^^^s^ ^^t^€^^ ^SSiS. t ^:i^p^y p,GW ^^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Petitioner W. P. (S) N0. '3^° / 2010 :/ B.K.Diwan, Aged about 68 years, S/o Late Shri Hummak Lal Diwan, R/o Behind Post Office, Pandri, Raipur, Distt. Raipur-(C.G.) Versus Respondents / :1. State of Chhattisgarh, Through - Secretary, Scheduled Caste and Scheduled Tribes Welfare Department (Mantralaya), D.K.S. Bhawan, Raipur- (C.G.) Director, Scheduled Tribe and Scheduled Caste Welfare Department, Raipur-(C.G.) WRIT PETITION UNDER ARTICLE 226 / 227 OF THE CONSTITUTION OF INDIA 2. N> N HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS Writ Petition (S) No. 3800 of2010 B.K.Diwan. VERSUS State ofChhattisgarh& Another. ^F^ /=6 Post for pronouncement ofjudgment & order on /<? day ofFebruary, 2011. Sd/- Satish K. Agnihotri Judge \^^ HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS Writ Petition (S) No. 3800 of2010 B.K.Diwan. VERSUS State ofChhattisgarh & Another. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri. J. Present: Shri Virendra Sharma, Advocate for the petitioner. Shri Ajit Singh, Panel Lawyer for the State/respondents. T^ (Delivered on .. /.^. day of February, 2011) 1. Challenge in this petition is to the order dated 08.04.2008 (Annexure P/l) whereby the petitioner has been granted notional promotion w.^./ 05.09.2000 without arrears, for the purpose of fixation of his pay scale. 2. The facts/in brief, as projected by the petitioner are that the junior to the petitioner was promoted to the post ofPrincipal, Higher Secondary School, on the pay scale of Rs. 8000-275-13500, on 05.09.2000. The petitioner was denied consideration and promotion without any rhyme or reason. Being aggrieved, the petitioner preferred awrit petition, being W.P. No. 6326/2005, which was disposed of on 15.12.2005 (Annexure P/2), directing the petitioner to make a fresh representation 1 1 ^^^:^ .,^ ?y^^e^ 'u^ raising his grievances before the competent authority. It was further directed that if the representation is made within a period of one month, the same shall be considered in accordance with law by the authorities within a period of four months from the date of receipt of the representation. Thereafiter, a representation was made by the petitioner but it was not decided within the prescribed time as directed by this Court on 15.12.2005 (Aiinexure P/2). Thus, a contempt petition was filed, being Contempt Petition No. 87/2004. After notice in the contempt petition, the representation of the petitioner was decided on 07.05.2007 (Annexure P/3), holding that the petitioner could not be considered and promoted on account of non-availability of his Annual Confidential Reports (for short 'the ACRs)) m the Departmental Promotion Committee (for short, (the DPC)) meeting held on 21.12.1999 and 03.03.2000. Thus, his representation was rejected. Thereafter,the impugned order dated 08.04.2008 (Annexure P/l) was passed granting notional promotion for fixation ofmonetary benefits w.^./ 05.09.2000 when his junior Jagdish Prasad Patel, was promoted, without arrears ofsalary. 3. Shri Virendra Sharma^ learned counsel appearing for the petitioner would submit that the petitioner cannot be denied benefit ofpromotion for the wrongcommitted by the officers as it was for the officers to produce and circulate the ACRs of the petitioner for consideration at the relevant time. Even if the same was not available, the petitioner ought to have been considered on the basis ofother materials available ^ to them. There was no departmental enquiry or criminal case pending against the petitioner. Thus, the petitioner was entitled to promotion ^w.e.f. the date his junior was promoted, with consequential benefits. Further, the respondents' stand that on the principle of 'no work, no pay' the petitioner was not entitled to arrears of salary as he has not worked on the post/is contrary to the well settled principle of 'no work, no pay\ Shri Sharma would rely on the decisions of the Supreme Court in Union of India & Others v. K.V.Jankiraman & Others and Commissioner, Karnataka Housing Board v. C. Muddaiah2, 4. On the other hand, Shri Ajit Singh, learned Panel Lawyer appearing for the State/respondents would submit that since thepetitioner could not be considered and promoted and he had, in fact, not worked on the higher post i.e. Principal, Higher Secondary School, thepetitioner is not entitledto arrears ofsalary on the principle of 'nowork, no pay\ He would rely on a decision of the Supreme Court in Union oflndia & Another v. Tarsem Lal & Others3 and State ofHaryana & Others v. O.P.Gupta & Others4. 5. Having heard leamed counsel appearing for the parties, perused the pleadings and documents appended thereto, it is indisputable as also admitted by the respondents in the order dated 07,05.2007 (Annexure P/3) that the case ofthe petitioner could not be considered in the DPC ' (1991)45cc 109 2 (2007) 7 SCC 689 3 (2006) 10 SCC 145 4 (1996)78cc 533 ^ Ml •!!IJ ''•••^ meetings held on 21.12.1999 and 03.03.2000 for want ofACRs ofthe petitioner. The relevant clause i.e. clause (5) of the order dated 07.05.2007, reads as under: "5- \3L1^41d ^CTN ^T^qT^zp ^ft f^cTH ^T "'TH 4<1-lR| ^t ^ 1?T ^TT 18^?T "TP7T STT ^l7 ^ '^f ^ W?rq 4<1-lR) ^ ^TrT f^fT TPTT t 'cR^T ^ft RcTR ^ cllf^d ^f "c^ qi^ <ii1q-i1q yR|c|c;-i ^T^tT Tr ^ ^ ^RUT ^?PTSf ^€4^-lRl ^T ^ ^TT ^R?f ^ft. JBft f^cTFT ^ 4R>9HUI M^^UI q^ f^ -^ f^7 z^ ^N^T Tr^iy^i ^TT^FT, CTf^Tr ^nf^ '?r^TT ^^Rid ^nf^r ch<^iiui f^Tprr -^ vii-i^i^ ffp<T -c^ IK -^^ ^T Pi^TT^ 950/1527/2007/1/25 f^TT^ 3.5.2007 ^RT 3TcPT?T ^^PTT 1[T^T t f^ ^ft ft.'^. f^TFT ^t yi-cii4, ?T^ ^ciyf "^ y 1-^114, ^.^TT.R "^ ^R' ^ 4^^R| ff^R ^^ ^ ^Nq" ^ \34d^T Rct^l^ ^^l^! 4R"y^ul ^ f^N ''T^T f^TT 7PTT t." 6. Shri Singh, in his submission, refeiTed a circular dated 20.03.1974 (Annexure R/A) wherein the circular is applicable to those government employees who were under suspension or there was a departmental proceeding pending against them. In the circular, it was mentioned that if an employee is exonerated in the departmental enquiry, the grant ofpayment would be considered on the ground that he had notworked during the said period. The relevant portion ofthe said circular reads as under: "2. ^t ff??T "q^ t 'OTfN^T ?<3TT t ^ f^T?r ^R' ^? ^T^^T ^?T ^ vdf^dRsld oyRvl ^t 4^^d f^TT TraT t '^3^ ~^^\ ^K ^R 4^-fpl ^ f^ ^' "cCT ^ ^Tr ^CTT q?r ^TcrfSr ^Picii4 '^t TT^ t ?ft ^T o4Rkl ^t ^TT 1^FT f^T ^' f7T7ft ^TPTIft. ^ ^N^T ^ ^ f^T^ I^T^ ^T^ t f^ f^TFf^ ^ ^NTT '3FPFT cbpl^ ^rf^r ^T f^Rf dl^l^ ^ 4<l^d f^TT TT£TT ^TT ^ft dl^l^) ^ ^rf^ c^lf^ ^t ^cn ^t f^p^ft 'OT^^VT ^fpjpr ^ f^? ^ ^m?. ^FRT ^pj^r Zf^ f^ZTT TTZTT ^ f^ ^iiji^ ^ 'sS^f^Pf ^uft ^ ^ll^q^ZT ^lqc^f -^) ^T?T f^qt?UT "c^ f^ ^t f^RT 't!^ "X ^ i •^.^y '.^' © Iwniiiiuii,; ai^<si ^ 'vTTPFT ^pi^o oqRn 'c^ qc,1-ia 'I^TT TraT t ^?r ?TP^ ^ ^ ^ft 4^-id Tm^r ^?T ?TT?^" ^ sTR- •c)?t 3TcTf^ ^)- <)ft c|^^^^|'T ^ f^Z)- f^-.ft ^n^ f^Tg f^rapft ^Tcrf^r "^ "^H oLl^H ^ '^T ^ ^T ^I^ cll^Rlcb ^T "^ "^ f^TTT t '^^T QTcTf^- ^r ^FTc^ ^dpW ^ ^t 4N<^1 7T^f ?tTft.." 7. In the case on hand, there is no dispute that there was no suspension or departmental enquiry pending against the petitioner. Thus, the circular dated 20.03.1974 would not be applicable to the facts ofthe case. 8. The question arises in this case for consideration is that ifan employee has been denied consideration and promotion on account of non- circulation ofACRs and his junior has been considered and promoted, whether on account ofsubsequent promotion w.e./ that date he would be entitled to consequential arrears of salary and other benefits. 9. The Supreme Court, in K.V.Jankiraman1, held that normal rule of 'no work, no pay' is not applicable to the cases where the employee, although, is willing to work/is kept away from work by the authorities for no fault on his part. It was held as under: "25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault ofhis. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R.. 17(1) will also be inapplicable to such cases." lO.The case of Tarsem Lal & Others3 and O.P.Gupta & Others4 relied on by the State/respondents is not applicable to the facts ofthe case as in Tarsem Lal & Others3, there was a Railway Board's circular dated ^:^. ^ 15.09.1964/17.09.19645 which provided for no payment ofarrears as the employee was not discharging the duties and responsibilities ofthe higher post. Case of Babu Lal v. Haryana State Agricultural Marketing Board, relied on by the State/respondents, is also not applicable to the facts ofthe case as it appears that in that case, the promotion was denied due to criminal prosecution and departmental proceedings, which exonerated ultimately. In the instant case, firstly, there is no executive instructions or circular which prevents from making payment of arrears of salary, and secondly, the petitioner was denied promotion not on account ofhis fault, but on account ofthe fault ofthe authorities, who failed to make the ACR ofthe petitioner available at the time of consideration ofhisjunior's case by the DPC. ll.The Supreme Court, m Commissioner, Karnataka Housing Board2, observed as under: "33. The matter can be looked at from another angle also. It is true that while granting a relief in favour ofaparty, the court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite ofthe factthat he is entitled to certain benefits,they had not been given to him. His representations have been illegally and unjustifiably turned down. He fmally approaches a court of law. The court is convinced that gross injustice has been done to ' (2009) 4 SCC 287 ^/""•-'; '^ "'%, ^%. ^. J/ ..^" u ^^^^- him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding ofsuch plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doingjustice to the person wronged. 34. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay\ In appropriate cases, however, a court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to doso. The court may in the circumstances, direct the authority to grant him all benefits considering "as ifhe had worked". It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been fmally confirmed by the Apex Court ofthe country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected." 12.Applying the well-settled proposition oflaw to the facts ofthe case on hand, wherein, indisputably the petitioner was denied the benefit not on account of any suspension, pending departmental proceeding or criminal case, but on account ofthe fact that he was not considered for want ofACRs, which were in possession ofthe respondent authorities. This is a gross case where ifthe petitioner is not granted the benefit of 9 -^.•. •^^. ;x •^ / arrears, grave injustice would be perpetrated. It is accordingly held that the principle of 'no work, no pay5 is not applicable to the facts of the instant case, where the petitioner was denied the work, though he waseligible and was ready to discharge the duty and responsibility of the higher post i.e. Principal, Higher Secondary School, to which his junior was considered and promoted. 13.It is accordingly directed that the petitioner is entitled to all monetary benefits and other sen^ice benefits w.e./ 05.09.2000 including fixation ofhis pensionary benefits on that basis. 14. Accordingly, the writ petition is allowed. 15.No order asto costs. Sd/- Satish K. Agnihotri Judge / Amit