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Madhya Pradesh High Court · body

2005 DIGILAW 1180 (MP)

Nyaz Mohammed v. State of M. P.

2005-11-22

S.K.GANGELE

body2005
ORDER 1. This petition was initially filed before the State Administrative Tribunal, after abolition of the SAT this application has been transferred to this Court and renumbered. 2. The petitioner has filed this petition with regard to his promotion on the post of Assistant Sub- Inspector of Police. During the pendency of the petition vide order 2.1.2001 the petitioner has been promoted on the aforesaid post giving him seniority for the aforesaid post with effect from 24.10.1995. However, he has not been paid the salary for the post of AST of Police on the principle of no work no pay with effect from 24.10.1995. Therefore, the petitioner amended the petition seeking the relief with regard to grant of salary for the post of ASI of Police with effect from 24.10.1995. The Tribunal allowed the aforesaid application for amendment and consequently the petitioner has amended the petition and the learned counsel for the petitioner has pressed the aforesaid relief during the course of argument on the ground that the petitioner is entitled for the salary of the post of ASI because there was no reason to deny promotion to the petitioner, hence the principle of no work no pay is not applicable. 3. Contrary to this learned counsel for the State respondents submitted that initially the petitioner was not entitled for promotion, hence the principle of no work no pay has rightly been applied in the present case. 4. To resolve the aforesaid controversy some relevant necessary facts are as under. The petitioner was appointed as a police constable. He was promoted on the post of Head Constable on 30.4.1988. In December, 1993 he appeared in the Departmental Examination for the purpose of promotion on the post of Assistant Sub-Inspector and he passed the aforesaid examination. The result of the examination was declared on 17.11.1995, name of the petitioner was at Serial No. 36. He also completed prepromotion course at P.T.S. Tigra and copy of the letter dated 31.8.1995 to this effect has been filed as Annexure P/2. However, in the year of 199596 the juniors of the petitioner have been promoted and the petitioner was not promoted. 5. He also completed prepromotion course at P.T.S. Tigra and copy of the letter dated 31.8.1995 to this effect has been filed as Annexure P/2. However, in the year of 199596 the juniors of the petitioner have been promoted and the petitioner was not promoted. 5. The respondents in the return submitted that for the purpose of promotion on the post of Assistant Sub-Inspector as per the criteria prepromotion course is necessary and because the petitioner did not complete the pre-promotion course, hence his name was not included in the fit list for consideration when the DPC considered the names for promotion on 30.7.1995. The petitioner was sent for pre-promotion course from 8.8.1995 to 30.8.1995 and the result of the aforesaid course was declared on 17.11.1995, hence his name could not be considered in the year of 1995-96. Except this no reason has been assigned. The petitioner also filed a copy of the letter written by the Additional Director General of Police to the Director General of Police dated 21.4.1998 mentioning the fact that the petitioner has passed the pre-promotion examination and his case be considered for promotion. 6. From the above facts it is clear that when the first DPC considered the name of the persons for promotion for the post of ASI on 30.7.1995, petitioner did not pass the pre-promotion course and he passed the aforesaid course on 17.11.1995. The Additional Director General of Police himself wrote a letter to the Director General of Police on 21.4.1998 requesting to grant promotion to the petitioner and consider his case for promotion because the petitioner had all the qualifications and thereafter the petitioner was promoted vide order dated 15.1.2001 and he was posted as Assistant Sub-Inspector of Police. From the undisputed fact it is clear that the petitioner was fit for consideration for promotion after 17.11.1995 when his result for pre-promotion course was declared, hence there was no reason for non-consideration of promotion to the petitioner in the year of 1996 because his juniors were promoted in the year of 1995 and as per the return of the respondents in the DPC meeting held on 30.7.1995 his name was not considered because he did not pass the pre-promotion course and subsequently the Additional Director General of Police vide letter dated 21.4.1998 recommended the case of the petitioner for consideration of his name for promotion. Inspite of this, promotion order of the petitioner was passed in the year of 2001 giving seniority to the petitioner on the post of ASI with effect from 24.10.1995 and denial of salary for the post of ASI on the principle of no work no pay. 7. Hon'ble the Supreme Court in the case of Union of India v. K.B. reported in AIR 1991 SC 2010 has held as under with regard to principle of no work no pay: "When an employee is completely exonerated in criminal/disciplinary proceedings and is not visited with the penalty even of course indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post. The normal rule of 'no work no pay' is not applicable to such cases where the employee although he is willing to work is kept away fro work by the authorities for no fault of his. This is not a case where the employee remains away from work for his reasons, although the work is offered to him. It is for this reason that FR 17 (1) will also b inapplicable to such case." Further, the Hon'ble Supreme Court in Union of India v. Madhu Suduan Prasad reported in (2004) I SCC 430 held as under with regard to principle of no work no pay: "It is true that a reinstatement is ordered in appeal or review, the authorities can pass specific order regarding the pay and allowances to be paid to the government servant for the period of his absence from duty preceding the dismissal, removal or compulsory retirement, as the case may be. This is an enabling provision and the authorities can consider the relevant facts as to whether the employee should be denied the salary for the period he was kept under suspension preceding the removal, dismissal or compulsory retirement. This is an enabling provision and the authorities can consider the relevant facts as to whether the employee should be denied the salary for the period he was kept under suspension preceding the removal, dismissal or compulsory retirement. The counsel for the appellant has placed reliance on the decision of the Constitution Bench of this Court in Managing Director, ECIL v. B. Karunakar [( 1993) 4 SCC 727] where this Court held that the question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement, if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceeding and depending on the final outcome. If the employee succeeds in the fresh enquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any, and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the enquiry for failure to furnish his report, should be treated as a reinstatement of the purpose of holding the fresh enquiry from the stage of furnishing the report and no more, where such fresh enquiry is held. The above case was concerning an employee, who was found guilty in an enquiry but the report was not furnished to the employee and the show cause notice was not served on him. In view of the facts and circumstances of the case the Court directed that appropriate order should be passed regarding the back wages. In the instant case, the appellate authority directed reinstatement of the respondent and held he was not entitled to get back wages for the period he was out of service. It may be noticed that the respondent was removed from service without any enquiry and he was not even given a show cause notice prior to his dismissal from service. There was fault on the part of the employer in not following the principle of natural justice. These relevant facts were considered and the learned Single Judge and also the Division Bench ordered the payment of back wages. There was fault on the part of the employer in not following the principle of natural justice. These relevant facts were considered and the learned Single Judge and also the Division Bench ordered the payment of back wages. We do not think this is a fit case where Fundamental Rule 54 could have not invoked by the authorities. We find no merit in the appeal. The appeal is accordingly dismissed." B. From the above principle of law enuntiated by the Hon'ble Supreme Court, it is clear that the principle of no work no pay will not be applicable in the case where employee has been denied and restrained to work on the post for which he is entitled without any reason. In the case of the petitioner it can safely be held that the petitioner was denied the promotion from the year of 1996 because he completed the pre-promotion course on 17.11.1995 and vide letter dated 21.4.1998, Additional Director General of Police (Adm) requested the Director General of Police to consider the case of the petitioner for promotion, hence there was no reason to keep the promotion case of the petitioner pending up to 2001 and he has ultimately been promoted as ASI and has been given the seniority with effect from 24.10.1995. On the basis of above principle of law enunciated by the Hon'ble Supreme Court and in the facts and circumstances of the present case, it would be just and proper that the petitioner be given difference of salary of the post of ASI from 1st January, 1998 up to the actual date of his promotion, i.e., 5.1.2001. Consequently, petition of the petitioner is partly allowed. The respondents are directed to pay difference of salary to the petitioner for the post of ASI from 1st January 1998 upto 5.1.2001 within a period of four months from the date of receipt of copy of this order. No order as to cost.