Dayanand Thakur Vs the State of Jharkhand through the Principal Secretary Human Resources Department

Prayer in the petition is made for direction upon the respondents to pay the arrears of salary to the petitioner for the period 06.09.2010 to 16.07.2020 and further prayer is made for directions upon the respondent to extend the 2^nd and 3^rd MACP benefits to the petitioner with effect from 12.02.2010 and 12.02.2020 respectively i.e. upon completion of 20 years of service.

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Mr. Sumit Gadodia, learned counsel for the petitioner submits that the petitioner initially appointed on the post of “Orderly” on purely temporary basis by the District School Inspector, Singhbhum on 12.02.1990 after following the due process of law. Thereafter, the petitioner joined on the said post and subsequently, his service was regularized by the District Inspector of Schools, Singhbhum vide letter dated 15.05.1991 with effect from 12.02.1990. He further submits that the petitioner was successfully performing his duty to the satisfaction of all the concern and at present the petitioner is posted in the office of District Education Officer, Deoghar on the post of „Orderly‟. He submits that the petitioner was posted at the office of District Education Officer, Deoghar, the departmental

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proceeding was initiated against the petitioner serving memo of Charge and allegation was made that the appointment of the petitioner is not as per the procedure and as such the appointment is illegal. He submits that the petitioner has filed the show cause denied the charges. He submits that the inquiry report was against the petitioner and thereafter the service of the petitioner was terminated vide order dated 05.09.2010.

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Mr. Gadodia, learned counsel submits that the said order of termination was challenged by the petitioner in W.P.(S) No. 5898 of 2010 and the writ petition was allowed in favour of the petitioner and the termination order was quashed and directing that the petitioner is entitled for the consequential benefit. Then it is submitted that challenging the Said order the L.P.A. No. 287 of 2019 was preferred by the State which was dismissed by the Division Bench vide order dated 23.09.2019. He further submits that the State of Jharkhand even filed Special Leave petition (Civil) Diary No. 3290 of 2021 before the Hon‟ble Supreme Court but the same was also dismissed by the Hon‟ble Supreme Court. He further submits that the petitioner has filed the contempt proceeding for implementation of the order of the writ Court. Thereafter, the petitioner was reinstated in the service by the order dated 16.07.2020. He submits that thereafter the petitioner duly joined his services on the post of „Orderly‟ before the District Education Officer. According to him the petitioner filed the representation before the District Education Officer for payment of the arrears of salary. He submits that Regional Deputy Director of Education vide letter dated 14.12.2022 directed the District Education Officer, Deoghar to make payment of arrears of salary to the petitioner as in the case of the petitioner „no work no pay‟ principle is not attracted. In spite of that the petitioner did not being paid. He submits that the contempt proceeding was dropped considering that there is substantial compliance of the order. However, liberty was provided to take recourse under the law for the payment of salary and other dues. On this ground, he submits that once the termination order is quashed and to no fault of the petitioner

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he was not allowed to work. In view of that the petitioner is entitled for entire period of salary. He submits that even the higher official is taken note of the fact that the petitioner is entitled for the payment and the principle of „no work and no pay‟ not applicable in the case of the petitioner. Till date in spite of that payment has not been released in favour of the petitioner.

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Learned counsel for the State draws the attention of the Court at paragraph 18, 20 and 21 of the counter affidavit and submits that the payment has not been released in favour of the petitioner as he has not worked for that period. He submits that Hon‟ble Supreme Court while deciding the SLP has kept the law point open. Thus in view of the principle of „no work no pay‟ principle the petitioner is not entitled for the arrears of salary for the period of 06.09.2010 to 16.07.2020. He submits that so far as the 2^nd and 3^rd MACP is concerned which disclosed in paragraph no. 22 of counter affidavit that if the petitioner will file the proper representation in the prescribed format for grant of 2^nd and 3^rd MACP the same will be granted to the petitioner. In this way he submits that so far as the arrear of salary is concerned that may not be allowed.

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It is an admitted position that the petitioner was appointed as „Orderly‟ in the officer of the District School Inspector, Singhbhum his services was confirmed on 15.05.1991. The petitioner has faced a department proceeding and he was terminated by the order dated 05.09.2010. The said order was challenged before this Court in W.P.(S) No. 5298 of 2010 and the said writ petition was allowed by way of quashing of the impugned order and the consequential benefit direction was also issued. The State preferred the LPA No. 287/2019 which was dismissed vide order dated 23.09.2019. Against that the State of Jharkhand moved before the Hon‟ble Supreme Court by Special Leave petition (Civil) Diary No. 3290 of 2021 which was also dismissed vide order dated 05.12.2022, however the law point was kept open. The contempt proceeding was dropped considering the petitioner was reinstated however the observation was made that

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the petitioner may take recourse under the law for payment of other dues.

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It is an admitted position that the termination order was quashed and it was upheld upto the Hon‟ble Supreme Court. In the case where the petitioner voluntarily not worked for certain period the principle of „no work no pay‟ can apply. But at the same for applying the principle of „no work no pay‟ there are parameters of passing such orders. If the court comes to the conclusion that there is illegality on behalf of the authority concerned and to that the petitioner would not allow the work t0he court is required to pass appropriate order. In the case in hand the termination order of the petitioner is not found in accordance with law which was quashed with the direction to consequential benefit and the said order was affirmed by the Hon‟ble Supreme Court. Thus, for the wrong of the respondent State the petitioner was prevented to work in such a situation is there the case of the petitioner is covered in the light of the judgment of Hon‟ble Supreme Court in the case of Pradeep, son of Rajkumar Jain vs. Manganese Ore (India) Limited reported in (2022) 3 SCC 683 in which it has been held that the question arises as to whether the back wages is to be given and as to what would be the extent of back wages and these are the aspects which depends on the facts of the case as noted in the case of Deepali Gundu Surwase V. Kranti Junior Adhyapak Mahavidyalay (D.Ed.) and others reported in (2013 10 SCC 324) . Thus, it is well settled that in the case where it is found that the employee is not at all at fault and yet he was visited with illegal termination which is actually a device by malice which may be unfair to deny him the fruits of employment which would have enjoyed, but for mala-fide termination, he was not allowed.

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In view of above facts and considering the law on the issue in question, the petitioner is entitled for salary with effect from 06.09.2010 to 16.07.2020.

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Further Rule 58 and 59 of Jharkhand Service Code and Rule 74

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of the Bihar Financial Rules do not make complete bar of

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retrospective promotion, nor debar payment of arrears of salary on such retrospective promotion will be evident from Rule 74 of the Bihar Financial Rules where the authorities are competent to sanction benefit from retrospective effect. A reference in this regard may be made to the judgment rendered by the Hon'ble Patna High Court in the case of Sri Mahavir Pandey v. The State of Bihar & Ors. , reported in 1999 SCC OnLine Pat 899 . Paragraphs 10 and 11 of the said judgment are quoted herein below:

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“10. So, far as Rule 58 of the Bihar Service Code is 5 W.P.(S) No.605 of 2024 concerned, it is to be read along with other relevant rules, namely, Rule 74 of Bihar Financial Rules and other guidelines/rules issued by the State from time to time.

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11. Sub-rule (b) to rule 58 relates to a direct recruitment in overseas, which is not applicable in the present case whereas sub-rule (a) of rule 58 relates to draw of pay and allowance attached to tenure of a post of incumbent which starts from the date the person assume the duties, subject to exception specifically made in the rule. The same do not make complete bar of retrospective promotion, nor debar payment of arrears of salary on such retrospective promotion will be evident from Rule 74 of the Bihar Financial Rules where the authorities are competent to sanction benefit from retrospective effect, but in exceptional circumstances and in other cases with the special approval of the Government.”

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In view of the above the petitioner termination order was already quashed and even a Regional Deputy Director has directed the District Education Officer to the effect that „no work no pay‟ principle is not applicable so far as the petitioner of this case is concerned in spite of that the petitioner has not been paid the salary. 11. In view of the above this writ petition is allowed. The respondent state is directed to pay the arrears of salary to the petitioner for the period 06.09.2010 to 16.07.2020 within six weeks from the date of receipt /production of the copy of this order. Since there is admission in para no. 22 of the counter affidavit about releasing of the 2^nd and 3^rd MACP after receiving the representation

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MM/AFR

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in the proper format the said prayer is being disposed directing the petitioner to comply the condition made in paragraph 22 of the counter affidavit within a period of 3 weeks.

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Since it is already admitted in the said paragraph after the receiving of the proper representation by the petitioner, the benefit will be released in the name of the petitioner within four weeks further thereafter.

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With the above observations, the writ petition is allowed and disposed.

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(Sanjay Kumar Dwivedi, J.)

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Dayanand Thakur v. the State of Jharkhand through the Principal Secretary Human Resources Department

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Dayanand Thakur v. the State of Jharkhand through the Principal Secretary Human Resources Department

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