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2017 DIGILAW 3032 (ALL)

NIRMAL KUMAR SRIVASTAVA v. STATE OF U. P.

2017-12-22

NEERAJ TIWARI, RAN VIJAI SINGH

body2017
JUDGMENT : Heard Sri J.P.Singh, learned counsel for the petitioner and learned Standing Counsel appearing for the respondents. 2. By means of this writ petition the petitioner has prayed for issuing a writ of certiorari quashing the order dated 31.10.2011 passed by the Principal Secretary, Medical and Health Department of U.P. Government, Lucknow, respondent no.1 by which the petitioner's representation made pursuant to the order of this Court dated 11.7.2011 in Writ Petition No. 37406 of 2011 (Dr. Nirmal Kumar Srivastava vs. State of U.P.and others) for payment of arrears of salary w.e.f. 11.2.2008 to 21.10.2010 has been rejected. 3. The facts of this case, in brief, are that the petitioner while working as Medical Officer Level III was considered for promotion on the post of Medical Officer Level IV by the Departmental Promotion Committee on 2.9.2009 but because of the pendency of the disciplinary proceedings his fate was kept in sealed cover. However, the disciplinary proceeding had been concluded on 6.10.2009 and the petitioner has been exonerated from the charges levelled against him. Later on the respondent's department had granted notional promotion to the petitioner w.e.f. 11.9.2009 vide order dated 4.8.2010. 4. Being aggrieved, by the date of promotion from 11.9.2009 the petitioner made a representation before the respondent no.1 and in due course the petitioner had been granted notional promotion w.e.f. 11.2.2008 vide order dated 21.10.2010. It also transpires that the respondent no.1 had earlier granted notional promotion to the petitioner with effect from 11.9.2009 but he has not been paid salary from that date. However, later on when the petitioner was granted notional promotion on 21.10.2010 from retrospective effect w.e.f. 11.2.2008, he made a representation before the respondent no.1 for payment of salary for the aforesaid period but when nothing was done by the respondent no.1, the petitioner approached this Court by way of filing Civil Misc. Writ petition No. 37406 of 2011. The aforesaid writ petition was disposed of by a Division Bench of this Court with the liberty to the petitioner to file a detailed representation before the respondent no.1 and in case of filing such a representation, the respondent no.1 was directed to pass a reasoned speaking order. 5. Writ petition No. 37406 of 2011. The aforesaid writ petition was disposed of by a Division Bench of this Court with the liberty to the petitioner to file a detailed representation before the respondent no.1 and in case of filing such a representation, the respondent no.1 was directed to pass a reasoned speaking order. 5. Pursuant to the aforesaid order the petitioner had made a fresh representation before the respondent no.1 and that had been rejected vide order dated 31.10.2011 holding that in view of the fact the petitioner did not work w.e.f. 11.2.2008 to 21.10.2010 on the promotional post, therefore, he would not be entitled for salary for the said period. The order dated 31.10.2011 has been made subject matter to the present writ petition. 6. Sri Singh, learned counsel for the petitioner has vehemently contended that the concerned respondent has erred in not paying the salary to the petitioner on his promotional post w.e.f. 11.2.2008 to 21.10.2010 for the simple reason that it was not the petitioner's fault in not working on the said post but it is the fault of the respondent's department itself which has not promoted the petitioner w.e.f. 11.2.2008 and paid the salary. In his submission had the charges have been framed after application of mind there would have been no occasion to issue charge sheet. The charge sheet was issued without application of mind and proceeding was kept pending for a period of seven years, therefore, it is the fault of the respondent and not the petitioner as the respondent itself did not promote the petitioner and allow to work on the promotional post. Sri Singh has further contended that initially the proceeding against the petitioner was started in the year 2004 but the Additional Director Health had found that there was nothing against the petitioner. The report of the Additional Director was sent before the Secretary, Medical Health, which was kept pending for about three years and on 21.8.2008 a fresh charge sheet was issued containing the same charges, that too has continued for about two years and later on it was dropped vide order dated 6.10.2009. In the meantime the petitioner's case was taken up for promotion on 2.9.2009 and it was kept in the sealed cover treating the disciplinary proceeding pending. In the meantime the petitioner's case was taken up for promotion on 2.9.2009 and it was kept in the sealed cover treating the disciplinary proceeding pending. The submission is that it is the department which has kept the promotion of the petitioner pending for about seven years without his fault and he is not being paid salary for the period from 11.2.2008 to 21.10.2010 and now the respondent authorities are throwing mud on the face of the petitioner accusing that since he has not worked on the promotional post, therefore, he is not entitled for the salary for the said period. In support of his submissions, Sri Singh, learned counsel for the petitioner has placed reliance upon the judgments of the Apex Court in Ramesh Kumar vs. Union of India and others (2015) 14 SCC 335 and Sudha Srivastava (Smt) vs. Comptroller and Auditor General of India (1996) 1 SCC 63 in which it has been held that an employee shall be entitled for full salary for the period in which he has not been permitted to work because of no fault of his own and on account of the fault of the department. For appreciating the controversy we find it appropriate to quote the relevant paragraphs of the judgment rendered in Ramesh Kumar (supra) which reads as under: "14. In normal circumstances when retrospective promotions are effected, all benefits flowing therefrom, including monetary benefits, must be extended to an employee who has been denied promotion earlier. So far as monetary benefits with regard to retrospective promotion is concerned that depends upon case to case. In State of Kerala & Ors. vs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524 , this Court held that the principle of ?no work no pay? cannot be accepted as a rule of thumb and the matter will have to be considered on a case to case basis and in para (4), it was held as under:- “We have considered the decisions cited on behalf of both the sides. 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. 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 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 ?no work no pay? cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.” 15. We are conscious that even in the absence of statutory provision, normal rule is ?no work no pay?. In appropriate cases, a court of law may take into account all the facts in their entirety and pass an appropriate order in consonance with law. The principle of ?no work no pay? would not be attracted where the respondents were in fault in not considering the case of the appellant for promotion and not allowing the appellant to work on a post of Naib Subedar carrying higher pay scale. In the facts of the present case when the appellant was granted promotion w.e.f. 01.01.2000 with the ante-dated seniority from 01.08.1997 and maintaining his seniority alongwith his batchmates, it would be unjust to deny him higher pay and allowances in the promotional position of Naib Subedar." 7. The Apex Court has given the following observation in Sudha Srivastava (Smt.): "14. Even otherwise, if the husband of the appellant was not to be promoted, he would certainly be entitled to receive salary in the lower poor till the date of his death in October, 1981. The Apex Court has given the following observation in Sudha Srivastava (Smt.): "14. Even otherwise, if the husband of the appellant was not to be promoted, he would certainly be entitled to receive salary in the lower poor till the date of his death in October, 1981. In Jankiraman's case (supra), it was observed by this Court that when an employee is completely * and is not visited with penalty, then he has to be given the benefit of salary of the higher post along with the other benefit on the date on which he would normally have been promoted but for the disciplinary/criminal proceedings. 8. Moreover, this is not a case where the acquittal of the deceased was as a result of his being given the benefit of doubt or on account of non-availability of evidence. In the instant case, the High Court has held, while allowing the criminal appeal and setting-aside the conviction that "one cannot but hold that late S.S. Shrivastava had not done anything, which would justify a charge of corruption against him, much lese a charge of conspiracy". 9. From the bare reading of the aforesaid judgments, it is apparent that the Apex Court has held that principle of "no work no pay" cannot be applied as a rule of thumb particularly when the Department itself was at fault for not extending the benefit. 10. Considering the fact that it is because of delayed consideration of promotion by the State authorities, the petitioner was not permitted to work on promotional post, we are of the considered opinion that the petitioner's case is squarely covered by the law laid down by the Apex Court in Ramesh Kumar (supra) and Sudha Srivastava (Smt) (supra). . 11. In the result the writ petition succeeds and is allowed. The order dated 31.10.2011 passed by the Principal Secretary, Medical and Health Department of U.P. Government, Luknow, respondent no.1 is hereby quashed. The respondent no.1 is directed to pay the arrears of salary as prayed by the petitioner in accordance with law within a period of three months from the date of receipt of certified copy of this order along with 6% interest.