Decided on October 01,2003

N V Job Appellant


Koshy, J. - (1.) Petitioner is a retired employee of the Kerala State Electricity Board. He retired from service on 31st July 1990 after 33 years of service. In the normal circumstances, he ought to have been promoted as Assistant Accounts Officer with effect from 1st November 1989 and Accounts Officer with effect from 1st July 1990. That is not disputed in the counter affidavit also. The contention of the respondent was that the appellant was not promoted because there was an interim stay from the Supreme Court and the stay was subsequently vacated only after the retirement of the appellant. Since the appellant retired from service at a time when there was stay order, he was not given the benefit. The learned Single Judge found that the rejection of the appellant's claim was correct despite legal entitlement as at the time when the petitioner ought to have been promoted there was a stay from the Supreme Court and the stay was vacated subsequent to the retirement of the appellant. The appellant ought to have been promoted as Assistant Accounts Officer with effect from 1st November 1989 and Accounts Officer with effect from 1st July 1990, but he was not promoted because of the stay orders which were subsequently vacated after his retirement. He has not worked in the promoted post till his retirement. Therefore, he was denied salary in the promoted post and benefits of notional promotion.
(2.) It is the well known maxim that actus animus curiae neminem gravabit (an act of the court shall prejudice no man). The above maximum was accepted by the apex court in Rajesh D. Darbar and others v. Narasingrao Krishnaji Kulkarni and others ( 2003 (7) SCC 219 ). The apex court observed as follows: "The Courts can take notice of the subsequent events and can mould the relief accordingly. But there is a rider to these well established principles. This can be done only in exceptional circumstances, some of which have been highlighted above. This equitable principle cannot, however, stand in the way of the Court adjudicating the rights already vested by a statute. This well settled position need not detain us, when the second point urged by the appellants is focused. There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the court. There is a well recognized maxim of equity, namely, actus curiae neminem gravabit which means an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia i.e. the law does not compel a man to do that what he cannot possibly perform. The applicability of the above said maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey, ( 1987 (4) SCC 398 ) Gurcharan Singh v. New Delhi Municipal Committee, ( 1996 (2) SCC 459 ) and Mohd. Gazi v. State of M.P., ( 2000 (4) SCC 342 )." Therefore, the appellant cannot be prejudiced because of the stay order issued, which was subsequently vacated. In the above circumstances, he should be entitled to get notional promotion as Assistant Accounts Officer from 1st November 1989 and Accounts Officer on 1st July 1990.
(3.) Next issue to be decided is regarding his entitlement of higher scales in the promoted posts. He has not worked in the promoted posts. Therefore, he is not eligible for salary in the promoted posts for the above period on the principle of no pay for no work as held by the apex court in the decision reported in State of Haryana and others v. O.P. Gupta and others ( 1996 (7) SCC 533 ). See also the decision in A. K. Soumini v. State Bank of Travancore ( 2003 (7) SCC 238 ). His retirement benefits has to be calculated taking into account notional salary as if he was promoted with respective deemed dates and considering his deemed promotion as he had a legal right to be promoted while in service from the deemed date, though he is not entitled to arrears of salary. His pension and retirement benefits should be refixed and arrears shall be paid within three months from the date of receipt of copy of this Judgment. The Appeal is allowed as above.;

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