State of Madhya Pradesh and others vs Jham Singh Pandre

Heard on admission as well as on I.A.No.18289/2017 for condonation of delay.

In the instant Intra Court appeal, a challenge has been made to the order dated 18-07-2017, passed by the learned Single Judge, whereby the

writ petition filed by the respondent /petitioner has been allowed and he has been held entitled to get arrears of pay of the promotional post from

the due date. It has been also directed that the respondents shall treat the petitioner as promoted w.e.f.11-05-2007 to 13-01-2012 on actual

basis. The arrears of salary has been directed to be calculated and paid to the petitioner within 90 days from the date of communication of this

order.

Considering the averments made in the application for condonation of delay, supported by an affidavit, we find that sufficient cause has been

shown for delay of 62 days in filing the present appeal as the matter was being processed by the administrative Department for grant of permission

to file the writ appeal. Accordingly, the delay in filing the appeal is condoned and the application is allowed.

Appeal is heard on admission.

The main contention of the counsel for the appellants/State is that the respondent employee is not entitled for payment of arrears of the salary as

when he was granted promotion notionally on the post of Assistant Director(Horticulture) by order dated 13-01-2012 with retrospective effect

from the date of promotion of his junior Kashiram Kushre but he was held not entitled for arrears of the said post on the Principle of ""No Work

No Pay"". He accepted the said promotion. He filed writ petition but the same was withdrawn by him and therefore, he is estopped from claiming

the arrears of the said post.

The facts of the present case in short are that the respondent/petitioner filed a writ petition before this court challenging his supersession to the

post of Horticulture Development Officer and further promotion to the post of Senior Horticulture Development Officer and Assistant Director

Horticulture on the ground that his case was not considered for promotion alongwith his junior. By order dated 07-07-2010, the writ petition was

allowed and the respondents were directed to convene a review DPC and consider the claim of the petitioner and take a decision within a period

of three months from the date of receipt of certified copy of this order. It was also mentioned in the order that if the petitioner is granted

retrospective promotion to the post of Horticulture Development Officer then his case for promotion to the next higher post i.e. Senior Horticulture

Development Officer which was granted to him subsequently be also re-evaluated after convening a review DPC at par with his junior who has

been granted promotion.

An application for clarification of the said order was filed which was registered as M.C.C.No.1053/2010 and this court by order dated 30-07-

2010 further clarified that the respondents shall consider the case of the petitioner for grant of promotion as directed by order dated 07-07-2010

for promotion to the post of Horticulture Development Officer so also to the post of Senior Horticulture Development Officer and if the petitioner

is found eligible, he shall be granted promotion with all consequential benefits. With the aforesaid clarification, the application was allowed and

disposed of. The order was not complied with, therefore, a Contempt Petition No.1407/2011 was filed. After filing the said contempt petition, the

respondents have taken steps for compliance and the said contempt petition was dismissed with liberty to the petitioner to file a separate petition if

dissatisfied with the action taken by the respondents.

The petitioner filed another W.P.No.4617/2012 claiming the payment of the entire arrears and difference of the salary. The said petition was

also disposed of by order dated 02-04-2012 on the statement of the counsel for the State that if the arrears of the salary have not been paid to the

petitioner despite the order Annexure P-6, the department will pay the requisite sum as per the order Annexure P-6. The petitioner filed another

writ petition, which was withdrawn with liberty to file a fresh petition. Thereafter, the petitioner filed the present writ petition, whereby a direction

for proper fixation of his pension by giving him difference of salary and arrears of promoted post Assistant Director (Horticulture) w.e.f.11-05-

2007 to 13-01-2012 with all consequential benefits of revised pay scale. The said writ petition has been allowed by the impugned order, which

has been challenged in the present writ petition.

From the various orders passed by this court and the records, it is crystal clear that the petitioner was promoted by the respondents after

consideration of the case of the petitioner by DPC after the orders passed by this court in the various writ petitions. The respondents have not

shown any fault of the employee for non consideration his case for promotion alongwith his juniors. Thus, the non-consideration for promotion of

the petitioner at the relevant time is solely attributable to the department and there is no fault on the part of the employee therefore, the employee

cannot be denied the consequential benefits after promotion. In the case of Union of India Vs. K.V.Jankiraman, AIR 1991 SC 2010, the Apex

Court held that where the employee was not at fault and the department deprived him to perform the promotional post, the principle of ""No work

no pay"" would not be applicable. The said principle has been followed by the Apex Court in the subsequent judgment in the case of State of

Kerala Vs. E.K.Bhaskaran Pillai (2007) 6 SCC 524, followed by the Division Bench of this court in the case of C.B.Tiwari Vs. State of M.P. &

others, 2015(2) MPHT 132.

Thus, in view of the aforesaid, we do not find any error in the order passed by the learned Single Judge and the petitioner has been rightly held

entitled to get arrears of the pay of the promotional post from the due date. Therefore, the petitioner shall be entitled to be treated as promoted

w.e.f. 11-05-2007 to 13- 01-2012 and will also be entitled for the arrears of salary as directed by the learned Single Judge.

In view of the aforesaid submissions, we do not find any error in the order passed by the learned Single Judge. Therefore, the intra court

appeal does not warrant any interference and is dismissed.