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Madhya Pradesh High Court · body

2011 DIGILAW 505 (MP)

Lakshaman Singh v. State of M. P.

2011-04-27

S.C.SHARMA

body2011
ORDER 1. Mr. R.S. Trivedi, learned counsel for the petitioner. Ms. Seema Sharma, learned Deputy Government Advocate for the respondent. Petitioner before this Court has filed this present petition being aggrieved by order dated 11.7.2006 as well as order dated 31.10.2009 passed by respondents, by which the petitioner has not been granted arrears of salary, on account of his retrospective promotion with effect from 1991. 2. Contention of the petitioner is that he was appointed as Constable and was placed in the fit list of promotion to the post of Head Constable in the year 1990 and order was issued on 1.6.1991 promoting the petitioner to the post of Head Constable. Promotion order was cancelled on 6.6.1991, without granting any opportunity of hearing to the petitioner and the petitioner being aggrieved by his reversion to the post of Constable came up before this Court by filing a writ petition and the same was registered as WP No.3877/20003. The aforesaid writ petition was allowed by order dated 16.12.2004. The impugned order therein of reversion was quashed and the respondent No.3 was directed to pass a fresh order after granting an opportunity of hearing to the petitioner. Following order was passed by this Court : "that impugned order Annexure C dated 6.6.1991 is hereby quashed, but it does not mean that the petitioner will be treated as Head Constable. Petitioner will remain as Constable, however, the respondents may issue a show cause notice to the petitioner mentioning the reasons why he is not entitled for promotion and promotion order is required to be cancelled. Thereafter, the petitioner will submit a reply mentioning in details and he may take all the grounds which are required, as per law. If petitioner wants personal hearing that may also be given to the petitioner. After considering the reply, the respondents may pass a fresh order with regard to cancellation of promotion order of the petitioner. The said exercise be completed within a period of four months from the date of receipt of the order. Petition is disposed of accordingly. C.c. as per rules." 3. Respondents in compliance of the aforesaid order issued a show cause notice on 23.3.2005 to the petitioner and the petitioner did submit a reply to the show cause notice and thereafter an order was passed on 27.5.2005. Petition is disposed of accordingly. C.c. as per rules." 3. Respondents in compliance of the aforesaid order issued a show cause notice on 23.3.2005 to the petitioner and the petitioner did submit a reply to the show cause notice and thereafter an order was passed on 27.5.2005. By the aforesaid order, the petitioner was again included in the fit list of 1990, however, was granted promotion from the date of joining on the post of Head Constable. The petitioner thereafter again represented in the matter and another order was issued on 11.7.2006 granting a promotion to the petitioner notionally to the post of Head Constable with effect from 6.6.1991 and back 'wages were not granted to the petitioner by applying the principles of 'no work no pay'. Petitioner again came up before this Court by filing writ petition and same was registered WP No.5587/2007. The aforesaid writ petition was withdrawn with a liberty to prefer an appeal before the competent authority. The appellate authority has now finally passed an order dated 31.10.2009 and the petitioner has been granted notional seniority from 1991, however has not been granted backwages. 4. Learned counsel for the petitioner has drawn the attention of this is Court towards judgment delivered by Division Bench of this Court in the case of Anand Mohan Saxena v. State of M.P. , reported in 2009(III) MPWN 87 =2010(1) MPHT 81 (DB), and also in the case of Chandrashekhar Verma v. State of M.P. and another, reported in 2010(III) MPWN 66 , and his contention is that he was not at fault at any point of time and because of lapse committed by the respondents he cannot be denied backwages/ difference of salary. 5. Reply has been filed in the matter and the stand of the respondents is that the petitioner as he has not worked on the post of Head Constable is not entitled for any salary on the principle of 'no work no pay' and writ petition deserves to be dismissed. 6. Heard learned counsel for the parties and perused the record. The matter is being disposed of at motion hearing stage itself with the consent of the parties. 7. In the present case, it is an admitted fact that the petitioner was placed in the fit list of the year 1990 and was promoted as Head Constable on 1.6.1991. 6. Heard learned counsel for the parties and perused the record. The matter is being disposed of at motion hearing stage itself with the consent of the parties. 7. In the present case, it is an admitted fact that the petitioner was placed in the fit list of the year 1990 and was promoted as Head Constable on 1.6.1991. He was reverted by order dated 6.6.1991 and thereafter the recovery order was quashed by this Court vide order dated 16.12.2001 passed in WP No.387712003. Respondents in compliance to the order passed by this Court have reviewed the matter and arrived at the conclusion that the petitioner was entitled for promotion on the basis of the fit list dated 25.4.1990. Thus, it is evident that mistake if any is in the present case on the part of the employer. The respondents have intentionally passed an order on 16.7.2005 granting promotion to the petitioner from the date of joining and thereafter they have granted notional promotion to the petitioner with retrospective effect, i.e. with effect from 1.6.1991 and have finally passed an order on 11.7.2006 granting notional promotion to the petitioner with effect from 6.9.1991. However, he has not been granted backwages, by applying principle of 'no work no pay'. 8. This Court has carefully gone through the order passed by Division Bench in the case of Anand Mohan Saxena (supra), and paragraphs 4 to 12 reads as under : "4. In reply to this argument, Shri Vivek Khedkar, learned Government Advocate appearing on behalf of respondent 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 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 backwages were denied. 5. The next judgment is in the case of Ranchhodji Chaturji Thakore v. Superintending Engineer, Gujarat Electricity Board, Himmantnagar (Gujarat) and another [ (1996)11 SCC 603 ]. 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 backwages were denied. 5. The next judgment is in the case of Ranchhodji Chaturji Thakore v. Superintending Engineer, Gujarat Electricity Board, Himmantnagar (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 read with 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 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 v. C. Muddaiah [ (2007)7 SCC 689 ], the two Judge Bench of the apex Court has denied the backwages 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 of the principle of 'no work no pay'. This judgment was also delivered by two Judge Bench of the apex Court. 10. 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 respondent 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 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 four 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. The Division Bench of this Court in the aforesaid case has granted full backwages to the petitioner therein. The apex Court in the case of Union of India v. D.M. Jha [ (2007)11 SCC 632 ], has held that grant of full backwages cannot be claimed as a matter of right and claim in respect of backwages can be denied by applying the principle of 'no work no pay'. Apex Court in the case of State of Kerala and others v. E.K. Bhaskaran Pillai, reported in (2007)6 SCC 524 , in paragraph 5 held as under: "However, so far as present case is concerned, as per directions given by the Court, the petitioner's case was considered and it was found that persons junior to him were appointed and he was wrongly denied. Therefore, the petitioner was promoted from retrospective effect i.e. 15.9.1961, but he was not paid the benefit of promotion in terms of arrears of salary. Therefore, he approached the Court and learned Single Judge did not gave him the monetary benefit of the promotional post from retrospective effect in terms of arrears of salary. In the review application, the benefit was given from the date he filed O.P. No.585 of 1975 i.e. 15.6.1972. Therefore, he approached the Court and learned Single Judge did not gave him the monetary benefit of the promotional post from retrospective effect in terms of arrears of salary. In the review application, the benefit was given from the date he filed O.P. No.585 of 1975 i.e. 15.6.1972. This appears to be reasonable. The petitioner did not approach the Court for the backwages from 15.9.1961, but he filed a petition dated 15.6.1972 and the Court granted the benefit from the date of filing of the petition before the Court i.e. 15.6.1972. The incumbent in the meanwhile has retired on 31.7.1980. Therefore, looking to the facts and circumstances of the case, the view taken by the High Court appears to be justified and there is no ground to interfere in it." 10. The apex Court in the aforesaid case has held that the principle of 'no work no pay' cannot be accepted as rule of thumb and full back wages can be granted in certain circumstances, particularly when promotion is wrongly denied. 11. In the present case, the petitioner was entitled for promotion with effect from 1991 and he was promoted also to the post of Head Constable. His promotion order was wrongly cancelled and after the matter was remanded back to the authorities, the authorities have rectified their mistake and petitioner has been promoted with retrospective effect and therefore this Court is of the considered opinion that the petitioner is entitled for back wages (difference of salary). 12. Resultantly, in the present case, as the petitioner was denied promotion with effect from 6.9.1991 on account of mistake committed by the employer and has been promoted later on by passing order dated 11.7.2006, with retrospective effect i.e. with effect from 1.6.1991, this Court is of the considered opinion that the petitioner is entitled for full back wages to the post of Head Constable. 13. The writ petition is allowed. The respondents are directed to calculate the back wages and by deducting the amount already paid to the petitioner are further directed to pay arrears of salary (difference of salary) by treating him as Head Constable with effect from 6.9.1991. The aforesaid exercise be concluded within a period of ninety days from the date of receipt of certified copy. With the aforesaid, writ petition stands allowed.