75 1 1 bc2 CWP N02805 of2010 INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP N02805 of2010 Dateof decisionl 254201 1 DSadhnaThukral 0etitioner Versus State of Haryanaand others espondents CORAM HONBLE MRJSTICE PERMOD KOHLI 0 0 Present MRakesh GuptaAdvocate for the petitioner I C5 MrlSharma DAG Haryanafor respondent Nos and 2 I MrDandwal Advocate for respondent No 3 Z r PERMOD KOHLIJ Z The sole questionneeds determination in the presentpetition C10 IS the rightof the petitionerto claim salaryfor the periodshe was W2 Z from dischargingthe dutyof Principalafter havingbeen dulyappointed on account of an interimstaygrantedbythe Coun The facts necessary and relevant for the presentpetitionare beingnoticed hereinafter Indira Gandhi Mahila Kaithal is a government Ce aided institution Vacancyof the Principalin the said Collegewas advertised by respondentno Several persons includingtle petitionerappliedfor the post in question On the recommendation of the Selection Committee the petitionerwas selected and appointed as Principalvide order dated 920044nnexure l l The Pooja 2014.04.26 16:24 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 76 2 0 CWP N02805 of2010 1 of the petitioner was to be approvedby the Universityand the Commissioner HigherEducation The University also grantednecessary approvai Prior to the appointmentof the the Commissioner Higher Education also approvedthe recommendations of the Selection Committeedated 532004 vide its memo dated 92004 lnexure 1 P3 The petitionerjoinedas Principalon 10 32004 One Mrs C4 Krishan Kanta Sood who was as Principalin the said 0 0 Collegepriorto the petitionersselection filed CWP No655 of 2004 I C5 the selection and appointment of the petitionerOn this I writ petitionbeingfiled the followinginterim order was issued on Z 18320041 2 Notice of motionfor 6004 l er I Dasti process only In the meantime the order respondentno 5 on Z the postof Principalis stayed CO A copy of this order be givendasti to the Iearnedcounsei 7 Z for the petitionerduly authenticated by the Special Secretary of this Cour In due deference to the aforesaid order the Management asked the petitionerto stopworkingas Principalwith immediateeHect vide Ietter dated 192004 64nnexureP The petitioner stopped the duties as Principalin compliance of the order of the HighCourt and the direcions of the Management The writ petitionfiled by Mrrishan Kanta Sood was however dismissed vide order dated 92007 lnexure F71 holdingthat the writ petitionertherein was ineligiblefor the post of Principal With the Pooja 2014.04.26 16:24 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 77 3 0 CWP N02805of2010 dismissal of the writ the againjoinedthe postof Principaland is since then The petitionermade a to the for grantof salarysince the date of her appointment The of the Collegeadopteda Resolution NoA in the meetingof the governingbodyheld on 171 22007 and resolved to forward the case for the m benefit of previousservice of the petitioner to the Commissioner HigherEducation Haryanahe adoptedanother 0 0 Resolution on 252008 the service of the petitioneras I 0 Principal with all benefits from the date of her initial 1e I 102004 and forwarded the same to the Government The Z Commissioner HigherEducation Haryana vide communicationdated r 3132009 64nnexureP l Ol informed the that the I petitioneris not entitledto the benefit of pay for the period192004 r to 132007 havingnot worked on the post On comingto know the Z petitionerserved a Iegalnotice dated 29009 nnexure Pl l l to CO the Government through her counsel This notice has been J Z respondedto vide Ietterdated 11122009 Innexure 121and again the request of the petitionerfor salary for the periodshe was preventedfrom discharging duties Oll account of interim stayof the Court has been declined Both the orders dated 31 2009 Annexure POl and dated 1122009 lnexure P121 have been eO challengedin the presentpetition Funher a writ in the nature of Mandamus is soughtfor the issuance of directionto the respondents to paysalaryto the petitionerfor the period192004 to 132007 Contention raised on behalf of the petitioneris that she was dulyselected by the Selection Committee which interalia include the Pooja 2014.04.26 16:24 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 78 4 0 CWP No805 of2010 of the Governmentand she had joinedthe duties on I but was prevented from her duties onlyon account of an interim staygrantedbythis Court and thus she was alwaysreadyand willingto dischargeher duties as Principal It IS arguedon behaif of the petitioner that the petitioner was availablefor discharging her duties as Principaland thus she cannot m be denied the salaryfor the periodshe was forced to remain away tr from the duties The action of of duties is not 0 0 attributableto the petitionerin any manner rather on account of the I C5 circumstances beyondher contro The Managementhas supported I the claim of the petitionerIt IS stated in the replyfiled by the Z that the petitionerhad joinedthe duties but on account 2 0 of the interim staygrantedbythe Court she was asked not to perform I the duties The has alreadypassedtwo Resolutions in favour of the petitioner Z The State in the replyhas repeatedand reiterated the stand m alreadyconveyedin the impugnedorders W2 Z The circumstances for of the duties by the 0 petitionerare admitted by all the partiesto the petition Thus the sole questionis whether the petitionercan be Iawfullydenied the emoluments for nonoerformance of duties when she was always readyand willingto performthe dutiesbut prohibitedby the mandate m0 of the Court from doingso and whether Itl such circumstances the principleof no work no pay would be attracted In case of Union of India etc etc v Jankiraman etc etc AlR 1991 SupremeCourt 2010 it was held that where an employeeis exonerated in the departmental proceedingsor acquittedin criminal proceedingshe would be Pooja 2014.04.26 16:24 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 79 5 0 CWP N02805 of2010 entitledto all the wages for the periodand the normal rule of no worl no pay is not applicable The relevant observations are as undeo The normal rule of no work no pay is not applicable to cases such as the presentone where the employee althoughhe is willingto work is keptaway from work by 1 the authoritiesfor no fault of I This is not a case where f the employeeremains away from work for his own 0 0 reasons althoughthe work is oHered to him It is for this I C5 reason that F 17l l will also be inapplicableto such caseS Il Z This view has been followed bythis Court in various judgments Reference can be made to the decisions of this Court in Bir Sinqh CC I Kadian v State of Harvana 199ll PLR 379 Vidva Parkash Harnal t3 V State of Harvana 199531SCT 785 Krishan Kumar vlarvana Z State Fed Of Consumers Coop Wholesale Stores Ltd 1997 SCT ClO 686 and KanwalieetSinqh V State of Harvanaand others 7 Z SCT 326 On behalf of the it is contended that since the petitionerhas not performedthe duties the doctrine of no WOrk no pay would no be attracted and the petitioneris not entitled to the salaryfor the periodshe did not work on the post of Principai 4000 Reference is made to a judgmentof the Apex Court in State of Harvanaand another v S K Khosla and others 2007151SCC 777 Inthis case Honble SupremeCourt appliedthe principleof no work no pay relying upon an earlier judgmentrepotted as State of Haryanav OGupta 1996 71SCC 533 In SKKhoslas case Pooja 2014.04.26 16:24 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 80 6 0 CWP N02805of2010 supral Honble SupremeCoun has held that the controversyIS identicaias in the case of State of Haryana v 0Gupta and thus theappealof the State was acceptedbysettingaside the judgment of thisCourt where under the writ was grantedthe arrears on grantof notional In 0PGuptas case referredto hereinabove the issue before the Honble Supreme Court i was for grantof arrears on fixationof seniority from the deemed date and as a consequence of fixationof seniority 0 0 The writ petitionersin the case before the Honble SupremeCoutt I C5 had approachedthis Court claimingarrears for the denial of I This Court allowed the writ petitionHowever Honble Z Supreme Court while consideringthe questionof paymentof arrearS a tr observed that there was a genuinesenioritydisputeand since the I seniorityhad not been settled the questionof promotionand willingnessof the writ to work on the promotionalpost Z does not arise Under these circumstances Honble SupremeCoun CO held that principle of no work no pay is applicable 7 Z In my humble opinion the judgmentsrelied upon by the Qm respondents are not attractedin the facts and circumstances of the presentcase In the presentcase petitionerhad a rightto work on the post of Principalhavingbeen duly and properlyselected and appointedto the post It was onlyon account of Courts intervention me that she was unable to performher duties Thus her readiness and willingnesswas undoubtedlythere From the analysisof the judgmentsreferred to above it seems that where an employee IS deprivedfrom performingdutiesfor no fault of hislher principleof no work no pay would not be applicable The case of the petitioner IS Pooja 2014.04.26 16:24 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 81 7 CWPN02805of2010 on much strongerfootingthan the cases of the employeesagainst t whom are initiated and This petitionis allowecl Impugned orders dated 3132009 F101 and 1112 2 009 64nnexure 121are herebyset aside the respondents are directed to pay 1 C salaryto the petitionerfor the period192004 to 132007 Let the 0 arrears be calculated and paidwithin a periodof three months from 0 the date of receiptof certifiedcopy of this order I C5 I 4 Z 6QJtJ 61 April 252011 Permod Kohlil KD Judge I t3 1 Z To be reported ye 0 P 7 ll Pooja 2014.04.26 16:24 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document