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2011 Supreme(MP) 332
2011 (3) JLJ 187
S.C. Sharma, J.
Lakshaman Singh
Versus
State of M.P. and others
Writ Petition (5) No. 6097 of 2010 (Indore);
Decided on 27.4.2011. ,
R.S. Trivedi for petitioner;
Ms. Seema Sharma, Deputy Government Advocate for respondents.
Headnote:Civil Services -- petitioner appointed as constable -- placed in fit list of promotion to the post of head constable in 1990 -- promoted in 1991 - this promotion wrongly cancelled only after 5 days without any opportunity of hearing -- after long litigation, matter remanded back to the concerned authorities -- authorities rectified their mistake by promo ling him with retrospective effect -- petitioner not at fault at any point of I me -- principle of no work no pay not applied in these circumstances -petitioner entitled for full back wages.
Held: The apex Court in the aforesaid case has held that the principle of no work no pay cannot be accepted as rule of thumb and full back wages can be granted in certain circumstances, particularly when promotion is wrongly denied.
In the present case, the petitioner was entitled for promotion with effect from 1991 and he was promoted also to the post of Head Constable. His-promotion order was wrongly cancelled and after the matter was remanded back to the authorities, the authorities have rectified their mistake and petitioner has been promoted with retrospective effect and therefore this Court is of the considered opinion that the petitioner is entitled for back wages (difference of salary). 2009(III) MPWN 87 and 2010(III) MPWN 66 relied on. (2007) 11 SCC 632 and (2007)6 SCC 524 discussed. [Paras 10 & 11
flfoy lsok && ;kph dkaLVscy ds :i esa fu;qDr && mls 1990 esa gsM dkaLVscy ds in ij izksUufr dh ;ksX;&lwph esa j[kk x;k && 1991 esa izksUur && ;g izksUufr ek= 5 fnu i‘pkr~ lquokbZ ds volj ds fcuk xyr rkSj ij jn~n && yach eqdnesckth ds i‘pkr~] ekeyk lacaf/kr izkf/kdkfj;ksa ds ikl okil Hkstk x;k && izkf/kdkfj;ksa us mls Hkwry{kh izHkko ls izksUur dj viuh Hkwy lq/kkjh && ;kph le; ds fdlh Hkh fcanq ij xyrh ij ugha && bu ifjfLFkfr;ksa esa ^^dke ugha rks osru ugha** dk fl)kr ykxw ugha && ;kph iw.kZ fiNyh etnwjh dk gdnkjA
vfHkfu/kkZfjr % iwoksZDr ekeys esa loksZPp U;k;ky; us vfHkfu/kkZfjr fd;k gS fd ^^dke ugha rks osru ugha** dk fl)kar vuqHko dh ckr ds :i esa Lohdkj ugha fd;k tk ldrk rFkk dqN ifjfLFkfr;ksa esa] fof‘k"Vr;k tc izksUufr xyr rkSj ij ukeatwj dh xbZ gks] iw.kZ fiNyh etnwjh Lohd`r dh tk ldrh gSA
izLrqr ekeys esa] ;kph 1991 ls izksUufr dk gdnkj Fkk rFkk mls gsM dkaLVscy ds in ij izksUur Hkh fd;k x;kA mldk izksUufr vkns‘k xyr rkSj ij jn~n fd;k x;k rFkk ekeyk izkf/kdkfj;ksa ds ikl okil Hkstus ds i‘pkr~] izkf/kdkfj;ksa us viuh Hkwy lq/kkjh rFkk ;kph dks Hkwry{kh izHkko ls izksUur fd;k rFkk blfy, U;k;ky; dh lqfopkfjr jk; gS fd ;kph iw.kZ fiNyh etnwjh ¼osru ds varj½ dk gdnkj gSA 2009¼3½ e-iz- ohDyh uksV~l 87 rFkk 2010¼3½ e-iz- ohDyh uksV~l 66 voyafcrA ¼2007½11 ,l lh lh 632 rFkk ¼2007½6 ,l lh lh 524 foosfprA
¼iSjk 10 ,oa 11½
1. Mr. R.S. Trivedi, learned counsel for the petitioner. Ms. Seema Sharma, learned Deputy Government Advocate for the respondent.
Petitioner before this Court has filed this present petition being aggrieved by order dated 11.7.2006 as well as order dated 31.10.2009 passed by respondents, by which the petitioner has not been granted arrears of salary, on account of his retrospective promotion with effect from 1991.
2. Contention of the petitioner is that he was appointed as Constable and was placed in the fit list of promotion to the post of Head Constable in the year 1990 and order was issued on 1.6.1991 promoting the petitioner to the post of Head Constable. Promotion order was cancelled on 6.6.1991, without granting any opportunity of hearing to the petitioner and the petitioner being aggrieved by his reversion to the post of Constable came up before this Court by filing a writ petition and the same was registered as WP No.3877/20003. The aforesaid writ petition was allowed by order dated 16.12.2004. The impugned order therein of reversion was quashed and the respondent No.3 was directed to pass a fresh order after granting an opportunity of hearing to the petitioner. Following order was passed by this Court :
"that impugned order Annexure C dated 6.6.1991 is hereby quashed, but it does not mean that the petitioner will be treated as Head Constable. Petitioner will remain as Constable, however, the respondents may issue a show cause notice to the petitioner mentioning the reasons why he is not entitled for promotion and promotion order is required to be cancelled. Thereafter, the petitioner will submit a reply mentioning in details and he may take all the grounds which are required, as per law. If petitioner wants personal hearing that may also be given to the petitioner. After considering the reply, the respondents may pass a fresh order with regard to cancellation of promotion order of the petitioner. The said exercise be completed within a period of four months from the date of receipt of the order.
Petition is disposed of accordingly.
C.c. as per rules."
3. Respondents in compliance of the aforesaid order issued a show cause notice on 23.3.2005 to the petitioner and the petitioner did submit a reply to the show cause notice and thereafter an order was passed on 27.5.2005. By the aforesaid order, the petitioner was again included in the fit list of 1990, however, was granted promotion from the date of joining on the post of Head Constable. The petitioner thereafter again represented in the matter and another order was issued on 11.7.2006 granting a promotion to the petitioner notionally to the post of Head Constable with effect from 6.6.1991 and back 'wages were not granted to the petitioner by applying the principles of 'no work no pay'. Petitioner again came up before this Court by filing writ petition and same was registered WP No.5587/2007. The aforesaid writ petition was withdrawn with a liberty to prefer an appeal before the competent authority. The appellate authority has now finally passed an order dated 31.10.2009 and the petitioner has been granted notional seniority from 1991, however has not been granted backwages.
4. Learned counsel for the petitioner has drawn the attention of this is Court towards judgment delivered by Division Bench of this Court in the case of Anand Mohan Saxena v. State of M.P. , reported in 2009(III) MPWN 87=2010(1) MPHT 81 (DB), and also in the case of Chandrashekhar Verma v. State of M.P. and another, reported in 2010(III) MPWN 66, and his contention is that he was not at fault at any point of time and because of lapse committed by the respondents he cannot be denied backwages/ difference of salary.
5. Reply has been filed in the matter and the stand of the respondents is that the petitioner as he has not worked on the post of Head Constable is not entitled for any salary on the principle of 'no work no pay' and writ petition deserves to be dismissed.
6. Heard learned counsel for the part
