Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 305 (MP)

PUSHPA USGAONKAR v. STATE OF MP.

2010-03-15

S.C.SHARMA

body2010
Judgment S.C. Sharma, J. ( 1. ) The petitioner before this Court has filed this present petition claiming promotion to the next higher post of Principal. The contention of the petitioner is that she was appointed to the post Upper Division Teacher on 20th December, 1967 and was later on promoted to the post of Lecturer on 22.11.1975 in the pay scale of 350-600. The petitioner has further stated that no adverse A.C.R., at any point of time, was received by her and in the year 2005 cases for grant of promotion were considered by respondents and by an order dated 09.05.2005, respondent no.4, who is admittedly junior to the petitioner was promoted to the next higher post of Principal. The petitioner has categorically stated that respondent no.4 has initially joined as Upper Division Teacher on 16.1.1968 and as the petitioner started her service career on 25th December, 1967, she is admittedly senior to respondent no.4. The petitioner has immediately preferred this writ petition challenging her supersession on 27.06.2005. ( 2. ) Notices were issued by this Court on 6.7.2005 and time was granted to respondents/State on 30.10.2006, 20.8.2007, 14.11.2007, 28.11.2008. This Court, as no reply was being filed in the matter, has even directed personal appearance of the District Education Officer on 28.11.2008. On 6.1.2009, the District Education Officer has informed this Court that the matter regarding promotion of the petitioner is under process and again time was granted. Case was thereafter listed on 24.2.2009, 26.2.2009, 22.4.2009, 18.6.2009, 20.7.2009, 16.9.2009, 23.10.2009,4.12.2009, 16.12.2009 and 25.1.2010. In spite of repeated opportunities, no reply was filed by the respondents except by stating that the matter is under process and this Court vide order dated 8.3.2010 directed personal appearance of the Commissioner, Bhopal. The respondents have, now, filed a reply on 13.3.2010 and in the reply, the respondents have stated that they have granted promotion to the petitioner with retrospective effect from 9.5.2005. ( 3. ) Learned counsel appearing on the behalf of the petitioner has vehemently argued before this Court that the respondents have deliberately delayed the the matter relating to the promotion of the petitioner and the petitioner has also attained the age of superannuation during the pendency of the present writ petition. ( 3. ) Learned counsel appearing on the behalf of the petitioner has vehemently argued before this Court that the respondents have deliberately delayed the the matter relating to the promotion of the petitioner and the petitioner has also attained the age of superannuation during the pendency of the present writ petition. He has vehemently argued before this Court that the petitioner was not promoted on account of the fault on the part of the respondents, and therefore, she is entitled for back wages as well as all other consequential benefits. ( 4. ) Learned Deputy Advocate General appearing on behalf of the respondents argued before this Court that the petitioner is not entitled for back wages as she has not worked on the higher post of Principal. ( 5. ) Heard the learned counsel for the parties at length and perused the record. ( 6. ) In the present case, the petitioner was superseded on 09.05.2005 and the petitioner has filed this present petition on 27.06.2005. The respondents/State though has held a review D.P.C. in the matter and has granted promotion to the petitioner to the post of Principal with effect from 09.05.2005, however have passed an order of promotion dated 03.02.2010 after a lapse of time of five years. The respondents/State took almost five years to hold the review D.P.C. and an order of promotion of the petitioner has been passed only when this Court has directed personal appearance of Commissioner, Public Instructions. So far as the order of promotion dated 03.02.2010 is concerned, as the petitioner has been promoted with retrospective effect i.e. with effect from 9.5.2005, it does not warrant any interference as the petitioner has been promoted with retrospective effect. However, on the question of back wages, matter deserves consideration. ( 7. ) A Division Bench of this Court in the case of R.B. Gube Vs. State of Madhya Pradesh, 2008(S) M.P.H.T.291 in paragraphs 10, 11, 12, 13,14 has held as under :- "10. However, on the question of back wages, matter deserves consideration. ( 7. ) A Division Bench of this Court in the case of R.B. Gube Vs. State of Madhya Pradesh, 2008(S) M.P.H.T.291 in paragraphs 10, 11, 12, 13,14 has held as under :- "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. 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 Rul3 31 -A and cannot be approved. 12. In our opinion that part of the Paragraph 5 of the Government order dated 25-4- 1974 runs contrary to Fundamental Rul3 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 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. 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. 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." ( 8. ) A Division Bench of this Court in the case of Anand Mohan Saxena Vs. State of Madhya Pradesh (2010 (I) M.P.H.T.81) in paragraphs 3,4,6,7,8,9,10,11, 12 has held as under:- "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 back wages. 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. Vs. K.V. Jankiraman, etc., AIR 1991 SC 2010 , in which the Apex Court has held that if an employee is wiling 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 principle 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 this argument, Shri Vivek Khedkar, learned Govt. Advocate appearing on behalf of respondent-State relied on a judgment of the Apex Court in the case of State of Haryana and others Vs. O.P. Gupta, etc., AIR1996 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 the reason, the back wages were denied. 6. Similar situation is in the case of Union of India and others Vs. Jaipal Singh, (2004) 1 SCC 121 . 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 the reason, the back wages were denied. 6. Similar situation is in the case of Union of India and others Vs. 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 Vs. Union of India and others, (2005) 8 SCC 747 . From the perusal 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 Sections 34 and 452 of IPC. 8. In the case of Commissioner, Karnataka Housing Board Vs. 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 Vs. Brijmohan Kaur, (2007) SCC 488. 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 of 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 judgments 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. ( 11. ) Apart from that in the instant 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." 9. In the present case, the petitioner was denied promotion in the year 2005 for no fault of her part and it is not the case of the respondent that, at any point of time, the petitioner has stated that she is not willing to work on the promotional post. In fact, the petitioner right from the year 2005, has made all the sincere efforts before the respondents claiming promotion to the next higher post as she was illegally superseded and was not at all considered for promotion. 10. Resultantly, the writ petition filed by the petitioner is allowed. This Court is of the considered opinion that the petitioner is entitled for back wages in the matter. The respondents are directed to grant all monitory benefits to the petitioner including back wages. As the petitioner has attained the age of superauunation, she shall also be entitled for enhanced pension and arrears on account of her promotion to the post of Principal. The aforesaid exercise for grant of all monitory benefits and arrears of pension to the petitioner shall be completed within a period of three months from the date of receipt of a certified" copy of this order. The respondents/State, however, is free to recover the said amount of arrears from the erring Officers are responsible for non grant of promotion to the petitioner without any reason, after conducting a proper inquiry into the matter. 9. With the aforesaid directions, this writ petition stands allowed and disposed of. Petition allowed.