Hiralal Jain vs State of M.P. and Others

S.K. Gangele, J.

Petitioner has filed this petition with regard to grant of benefit of salary on account of promotion of the Petitioner on the post of Headmaster in pursuance to the order Annexure P/5 dated 08.07.2003.

Petitioner was appointed as Teacher in Education Department on 28.7.1955. He retired from services after attaining the age of superannuation w.e.f 31.03.1996. He was promoted as Upper Division Teacher on 07.09.1982. The Juniors to the Petitioner were promoted as Headmaster w.e.f. 03.01.1991. He submitted representations and thereafter vide order Annexure P/5 dated 08.07.2003 after retirement the Petitioner was promoted on the post of headmaster w.e.f 03.01.1991. However he was not given salary from 03.01.1991 to 10.05.1995 on the principle of "No Work No Pay".

The Respondents in the return stated that the Petitioner who was working as Upper Division Teacher was left out from the zone of consideration for promotion as Headmaster Middle School in the year 1991 and his juniors were promoted as Headmaster on 03.01.1991. The Petitioner was promoted as headmaster on 10.05.1995 and subsequently on the basis of the representations submitted by the Petitioner he was given promotion w.e.f. 03.01.1991 and the principle of "No Work No Pay" has been applied. It has further been contended by the Respondents that the Petitioner did not file petition within time, hence Petitioner is not entitled for salary.

Learned Counsel for the Petitioner has submitted that Respondent have wrongly applied the principle of "No Work No Pay" and Petitioner is entitled for salary. Contrary to this the learned Counsel for the Respondents has submitted that there is a delay in filing the petition and looking to the facts of the case principle "No Work No Pay" has rightly been applied. In support of his contention the learned Counsel relied on the judgment reported in AIR 2007 SCW 1487 Shiv Dass v. Union of India and Ors..

Undisputed facts of the case are that the Petitioner was not considered for promotion in the year 1991. Although he was within the zone of consideration and his juniors were promoted vide order dated 03.01.1991. Thereafter the Petitioner submitted representation on 01.01.1992,16.04.1998 and 03.10.2002. Thereafter vide order dated 08.07.2003 the Petitioner has been given notional promtion on the post of Principal w.e.f. 03.01.1991. The Petitioner retired from service w.e.f. 31.03.1996. The facts remain that the Respondents themselves vide order dated 08.07.2003 granted notional promotion to the Petitioner on the post of Headmaster w.e.f 03.01.1991 and admitted the fact that the Petitioner was left out from the zone of consideration in the year 1991. No reasons have been assigned by the Respondents in the return for not considering the Petitioner in the year 1991. Only ground which has been taken for denying the benefit of salary to the Petitioner is delay and laches. However from the facts of the case it is clear that the order of " No Work No Pay" has been passed on 08.07.2003 and thereafter the Petitioner filed the present petition.

The Hon''ble Supreme Court in the case of Shiv Dass v. Union of India & Other (supra) with regard to delay and laches has held as under

Normally, in the case of belated approach writ petition has to be dismissed. Delay or laches is one of the factors to be borne in mind by the High Courts, when they exercise their discretionary powers under Article 226 of the Constitution of India, 1950 (inshort the ''Constitution''). In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the master is still within the discretion of the Courts as pointed out in Durga Prashad Vs. Chief Controller of Imports and Exports, . Of course, the discretion has to be exercised judicially and reasonably.

Looking to the facts of the present case, in my opinion, the objection raised by the Respondents can be waived.

The Hon''ble Supreme Court further in State of Kerala and Others Vs. E.K. Bhaskaran Pillai, with regard to payment of salary has held as under.

So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various factes which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal case where the incumbent has been acquitted by giving benefit of doubt or full acquittal Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him where appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefits subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle "no work no pay" cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetrary benefits also.

From the facts of the case it is clear that the Petitioner has been denied promotion without any cause and that mistake has been rectified subsequently. In such circumstances, in my opinion, the Petitioner is entitled salary for the post of Headmaster in pursuance to his promotion from 03.01.1991.

Consequently petition is allowed. It is directed that the Petitioner will be entitled salary and other benefits of the post of Headmaster from 03.01.1991. The order Annexure P/5 is modified to the above extent. Difference of salary accordingly be paid to the Petitioner within three months. No order as to costs.