Madhya Pradesh High Court
Dhirendra Chaturvedi vs The State Of Madhya Pradesh on 21 June, 2023
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 21 st OF JUNE, 2023
WRIT PETITION No. 11913 of 2020
BETWEEN:-
DHIRENDRA CHATURVEDI S/O SHRI D.D CHATURVEDI,
AGED ABOUT 60 YEARS, OCCUPATION: ADDL.
DIRECTOR DEPT. R/O E-112/1 BDA COLONY ,SHIVAJI
NAGAR BHOPAL MP (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AKASH CHOUDHURY - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THR. ITS
PRINCIPAL SECRETARY SCHOOL EDUCATION
DEPARTMENT VLLABH BHAWAN, MANTRALAYA
BHOPAL MP. (MADHYA PRADESH)
2. PRINCIPAL SECRETARY GENERAL
ADMINISTRATION DEPARTMENT MANTRALAYA
VALLABH BHAWAN (MADHYA PRADESH)
3. COMMISSIONER COMMISSION PUBLIC
I N S TR UCTI ON S GAUTAM NAGAR BHOPAL
(MADHYA PRADESH)
4. PUBLIC SERVICE COMMISSIONER THR.
CHAIRMAN RESIDENCY AREA INDORE (MADHYA
PRADESH)
5. ADDITIONAL SECRETARY SCHOOL EDUCATION
DEPARTMENT VALLABH BHAWAN MANTRALAYA
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI V.S. CHOUDHARY - PANEL LAWYER FOR THE STATE.)
This petition coming on for admission this day, th e court passed the
following:
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 6/24/2023
3:59:33 PM
2
ORDER
The petitioner has filed this writ petition while praying for the following reliefs :
"i. Summon the entire relevant record from the possession of respondent authorities, kindly award the costs for litigation.
ii. Upon holding that impugned order dated 29-06-2020 (Annexure-P/1) as bad in the eyes of law, issue a writ of mandamus or any other appropriate writ, quashing the aforesaid order and directing that the arrears for the entire period be paid to the petitioner from the due date along with all consequential benefits etc. as if the said order was never passed.
iii. Also, kindly grant interest on delayed payments from the due date till the date of actual payment."
2. The facts as setforth in the memo of petition, reflect that the petitioner herein was earlier holding the post of Joint Director, Public Instruction, Bhopal in terms of the Recruitment Rules. The next promotional post of Joint Director is Additional Director, Public Instructions, and the same is required to be filled up in terms of the M.P. Public Service Promotion Rules, 2002 [for brevity "Rules 2002"].
3. In terms of the statutory rules the Department considered the eligibility of the officers for promotion to the post of Additional Director, Public Instructions. The name of the petitioner was also considered however, in absence of vacancies, he was kept in the waiting list at Sr. No.1 under the General Category candidates. In terms of the recommendation of the Departmental Promotion Committee (DPC) promotion orders in favour of other employees were issued on 01-04-2016.
4. The petitioner then submitted a representation to respondents Signature Not Verified informing that there were six vacant posts of Additional Director, Public Signed by: AJAY KUMAR CHATURVEDI Signing time: 6/24/2023 3:59:33 PM 3 Instructions, available and there were other posts which had fallen vacant, against which candidates from the waiting list could have been promoted. The representation of the petitioner was turned down by the respondents by passing the order dated 02-08-2017, which was assailed by the petitioner by filing a writ petition before this Court forming the subject-matter of W.P. No.13241 of 2017.
5. This Court vide order dated 16-04-2019 set aside the impugned order by which the representation of the petitioner was rejected, while directing the respondents to issue order of promotion of the petitioner. Thereafter, vide order dated 29-06-2020 the petitioner was promoted as Additional Director, Public Instructions, with effect from 01-04-2016. But, the respondents inserted a clause in the order that the petitioner was not entitled for arrears under the principle of "no work no pay". Thus, assailing the said clause or part of the order, the present petition is filed.
6. Learned counsel for the petitioner contends that in the present case, benefit of promotion has not been extended to the petitioner by the respondents on account of their own lapses. It is strenuously urged by the learned counsel that the respondents were not considering the case of promotion under a misconception that in view of status quo passed by the Apex Court in S.L.P. No.13954 of 2016 [R.B. Rai vs. State of M.P. & ors.], the petitioner herein was not entitled for promotion. Therefore, it is a case where the petitioner without there being any fault on his part, was deprived of from the benefit of promotion and the respondents were at fault in not extending the benefit of promotion to the present petitioner. Therefore, once there was a direction by this Court to the respondents to issue an order of Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 6/24/2023 3:59:33 PM 4 promotion in favour of the petitioner, backwages could not have been declined.
7. The learned counsel for the petitioner while placing reliance on the decisions of the Apex Court rendered in the cases of Union of India & ors. vs. K.V. Jankiraman and others, (1991) 4 SCC 109; Anand Mohan Saxena vs. State of M.P. and others, 2009 (4) MPLJ 523; State of Haryana and Ors. vs. O.P. Gupta and ors, (1996) 7 SCC 533; and Chandrashekhar Verma vs. State of M.P. and others, 2010 (3) MPLJ 463 vehemently argued that back-wages to the petitioner could not have been declined in the garb of the principle of "no work no pay".
8. Per contra, learned counsel for the respondents/State submits that the petitioner herein was not entitled for arrears on the principle of "no work no pay". It is contended by the learned counsel that as the petitioner did not perform the duties of the promotional post from 01-04-2016, therefore, no question arose for payment of arrears to the petitioner. It is further contended by the learned counsel that if arrears are given to the petitioner, the same will set a bad precedent in future cases of the like nature. It is put forth by the learned counsel for the State that no vacancies were available as pointed out by the petitioner at the relevant point of time, but the said fact could not be brought on record. Therefore, submits that the present petition filed by the petitioner deserves to be dismissed.
9. Heard rival submissions raised at the Bar and perused the records.
10. In the present case, this Court in the earlier round of litigation while considering the claim of the petitioner for promotion, held as under:
"In view of the above, when the petitioner is otherwise found eligible to be promoted to the post of Additional Director and posts fallen Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 6/24/2023 3:59:33 PM 5 vacant during the time of the panel prepared by the DPC and the representation was made by the petitioner asking his promotion qua availability of vacancies, rejection taking shelter of the order of the status quo in the case of R.B. Rai (supra) does not seem to be proper."
11. Therefore, it has been the stand of the respondents before this Court in the earlier round of litigation, that on account of an interim order of status quo passed by this Court in R.B. Rai (supra) case of the petitioner was not considered and his representation was rejected. Thereafter, this Court in para 12 of the order passed in W.P. No.13241 of 2017 directed the respondents to issue order of promotion of the petitioner. Para 12 of the order passed in W.P. No.13241 of 2017 is reproduced :
"12. Accordingly, in view of the discussion made hereinabove, taking note of the law laid down by the Apex Court in case of Oriental Insurance Company (supra) and also Ram Swarup Saroj (supra) and further clarification made by the Government of India vide its Office Memorandum dated 15th June 2018 and further by this Court in the case of Kushal Singh (supra), the order impugned is not sustainable and is hereby set a sid e. The respondents are directed to issue the order of promotion in favour of the petitioner considering the then exiting available vacancies as pointed out by the petitioner in his representation of the post of Additional Director. Such exercise be completed within a period of three months from the date of submitting the certified copy of this order."
Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 6/24/2023 3:59:33 PM 6[Emphasis supplied]
12. A perusal of the aforesaid reflects that this is a case where this Court specifically directed the respondents to issue an order of promotion in favour of the petitioner considering the existing vacancies. The respondents in terms of the order passed by this Court promoted the petitioner vide order dated 29-06-2020. Therefore, as the stand of the respondents pertaining to the reason on account of which the benefit of promotion to the petitioner was not extended, has been rejected by this Court. Hence, it is a case where on account of lapse of the respondents the benefit of promotion was not conferred to the petitioner with effect from the due date.
13. Therefore, in view of the law laid down by the Apex Court in the case of K.V. Jankiraman & ors. (supra) the petitioner is entitled for arrears of salary from the date of promotion. In paras 24 and 25 of the judgment in K.V. Jankiraman & ors. (supra) it is held as under :
"24. It was further contended on their behalf that the normal rule is "no work no pay". Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed under suspension, When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly.
25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 6/24/2023 3:59:33 PM 7 applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases."
14. Accordingly, the impugned order dated 29-06-2020, so far as it pertains to refusal to pay arrears of salary to the petitioner on the principle of "no work no pay", is set aside. The respondents are directed to pay all consequential benefits which are admissible to the petitioner on promotion as Additional Director, Public Instructions w.e.f. 01-04-2016.
15. Let entire arrears be paid to the petitioner within a period of 90 days from the date of production of certified copy of this order, failing which amount of arrears shall carry interest at the rate of 6% p.a.
16. The writ petition stands allowed in the above terms.
MANINDER S. BHATTI) JUDGE ac Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 6/24/2023 3:59:33 PM