IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

S.L.P. (C) No. 4714 of 2018

IN THE MATTER OF: -

R. CHAKRAPANI PETITIONER

VERSUS

UNION OF INDIA & ORS. RESPONDENTS

COUNTER AFFIDAVIT ON BEHALF OF RESPONDENTS No. 1 to 4 i.e.,

U.O.I.

I ____________________working as _____________________ with the

_____________________, having office at
_________________________, do here by solemnly affirm and state on
oath as under:-

1. That I am working with office of the Respondents herein and as

such in my above official capacity is well conversant with the fact of
the case on the basis of the record maintained in the office and
therefore, competent to affirm this Counter Affidavit. The facts
stated in the affidavit are true to the best of my knowledge and
belief derived from such official records.

2. That I have read the contents of the present Special Leave Petition
along with its annexures filed by the petitioner and has fully
understood the contents there of and denies each and every
averment made by the petitioner unless and until the same is
specifically admitted to that extent. That on the basis of information
 derived from the official record and reading of this SLP I am in the
position to reply the same which follows as under:

3. BRIEF FACTS OF THE CASE:

a. That the Petitioner i.e., Sri R. Chakrapani was originally

appointed in the accounts department as Hamal and promoted
to the post of Shroff and arrived in Cash & Pay department during
1991.

b. During 1995 a notification dated 30.03.1995 (enclosed as

Annexure R – 1) was issued for forming panel for the post of Sr.
Shroff. Sri R Chakrapani was also called for the selection, but in
the written test, he could not secure the requisite marks even
after adding the notional seniority marks, he could not be
considered for viva-voce.

c. That feeling aggrieved by this, Sri R Chakrapani, Shroff/SC has

filed an O.A. No. 277/96 in Hon'ble CAT at Hyderabad.

d. That the contention of the petitioner is that promotion from

Shroff to Sr. Shroff is by non-selection process.

(i). Railways have contended that Sr. Shroff is a selection post

as per para 169(a) of IREM (enclosed as Annexure R –2)
Vol-1 and based on the Ministry of Railways Lr. No E(NG)-
170/PM1/253 Dated 12.09.1979.
(ii). The above O.A. No. 277/96 was dismissed vide Hon'ble
CAT's order dated 17.08.1998 (enclosed as Annexure R –3)

e. That again during 1997 a notification dated 16.07.1997 was

issued for selection to the post of Sr. Shroff alerting the eligible
candidates but Sri R Chakrapani has failed to secure the minimum
 requisite marks even after adding the notional seniority marks
(enclosed as Annexure R –4).

f. That after this the Petitioner i.e., Sri. R Chakrapani has filed O.A.
No 144/1998 before Hon'ble Central Administrative Tribunal at
Hyderabad which was also dismissed vide order dated
07.03.2000. (enclosed as Annexure R –5).

g. That again during 1999 a notification dated 07.10.1999 was

issued for selection to the post of Sr. Shroff alerting the eligible
candidates but none of the 12 eligible candidates including Sri R.
Chakrapani had qualified. Only one employee belonging to SC
community was considered for promotion, that too under
provision of relax standards. (enclosed as Annexure R – 6)

h. During the year 2001 again a notification dated 25.06.2001 for

filling of 11 vacancies of Sr. Shroff was issued. Written
examination was held on 11.10.2001 (enclosed as Annexure R –
7). Meanwhile, Petitioner i.e., Sri R Chakrapani, Shroff had filed
the following
(i). O.A. No. 1054 of 2001 (enclosed as Annexure R –8) before
Hon'ble CAT/HYB praying to stall the selection proceedings
initiated by the Chief Cashier.
(ii) W.P. No. 15248 of 2000 (enclosed as Annexure R –9)
before Hon'ble High Court of A.P. that promotion from
post of Shroff to Sr. Shroff is to be based on non-selection
process.

i. That while disposing off W.P No. 15248 of 2000 Hon'ble High
Court had held that the W.P. is allowed and order of the learned
tribunal dated 07.03.2000 made in O.A No. 144 of 1998 is set
aside with the direction to promote the petitioner to the post of
Sr. Shroff w.e.f. the date on which his immediate junior was
 promoted subject to the petitioner fulfilling the other eligibility
criteria under element rules and regulations.

j. That feeling aggrieved by this order of the Hon'ble High Court the
Respondent i.e., Railway administration preferred a SLP (C) No.
6262/2000 (enclosed as Annexure R –10) before this Hon’ble
Court for stay of operation of High Court order.

k. That in the meanwhile, in terms of Rly Board's Letter dated

25.02.2002, (enclosed as Annexure R – 11) the classification of
posts in the category of Shroffs was revised and the post of Sr.
Shroff as revised as non-selection. As a consequence Sri
R.Chakrapani has been promoted as Sr. Shroff on the basis of
seniority along with other eligible Shroffs vide O.O. No. 20/2002
dated 20.05.2002 (Annexure-12).

l. That simultaneously the Petitioner i.e., Sri. R. Chakrapani has filed

a contempt petition No. 741/2002 (enclosed as Annexure R – 13)
for delay in implementing the orders of the Hon'ble Court of A.P.
in W.P. No. 15248 of 2000.

m. That the Railway administration in pursuance of Hon’ble High

Court’s Order in W.P. No. 15248/2000 has promoted Sri R.
Chakrapani, to Sr. Shroff vide 0.0 Dated 02.09.2002 (enclosed as
Annexure R – 14) on par with his junior Sri D.Y. Sudarshan Reddy
subject to final outcome of S.L.P filed before this Hon’ble Court

n. That the Petitioner i.e., Sri R.Chakrapani filed O.A. No 1514/2002,

(enclosed as Annexure R – 15) in Hon'ble CAT at Hyderabad for
payment of arrears w.e.f. 03.06.1996.

o. That the claim of the petitioner was contested by the Railway

Administration by way of filing a counter affidavit (enclosed as
Annexure R – 16) in CAT at Hyderabad contending that the
 directions of the Hon'ble High Court in the above W.P was only to
the extent of giving promotion to the applicant w.e.f the date on
which his immediate junior was promoted and also subject to
other conditions.

p. That the Hon'ble High court vide order in W.P MP No 9637 of

2004 (enclosed as Annexure R – 17) in 2004 in W.PNo 8801 of
2003 (enclosed as Annexure R – 18) has ordered interim stay on
condition of petitioners pay, 1/4th of the difference of the salary
and allowances to the respondent from 03.06.1996 to 20.05.2000
within a period of 2 months from the date of receipt of the order.
The petitioner shall also fix the pay of the respondent granting
notional increments for the above-said period pending disposal
of this Writ Petition.

q. That in compliance of said order the above payment was

arranged in favour of Petitioner i.e., Sri R.Chakrapani.

r. That this Hon'ble Court has dismissed the Civil Appeal on

12.02.2009 SLP CC No. 6262/2002 (enclosed as Annexure R – 19)

s. That the W.P. 8801 of 2003 is allowed. No order as to cost. As a

sequel to allowing the Writ Petition, W.P. M.P. No. 11332 of 200
is disposed of. W.P. M.P. No. 96376 of 2004 and 2200 of 2012 are
dismissed as infructuous vide Hon’ble High Court order dated
15.10.2017 allowing the W.P. without cost.

t. That the Petitioner i.e., Sri R. Chakrapani retired in the month of

May 2017 as ADC/Cash has now filed the present SLP (C) No.
4714 of 2018 contesting the above High Court order in W.P. No.
8801 of 2003 before this Hon’ble Court.

4. PARAWISE Reply
i. That thee contents of paragraph 1 and 1a. are matter of
record and general in nature and as such do not require any
specific reply from the answering respondent. It is however
submitted that, the Hon'ble High Court of Telangana &
Andhra Pradesh has considered in detail the claim of the
petitioner for appointment as Sr. Shroff from 1996 with
reference to the date of promotion of his junior and held that
the issue was resolved for the first time vide judgement dated
18.12.2001 in writ petition No. 15248 of 2000 and the Hon'ble
High Court at no point of time directed to pay the arrears of
salary and granted liberty to agitate further cannot be
understood as recognizing such a right to the petitioner.

It is submitted that this Hon'ble Court in the S.L.P No.

629/2002 Filed by Union of India against the order dated
18.12.2001 in W.P No. 1528 of 2000 Granted leave and
registered the same as Civil appeal No. 7561/200. However,
the said Civil Appeal was rejected on 12.02.2009 and kept the
question of law was left open. Thus, the rule of "No work-No
pay" is applicable to the petitioner’s case and the Hon'ble
High Court accordingly upheld the rule of "No work- No pay"
and also recorded the submission of the counsel of the
respondents to the effect that no steps would be initiated for
recovery of the payment, which was in compliance with the
earlier order of the Hon’ble High Court and the contempt
proceedings initiated by the petitioner thereof. It is submitted
that the legal position, that the post of Sr. Shroff is a non-
selection post was decided finally by the respondent in
consultation with the service union and rule 212 of IREM
conferred power to treat the post as selection and non-
selection post. It is not open for the petitioner to agitate
further for arrears of salary from 1996 ignoring the fact that
the petitioner accepted the post of Sr. Shroff as a selection
post and accordingly participated in the selection test. It is
 only after his failure to get selected, initiated for the litigation
and the Hon'ble Court considered the matter and vide order
dated 20.2.2009 in C.A. No 7561 of 2002 and left the issue
open.
It is also submitted that this Hon'ble Court has settled the law
with regard to "No work- No pay" in the matter of State Kerala
and others Vs. E.K. Bhaskaran Piliai reported in (2007) 2 SCC
L&S 487 wherein it was held that it is difficult to settle down
any hard and fast rule. This Hon'ble Court in the matter of
Ramesh Kumar Vs. Union of India reported in (2015) 14 Sec-
335 has further clarified that the normal rule is "No work- No
pay". Accordingly the Hon'ble High Court has considered at
length the legal position in this regard and approved the stand
of respondent’s and restricted the claim to the extent of 1/4th
of the arrears of salary, which has already been withdrawn by
the petitioner in view of the commitment by keeping in view
the principles of natural justice and fair play. Hence in the
light of foregoing the Special Leave Petition is misconceived
and not maintainable

ii. Question of Law

That in response to question of laws sought to be raised by
the petitioner it is submitted that that the questions of Law (a)
to (e) do not subsist having regard to law laid down by this
Hon’ble Court in the matter of Ramesh Kumar vs. Union of
India (2015) 14 SCC 335 and following the principal that the
normal rule "No work-No pay" has total application in the
instant matter. It is submitted that the petitioner was granted
promotion as Sr. Shroff from backdate i.e., 03.06.1996 and is
entitled to pay only from the date of discharge of duties as Sr.
Shroff (O.O. No. 27/2002 dated 02.09.2002). The petitioner,
was however granted 1/4th amount as arrears. Thus, on the
earlier direction of the Hon’ble High Court has approved this
 action as just, proper valid and as such the same warrants no
interference by this Hon’ble Court.

iii. That in response to Para 3 of the Special Leave Petition it is

submitted that the same is matter of record and needs no
specific answer from the answering respondent.

iv. That in response to Para 4 of the Special Leave Petition it is

submitted that the same is matter of record and needs no
specific answer from the answering respondent.

v. That in response to various grounds as has been raised by the

petitioner in support of his Special Leave Petition it is
submitted that the same denied as being of directly in conflict
with the law as laid down by this Hon’ble Court. It is further
submitted that all the grounds (a) to (g) sought to be raised by
the petitioner were adequately dealt in by the Hon'ble High
Court and considered as reflected from Order dated
05.10.2017 in W.P No. 8801 of 2003 wherein it was
categorically held that the principle of "No work- No pay" is
applicable having regard to the settled law by this Hon'ble
Court in Ramesh Kumar vs. Union of India (2015) 14 SCC 335.
The Hon'ble High Court has duly considered the submissions
of the respondents to the effect that there will be no recovery
of the 1/4th amount paid as arrears notwithstanding the fact
that the rule of "No work – No pay” has application. Thus, the
claim of the petitioner for the balance arrears is unjust and
improper and not in accordance with law.

vi. That in response to para 6 it is submitted that in view of the

foregoing no specific reply is required from the answering
respondent.
 vii. That the contents of Para 7A are denied. It is submitted that
the petitioner is not entitled for the grant of Special Leave as
prayed for before this Hon'ble Court It is therefore, most
respectfully prayed that the same may be dismissed with cost.
The grounds and questions of law raised in the Special Leave
Petition have already been answered by this Hon'ble Court in
the earlier, judicial pronouncements. It is therefore submitted
thus not deserve any relief as prayed for.

That in the light of the submissions made herein above, it is

humbly prayed before this Hon’ble Court to:-
(i) Dismiss the SLP with order to pay heavy cost.
(ii) Pass any further orders as this Hon’ble Court may deem fit
and proper in the facts and circumstances of the case.

5. That no facts which were not pleaded before the court below have
been pleaded in this affidavit.

DEPONENT

Verification

I _____________________, the above named deponent do hereby

verify that the contents of the foregoing affidavit are true to the best of
my knowledge based on records and no part of it is false and nothing
material has been concealed therefrom.

Verified at New Delhi, on ___ day of ____________ 2018.

DEPONENT