IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION Appellate Side Present:

The Hon’ble Justice Ajay Kumar Gupta WPA 3938 of 2020 With CAN 1 of 2021 Ab. Sattar Versus The State of West Bengal and Others For the Petitioner : Mr. Bidhayak Lahiri, Adv.

Mr. Md. Kalam, Adv.

Ms. Bhaswati Lahiri, Adv.

For the K.M.C. : Mr. Alok Kr. Ghosh, Adv.

Mr. Swapan Kr. Debnath, Adv.

Heard on : 24.02.2025 Judgment on : 19.03.2025 Ajay Kumar Gupta, J:

1. By filing this Writ Petition, the petitioner has challenged the impugned order dated 11th January, 2020 passed by the Chief Manager (Personnel), Personnel Department, Kolkata Municipal Corporation, Kolkata.

2. By the said impugned order, the Chief Manager (Personnel) rejected the application/representation of the petitioner stating therein that the claim for payment of arrear salary could not be entertained on the principle of “No Work, No Pay”. It was stated that “No Work, No Pay” is the normal Rule, but, “No Work, Yet Pay” is the exception. The Rule of exception cannot be applied in the case of the petitioner, when he himself was at fault.

3. The said impugned order was passed by the Chief Manager (Personnel), Personnel Department in pursuant to direction passed by the Single Bench of this Court in Writ Petition filed by the petitioner in earlier round of litigation being WP No. 4795 (W) of 2011 (Ab.

Sattar Vs. State of West Bengal and Others).

4. The Single Bench of this Court has directed the OSD and DMC (P), KMC or any other competent authority discharging the function of the said post to consider and dispose of the representation of the petitioner dated 21st September, 2010 made through his learned advocate in accordance with law while considering the two decisions of the Hon’ble Apex Court passed in the cases of Mohd. Ahmed Vs. Nizam Sugar Factory and Others1 and Union of India and Others Vs. K. V. Jankiraman and Others2.

5. The background facts, which led to filing of this writ petition, may be adumbrated as under: -

5a. The petitioner was appointed as a Guard on 20th March, 1972 in Kolkata Municipal Corporation (hereinafter referred to as ‘the Corporation’). He was promoted to the post of Security Assistant Grade – III in the year 1998 and further promoted to the post of Security Assistant Grade – II in the year 2007. However, despite his diligent and exemplary service, he was not promoted to any higher position until his retirement on 28th February, 2010. The petitioner made several requests for promotion but his request went unheeded from 2005 till his superannuation. Though, he was entitled for promotion to the post of Security Assistant Grade – I with effect from 27.06.2001 and to the post of Assistant Sergeant with effect from

31.01.2006.

5b. Additionally, during his service period, he found that juniors to him were promoted while his case was overlooked. He discovered

1 (2004) 11 SCC 210

2 (1991) 4 SCC 109

that the record of the corporation recorded his date of joining erroneously on 27.04.1981 instead of correct year of 1972. Upon realizing this mistake, the petitioner submitted a request for correction on 27.09.2005 to the authority concern for correction and the same was sent to DMC (P), KMC on 17.10.2005. But, he was not promoted to the aforesaid posts.

5c. Prior to 10 days of his retirement date, an Office Order No. D.M.C. (P)/PT/III-A/273/2009-10 issued by the O.S.D. & D.M.C. (Personnel) wherefrom it was learnt by the petitioner that he was only allowed notional fixation of pay without any arrear benefits as, inter alia, as follows:-

“Pursuant to the order of Jt. Municipal Commissioner(G) dated 27/01/2010, Mr. A.B Sattar, Security Assistant (Gr.-II), [Emp.ID-42914] of Water Supply Department, (Br.XI) is hereby promoted to the post of Security Assistant (Gr.-I) w.e.f. 27/06/2001 in the Pay scale of Rs. (3800-7775) and to the post of Asst. Sergeant w.e.f. 31.01.2006 in the Pay Band (P.B-3) Rs. {7100-37600} plus Grade Pay Rs. 3900/- and considering his early retirement w.e.f (28.02.2010)