B.P.DAS, J & B.K.MISRA, J. O.J.C. NO.8129 OF 1998 (Decided on 14.02.2011) KUNI SAHOO ………….. Petitioner. .Vrs. STATE OF ORISSA & ORS. …………. Opp.Parties. For Petitioners - M/s. A.K.Mishra & Associates. For Opp.Parties-1&2- Additional Standing Counsel. For O.P.3 - Mr. P.K.Mohapatra. B.P.DAS, J. The petitioner was working as a Peon in the Bada Bazaar Girls’ M.E. School under the Sambalpur Municipality having been appointed on regular basis with effect from 21.5.1993 and selected by the Selection Committee of the said Municipality with prescribed scale of pay meant for the post. It is worthwhile to mention here that the petitioner was working as an N.M.R. under the Municipality since 1982 continuously in different sections till her regular appointment on 21.5.93. However, the said appointment was for six months, which was extended from time to time and ultimately, the petitioner was allowed to draw the revised scale of pay with effect from 1.4.1994 in the scale of pay of Rs.750-12-870-EB-14-940/-. The petitioner’s appointment was not extended with effect from 1.3.95 and she was allowed to continue as N.M.R. But on her representation to the Hon’ble Minister, Urban Development Department, she was allowed to draw regular pay scale as she was in receipt with effect from 1.8.95 vide order of the Sambalpur Municipality dated 3.8.95. But she has not been paid the regular pay scale of the post of Peon with effect from 1.3.1995 to 31.7.95. 2. Again vide order dated 1.12.97, the petitioner was appointed as a Peon for 44 days in the prescribed scale in supersession to all previous orders. In the said order of appointment, it was mentioned that the said appointment was purely temporary and can be terminable without prior notice on expiry of the term and she cannot claim her regular posting on the basis of this engagement in future. After completion of 44 days the petitioner was relieved by the Headmistress of Bada Bazar Girls’ M.E. School, Sambalpur. However, the said termination was again regularized on the ground of Model Code of Conduct in view of ensuing parliamentary election and the petitioner’s appointment was further extended for 44 days with effect from 16.1.98 to 28.2.98 in the time scale of Rs.750-940/-. It was further extended for 44 days with effect from 3.3.98 to 15.4.98 and again from 18.4.98 to 31.5.98. It is not out of place to mention here that the Service Book of the petitioner was opened by then with effect from 21.5.1993, i.e., from the date of her regular appointment as Peon. According to the petitioner, when she was holding a substantive post, receiving her regular salary, Service Book was opened, the G.P.F. number was allotted and the house rent allowance was allowed to be withdrawn, there is no reason as to why the said appointment is being made on different spells threatening the livelihood of the petitioner. After several representations, as it yielded no reason, the petitioner submitted an appeal in December, 1997 to O.P.1-Secretary to Government, Housing & Urban Development Department. As no action was taken on the said appeal, the petitioner filed this writ petition with the following prayer :- To direct the opposite parties to regularize the services of the petitioner with effect from 21.5.93 and pay her the regular scale from 1.3.95 to 31.7.95 as well as allow her the annual increments with effect from 21.5.94 onwards. 3. Counter affidavit has been filed by the Executive Officer, Sambalpur Municipality indicating therein that the appointment of the petitioner at no point of time was regularized but purely on temporary basis. In the year 1997 the Government of Orissa in Housing and Urban Development Department issued a circular giving clarification on engagement of D.L.R./N.M.R./Adhoc staff in different Urban Local Bodies of the State. As the case of the petitioner was not come within the purview of the said circular, she was disengaged after 13.1.1998. 4. Mr.P.K.Mohapatra, learned counsel for the Sambalpur Municipality, submits that the petitioner was engaged in an irregular manner and she does not have any right for such engagement and she has been rightly disengaged. 5. The petitioner has filed Misc. Case No.9 of 2011 annexing copies of certain documents, out of which Annexure-21 is the communication dated 28.11.2002 made to the Director of Municipal Administration by the Executive Officer, Sambalpur Municipality, relevant portion of which is extracted hereunder :- “…………The case is still subjudice. Her termination of service is without any basis. This is for favour of information.” Thereafter, Annexure-22, i.e., extract of order dated 25.3.2003 was passed by the Director, Municipal Administration in regard to regularization of services of the petitioner on her appeal petition dtd.30.5.2001. Learned counsel for the petitioner as well as Municipality submits that the petitioner has filed some representations before the Director, Municipal Administration during pendency of this writ petition. Relevant portion of the order dated 25.3.2003 is quoted hereunder :- “This would certainly not justify the illegal action of the chairman to oust her without any reason or justification and encroaching upon the authorities of Government as envisaged u/s.73-B of Orissa Municipal Act, 1950. It is a case where a low paid municipal employee should be given proper justice. Therefore, as per the power vested in me u/s.408 of Orissa Municipal Act, 1950 read with section 73(i) I bid it is ordered that, a) Smt. Kuni Sahu, Ex-Peon is reinstated in service with immediate effect. b) She will be entitled for her previous rank and scale of pay subject to condition that though her payment of salaries will be paid as notionally fixed but not to be paid for the period she has not actually worked under the municipality. 2 c) There will be no breakage of service and it would count towards her pension. d) After reinstatement the municipality will take adequate steps for regularization of service and to absorb her in the sanctioned and vacant post and if necessitates to seek orders of Government.” 6. Thereafter, in the meantime the Executive Officer of the Municipality passed the order on 5.4.2003 reinstating the petitioner in her previous post with the following conditions. (1) She will be entitled for her previous rank and scale of pay subject to condition that though her payment of salaries will be paid as notionally fixed but not to be paid for the period she has not actually worked under the Municipality. (2) There will be no breakage of service and it would count towards her pension.” 7. So admittedly, due to fault or illegal action of the opposite parties, the petitioner was kept away from her job for the period now she is claiming, i.e., 1.11.1998 to 25.3.2003. When there is no breakage of service, there is no reason as to why the petitioner cannot be allowed to get the salary, for which she was kept out of job for the faulty action of the opposite parties. 8. Law in this regard is well settled that the normal rule of “no work no pay” is not applicable to such cases where the employee although he is willing to work is kept away from work by the authorities for no fault of his. (See- Union of India vrs. K.V.Jankiraman AIR 1991 SC 2010) 9. It is further stated by the learned counsel for the petitioner that now the petitioner is suffering from Cancer and getting treatment. He further submits that if the entire amount is computed and paid to the petitioner, she can get better treatment. He also undertakes that if the said amount is paid within two months from today, the petitioner shall forego 25% of her total entitlement. Accordingly, we allow this writ application and direct the opposite parties to compute the differential back salary of the petitioner from 1.11.1998 to 25.3.2003 and pay 80% of the said amount to the petitioner within a period of two months from the date of communication of this judgment. Let a copy of this judgment be communicated to the opposite parties by registered Post with A.D. Requisites shall be filed by 28th February, 2011. Writ petition allowed. 3