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Madhya Pradesh High Court · body

2015 DIGILAW 22 (MP)

C. B. Tiwari v. State of M. P.

2015-01-06

K.K.TRIVEDI

body2015
JUDGMENT : K.K. Trivedi, J. 1. By this writ petition under Article 226 of the Constitution of India, the petitioner has called in question the validity of orders dated 14.8.1996 and 4.9.2004 (Annx.P/3 and P/6) respectively, by which though the promotion was granted to the petitioner with retrospective effect after his exoneration in the departmental enquiry from the date the juniors to him were promoted, but the monetary benefit of promotion was denied to him on the principle of no work no pay and by subsequent order, the representation submitted by the petitioner has been rejected. It is contended that the petitioner while was working on the post of Forest Ranger became due for promotion on the post of Assistant Conservator of Forest. However, since a departmental enquiry was pending against him, the recommendations made in respect of the petitioner were kept in the sealed cover. Ultimately, the said departmental enquiry was completed and the petitioner was exonerated as no misconduct was found proved against him. Similar was the situation with one Shri R.L. Medha, who too was working as Forest Ranger, but was superseded because of pending departmental enquiry. After the closure of the departmental enquiry, the recommendations made in respect of promotion of the petitioner by the Departmental Promotion Committee (hereinafter referred to as the DPC for brevity) were looked into. Since the petitioner was found fit for such promotion, the order was issued on 14.8.1996 promoting the petitioner on the post of Assistant Conservator of Forest in the junior pay scale. The seniority was conferred on the petitioner from the date juniors to him were promoted i.e. from 6.9.1995, but the monetary benefit of such promotion was denied to the petitioner on the application of principle of no work no pay. 2. The petitioner immediately represented that since he was not responsible for the departmental enquiry or delayed promotion, therefore, he should have been given the benefit of promotion with all the monetary benefits and that in terms of the circular issued by the State Government, the petitioner was entitled to grant of monetary benefit of promotion as well. Such a representation of the petitioner was said to be rejected, therefore, the writ petition was required to be filed. 3. Such a representation of the petitioner was said to be rejected, therefore, the writ petition was required to be filed. 3. Upon issuance of the notice of this writ petition, the respondents have filed their return contending inter alia that there was no question of application of Fundamental Rule 54(2)(4), as it was not a case of removal of petitioner from service and reinstatement under the orders of the Court or by the appellate authority. In fact, the charge sheet was issued to the petitioner and the departmental enquiry was pending when certain vacancies became available to consider the case of eligible persons for promotion on the post of Assistant Conservator of Forest. The petitioner was also to be considered for such promotion, but since the departmental enquiry was pending against him and during pendency of the departmental enquiry he was placed under suspension, the promotion order was not required to be issued in case of the petitioner. Since after the departmental enquiry was completed and it was found that the charges levelled against the petitioner were not proved, he was exonerated, the case of the petitioner was reviewed and by the order of the competent authority, the petitioner was promoted on the post of Assistant Conservator of Forest, which post the petitioner has joined on 22.8.1996 and, therefore, rightly he has been granted the benefit of salary from the date he joined on the promotional post. According to the respondents, no illegality is committed in the matter of grant of such benefit to the petitioner and as such, no relief as claimed in the writ petition can be granted. 4. After hearing learned counsel for the parties at length and perusing the record, the writ petition is bound to be allowed in view of the fact that principle of no work no pay would be applicable only in such cases where an employee is found guilty of any misconduct and his promotion is delayed. Otherwise, if the benefit of promotion though is granted with retrospective effect, but monetary benefit is denied, it would amount to a penalty of withholding of monetary benefit, as contemplated under Rule 10 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. Otherwise, if the benefit of promotion though is granted with retrospective effect, but monetary benefit is denied, it would amount to a penalty of withholding of monetary benefit, as contemplated under Rule 10 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. This aspect has been considered by this Court on various occasions and in number of cases, this Court has held that in view of the law laid down by the Apex Court in the case of Union of India Vs. K.V. Jankiraman (: AIR 1991 SC 2010 ), denial of such a benefit would be illegal. The law appreciated by this Court in various cases on the basis of law laid down by the Apex Court would leave no grounds to hold that the denial of such monetary benefit would be justified. 5. As has been rightly pointed out by learned counsel for the petitioner in the case of Maniram Nagotiya Vs. State of Madhya Pradesh and others (: 2011 M.P.L.S.R. 18), this Court has again looked into various aspects, the law laid down by the Apex Court and specially in the case of State of Kerala and others Vs. E.K. Bhaskaran Pillai [: (2007) 6 SCC 524 ] and has held thus : "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 monetary 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 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 monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle of "No Work No Pay" cannot be accepted as a rule of thumb. There are exceptions where Courts have granted monetary benefits also." 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) MPJR Page 307, and after taking note of the principles laid down by the Supreme Court in the case of Union of India Vs. K.V. Jankiraman, : AIR 1991 SC 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, 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 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 were 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 senior 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 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." 6. This has remained constant view of this Court as the Division Bench of this Court in the case of R.B. Guhe Vs. State of M.P. [: 2008(5) M.P.H.T. 291 ] and in the case of Anand Mohan Saxena Vs. State of M.P. and another [: 2009(4) MPLJ 523 ], has categorically 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 made applicable. Though here in the case in hand, there is no denial of promotion to the petitioner with retrospective effect, but the monetary benefit is denied and for that no justifiable reason is shown by the respondents except that a departmental enquiry was pending against the petitioner while his case was considered for promotion. Though here in the case in hand, there is no denial of promotion to the petitioner with retrospective effect, but the monetary benefit is denied and for that no justifiable reason is shown by the respondents except that a departmental enquiry was pending against the petitioner while his case was considered for promotion. Pendency of the departmental enquiry alone specially when the petitioner was exonerated in the said departmental enquiry would not be justifiable reason to withhold the monetary benefit of promotion to the petitioner, which according to respondents was granted with retrospective effect. 7. In view of the aforesaid discussions, the writ petition is allowed. The order dated 14.8.1996 to the extent it prescribes that the monetary benefit would not be available to the petitioner from the date of promotion stand quashed. The petitioner would be entitled to the salary of the promotional post from the date the said benefit was extended to his immediate junior i.e. from 6.9.1995. The order of rejection of such a claim of the petitioner dated 4.9.2004 also stand quashed. 8. By now the petitioner would have retired from service. If that is so, let his pay on such promotion with retrospective effect be revised in terms of the aforesaid decision from the date of promotion and all the arrears of salary be paid to the petitioner. Further, revision of pay be done till the date of superannuation of the petitioner in the appropriate pay scale and in case any promotion had taken place in between, on such pay scale applicable to the promotional post. Dues of the petitioner be calculated accordingly and be paid to him within a period of four months from the date of receipt of certified copy of the order passed today. 9. The writ petition stands allowed and disposed of. However, there shall be no order as to costs.