State Of U.P. And 2 Others vs Rajesh Kumar Yadav S/O Sri ...
2023 Latest Caselaw 27206 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:191765-DB
 
Court No. - 21
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 704 of 2023
 
Appellant :- State Of U.P. And 2 Others
 
Respondent :- Rajesh Kumar Yadav S/O Sri Mangaldas
 
Counsel for Appellant :- C.S.C.,S.C.
 
Counsel for Respondent :- Siddharth Khare
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Donadi Ramesh,J.

Order on the Delay Condonation Application

1. Heard counsel for the parties.

2. Sri Siddharth Khare, learned counsel for the contesting respondent, does not oppose the delay condonation application.

3. Even otherwise, the explanation offered is found to be satisfactory.

4. Accordingly, in the interest of justice, the delay is condoned.

5. Office is directed to allot a regular number to the instant appeal.

Order on the Memo of Appeal

1. The instant intra-court appeal is directed against the order of learned Single Judge dated 11.1.2023 by which the writ petition filed by the respondent (writ petitioner), challenging the order dated 29.10.2018, declining payment of arrears of salary to him for the period 14.9.2011 to 1.5.2017, on the principle of 'no work no pay', was allowed. The writ court has quashed the order impugned dated 29.10.2018 passed by the Executive Engineer, Nalkoop Anurakshan Khand, Bhadohi (Sant Ravidas Nagar) and has issued a mandamus directing the appellants to pay arrears of salary to the writ petitioner for the aforesaid period within one month of receipt of copy of the order and also to consider his case for grant of assured career progression, taking into account the period between 11.9.2011 to 1.5.2017, treating him to be in continuous service during the said period.

2. The facts in brief are that the writ petitioner applied for selection on the post of Nalkoop Mistri in pursuance of an advertisement dated 9.8.2004. He was duly selected and appointed on 12.10.2004. His service was regularized by an order dated 15.7.2010, w.e.f. 8.10.2007. He was served with a show cause notice on 10.12.2010 on the ground that a complaint had been received that he did not possess the necessary trade certificate from ITI. The writ petitioner replied to it, stating that he was selected after following the due procedure. The specific case of the writ petitioner was that the qualification for the post mentioned in the advertisement was High School/ITI with five years experience. The writ petitioner claimed that he is a matriculate and he fulfills one of the alternate qualifications, i.e. High School and is not required to possess ITI certificate. However, his service was terminated by an order dated 14.9.2011. The writ petitioner challenged the same in Writ - A No. 52876 of 2012. It was allowed by an order dated 7.12.2016 and the order terminating his service was quashed with a further direction to the State to take a fresh decision. In compliance of the said order, the appellants passed an order dated 28.4.2017 admitting that as per the advertisement, the writ petitioner fulfilled the qualification mentioned therein. The earlier order dated 14.9.2011 was cancelled by the appellants and he was reinstated in service with immediate effect. The order of reinstatement was an unconditional order, without putting any limitation in respect of entitlement of the writ petitioner to salary during the period he could not discharge his duties as a result of the termination order having been passed against him. However, he was not paid his salary for the period he was out of service. When the writ petitioner represented in this behalf, his prayer was declined by the order impugned in the writ petition.

3. The learned Single Judge held that the order reinstating the writ petitioner in service was without any inhibition as regards entitlement to salary during the period the writ petitioner was not able to discharge his duties. The learned Single Judge has taken into account the fact that the appellants themselves admit their mistake in cancelling the appointment of the writ petitioner. Since the writ petitioner was kept out of service for no fault of his own, but on account of an unilateral act of the State-appellants, which was ultimately acknowledged by them to be incorrect, consequently, they cannot take benefit of the principle 'no work no pay'. The learned Single Judge has placed reliance on a large number of judgments in support of the principle that where an employee remains out of service on account of fault of the employer, the employer cannot take benefit of his own wrong. One of the judgments duly considered is that of the Supreme Court in Shobha Ram Raturi vs. Haryana Vidyut Prasaran Nigam Ltd. and Others, 2016 (16) SCC 683, wherein it has been held as follows: -

"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)

4. Sri Rajeev Gupta, learned Additional Chief Standing Counsel, appearing for the appellants, could not dispute that the appellants themselves revoked their earlier order terminating the service of the writ petitioner, having arrived at the conclusion that there was no stipulation in the advertisement that a person should necessarily have a certificate from ITI and that the writ petitioner possessed requisite qualification as per the advertisement.

5. Therefore, we are of the opinion that learned Single Judge was right in directing the appellants to pay salary to the writ petitioner for the period he was prevented from performing his duties in pursuance of illegal order of termination.

6. The appeal thus lacks merit and is dismissed.

(Donadi Ramesh, J.) (Manoj Kumar Gupta, J.)

Order Date :- 5.10.2023

Jaideep/-