Rajesh Kumar Yadav vs State Of U.P. And 2 Others
2023 Latest Caselaw 1074 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 6 
 

 
Case :- WRIT - A No. - 26963 of 2018
 

 
Petitioner :- Rajesh Kumar Yadav
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Siddharth Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble J.J. Munir,J.

This writ petition is directed against an order dated 29.10.2018 whereby the respondents have declined payment of petitioner's arrears of salary for the period 14.9.2011 to 1.5.2017 on the principle of "no work no pay". A mandamus is further sought ordering the respondents to sanction and disburse arrears of salary for the period 14.9.2011 to 1.5.2017 with interest at such rate as the Court may specify. There is a further direction sought commanding the respondents to sanction Assured Career Progression for the petitioner also, within a specified period of time.

Parties have exchanged affidavits.

Admit.

By consent of parties, heard forthwith.

Heard Mr. Siddharth Khare, learned Counsel for the petitioner and Mr Praveen Ojha, learned Additional Chief Standing Counsel appearing on behalf of the state.

The short facts giving rise to this petition are that the respondents who are the Government of U.P. issued an advertisement for the post of Nalkoop Mistri (for short 'the post in question) on 09.08.2004. The petitioner was duly selected, and consequent upon selection, appointed to the post in question on 12.10.2004. His services were regularized by an order dated 15.07.2010 w.e.f. 08.10.2007. The petitioner was served a show cause notice on 10.12.2010 founded on a complaint to the effect that the petitioner did not possess the necessary Trade Certificate from the I.T.I. which vitiated his eligibility for appointment as a Nalkoop Mistri. The petitioner submitted a reply saying that he had been selected after following the due procedure. It was pointed out that in the advertisement there was a stipulation as regards the essential qualifications which said: "High School/I.T.I. with five years experience". The petitioner's case is that he is a Matriculate and therefore, he fulfils one of the alternate conditions. The petitioner's services were terminated by an order dated 14.09.2011. In substance, the order dated 14.09.2011 is not an order of termination, in the sense it is understood in the disciplinary jurisdiction. It is in substance an order of cancellation of appointment on account of the petitioner not fulfilling requisite qualifications owing to the respondents' stand taken at the relevant time. The petitioner's appeal and review to the departmental authorities met with failure. Consequently he instituted Writ-A No. 52876 of 2012. The said petition was heard and allowed by an order dated 07.12.2016 holding that the order of cancellation of appointment impugned in the writ petition did not show that the authorities had considered the petitioner's case about his eligibility founded on what was mentioned in the advertisement. The matter was remitted to the respondents to take a decision afresh, bearing in mind the guidance in the judgment and after hearing the petitioner.

Consequent upon the matter being placed before the respondents, they passed an order dated 28.04.2017 holding that indeed the petitioner fulfilled the qualifications as advertised, though he did not fulfil the qualifications as provided under the Rules. The respondents proceeded by their order dated 28.04.2017 to set aside the earlier order dated 14.09.2011 terminating the petitioner's services and reinstated him with immediate effect to the post in question. There is no further condition, limitation or inhibition attached to the order dated 28.04.2017, reinstating the petitioner. At that stage, the petitioner made an application on 07.10.2017 followed by another dated 3.05.2018, whereby he said that he had been forced to stay away from his duties, in consequence of the order dated 14.09.2011 for no fault of his, and was therefore, entitled to the arrears of salary for the period 14.09.2011 to 01.05.2017. By the order impugned, the said application has been rejected.

Mr. Siddharth Khare, learned Counsel for the petitioner submits that the impugned order is manifestly illegal because the petitioner remained out of service on account of an ill-advised action of the respondents cancelling his appointment, which later on they themselves found, on a remand by this Court, to be specious.

Mr. Praveen Ojha, learned Additional Chief Standing Counsel, on the other hand, submits that since the petitioner did not hold the necessary I.T.I. certificate and his services were terminated on that ground by the order dated 14.09.2011, he is not entitled to arrears of salary for the relevant period. Mr. Ojha also relied on the principle of "no work no pay" which is the foundation of the impugned order.

Upon hearing learned Counsel for the parties, this Court finds that the respondents cannot take a vacillating stand so far as the qualifications of the petitioner go. May be, under the Service Rules, an I.T.I. trade certificate is essential but the advertisement did not mention it. The petitioner applied according to the advertisement. He was duly selected and appointed. He functioned on that basis drawing salary. His appointment was cancelled relying on the Service Rules, but without paying heed to what was mentioned in the advertisement about the essential qualifications that the petitioner fulfils. This Court set aside the order cancelling the petitioner's appointment and sent back the matter for re-consideration to the respondents. At this stage, the respondents have taken the view that since what was advertised cannot be changed and the petitioner possessed requisite qualifications according to that advertisement, their earlier order cancelling the petitioner's appointment was wrong. The respondents acknowledged their mistake in cancelling the petitioner's appointment and ordered his unconditional reinstatement. It has been remarked above that that the reinstatement was unconditional and we emphasize that the order reinstating the petitioner in service is unqualified and does not carry any condition subject to which the petitioner has been granted reinstatement.

In the circumstances, to attribute the petitioner any blame for not performing his duties between the period 14.09.2011 to 01.05.2017 would be patently arbitrary. But for the respondents' decision to terminate his services on 14.09.2011 on a particular view about the essential qualification that the petitioner ought to have possessed, the petitioner would have continued in service and served the respondents. However, later on, when this Court sent the matter back to the respondents to reconsider the issue, the respondents acknowledged their mistake and held that cancellation of the petitioner's appointment, was for the reason indicated, not tenable. Therefore, the petitioner remaining out of job or not rendering work cannot be made the basis of denying him his emoluments for the period that he was forced to stay away It becomes all the more relevant in this case because the respondents have acknowledged their mistake while reinstating the petitioner, and, done so, without any limitation regarding the terms of reinstatement.

In this regard, reference may be made to the decision of the Supreme Court in Shobha Ram Raturi vs. Haryana Vidyut Prasaran Nigam Ltd. and others, 2016 (16) SCC 683 where it has been held:

"1. It is not a matter of dispute, that the appellant was retired from service on 31.12.2002, even though he would have, in the ordinary course, attained his date of retirement on superannuation, only on 31.12.2005. The appellant assailed the order of his retirement dated 31.12.2002 by filing writ petition no. 751 of 2003. The same was allowed by a learned Single Judge of the Punjab and Haryana High Court, on 14.09.2010. The operative part of the order is extracted here under: "Accordingly the present writ petition is allowed; order dated 31.12.2002 (Annexure P-4) is quashed. The petitioner would be treated to be in continuous service with all consequential benefits. However it is clarified that since the petitioner has not worked on the post maxim of "no work, no pay" shall apply and the consequential benefits shall only be determined towards terminal benefits. However there will be no order as to costs."

2. The denial of back wages to the appellant by the High Court vide its order dated 14.09.2010 was assailed by the appellant by filing Letters Patent Appeal No. 489 of 2011. The High Court rejected the claim of the appellant, while dismissing the Letters Patent Appeal on 26.5.2011. The orders dated 14.09.2010 and 26.5.2011 passed by the High Court limited to the issue of payment of back wages, are subject matter of challenge before this Court.

3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31.12.2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilized the services of the appellant for the period from 1.1.2003 to 31.12.2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1.1.2003 to 31.12.2005, the respondent cannot be allowed to press the self serving plea of denying him wages for the period in question, on the plea of the principle of "no work no pay".

(emphasis by Court)

This decision has been followed by this Court in Prayag Narain Dubey Vs U.P.S.R.T.C. and others, Writ-A No.40927 of 2004, decided on 29.03.2018. The decision in Prayag Narain Dubey (supra) has been upheld by the Division Bench in U.P. State Road Transport Corporation and another vs. Prayag Narain Dubey in Special Appeal Defective No. 405 of 2018, decided on 23.08.2018. The principle in all these decisions is crystal clear and that is that where the employee remains out of service on account of the unilateral act of the employer which is subsequently found not valid and lawful, the employer cannot deny his salary on the principle of "no work no pay".

There is a further grievance that the petitioner has raised and that is about non-grant of the Assured Career Progression, taking into account the period that he remained out of service. I am of opinion that, that is a decision which the respondents have to take and not this Court; at least, in the first instance.

In view of the aforesaid position of the law and facts obtaining here, this petition succeeds and is allowed. The impugned order dated 29.10.2018 passed by Executive Engineer, Nalkoop Anurakshan Khand, Bhadohi (Sant Ravidas Nagar) is hereby quashed.

Let a mandamus issue ordering each of the respondents to sanction and disburse arrears of the petitioner's salary for the period 14.09.2011 to 1.05.2017 within a month of receipt of a copy of this order.

The respondents are further directed to consider the petitioner's case for grant of Assured Career Progression taking into account the period of service between 14.09.2011 to 01.05.2017, treating the petitioner to be in service continuously. The decision in this regard shall be taken within six weeks of the date of receipt of a copy of this order by respondent no.2.

There shall be no order as to costs.

Let this order be communicted to the Executive Engineer, Nalkoop Anurakshan Khand, Bhadohi (Sant Ravidas Nagar) by the Registrar (Compliance).

Order Date :- 11.1.2023

SP