# (2012) 1 ILRA 351

- **Citation:** (2012) 1 ILRA 351
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-13
- **Case number:** Civil Misc. Writ Petition No. 64423 of 2008
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2012-1-ilra-351-42153
- **Pages:** 4

## Headnote

Constitution of India, Article 226-arrears
of salary-petitioners were appointed as
Police Constable-after completing their
Training-Services
dispensewith
by
exercising power under Rule 8 (2) (b) of
U.P.
Police
Subordinate
Rank
Punishment and appeal) Rules 1991-as
per direction contained in special appealmedical board examined and found them
fit-consequently reinstated in servicenow arrear of salary denied on "No work
No
pay"
principle
held-where
the
employee
willing
to
work
but
not
allowed-entitled full wages for period
during which deprived to work-direction
for
continuity
in
service
with
all
consequential benefits given.

Held: Para 7

The petitioners must have been given
appointment after they were found to be
medically fit. However, in pursuance of
some letter of the Director General of
Police fresh medical examination was
conducted in which all the petitioners
were declared to be medically unift and
the same was found to be incorrect by
352 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the Medical Board constituted under the
direction of this Court. The shortcomings
on which they were found medically fit
such as colour vision and blindness,
bilateral flat foot etc. cannot be said to
be temporary in nature so as the same
was not found in the subsequent medical
examination. The same are permanent in
nature. It is, thus, clear that the services
of the petitioners were dispensed with
wrongly and illegally on incorrect report
which certified them to be medically
unfit. Since the petitioners are not at
fault for disengagement, they were
clearly entitled for payment of arrears of
salary for the said period as well as other
consequential benefits and there is no
justification to deny the said benefits.
Case law discussed:
AIR 1999 SC 3265

## Text

1 All Arvind Kumar Sonkar V. State of U.P. and others
351

9.
In
the
present
case
also
misstatement of fact has been made in the
affidavit by the appellant, but at no point of
time, it was considered as to whether the
incumbent was suitable for appointment to
the service, wherein he was appointed or
not. Following the dictum of Apex Court
in the aforesaid case, the appeal deserves
to be allowed."

16. From the aforesaid discussion, it
clearly appears that in the impugned order
no satisfaction has been recorded by the
appointing authority that the petitioner is
not suitable to be appointed with reference
to nature of suppression and nature of
criminal
case.
Merely
because
the
information with respect to the registration
of the case has been withheld would not
dis-entitle the petitioner to be appointed as
no satisfaction has been recorded by the
appointing authority that the nature of
allegations
so
levelled
against
the
petitioner are of such nature which would
dis-entitle him to be appointed on the said
post. Mere concealment of this information
in
itself
would
not
tantamount
to
cancellation of his appointment as the
necessity of supplying this information is
not contemplated either by the instructions
issued in terms of the G.O. dated
28.4.1958 or by the form required to be
filled up by the petitioner.

17. Considering the facts and
circumstances of the case, the writ petition
deserves to be allowed and is hereby
allowed. The order impugned dated
18.8.2007 passed by respondent no. 6 is
hereby quashed. Respondents are directed
to take back the petitioner in service within
a period of one month from the date of
production of certified copy of this order.
However, it is further held that the
petitioner is entitled to all consequential
benefits except back wages for the period
he remained out of service.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2012

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 64423 of 2008

Arvind Kumar Sonkar

 ...Petitioner
Versus
State of U. P. and others ...Respondents

Counsel for the Petitioner:
Sri P.C. Pandey

Counsel for the Respondents:
Sri J.N. Maurya
C.S.C.

Constitution of India, Article 226-arrears
of salary-petitioners were appointed as
Police Constable-after completing their
Training-Services
dispensewith
by
exercising power under Rule 8 (2) (b) of
U.P.
Police
Subordinate
Rank
Punishment and appeal) Rules 1991-as
per direction contained in special appealmedical board examined and found them
fit-consequently reinstated in servicenow arrear of salary denied on "No work
No
pay"
principle
held-where
the
employee
willing
to
work
but
not
allowed-entitled full wages for period
during which deprived to work-direction
for
continuity
in
service
with
all
consequential benefits given.

Held: Para 7

The petitioners must have been given
appointment after they were found to be
medically fit. However, in pursuance of
some letter of the Director General of
Police fresh medical examination was
conducted in which all the petitioners
were declared to be medically unift and
the same was found to be incorrect by
352 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the Medical Board constituted under the
direction of this Court. The shortcomings
on which they were found medically fit
such as colour vision and blindness,
bilateral flat foot etc. cannot be said to
be temporary in nature so as the same
was not found in the subsequent medical
examination. The same are permanent in
nature. It is, thus, clear that the services
of the petitioners were dispensed with
wrongly and illegally on incorrect report
which certified them to be medically
unfit. Since the petitioners are not at
fault for disengagement, they were
clearly entitled for payment of arrears of
salary for the said period as well as other
consequential benefits and there is no
justification to deny the said benefits.
Case law discussed:
AIR 1999 SC 3265

(Delivered by Hon'ble Krishna Murari, J. )

1. Heard learned counsel for the
petitioner and the learned Standing Counsel
appearing for the respondents.

2. Pleadings have been exchanged
between the parties and with the consent of
the learned counsel for the parties, these
petition are being disposed of finally.

3. Undisputed facts are that the
petitioners in this bunch of writ petition were
recruited in 2004 as Constable in Provincial
Armed Constabulary 20th Battalion PAC,
Azamgarh. After completing the training
successfully, they were posted at 12th
Battalion,
Fatehpur.
An
order
dated
25.7.2007 was passed by the Commandant
dispensing with the services of the petitioner
purported to be passed in exercise of powers
conferred by Rule 8 (2) (b) of the U. P.
Police
Officers
of
Subordinate
Rank
(Punishment and Appeal) Rules, 1991. The
said order was challenged by the petitioners
by filing separate writ petitions which were
bunched together. Learned Standing Counsel
was directed to produce the relevant record
on the basis of which the orders under Rule 8
(2) (b) were passed. On record being
produced, it was found that the petitioners
were medically re-examined on 19.7.2007
and since they were found to be medically
unfit for various reasons such as colour
blindness, bilateral flat foot etc., their
services were dispensed with under Rule 8
(2) (b). The learned single Judge finding that
the petitioners were recruited in Police force
wherein medical fitness was of paramount
consideration,
directed
constitution
of
Special Medical Board for fresh medical
examination
consisting
of
two
Ophthalmologists. The learned single Judge
further directed that based on same report,
the competent authority will re-consider the
matter and take decision. The matter went up
in special appeal. Vide judgment and order
dated 21.11.2007, the Division Bench of this
Court modified the order of the learned
single Judge by constituting three members
Board and the medical examination to be
carried out by the Board in Lucknow. The
Division Bench further directed that there
will be two separate Boards, one for the
purposes of eye test and the other for the
physical test. The Boards will be consisting
of three Doctors, one from a Government
Hospital, one from Sanjay Gandhi Post
Graduate Institute, Lucknow and the third
from the King George Medical College,
Lucknow. In pursuance to the aforesaid
direction of the Division Bench, Medical
Board was constituted which examined all
the petitioners and found them to be
medically fit. As a consequence vide order
dated 18.1.2008 all the petitioners were
reinstated back. Thereafter all the petitioners
made application for the arrears of salary and
other benefits such as seniority etc. When no
decision was taken, they approached this
Court by filing separate writ petitions which
were disposed of directing the Commandant,
1 All Arvind Kumar Sonkar V. State of U.P. and others
353
12th Battalion, P. A. C., Fatehpur to consider
and decide the representation by means of a
reasoned and speaking order. In pursuance to
the aforesaid orders passed by this Court,
vide order dated 22.8.2008, the claim made
by the petitioners for arrears of salary and
other consequential benefits has been
rejected applying the principle of ''No Work
No Pay'.

4. It is contended by the learned
counsel for the petitioners that the services
were terminated wrongly and illegally on
the basis of an alleged wrong medical report
which was subsequently found to be
incorrect by the Medical Board constituted
under the orders of this Court as such they
cannot be faulted with so as to deny the
wages of the said period as well as other
consequential benefits.

5. In reply, learned Standing Counsel
referring to the averments made in the
counter affidavit has submitted that since
the earlier termination was not recalled or
set aside rather after their medical reexamination since they were found fit and
have been re-employed as such they are not
entitled to any salary or other benefits for
the said period.

6. I have considered the arguments
advanced by the learned counsel for the
parties and perused the record.

7. The petitioners must have been
given appointment after they were found to
be medically fit. However, in pursuance of
some letter of the Director General of Police
fresh medical examination was conducted
in which all the petitioners were declared to
be medically unift and the same was found
to be incorrect by the Medical Board
constituted under the direction of this Court.
The shortcomings on which they were
found medically fit such as colour vision
and blindness, bilateral flat foot etc. cannot
be said to be temporary in nature so as the
same was not found in the subsequent
medical
examination.
The
same
are
permanent in nature. It is, thus, clear that the
services of the petitioners were dispensed
with wrongly and illegally on incorrect
report which certified them to be medically
unfit. Since the petitioners are not at fault
for disengagement, they were clearly
entitled for payment of arrears of salary for
the
said
period
as
well
as
other
consequential benefits and there is no
justification to deny the said benefits.

8.
In the case of Registrar
(Administration), High Court of Orissa,
Cuttack Vs. Sisir Kanta Satapathy (dead)
by L. Rs. and another, AIR 1999, SC 3265,
the Apex Court has held that if an employee
was willing to work but arbitrarily deprived
from discharging his duties, should be paid
his wages. The ratio of the aforesaid
judgment is squarely applicable in the facts
of the present case. All the petitioners were
duly discharging their duties. There is no
reason to believe that they were not willing
to work. It is only on account of a medical
report, which was subsequently found to be
wrong and incorrect for which the
respondents have no justification, there is
no hesitation in holding that the petitioners
were deprived from working arbitrarily.

9. In view of the above facts and
circumstances, all the writ petitions succeed
and stand allowed. The order dated
22.08.2008 passed by the Commandant
12th Battalion P. A. C., Fatehpur is
quashed. A further writ of mandamus is
issued commanding the respondents to treat
the petitioner in continuous service with
effect from 25.7.2007 to 18.1.2008 and also
354 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
pay them the arrears of salary for the said
period with all other consequential benefits.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN,J.
THE HON'BLE MRS. SUNITA AGARWAL,J.

Civil Misc. Writ Petition No. 66066 of 2011

Brij Mohan and others ...Petitioners
Versus
State of U.P. Thru Special Secy. and
others

 ...Respondents

Counsel for the Petitioner:
Sri R.K. Awasthi
Sri Pramod Kumar Singh
Sri R.K.Jain

Counsel for the Respondents:
C.S.C.
Sri Suresh Singh
Sri Zafar Naiyar

Land
Acquisition
Act-Section
48-Arepresentation
for
exemption
from
acquisition-rejected-on
ground
possession already taken-prior issuance
of G.O.-before taking possession no
notice given to petitioners-No signature
of
tenure
holders
on
Dakhalnama
memo-found
rejection
on
pertext
acquisition completed before existence
of
Govt.
order-hence
can
not
be
released-not
available-can
not
be
allowed to adopt pick and choose
Policy-order quashed-direction for fresh
consideration issued.

Held: Para 40

In view of the foregoing discussions, it
is clear that the reasons given by the
State Government for rejecting the
claim of the petitioners under Section
48 of the Act for release of their land,
are erroneous. The State Government in
its order dated 11th October, 2011 has
essentially
given
two
reasons
for
rejecting
the
claim.
Firstly
the
possession has been taken on 15th July,
2009 and 27th July, 2009 which land is
in possession of the Authority, hence
the same cannot be released and
secondly
before
issuance
of
the
Government order dated 27th August,
2010 the acquisition of land was already
complete in accordance with law. We
have already held that possession of the
land in dispute was not taken in
accordance with law on 15th July, 2009
and 27th July, 2009 hence the findings
of the State Government that release
cannot be made under Section 48 of the
Act is erroneous. The view of the State
Government
that
acquisition
has
already completed prior to issue of the
Government order dated 27th August,
2010 is also not correct. We have
already repelled
the submission
of
learned counsel for the respondents
that the Government order dated 27th
August, 2010 is not applicable with
regard to acquisition of petitioners'
land. Thus both the reasons given in the
order dated 11th October, 2011 is
unsustainable.
Case law discussed:
2009 ADJ 441; 2009 (1) ADJ 535; 2010 (7)
ADJ 329; 2010 (10) SCC 282; 2011 (11) ADJ
1; A.I.R. 1975 SC 1767; 1996 (4) SCC 212;
(2011) 5 SCC 394; (2011) 7 SCC 639; 2004 (1)
AWC 206; (1988) 1 SCC 50; (2003) 11 SCC
772 (II); 2010 (3) SCC 621

(Delivered by Hon'ble Ashok Bhushan, J.)

1. These four writ petitions have been
filed by the farmers of four villages,
namely, Kansera, Jikarpur, Jahangarh and
Tappal
of
district
Aligarh
claiming
withdrawal
of
acquisition
of
their
agricultural land under Section 48 of the
Land Acquisition Act, 1894.

2. The issues raised in these writ
petitions being common, they have been