Allowed

B. R. Khuntte v. State Of Chhattisgarh And Ors. .

Chhattisgarh HC20 Apr 2023WPS/2330/2015

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the denial of monetary benefits upon the petitioner's promotion to Ranger. The court held that the 'no work, no pay' principle did not apply as the delay was due to departmental inaction regarding erroneous seniority fixation. The petition was allowed, directing the State to pay salary arrears.

What did the court decide?

The writ petition is allowed; the petitioner is entitled to arrears of difference in salary between Deputy Ranger and Ranger from 25/01/1996 to 24/04/2005, payable within three months.

B. R. Khuntte Vs State Of Chhattisgarh… — Pension and Retirement Benefits | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 2330 of 2015

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B. R. Khuntte S/o Late Shri Malik Ram Khuntte Aged About 63 Years R/o Village Lankhgarh Ward No. 1 Post- And Thana Pithora Civil And Revenue District- Mahasamund Chhattisgarh, Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh S/o Through- Secretary, Department Of Forest, New Mantralaya, P.S.- Mandir Hasaud, Naya Raipur, Distt. Raipur Chhattisgarh, Chhattisgarh

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The Principal Chief Conservator Of Forest, Arenya Bhavan Medical College Road, Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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The Conservator Of Forest At The Office Of Raipur, Distt. Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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The Divisional Forest Officer, Forest Division Mahasamund Distt. Mahasamund Chhattisgarh, District : Mahasamund, Chhattisgarh

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----Respondents

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For Petitioner : Shri Ajit Singh, Advocate For Respondent/ State : Shri R.M. Solapurkar, G.A.

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Hon'ble Shri Justice Narendra Kumar Vyas Order on Board

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20.04.2023

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The petitioner has filed present writ petition challenging the order dated 25/05/2015 (Annexure P/11) to the extent the petitioner has been denied monetary benefits by applying principle of ‘no work no pay’ w.e.f. 25/01/1996 to 24/04/2005 while promoting the petitioner on the post of Ranger w.e.f. 25.01.1996.

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Brief facts as reflected from the record are that the petitioner was appointed as Forester with the respondent in the year 1974 and promoted on the post of Deputy Ranger in the year 1988. He was not satisfied with regard to seniority, therefore, he filed an application for grant of seniority which was considered in the year

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1998 and he was granted seniority on the post of Deputy Ranger w.e.f 01/01/1983. It has been further contended that the department has published the seniority list of Deputy Ranger as on 01/04/1996. According to the list, similarly situated employees have been promoted on the post of Deputy Ranger. Therefore, he made a representation (Annexure P/2) which was considered and he was promoted on the post of Ranger vide order dated 23/06/2005 Annexure P/3. Thereafter, petitioner has submitted representation on 28.05.2005 for grant of seniority mainly contending that he was granted seniority on the post Deputy Ranger w.e.f. 01.11.1983 and other Deputy Rangers who are juniors to the petitioner have already been granted promotion w.e.f. 30.12.1995 and 26.06.1996 on the post of Ranger. The petitioner has been deprived from the promotion without rhyme and reason therefore, he prayed for grant of promotion from the date his juniors have been promoted. The respondents after long persuasion vide its order dated 25.05.2015 has granted promotion on the post of Ranger w.e.f. 25.01.1996 but no monetary benefits for the period from 25.01.1996 to 24.04.2005 have been granted. This order to the extent the respondent had applied ‘no work no pay’ for the period from 25.01.1996 to 24.04.2005 is being challenged in this petition.

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The learned counsel for the petitioner would submit that the respondents have granted promotion on the post of Ranger w.e.f. 25/01/1996 but no financial benefits were granted to the petitioner applying 'no work no pay' without any rhyme and reason. The

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denial of salary for this period without any fault of the petitioner is illegal and against the judgment passed by the Coordinate Bench of this court in case of Chandu Ram Jathwar Vs. State of Chhattisgarh & Anr. Reported in (2016) LIC 889 and in case of B.K. Diwan vs. State of Chhattisgarh and Another judgment reported in 2011 Vol 1 CJLRW 513 by the Hon’ble Division Bench of this court

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On the other hand learned counsel for the State would oppose the submission and would submit that the State has already considered the case of the petitioner and benefit including the revision of pension has already been granted by the State vide order dated 17/07/2015 and accordingly his pension has also been revised as per the pension payment order dated 29/09/2015 and would pray for dismissal of the petition.

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The learned counsel for the petitioner would submit that from perusal of order dated 17/07/2015 (Annexure R/1) it is quite vivid that salary of the petitioner from 25/01/1996 to 24/04/2005 has not been paid but only notional pay has been granted. Therefore, the submission made by the State is incorrect submission of facts.

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I have heard learned counsel for the parties and perused the records with utmost satisfaction.

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From the perusal of the records, it is quite vivid that there was no fault of the petitioner and no adverse Confidential Report was ever communicated to the petitioner, still his name was not placed on proper place of seniority list. Therefore, he was making various

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representations which was ultimately considered by the respondent and has granted promotion to the petitioner but not granted monetary benefits. The monetary benefits have not been granted on the count of any misconduct of the petitioner but on account of inaction or illegalities committed by the respondent for that petitioner cannot be suffered. This issue has already been considered by this Court in case of B.K.Diwan (supra) wherein this court has held in Court para-11 to 12 as under:-

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Applying the well-settled proposition of law to the facts of the case on hand, wherein, indisputably the petitioner was denied the benefit not on account of any suspension, pending departmental proceedings or criminal case, but on account of the fact that he was not considered for want of ACRs, which were in possession of the respondent authorities. This is a gross case where if the petitioner is not granted the benefit of arrears, grave injustice would be perpetrated. It is accordingly held that the principle of ‘no work, no pay’ is not applicable to the facts of the instant case, where the petitioner was denied the work, though he was eligible and was ready to discharge the duty and responsibility of the higher post i.e. Principal, Higher Secondary School, to which his junior was considered and promoted.

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It is accordingly directed that the petitioner is entitled to all monetary benefits and other service benefits w.e.f. 5/09/2000 including fixation of his pensionary benefits on that basis.;

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In case of Kunwar Sing Pawar vs. State of Madhya Pradesh in WPS No. 12 of 2006 decided on 12.11.2013 has held in para 5 to 9 as under :-

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“5. In Union of India and Others v. K.V. Jankiraman and Others {(1991) 4 SCC 109}, the Supreme Court held that normal rule of 'no work, no pay is not applicable to the

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cases where the employee, although, is willing to work, is kept away from work by the authorities for no fault on his part. It was held as under:

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"25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases."

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The Supreme Court in Commissioner, Karnataka Housing Board v. C. Muddaiah {(2007) 7 SCC 689}, held as under:

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"33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged.

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We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases,

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however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected.”

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The matter needs to be examined in the light of Fundamental Rule 31-A (for short "FR"), which is reproduced hereunder :

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"FR 31-A. Notwithstanding the provisions contained in these rules, the pay of a Govt. servant whose promotion or appointment to a post is found to be or to have been erroneous, shall be regulated in accordance with any general or special orders issued by the State Govt. in this behalf."

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The State has issued a circular on 25-4-1974 in furtherance of the power conferred under FR 31-A. Para 5 of the said circular reads Court of Chhattisas under:

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In the case of those Government servants whose promotion were/are delayed due to wrong assignment of position in the gradation list which after due consideration is revised and proper place is assigned in the gradation list, he should be deemed to have been promoted to the higher post with effect from the date his junior was promoted and from the date of actual promotion he be allowed the same pay which he would have got but for wrong place in the gradation list. However, in such cases the persons concerned will not be entitled to pay arrears of pay any allowance during the period for which they did not perform the duties of the higher post on the basis of principle of 'No work No pay'."

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The High Court of Madhya Pradesh in R.B. Guhe v. The State of Madhya Pradesh, while dealing with the similar issue in respect of second part of circular dated 25-4-1974, held that the second part of the circular providing that in case where an employee was denied promotion because of wrong fixation of seniority and is later on promoted will not be entitled to arrears of pay on the principle of 'no work, no is bad in law.

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From bare perusal of the facts and documents annexed with this petition, it is quite vivid that the case of the petitioner is squarely covered from the judgment passed by the Coordinate Bench of this Court. Even the State is unable to justify their in action of not granting arrears of salary from 1996 to 2005. Therefore, the petitioner is entitled to get arrears of difference of salary between the post of Deputy Ranger to Ranger from 25/01/1996 to 24/04/2005. The State is directed to pay the arrears within outer limit of three months from the date of receipt of copy of this order.

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With aforesaid direction, the writ petition is allowed.

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Sd/-

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(Narendra Kumar Vyas) Judge

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Ashish

B. R. Khuntte v. State Of Chhattisgarh And Ors. .

Case brief

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B. R. Khuntte v. State Of Chhattisgarh And Ors. .

Case brief

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