Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 2115 (ALL)

U. P. POWER CORPORATION LTD. v. SURENDRA KUMAR

2017-09-07

ARUN TANDON, RITU RAJ AWASTHI

body2017
JUDGMENT By the Court.—This intra-Court appeal has been filed by the U.P. Power Corporation Ltd. against the judgment and order of the learned Single Judge dated 28.8.2014 passed in Civil Misc. Writ Petition No. 61607 of 2010 (Surendra Kumar and others v. State of U.P. through Secretary Department of Energy and others). The relevant facts for deciding the appeal are as under: 2. Selection for appointment on the post of Assistant Grade-III was conducted by the U.P. Power Corporation. After selection a select list was prepared. Out of the selected list, some of the selected candidates were offered appointment and they joined. The Chairman-cum-Managing Director of Corporation issued an order dated 30.9.2004 cancelling the entire selections, as a result whereof, the persons who had been selected and had joined, were removed from service, while other candidates who had been issued an appointment letter, but could not join were not permitted to join. 3. Such person who had been selected and appointed, were joined by other persons who had been issued appointment letter on the basis of the merit list but could not join before 30.9.2004 as well as, by persons whose name had been mentioned in the merit list but to whom appointment letter had not been issued upto 30.9.2004 in filing of writ petitions before this Court. The leading Writ petition No. 46362 of 2004 (Manoj Kumar and others v. State of U.P. and others) was decided under the judgment and order passed by the learned Single Judge dated 7.8.2007. The operative portion whereof reads as under: “For the foregoing reasons, these writ petitions stand allowed. The order dated 30.9.2004 passed by the Chairman-cum-Managing Director of the Corporation as well as the consequential orders passed in the individual cases, all are quashed. The candidates who had been given appointment in pursuance to the select list and had joined the service, would be permitted to rejoin the service and be given the benefit of continuity of service and also be paid arrears of salary; those who had been issued appointment letters but had not been permitted to join, be given regular appointments with all consequential benefits; and those candidates who had not been issued appointment letters but their names found place in the select list, would be issued appointments letters within sixty days and be also given all consequential benefits of service. However, there shall be no order as to costs.” 4. Against the said judgment and order, the department filed special appeal which was dismissed. As a result whereof, the judgment of the learned Single Judge become final. In compliance to the order of the Hon’ble High Court dated 7.8.2007, the Corporation categorized the writ petitioners into three categories: (a) Selected candidates who were offered appointment and had joined prior to 30.9.2004 (b) Candidates who had been issued appointment letter but could not join till 30.9.2004 (c) Candidates from the merit list who had not been issued appointment letter and therefore, the question of their joining on or before 30.9.2004 did not arise. 5. So far as the first category of the person is concerned the Corporation took a decision to restore them back into service with all consequential benefits including arrears of salary for the period during which they had worked before the order dated 30.9.2004. 6. So far as the candidates belong to (b) and (c) categories are concerned, a decision was taken to offer them appointment and to pay them salary from the date they joined. 7. The candidates belonging to (b) and (c) category not being satisfied, filed writ petition No. 61607 of 2010 and claimed that in view of the direction issued under order dated 7.8.2007 quoted above, they were also entitled to arrears of salary treating them to have been appointed from the date the select list was notified in the year 2003 and the first candidate of the list was offered appointment. 8. The claim set up by the writ petitioner was opposed by the Corporation. 9. The learned Single Judge after interpreting the words ‘with all consequential benefits’ has found it fit and proper to issue a mandamus commanding the respondent’s to pay salary to category (b) and (c) employees also from the date they would have been appointed. 10. It is against this order of the learned Single Judge that the present appeal has been filed. In our opinion, the directions issued by the learned Single Judge is based on misleading of the operative portion of the order dated 7.8.2007 which has been quoted above. 10. It is against this order of the learned Single Judge that the present appeal has been filed. In our opinion, the directions issued by the learned Single Judge is based on misleading of the operative portion of the order dated 7.8.2007 which has been quoted above. From the simple reading of the operative portion of the order, it is apparent clear that the writ Court had issued a direction for arrears of salary exclusively for those who had been appointment and subsequent to the order dated 30.9.2004 they had been removed. With regard to the other categories of employees, the only direction issued was that they may be offered appointment with all consequential benefits. 11. The learned Single Judge has failed to appreciate the distinction maintained by the writ Court itself, in the matter of payment of arrears of salary to the persons who have been appointed and were functioning on the date of the order dated 30.9.2004 viz-a-viz the persons like the writ petitioner who had not been offered appointment or had not joined upto that date i.e. 30.9.2004. 12. Another aspect of the matter which has escaped the attention of the learned Single judge is that in absence of joining and in absence of any appointment but offered to category b and c employees respectively, the question of payment of salary would not arise on the principle of “no work no pay”. 13. In the totality of the circumstance on record we are more than satisfied that no result had accorded with the writ petitioners for being paid salary for the period they had actually not been appointed had not worked in the Corporation. 14. The consequential benefits as provided by order of the writ Court namely continuity of service and notional seniority etc., according to the Corporation have already been granted to the writ petitioners. 15. For all the aforesaid reasons the judgment and order dated 28.8.2014 is hereby set-aside. Appeal is allowed.