( 1. ) THE appellant being aggrieved by the order dated 10-7-2008 passed by learned Single Judge of this Court in Writ Petition No. 23519/2003 has filed this writ appeal submitting inter alia that the learned Single Judge was unjustified in observing that the appellant would not be entitled to the back wages on application of the principle of no Work No Pay.

( 2. ) THE short facts, necessary for disposal of the present writ application, are that the appellant who was working as Senior Cooperative inspector made a representation in the year 1966 and thereafter reminded the government that he was entitled to certain benefits. However, nothing was done in his favour, therefore, he filed Original Application No. 1066/1996 before the State Administrative Tribunal. After abolition of the State administrative Tribunal the matter came to this Court and was registered as writ Petition No. 23519/2003. ( 3. ) AFTER hearing learned Counsel for the parties, the learned Single judge relying upon Fundamental Rule 31-A and the Government Order no. FA-1-1-73-R-1-IV, dated 25-4-1974 that if a person was assigned wrong seniority and was later on assigned correct seniority, on promotion would not be entitled to the financial benefits on the principle of no Work No Pay, dismissed the writ petition.

( 4. ) SHRI Saxena, learned Counsel for the appellant after taking us through Fundamental Rule 31-A and the Government order dated 25-4-1974 submitted that the Government order dated 25-4-1974 runs contrary to fundamental Rule 31-A and present is not a case where the petitioner ever refused to work on the higher post. According to Shri Saxena, if the petitioner was ready and willing to work and there were lapses on the part of the State government in not promoting the petitioner or not assigning the work of a promotional post then no premium can be added to the lapse on the part of the state.

( 5. ) SHRI Rahul Jain, learned Counsel for the State, on the other hand, submitted that a juxtapose reading of Fundamental Rule 31-A with government order dated 25-4-1974 would clearly show that where the promotion of a Government servant is delayed due to wrong assignment of the position in the gradation list then on correction of the gradation list and promotion with retrospective effect the Government employee would not be entitled to the difference of the salary and other benefits. According to him, the learned Single Judge was absolutely justified in dismissing the writ petition.

( 6. ) IT is not in dispute before us that the petitioner was given promotion on the post of Assistant Registrar vide order dated 6-5-1999 and was granted his due seniority vis-a-vis Shri M. L. Upadhyay. From this fact it would clearly appear that the Government was of the opinion that the petitioner was entitled to his promotion and he was wrongfully not given the promotion. According to the order dated 6-5-1999 the promotion was to be made effective from 30th april, 1994.

( 7. ) IT is not the case of the Government that the petitioner denied the responsibilities of the higher post or was not ready and willing to work as the assistant Registrar. In our considered opinion, the principles of no Work No pay shall apply to a case where a person voluntarily refuses to work or for some special reasons the work could not be assigned to him. In the present case, undisputedly because of the wrong assignment of the seniority in the gradation list the appellant was denied promotion and the charge of the superior post.

( 8. ) THE question still would be that in view of Government order dated 25-4-1974 the petitioner would be entitled to the benefits of the higher pay with effect from 30th April, 1994 or he only has to receive the benefits with effect from 6-5-1999. Fundamental Rule 31-A provides:

"f. R. 31-A. Notwithstanding the provisions contained in these rules, the pay of a Govt, servant whose promotion or appointment to a post is found to be or to have been erroneous, shall be regulated i