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2023 DIGILAW 379 (ALL)

State of U. P. v. Braham Kumar Saxena

2023-02-07

MANOJ KUMAR GUPTA, SYED QAMAR HASAN RIZVI

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JUDGMENT : Syed Qamar Hasan Rizvi, J. Order on Delay Condonation Application For the reasons stated in the affidavit in support of the application for condonation of delay, as the same constitutes sufficient cause for condonation of delay in filing the instant special appeal, the delay condonation application is allowed. Delay is condoned, Special Appeal is treated to have been filed within time. Order on Special Appeal (Defective) 2. We have heard Sri Rajeev Singh, learned Standing Counsel for the appellant-state and Sri Sanjeev Singh, learned counsel for the respondent No. 1. 3. The present special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, arises from the judgment and order dated 12.5.2022 passed by the learned Single Judge in Writ-A No. 10912 of 2018 (Brahm Kumar Saxena v. State of U.P. and others), whereby the writ petition filed by respondent No. 1 was allowed. The relevant extract of the order dated 12.5.2022 is as under: ''In view of the above the impugned orders passed by respondent No. 3 are hereby quashed. The Respondent No. 3 is directed to make payment of arrears of salary of the petitioner from 18.11.1988 till 10.2.2014 after adjusting the amount of salary paid to him with 6% interest and grant him all service benefits as admissible to him under law. Further direction is issued to respondent No. 3 to correct the salary being paid to the petitioner from 23.11.2016 and after adjusting the amount paid to him make payment of arrears of salary. The entire payments of the petitioner as directed above shall paid to him within period of eight weeks from today. In case the amount as directed by this Court is not paid to the petitioner by the respondent No. 3 within a period of eight weeks, petitioner shall be entitled 12 % interest over the same. However the State Government would be free to recover the 6% interest paid above the interest of 6% percent from the public servant, who is found responsible for delay in compliance of this order. The writ petition stands allowed.'' 4. The factual matrix of the case in brief is that Shri Sukh Devi Balika Uchchatar Madhyamik Vidyalaya, Mandir Mahewa, District Etawah (hereinafter referred as 'the Institution') is an institution recognized under the U.P. Intermediate Education Act, 1921 and is on grant in aid from the State Government. The writ petition stands allowed.'' 4. The factual matrix of the case in brief is that Shri Sukh Devi Balika Uchchatar Madhyamik Vidyalaya, Mandir Mahewa, District Etawah (hereinafter referred as 'the Institution') is an institution recognized under the U.P. Intermediate Education Act, 1921 and is on grant in aid from the State Government. In the said institution, the post of clerk fell vacant in the year 1988. The Committee of management of the institution notified the vacancy for direct recruitment. The selection was held on 24.8.1988 and, on the basis of the recommendation of the Selection Committee, the respondent-petitioner namely Brahm Kumar Saxena was appointed. The Regional Inspector of Girls Schools, IVth Region, Allahabad (hereinafter referred as RIGS), vide letter dated 7.11.1988 approved the appointment of Brahm Kumar Saxena on the post of clerk. Accordingly, the letter of appointment on the post of clerk was issued in favour of the respondent No. 1 on 17.11.1988, and he joined his duties on 18.11.1988. 5. One Amar Singh, who was working as Class-IV employee in the institution claimed promotion on the post of clerk against which the respondent No. 1 was appointed. He filed a writ petition bearing Writ-A No. 23247 of 1988 (Amar Singh v. R.I.G.S. and others) for the quashment of the order of the RIGS dated 7.11.1988, approving the appointment of Brahm Kumar Saxena on the post of clerk in the institution and for a mandamus directing the Institution to promote him on the aforesaid post. 6. The learned Single Judge allowed the writ petition filed by Amar Singh by judgment and order dated 10.2.2014 and set aside the aforesaid order dated 7.11.1988 passed by the RIGS, approving the appointment of respondent No. 1 namely Brahm Kumar Saxena with a direction to the Committee of management of the Institution to take proceeding for filling up the vacancy of the post of clerk by promotion of a suitable Class-IV employee of the Institution with a further direction that the salary paid to the respondent No. 1 namely Brahm Kumar Saxena for the duties discharged by him be not recovered from him. The respondents were also directed to consider for absorption of Brahm Kumar Saxena in the Institution on some other post looking to his long service and in case he is absorbed, then, continuity of service may also be given to him. 7. The respondents were also directed to consider for absorption of Brahm Kumar Saxena in the Institution on some other post looking to his long service and in case he is absorbed, then, continuity of service may also be given to him. 7. The aforesaid judgment and order passed by the learned Single Judge in Writ-A No. 23247 of 1988 (Amar Singh v. RIGS and others) was assailed by the present respondent No. 1 namely Brahm Kumar Saxena by means of a Special Appeal No. 437 of 2014 before this Court. The aforesaid Special Appeal was allowed by means of judgment and order dated 22.11.2016. The operative portion of the order passed in the said Special Appeal is quoted below: ''12. In view of aforesaid circumstances, we are of the considered opinion that the direction of learned Single Judge asking the Committee of Management to take proceeding for filling up the post of Clerk from suitable Class-IV employees of the institution in question cannot sustain and is accordingly set aside. Once the appellant-respondent No. 3 had entered into service after facing regular selection process in the year 1988; he has not been allowed to work in the institution only after the judgement of learned Single Judge in the year 2014 and there was already positive direction given by learned Single Judge in favour of the appellant-respondent No. 3 for absorption in the institution in question on other post looking to his long service, and in case, he is absorbed, then continuity of service may also be given to him, then a direction is issued to the respondents to restore back the appellant-respondent No. 3 to his position as Clerk in the institution and pay his salary with all consequential benefits. 13. Consequently, the Special Appeal is allowed. In consequence, the writ petition filed by the petitioner-respondent No. 4 shall stand dismissed.'' 8. The aforesaid judgment and order dated 22.11.2016 passed in Special Appeal No. 437 of 2014 passed by this Court, was challenged before the Hon’ble Supreme Court by means of Special Leave to Appeal (C) No. (s) 4851/2017 (Amar Singh v. Brahm Kumar Saxena and others). 9. The Hon'ble Supreme Court dismissed the said Special Leave Petition vide order dated 24/03/2017 by passing the following order: ''Heard. We do not find any ground to interfere with the impugned order. The special leave petition is, accordingly, dismissed. 9. The Hon'ble Supreme Court dismissed the said Special Leave Petition vide order dated 24/03/2017 by passing the following order: ''Heard. We do not find any ground to interfere with the impugned order. The special leave petition is, accordingly, dismissed. Pending application(s), if any, shall also stand disposed of.'' 10. When the order, passed in Special Appeal No. 437 of 2014 was placed by respondent No. 1 before the District Inspector of Schools, Etawah (hereinafter referred to as 'DIOS'), he passed an order dated 7.10.2017 treating his entry into the service from 22.2.2017 as fresh appointment thereby denying the benefit of continuity of service. Dissatisfied with the action of the DIOS, Etawah, the respondent No. 1, in the instant Special Appeal namely Brahm Kumar Saxena preferred a contempt petition which was registered as Contempt Application (Civil) No. 4772 of 2017. The Contempt Court vide order dated 27.10.2017 although found a prima facie case of disobedience of the order of Writ Court, but took a lenient view and disposed of the contempt application with a direction to the opposite parties to comply with the directions issued by the Writ Court within a period of six weeks from the date of the presentation of the certified copy of the order. The relevant extract of the order dated 27.10.2017 passed in aforesaid contempt petition is as under: ''In the facts and circumstances of the case, as has been brought on record, prima facie case of disobedience of order of writ Court is made out. However, one more indulgence is allowed to the opposite party to ensure compliance of the order passed by the writ Court. Office is directed to send a copy of this petition to the opposite party concerned alongwith a copy of this order. It shall keep record of the same. Process fee for the purpose be supplied by the petitioner within a week. Considering the above, this contempt petition is disposed of with a direction upon the opposite party to comply with the directions issued by the writ Court within a period of 6 weeks from the date of presentation of certified copy of this order. Liberty is reserved to the applicant to approach this Court again, in case the order of writ Court is still not complied with.'' 11. Liberty is reserved to the applicant to approach this Court again, in case the order of writ Court is still not complied with.'' 11. The DIOS in pursuance of the order dated 27.10.2017, passed in contempt petition, issued notices to the concerned parties requiring them to appear before him and after taking into consideration their submissions, passed an order dated 9.1.2018 and rejected the claim of the respondent No. 1 for grant of arrears of salary for the period he worked since 18.1.1988 till the date the writ petition filed by Amar Singh was allowed. The respondent No. 1 namely Brahm Kumar Saxena after receiving the order dated 9.1.2018 passed by the DIOS, again requested the DIOS through several representations and reminder representations for the modification of his order of rejection dated 9.1.2018 and to grant him the arrears of salary in the light of the order dated 22.11.2016 passed in Special Appeal No. 437 of 2014 and also the order dated 27.10.2017 passed in Contempt Case No. 4772 of 2017. 12. Aggrieved by inaction on the part of the appellants-respondent, the respondent No. 1 in the instant Special Appeal, namely Brahm Kumar Saxena preferred the writ petition as Writ-A No. 10912 of 2018 wherein the Writ Court passed an interim order dated 1.5.2018 which is extracted below: ''....it would be appropriate to permit the petitioner to approach the authority concerned, highlighting the anomaly in fixation of pay on account of exclusion of period from 1988 to 27.10.2017. The authority concerned shall take a decision and bring the same on record while filing the counter-affidavit.'' 13. In pursuance of the aforesaid order, the DIOS passed another order dated 26.6.2018 reiterating the stand taken by him earlier while denying the salary of the petitioner from 18.11.1988 till 22.2.2017 on the basis of the principle of ?No Work No Pay?. The said order dated 26.6.2018 was challenged by respondent No. 1 by way of amendment in the memo of writ petition. The writ petition has been allowed by the judgment and order impugned in the instant appeal. 14. Learned Standing Counsel appearing for the appellant states that in compliance of the order of the Writ-Court dated 12.5.2022, the arrears of salary amounting to Rs. The writ petition has been allowed by the judgment and order impugned in the instant appeal. 14. Learned Standing Counsel appearing for the appellant states that in compliance of the order of the Writ-Court dated 12.5.2022, the arrears of salary amounting to Rs. 30,28,704/- had been paid to the respondent No. 1-petitioner, in his bank account on 5.7.2022, who has now retired from service after attaining the age of superannuation on 31.1.2018. 15. Learned Standing Counsel appearing on behalf of the State has contended that the learned Single Judge while passing the impugned order, has directed the appellants to make the payment of salary to the respondent No. 1-petitioner for the period he did not perform his duty and as such the Writ Court has committed an error by overlooking the doctrine of 'No Work No Pay'. He further submits that now since in compliance of the judgment and order dated 12.5.2022 (supra), the arrears of salary has been paid to the petitioner on 5.7.2022, the interest on the same at the rate of 12% per annum is not at all justified. 16. No further submission has been made by the learned Standing Counsel. 17. On the other hand, learned counsel for the respondent vehemently argued that there is no illegality in the order of the Writ-Court in awarding interest to the respondent No. 1 as he was wrongly denied the arrears of salary despite clear orders passed in Special Appeal No. 437 of 2014 dated 22.11.2016 and the order dated 27.10.2017 in the Contempt Application (Civil) No. 4772 of 2017. 18. We have considered the arguments raised by the parties and the materials available on record and found no substance in the arguments raised on behalf of the appellants in the teeth of the fact that it is the settled legal position that in the absence of anything to show that the employee himself was unwilling to work, principle of 'No Work No Pay' ought not to be applied. If applied, it would amount to allowing the employer to take advantage of his own wrong, which is not permissible in law in a Court of equity and justice. Since the respondent No. 1-petitioner was unlawfully deprived of the salary for a long time, he becomes entitled to interest. 19. If applied, it would amount to allowing the employer to take advantage of his own wrong, which is not permissible in law in a Court of equity and justice. Since the respondent No. 1-petitioner was unlawfully deprived of the salary for a long time, he becomes entitled to interest. 19. The concept of interest is that when a person is deprived of the use of his money, to which he is legitimately entitled, he has a right to be compensated for the deprivation, which may be called interest or compensation. Interest is paid for the deprivation of use of money in general terms which is return or compensation for the use or detention by a person of a sum of money belonging to another. It is a consideration paid either for the use of money or for forbearance in demanding it after it has fallen due. Thus, it is charged for the use or forbearance of the money. In this sense, delayed payment normally attracts interest. 20. The above mentioned principle is also supported by the judgment and order of the Hon'ble Supreme Court in the case of Ghaziabad Development Authority v. Balbir Singh, JT 2004 (5) SC 17. 21. The concept of interest as provided in law is as under: (i) As per Black's Law Dictionary (7th Edn.) ''interest'' is the compensation fixed by agreement or allowed by law for use or detention of money or for the loss of money of one who is entitled to its use, especially, the amount owned to a lender in return for the use of the borrowed money. (ii) As per Stroud's Judicial Dictionary of Words and Phrases (5th edn.); interest means, inter alia compensation paid by the borrower to the lender for deprivation of the use of his money. (iii) In the case of Secretary, Irrigation Department, Government of Orissa v. G.C. Roy, 1992(1) SCC 508 , the Constitution Bench of Hon'ble Supreme Court opined that a person deprived of use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages. This is also the principle of Section 34 of the Civil Procedure Code. It may be called interest, compensation or damages. This is also the principle of Section 34 of the Civil Procedure Code. (iv) In the case of Sham Lal Narula (Dr.) v. CIT, AIR 1964 SC 1878 , Hon'ble Supreme Court held that interest is paid for the deprivation of the use of the money. 22. The grounds raised by the appellants assailing the award of interest by the Writ-Court have no legs to stand. 23. In view of the aforesaid, we are of the considered opinion that the interest as awarded by the learned Single Judge is perfectly justified and commensurate with the law laid down by the Hon'ble Apex Court on the subject. 24. The judgment and order passed by the learned Single Judge, that is impugned in the instant Special Appeal, needs no interference. 25. The appeal lacks merit and is accordingly dismissed. No order as to costs.