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2019 DIGILAW 1145 (GAU)

Jagadish Chandra Banik v. State of Assam

2019-10-22

SANJAY KUMAR MEDHI

body2019
ORDER : 1. Heard Shri F.U. Borbhuya, the learned counsel for the petitioner. Also heard Shri M. Nath, the learned Standing counsel Panchayat and Rural Development and Shri B. Borpujari, the learned Standing counsel for the Finance Department. 2. This is the 2nd round of litigation by the petitioner in which he has prayed for a direction for grant of back wages pursuant to his reinstatement in service in compliance with an order dated 17.11.2009 passed by this Court in the earlier writ petition, namely, W.P. (C) 3131/2006. 3. The facts in brief may be stated as follows. 4. The petitioner was appointed as a Gaon Panchayat Secretary vide an order dated 18.9.1983. However, vide an order dated 21.3.1997, he was removed from the said post Assailing the said order of removal dated 21.3.1997, the petitioner had approached this Court by filing W.P. (C) 3131/2006. In the said writ petition, the following prayers were made:- “Under the circumstances, it is prayed that your Lordship may be pleased to admit this petition, call for records, issue a Rule calling upon the respondents to show cause as to why a writ of certiorari shall not be issued, setting aside and quashing the impugned order dated 21/3/97 and/or as to why a writ of Mandamus and/or any other writ of the nature shall not be issued commanding the respondents to reinstate the petitioner as Gaon Pahchayat Secretary with retrospective effect along with all service and financial benefits and/or as to why a further direction shall not be issued upon the respondents to allow the petitioner to discharge his duties as Panchayat Secretary under Patharkandi Gaon Panchayat or any other Gaon Panchayat under Karimganj district against any of the existing vacancies and cause or causes being shown and after hearing the parties and on perusal of records be pleased to make the Rule absolute giving full and complete relief to the petitioner and/or pass such further or other order as Your Lordships may deem fit and proper.” 5. It appears that there was a specific prayer for grant of financial benefits and retrospective effect to the reinstatement in service. 6. This Court after hearing the parties had passed the Judgment and Order dated 17.11.2009, by which, the impugned of removal dated 21.03.1997 was set aside and the claim of the petitioner for reinstatement was allowed by directing the authorities to issue appropriate orders. 7. 6. This Court after hearing the parties had passed the Judgment and Order dated 17.11.2009, by which, the impugned of removal dated 21.03.1997 was set aside and the claim of the petitioner for reinstatement was allowed by directing the authorities to issue appropriate orders. 7. For ready reference, the operative portion of the judgment and Order dated 17.11.2009 is extracted herein-below: “9. I have heard the learned counsel appearing for the parties at length. Also perused the materials available on record. I have found sufficient force in the argument advanced by Mr. Choudhury, learned counsel appearing for the petitioner. In the instant case, the petitioner has got legitimate grievance for justice which has been denied to him. Thus, taking the letters dated 10.3.2005 and 8.8.2005 into consideration and the pleadings set forth, the respondent authorities, more particularly, respondent No. 1 is directed to issue appropriate order in respect of the claim of the petitioner for reinstatement of service. The whole exercise is to be completed by respondent No. 1 within a period of two months from the date of receipt of a copy of this order. Petitioner shall submit a certified copy of this order before the respondent No. 1, for doing the needful.” 8. In compliance to the aforesaid Judgment and Order, the consequential order dated 18.04.2011 has been passed by which the petitioner was reinstated in his service. However, the claim for back wages/arrear salaries was rejected. Shri borbhuya, the learned counsel for the petitioner submits that the Judgment and Order of this Court regarding 'claim' has to be related to the claim made in the writ petition which include the claim for payment of back wages and all financial benefits. The learned counsel accordingly submits that while issuing the order of reinstatement, the petitioner is entitled to the back wages for the period he was out of service. Shri Borbhuya also refers to a communication dated 10.03.2005 issued by the Chief Executive Officer, Karimganj Zila Parishad, wherein, it is indicated that the removal of the petitioner was perhaps not justified and that communication was considered by this Court while passing the Judgment and Order dated 17.11.2009. The learned counsel accordingly prays that the petitioner is entitled to the back wages for the period he was out of service and necessary direction be issued by this Court. 9. The learned counsel accordingly prays that the petitioner is entitled to the back wages for the period he was out of service and necessary direction be issued by this Court. 9. Per contra Shri M. Nath, the learned Standing Counsel Panchayat and Rural Development submits that the earlier direction of this Court contained in the Judgment and Order dated 17.11.2009 pertains only to the claim of reinstatement of service and nothing else. He, further, submits that a specific prayer for giving retrospective effect to the reinstatement and payment of financial benefits being there in the earlier writ petition and the same not being granted, the petitioner cannot come again with a fresh writ petition with the same claim as the same stood rejected in terms of the order passed in the earlier writ petition. 10. Referring to the compliance order dated 18.04.2011. Shri Nath, the learned Standing counsel has submitted that the petitioner has not even put to challenge the part of the order whereby his claim for back wages has been expressly rejected and in absence of such challenge, the writ petition itself would not be maintainable. 11. The rival contentions of the learned counsels for the respective parties have been duly considered. 12. The sole claim of the petitioner is based on the fact that the term 'claim' appearing in Paragraph-9 of the earlier judgment has to be related to the claim made in the earlier writ petition. In other words, he contends that the claim cannot be confined only to reinstatement of service and has to be extended to payment of back wages. 13. This Court is, however, not inclined to accept the said proposition as advanced for more than one reason. There is no specific mention of payment of any back wages in the earlier Judgment and Order dated 17.11.2009 and as the said order limits the claim of the petitioner only for reinstatement of service. Secondly, it is seen that though there was a specific prayer in the earlier writ petition regarding giving of retrospective effect to the reinstatement and financial benefits, the same was not granted in expressed terms by this Court in the earlier Judgment and Order which amounts to rejection of the same and therefore, it would not be open for the petitioner to raise the same issue by filing another writ petition. It is an established principle of law that prayers made in a case which are not granted are deemed to be considered and rejected. 14. This Court also finds force in the submission of the learned Standing Counsel for the Department concerned that in absence of a challenge to the rejection of the claim of the petitioner regarding back wages made vide the order dated 18.04.2011, no relief, whatsoever, can be granted. No other grounds of reinstating to the claim of back wages have been urged by the learned counsel for the petitioner and in absence of such grounds, this Court is not in a position to grant the relief in this petition. It is also seen that no review was filed against the aforesaid Judgment and Order dated 17.11.2009. No arguments have been advanced to overcome the doctrine of “No Work No Pay.” 15. It is also to be mentioned that in terms of an order of this Court passed in this writ petition. Shri Nath has produced a copy of the written communication dated 12.09.2019, by which, it is also seen that the petitioner has been regularized in service along with other similarly situated persons and that his salary for the period w.e.f. 09.01.2012 to February, 2012 has not been paid, which is also been taken cognizance by this Court while issuing notice. It is made clear that the authorities would pay the amount for the aforesaid period forthwith to the petitioner. 16. In view of the above discussions, this Court is of the opinion that no case for interference is made out by the petitioner and the writ petition is accordingly dismissed. It is, however, left open to the authorities to give notional benefits to the petitioner with regard to the fitment and scale of pay, so that his post retirement benefits are protected. 17. A copy of the written communication dated 12.9.2019 is made a part of the record. 18. Accordingly, this disposes of the writ petition.