as the correct date would have given him advantage of two more years of service, if it had gone unchallenged. However, he filed another R.A.No.144/2003 in April 2003, alleging that there was an error apparent on the face of record and sought a direction to the respondents to impose a lesser penalty on him. This Tribunal disposed of the said RA vide its order dated 05.06.2003 with the observation that his attempt was to reargue the issue which was outside the scope of review in terms of Section 22 (3) (f) of the Administrative Tribunals Act, 1985 read with Order 47 of Civil Procedure Code. Thereafter, the applicant filed yet another O.A. No.2801/2003 and it was also dismissed vide order dated 31.08.2004. The CWP No.8029/05 filed by him in the Honble High Court of Delhi was also dismissed vide order dated 22.08.2005 on the ground that there was evidence on record that he was aware of his date of birth as 22.10.1977 and not 22.10.1979 and that there was evidence to show that the petitioner had made false and incorrect statement in the application form.
2. Meanwhile, the applicant was acquitted in case-FIR No.153/2000 under Sections 420/468/471 IPC P.S. Mukherji Nagar by the learned trial Court vide judgment dated 07.07.2007. He has, therefore, submitted a representation/ appeal to the Commissioner of Police against the order of termination order issued by the DCP/5th Bn. DAP dated 25.04.2000 with the request to quash and set aside the same and to reinstate him in service with all consequential benefits. Considering his said appeal, the PHQ passed the order No.XII/71/2008/29144/SIP (II) PHQ dated 14.11.2008 reinstating him in service. The said decision was conveyed to the applicant and all concerned vide order dated 24.11.2008 which is reproduced as under:-
âOrder
In pursuance of PHQs direction conveyed vide U.P. No.XII/71/2008/28632/SIP (II)/PHQ dated 05.11.2008, and U.O. No.XII/71/2008/29144/SIP (II) PHQ dated 14.11.2008, Constable Shiv Raj Singh No. 4412/DAP who was terminated from service vide this office order No. 4101-50/ASIP (P) V Bn DAP dated 25.5.2000, is hereby re-instated in service with immediate effect and his intervening period from the date of termination to the date of re-insteatment in service will be decided later on.
(B.S. Bola) IPS
Dy. Commissioner of Police
1st Bn DAP, Delhi
No. 12457-87/SIP-1st Bn DAP, dated Delhi the 24/11/2008.â
3. Later on, PHQs order No.XII/71/2008/587/SIP (II)/PHQ dated 05.01.2009, it was directed that the intervening period from the date of termination to the date of reinstatement in service will not treated as period spent on duty. He again filed a representation against the said order dated 05.01.2009 and the respondents informed him vide the impugned order No.XII/71/2007 /29089/Rectt. Cell (AC-VII)/PHQ dated 30.10.2009 that the intervening period will not be counted as period spent on duty as far as pecuniary benefits in service are concerned. The said order reads as under:-
âOFFICE OF THE COMMISSIONER OF POLICE: DELHI:
Subject: Representation submitted by Const. Shiv Raj Singh 4412/DAP now 776/DAP against the decision of termination period passed by DCP/Estt. vide u.o. dated 5-1-2009.
Reference your office memo. No. 8612/SIP/Ist Bn. DAP dated 8-5-2009 on the subject cited above.
The representation dated 13-4-2009 submitted by Constable Shiv Raj Singh No. 4412/DAP now 776/DAP against the decision of PHQ vide u.o. No. 487/SIP (II)/PHQ dated 5-1-2009 treating his intervening period of termination w.e.f. 25.4.2000 to 23.11.2008 as not spent on duty has been examined in this Hdqrs. and it has been decided that the termination period shall not be counted as period spent on service as far as pecuniary benefits of service are concerned.
This has the approval of Commissioner of Police, Delhi. The Constable may be informed accordingly.
The original corrected educational certificate and marks sheet of matriculation issued by the U.P. Board on 5-6-2003 in respect of Constable Shiv Raj Singh No. 4412/DAP now 776/DAP received vide your office memo N0.6469/SIP/Ist Bn. DAP dated 27-6-2008 are also returned herewith for making necessary entry of date of birth as 22-10-1997 instead of 22-10-1979 in his service record under intimation to all concerned.
Please acknowledge the receipt.
Sd/-
(ISHWAR SINGH)
Dy. Commissioner of Police
Establishment: Delhi
DCP/Ist Bn. DAP
Encls: As above.
No.XII/71/2007/29089/Rectt. Cell (AC-VII)/PHQ.
Dated, Delhi the 30/10/2009.â
4. Thereafter the applicant filed O.A.No.3926/2010 challenging the aforesaid orders of the Respondents and this Tribunal vide order dated 30.09.2011 directed the disciplinary authority to pass appropriate orders by applying its mind as regards his continuity in service in the context of the two orders, one dated 24.11.2008 reinstating him service and the other dated 05.01.2009 stating that the intervening period will not be treated as period spent on duty as far as pecuniary benefits in service are concerned. The relevant part of the said order reads as under:-
â4. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. No arguments whatsoever have been raised that the applicant may be entitled for monetary benefits for the intervening period between termination and reinstatement in service. In our view, such a plea even if raised, would have been rejected, in view of the facts and circumstances as mentioned above, in addition to the fact that the applicant cannot ask for salary and other emoluments for the period for which he did not work. The only contention raised by Shri Luthra, learned counsel representing the applicant, is that the applicant, on the dint of the two orders referred to above, would be at least entitled to continuity in service. Such does not appear to be a prayer made by the applicant ever. The applicant has not placed on records the representation which may have been decided vide order dated 5.1.2009, wherein it was decided that the termination period would not be counted as period spent on service as far as pecuniary benefits of service are concerned. The only representation placed on records is dated 29.3.2010. Perusal of the same would, once again, show that the applicant all through was asking for back wages only. Even though, in the prayer it has been mentioned that once his termination had been set aside, the period from 25.4.2000 to 23.11.2008 should be treated as period spent on duty for all intents and purposes. We repeat that in the body of the representation aforesaid, the clamour of the applicant is only for wages for the intervening period. In the present OA as well, there are neither specific pleadings nor a prayer to count the period that the applicant remained out of service for seniority etc. In these circumstances, we are of the view that it would be more appropriate that the matter is considered by the concerned authorities in the first instance. We are not commenting anything finally, but the applicant may have a case, as the order of reinstatement cannot be treated as an order of re-employment. In service jurisprudence, reinstatement relates back to the date when the order of dismissal may have been passed. Further, the order dated 5.1.2009 wherein it has been stated that the termination period would not be counted as period spent on service as far as pecuniary benefits of service are concerned, may imply that it would count for purposes of continuity of service. All that we thus comment is that the plea of the applicant needs consideration. Our observations as made above are only tentative, or, may, at the most, suggest that the applicant has a plea which needs consideration.
5. In totality of the facts and circumstances of the case, we direct the disciplinary authority to pass orders by applying its mind as regards continuity in service of the applicant in the context of the two orders, one dated 24.11.2008 reinstating him in service, and the other dated 5.1.2009 stating that the termination period would not be counted as period spent on service as far as pecuniary benefits of service are concerned.â
5. Pursuant to the aforesaid orders, the disciplinary authority passed the impugned order dated 21.12.2011 holding again that the applicant was not be entitled for any back wages and its relevant part is as under:-
âIn response to the above orders, the Const. submitted his representation to the Commissioner of Police, Delhi on 11.11.2011 to implement the Honble CATs Order dated 30.09.2011. His representation examined by the Head Quarters, Delhi and concluded that DCP/V Bn. DAP, Delhi the disciplinary authority, while terminating the services of Ct. Shiv Raj Singh has adopted due procedure of law and the action of the disciplinary authority was upheld by the Honble Tribunal, as well as, by the Honble High Court and no infirmity were found at any stage.
On considering his representation consequent upon his acquittal in case FIR No. 153/2000 dated 02.05.2000 U/S 420/468/471 IPC, PS Mukherjee Nagar, Delhi, he was re-instated in service from termination by DCP/1st Bn. vide order dated 24.11.2008 as per directions conveyed vide PHQs U.O. dated 14.11.2008. His intervening period from the date of termination to the date of re-instatement in service was ordered to be treated as not spent on duty vide PHQs U.O. dated 05.01.2009. In view of orders dated 24.11.2008 and 05.01.2009, it has been decided that the intervening period from the date of termination to re-instatement, the Const. had remained out of service and no Govt. work was done by him, so that the termination period from 25.05.2000 to 23.11.2008 shall not be counted as period spend on duty. The claim of Const. for counting his seniority cannot be entertained. Hence, Const. is not entitled for any benefits like back wages and seniority for the period as he remained out of service due to his termination.â
6. The applicant challenged the aforesaid order in this Original Application on the ground that it is against the principles laid down by the Apex Court in Union of India and others v. K.V. Jankiraman and others, (1991) 4 SCC 109. In the said judgment, the Apex Court has broadly discussed the issue of arrears of pay and allowances in relation to F.R. 17 in respect of Government servants who were kept away from service by the Government. The Apex Court has held that âThe normal rule of âno work no payâ is not applicable to cases where the employee, although he is willing to work, is kept away from work by the authorities for no fault of hisâ. The relevant part of the said judgment reads as under:-
â23. There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blame worthy in the least, he should not be deprived of any benefits including the salary of the promotional post. It was urged on behalf of the appellant-authorities in all .these cases that a person is not entitled to the salary of the post unless he assumes charge of the same. They relied on F.R. 17(1)' of the Fundamental Rules and Supplementary Rules which reads as follows:
"F.R. 17(1) Subject to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties:
Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence."
24. It was further contended on their behalf that the normal rule is "no work no pay". Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he bas done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed Under suspension. When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly.
25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one 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. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.
26. We are, therefore, broadly in agreement with the -find- ing of the Tribunal that when an employee is completely exonerated meaning thereby that he is not 'found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases' where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore however, such circumstances when they exist and lay down' an inflexible rule that in every case when an employee is exonerated in disciplinary/ criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz.. "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:
"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."
7. The learned counsel for the applicant has also relied upon an order passed by a coordinate Bench of this Tribunal in Purushottam Dass v. Union of India (O.A.No.2186/1998) decided on 24.3.2000. The relevant part of the said order reads as under:-
â9. Applicant has filed written submission in which he has invited attention to the Honble Supreme Coruts ruling in Union of India versus K.V. Janakiraman (1991) 4 SCC 109, in para 26 of which it has been held that when an employee is completely exonerated, meaning thereby that he is not found blameworthy in the least, and is not visited with the penalty even of censure, he has to be given the benefit of the salary higher of the post along with other benefits from the date on which he would have normally been promoted, but for the disciplinary / criminal proceedings. This ruling does not state anywhere that it would apply only to regular promotions and not to ad hoc promotions. Indeed, in the light of the Honble Supreme Courts ruling in K.V. Janakiramans case (Supra), respondents reviewed the procedure to be followed in regard to promotion of Govt. servants against whom disciplinary / criminal proceedings were pending and by their OM dated 14.09.92 (copy taken on records) prescribed the sealed cover procedure, which by their subsequent clarificatory OM dated 23.2.99 (copy taken on record) applies to cases of ad hoc promotion also. It is, therefore, clear from, the ratio of the Honble Supreme Court ruling in Janakiraman case (Supra) as well as the contents of OMs dated 14.9.92 and dated 23.2.99, that the charges against the applicant having been dropped and he not having been found blameworthy in the least, he should have been granted adhoc promotion to JAG of DANIPS alongwith his juniors with effect from 28.06.96 and not with effect from 17.10.97.
10. Under this circumstance, the OA succeeds and is allowed to the extent that the applicant shall be deemed to have been promoted on ad hoc basis to JAG of DANIPS with effect from the date his juniors were so promoted i.e., 28.06.96 and shall be entitled to all consequential benefits including difference of pay and allowances to the higher post, which should be calculated and paid to him within 4 months from the date of receipt of a copy of this order. The claim for compensation is rejected, as there are no good grounds to grant the same. No costs.â
8. The applicant has also submitted that despite the order dated 30.10.2009 to the effect that the intervening period shall not be counted as period spent on duty as far as pecuniary benefits of service are concerned, the respondents have not even granted the notional benefits of the said termination period. In other words, the respondents have failed even in granting this limited relief. He has, therefore, sought the following reliefs in this Original Application:-
âa)Â quash and set aside the impugned actions/orders of the respondent to the extent they deny of monetary benefits for the period the applicant was kept out of service due to the wrong termination order and/or
(b)Â in the event the applicant is not found entitled to actual monetary benefits for the period intervening between termination and reinstatement the respondents may kindly be directed to grant notional benefits arising on account of order dated 30.10.2009.
(c)Â award costs of the proceedings and
(d)Â pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.â
9. The respondents have filed the reply. According to them, his representation was duly considered by the HQ Delhi and concluded that the DCP/5th Bn. Delhi who is the disciplinary authority, while terminating the services of the applicant has adopted due procedure of law and its action was upheld by this Tribunal as well as the Honble High Court and no infirmity was found at any stage. However, the Tribunal, vide its order dated 30.9.2011, in O.A.No.3926/2010 directed the disciplinary authority to pass a speaking order. Hence the aforesaid speaking order has been passed.
10. The learned counsel for the respondents, Shri Vijay Pandita has submitted that the applicant cannot be granted retrospective promotion with arrears of difference of pay and allowances, as the applicant has not worked on the post in view of FR SR 17 (1) which reads that an officer begins to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumed the duty of that post.
11. In this regard, he has relied upon the decision of the coordinate Bench of this Tribunal in Shri Mahesh Sabarwal v. Union of India and others (O.A. No. 2048/2004) decided on 13.04.2005. The relevant paragraphs of the said judgment read as under:-
â7. There is no dispute with the basic facts. According to the respondents, the applicant had not served for the period for which he is claiming salary and, therefore, he is not entitled to the same. Learned counsel also urged that this relief could be claimed in the earlier O.A. and, therefore, it is barred by the principle of Order 2 Rule 2 of the Code of Civil Procedure.
8. It is not in dispute that the Code of Civil Procedure, in strict sense, does not apply to the proceedings before the Tribunal. However, this Tribunal certainly has the trappings of the Civil Court. The basic principles would remain the same.
9. In the O.A. that had earlier been filed, the applicant was only seeking that the order of 6.8.1998 whereby his candidature had been cancelled, should be quashed. Therefore, the question of claiming arrears or any other benefit was not available in that time. The said pleas of the respondents must fall.
10. So far as claiming of the arrears from 11.1.1996 onwards is concerned, a person who has not served for the period will not be entitled to arrears and to that extent, we have no hesitation in rejecting the claim.
11. However the applicant, as is apparent, was selected for the post of constable in the year 1996. For certain reasons, orders had been passed by the respondents canceling his candidature, which has been set aside by this Tribunal. Therefore, the applicant cannot be made to suffer for the fault of the respondents. Though, he will not be entitled to arrears for the period he had not served the department, he will certainly be entitled to notional benefit of seniority.
12. Resultantly, we dispose of the present application holding:
the applicant will not be entitled to arrears for the period he has not served the department; and he would notionally be given seniority as per the merit list that had been drawn by the respondents.â
12. Shri Pandita has further submitted that this is a case of âno work no payâ and the Apex Courts judgment in Harigovind Yadav v. Rewa Sidhi Gramin Bank and others, (2006) 6 SCC 145 will apply. The relevant part of the said judgment is as under:-
â26. The next question that arises for consideration is the relief to be granted. The appellant was first considered for promotion during 1991 and was not promoted, by wrongly adopting the principle of merit-cum-seniority. The said procedure was found to be erroneous by the Single Judge, Division Bench and by this court. The Bank was directed to consider the case of Appellant for promotion on the basis of seniority-cum-merit. Thereafter, in the contempt proceedings initiated by the appellant, the Bank undertook to comply with the order directing consideration of the appellant's case by the procedure of seniority cum merit. But the Bank, again by adopting the merit-cum-seniority method, failed to promote the appellant and promoted third respondent. The procedure adopted by the Bank had been found to be faulty on three occasions by this Court and the High Court, one of which was in the case of Appellant himself. The appellant had been denied promotion for more than 16 years by repeatedly adopting such an erroneous procedure. In the circumstances, we do not think it necessary to drive the appellant once again to face the process of selection for promotion. This Court in Comptroller and Auditor General of India v. K.S. Jagannathan [1986 (2) SCC 679] observed thus:
"There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and given necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and given directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
27. Having regard to the factual background of the case, and having regard to the fact that even under the merit cum seniority basis adopted by the bank the appellant had secured high marks and he was denied promotion on the ground that he failed to secure minimum marks in the interview, there is no need to refer the matter for fresh consideration. With a view to do complete justice, in exercise of our power under Article 142 we hereby direct the first respondent bank to promote the appellant as a Field Supervisor, from the date the third defendant was promoted as Field Supervisor and place him above the third Respondent. However, he will be entitled to monetary benefits flowing from such promotion only prospectively, though the pay is to be refixed with reference to the retrospective date of promotion.
28. This appeal is allowed accordingly.â
13. In this regard, he has also relied upon the judgment of the Apex Court in State of Haryana and others v. O.P. Gupta and others, (1996) 7 SCC 533 wherein it was held as under:-
â6. Having regard to the above contentions, the question arises: whether  the respondents are entitled to the arrears of salary? It is seen that their entitlement to work arises only when they are promoted in accordance with the Rules. reparation of the seniority list under Rule 9 is a condition precedent for consideration and then to pass an order of promotion and posting to follow. Until that exercise is done, the respondents cannot be posted in the promotional posts. Therefore, their contention that though they were willing to work, they were not given the    work after posting them in promotional posts has no legal foundation. The rival partieshad agitated their right to seniority. Ultimately, this Court had directed the appellant to prepare the seniority list strictly in accordance with Rule 9 untrammeled by any other inconsistent observation of the Court or the instructions issued in contravention thereof. Since the order had become final in 1990, when the appeal had been disposed of by the Court by the above directions, the State in compliance thereof prepared the seniority list in accordance with the Rules and those directions and promotions were given to all eligible persons and postings were made accordingly on December 1, 1992. In the interregnum some had retired. As stated earlier, though the deemed date has been given as 1.1.1983, the respondents cannot legitimately claim to have worked in those posts for claiming arrears and, as a fact, they did not work even on ad hoc basis.
This Court in Paluru Ramakrishnaiah and Ors. vs. Union of India and Anr. [(1989) 2 SCR 92 at page 109] considered the direction issued by the High Court and upheld that there has to be "no payfor no work", i.e., a person will not be entitled to any pay and allowance during the  period for which he did not perform the duties of higher post, although after due consideration, he was given a proper place in the gradation list having been deemed to be promoted to the higher post with effect from the date his junior was promoted. He will be entitled only to step up the scale of pay retrospectively from the deemed date but is not entitled to the  payment of arrears of the salary. The same ratio was reiterated in Virender Kumar vs. Avinash Chandra Chadha [(1990) 3 SCC 482] in paragraph 16.
It is true, as pointed out by Sri Hooda, that in Union of India vs. K.V. Jankiraman [AIR 1991 SC 2010] this Court had held that where the incumbent was willing to work but was denied the opportunity to work for no fault of him, he is entitled to the payment of arrears of salary. That is a case where the respondent was kept under suspension during departmental enquiry and sealed cover procedure was adopted because of the pendency of the criminal case. When the criminal case ended in his favour and departmental proceedings were held to be invalid, this Court held that he was entitled to the arrears of salary. That ratio has no application to the cases where the claims for promotion are to be considered in accordance with  the rules and the promotions are to be made pursuant thereto.
In these appeals unless the seniority list is prepared and finalised and promotions are made in accordance with the Rules on the basis of the above seniority list, the question of entitlement to work in the promotional posts does not arise. Consequently, the payment of arrears of salary does not arise since, admittedly the respondents had not worked during that period. The High Court was, therefore, wholly illegal in directing payment of arrears of salary. The order of the High Court accordingly is quashed.
The appeals are accordingly allowed. No costs.â
14. Regarding payment of back-wages, yet another judgment of the Honble Supreme Court relied upon by Shri Pandita is that of Union of India and others v. Rajinder Singh Rawat, (1999) 9 SCC 173 wherein it has been held as under:-
â2. The short question that arises for consideration is whether the High Court was justified in granting relief of payment of back wages to the respondent for the period he has not actually served. There is no dispute that the respondents case was omitted from consideration on the ground that his chest was short by 2 cm and as such he did not have the necessary physical standard, but, similar departmental candidates were considered and got the relief. The respondents case was, therefore, appropriately considered by the appropriate authority and by letter dated 21-12-1995, it was conveyed that the respondent would be entitled to the rank of Assistant Sub-Inspector (Clerk/Typist) from 3-8-1992 the date on which panel of 1992 was released, with the further direction that his seniority would be protected on a notional basis, but he would not be entitled to any pay and allowances of Assistant Sub-Inspector (Clerk/Typist) for the back period and would be entitled to the same only from the date he assumes the charge physically.
3. In the teeth of the aforesaid order, the High Court was not justified in granting the payment of back wages for the period for which the appellant has not actually assumed the charge. In the aforesaid premises, we set aside the impugned order of the High Court and allow this appeal. There shall be no order as to costs.â
15. We have heard the learned counsel for the applicant, Shri Ajesh Luthra and learned counsel for the respondents, Shri Vijay Pandita. There is no dispute that once the applicant has been reinstated in service without treating the intervening period between the date of termination and the date of reinstatement in service as dies non, the Govt. servant will have continuity in service. One of now the question is whether the applicant will be entitled for back wages for the said intervening period. The competent authority has held in clear terms that the said period will ânot be counted as period spent on service as far as pecuniary benefits of service are concernedâ. In those facts and circumstances of the case and to that limited extent we do not find any infirmity in the said decision. But what about the alternate prayer of the applicant âto grant him notional benefits arising on account of order dated 30.10.2009â? The respondents in the said impugned order dated 30.10.2009 have held that their previous order dated 05.01.2009 treating his intervening period of termination w.e.f. 25.4.2000 to 23.11.2008 as not spent on duty has been examined in by the Headquarters and it was decided that the termination period shall not be counted as period spent on service as far as pecuniary benefits of service are concerned. In other words, the respondents accordingly, reviewed their earlier decision dated 05.01.2009 and acceded to his request partially. Now the intervening period of termination w.e.f. 25.4.2000 to 23.11.2008 is not to be counted as period spent on service only for the purpose of pecuniary benefits of service are concerned. In other words, the respondents themselves have modified their earlier order of termination dated 05.01.2009 wherein it has been held that âthe termination period from 25-04-2000 to 23.11.2008 in respect of Const. Shiv Raj Singh No.4412/DAP may be treated as period not spent on dutyâ, by the subsequent order dated 30.10.2009 wherein it has been stated that the said period will be treated for all purposes except for âpecuniary benefits of serviceâ or back-wages.
16. We, therefore, allow this Original Application to that limited extent. In other words, the applicant will not be entitled for any arrears for the period he has not served the respondents but he will be given notional benefits in terms of the order of the respondents dated 30.10.2009. The respondents shall, therefore, pass an appropriate order granting the notional benefits for the intervening period between the date of his termination and the date of his reinstatement in service. Let the same be done within two months from the date of receipt of a copy of this order. There shall be no order as to costs.