Dr. Arun Kumar vs State Of U.P. And Others
2017 Latest Caselaw 6563 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 35
 

 
Case :- WRIT - A No. - 55730 of 2010
 

 
Petitioner :- Dr. Arun Kumar
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Samir Sharma
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble Bharati Sapru,J.

Hon'ble Siddharth,J.

Heard Sri Samir Sharma, learned Counsel for the petitioner and learned Standing Counsel for the respondents.

The above noted writ petition has been filed by the petitioner challenging the order dated 15.04.2010 and order dated 22.04.2009 to the extent, they provide that the actual promotion of the petitioner on the post of Joint Director, Grade, would take effect from the date of his actual joining and the petitioner would be entitled to salary of the promotional post for the period of Notional Promotion (i.e., from 11.02.2008 till he joined on the promotional post of Joint Director Grade). The petitioner has further prayed for a direction to the respondents to pay difference of salary of the promotional post of Joint Director Grade to the petitioner w.e.f., 11.02.2008 till the date of joining of the petitioner on the said post alongwith interest @ 12%.

The brief facts of the case are that the petitioner was posted as Additional Nagar Swasthya Adhikari, Nagar Nigam, Allahabad, when by the order dated 25.06.2004, the respondent no.3, Director General Medical & Health Service, Lucknow transferred him to District Sonebhadra. The aforesaid transfer order was not communicated to the petitioner. Since there was no other Doctor to perform the duties at Nagar Nigam, Allahabad, therefore, he was not relieved and by various letters of Nagar Ayukt and the District Magistrate, the respondent no.3 was requested to cancel the transfer order of the petitioner. It was by the order dated 30.11.2004 that the respondent no.1 directed the District Magistrate to relieve the petitioner from Allahabad immediately and he joined at Sonebhadra. He was always willing to join at Sonebhadra but could not join because of not being relieved. However, the salary of the petitioner w.e.f., July,2004 was not being paid and after repeated futile representations, he approached this Court by way of Writ Petition No.3673 of 2005, which was disposed of with the direction dated 27.01.2005 to the respondents to decide his grievance regarding posting and arrears of salary. An order dated 10.03.2005 was passed by the respondent no.2 in compliance of this Courts' order dated 27.01.2005, whereby, the petitioner came to know that by means of order dated 20.10.2004, a departmental proceedings has been initiated against him for violation of the transfer order dated 25.06.2004 and he has been placed under suspension by the order dated 14.01.2004. The petitioner challenged the order dated 10.03.2005 before this Court by way of Writ Petition No.27412 of 2005 and by the order dated 06.04.2005, the suspension order passed against the petitioner was stayed, subject to the condition that he will join the new place of posting within 7 days and accordingly the petitioner submitted his joining report at Sonebhadra on 12.04.2005.

Thereafter, the petitioner was working and was granted promotion twice to the higher pay scale on 25.07.2005 and 09.09.2005 respectively. By the order dated 04.03.2009 passed by the respondent no.1, the departmental proceedings against the petitioner was dropped. In the meantime, meeting of departmental promotion committed was held on 15.01.2008 for considering the promotion of the Medical Officers to the next higher post of Joint Director, but on account of pendency of departmental proceedings against the petitioner, sealed cover procedure was adopted. After the departmental proceedings against the petitioner was dropped by the order dated 04.03.2009, the petitioner was given notional promotion on the post of Joint Director w.e.f., 11.02.2008 i.e., the date when his juniors were promoted. The said order also provided that the actual promotion of the petitioner on the post of Joint Director Grade would be effective from the date of his actual joining and he would be entitled to the salary of promotional post for the period of Notional Promotion (i.e., from 11.02.2008 till the petitioner joining the promotional post). The petitioner has performed the duties of promotional post since 01.07.2008 on account of retirement of earlier incumbent on 30.06.2008. After the petitioner was promoted to the aforesaid post by the order dated 22.04.2009, he joined the said post 28.04.2009.

The petitioner made a representation dated 04.06.2009 to the respondent no.1 with a prayer that his actual promotion on the post of Joint Director Grade should be deemed to be effective from 11.02.2008, when his juniors were promoted and he may be paid difference of salary of promotional post w.e.f. 11.02.2008 onward. He further submitted that he is working on the aforesaid post since 01.07.2008 and he was entitled to the salary of the post on that account also.

The events subsequent to the filing of the writ petition No.27412 of 2005, were brought on record in that petition by the petitioner and this Court disposed of the aforesaid writ petition by the order dated 19.01.2010 directing the respondent no.1 to take decision on the representation of the petitioner to be filed alongwith the Certified Copy of the order within 3 months. By the order dated 15.04.2010 the aforesaid representation was rejected by the respondent no.1 and hence this writ petition was filed challenging the same.

The respondents have filed their Counter Affidavit stating that the departmental proceedings were initiated against the petitioner because of non compliance of the transfer order by him and since he never worked in the pay scale of Joint Director from 11.02.2008 to 21.04.2009, therefore, there was no justification found for giving him entire salary between the period of notional promotion and actual promotion and hence the impugned order dated 14.04.2010 is absolutely just and legal.

The learned Counsel for the petitioner in support of his case has relied upon paragraph-12 and 13 of the judgment of the Apex Court in the case of Ramesh Kumar Vs. Union of India and others, (2015) 14 SCC 335 which is as followed :

"12. In normal circumstances when retrospective promotions are effected, all benefits flowing therefrom, including monetary benefits, must be extended to an employee who has been denied promotion earlier. So far as monetary benefits with regard to retrospective promotion is concerned that depends upon case to case. In State of Kerala & Ors. v. E.K.Bhaskaran Pillai, 2007(2) S.C.T. 757: (2007) 6 SCC 524, this Court held that the principle of "no work no pay" can not be accepted as a rule of thumb and the matter will have to be considered on a case to case basis and in para (4), it was held as under:-

".... We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that, depends upon case to case. There are various facts which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 percent of back wages looking to the nature of delinquency involved n the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle "no work no pay" cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also."

13. We are conscious that even in the absence of statutory provision, normal rule is "no work no pay". In appropriate cases, a court of law may take into account all the facts in their entirety and pass an appropriate order in consonance with law. The principle of "no work no pay" would not be attracted where the respondents were in fault in not considering the case of the appellant for promotion and not allowing the appellant to work on a post of Naib Subedar carrying higher pay scale. In the facts of the present case when the appellant was granted promotion w.e.f. 01.01.2000 with the ante-dated seniority from 01.08.1997 and maintaining his seniority along with his batchmates, it would be unjust to deny him higher pay and allowances in the promotional position of Naib Tehsildar."

He has also relied upon paragraph -26 of the Judgment of the Apex Court in the case of Union of India & others Vs. K.V.Jankiramanan & others (1991) 4 SCC 109, which is as follows:

"26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/ criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc., In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it."

The learned Standing Counsel has argued that the petitioner will not be entitled to entire salary from 11.02.2008 to 21.04.2009 because in this period of notional promotion he has not worked in the pay scale of Joint Director Grade.

After perusal of the material on record, and hearing the arguments of the parties it appears that the entire dispute arose because the respondents started departmental proceedings against the petitioner alleging non compliance with the transfer order, but later it was dropped for the reasons best known to them without assigning any reason.

The petitioner, therefore, would be deemed to have worked all through and there is no legally adverse order against him all through, the departmental proceedings having been withdrawn. Therefore, the entitlement of the petitioner to the promotional post will be reckoned from the date his juniors were promoted i.e., 11.02.2008 and he shall be entitled to actual salary of the promotional post from that date.

The order dated 15.04.2010 and order dated 22.04.2009 passed by respondent no.1 are hereby quashed. The respondents are directed to release the arrears of difference to pay and allowance to the petitioner from 11.02.2008 when his juniors were promoted up till, the date of joining of the petitioner on the promotional post on 28.04.2009 with 7% simple interest.

The petitioner would also be entitled for actual litigation cost of Rs. 25,000/- as per the dictum of the Apex Court in the cases of "Salem Bar Association (II) Vs. Union of India, (2005) 6 SCC 344 and Rameshwari Devi Vs. Nirmala Devi (2011) 8 SCC 249".

The writ petition is allowed with costs stated above.

Order Date :- 09.11.2017

Ruchi Agrahari