Dr. Satya Prakash Gupta vs The State Of Madhya Pradesh
2021 Latest Caselaw 9030 MP

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    The High Court Of Madhya Pradesh


                      W.P.No.3507 of 2012
        (Dr. Satya Prakash Gupta vs. State of M.P. and others)

Jabalpur, Dated : 21-12-2021

       Shri Sanjay K. Agrawal, learned counsel for the
petitioner.

       Shri Akshay Pawar, learned Panel Lawyer for the
respondents/State.

I.A.No.9806/2021 for taking documents on record is taken up and in absence of opposition, the same is allowed.

The document is a Division Bench Judgment of Indore Bench passed in W.A.No.378/2018 (Balkrishna Rathi vs. State of M.P.) which, as per contention of Shri Agrawal squarely covers this matter.

Shri Sanjay K. Agrawal, learned counsel for the petitioner submits that petitioner was working as Professor and filed this petition before attaining the age of superannuation at the age of 62 years. The claim of petitioner was that being a Teacher he is entitled to continue till attaining the age of 65 years. The petitioner was all along willing to perform his duties but was prevented to do so for the reasons solely attributable to the respondents. Thus, principle of "no work no pay" will not be applicable. Curtains are drawn on this issue by the Apex Court in the case of Dr. R.S.Sonhane vs. The State of Madhya Pradesh (Civil Appeal Nos. 4675-4676 of 2019).

The prayer is opposed by Shri Akshay Pawar, by contending that since petitioner has not performed his duties,

the question of granting him pay and allowances does not arise. However, he did not point out anything which otherwise makes the case of present petitioner distinguishable qua the case of Balkrishna Rathi (supra) decided by Division Bench. The Division Bench in Balkrishna Rathi opined as under :-

"9. We have heard the parties at length and perused the record.

10. It is not in dispute that orders passed by various Division Benches in the aforesaid writ appeals are relating to the same question i.e. entitlement of salary for the intervening period between 62 years to 65 years. Putting it differently, whether the teachers, who were retired at the age of 62 years are entitled to get benefit of salary for the period they were not permitted to perform their duty. The curtains on this issue are drawn by the Division Bench in the case of Dr. (Mrs.) Rukmani Tiwari (supra). The relevant portion reads as under:-

"As the appellant has already crossed 65 years of age, she will be entitled for entire arrears of wages for extended years of service. Though a cavil is raised on behalf of respondents that since the appellant had not worked for the period of 3 years she is not entitled for arrears on the principle of 'no work no pay'. However, in view of the fact that the appellant was prevented from discharging her duties till 65 years, the principle of 'no work no pay' is not applicable. For an authority reference can be had of the decision in State of Uttar Pradesh Vs. Dayanand Chakrawarty and others; (2013) 7 SCC 595, wherein it is held : "43. Now the question arises as to what consequential benefits to which the respondents and other employees who have not moved before any court of law shall be entitled ?

44. By impugned judgment the High Court observed:

"Similar benefit is already available to the employees who are continuing in service by virtue of

interim order passed by the competent court. They should continue till the age of 60 years. The law helps those who are vigilant and not to those who go to sleep as per maxim vigilantibus, et non dormientibus, jura subveniunt. So, this benefit will not be given to the employees who peacefully retired on attaining the age of 58 years and never came before the Court. But there may be another class of the employees who came before this Court and could not get the interim order but writ petitions were admitted. Admittedly, these employees have not worked. So, on the basis of no pay no work, they will not be entitled for arrears. However, their back wages will be restricted @ 20% of the basic salary as per the ratio laid down in the case of M/s Gvalli v.

Andhra Education Society 2010 AIR 1105 SC. Lastly, it is clarified that the extended service will be counted for all the purpose to the above mentioned employees. The petitions are allowed. No cost.

45. In Harwindra Kumar vs. Chief Engineer, Karmik and others (Supra), this Court while allowing the employees of Nigam to continue till the age of 60 years in view of Regulation 31, ordered that no recovery shall be made from those who continued up to the age of 60 years. This Court further observed that the employees who have not been allowed to continue after completing the age of 58 years by virtue of erroneous decision taken by the Nigam for no fault of theirs, would also be entitled to payment of salary for the remaining period up to the age of 60 years.

46. In U.P. Jal Nigam vs. Radhey Shyam Gautam, following the decision in Harwindra Kumar (supra) case, this Court held that the employees of the Nigam shall be entitled for full salary for the remaining period up to the age of 60 years.

47. However, in U.P. Jal Nigam vs. Jaswant Singh, this Court allowed the benefits of arrears of salary only to those employees of the Nigam who had filed writ petitions and denied the same to others who have not moved before a court of law.

48. In view of the orders passed by this Court in

Harwindra Kumar (supra), Radhey Shyam Gautam (supra) and Jaswant Singh (supra), it was not open to the High Court to rely on some other decision of this Court, ratio of which is not applicable in the present case for determining back wages of respondents restricting it to be 20% of the basic salary. We observe that the principle of "no pay no work" is not applicable to the employees who were guided by specific rules like Leave Rules etc. relating to absence from duty. Such principle can be applied to only those employees who were not guided by any specific rule relating to absence from duty. If an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of "no pay no work" shall not be applicable to such employee.

49. In these cases as we have already held that Regulation 31 shall be applicable and the age of superannuation of employees of the Nigam shall be 60 years; we are of the view that following consequential and pecuniary benefits should be allowed to different sets of employees who were ordered to retire at the age of 58 years: 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.

49.3. The arrears of salary and arrears of retirement

benefits should be paid to such employees within four months from the date of receipt of copy of this judgment.

Similar view has been expressed in Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Ltd. & others; (2016) 16 SCC 663, wherein it is held : "The fault lies with the respondents in not having utilised 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'.

In view whereof, the contention raised on behalf of the respondents that the appellant will not be entitled for arrears on the principle of 'no work no pay' is negatived. The appellant is held entitled for entire service benefit as if she was in service till 65 years of age. Let the arrears be settled within three months. The settlement of arrears will be subject to adjustment of if any amount paid towards retiral dues . It is further directed that the amount of arrears be paid by the Institution where the appellant was in service. The institution will be at liberty to recover from the State as per law.

Appeal stands disposed of finally in above terms.

[Emphasis Supplied]

11. This view is consistently followed in the case of Dr. Sushant Kumar Sinha and Dr. R.K. Thassu (supra) by other Division Benches. The Principal Seat in Dr. Sushant Kumar Sinha (supra), considered the circular of Higher Education Department and opined as under:-

"5. It is pertinent to note that the decision in R.S. Sohane (supra) has been implemented by the State Government vide its Order No.1-23/2019/38-3 dated 26.02.2020, reproduced below for ready reference :

dzekad ,Q 1&[email protected]@38&3 % ekuuh; mPpre U;k;ky; ubZ fnYyh }kjk Civil Appeal No. 4675

and 4676 of 2019 out of SLP (C) No. 31968- 1969/2017 esa MkW vkj- ,l- lksgkus fo:) e/;izns'k 'kklu o vU; rFkk bl ;kfpdk ls la;qDr vU; lerqY; lHkh ;fpdkvksa esa ikfjr fu.kZ; fnukad 07-05-2019 esa funsZ'k fn;s x;s gSa fd %

For the aforementioned reasons, we set aside the judgment of the Full Bench of the High Court and the consequential judgments of the Division Bench of the High Court and direct the Government of Madhya Pradesh to pay salaries to the Teachers in aided private Colleges who are working and also those who have worked till they attained the age of superannuation of 65 years.

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6. Thus, with the decision in R.S. Sohane (supra), the issue as to the retirement age of the staff engaged in class room teaching in Govt. aided institution to be 65 years stood settled.

7. The petitioner who had bowed down to the decision by the Full Bench as on 02.08.2017, has, with the law being laid down by the Supreme Court in R.S. Sohane (supra), filed this appeal seeking setting aside of the impugned order and for the benefit which enure from the decision in R.S. Sohane (supra). It is urged, and rightly so that, with the law being settled and the petitioner being within the ambit of its applicability, as he is retired on 30.11.2015 at the age of 62 years, he has a right to claim the benefit, thereunder.

8. In view whereof, we are of the considered opinion that since the petitioner was engaged in class room teaching in grant-in-aid private institution, he is entitled to enhanced age of retirement of 65 years, with all consequential benefits, to be borne by the State of Madhya Pradesh.

9. The appeal is finally disposed of in above terms. No costs.

[Emphasis supplied]

12. At the cost of repetition, the appellants in all aforesaid writ appeals and the present appellants are similarly situated. All of them were prematurely retired at the age of 62 years. As per judgment of the Supreme Court in Dr. R.S. Sohane (supra), they were taken back. Thus, the judgment of Dr. R.S. Sohane (supra) is a judgment in rem. There is no quarrel between the parties about the age of superannuation of teachers i.e. 65 years. The only question raised by Shri Pushyamitra Bharga, learned Additional Advocate General is based on the order of the learned Single Judge. The same was the situation in all the aforesaid writ appeals because writ appeals were filed against orders passed by learned Single benches which became different after the judgment of Dr. R.S. Sohane (supra). The principles of "no work no pay" cannot be applied because appellants were willing to perform their duties which is very evident for the simple reason that even before retirement order could be translated into reality, they filed writ petition.

13. The Apex Court in its recent judgment in North Delhi Municipal Corporation (supra) quoted with profit the previous judgment reported in (2013) 7 SCC 595 The State of Uttar Pradesh v/s Dayanand Chakrawarthy & Others relevant portion of which reads as under:-

"48. If an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of "˜no pay no work" shall not be applicable to such employee"

14. Once it is clear that the reason for non-payment of salary for intervening period to present appellants and other similarly situated persons who were appellants in aforesaid writ appeals is same, the only question is whether there exists any justifiable reason to put the present appellants in a comparatively disadvantageous position. In our opinion, if we take a different view, it will be a travesty of justice. It is profitable to consider the

judgment of the Supreme Court on this aspect reported in (1985) 2 SCC 468 (Inder Pal Yadav & Others v/s Union of India & Others). Relevant portion of the aforesaid case reads as under:-

"There is another area where discrimination is likely to rear its ugly head. These workmen come from the lowest grade of railway service. They can ill afford to rush to court. Their Federations have hardly been of any assistance. They had individually to collect money and rush to court which in case of some may be beyond their reach. Therefore, some of the retrenched workmen failed to knock at the doors of the court of justice because these doors do not open unless huge expenses are incurred. Choice in such a situation, even without crystal gazing is between incurring expenses for a litigation with uncertain outcome and hunger from day to day. It is a Hobson's choice. Therefore, those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment if not by anyone else at the hands of this Court."

[Emphasis Supplied] If we take a different view and deprive the similarly situated appellants from the benefit of salary for intervening period, it will amount to dividing a homogeneous class of Teachers and create a class within the class. 15. This will be contrary to the mandate of article 14 of the Constitution of India. In this view of the matter, we are unable to hold that the appellants can be deprived from benefit of salary for the intervening period.

16. Resultantly, the respondents are directed to pay full salary to the appellants for the intervening period forthwith. The entire exercise be completed within a period of 90 days from the date of production of certified copy of this order.

The Writ Appeals are allowed."

In the considered opinion of this Court, the matter is squarely covered by the decision of the Division Bench in Balkrishna Rathi (supra). Resultantly, it is declared that

petitioner was entitled to continue in employment till attaining the age of 65 years. The respondents shall treat the petitioner as retired on attaining the age of 65 years. This order will reap benefits of salary and other benefits as if petitioner continued up to 65 years in employment on actual basis. The entire benefits be calculated and paid to the petitioner within 90 days from the date of production of certified copy of this order.

The Writ Petition is allowed.

(SUJOY PAUL) JUDGE manju

MANJU Digitally signed by MANJU CHOUKSEY DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=73651a7ae8d26d79e07dc31d73c92cbf545478b1e0295b

CHOUKSEY 1ae7797e4239276b86, pseudonym=BEF70271F22DEC44457322E90199576DC587A0DD, serialNumber=5F84E97CDCB1541A5E5FE24901DAD9DD1A69A1 6EABF32E70D280A49764FA1F6A, cn=MANJU CHOUKSEY Date: 2021.12.22 12:53:54 +05'30'