Ramlal Malviya vs State of M.P. and Others

Sujoy Paul, J.—Petitioner is aggrieved by order dated 27.3.2002 (Annexure P-1) to the extent the petitioner has been given proforma promotion from 29.5.1997 and intervening period is treated as ''no work no pay''. The admitted position between the parties is that the petitioner''s case was considered along with other eligible candidates for promotion on the post of Deputy S.P. Since the petitioner was facing a criminal case at that point of time, his fate was kept in the sealed cover and his contemporaries were promoted by order dated 29.5.1997. (Annexure R-2). The petitioner was acquitted from the criminal case on 13.10.1997 which was intimated to the department by the petitioner on 24.10.1997. The respondents thereafter opened the sealed cover and released the promotion of the petitioner on the post of Deputy S.P. w.e.f. the same date his juniors have been promoted. However, intervening period was treated as ''no work no pay''. The singular question is whether this action of the respondents is justified?

The question is no more res integra. In Union of India Vs. K.V. Jankiraman, etc. etc., the Apex Court opined in para 25 that where a person is willing to be promoted and has not been promoted for the reasons solely attributable to the department, the principle of ''no work no pay'' cannot be pressed into service. Applying the said ratio will make it clear that the department is justified in not promoting the petitioner from 29.5.1997 to 24.10.1997 because the petitioner was facing a criminal case and the reasons were beyond the control of the department. In other words, the period during which the petitioner was facing criminal case was a justifiable reason for applying the principle of ''no work no pay''. However, once the petitioner stood exonerated, the respondents were under an obligation to open the sealed cover and implement the recommendation of the D.P.C. The respondents have taken five years to implement the same. In other words, the petitioner stood exonerated from criminal case on 13.10.97 which was intimated to the department by petitioner on 24.10.1997 and promotion order Annexure P-1 is passed on 27.3.2002. Thus, for this period, the petitioner cannot be blamed and delay in opening the sealed cover and issuing the necessary promotion order is solely attributable to the department.

Accordingly, in my opinion, for the said period it is not justifiable to deny back wages/arrears of wages of promotional post to the petitioner. The Apex Court in State of Kerala and Others Vs. E.K. Bhaskaran Pillai, opined that the principle of ''no work no pay'' is not a thumb rule or straight jacket formula. It is to be applied by examining the facts and circumstances of the case. In the peculiar facts and circumstances of this case, In my opinion, the action of the respondents in depriving the petitioner from arrears of wages of promotional post from 24.10.1997 to 27.3.2002 is wholly unjustifiable and arbitrary in nature.

Consequently, in the facts and circumstances of this case, the petition is allowed. The impugned order Annexure P-1 is set aside to the extent arrears of wages of promotional post were denied to the petitioner. The petitioner shall be entitled to get the arrears of salary of promotional post from 24.10.1997 to 27.3.2002. The aforesaid exercise of recalculation and payment of arrears be completed by making payment to the petitioner within four months. Petition is partly allowed. No cost.