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Madhya Pradesh High Court · body

2008 DIGILAW 1136 (MP)

R B GUHE v. STATE OF MADHYA PRADESH

2008-09-11

R.K.GUPTA, R.S.GARG

body2008
Judgment ( 1. ) THE appellant being aggrieved by the order dated 10-7-2008 passed by learned Single Judge of this Court in Writ Petition No. 23519/2003 has filed this writ appeal submitting inter alia that the learned Single Judge was unjustified in observing that the appellant would not be entitled to the back wages on application of the principle of no Work No Pay. ( 2. ) THE short facts, necessary for disposal of the present writ application, are that the appellant who was working as Senior Cooperative inspector made a representation in the year 1966 and thereafter reminded the government that he was entitled to certain benefits. However, nothing was done in his favour, therefore, he filed Original Application No. 1066/1996 before the State Administrative Tribunal. After abolition of the State administrative Tribunal the matter came to this Court and was registered as writ Petition No. 23519/2003. ( 3. ) AFTER hearing learned Counsel for the parties, the learned Single judge relying upon Fundamental Rule 31-A and the Government Order no. FA-1-1-73-R-1-IV, dated 25-4-1974 that if a person was assigned wrong seniority and was later on assigned correct seniority, on promotion would not be entitled to the financial benefits on the principle of no Work No Pay, dismissed the writ petition. ( 4. ) SHRI Saxena, learned Counsel for the appellant after taking us through Fundamental Rule 31-A and the Government order dated 25-4-1974 submitted that the Government order dated 25-4-1974 runs contrary to fundamental Rule 31-A and present is not a case where the petitioner ever refused to work on the higher post. According to Shri Saxena, if the petitioner was ready and willing to work and there were lapses on the part of the State government in not promoting the petitioner or not assigning the work of a promotional post then no premium can be added to the lapse on the part of the state. ( 5. ) SHRI Rahul Jain, learned Counsel for the State, on the other hand, submitted that a juxtapose reading of Fundamental Rule 31-A with government order dated 25-4-1974 would clearly show that where the promotion of a Government servant is delayed due to wrong assignment of the position in the gradation list then on correction of the gradation list and promotion with retrospective effect the Government employee would not be entitled to the difference of the salary and other benefits. According to him, the learned Single Judge was absolutely justified in dismissing the writ petition. ( 6. ) IT is not in dispute before us that the petitioner was given promotion on the post of Assistant Registrar vide order dated 6-5-1999 and was granted his due seniority vis-a-vis Shri M. L. Upadhyay. From this fact it would clearly appear that the Government was of the opinion that the petitioner was entitled to his promotion and he was wrongfully not given the promotion. According to the order dated 6-5-1999 the promotion was to be made effective from 30th april, 1994. ( 7. ) IT is not the case of the Government that the petitioner denied the responsibilities of the higher post or was not ready and willing to work as the assistant Registrar. In our considered opinion, the principles of no Work No pay shall apply to a case where a person voluntarily refuses to work or for some special reasons the work could not be assigned to him. In the present case, undisputedly because of the wrong assignment of the seniority in the gradation list the appellant was denied promotion and the charge of the superior post. ( 8. ) THE question still would be that in view of Government order dated 25-4-1974 the petitioner would be entitled to the benefits of the higher pay with effect from 30th April, 1994 or he only has to receive the benefits with effect from 6-5-1999. Fundamental Rule 31-A provides: "f. R. 31-A. Notwithstanding the provisions contained in these rules, the pay of a Govt, servant whose promotion or appointment to a post is found to be or to have been erroneous, shall be regulated in accordance with any general or special orders issued by the State govt, in this behalf. " Paragraph 5 of the Circular dated 25-4-1974 reads as under: "5. In the case of those Government servants whose promotion were/are delayed due to wrong assignment of position in the gradation list which after due consideration is revised and proper place is assigned in the gradation list, he should be deemed to have been promoted to the higher post with effect from the date his junior was promoted and from the date of actual promotion he be allowed the same pay which he would have got but for wrong place in the gradation list. However, in such cases the persons concerned will not be entitled to pay arrears of pay any allowance during the period for which they did not perform the duties of the higher post on the basis of principle of no Work No Pay. " ( 9. ) A perusal of Fundamental Rule 31-A provides that the pay of a government servant whose promotion or appointment to a post is found to be or to have been erroneous, shall be regulated in accordance with any general or special orders issued by the State Govt, in this behalf. Fundamental Rule 31-A covers the contingency where on a scrutiny it is found by State Government that government servant was not entitled to promotion or appointment to a post and despite that he was promoted or appointed and was paid the higher amount of salary then the Government may regulate the pay of such Government servant by issuing general or special orders. ( 10. ) THE Paragraph 5 of the Government Circular dated 25-4-1974 does not take into consideration the contingency as provided in Fundamental Rule 31-A rather running contrary to Fundamental Rule 31-A it provides that where promotion of a Government servant is delayed due to assignment of wrong position in the gradation list which after due consideration is revised and proper place is assigned in the gradation list, he should be deemed to have been promoted to the higher post with effect from the date his junior was promoted. Upto this point, Paragraph 5 of the Government order dated 25-4-1974 runs in accordance with law but when it starts saying that such person would be entitled to the higher salary with effect from the date of the order of promotion and such person would not be entitled to pay arrears of pay and allowances during the period for which they did not perform the duties of the higher post on the basis of principle of no Work No Pay, it starts running contrary to F. R. 31 - A. ( 11. ) THE Paragraph 5 of this Government order appears to be an inroad into the rights of such persons who were firstly denied the promotion right in time because of the wrong placement in the seniority list and are also being denied the pay and other allowances though the lapses are on the part of the government. ) THE Paragraph 5 of this Government order appears to be an inroad into the rights of such persons who were firstly denied the promotion right in time because of the wrong placement in the seniority list and are also being denied the pay and other allowances though the lapses are on the part of the government. If such a person was promoted right in time then he would have been entitled to every monetary benefit from the date he was promoted. The paragraph 5 of the Government order runs contrary in its parts, on one side it says that the employee would be entitled to the promotion from the date his junior was promoted but at the same time it denies him the benefit of the higher post. In our opinion that part of the Paragraph 5 of the Government order dated 25-4-1974 runs contrary to Fundamental Rule 31-A and cannot be approved. ( 12. ) THE principles of no Work No Pay shall not apply to a case where the lapses are on the part of the Government in not promoting a particular person. A proper and correct seniority list is to be maintained by the government and if a particular person is not assigned correct position in the seniority list then again the lapses would be on the part of the State government. The learned Single Judge was unjustified in holding that a juxtapose reading of Fundamental Rule 31-A and Paragraph 5 of the government order dated 25-4-1974 can be treated to be a statutory rule. ( 13. ) THE statutory rule is Fundamental Rule 31-A while the circular / order is issued by the Government under the authority flowing in their favour from Rule 31-A. If a wrong order/circular is issued misinterpreting the fundamental Rule then such wrong order would not partake the character of the Fundamental Rule. In our opinion, the appellant would be entitled to the monetary benefit with effect from 30th April, 1994. ( 14. ) IT will also be necessary to observe that there would be a vast distinction between an erroneous promotion as referred to in Fundamental rule 31-A and case of non-promotion as referred to in Paragraph 5 of the government order dated 25-4-1974. ( 14. ) IT will also be necessary to observe that there would be a vast distinction between an erroneous promotion as referred to in Fundamental rule 31-A and case of non-promotion as referred to in Paragraph 5 of the government order dated 25-4-1974. If the benefits are flowing from erroneous promotion then the Government certainly would be entitled to recover the money which has been wrongly paid to its employees but Government, in case of non-promotion which is found to be bad in the eyes of law cannot refuse to pay the rightful dues to its own employee. If Paragraph 5 of Government order dated 25-4-1974 is allowed to be read in favour of the Government then it will lead to an impossible situation because the Government in such case would become arbitrator in its own case and would arbitrarily deny the benefits to the persons who are rightfully entitled to the claim. Hypothetically, we take a case, a person who because of wrong placement in the seniority list is denied his promotion, comes to the Court and the Court finds that he was wrongly denied the promotion, can in such a case Court refuse to extend the benefits. The answer certainly would be no. ( 15. ) THE appeal to the extent indicated above deserves to and is accordingly allowed. The respondents are hereby directed to calculate all the monetary dues and pay the same to the appellant within a period of four months from the date of submission of the copy of this order. There shall be no order as to costs.