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Madhya Pradesh High Court · body

2010 DIGILAW 349 (MP)

MANIRAM NAGOTIYA v. STATE OF MP.

2010-03-25

RAJENDRA MENON

body2010
Judgment Rajendra Menon, J. ( 1. ) Challenging the action of the respondents in granting retrospective promotion to the petitioner but treating certain intervening period on the principle of "No Work No Wages", petitioner had filed this writ petition in the year 2003 and even though more than seven years have passed, respondents have not filed any return. That being so, keeping in view the order passed on 10.2.2010 as return is not filed instipe of opportunity being granted, matter is being heard and decided without granting any further time to the respondents. ( 2. ) Petitioner was working as a Lecturer in the Government Higher Secondary School Barheta District-Narsinghpur at the relevant time, when this petitioner was filed in the year 2003. ( 3. ) Petitioner was promoted as a Head Master vide order dated 3.2.1999. Promotion was granted to the petitioner retrospectively with effect from 23.11.1996 but the period from 23.11.1996 to the date of promotion was treated on the basis of "No Work No Wages" and only notional pay fixation was granted to the petitioner. Inter-alia contending that when petitioner is denied promotion due to mistake and fault of the department, the principal of "No Work No Wages" cannot be followed. This writ petition has been filed and the only relief claimed is that salary for the entire period from the initial date of promotion i.e. 23.11.1996 be granted to the petitioner. ( 4. ) Shri Anand Nayak learned counsel for the petitioner, inviting my attention to the principles laid down by the Supreme Court in the case of State of Kerala and others Vs. E.K.Bhaskaran Pillai 2007(6) SCC Page 524 and certain other judgments, emphasized that when promotion is denied to a incumbent due to fault of the department, the incumbent is entitled to salary for the period, he was denied the promotion and in treating the period as "No Work No Wages" respondents, it is argued by learned counsel, have committed error. ( 5. ) Shri N.K.Tiwari learned counsel for the State refuted the aforesaid and submitted that as petitioner is only promoted w.e.f. 3.2.1999, he is only entitled to salary from the date of assuming charge on the promoted post and for the previous period as already notional pay fixation, seniority and other benefits are extended, it is argued by learned counsel that the petitioner cannot be granted any further relief. ( 6. ( 6. ) Having heard learned counsel for the parties and on a perusal of the record, it is seen that in the light of the order Annexure-P1 dated 3.2.1999 granting promotion to the petitioner, it is clearly mentioned that persons junior to the petitioner were promoted as Head Master on 23.1.1996 and because of some error, petitioner even though entitled to was deprived of this promotion. Accordingly, error was corrected and retrospectively w.e.f 23.11.1996, petitioner vide Annexure- P1 dated 3.2.1999 was granted promotion. It is, therefore, clear from this order that competent authority had admitted that petitioner is entitled to promotion w.e.f. 23.11.1996 but due to some error on the part of the respondents, juniors were promoted and petitioner was denied promotion. ( 7. ) In the case of E.K.Bhaskaran Pillai (Supra) relied upon by Shri Anand Nayak, the question has been considered in Para-4 and it has been held by the Supreme Court that when promotion is denied to a person due to no fault of his and because of some mistakes by the competent authority, benefit of salary and allowances cannot be denied. The matter has been dealt with in para-4 as under:- "So far as the situation with regard to monitory benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or. in a criminal case it depends upon the authorities to grant full back wages or 50% of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monitory benefit subject to there being any change in law or some other supervening factors. However, jt is very difficult to set down any hard-and-fast rule. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monitory benefit subject to there being any change in law or some other supervening factors. However, jt is very difficult to set down any hard-and-fast rule. The principle "No Work No Pay" cannot be accepted as a rule of thumb. There are exceptions where courts have granted monitory benefits also." (Emphasis supplied) ( 8. ) A learned single judge of this Court has also considered the question in the case of Brij Mohan Dwivedi Vs. State of Madhya Pradesh 2005(2) M.P.J.R Page 307 and after taking note of the principles laid down by the Supreme court in the case of Union of India Vs. KVJankiraman A.I.R. 1991 S.C. Page-2010, Virendra Kumar, General Manager, Northern Railways, New Delhi Vs. Avinash Chandra Chadha and others 1990 (3) SCC 472 , 1990 (3) SCC Page- 472 and again in the case of State of Haryana and others Vs. O.P.Gupta 1996 (7) SCC Page-533. The Learned Single Judge has laid down the principle in Para- 6 in the following manner.- "If the ratio of the aforesaid case is understood in proper perspective it is clear that their Lordships were of the view that the quota and rota rule only became effective from the year 1954 and hence, there was neither equity nor justice in favour of the respondents to award emoluments of the higher posts with retrospective effect. In the case of O.P Gupta (Supra) the higher pay was denied as there was cavil over the factum of seniority and notional promotion was given. In the aforesaid case the law laid down in the case of Jankiraman (Supra) was distinguished on the backdrop that the ratio has no application to the case where the claims for promotion are to be considered in accordance with the rules and the promotions are to be made in pursuant thereof. The law laid down in the case of O.P.Gupta (Supra) is distinguishable as there was certain aspects were taken note of and Rule 9 of the rules as that was a condition precedent but in the case at hand the factual scenario is differently depicted and the junior was considered and the case of the senor was deferred solely on the ground that the ACR was not available. In the counter affidavit nothing is perceivable against the petitioner that it was his fault. In view of the aforesaid the concept of "No Work and No Pay" would not be attracted . It is definite that the petitioner was deprived to work in the promotional post due to laxity on the part of the respondents and hence, no blame can be put on him. Accordingly, it is directed that the petitioner shall be paid the differential amount from the date of receipt of the order passed today. Keeping in view the financial crunch which has been assiduously put forth by the learned Government Advocate, no interest is granted." (Emphasis supplied) ( 9. ) Recently, thereafter, two Division Benches of this Court have also considered the matter in the case of R.B.Guhe Vs. State of M.P. 2008(5) M.P.H.T. Page 291 and in para 12 of the aforesaid judgment after considering the provisions of Fundamental Rule 31 A, it is held that the principles of No Work No Pay shall not apply to a case where the lapse is on the part of the Government in not promoting a particular person again another Division Bench considered this matter in the case of Anand Mohan Saxena Vs. State of M.P. and another 2009(4) M.P.L.J. Page-523 and after relying upon various judgments, it has been held that if no justifiable reason is forthcoming from the Government for denying the promotion to a person then the principle of No Work No Pay cannot be applied. ( 10. ) In the present case also the petitioner was denied the benefit of working in the promoted post due to the laxity and error on the part of the respondents. He is not to be blamed for the same and accordingly it is a case where considering the principle laid down and as discussed hereinabove, petitioner is entitled to the entire financial benefit on his promotion to the next higher post. Denial of the same due to certain error on the part of the respondents, for which petitioner cannot be blamed and punished by depriving him salary is not justified. ( 11. ) Considering the same and taking note of the totality of the circumstance and the facts that have come on record, this petition is allowed. Denial of the same due to certain error on the part of the respondents, for which petitioner cannot be blamed and punished by depriving him salary is not justified. ( 11. ) Considering the same and taking note of the totality of the circumstance and the facts that have come on record, this petition is allowed. Respondents are directed to treat the period from 23.11.1996 till assuming charge on the promoted post by the petitioner as period spent by working in the promoted post and entire salary on the promoted post be granted to the petitioner w.e.f 23.11.1996 and action of the respondents in treating the period as "No Work No Wages" is quashed. Respondents are directed to make payment of arrears of salary to the petitioner within a period of two months from the date of receipt of certified copy of this order. ( 12. ) This petition is allowed and disposed of with the aforesaid. C.C as per rules. Petition alloweaid.