PRADIPTA KUMAR PATTNAIK Vs. REGISTRAR JUDICIAL ORISSA

JUDGEMENT

(1.) THE petitioner who is working as a Senior Assistant in this Court has filed this writ application praying for a direction to the opposite parties for fixation of his pay in the promotional post and for release of the salary component with effect from 24.9.2001.

(2.) THE petitioner was initially appointed as a Junior Assistant and joined in the post on 9.11.1989. While working as such, steps were taken for filling up the vacancies in the cadre of translator by way of promotion from amongst the existing Junior Assistants. At the relevant time, there were three vacancies of Translators. Out of the three posts, as per the roster point, one was meant for Scheduled Caste, one for general and one for Scheduled Tribe. Since there was no Scheduled Tribe candidate available, a Scheduled Caste person was given promotion by way of exchange by taking help of Section 6 of Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975. Accordingly, one A.K. Choudhury from the general category and Bikram Sethy and Santosh Kumar Sethy from the category of Scheduled Caste were given promotion. As per the gradation list of Junior Assistant, the position of the petitioner was at serial No. 3. The Junior Assistant who was placed at serial No. 1 applied for voluntary retirement for which his case was not taken into consideration. However, the petitioner could not get promotion because of exchange of Scheduled Caste candidate and two of his juniors were given promotion. Challenging the aforesaid order of promotion, the petitioner made a representation before the authority, which was rejected on 5.2.1998. It was urged in the said representation that Section 6 of the O.R.V. Act prohibits exchange of vacancies in Class III and Class IV services and Section 7 also prohibits carry forward of reservation and de reservation of vacancies in Class III and Class IV services. Even after rejection, the case of the petitioner was considered and he was given promotion to the post of Translator with effect from 16.10.1998 vide order dated 16.10.1998 against a vacancy which occurred subsequently. Thereafter, the petitioner was absorbed as Senior Assistant in the scale of pay of Rs. 1400/ 2300/ by order dated 30.3.1999. After the petitioner was given promotion to the post of Translator with effect from 16.10.1998, he made a representation before the Hon'ble the Chief Justice on the very same ground. Consequent upon the order passed 011 the memorial by the Hon'ble the Chief Justice, the promotion of the petitioner to the post of Translator and Senior Assistant were antedated to 19.3.1997 and 5.8.1998 respectively vide order dated 24.9.2001. Thereafter, a revised gradation list was published pursuant to the decision of the Appeal Committee refixing inter se seniority among the candidates in the cadre of Senior Assistant in which the name of the petitioner finds place at serial No. 129 whereas the names of Bikram Sethy and Santosh Sethy find place at serial Nos. 133 and 134 respectively. The further case of the petitioner is that though his promotion to the post of Translator and Senior Assistant were antedated to 19.3.97 and 5.8.98 respectively, the scale of pay attached to the post was not fixed and salary component attached to the post also not released despite the representation made before the opposite party. No. 1.

(3.) ON consideration of the averment made in the writ application as well as in the counter affidavit, the only question that requires to be determined as to whether the petitioner is entitled to the differential pay for the period from 19.3.1997 to 15.10.1998 or not. In the counter affidavit, the opposite parties having admitted that the petitioner's pay is to be fixed in the cadre of Translator with effect from 19.3.1997, there is no dispute in that point. Though a stand has been taken in the counter affidavit that the petitioner never worked as Translator from 19.3.1997 to 15.3.1998 and is not entitled to differential salary for the said period on the basis of principle of 'no work no pay', it is very clear from the averment made in the counter affidavit that the petitioner was not given promotion when his juniors were promoted and he was given promotion to the post of Translator at a later stage and the fault lies with the opposite parties. The Apex Court in the case of Union of India v. K.V. Janikiraman reported in AIR 1991 S.C. 2010 has held that normal rule of 'no work no pay' is not applicable to such case where the employee although he is willing to work is kept away from work by the authorities for no fault of his. It is a clear case where the authority did not give promotion to the petitioner to the post of Translator when it became due and promoted one of his juniors taking help of Section 6 of the O.R.V. Act and subsequently after obtaining clarification from the State Government promoted the petitioner to the post of Translator with effect from 19.3.1997. Therefore, no fault can be found with the petitioner for not working in the post of Translator from 19.3.1997 on promotion. In view of the law laid down by the Apex Court as observed above, the petitioner is entitled to differential salary for the aforesaid period.