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Judgment
This petition, under Article 226 of Constitution of India, has been filed seeking the following relief (s):-
“ It is therefore, most humbly prayed that this petition may kindly be allowed and the respondents be directed to pay the difference of pay as per seniority and fixation of pay. Any other relief may kindly be granted.”
Learned counsel for petitioner submits that this is second round of litigation. Earlier, petitioner filed Writ Petition No.7991/2003 which was decided on 12.07.2004 wherein this Court had directed the respondents to decide the seniority of petitioner in accordance with the order dated 17.07.2001. It is further submitted that in compliance with the said order, the seniority of petitioner was refixed by order dated 09.06.2006; however, the consequential benefits have not been extended to petitioner. It is further submitted that although seniority has been granted to petitioner with effect from 28.08.1997 but the monetary benefits/arrears of salary for the period from 28.08.1997 to 01.08.2008 have not been extended to him and the same have been denied on the principle of “no work, no pay.” It is contended that the said principle is not applicable in the present case as petitioner continued to work on the same post and due to the fault of the respondents, he was not treated as a regular employee. It is further submitted that the controversy involved in the present case has already been decided by a Co-ordinate Bench of this Court vide judgment dated 13.11.2025 passed in W.P. No. 5855/2018 (Shyama Verma v. State of M.P. and others).
Per contra, learned Government Advocate appearing on behalf of respondent/State submits that the benefit of regularization has already been extended to petitioner from the date of order and prior to that he was not working on the post of Sub-Engineer and accordingly, he is not entitled to get back wages and consequently the arrears cannot be granted to petitioner. Learned counsel for respondent/State relies upon the judgment passed W.A. No.50923/2008 [Anwar Ahmad Siddique v. State of U.P.] and submits that the words " osru vkfn dk YkkHk ugha ns; gksxk" salary benefits, etc. would not be admissible, would be taken to mean only that no arrears of salary shall be given to petitioner for simple reason that he was being regularized with retrospective effect. He also placed reliance upon the judgment passed by the Apex Court in the case of Registrar General of India and another v. V. Thippa Setty And Ors reported in 1998 (8) SCC 690.
Heard the learned counsel for the parties and perused the record.
The relevant para of order/letter dated 17.7.2001 issued by Chief Engineer Public Health Engineering Department Bhopal is quoted below:
**la{ksi esa izdj.k ;g gS fd Jh vkUUkn fcgkjh xqIrk dks 09-2-1984 dks yksd LokLF; ;kaf=dh ifj{ks= Xokfy;j esa nSfud osru Hkksxh ds vUrxZr fu;qDr fd;k x;k FkkA ,oa ;s fnukad 20-08-85 rd nSfud osru Hkksxh deZpkjh ds :i esa dk;Zjr jgsA blds i'pkr bUgsa nSfud osru Hkksxh ds in ls gVk;k x;kA 'kklu ds vkns'k ds rgr 87 ls iwoZ gVk;s x;s nSfud osru Hkksxh deZpkjh dks iqu% lsok esa j[ks tkus ds vkns'k ds rkjrE; esa bUgs 23-12-93 dks iqu% nSfud osru ij j[kk x;k gSA fu;fefrdj.k ds izdj.k ij vU; izdj.kksa ds lkFk fu.kZ; ysrs le; budh iqufuZ;qfDr dk fnukad eq[; vfHk;Urk Xokf;yj }kjk 17-12-93 ds LFkku ij 17-12-94 lqfpr fd;k x;k FkkA vr% bl izdkj ds izdj.k esa nSfud osru Hkksxh deZpkfj;ksa ds fu;fefrdj.k ds le; Jh vkUun fcgkjh xqIrk ls dfu"B Jh ,e-ds-eksnh mi;a=h dks fu;fer LFkkiuk esa fu;qDr fn;k x;k FkkA ;g fu;qfDr vkns'k bl dk;kZy; ds i`"Bkadu dzekad 624@fnukad 26-08-1997 }kjk tkjh fd;k x;k FkkA vr% izLrkfor gS fd Jh vkUUkn fcgkjh xqIrk dks tks iwoZ esa nSfud osru Hkksxh mi;a=h Fks ,oa Fks ftUgsa 21-9-98 ds }kjk eq[; vfHk;Urk }kjk dk;ZHkkfjr lsok esa f'k¶V bapktZ cuk;k x;k Fkk dks fu;fer LFkkiuk esa Jh eksnh ls ofj"B ekurs gq;s fu;fer mi;a=h ds in ij fu;qfDr nh tkuk izklafxd gksxkA orZeku esa fu;fer fu;qfDr ij izfrca/k gS vr% fo'ks"k izdj.k ds rkSj ij Jh vkUUkn fcgkjh xqIrk dks fu;fer LFkkiuk esa fu;qfDr ds vkns'k tkjh djus dh vuqefr nsa rkfd izdj.k esa dksVZ ds vkns'k dh voekuuk u gksA**
Perusal of record reveals that the present matter is second round of litigation. Earlier, in Writ Petition No. 7991/2003, this Court had directed the respondents to determine the seniority of petitioner in accordance with the order dated 17.07.2001. In compliance thereof, the seniority of petitioner was refixed by order dated 09.06.2006; however, the consequential benefits were not extended. It is not in dispute that petitioner has been granted seniority with effect from 28.08.1997 but the monetary benefits/arrears of salary for the period from 28.08.1997 to 01.08.2008 have been denied on the principle of “no work, no pay.” The said principle is not applicable in the facts of the present case as the petitioner continued to work on the same post and was not treated as a regular employee due to the fault attributable to the respondents.
In the earlier round of litigation, this Court had already directed the respondents to act in accordance with the directives issued in the order of regularisation (Annexure A/2 dated 17.07.2001). The Court had also directed the respondents to consider the earlier order passed by the Tribunal. It was submitted that, by the order dated 17.07.2001, the Engineer-in-Chief had already requested the Principal Secretary, Public Health Engineering Department, to grant the benefit of regularisation to petitioner. Despite the directions issued by this Court in the earlier round of litigation to consider the order dated 17.07.2001, the case of petitioner was not considered by the respondents. Due to the fault of the respondents, petitioner was not regularised at par with his juniors. Petitioner cannot be held responsible for this lapse and is entitled to all the benefits that have been extended to his juniors. Admittedly, the juniors of the petitioner have been granted the benefit of regularisation with effect from 28.08.1997. The judgment cited by the respondents is not applicable to the present case, as the facts and grounds herein are distinct.
The respondents have not shown any fault on the part of the employee for non-consideration of his case for regularization alongwith his juniors. Thus, the non-consideration for regularization of 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 regularization. In the case of Union of India Vs. K.V.Jankiraman, AIR 1991 SC 2010, the Hon'ble Apex Court held that where the employee was not at fault and the department deprived him of performing on 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 Kerala reported in (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 reported in 2015(2) MPHT 132. A similar view has been taken by Division Bench at the Principal Seat at Jabalpur in WA No.1287/2017 (State of MP and Ors Vs. Jham Singh Pandre) decided on 02.01.2018. Due to the fault of the respondents, the petitioner was made to work on an unregularized post; therefore, the principle of “no work, no pay” is not applicable. In the present case, it is on account of the respondents’ fault that petitioner was unable to work on the regularized post.
It is trite law that in every administrative decision the authorities are expected to adhere to the constitutional mandate of Article 14 and 16 of the Constitution of India. Unreasonableness, discrimination and favouratism pollute the administrative process. Article 14 guarantees equal protection of law and equality before the law. No discrimination whatsoever can be done by the authorities by colourable exercise of power . The Apex Court in the case of Amita vs. Union of India and another reported in (2005) 13 SCC 721 in para-11 has held as under:
"11...... Article 14 of the Constitution guarantees to every citizen of India the right to equality before the law or the equal protection of law. The first expression “equality before the law” which is taken from the English common law, is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual. It also means that amongst the equals the law should be equal and should be equally administered and that likes should be treated alike. Thus, what it forbids is discrimination between persons who are substantially in similar circumstances or conditions. It does not forbid different treatment of unequals. Article 14 of the Constitution is both a negative and positive right. Negative in the sense that no one can be discriminated against: anybody and everyone should be treated as equals. The latter is the core and essence of the right to equality and the State has the obligation to take necessary steps so that every individual is given equal respect and concern which he is entitled to as a human being. Therefore, Article 14 contemplates reasonableness in State action, the absence of which would entail the violation of Article 14 of the Constitution.
Due to the fault of the respondents, petitioner was not regularised at par with his juniors. Petitioner cannot be held responsible for this lapse and is entitled to all the benefits that have been extended to his juniors. Admittedly, the juniors of the petitioner have been granted the benefit of regularisation with effect from 28.08.1997. Due to the fault of the respondents, the petitioner was made to work on an unregularized post; therefore, the principle of “no work, no pay” is not applicable. In the present case, it is on account of the respondents’ fault that petitioner was unable to work on the regularized post. Unreasonableness, discrimination and favouratism pollute the administrative process. Thus, what it forbids is discrimination between persons who are substantially in similar circumstances or conditions. It does not forbid different treatment of unequals. Article 14 of the Constitution is both a negative and positive right. Negative in the sense that no one can be discriminated against: anybody and everyone should be treated as equals.
Thus, the decision, which is called in question in this petition, taken vide order dated 10.07.2009 (Annexure P/1), when tested on the anvil of Articles 14 and 16 of the Constitution of India and in light of the law laid down by the Hon’ble Apex Court in the case of Amita (supra), leads this Court to be of the considered opinion that for the reasons mentioned hereinabove, it is unsustainable.
It is settled principle of law that the principle of “no work no pay” cannot be accepted as rule of thumb. There are exceptions where courts have granted monetary benefits from back date also and full back wages in certain circumstances may be justified, particularly when promotion is wrongly denied.
The Apex Court in the case of State of Kerala v. E.K. Bhaskaran Pillai, (2007) 6 SCC 524 held as under:
…...Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle “no work no pay” cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.
Deprivation to work against the post to which a petitioner is entitled on regularization is always at the risk and responsibility of the State and cannot be made a basis for depriving petitioner of the emoluments to which he was entitled, had he been regularized in accordance with the rules at the time when he became eligible for such regularization. The Courts cannot ignore the magnitude of sufferings and the pains to which petitioner is subjected on account of deprivation of the monetary benefits particularly in this age of skyrocketing prices and non availability of essential requirements of livelihood. The Court cannot shut its eyes and forget the holocaust of economic deprivation to the petitioner and his dependents. Such a deprivation might have upset the career of the dependents, depriving the society of the services of such youth and budding dependents or children of the petitioner. Once this Court passed an order that petitioner was entitled to regularization with retrospective effect then respondent cannot deprive him of the benefits of salary accruing on account of such regularization from an early date without assigning valid, cogent and specific reasons.
Considering the order/letter dated 17.07.2001 since petitioner is entitled to get the benefit of regularisation with effect from 28.08.1997 and consequently he is entitled to the monetary benefits and arrears of salary from the date of regularisation, i.e., 28.08.1997, till 01.08.2008, at par with his juniors, respondents are directed to extend these benefits along with interest @ 6% per annum to petitioner from the date of entitlment till actual payment within a period of three months from the date of receipt of certified copy of this order, else the respondents shall pay interest at the rate of 12% per annum to him on the said amount from the date of entitlement till his actual payment.
With the aforesaid, this petition is disposed of.