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2018 DIGILAW 5 (MP)

State of M. P. v. Jham Singh Pandre

2018-01-02

HEMANT GUPTA, VIJAY KUMAR SHUKLA

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JUDGMENT 1. Heard on admission as well as on I.A.No.18289/2017 for condonation of delay. 2. In the instant Intra Court appeal, a challenge has been made to the order dated 18.7.2017, passed by the learned Single Judge, whereby the writ petition filed by the respondent/petitioner has been allowed and he has been held entitled to get arrears of pay of the promotional post from the due date. It has been also directed that the respondents shall treat the petitioner as promoted w.e.f.11.5.2007 to 13.1.2012 on actual basis. The arrears of salary has been directed to be calculated and paid to the petitioner within 90 days from the date of communication of this order. 3. Considering the averments made in the application for condonation of delay, supported by an affidavit, we find that sufficient cause has been shown for delay of 62 days in filing the present appeal as the matter was being processed by the administrative Department for grant of permission to file the writ appeal. Accordingly, the delay in filing the appeal is condoned and the application is allowed. 4. Appeal is heard on admission. 5. The main contention of the counsel for the appellants/State is that the respondent employee is not entitled for payment of arrears of the salary as when he was granted promotion notionally on the post of Assistant Director (Horticulture) by order dated 13.1.2012 with retrospective effect from the date of promotion of his junior Kashiram Kushre but he was held not entitled for arrears of the said post on the Principle of "No Work No Pay". He accepted the said promotion. He filed writ petition but the same was withdrawn by him and therefore, he is estopped from claiming the arrears of the said post. 6. The facts of the present case in short are that the respondent/petitioner filed a writ petition before this Court challenging his supersession to the post of Horticulture Development Officer and further promotion to the post of Senior Horticulture Development Officer and Assistant Director Horticulture on the ground that his case was not considered for promotion along with his junior. By order dated 7.7.2010, the writ petition was allowed and the respondents were directed to convene a review DPC and consider the claim of the petitioner and take a decision within a period of three months from the date of receipt of certified copy of this order. By order dated 7.7.2010, the writ petition was allowed and the respondents were directed to convene a review DPC and consider the claim of the petitioner and take a decision within a period of three months from the date of receipt of certified copy of this order. It was also mentioned in the order that if the petitioner is granted retrospective promotion to the post of Horticulture Development Officer then his case for promotion to the next higher post i.e. Senior Horticulture Development Officer which was granted to him subsequently be also re-evaluated after convening a review DPC at par with his junior who has been granted promotion. 7. An application for clarification of the said order was filed which was registered as Miscellaneous Civil Case No. 1053/2010 and this Court by order dated 30.7.2010 further clarified that the respondents shall consider the case of the petitioner for grant of promotion as directed by order dated 7.7.2010 for promotion to the post of Horticulture Development Officer so also to the post of Senior Horticulture Development Officer and if the petitioner is found eligible, he shall be granted promotion with all consequential benefits. With the aforesaid clarification, the application was allowed and disposed of. The order was not complied with, therefore, a Contempt Petition No.1407/2011 was filed. After filing the said contempt petition, the respondents have taken steps for compliance and the said contempt petition was dismissed with liberty to the petitioner to file a separate petition if dissatisfied with the action taken by the respondents. 8. The petitioner filed another Writ Petition No. 4617/2012 claiming the payment of the entire arrears and difference of the salary. The said petition was also disposed of by order dated 2.4.2012 on the statement of the counsel for the State that if the arrears of the salary have not been paid to the petitioner despite the order Annexure P-6, the department will pay the requisite sum as per the order Annexure P-6. The petitioner filed another writ petition, which was withdrawn with liberty to file a fresh petition. Thereafter, the petitioner filed the present writ petition, whereby a direction for proper fixation of his pension by giving him difference of salary and arrears of promoted post Assistant Director (Horticulture) w.e.f.11.5.2007 to 13.1.2012 with all consequential benefits of revised pay scale. The petitioner filed another writ petition, which was withdrawn with liberty to file a fresh petition. Thereafter, the petitioner filed the present writ petition, whereby a direction for proper fixation of his pension by giving him difference of salary and arrears of promoted post Assistant Director (Horticulture) w.e.f.11.5.2007 to 13.1.2012 with all consequential benefits of revised pay scale. The said writ petition has been allowed by the impugned order, which has been challenged in the present writ petition. 9. From the various orders passed by this Court and the records, it is crystal clear that the petitioner was promoted by the respondents after consideration of the case of the petitioner by DPC after the orders passed by this Court in the various writ petitions. The respondents have not shown any fault of the employee for non consideration his case for promotion along with his juniors. Thus, the non-consideration for promotion of the petitioner at the relevant time is solely attributable to the department and there is no fault on the part of the employee therefore, the employee cannot be denied the consequential benefits after promotion. In the case of Union of India v. K.V.Jankiraman [ AIR 1991 SC 2010 ], the apex Court held that where the employee was not at fault and the department deprived him to perform the promotional post, the principle of "No work no pay" would not be applicable. The said principle has been followed by the apex Court in the subsequent judgment in the case of State of Kerala v. E.K.Bhaskaran Pillai [ (2007)6 SCC 524 ], followed by the Division Bench of this Court in the case of C.B.Tiwari v. State of M.P. and others [2015(2) MPHT 132]. 10. Thus, in view of the aforesaid, we do not find any error in the order passed by the learned Single Judge and the petitioner has been rightly held entitled to get arrears of the pay of the promotional post from the due date. Therefore, the petitioner shall be entitled to be treated as promoted w.e.f. 11.5.2007 to 13.1.2012 and will also be entitled for the arrears of salary as directed by the learned Single Judge. 11. In view of the aforesaid submissions, we do not find any error in the order passed by the learned Single Judge. Therefore, the intra Court appeal does not warrant any interference and is dismissed. 11. In view of the aforesaid submissions, we do not find any error in the order passed by the learned Single Judge. Therefore, the intra Court appeal does not warrant any interference and is dismissed. Piyush Dharmadhikari, Government Advocate for appellants; B. K. Mishra for respondent.