Suman Lata Saxena vs State Of U.P. Through Prin. Secy. ...
2023 Latest Caselaw 4994 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 20
 

 
Case :- WRIT - A No. - 3962 of 2014
 

 
Petitioner :- Suman Lata Saxena
 
Respondent :- State Of U.P. Through Prin. Secy. Health Deptt. Lko. And Anoth
 
Counsel for Petitioner :- Girish Chandra Verma K,Girish Chandra Verma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Brij Raj Singh,J.

1. Heard learned counsel for the petitioner and Sri Vinod Kumar Singh learned Additional Chief Standing Counsel.

2. Petitioner by this writ petition, has prayed primarily for the following reliefs:-

"(I) Issue a writ, order or direction in the nature of CERTIORARI quashing the impugned order dated 21.02.2014 passed by the Chief Medical Officer-Lakhimpur Kheri, whereby the earlier order dated 11/17.07.2013 has been recalled/rejected, which is contained as Annexure No.1 to this writ petition.

(ii) Issue a writ, order or direction in the nature of CERTIORARI quashing the impugned order dated 23.04.2014, passed by the Chief Medical officer-Lakhimpur Kheri, whereby the period from 24.12.1998 to 10.12.2005 has been treated as leave without pay and the period from 11.12.2005 to 14.03.2013 has been treated arbitrarily and illegally as wilful absence from duty, which is contained as Annexure No.2 to this writ petition,

(iii) Issue a writ order or direction in the nature of MANDAMUS commanding the opposite parties to pay all consequential benefits including arrears of salary throughout her service and compute the period from 11.12.2005 TO 14.03.2013, into the service period.

(IV) Issue a writ order or direction in the nature of MANDAMUS commanding the opposite parties to fix salary of the mother of the petitioner in the light of order dated 11/17/07.2005 passed by the Chief Medical Officer, Lakhipur Kheri, as contained in Annexure No.6 to this writ petition."

3. It has been submitted on behalf of the substituted petitioner that his mother was appointed on 18.2.1989 as Accessory Nurse Midwife (ANM)/Basic Health Worker (BHW) at the Community Health Centre (CHC), Bankeyganj, district Kheri. She met with accident and sustained head injury and she could not resume duties. Her medical leave was not sanctioned. In paragraph-8 of the writ petition, it has been averred by the substituted petitioner that after getting fitness, his mother sent registered letter on 12.12.2005 to the Chief Medical Officer, Lakhimpur and requested that she should be given joining.

4. The mother of the substituted petitioner filed Writ Petition No.3551 (S/S) of 2006 (Smt. Suman Lata Saxena. Vs. State of U.P. and others) which was disposed of on 3.3.2011 by this Court with directions to decide the representation of the petitioner. The representation preferred by the petitioner was rejected. Therefore, she filed Writ Petition No.5221 (S/S) of 2011 (Smt. Suman Lata Saxena. Vs. State of U.P. and others.). The aforesaid writ petition was allowed by this Court on 7.3.2013. The operative portion of the said judgment is quoted below:-

"For the foregoing reasons, the impugned order passed by opposite party no.3 is set aside and the matter is remanded back to the said authority to proceed in accordance with law and take a decision in the matter in question expeditiously, say, within a period of four months from the date of receiving a certified copy of this order. Further, opposite party no.3 is directed to re-instate in service to the petitioner forthwith. So far as the payment of back wages and other benefit of service to the petitioner is concerned, the same shall be subject to the out come of the final decision taken by the opposite party no.4 in the matter in question.

With the above observations, the writ petition is allowed."

5. In pursuance of the directions of this Court in the aforesaid writ petition on 7.3.2013, the impugned order dated 21.2.2014 and 23.4.2014, contained in Annexure No.1 and 2 to the writ petition respectively have been passed and the mother of the substituted petitioner had been reinstated in service with certain benefit but many benefits have been denied that is why, she filed the present writ petition.

6. Learned counsel for the substituted petitioner has submitted that there is no denial of paragraph-8 of the writ petition in paragraph-5 of the counter affidavit, that the mother of the substituted petitioner had given registered application to join the post. He has submitted that the mother of the substituted petitioner had not committed any fault and the opposite parties should have given joining to her but the same was not done.

7. Learned counsel for the petitioner has relied on the judgment of Supreme Court in the case of Ramesh Kumar. Vs. Union of India and others, reported in 2015 14 SCC 335, Para-12 and 13, which are quoted below:-

"[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. vs. E. K. Bhaskaran Pillai, (2007) 6 SCC 524, this Court held that the principle of "no work no pay" cannot 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 facets 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 per cent of back wages looking to the nature of delinquency involved in 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 alongwith his batchmates, it would be unjust to deny him higher pay and allowances in the promotional position of Naib Subedar."

8. He has further relied on the judgment of Supreme Court in the case of State of Uttar Pradesh. Vs. Dayanand Chakrawarty and others, reported in (2012) 7 SCC 595, Para-49.1 and 49.2 which are quoted below:-

"49.1 The employees including respondents who moved before a court of law irrespective of fact whether interim order was passed in their favour or not, shall be entitled for full salary up to the age of 60 years. The arrears of salary shall be paid to them after adjusting the amount if any paid.

49.2 The employees, who never moved before any court of law and had to retire on attaining the age of superannuation, they shall not be entitled for arrears of salary. However, in view of Regulation 31 they will deem to have continued in service up to the age of 60 years. In their case, the appellants shall treat the age of superannuation at 60 years, fix the pay accordingly and re-fix the retirement benefits like pension, gratuity etc. On such calculation, they shall be entitled for arrears of retirement benefits after adjusting the amount already paid."

9. On the other hand, learned standing has submitted that the mother of the substituted petitioner was absent and her leave was not sanctioned in accordance with law, therefore, she could not claim salary for the period which she had not worked. He has further submitted that as per directions issued by this Court, the mother of the substituted petitioner had been reinstated in service and the back wages are rightly denied on the principle of 'no work no pay'.

10. I have heard learned counsel for the parties.

11. The impugned order dated 21.2.2014 contained in Annexure No.1 indicates that the mother of the petitioner had been given full salary from 18.2.1997 to 26.6.1998; half salary with effect from 27.6.1998 to 23.12.1998; leave without pay with effect fro 24.12.1998 to 10.12.2005. The mother of the substituted petitioner was reinstated in service. However, while calculating entire service of the mother of the substituted petitioner, the period of 11.12.2005 to 14.3.2013, it has been observed that the said period will not be counted in service benefits is illegal in my opinion.

12. It is admitted in paragraph-5 of the counter affidavit that the mother of the petitioner had sent application for joining on 12.12.2005 therefore, she was not at fault. Once, she was not at fault, then the said period from the 11.12.2005 to 14.3.2013 will also be counted for service benefit including the increments and other benefits. The fixation which has been done, appears to be wrong because the said period is not counted. The authority has also not taken decision to release the salary for the said period of 11.12.2005 to 14.3.2013 as the petitioner had not committed fault rather, she had given application and she also appeared before the authority concerned that she should be given joining but the joining was not given to her. It is thus, clear that the situation was beyond her control and for no fault of her, the respondents committed error by not passing order on the joining application of the mother of the substituted petitioner. In view of the aforesaid circumstances, the impugned orders are not sustainable in the eyes of law.

13. Accordingly, the writ petition is allowed. The impugned order dated 21.2.2014 contained in Annexure No.1 to the writ petition is partly quashed and the impugned order dated 23.4.2014 contained in Annexure No.2 to the writ petition is quashed. The O.P. No.2 is directed to take a fresh decision for counting the past services of the mother of the petitioner with effect from 11.12.2005 to 14.3.2013 and also pass order to release the salary for the aforesaid period. The fixation of salary will also be done accordingly.

No orders as to costs.

Order Date :- 15.2.2023

Rajneesh JR-PS)