Jharkhand High Court

Dr. Arun Kumar vs The State Of Jharkhand Through The ... on 28 August, 2023

                          1                            LPA No.655/2022




 IN THE HIGH COURT OF JHARKHAND AT RANCHI
            L.P.A. No.655 of 2022
                                      ------

Dr. Arun Kumar, aged about 60 years, S/o Late Ramchandra Prasad
Sinha, resident of Prema Apartment, In front of Sri Krishna Enclave,
North Office Para, PO & PS-Doranda, District-Ranchi (Jharkhand)
                ....     ....                      Writ Petitioner/Appellant
                              Versus

1. The State of Jharkhand through the Chief Secretary, Government
  of Jharkhand, Project Bhawan, PO & PS-Dhurwa, District-Ranchi
  (Jharkhand)
2. The Secretary, Science and Technology Department, Nepal
  House, PO & PS-Doranda, District-Ranchi (Jharkhand)
3. The Under Secretary, Science and Technology Department, Nepal
  House, PO & PS-Doranda, District-Ranchi (Jharkhand)
4. The Jharkhand Public Service Commission, through its Chairman,
  PO & PS-Lalpur, District-Ranchi (Jharkhand)
5. The Development Commissioner cum Chairman, High Level
  Enquiry Committee, State of Jharkhand, Nepal House, PO & PS-
  Doranda, District-Ranchi (Jharkhand)
                ....          ....             Respondents/Respondents

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
        HON'BLE MR. JUSTICE NAVNEET KUMAR
                  ------
      For the Appellant              : Mr. Amit Kumar Das, Advocate
                                     : Mr. Shivam Utkarsh Sahay, Advocate
                                     : Mr. Sankalp Goswami, Advocate
      For the State                  : Mr. Mohan Kumar Dubey, AC to AG
      For the JPSC                   : Mr. Sanjoy Piprawall, Advocate
                                     : Mr. Prince Kumar, Advocate

                                 ------
09/Dated: 28.08.2023

Per Sujit Narayan Prasad, J.

1. The instant intra-court appeal preferred under Clause-10 of

Letters Patent is directed against the order/judgment dated

06.09.2016 passed by the learned Single Judge of this Court in

W.P.(S) No.4702 of 2013, whereby and whereunder, the part of the

order so far as it relates to disentitling the appellant from the arrears

of salary of the period of termination/removal has been sought to be

quashed and set aside.

2. The brief facts of the case, as per the pleading made in the writ

petition, required to be enumerated, are as hereunder:-

3. It is the case of the writ petitioner that the writ petitioner was

appointed as Lecturer in S.R.E.S. College of Engineering,

Kopargaon, District-Ahmadnagar, Maharastra on 17.08.1990, which

is an affiliated Engineering College under Pune University. Since, the

petitioner possessed the qualification for being appointed as

Assistant Professor w.e.f. 09.07.1992 in the said college of

engineering and continued as such till 30.09.2000.

4. In pursuance to public advertisement dated 05.06.2000 which

was notified in the newspapers by the College of Engineering,

Kopargaon, Amhadnagar (Maharashtra) inviting the applications for

appointment on the post of Professor in Civil Engineering.

5. The writ petitioner, being eligible, has applied for the post of

professor and after due selection, he was appointed as Professor in

Civil Engineering in the said College as is evident from Annexure-1

to the writ application and University of Pune vide letter dated

09.01.2001 granted approval to the appointment of the petitioner as

Professor in Civil Engineering wef 01.10.2000 as per Annexure-2 to

the writ application. In the meanwhile, the petitioner was awarded

Ph.D in Civil Engineering. The Government of Jharkhand vide

resolution dated 23.08.2002 prescribed eligibility and requisite

qualification for appointment on the post of Director in the

Department of Science and Technology. The resolution provided that

a person having a Ph.D Degree with First Class Degree in Bachelor

or Masters Level in Engineering and having 15 years' experience in

Teaching/Industry/Research, out of which, 5 years must be at the

level of professor shall be held eligible as evident from Annexure-4 to

the writ application.

6. The Jharkhand Public Service Commission vide Advertisement

No.06/2005, which was published in National Newspapers including

the Hindustan Times dated 19.09.2005- inviting applications for

appointment for the post of Director under the Department of

Science and Technology. There has been two posts of Director, i.e.

Director, BIT, Sindri and Director, Science and Technology wherein

the essential qualification is Ph.D Degree in any branch of

Science/Engineering/Management and First Class Bachelor Degree

or Master Degree in Engineering/Computer Technology as per

Annexure-5 to the writ application.

7. The Advertisement was published with the eligibility criteria as

prescribed in the resolution dated 23.08.2002. In pursuance to the

advertisement, the petitioner applied for the post of Director,

Department of Science and Technology within the stipulated time

period and the petitioner appeared before the Interview/Selection

Board and vide notification dated 23.08.2006, the petitioner upon the

recommendation of the Jharkhand Public Service Commission and

upon the approval of the Cabinet of the Government was appointed

as Director, Department of Science and Technology which is evident

from Annexure-6 to the writ application. In pursuance to the letter of

appointment, the petitioner submitted his joining on the post of

Director, Science and Technology under the respondent department

on 05.09.2006.

8. After appointment, the writ petitioner discharged his duties

with utmost honesty and sincerity. Basing on the frivolous

complaints, the respondent Secretary vide letter dated 19.12.2006

wrote to the respondent Secretary of the Public Service Commission

to enquire into the matter of eligibility and qualification of the

petitioner. In response, the respondent Secretary Public Service

Commission vide letter dated 12.02.2007 replied that the petitioner

was selected by an Interview Board of Experts who have prepared

the panel and if there is any doubt regarding the certificates and the

materials submitted by the candidate, the same could be verified.

9. The appointment of the writ petitioner has also been

challenged by one Ram Kishore Singh by filing writ petition being

W.P.(S) No.777/2010 with a prayer for issuance of writ in the nature

of quo-warranto to enquire into the legality of the appointment of the

petitioner as Director, Science and Technology on the ground that

the petitioner did not possess the requisite qualification and

experience to hold the said post and the said petition was dismissed

vide order dated 04.05.2010 and against the order passed by the

Hon'ble Single Judge, L.P.A No.222 of 2010 was preferred by the

said writ petitioner and the said LPA also has been dismissed vide

order dated 23.08.2010 as per Annexure-12 to the writ application.

10. Thereafter, one writ petition in the nature of Public Interest

Litigation, i.e., W.P(PIL) No.3904 of 2011 has been filed by one

Girdhari Mahto challenging the appointment of the petitioner and the

Division Bench of this Hon'ble Court vide order dated 09.09.2011,

dismissed the Public Interest Litigation as per Annexure-13 to the

writ application. Again one Santosh Kumar Jha also filed a writ

application in the nature of Public Interest Litigation being W.P. (PIL)

No.3551/2012 with a prayer for CBI investigation into the matter of

appointment of the petitioner as Director, Department of Science and

Technology and the PIL has been dismissed vide order dated

30.10.2012. Again one Kalicharan Rawani filed a writ application

being W.P.(S) No.634 of 2012 with the prayer for issuance of a writ

in nature of quo-warranto against the petitioner for holding the Office

of the Director, Department of Science and Technology on the

ground of lack of requisite qualification and experience.

11. In the said writ petition, the counter- affidavit has been filed by

the respondent department stating therein that the writ petitioner was

respondent no.6 in the writ application, satisfied with the eligibility

criteria as prescribed in the Advertisement and the correspondences

of the Pune University to the appointment of the petitioner as

professor was in consonance with the law and rules and since there

was no mandatory requirement of the Ph.D by the University as

prescribed by the U.G.C. It has been stated that in the writ

application, there had not been any mandatory requirement of Ph.D

at the relevant point of time for appointment or promotion as

Professor.

12. It has also been demonstrated in the writ application that

several persons have been appointed as Professors on the basis of

their M.Sc. Engineering/M. Tech. Degree from the downloaded

profile of the professors at NIT Rourkela as is evident from

Annexure-19 to the writ application. Therefore, the petitioner

possessed the qualification for being appointed as a professor in the

year 2000 and had the experience of five years as required on the

date of filing of an application and had been eligible in all aspects for

being appointed as a Director, Department of Science and

Technology and the subject matter of qualification and experience of

the petitioner thoroughly enquired by the respondent department.

13. The respondent department, thereafter, vide notification dated

23.03.2013 directed for another enquiry by a High Power Committee

on the appointment of the petitioner as per Annexure-20 to the writ

application and the petitioner was directed to submit evidences

before the High power Committee in relation to the advertisement

issued by the JPSC and the experience certificate by the Pune

University.

14. But, the High Power Committee had proceeded at the back of

the petitioner and submitted report basing on the impugned show

cause dated 11.07.2013 has been issued to the writ petitioner as to

why the services which has not been confirmed yet and is on

extension of probation be not terminated as evident from Annexure-

23 to the writ application and the petitioner vide letter dated

17.08.2013 replied to the show cause notice explaining in detail his

qualifications and eligibility for being appointed as Director, Science

and Technology but the additional Chief Secretary Science and

Technology proceeded on the basis of ex-parte report of the enquiry

committee headed by the Development Commissioner,

recommended for dispensing the services of the petitioner vide order

dated 23.10.2013 (Annexure-30 to the amended writ petition).

15. Accordingly, vide notification dated 25.10.2013 the petitioner

was dismissed from service.

16. It appears from the factual aspect as referred hereinabove that

the writ petitioner was appointed as Director in the department of

Science of Technology. He was declared to be successful by the

Selection Board. He was appointed and joined as Director on

05.09.2006. But on the basis of complaint, an inquiry was conducted

regarding his eligibility to hold the post.

17. It appears that the writ in the nature of Quo Warranto was also

filed being W.P.(S) No.777 of 2010 but was dismissed vide order

dated 04.05.2010. The said order was affirmed by dismissal of the

letters patent appeal being LPA No.222 of 2010. Again, a writ

petition being W.P.(PIL) No.3904 of 2011 was filed but the same was

dismissed, thereafter, another writ petition being W.P. (PIL) No.3551

of 2012 was filed but the same was also dismissed vide order dated

30.10.2012. Again one Kalicharan Rawani filed writ petition being

W.P.(S) No.634 of 2012 for seeking for issuance of Writ of Quo

Warranto questioning of his appointment having no eligibility to hold

the post of Director as per the eligibility criteria as prescribed in the

advertisement. The said writ petition was also dismissed.

18. However, the writ petitioner was dismissed from service vide

notification dated 25.10.2013. The said order was challenged by

filing writ petition being W.P.(S) No.4702 of 2013 before this Court

taking the ground that the day when the appellant was appointed, the

appellant was having with all eligibility criteria to hold the post.

19. The learned Single Judge, on appreciation of the rival

submission, has quashed and set aside the order of removal dated

23.10.2013 and notification dated 25.10.2013 with a direction for his

reinstatement in service on the post of Director in the department of

Science and Technology.

20. The writ petitioner has been held entitled for continuity in

service from the date of termination/removal till his reinstatement.

The said period was directed to be counted towards the pensionery

benefit, except the arrears of salary for the said period.

21. The writ petitioner/appellant has challenged the said part of the

order passed by the learned Single Judge dated 06.09.2016 in

W.P.(S) No.4702 of 2013 to the extent, whereby and whereunder,

the writ petitioner has denied the benefits of arrears of salary of the

intervening period, i.e., the period for which, the writ petitioner was

deprived from discharging his duty due to the order of

termination/removal dated 23.10.2013.

22. Mr. Amit Kumar Das, learned counsel appearing for the

appellant has submitted that the part of the direction of denial of the

arrears of salary for the aforesaid period, is absolutely unwarranted

as also contrary to the position of law, since, the learned Single

Judge, while passing the order has taken into consideration the

applicability of principle of "no work no pay". But the principle of "no

work no pay" will not be applicable in each and every case, rather,

the same depends upon the factual aspect governing the case.

23. The said principle will only be said to be applicable if the

employee was forcibly deprived from discharging the duty but was

willing to discharge the same. However, the situation will be vice

versa, if the concerned public servant on his own, has failed in

discharging the duty.

24. The submission has also been made that the prayer was made

in the writ petition only for quashing of the order of termination and

hence, the learned Single Judge ought to have considered only to

the extent of propriety of the order of termination/removal.

25. But, the learned Single Judge had travelled beyond the prayer

by denying the salary for the aforesaid period, hence, the part of the

aforesaid order is not justified, as also contrary to the prayer and

pleading made in the writ petition, therefore, the instant appeal.

26. Per contra, Mr. Mohan Kumar Dubey, learned A.C. to A.G.

appearing for the respondent-State has submitted that there is no

illegality in the part of the order, whereby and whereunder, the salary

of the intervening period has been denied by the learned Single

Judge, while passing the impugned judgment.

27. Such submission has been made that the learned Single Judge

has considered the applicability of the principle of "no work no pay"

based upon the argument advanced on behalf of the parties,

therefore, the learned Single Judge, while considering the said

argument, has directed by holding the writ petitioner entitle to

continuity in service from the date of termination/removal till his

reinstatement and the said period has been directed to be counted

towards the pensionery benefits, except the arrears of salary for the

said period.

28. The learned State Counsel, in the aforesaid premise, has

submitted that there is no error in the impugned order and hence, the

instant appeal is fit to be dismissed.

29. We have heard the learned counsel for the parties and perused

the documents available on record as also considered the finding

recorded by the learned Single Judge in the impugned order.

30. The fact as has been referred herein since is admitted so far as

it relates to the order of termination/removal of writ petitioner from

service vide order dated 23.10.2013. The said order was passed by

the Administrative Authority on the ground that the appellant was

having no eligibility criteria to hold the post.

31. The learned Single Judge, however, has found the ground of

removal to be baseless and as such, quashed the same by passing

the impugned order dated 06.09.2016.

32. The learned Single Judge while quashing the order of removal

of the writ petitioner from service, has also passed an order holding

the writ petitioner entitle to continuity in service from the date of

termination/removal till his reinstatement, the said period to be

counted towards the pensionery benefits except the arrears of salary

of the said period.

33. The part of the order to the extent of denial of the benefits of

salary for the said period is the only question in this intra-court

appeal.

34. The argument which has been advanced on behalf of the State

that there is no prayer of holding the writ petitioner entitle for the

salary for the intervening period and hence, it was not available for

the writ petitioner to pass any observation in either way as has been

passed by the learned Single Judge in this case, therefore, the part

of the prayer which is being made on behalf of the appellant is

admitted by the State.

35. But the learned State Counsel has submitted by referring to the

pleading made in the writ petition including the prayer made therein

that only order of removal was sought to be quashed.

36. The learned Single Judge, although, has held entitle the writ

petitioner for continuity in service and to count the said period

towards the pensionery benefits is also there and only dis-

entitlement of the salary for the intervening period.

37. This Court is to consider the direction passed by the learned

Single Judge to be incorrect in entirety which was passed in

consequence of quashing of the removal order or the part of the

order, by which, the arrears of salary of the said period has been

denied.

38. The law is well settled that under Article 226 of the Constitution

of India if any consequential order is being passed which is the

consequence of the order being allowed by the learned Single Judge

and if in such circumstances, any direction is being passed upon the

authority, then it cannot be said that the writ Court has passed the

order excess to its jurisdiction, since, the writ Court is meant to do

the justice depending upon the pleading also so as to avoid any

multiplicity of proceeding in future.

39. Admittedly herein, as would appear from the prayer made in

the writ petition that the order of removal dated 23.10.2013 and

notification dated 25.10.2013 were sought to be quashed. However,

the writ petition also reflects that any further order may be passed if

the writ Court may deem it fit and proper in the facts and

circumstances of the case.

40. The order of removal has been set aside by the learned Single

Judge by taking into consideration the series of litigations filed

against the appellant questioning his appointment on the ground of

having no eligibility criteria.

41. All the writ petitions including the writ petitions filed in the

nature of Public Interest Litigation, reference of the same has been

made hereinabove, were also dismissed. But even, thereafter, the

order of removal of the writ petitioner was filed by the authority

without examining the fact that the writ petitioner was having the

requisite eligibility criteria, which led the learned Single Judge to

interfere with the order of removal.

42. The question is that once the order of removal has been

quashed and set aside, then if in such circumstances, the

consequential order has been passed so far as it relates to holding

the writ petitioner entitle for continuity in service and the period to be

counted for pensionery benefit, can it be said to be unjustified.

43. We are of the view that such direction cannot be said to be

unjustified, reason being that, if any issue has been raised regarding

the propriety of the decision taken by the authority, it is the bounded

duty of the Court to decide the issue so as to settle the issue for all

time to come.

44. What is being argued on behalf of the State that there was no

prayer for consequential benefits, if it would be accepted, then only

recourse available to the litigant concerned, the writ petitioner herein,

to again approach the State authority and then again come to the

Court.

45. This Court considers it not only the misuse of judicial

proceeding but also to put the public servant in rigour of the decision

to be taken by the State authority and in case of any adverse

decision to again come to the Court.

46. If the learned Single Judge has taken the said view, while

passing the order holding the writ petitioner entitle for continuity of

the said service along with counting the said period for pensionery

benefit, which will only be said to be the consequence of removal of

the order.

47. So far as the issue of arrears of salary is concerned, the

learned Single Judge while passing such order, has not assigned

any reason that why the appellant is not entitled for the arrears of

salary for the said period.

48. It is not in dispute that even the High Court in exercising the

power under Article 226 of the Constitution of India is supposed to

pass an order based upon the justifiable reason, since, in absence of

any reason, the order passed either by the writ Court or any

administrative authority or the Court of law will be said to be

improper order, since, the reason is the soul of the decision which is

to be taken by the authority concerned in exercise of power

conferred herein, reference in this regard, may be made to the

judgment rendered by the Hon'ble Apex Court in the case of Raj

Kishore Jha Vrs. State of Bihar & Ors., reported in (2003) 11 SCC

519, wherein, it has been held at paragraph-19 as under:-

"... ... ...Reason is the heartbeat of every conclusion.

Without the same, it becomes lifeless. ... ..."

49. Likewise, the Hon'ble Apex Court in the case of Kranti

Associates (P) Ltd. & Anr. Vrs. Masood Ahmed Khan & Ors.,

reported in (2010) 9 SCC 496, wherein, at paragraph 47, it has been

held as under:-

"47. Summarising the above discussion, this Court holds:

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior courts.

(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial accountability and transparency.

(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process.

(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37] .)

(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29 and Anya v. University of Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the European Convention of Human

Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".

(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process".

50. There is no reason as to why, the arrears of salary of the said

period will not be disbursed in favour of the writ petitioner, while the

learned Single Judge has held the writ petitioner entitle for continuity

in service as also to count the said period towards the pensionery

benefits.

51. The law is also settled in each and every case that the principle

of "no work no pay" is not applicable. Such principle is only

applicable in a case where the concerned public servant has been

deprived from discharging his duty. If the employee was willing to

discharge the duty, in such circumstances, the principle of "no work

no pay" will not be applicable.

52. The situation will be vice versa if the public servant on his own

has chosen not to discharge his duty, then certainly, the principle of

"no work no pay" will be applicable.

53. The aforesaid circumstance, has been discussed by the

Hon'ble Apex Court in the case of Union of India & Ors. Vrs. K.V.

Jankiraman, reported in (1991) 4 SCC 109, wherein, it has been

held that although no work no pay is the normal rule, but it has got

exception and it will not be applicable in a case where the employee

was willing to work but had not been allowed to discharge the duty

and if such a condition would be there, the principle of no work no

pay will not be applicable.

54. This Court, on the similar circumstances, while dealing with the

issue of entitlement of the back wages in a case where the public

servant was willing to discharge his duty but was deprived from

discharging and has directed by holding the writ petitioner entitled for

the back wages, such order was passed by the Coordinate Division

Bench of this Court in LPA No.80 of 2020, for ready reference, the

relevant paragraphs of the said judgment are being referred as

under:-

"Likewise, in the case of Commissioner, Karnataka

Housing Board Vs. C. Muddaiah reported in (2007) 7 SCC

689 it has been held at paragraph 34 thereof which reads

hereunder as :-

"34. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant- Board, therefore, has no substance and must be rejected."

(emphasis supplied)

Further, in Jasmer Singh Vs. State of Haryana and

Another reported in (2015) 4 SCC 458 at paragraph 21 and

22 thereof it has been held which reads hereunder as :-

"21. The said relief in favour of the appellant-workman, particularly the full back wages is supported by the legal principles laid down by this Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, wherein the Division Bench of this Court to which one of us was a member, after considering three-Judge Bench decision, has held that if the order of termination is void ab initio, the workman is entitled to full back wages.

22. The relevant para of the decision is extracted hereunder:-

"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow

from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."

55. Although, in the case of Jasmer Singh (supra), the reference

of the judgment rendered in the case of Deepali Gundu Surwase v.

Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others

[(2013) 10 SCC 324] has been made, as would appear from para 21

and 22 quoted hereinabove, the onus lies upon the employer who

wants to deny back wages to the employee or contest his entitlement

to get consequential benefits to specifically plead and prove that

during the intervening period the employee was gainfully employed

and was getting the same emoluments. Denial of back wages to an

employee, who has suffered due to an illegal act of the employer

would amount to indirectly punishing the concerned employee and

rewarding the employer by relieving him of the obligation to pay back

wages including the emoluments."

56. The aforesaid order being L.P.A. No.80 of 2020 has been

carried out to the Special Leave to Petition by the State being S.L.P.

No.16868 of 2022 but the said SLP was dismissed vide order dated

10.01.2022.

57. This Court is now proceeding to examine the factual aspect as

referred hereinabove.

58. It is evident from the factual aspect that the authority while

removing the writ petitioner from service has not appreciated the fact

that on several occasions, the similar issues regarding the propriety

of the appointment of the writ petitioner as Director, Science and

Technology, has been refused and while considering the same, has

found no substance in the writ petitions and the writ petitions were

dismissed.

59. But, the authority without taking into consideration the

aforesaid aspects of the matter, has removed the writ petitioner from

service vide order dated 23.10.2013.

60. The learned Single Judge, on appreciation of the entire

aspects of the matter including the entitlement to hold the post of

Director, has quashed and set aside the order of removal.

61. This Court, therefore, is of the view that the writ petitioner was

willing to discharge his duty which is being evident from the fact that

immediately after the order of removal dated 23.10.2013, writ petition

being W.P.(S) No.4702 of 2013 was filed in the year 2013 itself. But

the said writ petition was finally decided on 06.09.2016.

62. The question, therefore, would be that when the appellant has

shown his due diligence in challenging the order of removal by filing

the writ petition in the year 2013 itself and the writ petition was

decided after lapse of about 3 years, then why the appellant will be

put at detrimental status by denial of his back wages for the

aforesaid period.

63. The learned Single Judge, however, has held the writ petitioner

entitled for continuity in service and the pensionery benefit. The said

part of the order, even on consideration of the argument advanced

on behalf of the State that there is no pleading then whether the

State can be allowed to take such plea by questioning the said part

of the order which is now being said to have passed without any

prayer made in the writ petition.

64. The State, rather, has accepted the said part of the order and

now only contesting the part of the order, whereby and whereunder,

the arrears of salary of the writ petitioner was denied.

65. It is the settled position of law that if there is pleading in the writ

petition and if there is no prayer, it is always available to the Court

sitting under Article 226 of the Constitution of India to mould the

prayer. Reference in this regard be made to the judgment rendered

by the Hon'ble Apex Court in Sri Justice S.K. Ray vs. State of

Orissa and Ors., (2003) 4 SCC 21, for ready reference, the

relevant paragraph of the said judgment reads as under:-

"11. The learned counsel for the respondents further submitted that the appellant had not presented his case or claimed compensation for loss of future employment but has claimed only the loss for the present tenure and, therefore, we should not grant any relief to him. A writ petition, which is filed under Article 226 of the Constitution, sets out the facts and the claims arising thereto. Maybe, in a given case, the reliefs set forth may not clearly set out the reliefs arising out of the facts and circumstances of the case. However, the courts always have the power to mould the reliefs and grant the same."

66. This Court, on the basis of the aforesaid principle and taking

into consideration the fact that the learned Single Judge although

has held the writ petitioner entitled for continuity in service and to

count the said period for pensionery benefit, hence, there was no

occasion for the learned Single Judge for disentitling the writ

petitioner from arrears of salary that to when there is no fault lies on

his part and further, without assigning any reason.

67. This Court, therefore, is of the view that the part of the order of

denial from arrears of salary to the said period, i.e., for the period of

termination till reinstatement in service, according to our considered

view, requires interference.

68. Accordingly, the said part of the order, so far as it relates to