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PATNA HIGH COURT
S.B.Sinha and G.C.Bharuka JJ.
Rana Raghunath Pd.Singh
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 7554 of 1990 ;
Decided On : NOVEMBER 5, 1992
CONTEMPT OF COURT - PROMOTION - MONETARY BENEFITS - ENTITLEMENT - BIHAR SERVICE CODE, RULE 58 - INTERPRETATION - NO WORK NO PAY PRINCIPLE - EXCEPTION - EMPLOYEE KEPT OUT OF WORK FOR NO FAULT OF HIS OWN - ENTITLEMENT TO SALARY AND BENEFITS FROM DATE OF NORMAL PROMOTION.
Fact of the Case:
The petitioners, subedars in the Bihar Military Police Service, were denied promotion despite being eligible. They filed a contempt petition alleging non-compliance with the court's order directing their promotion. The State claimed that Rule 58 of the Bihar Service Code barred payment of arrears to those who joined a post later despite notional confirmation from an earlier date.
Finding of the Court:
The court held that Rule 58 of the Bihar Service Code was inapplicable in this case as the petitioners were not responsible for the delay in their promotion. The court relied on the Supreme Court's decision in Union of India v. K. V. Janki Raman, which held that the "no work no pay" principle does not apply when an employee is kept out of work for no fault of his own.
Issues: 1. Whether Rule 58 of the Bihar Service Code barred payment of arrears to the petitioners who joined the promotional post later despite notional confirmation from an earlier date. 2. Whether the petitioners were entitled to salary and benefits from the date of normal promotion despite not working in the higher post due to the State's delay in issuing promotion orders.
Ratio Decidendi: 1. Rule 58 of the Bihar Service Code is a general rule applicable when a government servant does not join a post of his own accord. It does not apply when an employee is ready and willing to work but is prevented from doing so for reasons beyond his control. 2. The "no work no pay" principle does not apply when an employee is kept out of work for no fault of his own. In such cases, the employee is entitled to salary and benefits from the date of normal promotion.
Final Decision: The court directed the State to pay the petitioners their salary, allowances, and other benefits with effect from the date of their promotion, within two months from the date of the order.
S. B. Sinha and G. C. Bharuka, JJ.
1. The question as to whether the petitioners are entitled to monetary benefits by way of enhancement of salary, increments etc. with effect from 31-12-1981 and consequent upon their payment in the aforementioned date is the question involved in this application.
2. Bereft of all unnecessary details the fact of the matter is as follows :-
3. The petitioner No.1 was appointed in the Bihar Military Police service on 11-8-1955 and was promoted to the post of Subedar on officiating basis on 16-5-1975. He was also confirmed subsequently from that date.
4. The petitioner No.2 was initially appointed in Bihar Military police Service on 6-1-1957 and was ultimately promoted to the post of subedar on officiating basis with effect from 1-7-1975 and was confirmed on that post with effect from 26-7-1976.
5. The petitioners claim themselves entitled to be promoted as Dy. Supdt. of Police in the Police service on the basis of their respective seniority or other employee.
6. The State issued two circulars dated 5-11-1980 and 20th July, 1981 in terms whereof the seniority was directed to be counted from the date from which the incumbent started substantive officiation and consequently the petitioner was not considered for promotion. The said circulars came up for consideration in C. W J. C. No.3130 of 1981.
7. A Learned Single Judge of this court upon taking into consideration the surgeant-Major Rules of 1944 held as follows :-
"1, therefore, feel that the authorities should re-examine their stands in the light of the aforesaid observations and deeper study of the decisions involved before setting any criteria to be followed in the cases for determining the seniority of the members of the Police force at all levels. I have, therefore, no hesitation in quashing Annexures-5 and 6 and directing the respondents concerned to re-examine the situations in the light of the above discussions and to give a final decision in accordance with law in this regard. Before they do so, they should refrain from disturbing the method prescribed in the 1944 sergeant-Major Rules. I may state that in the police manual also there is no rule to indicate as to in what manner it would affect that Sergeant-Major Rules. Needless to say that in view of the interim order of this court the promotions, if any, made shall be subject to the re-appraisal of the principle involved in annexures-5 and 6. "
8. As the respondents allegedly did not comply with the said order, an application for initiation of a proceeding under the Contempt of Courts act was filed on 10-7-1981 which was registered as MJC No.97/87. In the meanwhile, it appears, ad hoc promotion were being given to the persons junior to the petitioners.
9. By an order dated 21-4-1987 this court, therefore, granted three months time to the State to enable the Director General of Police and his subordinate officers concerned to rectify the situation, unless that is done, would in all likelihood, amount to disobedience of the order of this court.
10. As despite the said notice no order of promotion was issued, the said petition was admitted and the notices were issued to Opp. parties 2 to 5 thereof. On 22-9-1987 a notification was produced in the court to indicate that this courts order passed in C. W. J. C. No.3130 of 1981 has been complied with in terms whereof the petitioners were allegedly promoted on temporary and/or ad hoc basis.
11. This court thereafter made certain observations in its order dated 6-10-1987 in the aforementioned application. By an order dated 1-11-1987 which Ts contained in Annexure-5 to the writ application, however, 11 subedars including the petitioners were given promotion with effect from 31-12-1981.
12. The petitioners have however, contended that in terms of the aforementioned order they have not been given any monetary benefits by way of enhancement of salary, increments etc. with effect from 31-12-1981. The petitioners filed a representation on 16-1
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