Allowed

Md.Motiullah v. State and Ors.

Orissa HC23 Aug 2024WP(C)/20442/2012

Case brief

AI extract

What is this about?

Petitioner, a trained Urdu teacher, was denied posting for 17 years due to institutional resistance and State inaction. Despite willingness to work, authorities failed to post him. Court held 'no work no pay' inapplicable and allowed writ to quash rejection of arrear salary claim.

What did the court decide?

Impugned order dated 28.09.2012 quashed; respondents directed to release arrear salary for period 01.04.1993 to 21.12.2010 by fixing pay as trained Urdu Teacher within two months.

Md.Motiullah Vs State and Ors. — Pension and Retirement Benefits | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No. 20442 of 2012

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Application under Articles 226 & 227 of Constitution of India.

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--------------Md. Motiullah …… Petitioner - Versus -

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State of Odisha and Ors. ...…. Opp. Parties

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Advocate(s) appeared in this case:-

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For Petitioner : Mr. B.S. Tripathy, M.K. Rath, J. Pati & M. Bhagat, Advocates

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For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate Mr. S.N. Sharma, Advocate [for Opp.Party No.5 ]

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_________________________________________________________ CORAM:

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT 23^nd August, 2024

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SASHIKANTA MISHRA, J.

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The short point that falls for consideration in the

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present case is- whether the petitioner would be entitled to

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the trained scale of pay for the period from 01.04.1993 till

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Page 1 of 12

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21.12.2010 when admittedly he had not performed duties as Urdu Teacher.

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This is the third journey of the petitioner to this Court seeking the same relief. It is not necessary to refer to the facts in extenso and therefore, only such facts as would be relevant to determine the above mentioned question shall be referred to.

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The petitioner was appointed as Head Moulvi in Madrasa Islamia at Sukinda on 10.12.1987 and joined as such on 20.12.1987. He was permitted to undergo C.T. (Urdu) training in Cuttack Urdu Training School from 14.09.1991 to 31.03.1993 as an in-service teacher. After completion of training, the petitioner submitted his joining report on 01.04.1993 but the same was not accepted. He approached the office of the Director, who advised the Secretary of the Managing Committee of the Institution to allow him to join in his post. However, the Secretary did not allow him. Ultimately, the Inspector of Schools, Jajpur released the salary of the petitioner from 01.04.1993 to

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28.02.1995. In view of the resistance to the joining of the petitioner in Madrasa Islamia, Sukinda, the Director, Secondary Education, vide order dated 31.10.2000 adjusted the petitioner against the retirement vacancy of MCT (Urdu) in Government Jr. and Sr. Madrasa, Binjharpur. Unfortunately, the Principal of the said institution also did not allow the petitioner to join. The petitioner approached this Court in OJC No. 5908 of 2001 with prayer to allow him to join in any other Madrasa as also to disburse his arrear salary from 07.11.2000. This Court, by order dated 20.07.2001 directed the Inspector of Schools, Jajpur to post the petitioner in any other School and to ensure that the order is carried out. Ultimately, by order dated 27.11.2010, the petitioner was adjusted as Assistant Teacher (C.T. Urdu) in Madrasa Gousia Raufia, Dhamnagar against an existing vacancy with the stipulation that the period from 01.04.1993 to the date of joining in the new place shall be decided later. The petitioner submitted his joining report on 22.10.2010 and continued to perform his duties. His claim for payment of salary at the trained scale for the intervening

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period not having been considered, he approached this Court again in W.P.(C) No. 22619 of 2011, which was disposed of by order dated 03.11.2011 directing the Director, Secondary Education to consider and dispose of the representation of the petitioner in accordance with law. Pursuant to such order, the Director vide order dated 28.09.2012 rejected the representation of the petitioner by holding that he is not entitled to receive any arrear salary for the period from 01.04.1993 to 21.12.2010 as he had not performed his duties physically by applying the principle of “no work no pay”.

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The case of the State opposite parties is that despite repeated orders being passed by the authorities at different times, the petitioner could not join in any institution between 01.04.1993 to 21.12.2010. This happened because there was protest by the Muslim public at Sukinda as well as at Binjharpur. Ultimately, the petitioner was adjusted in Madrasa Gousia Raufia at Dhamnagar. The authorities have considered his grievance

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Page 4 of 12

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appropriately at all times but because of resistance from the public he could not join. Therefore, the Government and its functionaries cannot be blamed in any manner.

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Similar stand has been taken by the Madrasa Islamia, Sukinda in its counter.

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Heard Mr. B.S. Tripathy, learned counsel for the petitioner; Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State; and Mr. S.N. Sharma, learned counsel appearing for Madrasa Islamia, Sukinda (opposite party No.5)

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Mr. Tripathy would argue that the principle of “no work no pay” cannot be mechanically applied in all cases. In the instant case, the petitioner though wanted to

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join in his post upon completion of training was prevented from doing so. Despite passing several orders, the State authorities also could not ensure his joining in any institution. Therefore, no fault can be attributed to the petitioner as he was prevented from performing duties

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though he was ready and willing to do so at all times.

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Page 5 of 12

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Mr. S.N. Pattnaik, learned Addl. Government

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Advocate would argue that the State functionaries can also not be blamed as repeated orders were passed to adjust the petitioner in any institution but because of local resistance and protest by the Muslim public at all places, the order was unable to be carried out.

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Mr. S.N. Sharma, learned counsel appearing for

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Madrasa Islamia would argue that there was large scale protest against the petitioner for which it was considered prudent not to allow him to join in his service as it would have aggravated the situation.

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Admittedly, the petitioner had joined as Moulvi in Madrasa Islamia, Sukinda on 22.12.1987. He underwent C.T. Training as an in-service candidate from 14.09.1991 to 31.03.1993. His attempts to join in his former post after completion of training on 01.04.1993 were unsuccessful. It is borne out from the materials on record that such fact being brought to the notice of the Inspector of Schools and the Director, Secondary Education, multiple orders were

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Page 6 of 12

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passed directing the Management of the School to accept his joining report but as it appears, because of public resentment, the management was not in a position to allow him to join in his duties. However, he was paid his salary from 01.04.1993 to 28.02.1995. He was directed to be adjusted in Government Jr. and Sr. Madrasa, Binjharpur but said order was also not complied with, again because of apparent protest against the petitioner. Ultimately, he was adjusted as Moulvi Teacher in Madrasa Gousia Raufia, Dhamnagar, where he joined on 22.12.2010.

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From the above facts it is evident that the petitioner had not performed any duties from 01.04.1993 till 21.12.2010. Ordinarily the principle of “no work no pay” would be applicable but then it is well settled that the aforesaid principle is not to be applied mechanically in all cases particularly, the principle would not be applicable where the employee is willing to work but is kept away from work by the authority for no fault of his. The following

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observation of the Supreme Court of India in the case of

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Union of India vs. K.V Jankiraman¹ is noteworthy.

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“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 employee 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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From the sequence of facts narrated

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hereinbefore, it is clear that the petitioner, after completion

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of training wanted to join but was prevented by the Managing Committee of the Institution to do so. This is said to be because of some protest made by the Muslim public but this Court finds that another person namely, Jahed Ali Khan had been appointed against the post of Moulvi held by the petitioner during his absence for the period of training. The appointment of said Jaheed Ali Khan had also not been approved. For such reason the Deputy Director vide letter dated 24.01.1998 took note of such fact and requested the Government to pass orders to adjust the petitioner in any

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1 1991 (4) SCC 109

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primary school so that his salary could be paid. This Court is therefore, not willing to accept that the petitioner was prevented by the Management of Madrasa Islamia from joining in his post because of public resentment but apparently because another person had been appointed in his place during the period when he was undergoing training as an in-service candidate. This is entirely unconscionable and in any event the petitioner cannot be blamed.

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What is surprising to note is, the inaction of the State authorities to take any action against the Management for filling up the temporary vacancy caused due to training of the petitioner by appointing another person whose services were never approved. Be that as it may, the petitioner was sought to be adjusted in Government Sr. and Jr. Madrasa, Binjharpur. Here also the petitioner was not allowed to join by the Principal on the ground of public resentment. Despite taking note of such facts, the authorities did precious little to enforce their own orders.

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Page 9 of 12

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Ultimately, the petitioner, as already stated, was adjusted in Madrasa Gousia Raufia at Dhamnagar. So in between 01.04.1993 till 21.12.2010 i.e. for a period of 17 long years the petitioner was not allowed to join, for whatever reason and the State authorities remained a helpless spectator to the whims and fancies of the Managing Committee/Principal of the concerned educational institutions. This does reflect a

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very sorry state of affairs as was observed by a Co-ordinate bench of this Court in the earlier writ application filed by the petitioner being OJC No. 5908 of 2001, wherein, the following was observed.

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“Heard learned counsel for the petitioner and Mr. Mishra, learned Standing Counsel for the Education Department.

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The petitioner is admittedly working as Moulavi at Madrasa Islamia, Sukinda. After taking training, he joined in his post, the Secretary of the said institution did not accept his joining report as a result of which the petitioner was constrained to submit his joining report before the Inspector of Schools, Jajpur and thereafter he was directed to join in Government Junior and Senior Madrasa, Binjharpur vide Annexure-4. The petitioner submits that he was also not permitted to join in the said institution, as a result of which the petitioner was constrained to submit his joining report in the establishment of Inspector of Schools and attending the office every day.

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Page 10 of 12

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If the facts are true, definitely it reveals a very sorry of state of affair, in as much as, a trained Moulavi has not been posted in any educational institution and rather has been allowed to continue in the office of the Inspector of Schools.

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I feel no useful purpose will be served by admitting, the writ application. Accordingly the same is disposed of with a direction that the Inspector of Schools, Jajpur shall do well to post the petitioner in any other School and take steps to see that the order works out. Necessary action be taken against any person/ authority who will flout the order of the Inspector of Schools, (opposite Party No.3). The entire exercise shall be completed within two months from today if there is no impediment.

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The claim for arrear salary of the petitioner will be considered thereafter.

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The order being passed without hearing the opposite parties, liberty is given to move this Court if it is found necessary.

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Requisites for communication of this order along with copy of the writ petition shall be filed within three days.”

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From what has been narrated hereinbefore,

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this Court feels persuaded to echo the same sentiment as

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expressed by the coordinate Bench referred above. It is a matter of concern that repeated orders passed by the State functionaries where openly flouted by the Managing Committees of educational institutions including a Government institution with impunity and no action

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appears to have been taken against the persons responsible.

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Page 11 of 12

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This Court therefore, holds that the fact of non-joining of the petitioner in his post after completion of training cannot be cited to his detriment at least in so far as his claim for payment of salary during the said period is concerned. The impugned order not having addressed the above issues is therefore, rendered unsustainable in the eye of law.

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For the foregoing reasons therefore, the writ application is allowed. The impugned order dated 28.09.2012 is hereby quashed. The Director, Secondary Education and Inspector of Schools, Bhadrak and Jajpur are directed to pass necessary orders to release the arrear salary of the petitioner for the period from 01.04.1993 to 21.12.2010 by fixing his pay as a trained Urdu Teacher within two months from the date of production of certified copy of this judgment by the petitioner.

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……..…………………….

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Sashikanta Mishra, Judge

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Orissa High Court, Cuttack. The 23^nd August, 2024/ A.K. Rana, P.A.

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Signature Not Verified

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Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Aug-2024 17:07:45

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Md.Motiullah v. State and Ors.

Case brief

What is this about?

What did the court decide?

Md.Motiullah v. State and Ors.

Case brief

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