# Rajesh Kumar Yadav v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 524
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-11
- **Case number:** Writ-A No. 26963 of 2018
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-yadav-v-state-of-u-p-ors-49658
- **Pages:** 5

## Headnote

Civil Law - Service Jurisprudence - Arrear
of salary - principle of "no work no pay" -
when not applicable - where the employee
remains out of service on account of the
unilateral act of the employer which is
subsequently found not valid and lawful,
the employer cannot deny his salary on
the principle of "no work no pay (Para 15)
1 All. Rajesh Kumar Yadav Vs. State of U.P. & Ors.
525
Petitioner was appointed as Nalkoop Mistri in
2004, but his services were terminated by an
order
dated
14.09.2011,
consequently
he
instituted Writ petition - said petition was
allowed & the matter was remitted to the
respondents to take a decision afresh -
Respondents, vide order dated 28.04.2017, set
aside the earlier order dated 14.09.2011 and
reinstated him with immediate effect - Petitioner
made an application for the arrears of salary for
the period 14.09.2011 to 01.05.2017, which was
rejected relying on the principle of "no work no
pay" - Held - Petitioner reinstatement was
unconditional and does not carry any condition
subject to which the petitioner has been granted
reinstatement - But for the respondents'
decision
to
terminate
his
services
on
14.09.2011, the petitioner would have continued
in service and served the respondents -
Petitioner
was
forced
to
stay
away
-
Respondents directed to sanction and disburse
arrears of the petitioner's salary for the period
14.09.2011 to 1.05.2017.

Allowed. (E-5)

List of Cases cited:

## Text

524 INDIAN LAW REPORTS ALLAHABAD SERIES
delay and/or inaction on the part of the
department/authorities.
There
was
an
absolute callousness on the part of the
department/authorities.
The
facts
are
conspicuous and manifest the grave delay
in entertaining the application submitted by
the appellant in seeking employment which
is
indisputably
attributable
to
the
department/authorities.
In
fact,
the
appellant has been deprived of seeking
compassionate appointment, which he was
otherwise entitled to under the 1990 Rules.
The appellant has become a victim of the
delay and/or inaction on the part of the
department/authorities
which
may
be
deliberate or for reasons best known to the
authorities concerned. Therefore, in the
peculiar facts and circumstances of the
case, keeping the larger question open and
aside, as observed hereinabove, we are of
the opinion that the appellant herein shall
not be denied appointment under the 1990
Rules. The appellant has become a victim
of the delay and/or inaction on the part of
the department/authorities which may be
deliberate or for reasons best known to the
authorities concerned. Therefore, in the
peculiar facts and circumstances of the
case, keeping the larger question open and
aside, as observed hereinabvove, we are of
the opinion that the appellant herein shall
not be denied appointment under the 1990
Rules.

15. The judgment cited on behalf of
the State is not applicable in the present
case as there were a delay on behalf of the
dependents of the deceased employee and
the said judgment are not applicable in the
present case.

16. In view of the above, discussions,
the respondents are directed to consider the
case of the petitioner for appointment on
compassionate ground under the Rules of
1974 as per his application which was
received in the office of District Inspector
of Schools, Ballia on 22.6.2002 and if the
petitioner is otherwise found to eligible to
appoint him on the Class-IV in the
Institution namely Amar Shahid Bhagat
Singh Inter College, Rasra, Ballia, District-
Ballia.

17. The aforesaid exercise should be
completed by the concerned respondents
within period of four weeks from today and
the petitioner is entitled to all the benefits
from the date of his appointment only.

18. In view of the above, writ petition
stands allowed. There shall be no order as
to costs.
----------
(2023) 1 ILRA 524
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 26963 of 2018

Rajesh Kumar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare

Counsel for the Respondents:
C.S.C.

Civil Law - Service Jurisprudence - Arrear
of salary - principle of "no work no pay" -
when not applicable - where the employee
remains out of service on account of the
unilateral act of the employer which is
subsequently found not valid and lawful,
the employer cannot deny his salary on
the principle of "no work no pay (Para 15)
1 All. Rajesh Kumar Yadav Vs. State of U.P. & Ors.
525
Petitioner was appointed as Nalkoop Mistri in
2004, but his services were terminated by an
order
dated
14.09.2011,
consequently
he
instituted Writ petition - said petition was
allowed & the matter was remitted to the
respondents to take a decision afresh -
Respondents, vide order dated 28.04.2017, set
aside the earlier order dated 14.09.2011 and
reinstated him with immediate effect - Petitioner
made an application for the arrears of salary for
the period 14.09.2011 to 01.05.2017, which was
rejected relying on the principle of "no work no
pay" - Held - Petitioner reinstatement was
unconditional and does not carry any condition
subject to which the petitioner has been granted
reinstatement - But for the respondents'
decision
to
terminate
his
services
on
14.09.2011, the petitioner would have continued
in service and served the respondents -
Petitioner
was
forced
to
stay
away
-
Respondents directed to sanction and disburse
arrears of the petitioner's salary for the period
14.09.2011 to 1.05.2017.

Allowed. (E-5)

List of Cases cited:

1. Shobha Ram Raturi Vs Haryana Vidyut
Prasaran Nigam Ltd. & ors., 2016 (16) SCC 683

2. Prayag Narain Dubey Vs U.P.S.R.T.C. & ors.,
Writ-A No.40927 of 2004, dt 29.03.2018

3. U.P. State Road Transport Corporation & anr.
Vs Prayag Narain Dubey in Special Appeal
Defective No. 405 of 2018 dt 23.08.2018

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against an order dated 29.10.2018 whereby
the respondents have declined payment of
petitioner's arrears of salary for the period
14.9.2011 to 1.5.2017 on the principle of
"no work no pay". A mandamus is further
sought ordering the respondents to sanction
and disburse arrears of salary for the period
14.9.2011 to 1.5.2017 with interest at such
rate as the Court may specify. There is a
further direction sought commanding the
respondents to sanction Assured Career
Progression for the petitioner also, within a
specified period of time.

2. Parties have exchanged affidavits.

3. Admit.

4. By consent of parties, heard
forthwith.

5. Heard Mr. Siddharth Khare,
learned Counsel for the petitioner and Mr
Praveen Ojha, learned Additional Chief
Standing Counsel appearing on behalf of
the state.

6. The short facts giving rise to this
petition are that the respondents who are
the
Government
of
U.P.
issued
an
advertisement for the post of Nalkoop
Mistri (for short 'the post in question) on
09.08.2004. The petitioner was duly
selected, and consequent upon selection,
appointed to the post in question on
12.10.2004. His services were regularized
by an order dated 15.07.2010 w.e.f.
08.10.2007. The petitioner was served a
show cause notice on 10.12.2010 founded
on a complaint to the effect that the
petitioner did not possess the necessary
Trade Certificate from the I.T.I. which
vitiated his eligibility for appointment as a
Nalkoop Mistri. The petitioner submitted a
reply saying that he had been selected after
following the due procedure. It was pointed
out that in the advertisement there was a
stipulation
as
regards
the
essential
qualifications
which
said:
"High
School/I.T.I. with five years experience".
The petitioner's case is that he is a
Matriculate and therefore, he fulfils one of
the alternate conditions. The petitioner's
services were terminated by an order dated
526 INDIAN LAW REPORTS ALLAHABAD SERIES
14.09.2011. In substance, the order dated
14.09.2011 is not an order of termination,
in the sense it is understood in the
disciplinary jurisdiction. It is in substance
an order of cancellation of appointment on
account of the petitioner not fulfilling
requisite
qualifications
owing
to
the
respondents' stand taken at the relevant
time. The petitioner's appeal and review to
the departmental authorities met with
failure. Consequently he instituted Writ-A
No. 52876 of 2012. The said petition was
heard and allowed by an order dated
07.12.2016 holding that the order of
cancellation of appointment impugned in
the writ petition did not show that the
authorities had considered the petitioner's
case about his eligibility founded on what
was mentioned in the advertisement. The
matter was remitted to the respondents to
take a decision afresh, bearing in mind the
guidance in the judgment and after hearing
the petitioner.

7. Consequent upon the matter being
placed before the respondents, they passed
an order dated 28.04.2017 holding that
indeed
the
petitioner
fulfilled
the
qualifications as advertised, though he did
not fulfil the qualifications as provided
under
the
Rules.
The
respondents
proceeded by their order dated 28.04.2017
to set aside the earlier order dated
14.09.2011 terminating the petitioner's
services and reinstated him with immediate
effect to the post in question. There is no
further condition, limitation or inhibition
attached to the order dated 28.04.2017,
reinstating the petitioner. At that stage, the
petitioner
made
an
application
on
07.10.2017 followed by another dated
3.05.2018, whereby he said that he had
been forced to stay away from his duties, in
consequence of the order dated 14.09.2011
for no fault of his, and was therefore,
entitled to the arrears of salary for the
period 14.09.2011 to 01.05.2017. By the
order impugned, the said application has
been rejected.

8. Mr. Siddharth Khare, learned
Counsel for the petitioner submits that the
impugned order is manifestly illegal
because the petitioner remained out of
service on account of an ill-advised action
of
the
respondents
cancelling
his
appointment,
which
later
on
they
themselves found, on a remand by this
Court, to be specious.

9. Mr. Praveen Ojha, learned
Additional Chief Standing Counsel, on the
other hand, submits that since the petitioner
did not hold the necessary I.T.I. certificate
and his services were terminated on that
ground by the order dated 14.09.2011, he is
not entitled to arrears of salary for the
relevant period. Mr. Ojha also relied on the
principle of "no work no pay" which is the
foundation of the impugned order.

10. Upon hearing learned Counsel for
the parties, this Court finds that the
respondents cannot take a vacillating stand
so far as the qualifications of the petitioner
go. May be, under the Service Rules, an
I.T.I. trade certificate is essential but the
advertisement did not mention it. The
petitioner
applied
according
to
the
advertisement. He was duly selected and
appointed. He functioned on that basis
drawing salary. His appointment was
cancelled relying on the Service Rules, but
without
paying
heed
to
what
was
mentioned in the advertisement about the
essential qualifications that the petitioner
fulfils. This Court set aside the order
cancelling the petitioner's appointment and
sent back the matter for re-consideration to
the
respondents.
At
this
stage,
the
1 All. Rajesh Kumar Yadav Vs. State of U.P. & Ors.
527
respondents have taken the view that since
what was advertised cannot be changed and
the
petitioner
possessed
requisite
qualifications
according
to
that
advertisement, their earlier order cancelling
the petitioner's appointment was wrong.
The
respondents
acknowledged
their
mistake in cancelling the petitioner's
appointment and ordered his unconditional
reinstatement. It has been remarked above
that
that
the
reinstatement
was
unconditional and we emphasize that the
order reinstating the petitioner in service is
unqualified and does not carry any
condition subject to which the petitioner
has been granted reinstatement.

11. In the circumstances, to attribute
the petitioner any blame for not performing
his duties between the period 14.09.2011 to
01.05.2017 would be patently arbitrary. But
for the respondents' decision to terminate
his services on 14.09.2011 on a particular
view about the essential qualification that
the petitioner ought to have possessed, the
petitioner would have continued in service
and served the respondents. However, later
on, when this Court sent the matter back to
the respondents to reconsider the issue, the
respondents acknowledged their mistake
and held that cancellation of the petitioner's
appointment, was for the reason indicated,
not tenable. Therefore, the petitioner
remaining out of job or not rendering work
cannot be made the basis of denying him
his emoluments for the period that he was
forced to stay away It becomes all the more
relevant
in
this
case
because
the
respondents
have
acknowledged
their
mistake while reinstating the petitioner,
and, done so, without any limitation
regarding the terms of reinstatement.

12. In this regard, reference may be
made to the decision of the Supreme Court
in Shobha Ram Raturi vs. Haryana
Vidyut Prasaran Nigam Ltd. and others,
2016 (16) SCC 683 where it has been held:

"1. It is not a matter of dispute,
that the appellant was retired from service
on 31.12.2002, even though he would have,
in the ordinary course, attained his date of
retirement on superannuation, only on
31.12.2005. The appellant assailed the
order of his retirement dated 31.12.2002 by
filing writ petition no. 751 of 2003. The
same was allowed by a learned Single
Judge of the Punjab and Haryana High
Court, on 14.09.2010. The operative part of
the
order
is
extracted
here
under:
"Accordingly the present writ petition is
allowed;
order
dated
31.12.2002
(Annexure P-4) is quashed. The petitioner
would be treated to be in continuous
service with all consequential benefits.
However it is clarified that since the
petitioner has not worked on the post
maxim of "no work, no pay" shall apply
and the consequential benefits shall only be
determined
towards
terminal
benefits.
However there will be no order as to
costs."

2. The denial of back wages to the
appellant by the High Court vide its order
dated 14.09.2010 was assailed by the
appellant by filing Letters Patent Appeal
No. 489 of 2011. The High Court rejected
the claim of the appellant, while dismissing
the Letters Patent Appeal on 26.5.2011.
The orders dated 14.09.2010 and 26.5.2011
passed by the High Court limited to the
issue of payment of back wages, are subject
matter of challenge before this Court.

3. Having given our thoughtful
consideration to the controversy, we are
satisfied, that after the impugned order of
retirement dated 31.12.2002 was set aside,
528 INDIAN LAW REPORTS ALLAHABAD SERIES
the
appellant
was
entitled
to
all
consequential benefits. The fault lies with
the respondents in not having utilized the
services of the appellant for the period
from 1.1.2003 to 31.12.2005. Had the
appellant been allowed to continue in
service, he would have readily discharged
his duties. Having restrained him from
rendering his services with effect from
1.1.2003 to 31.12.2005, the respondent
cannot be allowed to press the self serving
plea of denying him wages for the period in
question, on the plea of the principle of "no
work no pay". (emphasis by Court)

13. This decision has been followed by
this Court in Prayag Narain Dubey Vs
U.P.S.R.T.C. and others, Writ-A No.40927
of 2004, decided on 29.03.2018. The
decision in Prayag Narain Dubey (supra)
has been upheld by the Division Bench in
U.P. State Road Transport Corporation
and another vs. Prayag Narain Dubey in
Special Appeal Defective No. 405 of 2018,
decided on 23.08.2018. The principle in all
these decisions is crystal clear and that is that
where the employee remains out of service
on account of the unilateral act of the
employer which is subsequently found not
valid and lawful, the employer cannot deny
his salary on the principle of "no work no
pay".

14. There is a further grievance that
the petitioner has raised and that is about
non-grant
of
the
Assured
Career
Progression, taking into account the period
that he remained out of service. I am of
opinion that, that is a decision which the
respondents have to take and not this Court;
at least, in the first instance.

15. In view of the aforesaid position
of the law and facts obtaining here, this
petition succeeds and is allowed. The
impugned order dated 29.10.2018 passed
by
Executive
Engineer,
Nalkoop
Anurakshan Khand, Bhadohi (Sant Ravidas
Nagar) is hereby quashed.

16. Let a mandamus issue ordering
each of the respondents to sanction and
disburse arrears of the petitioner's salary for
the period 14.09.2011 to 1.05.2017 within a
month of receipt of a copy of this order.

17. The respondents are further
directed to consider the petitioner's case for
grant of Assured Career Progression taking
into account the period of service between
14.09.2011 to 01.05.2017, treating the
petitioner to be in service continuously.
The decision in this regard shall be taken
within six weeks of the date of receipt of a
copy of this order by respondent no.2.

18. There shall be no order as to costs.

19. Let this order be communicted to
the
Executive
Engineer,
Nalkoop
Anurakshan Khand, Bhadohi (Sant Ravidas
Nagar) by the Registrar (Compliance)
----------
(2023) 1 ILRA 528
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE VIKRAM D. CHAUHAN, J.

Jail Appeal No. 7728 of 2010
With
Criminal Appeal No. 7484 of 2010

Kailash ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant: