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2016 Supreme(MP) 757
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BENCH
Sheel Nagu, J.
Manoharlal - Petitioner
Versus
State of M.P. and others - Respondents
Writ Petition No. 1550 of 2009
Decided On : 28-07-2016
Advocate Appeared:
For the Petitioner: Shri Prashant Sharma
For the Respondents: Shri Kamal Jain
The main legal point established in the judgment is that the principle of 'no work no pay' should not apply in cases of retrospective promotions where the denial of promotion is not due to any fault of the employee and the employee is ready and willing to work.
Headnote:
retrospective promotion - arrears of salary - Constitution of India - Article 226 - 7.1 Union of India v. K.V. Jankiraman, AIR 1991 SC 2010, 7.2 State of A.P. v. K.V.L. Narasimha Rao and Others, (1999) 4 SCC 181, 7.3 State of Kerala and others v. E.K. Bhaskaran Pillai, (2007) 6 SCC 524, 7.4 R.B. Guhe v. State of M.P., 2008 (5) M.P.H.T. 291, 7.5 Anand Mohan Saxena v. State of M.P. and another, 2009(4) M.P.L.J. 523, 7.6 Pushpa Usgaonkar v. State of M.P. and ors., I.L.R. (2010) M.P. 1545 - The court discussed the concept of 'no work no pay' and its application in cases of retrospective promotions, emphasizing that if the employee is ready and willing to work and the denial of promotion is not due to any fault of the employee, the principle of 'no work no pay' should not apply. The court also referred to various cases and legal provisions to support its decision to grant arrears of salary to the petitioner.
Fact of the Case:
The petitioner sought arrears of salary arising from retrospective promotion from Stenographer Grade-II to Stenographer Grade-I. The petitioner had previously filed a writ petition claiming relief for proforma promotion and seniority refixation, which was allowed by the court. The State implemented the order by granting retrospective promotions but denied arrears of salary based on the principle of 'No work No pay'. The petitioner challenged this denial.
Finding of the Court:
The court found that the denial of arrears of salary to the petitioner was unjustified and unlawful, as the petitioner was ready and willing to work and the denial was not due to any fault of the petitioner. The court also emphasized the executive instructions of 1989 and 1990, which provided for the grant of arrears of salary in cases of retrospective promotions.
Issues: The main issue was the denial of arrears of salary to the petitioner based on the principle of 'No work No pay' despite the petitioner being ready and willing to work and the denial not being due to any fault of the petitioner.
Ratio Decidendi: The court held that the principle of 'no work no pay' should not apply in cases where the denial of promotion is not due to any fault of the employee and the employee is ready and willing to work. The court also relied on executive instructions of 1989 and 1990 to support the grant of arrears of salary in cases of retrospective promotions.
Final Decision: The court allowed the petition and quashed the order denying arrears of salary to the petitioner. The petitioner was granted arrears of salary arising from the retrospective promotion to the post of Stenographer Grade-I, along with interest at the rate of 9% per annum.
Sheel Nagu, J.
The present petition under Article 226 of the Constitution of India seeks arrears of salary arising out of grant of retrospective promotion from the post of Stenographer Grade-II to Stenographer Grade-I, vide Annexure-P/1-A dated 7/10/2005 with retrospective effect from 15/3/1988.
2. The facts in nutshell are that the petitioner who entered Government service as LDC was appointed as Stenographer Grade-III in 1978 where-after on account of his supersession as regards the post of Stenographer Grade II and Stenographer Grade-I, petitioner was impelled to prefer Writ Petition No. 2617/03, claiming following relief:
(a) It may kindly be declared that the applicant is entitled to get the proforma promotion from the dated 3/12/1979 against the respondent No. 4. His seniority may kindly be refixed as Sl. No. 38 against the Junior Employees Jagdish Prasad Saluja, Smt. Karuna Bargaonkar, Ku.Usha Vyas and Omprakash Phoolwar.
(b) It may also kindly be declared that the applicant is entitled to get the promotion of First Grade Stenographer from the date of 27/12/1989 and 20/6/1990 against the Respondent No. 4 with all the monitory benefits etc.
(c) The cost of the petition be also awarded to the applicant.
2.1. By the judgment dated 20/7/2004, W.P. No. 2617/2003 was allowed in the following terms:
"7. Accordingly, this petition is allowed and disposed of with a direction that the petitioner shall be deemed to have been promoted to the post of Stenographer Grade-II with effect from 3.12.79 i.e. the date on which his immediate junior was promoted to the said post. Petitioner is granted proforma promotion in the aforesaid post from the said date and his seniority be corrected accordingly. After correcting his seniority, review D.P.C., be convened to consider the case of the petitioner for promotion to the post of Stenographer Grade I in accordance with the rules within a period of three months from the date of filing of certified copy of this order. Necessary action be taken and communicated to the petitioner within the aforesaid period."
2.2. The respondents/State implemented the above said order by passing Annexure-P/9 on 7/10/2005 by holding review DPC and promoting the petitioner to the post of Stenographer Grade-II w.e.f. 3/12/1979 on proforma basis as directed by the court. Subsequently, Annexure-P/1-A was issued on 7/10/2005 granting next consequential promotion to the post of Stenographer Grade-I w.e.f. 15/3/1988
2.3. However, stipulation was made in the said order Annexure-P/1-A that by following principle of 'No work No pay' arrears of salary arising out of difference of salary admissible to the post of Stenographer Grade-I and Stenographer Grade-II shall not be granted to the petitioner.
2.4. The petitioner preferred a representation which was dismissed by Annexure-P/1 dated 2/2/2009 which after referring to the High court decision dated 20/7/2004 assigned the reason that since the petitioner had not actually worked as Stenographer Grade-I, the difference of salary is inadmissible by applying principle of 'No work No pay'.
3. State, on the other hand, filed return primarily stating that since the petitioner had not actually worked on the post of Stenographer Grade-I, the State was correct in invoking the principle of 'No work No pay', for denying difference of salary.
4. Learned counsel for the petitioner mainly submits that in first round of litigation, the petitioner had specifically raised his grievance for grant of consequential benefits arising out of retrospective promotion sought by him to the post of Stenographer Grade-I. In regard to the said relief, it is contended that judgment of this court in clear terms mentions that after proper fixation of seniority in the cadre of Stenographer Grade-II, the petitioner should be considered for promotion by review DPC to the next post of Stenographer Grade-I, in accordance with rules prevailing at the relevant point of time.
4.1. In continuation, learned counsel for the peti
