Jammu & Kashmir High Court
Balbir Singh vs The Union Territory Of Jammu And on 26 August, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Sr. No. 04
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP (C) No. 1379/2025
Balbir Singh, aged 63 years .....Applicant(s)/Petitioner(s)
Son of Lachman Singh
R/o Margh Bagh, Jammu.
Through :- Mr. Navyug Sethi, Advocate
v/s
1. The Union Territory of Jammu and
Kashmir
Through Financial Commissioner
Additional Chief Secretary (Home)
Civil Sectt. Jammu/Srinagar
2. Director General of Police,
Jammu and Kashmir,
Police Headquarters, Jammu/Srinagar
3. Additional Director General of Police
(Coordination),
Police Headquarters, Jammu/Srinagar.
4. Director Police Telecom,
J & K, Jammu.
5. Sr. Superintendent of Police,
Telecom (ACS) Jammu.
.....Respondent(s)
Through :- Ms. Monika Kohli, Sr. AAG
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
ORDER(ORAL)
26.08.2025
Sanjeev Kumar J
1. Impugned in this petition filed by one Balbir Singh, under Article
226 of the Constitution of India, is an order and judgment dated
23.04.2025 passed by the Central Administrative Tribunal, Jammu
WP (C) No. 1379/2025
2
Bench, Jammu (“the Tribunal”) in OA No. 339/2023 titled “Balbir
Singh vs. UT of J & K and Ors.“, whereby the Tribunal has
dismissed the OA filed by the petitioner seeking monetary benefits
of his promotion as Selection Grade Constable (Driver) being
devoid of merit.
2. Impugned judgment is challenged by the petitioner on multiple
grounds. However, before we proceed to examine the grounds of
challenge urged by the learned counsel for the petitioner, we deem
it appropriate to notice few facts which are relevant to the disposal
of this petition.
3. The petitioner was appointed as Constable (Driver) vide PHQ J&K
Order No. 1194 of 1985 dated 16.11.1985. While the petitioner was
undergoing his training at PTC Udhampur, the Principal PTC,
Udhampur doubted the qualification certificate, i.e., (middle pass)
produced by the petitioner at the time of his selection and
appointment. He took up the matter with the SSP Telecom and
requested for referring the qualification certificate of the petitioner
to the Crime Branch for verification. During the course of the
inquiry, the qualification certificate produced by the petitioner was
prima facie found fake and as a consequence whereof, FIR No.
85/1988 was registered in the Police Station Gandhi Nagar for
offences under Sections 420, 467, 468, 471, 472 RPC.
4. Simultaneously, DIG Crime and Railways J&K, recommended
discharge of the petitioner from service. The recommendations
made by the DIG Crime and Railways were challenged by the
WP (C) No. 1379/2025
3
petitioner in SWP No. 845/1988. A Bench of this Court stayed the
recommendations and, in this way, the attempt of the respondents to
discharge the petitioner was for the time being, averted. The
investigation in FIR No. 85/1988 led to the filing of challan before
the 3rd Additional Session Judge, Jammu. The prosecution could not
succeed to prove its case and as a consequence whereof, the
petitioner was acquitted of all the charges leveled against him. After
the acquittal, the PHQ was approached by the Telecom
Headquarters for release of consequential benefits in favour of the
petitioner. However, PHQ J&K directed the pending departmental
inquiry against the petitioner in respect of production of false
documents to be kept in abeyance till the disposal of SWP No.
845/1988. Later the aforesaid SWP filed by the petitioner also came
to be dismissed by a Bench of this Court vide order dated
15.11.1996.
5. Since the departmental inquiry against the petitioner was not
dropped by the respondents even after his acquittal, the petitioner
again knocked the doors of this Court by filing SWP No. 1444/2000
and challenged the departmental proceedings on the ground that no
such departmental inquiry could be conducted against the petitioner
after he had earned an acquittal on the self same allegations from
the competent Court of jurisdiction. The writ petition was allowed
and the respondents were directed not to proceed against the
petitioner departmentally on the basis of charge, for which he stood
acquitted by the Criminal Court.
WP (C) No. 1379/2025
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6. The LPA preferred against order dated 06.04.2005 passed by the
Single Bench in SWP No. 1444/2000 also came to be dismissed
with a clear observation that the acquittal recorded by the Criminal
Court was honourable acquittal and that the Court had found that
the middle pass certificate produced by the petitioner at the time of
his appointment, was genuine.
7. After termination of the entire litigation qua the charges leveled by
the respondents against the petitioner, the matter was processed for
release of consequential benefits in favour of the petitioner. On
consideration of the matter through a Special Departmental
Promotion Committee, the petitioner was recommended to be
promoted as Selection Grade Constable (Driver) with effect from
05.06.1992 (notionally) and Head Constable (Driver) with effect
from 09.06.1997 (notionally), i.e., from the dates his immediate
juniors already stood promoted. The recommendation was accepted
by the Additional Director General of Police (Coordination), and
vide his order no. 337 of 2021 dated 05.06.2021 notional promotion
to the petitioner as Selection Grade Constable (Driver) with effect
from 05.06.1992 and Head Constable (Driver) that too notionally
with effect from 09.06.1997 was granted. This order was passed
when the petitioner already stood retired on attaining the age of
superannuation with effect from 30.04.2021.
8. Vide order no. 40 of 2022 dated 18.02.2022, and in partial
modification of the earlier order dated 05.06.2021 (supra), the
petitioner was given promotion as Head Constable (Driver)
WP (C) No. 1379/2025
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notionally with effect from 09.06.1997 and monetarily with effect
from 01.04.2021. This apparently was done to enable the petitioner
to avail pensionary benefits. The petitioner was also held entitled to
third promotion as ASI (Driver) in terms of order no. 3125 of 2021
dated 12.10.2021. The promotion of the petitioner to the rank of
ASI (Driver) was given with effect from 30.12.2009 on notional
basis.
9. Feeling dissatisfied and aggrieved, the petitioner filed OA No.
339/2023 before the Tribunal and called in question all the three
orders referred to above, whereby and whereunder the benefit of
promotion to the petitioner had been given with effect from
05.06.1992, 09.06.1997 and 30.12.2009 notionally. A short
grievance that was projected by the petitioner before the Tribunal
was that the petitioner was not granted the promotion along with his
juniors against the posts of Selection Grade Constable (Driver),
Head Constable (Driver) and ASI (Driver) on due dates for the
reason that the respondents had involved him in a totally false case
and uncalled for litigation.
10. The OA was contested by the respondents on the solitary ground
that the petitioner having not worked against the higher promotional
posts was not entitled to the arrears of salaries against the promoted
posts on the principle of “no work no pay”.
11. The Tribunal having heard both the sides and having gone through
the material on record, came to the conclusion that the plea of the
respondents that the petitioner was not entitled to monetary benefits
WP (C) No. 1379/2025
6
attached to his promotions on the principle of “no work, no pay”
had substance. Relying upon couple of judgments passed by the
Supreme Court on the aforesaid principle, the Tribunal dismissed
the OA holding it to be devoid of merits.
12. Impugned judgment is challenged by the petitioner primarily on the
ground that principle of “no work, no pay”, as enunciated by the
Hon’ble Supreme Court in the cases relied upon by the Tribunal, is
not attracted in a case where an employee is prevented to perform
the duties of higher post because of an illegal and arbitrary order
passed by the employer. It is argued that in the instant case, the
petitioner was all along in the service of respondents and
performing his duties as a driver and his promotion to the post of
Selection Grade Constable (Driver), Head Constable (Driver) and
ASI (Driver) did not involve any change in his duties. He would
further argue that in the instant case, the promotion to the aforesaid
three ranks were denied to the petitioner only on the ground that a
criminal case with regard to forging of a document was pending
adjudication before the trial Court, which criminal case ultimately
ended in honourable acquittal of the petitioner. He would, therefore,
conclude by submitting that the respondents, who denied
promotions to the petitioner, illegally and arbitrarily by involving
him in a false and frivolous legal criminal charge, cannot be
permitted to take the benefit of their own wrong and penalize the
petitioner who has been found innocent by the competent Court of
law.
WP (C) No. 1379/2025
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13. Per contra Ms. Monika Kohli, learned Sr. AAG supports the
judgment of the Tribunal and submits that since the petitioner has
not actually worked against the posts of Selection Grade Constable
(Driver), Head Constable (Driver) and ASI (Driver) and, therefore,
cannot be granted the pay scale of the post and the monetary
benefits accruing therefrom. A great deal of emphasis was laid by
Ms. Monika Kohli, learned Sr. AAG on the judgments of the
Supreme Court which have been elaborately discussed and relied
upon by the Tribunal in the impugned judgment.
14. Having heard learned counsel for the parties and perused the
material on record, we are of the considered opinion that the
Tribunal has not appreciated the matter in correct perspective and,
therefore, the judgment made by it is totally fallacious and
unsustainable in law. The Tribunal has failed to appreciate that the
petitioner was not out of action during the period he has been held
entitled to promotions. He was all along working with the
respondents as driver and continued to work till he retired on
superannuation with effect from 30.04.2021.
15. The timely promotions to the petitioner were not granted by the
respondents because departmental proceedings/criminal case with
regard to forgery of his qualification certificate were pending
adjudication before the competent forums. The criminal case was
instituted at the instance of the respondents, which, as noted above,
ended in honourable acquittal of the petitioner. An attempt to
proceed with departmental proceedings against the petitioner
WP (C) No. 1379/2025
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notwithstanding his honourable acquittal from the Criminal Court,
was averted by this Court when the petitioner approached it by way
of SWP No. 1444/2000.
16. Viewed thus, it can be conclusively held that the promotions were
denied to the petitioner for no fault of his. It is because of this
reason only, the respondents, after the conclusion of entire
litigation, found the petitioner entitled to promotions as Selection
Grade Constable (Driver), Head Constable (Driver) and ASI
(Driver) from different dates.
17. Needless to say, that even on the promotional posts, the petitioner
would have performed the same duties which he performed as a
Constable, i.e., the duties of a driver. It is not the case of the
respondents that on being promoted to the higher post of Selection
Grade Constable (Driver), Head Constable (Driver) or ASI (Driver)
he was supposed to perform duties different from or higher than the
duties which he had been performing in his capacity as Constable. It
is thus not the case of the petitioner having not performed the duties
of the promotional posts.
18. The reliance placed by the Tribunal on the judgment of the
Supreme Court in the case of Union of India and Ors. vs. Tarsem
Singh, (2008) 8 SCC 648 and State of Haryana vs. O.P. Gupta,
(1996) 7 SCC 533 was totally misplaced. It is trite law that if a
promotion is denied to an employee because of the mistake
committed by the employer and due to no fault of the said
employee, then employer is bound to pay arrears of salary etc. upon
WP (C) No. 1379/2025
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giving him the benefit of retrospective promotion after realizing
that mistake. The principle would be extended even to those cases
where due to sheer negligence, or on account of mala fides or filing
of false case or institution of baseless disciplinary proceedings, an
employee is deprived of benefit of promotion on due date and is
given the said benefit later retrospectively. Judgment of Apex Court
in “Union of India vs. K.V. Jankiraman AIR 1991 SC 2010 and
State of Kerala and Ors. vs. E.K. Bhaskaran Pillai (2007) 6 SCC
524″ may be referred with advantage. In the latter judgment,
Supreme Court in para 4 held thus: –
We have considered the decisions cited on behalf of both
the sides. So far as the situation with regard to monetary
benefits with retrospective promotion is concerned, that
depends upon case to case. There are various facets
which have to be considered. Sometimes in a case of
departmental enquiry or in criminal case it depends on
the authorities to grant full back wages or 50 per cent of
back wages looking to the nature of delinquency involved
in the matter or in criminal cases where the incumbent
has been acquitted by giving benefit of doubt or full
acquittal. Sometimes in the matter when the person is
superseded and he has challenged the same before Court
or Tribunal and he succeeds in that and direction is given
for reconsideration of his case from the date persons
junior to him were appointed, in that case the court may
grant sometimes full benefits with retrospective effect
and sometimes it may not. Particularly when the
administration has wrongly denied his due then in that
case he should be given full benefits including monetary
benefit subject to there being any change in law or some
WP (C) No. 1379/2025
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other supervening factors. However, it is very difficult to
set down any hard-and-fast rule. The principle “no work
no pay” cannot be accepted as a rule of thumb. There are
exceptions where Courts have granted monetary benefits
also.
It is, thus, clearly deducible from above judgments that question as
to whether or not an employee is entitled to pay and allowances for
the period of notional promotion preceding the date of actual
promotion depends upon facts and circumstances of each case viz.
grounds on which he is acquitted by the Court in criminal
prosecution or the grounds on which he is exonerated in the
disciplinary proceedings etc. In the instant case, the petitioner has
been acquitted by the criminal Court honourably holding that the
charge of forgery qua his qualification certificate was groundless
and that the certificate of qualification was genuine. And also, that
the petitioner, who was deprived of promotions when his juniors
were promoted, was supposed to perform same duties, i.e., the
duties of a driver and was not to shoulder any higher responsibility.
The Constable (Driver), Head Constable (Driver) and ASI (Driver)
perform same duties, i.e., driving of an official vehicle. The
principle of “no work, no pay” was not attracted.
19. For the foregoing reasons, we find merit in this petition and the
same is, accordingly, allowed. The order impugned passed by the
Tribunal is set aside and as a consequence, the OA filed by the
petitioner before the Tribunal is allowed by providing as under: –
WP (C) No. 1379/2025
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a. Order no. 337 of 2021 dated 05.06.2021 read with Order no.
40 of 2022 dated 18.02.2022 and order no. 3125 of 2021
dated 12.10.2021 are quashed to the extent they have been
challenged in the OA.
b. The petitioner is held entitled to all the monetary benefits on
the promotional posts, i.e., to the post of Selection Grade
Constable (Driver) with effect from 05.06.1992, Head
Constable (Driver) with effect from 06.06.1997 and on the
post of ASI (Driver) with effect from 30.12.2009.
c. That the arrears on account of aforesaid promotions shall be
worked out and paid to the petitioner within a period of three
months from the date copy of this order is served upon the
respondents.
d. That the respondents shall do well to revise the pensionary
benefits including the pension and gratuity of the petitioner
so as to enable him to avail the enhanced benefits in terms of
the directions which we have passed hereinabove.
e. That in case the arrears, in terms of direction no. (c), are not
released within the aforesaid period, the same shall become
payable along with interest at the rate of 6 % per annum
from the expiry of three months stipulated period.
20. The needful shall be done within the aforesaid period.
(Sanjay Parihar) (Sanjeev Kumar)
Judge Judge
JAMMU
26.08.2025
Manik
Whether this order is speaking: yes/no
Whether this order is reportable: yes/no
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