Madhya Pradesh High Court
Umashankar Sharma vs The State Of Madhya Pradesh Thr on 2 July, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 5895 of 2016
UMASHANKAR SHARMA
Versus
THE STATE OF MADHYA PRADESH THR AND OTHERS
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Appearance:
Shri Shashank Indapurkar - Advocate for the petitioner.
Shri Sohit Mishra - Govt. Advocate for the respondents/State.
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Reserved on : 17/06/2025
Delivered on : 02/ 07/2025
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This petition having been heard and reserved for orders,
comiing on for pronouncement this day, the Hon'ble Shri Justice
Milind Ramesh Phadke pronounced/passed the following:
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ORDER
The present petition under Article 226 of the Constitution of
India has been filed seeking following reliefs:-
“(i) That the impugned order dt.27.8.2013 (Annexure P/1) passed by the
respondents whereby the principle of no work no pay was applied may kindly be
quashed.
(ii) That a direction may kindly be issued to the respondents to open the sealed
2cover proceeding regarding the petitioner and he may be granted the actual
benefit of promotion from the date when his juniors were promoted i.e. 1988.
(iii) That since the termination order dt.13.3.1991 (Annexure P/2) is quashed,
therefore a direction may kindly be issued to the respondents to grant the actual
benefit from the date of termination till the date of retirement after due fixation
of salary after granting the promotion and accordingly the arrears of salary
and other benefits be also paid to the petitioner.
(iv) That a direction may also be issued to the respondents to pay the interest at
the rate of 12% on the amount of pension and pensionary benefits, which have
been unnecessarily retrained by the respondents, right from 2005 when the order
of termination was quashed up to the date when the actual payment has been
made with further directions to the respondents to refund the amount which has
been deducted alongwith the interest from the PPO.
(v) That the costs of this petition be also awarded to the petitioner.”
2. Short facts of the case are that the petitioner was initially
appointed as Agricultural Assistant and in the year 1971 was
promoted on the post of Senior Agriculture Development Officer
(SADO). Thereafter, his services were transferred to Panchayat
Department in the year of 1981 and in the year 1988, his services
were repatriated to his parent department and he was again posted
as Senior Agriculture Development Officer (SADO). In the
meantime, the process of promotion on the post of Assistant
Director Agriculture was initiated but on account of departmental
inquiry initiated in the year 1983 against the petitioner, the
petitioner’s case was kept in a sealed cover. Thereafter, on
13.03.1991 the departmental inquiry against the petitioner
culminated in his dismissal from service. Against the aforesaid order
3
of dismissal dated 13.3.1991, the petitioner preferred an original
application before the earstwhile SAT, which was registered as
O.A.No.3131/1991, which ultimately after demolition of SAT was
transferred to this Court and was registered as W.P.No.2639/2003
and was allowed by vide order dated 22.11.2005, whereby his order
of termination was quashed and the matter was remanded back to
the District Inquiry Officer to hold an inquiry against the petitioner
in accordance with law after following the procedure laid down
under Rule 14 of the M.P. Civil Services (Classification Control and
Appeal) Rules, 1966 and providing opportunity of hearing. It was
further directed that the enquiry shall be completed within a period
of six weeks from the date of communication of the order, but the
said enquiry never commenced after remand, therefore, on
23.04.2010, the District Inquiry Officer gave the opinion to the
Commissioner, Bhopal Division Bhopal to close the departmental
inquiry because of unnecessary pending of case for years. In
pursuance to the aforesaid opinion of the District Enquiry Officer,
State Government vide order dated 27.08.2013 dropped the enquiry.
3. Prior to dropping of the enquiry in the year 2001, the
4
petitioner attained the age of superannuation, therefore, after
dropping of the enquiry there was no question of his reinstatement
in service. But in wake of dropping of enquiry, the petitioner
though was entitled for reinstatement but could not be reinstated due
to his superannuation, but was entitled for extension of the actual
monetary benefits but the same were also denied on the principle of
“no work no pay” and further was also liable to be promoted as his
recommendations were kept in sealed cover to the post of Assistant
Director Agriculture but neither of the two benefits were extended
to him, i.e. he was not paid the salary from the date of his
termination up to the actual date of retirement nor notional benefits
were extended to him, on the contrary a PPO was issued on
04.07.2016 and the retiral dues were paid to him. While issuing the
PPO certain amount towards gratuity alongwith interest was also
deducted instead of giving interest right from the date of his
retirement, which was a mistake on the part of the respondents, as
the payment of retiral dues to the petitioner was not due to any
delay caused by the petitioner, rather the delay was caused in
making the payment of the retiral dues by the respondents, which
5
required to be compensated with interest. Aggrieved by the
aforesaid act of the respondents, the present petition has been filed.
4. Learned counsel for the petitioner while placing reliance in
the matter of Union of India Vs. K.V. Jankiraman reported in (1991)
4 SCC 109; has argued that when an employee is completely
exonerated from a departmental enquiry, meaning thereby that he is
not ‘found blameworthy in the least and is not even visited with the
penalty of censure, he has to be given the benefit of the salary of the
higher post along with the other benefits from the date on which he
would have normally been promoted but the respondents not only
denied the petitioner the promotion but also denied the payment of
salary for the period from the date of his termination to the date of
his exoneration from the departmental enquiry, which is per se
illegal.
5. Learned counsel has further argued that though the
termination of the petitioner was found to be illegal and contrary to
the provisions of rules and, therefore, was quashed and the matter
was remanded back to the competent authority in the year 2005 with
6
direction to conclude the enquiry afresh within a period of six
weeks, which was not concluded rather after some period of time it
was dropped by the State itself, he was entitled for actual benefits
accrued to the post on which he was working but the said monetary
benefits was denied on the principle of “no work no pay”, which
was a perverse approach and as the petitioner was later on
exonerated from the departmental enquiry but had completed the
age of superannuation, he was entitled for notional promotion and
the pay attached to the said post as he could not have been
reinstated but that too has been denied which in the light of settled
legal position is bad in law. For the simple reason that had the
enquiry been concluded within time, certainly the petitioner would
have been exonerated and promoted and could have been got the
benefit of promotional post, thus, in such facts and circumstances,
the petitioner was and is entitled to be promoted or entitled to get
benefits notionally of the post of promotion. It was, thus, submitted
that the present petition be allowed and the relief as prayed be
granted to the petitioner.
6. Learned counsel has also argued that since there was a delay
7
in payment of retiral dues, the petitioner is entitled for interest
thereupon from the date of his retirement till the actual date of
payment.
7. On the other hand, learned counsel for the respondent/State
has argued that the reliefs as claimed by the petitioner are not
available to him, for the simple reason that the departmental enquiry
which was initiated against the petitioner in the year 1983, after
finalizing the penalty of dismissal from service vide order dated
13.03.1991 were remitted back to reinitiate the proceedings as per
directions of this Court passed in W.P. No.2639/2003 vide order
dated 06.09.2003 but no decision thereafter could be taken on merits
in respect of the charges leveled against the petitioner and the
matter could not be finalized in absence of adequate evidence, as
most of the witnesses were not available either on account of
attaining the age of superannuation or they were not alive, therefore,
the petitioner got benefited from the charges leveled for want of
inadequate evidences, hence proceedings were dropped and this
relevant fact could not be ignored while deciding the issue involved
and also during this process prior to dropping of the enquiry by the
8
State on 27.08.2013 the petitioner stood retired on attaining the age
of superannuation, therefore, the order dated 13.03.1991 by which
he was dismissed from services was cancelled and the status of the
petitioner, which existed on 30.09.2009, as per FR 54-B,the
suspension period was commuted as working period for all purposes
and the matter was decided and settled by applying the principle of
“no work no pay”, thus, prima facie there is no infirmity in the
impugned order and the petitioner is not entitled for any benefit, as
has been claimed. To bolster his submissions, learned counsel has
placed reliance in the matter of Government of West Bengal & Ors.
Vs. Dr. Amal Satpathi & Ors. reported in (2024) INSC 906; and
has submitted that it is well Settled principle that promotion becomes
effective from the date it is granted, rather than from the date a
vacancy arises or the post is created. While the Courts have
recognized the right to be considered for promotion as not only a
statutory right but also a fundamental right, there is no fundamental
right to the promotion itself. Thus, though the right of the petitioner
to be considered for promotion is recognized, which is a
fundamental right under Articles 14 and 16(1) of the Constitution of
9
India, he does not hold an absolute right to the promotion itself and
the promotion only becomes effective upon the assumption of duties
on the promotional post and not on the date of occurrence of the
vacancy or the date of recommendation. Hence, the sealed cover
procedure, which has been followed in the case of the petitioner
would even not come to his rescue and after the petitioner attaining
the age of superannuation could not be opened and the benefit
thereof cannot be extended. Thus, it was prayed that the present
petition be dismissed being sans merits.
8. Learned counsel for the State while placing reliance in the
matter of Uttaranchal Forest Rangers ASSN. (Direct Recruit) And
Others Vs. State Of U.P. And Others reported in (2006) 10 SCC
346; has argued that retrospective determination of seniority cannot
be given to the promotees from a date when they have not even
been born in the cadre and, therefore, such seniority cannot be given
particularly when that would adversely affect seniority of direct
recruits appointed in the meantime.
9. Perused the pleadings and the records and after giving
10
thoughtful consideration to the submissions advanced by the learned
counsel for the parties, this Court finds that there is no force in the
arguments, as advanced by the learned counsel for the
petitioner that the principle of “no work no pay” adopted by the
respondents and denying the petitioner the benefit of salary for the
period of his termination and reinstatement is bad in law as also
denial of the promotion is bad is concerned.
10. The Apex Court in the matter of Government of West Bengal
& Ors. Vs. Dr. Amal Satpathi & Ors.(Supra) in paragraphs 19 and
21 has held as under:-
19. It is a well settled principle that promotion becomes effective from
the date it is granted, rather than from the date a vacancy arises or
the post is created. While the Courts have recognized the right to be
considered for promotion as not only a statutory right but also a
fundamental right, there is no fundamental right to the promotion
itself. In this regard, we may gainfully refer to a recent decision of this
Court in the case of Bihar State Electricity Board and Others v.
Dharamdeo Das reported in 2024 SCC OnLine SC 1768, wherein it
was observed as follows:
“18. It is no longer res integra that a promotion is effective from the
date it is granted and not from the date when a vacancy occurs on the
subject post or when the post itself is created. No doubt, a right to be
considered for promotion has been treated by courts not just as a
statutory right but as a fundamental right, at the same time, there is no
fundamental right to promotion itself. In this context, we may
profitably cite a recent decision in Ajay Kumar Shukla v. Arvind
Rai reported in (2022) 12 SCC 579 where, citing earlier precedents
in Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran
Mohanty reported in (1991) 2 SCC 295 and Ajit Singh v. State of
11Punjab reported in (1999) 7 SCC 209, a three-Judge Bench observed
thus:41. This Court, time and again, has laid emphasis on right to be
considered for promotion to be a fundamental right, as was held by K.
Ramaswamy, J., in Director, Lift Irrigation Corpn. Ltd. v. Pravat
Kiran Mohanty reported in 1991 (2) SCC 295, in para 4 of the report
which is reproduced below:’4……. There is no fundamental right to
promotion, but an employee has only right to be considered for
promotion, when it arises, in accordance with relevant rules. From
this perspective in our view the conclusion of the High Court that the
gradation list prepared by the corporation is in violation of the right
of respondent-writ petitioner to equality enshrined under Article
14 read with Article 16 of the Constitution, and the respondent-writ
petitioner was unjustly denied of the same is obviously unjustified.’42.
A Constitution Bench in Ajit Singh v. State of Punjab reported in AIR
1999 SUPREME COURT 3471, laying emphasis on Article
14 and Article 16(1) of the Constitution of India held that if a person
who satisfies the eligibility and the criteria for promotion but still is
not considered for promotion, then there will be clear violation of
his/her’s fundamental right. Jagannadha Rao, J.
speaking for himself and Anand, C.J., Venkataswami, Pattanaik,
Kurdukar, JJ., observed the same as follows in paras 22 and 27: is
right to be considered for promotion a fundamental right.
22. Article 14 and Article 16(1) are closely connected. They deal with
individual rights of the person. Article 14 demands that the ‘State
shall not deny to any person equality before the law or the equal
protection of the laws’. Article 16(1) issues a positive command
that:’there shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State’.It
has been held repeatedly by this Court that clause (1) of Article 16 is
a facet of Article 14 and that it takes its roots from Article 14. The said
clause particularises the generality in Article 14 and identifies, in a
constitutional sense “equality of opportunity” in matters of
employment and appointment to any office under the State. The word
“employment” being wider, there is no dispute that it takes within its
fold, the aspect of promotions to posts above the stage of initial level
of recruitment. Article 16 (1) provides to every employee otherwise
eligible for promotion or who comes within the zone of consideration,
a fundamental right to be “considered” for promotion. Equal
opportunity here means the right to be “considered” for promotion. If
a person satisfies the eligibility and zone criteria but is not considered
for promotion, then there will be a clear infraction of his fundamental
right to be “considered” for promotion, which is his personal right.
“Promotion” based on equal opportunity and seniority attached to
12such promotion are facets of fundamental right under Article 16(1).
27. In our opinion, the above view expressed in Ashok Kumar Gupta
[Ashok Kumar Gupta v. State of U.P. reported in 13 (1997) 5 SCC
201 , and followed in Jagdish Lal [Jagdish Lal v. State of Haryana,
reported in 14 (1997) 6 SCC 538 and other cases, if it is intended to
lay down that the right guaranteed to employees for being
“considered” for promotion according to relevant rules of recruitment
by promotion (i.e. whether on the basis of seniority or merit) is only a
statutory right and not a fundamental right, we cannot accept the
proposition. We have already stated earlier that the right to equal
opportunity in the matter of promotion in the sense of a right to be
“considered” for promotion is indeed a fundamental right guaranteed
under Article 16(1) and this has never been doubted in any other case
before Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P.],
right from 1950.’
“20. In State of Bihar v. Akhouri Sachindra Nath reported in 1991
Supp (1) SCC 334, it was held that retrospective seniority cannot be
given to an employee from a date when he was not even borne in the
cadre, nor can seniority be given with retrospective effect as that
might adversely affect others. The same view was reiterated in Keshav
Chandra Joshi v. Union of India reported in1992 Supp (1) SCC
272, where it was held that when a quota is provided for, then the
seniority of the employee would be reckoned from the date when the
vacancy arises in the quota and not from any anterior date of
promotion or subsequent date of confirmation. The said view was
restated in Uttaranchal Forest Rangers’ Assn. (Direct Recruit) v.
State of U.P reported in(2006) 10 SCC 346, in the following
words:’37. We are also of the view that no retrospective promotion or
seniority can be granted from a date when an employee has not even
been borne in the cadre so as to adversely affect the direct recruits
appointed validly in the meantime, as decided by this Court in Keshav
Chandra Joshi v. Union of India reported in 1991 AIR 284; held that
when promotion is outside the quota, seniority would be reckoned
from the date of the vacancy within the quota rendering the previous
service fortuitous. The previous promotion would be regular only from
the date of the vacancy within the quota and seniority shall be counted
from that date and not from the date of his earlier promotion or
subsequent confirmation. In order to do justice to the promotes, it
would not be proper to do injustice to the direct recruits……38. This
Court has consistently held that no retrospective promotion can be
granted nor can any seniority be given on retrospective basis from a
date when an employee has not even been borne in the cadre
particularly when this would adversely affect the direct recruits who
have been appointed validity in the meantime.” (emphasis supplied)
13
21. While we recognize respondent No.1’s right to be considered for
promotion, which is a fundamental right under Articles
14 and 16(1) of the Constitution of India, he does not hold an absolute
right to the promotion itself. The legal precedents discussed above
establish that promotion only becomes effective upon the assumption
of duties on the promotional post and not on the date of occurrence of
the vacancy or the date of recommendation. Considering that
respondent No. 1 superannuated before his promotion was effectuated,
he is not entitled to retrospective financial benefits associated to the
promotional post of Chief Scientific Officer, as he did not serve in that
capacity.
11. The Apex Court while recognizing the rights of an employee
to be considered for promotion has held that though it is a
fundamental right under Article 14 and 16(1) of the Constitution but
is not an absolute right to promotion itself and the promotion only
becomes effective upon the assumption of duties on the promotional
post and not on the date of occurrence of the vacancy or the date of
recommendation. Thus, considering the fact that the petitioner was
superannuated before his promotion was effectuated, he cannot held
to be entitled for promotion or its consideration or to retrospective
financial benefits associated for the promotional post, as he did not
serve in that capacity. Thus, to the extent of granting of promotion
or the notional promotional benefits to the petitioner cannot be
accepted and granted, thus, it can be said that it has rightly been
rejected by the respondents.
14
12. So far as the respondents adopting the principle of “no work
no pay” for reckoning the period the petitioner was out of service is
concerned, in the matter of Union of India Vs. K.V. Jankiramkan
(supra) in paragraph 26, it has been observed that there may be
cases’ where the proceedings, whether disciplinary or criminal, are,
for example, delayed at the instance of the employee or the
clearance in the disciplinary proceedings or acquittal in the criminal
proceedings is with benefit of doubt or on account of non-
availability of the evidence due to the acts attributable to such
employee, in such circumstances, the concerned authorities must be
vested with the power to decide whether the employee at all
deserves any salary for the intervening period and if he does, the
extent to which he deserves it.
13. Thus, when the right is vested with the respondents to take
decision in the matter, the respondents adopting the principle of “no
work no pay” cannot be faulted with. Thus, on both the counts the
petition has no force.
14. So far as the payment of interest on the delayed payment is
15
concerned, the petitioner nowhere in the petition has averred that
how much delay has occurred in making payment of retiral dues and
when the actual dues were paid to him, therefore, this Court without
going into the aforesaid aspect grants liberty to the petitioner move
appropriate representation before the competent authority narrating
the exact details and ask for interest thereupon.
15. With the aforesaid observation, the petition is dismissed and
disposed of accordingly.
(MILIND RAMESH PHADKE)
JUDGE
neetu
NEETU
Digitally signed by NEETU SHASHANK
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH GWALIOR,
ou=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR,
SHASH
2.5.4.20=36b486bb0d381b950e435ec
09e066bc6b58cb947c1474b7dc349a1
cf27eaa2ce, postalCode=474001,
st=Madhya Pradesh,
serialNumber=E60A9BBFC39E0EE500
ANK
EAADE1E0B3B8565CB3A7DC9F5CD04
8197DF0FF3149AE58, cn=NEETU
SHASHANK
Date: 2025.07.02 17:56:33 +05’30’
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