High Court
Case Details
Neutral Citation No. - 2025:AHC:82254 Court No. - 6 Case :- WRIT - A No. - 13458 of 2020 Petitioner :- Pooja Verma Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shantanu Khare,Sr. Advocate Counsel for Respondent :- Ashish Kumar Singh,C.S.C.,Ram Bilas Yadav Hon'ble Saurabh Shyam Shamshery,J. 1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare, learned counsel for the petitioner and Sri Ashish Kumar Singh, learned counsel for the B.S.A. Agra. 2. The petitioner was appointed as an Assistant Teacher in a Junior Basic School at District Agra on 11.02.2009. She applied for medical leave which was sanctioned for a period of six months from 01.07.2011. However, admittedly after the said period of six months were over still she did not join for a very long period and according to her case, she approached the concerned respondent for rejoining on 06.02.2014 i.e. after about two and half years when her leave was over. 3. It is further case of the petitioner that her application for rejoining was not considered despite she was called to place her explanation on 17.03.2017 thereafter on 15.02.2018 before the Secretary, Board of Basic Education and consequently neither the petitioner was allowed to rejoin nor her application was rejected and it remain pending for about four years and finally by an order dated 07.05.2018 passed by the District Basic Shiksha Adhikari, Agra, she was allowed to rejoin with a condition that the period of absence between 21.05.2010 to 04.05.2017 would be 'no work no pay'. In the aforesaid circumstances, petitioner rejoined without any protest or objection. However, she still remain aggrieved that she was paid salary as her initial pay and she was also not considered for promotion. 4. Learned Senior Counsel submits that in the aforesaid circumstances, petitioner has approached this Court by way of filing a Writ-A No.15969 of 2019. However, the same was dismissed as withdrawn with liberty to file afresh.
Legal Reasoning
Division Bench of this Court in Special Appeal No.704 of 2023, (State of U.P. & 2 others versus Rajesh Kumar Yadav, Neutral Citation No.2023:AHC:191765-DB, where denial of back wages was considered bad in law. However, the facts of the State of U.P. & 2 others (supra) are different from the facts of the present case. In State of U.P. & 2 others (supra) a termination order of the respondent therein was set aside, therefore, his services were treated to be continue. However, in the present case, petitioner herself opted not to join the service after her medical leave was over and even thereafter for about four years she has not even come forward to join. Later on the matter remain pending for about three years more, therefore, no benefit can be granted of State of U.P. & 2 others (supra). 16. In view of above observations and directions, this writ petition is disposed of. Order Date :- 17.5.2025 I.A.Siddiqui/SB Digitally signed by :- IMRAN AHMAD SIDDIQUI High Court of Judicature at Allahabad
Arguments
5. Learned counsel further submits that in the aforesaid circumstances, the present writ petition was filed, wherein, he refers following prayers raised :- "(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 17.04.2018 issued by the Secretary, Board of Basic Education,U.P., Prayagraj and the order dated 07.05.2018 passed by the Basic Shiksha Adhikari, Agra (Annexure 12 & 13 to the writ petition) insofar as they deny the benefit of arrears of salary to the petitioner for a period of 16.02.2014 to 08.05.2014. (ii) Issue a writ, order or direction of a suitable nature commanding the respondent to re-fix the salary of the petitioner taking into account her entire length of service from 17.02.2009, till date and to make payment of regular monthly salary, regularly, every month in accordance with such re-fixed salary. (iii) Issue a writ, order or direction of a suitable nature commanding the respondent to disburse to the petitioner the arrears of salary from the period Oct.' 10 to June' 11 and from 16.02.2014 to 08.05.2018 as also the arrears of salary arisen on account of re- fixation of salary under prayer no.(ii) within a period to be specified by this Hon'ble Court. (iv) Issue a writ, order or direction of a suitable nature commanding the respondent to forthwith grant promotion to the petitioner as Headmaster of a Jr. Basic School or Assistant Teacher in Sr, Basic School in District Agra w.e.f. the date first person junior than the petitioner has been granted such promotion within a period to be specified by this Hon'ble Court and to permit the petitioner to function on such promoted post with all consequential benefits thereof. (v) Issue a writ, order or direction in the nature of which this Hon'ble Court may deem fit and proper under the circumstances of the case. (vi) Award cost to the humble petitioner throughout of the present writ petition." 6. Learned Senior counsel for the petitioner submits that the first grievance is that despite the petitioner has accepted that on basis of principle of 'no work no pay' she may not paid salary up to 2014. However, since thereafter the petitioner was before concerned respondent with the prayer to rejoin and was allowed after four years to join, therefore, said period between 2014 to 2018 may not be considered as 'no work no pay' as it was not her fault. 7. Learned Senior Counsel further submits that in terms of the impugned order absence form 2011 to 2018 was considered as unpaid leave. However, said order cannot interpreted inasmuch as that she was directed to rejoin her service on her initial salary. The benefit of earlier service period ought to have granted to her which also includes consideration for promotion. 8. The aforesaid submissions are opposed by Sri Ashish Kumar Singh, learned counsel for the B.S.A. Agra. 9. Learned counsel submits that a long absence of about seven years was condoned on basis of 'no work no pay' and the petitioner was allowed to rejoin. There is no document on record that petitioner is paid salary as her initial pay scale or her rejoining was considered as a fresh joining as well as that so far as promotion is concerned, it will be considered in accordance with law keeping in view of a period of about seven years to be as 'no work no pay' as and when she falls within the consideration zone. 10. I have considered the above submissions. 11. By the impugned order dated 07.05.2018, a long absence of petitioner between 21.05.2010 to 04.05.2017 i.e. about of seven years was considered as leave without salary on the basis of 'no work no pay' and petitioner was allowed to rejoin. 12. The submissions of learned Senior Counsel so far as period between 2014 to 2017 that it may not be considered 'no work no pay' cannot be accepted as the petitioner was before the concerned respondent and the matter was ceased with. A long absence of about four years could be a ground even terminate the petitioner from service. However, the respondents have condoned it and allowed to rejoin. Petitioner has not earlier sought that she may be granted salary for the period between 2014 to 2017 and admittedly she has not work for about seven years, therefore, there was no illegality in applying principle of 'no work no pay' for entire period of about seven years. 13. The other arguments of learned Senior Counsel that petitioner was rejoined at basic salary being erroneous, has substance, since in the impugned order no such condition was imposed. Though on basis of the record, it is not very clear how the salary is being fixed, therefore, it is directed that the concerned respondent will look into the matter and in case, salary is being fixed as initial joining, the same may be modified to the extent that she may be paid salary according to her period of service and in case, still there is a legal impediment, the same shall be communicated to the petitioner within a short period. 14. The last issue is in regard to consideration of for promotion, case of the petitioner can be considered for promotion if she qualified the preconditions i.e. the requisite period of regular and satisfactory service, therefore, it is directed that as and when the petitioner is eligible and is in consideration zone, her claim for promotion be considered, in accordance with law. 15. Learned Senior Counsel has made a reference on a judgement passed by a