Ashutosh Prasad Dixit vs State of U.P. and Others

Hon''ble Rajiv Sharma, J.—Rejoinder affidavit filed by the Petitioner is admitted to record.

Heard learned Counsel for the parties.

By means of the present writ petition, the Petitioner prays for a direction to the opposite parties to pay arrears of salary to him from 24.7.1999 to 21.10.2008 along with interest of 12% per annum.

Brief facts of the present case are that the Petitioner was initially appointed on the post of Amin in the Public Works Department on 1.9.1984 and thereafter services were transferred to Work Charged Establishment on 1.5.1988. Owing to raising objections against the illegal activities of Work Charged Establishment, the authorities concerned took the signature of Petitioner on the resignation letter forcibly, in the month of October, 1994 and the same was accepted by means of order dated 20th February, 1995. The Petitioner challenged the said order before the learned State Public Services Tribunal, Lucknow by filing Claim Petition No. 2176 of 1995 and the same was allowed by means of order dated 17.7.1999 and the order dated 20th February, 1995 was quashed. The Petitioner approached the authorities along with the copy of the judgment and order dated 17.7.1999 for his joining on 24.7.1999. A copy of the written joining given by the Petitioner has been brought on record as Annexure No. 4 to the writ petition. In the meantime, the opposite parties preferred writ petition No. 21 of 2000 (S/B); State of U.P. and Ors. v. Ashutosh Prasad Dixit and another and the same was dismissed by this Court vide judgement and order dated 14.12.2006. After the dismissal of the writ petition, the Petitioner was given joining on 22.10.2008. Though the opposite parties permitted to join the Petitioner, yet his arrears of salary from 24.7.1999 to 21.10.2008 has not been given. The Petitioner approached time and again the authorities for payment of arrears of salary, but no action has been taken.

learned Counsel for the Petitioner submits that after dismissal of the writ petition, the opposite parties filed application for interim relief along with Review Petition and the said application was also rejected by this Court by order dated 12.9.2008.

Learned Standing Counsel submits that the Petitioner has resigned from service at his own and he does not done any work before 22.10.2008. Therefore, the date of joining cannot be taken from 24.7.1999 and there is no question of payment of salary for the period which he has not worked.

I have considered the arguments of the learned Counsel for the parties and gone through the record.

Admittedly, the order dated 20th February, 1995 was set aside by the State Public Services Tribunal, Lucknow vide judgement and order dated 17.7.1999 passed in Claim Petition No. 2176 of 1995. The Petitioner has specifically averred in para 9 of the writ petition that just after passing the aforesaid judgment and order dated 17.7.1999, the Petitioner immediately given his joining before the concerned opposite party on 24.7.1999. However, in the counter-affidavit it has been mentioned that the contents of para 8 and 9 of the writ petition need no reply to the extent of the filing of the Claim Petition and the order dated 17.7.1999, rest of the contents are denied. Further, a detailed reply was filed in the claim petition. Even, the writ petition No. 21 (S/B) of 2000 preferred by the State Government was dismissed by this Court vide judgment and order dated 14.12.2006 and ultimately the opposite parties allowed the Petitioner to resume his duties vide order dated 22.10.2008.

In para 22 of the judgment of Somesh Tiwari Vs. Union of India (UOI) and Others, the Apex Court held that the High Court while exercising its jurisdiction under Article 226 of the Constitution of India must consider the facts of each case. Mechanical application of the normal rule ''no work no pay'' may in case of this nature, be found to be wholly unjust. No absolute proposition in this behalf can be laid down.

Here, in this case, the Petitioner submitted his joining on 24.7.1999, a copy whereof is Annexure 4 on record. Therefore, the opposite parties cannot say that the principle of ''no work no pay'' should be applied, as the Petitioner has not worked for the aforesaid period. This Court, while entertaining the writ petition, on 26.10.2010 directed the opposite parties to ensure the payment of arrears of salary of the Petitioner from 24.7.1999 to 21.10.2008 within a period of six weeks from the date of passing of the order.

Considering the peculiar facts and circumstances of the case, the writ petition is allowed with a direction to the opposite parties to pay arrears of salary to the Petitioner from 24.7.1999 to 21.10.2008, within a maximum period of three months, from the date of presentation of a certified copy of this order.