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2009 DIGILAW 992 (MP)

Anand Mohan Saxena v. State of M. P.

2009-08-18

A.P.SHRIVASTAVA, SUBHASH SAMVATSAR

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JUDGMENT Samvatsar, J. --1. This writ appeal is preferred by the appellant, assailing an order dated 12/312008, passed by the learned Single Judge of this Court in W.P. No. 3694/05(s), whereby the Writ Court has dismissed the Writ petition filed by the Writ petitioner for back wages on the principle of "No work, No pay" . 2. Brief facts of the case are that petitioner Anand Mohan Saxena (appellant herein) was initially appointed on the post of Lower Division Clerk on 28/4/1973 and was promoted to the post of Accounts Assistant by order dated 23/1212002 w.e.f. 6/9/1999. But he was denied all the monetary benefits on the principle of "No work, No pay". The petitioner approached this Court stating that his juniors were promoted to the post of Accounts Assistant on 6/9/1999; and without any reason he was denied the promotion upto 23/1212002, hence, he should be allowed the back wages. The learned writ· Court dismissed the petition. Hence, this appeal. 3. The contention of the learned counsel for the appellant is that the appellant has actually worked in the Department but could not be given promotion without any fault on his part, hence, he should be allowed the backwages. In support of his argument, Shri O.P. Saxena, learned counsel for the appellant relied on a judgment of Apex Court in the case of Union of India, etc. v. K. V. Jankiraman, etc, AIR 1991 SC 2010 , in which the Apex Court has held that if an employee is willing to work on a particular post, is deprived of the same due to illegal order passed by the employer and the employee could not discharge his work due to erroneous order passed by the employer, then the employee is entitled to consequential including the monetary benefits and the normal principal of "no work-no pay" is not applicable in such case. This judgment is passed by three-Judge Bench of the Apex Court. 4. In reply to his argument, Shri Vivek Khedkar, learned Govt. This judgment is passed by three-Judge Bench of the Apex Court. 4. In reply to his argument, Shri Vivek Khedkar, learned Govt. Advocate appearing on behalf of respondents-State relied on a judgment of the Apex Court in the case of State of Haryana and others v. O.P.Gupta, etc., AIR 1996 SC 2936 which is a judgment delivered by two-Judge Bench of the Apex Court in which the Apex Court has distinguished the case of K. V.Jankiraman (Supra) on the ground that in the case of O.P. Gupta (Supra) the seniority list itself was not finalized due to which the employees could not be promoted. In such circumstances, the Apex Court has held that in absence of seniority list there was no certainty about the promotion of the employees and, therefore, for this reason, the back wages were denied. 5. The next judgment is in the case of Ranchhodji Chaturji Thakore v.Superintendent Engineer; Gujarat Electricity Board, Himmatnagar (Gujarat) and Another (1996) 11 SCC 603 . In that case, the Apex Court has also denied the promotion. In that case, the promotion of the petitioner was delayed as he was convicted for commission of offence under Section 302, r/w Section 34 of IPC and his conviction was subsequently set aside. As the petitioner's promotion was delayed due to his conviction, the Apex Court denied the promotion to the petitioner. 6. Similar situation is in the case of Union of India and Others v. Jaipal Singh (2004) 1 SCC 121 . In that case also the promotion was delayed due to conviction of the employee by the Criminal Court. Thus, for this reason, there was delay in making the promotion. 7. Another judgment is in the case of Baldev Singh v. Union of India and Others, (2005) 8 SCC 747 . From the persual of the said judgment, the same position is also arising. In that case also the employee was convicted for commission of offence under Section 302 read with Section 34 and 452 of IPC. 8. In the case of Commissioner; Kamataka Housing Board v. C.Muddaiah, (2007) 7 SCC 689 , the two-Judge Bench of the Apex Court has denied the back wages on the ground that same is against the public interest. 8. In the case of Commissioner; Kamataka Housing Board v. C.Muddaiah, (2007) 7 SCC 689 , the two-Judge Bench of the Apex Court has denied the back wages on the ground that same is against the public interest. From the perusal of the said judgment, we find that it was a case arising out of contempt of Court and not a writ petition, challenging the order whereby the juniors to the respondent-employee were promoted. 9. Another judgment is in the case of Union Territory, Chandigarh v.Brijmohan Kaur, (2007) 6 SCC 634 . From the perusal of the said judgment, it appears that in that case the respondent-employee was absent from duty and has not discharged the duties during the period for which he was claiming the arrears. Hence, he was denied monetary benefits on the principle of "no work-no pay". This judgment was also delivered by two-judge Bench of the Apex Court. 10. Thus, all the aforesaid judgment relied by Shri Vivek Khedkar, learned Government Advocate for the respondents-State, were delivered by two Judge Bench of the Apex Court while the judgment in case of K. V. Jankiraman (supra) relied by learned counsel for the appellant, was decided by three Judge Bench of the Apex Court and therefore is binding on this Court. 11. Apart from that, in the present case, the State Government could not justify or assign any reason whatsoever why the case of the present appellant was not considered in the year 1999 when the juniors to the petitioner were promoted and why his promotion was delayed by 4 years. 12. If the arrears of pay are denied to the employee by arbitrary action of the higher officers without justifying or assigning any reason whatsoever for delaying in promotion to the employee then that will amount to the arbitrariness of the officers of the State Government which is not permissible in the eyes of law. 13. In the present case, the order promoting the appellant on 23/12/20021 does not assign any reason why the appellant was not promoted in the year 1999 when his juniors were promoted. 14. Not only that despite the fact that number of opportunities were granted to the State Government to file return, the State Government has failed to file return and justify its action. 14. Not only that despite the fact that number of opportunities were granted to the State Government to file return, the State Government has failed to file return and justify its action. In these circumstances, there is no reason why the back wages should not be allowed to the present appellant. 15. Hence, we allow this appeal and set aside the impugned order. We direct the State Government to grant all monetary benefits to the appellant employee. The State Government, is, however, free to recover the said amount from the erring officers who have denied the promotion to the appellant without any reason whatsoever. The said payment should be made to the appellant within a period of four months from today. 16. With the aforesaid observation, the appeal is allowed.