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Madhya Pradesh High Court · body

2016 DIGILAW 623 (MP)

Manoharlal v. State of M. P.

2016-07-28

SHEEL NAGU

body2016
ORDER : Sheel Nagu, J. The present petition under Article 226 of the Constitution of India seeks arrears of salary arising out of grant of retrospective promotion from the post of Stenographer Grade-II to Stenographer Grade-I, vide Annexure-P/1-A dated 7/10/2005 with retrospective effect from 15/3/1988. 2. The facts in nutshell are that the petitioner who entered Government service as LDC was appointed as Stenographer Grade-III in 1978 where-after on account of his supersession as regards the post of Stenographer Grade II and Stenographer Grade-I, petitioner was impelled to prefer Writ Petition No. 2617/03, claiming following relief: (a) It may kindly be declared that the applicant is entitled to get the proforma promotion from the dated 3/12/1979 against the respondent No. 4. His seniority may kindly be refixed as Sl. No. 38 against the Junior Employees Jagdish Prasad Saluja, Smt. Karuna Bargaonkar, Ku.Usha Vyas and Omprakash Phoolwar. (b) It may also kindly be declared that the applicant is entitled to get the promotion of First Grade Stenographer from the date of 27/12/1989 and 20/6/1990 against the Respondent No. 4 with all the monitory benefits etc. (c) The cost of the petition be also awarded to the applicant. 2.1. By the judgment dated 20/7/2004, W.P. No. 2617/2003 was allowed in the following terms: "7. Accordingly, this petition is allowed and disposed of with a direction that the petitioner shall be deemed to have been promoted to the post of Stenographer Grade-II with effect from 3.12.79 i.e. the date on which his immediate junior was promoted to the said post. Petitioner is granted proforma promotion in the aforesaid post from the said date and his seniority be corrected accordingly. After correcting his seniority, review D.P.C., be convened to consider the case of the petitioner for promotion to the post of Stenographer Grade I in accordance with the rules within a period of three months from the date of filing of certified copy of this order. Necessary action be taken and communicated to the petitioner within the aforesaid period." 2.2. The respondents/State implemented the above said order by passing Annexure-P/9 on 7/10/2005 by holding review DPC and promoting the petitioner to the post of Stenographer Grade-II w.e.f. 3/12/1979 on proforma basis as directed by the court. Subsequently, Annexure-P/1-A was issued on 7/10/2005 granting next consequential promotion to the post of Stenographer Grade-I w.e.f. 15/3/1988 2.3. The respondents/State implemented the above said order by passing Annexure-P/9 on 7/10/2005 by holding review DPC and promoting the petitioner to the post of Stenographer Grade-II w.e.f. 3/12/1979 on proforma basis as directed by the court. Subsequently, Annexure-P/1-A was issued on 7/10/2005 granting next consequential promotion to the post of Stenographer Grade-I w.e.f. 15/3/1988 2.3. However, stipulation was made in the said order Annexure-P/1-A that by following principle of 'No work No pay' arrears of salary arising out of difference of salary admissible to the post of Stenographer Grade-I and Stenographer Grade-II shall not be granted to the petitioner. 2.4. The petitioner preferred a representation which was dismissed by Annexure-P/1 dated 2/2/2009 which after referring to the High court decision dated 20/7/2004 assigned the reason that since the petitioner had not actually worked as Stenographer Grade-I, the difference of salary is inadmissible by applying principle of 'No work No pay'. 3. State, on the other hand, filed return primarily stating that since the petitioner had not actually worked on the post of Stenographer Grade-I, the State was correct in invoking the principle of 'No work No pay', for denying difference of salary. 4. Learned counsel for the petitioner mainly submits that in first round of litigation, the petitioner had specifically raised his grievance for grant of consequential benefits arising out of retrospective promotion sought by him to the post of Stenographer Grade-I. In regard to the said relief, it is contended that judgment of this court in clear terms mentions that after proper fixation of seniority in the cadre of Stenographer Grade-II, the petitioner should be considered for promotion by review DPC to the next post of Stenographer Grade-I, in accordance with rules prevailing at the relevant point of time. 4.1. In continuation, learned counsel for the petitioner by drawing attention of this court to the executive instructions dated 21-29/3/1989 and 22/2/1990 submits that in regard to the very same selection in which the Stenographers Grade II of the like of the petitioner were not considered at the relevant point of time, the Govt. took a decision that benefit of retrospective promotions should be extended to all the Stenographers Grade-II, who were wrongly left out from being considered for promotion to the post of Stenographer Grade-I. This instructions further provided that while doing so the benefit of difference of salary shall also be granted. 5. took a decision that benefit of retrospective promotions should be extended to all the Stenographers Grade-II, who were wrongly left out from being considered for promotion to the post of Stenographer Grade-I. This instructions further provided that while doing so the benefit of difference of salary shall also be granted. 5. Both these executive instructions of 1989 and 1990 have not been disputed by the State in its return. 5.1. Moreover, once this court in the earlier round has held that promotion of the petitioner was wrongly denied to him and the decision of denial is rendered vitiated in law and more so the denial is not based on any reason attributed to the petitioner, the petitioner ought to be entitled to relief of difference of salary. 6. This court is bolstered in its view by the decision of this court in the case of Ram Siya Sharma v. State of M.P. rendered in W.P. No. 538/2010 on 6/7/2015 after considering the law laid down by the Apex court on the point. Relevant extract of this decision is reproduced below:- "6. In service jurisprudence the concept of no work no pay is normally applied where there is some reason attributed to the employee because of which the promotion could not take place at the due time. If the employee concerned is ready and willing to be subjected to the selection process and discharge the duties and responsibilities of the promoted post and yet his case was not considered or was denied for unlawful reasons which are not attributed to the employee then principle of 'no work no pay' can not come in the way of employee. 7. This aspect has been dealt with in the cases of Union of India v. K.V. Jankiraman, AIR 1991 SC 2010 , State of A.P. v. K.V.L. Narasimha Rao and others, (1999) 4 SCC 181 , State of Kerala and Others v. E.K. Bhaskaran Pillai, (2007) 6 SCC 524 and the decisions of this Court following the dictum of K.V. Jankraman's case (supra) in the cases of R.B. Guhe v. State of M.P., 2008 (5) M.P.H.T. 291 , Anand Mohan Saxena v. State of M.P. and another, 2009 (4) M.P.L.J. 523 and Pushpa Usgaonkar v. State of M.P. and ors., I.L.R. (2010) M.P. 1545, are also worthy of reference. The relevant extract of these verdicts are reproduced below for convenience & ready reference :- 7.1 Union of India v. K.V. Jankiraman, AIR 1991 SC 2010 , "25. ... The normal rule of 'no work no pay' is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. ... " 7.2 State of A.P. v. K.V.L. Narasimha Rao and Others, (1999) 4 SCC 181 , "5. In normal circumstances when the retrospective promotions are effected all benefits flowing therefrom, including monetary benefits, must be extended to an officer who has been denied promotion earlier. ..." 7.3 State of Kerala and others v. E.K. Bhaskaran Pillai, (2007) 6 SCC 524 , "4. ... 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 criminal case it depends on the authorities to grant full back wages or 50 per cent 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 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 'no work no pay' can not be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also." 7.4 R.B. Guhe v. State of M.P., 2008 (5) M.P.H.T. 291 , "12. The principles of 'no work no pay' shall not apply to a case where the lapses are on the part of the Government is not promoting a particular person. There are exceptions where courts have granted monetary benefits also." 7.4 R.B. Guhe v. State of M.P., 2008 (5) M.P.H.T. 291 , "12. The principles of 'no work no pay' shall not apply to a case where the lapses are on the part of the Government is not promoting a particular person. 7.5 Anand Mohan Saxena v. State of M.P. and another, 2009(4) M.P.L.J. 523 , "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." 7.6 Pushpa Usgaonkar v. State of M.P. and ors., I.L.R. (2010) M.P. 1545, "9. In the present case, the petitioner was denied promotion in the year 2005 for no fault on 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 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 monetary benefits to the petitioner including back wages. As the petitioner has attained the age of superannuation, she shall also be entitled for enhanced pension and arrears on account of her promotion to the post of Principal. ..." 7. The respondents are directed to grant all monetary benefits to the petitioner including back wages. As the petitioner has attained the age of superannuation, she shall also be entitled for enhanced pension and arrears on account of her promotion to the post of Principal. ..." 7. In view of above, this court has no hesitation to hold that in the given facts and circumstances where withholding/delayed promotion of the petitioner to the post of Stenographer Grade-I was not for reason attributed to him and there is otherwise no restriction for grant of arrears of salary to the petitioner in law and on the strength of the executive instructions dated 21-29/3/1989 and 22/2/1990, this court finds that the claim of the petitioner is justified. 8. Accordingly, this petition stands allowed in the following terms:- (i) The impugned order dated 2/2/2009, Annexure P/1 so far it relates to denial of arrears of salary to the petitioner arising out of retrospective promotion to the post of Stenographer Grade-I w.e.f. 15/3/1988 is quashed. (ii) The petitioner shall be granted arrears of salary arising out of above said retrospective promotion on the post of Stenographer Grade-I w.e.f. 15/3/1988 till 7/10/2005 when the petitioner actually assumed charge of the post of Stenographer Grade-I. (iii) The claim of the petitioner appears to be denied for unjustified and unlawful reason by ignoring the executive instructions dated 21-29/3/1989 and 22/2/1990 issued by the State. It is a case where the State should have justified its claim of being a welfare State by rising to the occasion and granting relief in terms of the executive instructions issued by the Govt. However, since the same was not done this court feels obliged to compensate the petitioner in some manner. (iv) Thus, it is directed that the petitioner shall be entitled to interest over the arrears of salary @ 9% per annum from the date the arrears became due till its realisation.