Arvind Singh Tomar vs The State Of Madhya Pradesh

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THE IN HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
st
ON THE 1 OF SEPTEMBER, 2026
WRIT PETITION No. 1680 of 2024
ARVIND SINGH TOMAR
Versus
STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Narottam Sharma - Advocate for petitioner.
Shri K.K. Prajapati – Government Advocate for respondent/State.
ORDER
This petition, under Article 226 of Constitution of India, has been filed
seeking the following relief (s):-
“i) the respondents No. 1 and 2 may be directed to pay salary to the
petitioner for the period November 2017 till November 2018 after
adjusting pension drawn during that period, with appropriate
interest,
ii) any other relief which this Hon'ble Court may deem fit in the
circumstances of the case including costs may also be granted,”
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2. It is submitted by learned counsel for petitioner that the controversy
involved in the present case has already been considered by the Division Bench
of this Court at Indore vide order dated 07.09.2021 passed in Writ Appeal
No.378/2018 [Balkrishna Rathi Vs. The State of Madhya Pradesh & Others]
and as per the aforesaid order petitioner is also entitled to full salary for the
period from November, 2017 to November, 2018.
3. Learned Government Advocate is not able to distinguish the facts of the
present case to that of the aforesaid case.
4. The order passed in Balkrishna Rathi (supra) is quoted below for ready
reference and convenience:
These writ appeals involve a singular question i.e. whether the
appellants whose right to continue up to 65 years is duly recognized can
be deprived from the benefit of salary for the period they were not
permitted to perform their duties ?
02. Facts are taken from W.A. No.378/2018. The appellant was
appointed as an Assistant Professor on 23.09.1983. the respondents
passed an order dated 02.01.2018 (Annexure-P/10) with an intention to
retire the appellant w.e.f. 31.03.2018. The appellants unsuccessfully
challenged it in W.P. No.5801/2018, which came to be dismissed on
13.03.2018.
03. Aggrieved by the aforesaid order, present writ appeals were filed
before this Bench. In the meantime, similar matter travelled to Supreme
Court in the case of Dr. R.S. Sohane v/s The State of Madhya Pradesh
(Civil Appeal Nos.4675-4676 of 2019) . Indisputably, the Apex Court
opined that teachers have right to continue up to the age of 65 years. The
Apex Court in the case of R.S. Sohane (supra) did not decide regarding
treatment of period (intervening period) between the age of 62 years to 65
years for the purpose of grant of salary. The judgment of R.S. Sohane
(supra) was brought to the notice of this Bench on 11.12.2018. In
furtherance of said judgment, it was held that the present appellants are
also entitled to continue up to 65 years of age. The respondents were
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directed to permit the appellants to rejoin the duty and to continue him up
to the age of 65 years. Pertinently, in this order, no directions were issued
regarding payment of salary for the intervening period.
04. Shri L.C. Patne, learned counsel for this appellant submits that
appellant was retired at the age of 62 years w.e.f. 31.08.2018. In
obedience of this Court's order dated 11.12.2018, the appellant was
permitted to rejoin on 11.12.2018. Thus, salary between 31.03.2018 to
10.12.2018 is due to the appellant.
05. The appellants filed R.P. No.268/2021 and other connected matters
on the strength of a subsequent order of the Supreme Court, whereby the
Supreme Court permitted the employees therein, to approach the High
Court for the purpose of considering the prayer for grant of salary. The
attention of this Court was drawn to various orders passed by the Division
Benches, wherein for similarly situated teachers, the salary was directed
to be given for the intervening period. 06. After hearing the parties, the
review petition was allowed and it was thought proper to permit the
appellants to address the Court regarding grant of backwages /salary.
06. Learned counsel for the appellants submits that appellants were all
along willing to perform their duties but they were prevented to do so by
prematurely retiring them at the age of 62 years. Thus, the principles of
“no work no pay” cannot be pressed into service. This aspect is
considered by Division Bench in great detail in W.A. No.108/2016 [Dr.
(Mrs.) Rukmani Tiwari v/s The State of Madhya Pradesh & Others] and
same principles was followed by other Division Benches in W.A.
No.997/2018 (Dr. R.K. Thassu v/s The State of Madhya Pradesh &
Others) and W.A. No.1857/2019 (Sr. R.K. Sharma v/s The State of
Madhya Pradesh & Others) . Another Division Bench in W.A.
No.802/2020 (Dr. Sushant Kumar Sinha v/s The State of Madhya
Pradesh & Others) has taken note of a circular issued by the Higher
Education Department dated 26.02.2020 and directed the Department to
pay the salary for intervening period. Lastly, he placed reliance on the
recent judgment of Supreme Court reported in 2021 SCC OnLine SC 540
(North Delhi Municipal Corporation v/s Dr. Ram Naresh Sharma &
Others) .
07. Shri Pushyamitra Bhargav, learned Additional Advocate General for
the respondents / State opposed the contention and prayer for grant of
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salary by contending that before the impugned order of retirement dated
02.01.2018 could be translated into reality, it was the appellant who filed
W.P. No.5801/2018 which was dismissed on 13.03.2018, much before the
date of his retirement. Thus, the appellants could not continue thereafter
pursuant to the order of the learned Single Judge, and therefore, the
respondents cannot be saddled with payment of salary. Secondly, this
Court in the previous order dated 08.07.2019 did not grant any salary for
the intervening period. Thus, the appellants are not entitled to get any
salary.
08. Parties confined their arguments to the extent indicated above.
09. We have heard the parties at length and perused the record.
10. It is not in dispute that orders passed by various Division Benches in
the aforesaid writ appeals are relating to the same question i.e. entitlement
of salary for the intervening period between 62 years to 65 years. Putting
it differently, whether the teachers, who were retired at the age of 62 years
are entitled to get benefit of salary for the period they were not permitted
to perform their duty. The curtains on this issue are drawn by the Division
Bench in the case of Dr. (Mrs.) Rukmani Tiwari (supra) . The relevant
portion reads as under:-
“As the appellant has already crossed 65 years of age, she
will be entitled for entire arrears of wages for extended years of
service. Though a cavil is raised on behalf of respondents that since
the appellant had not worked for the period of 3 years she is not
entitled for arrears on the principle of 'no work no pay'. However, in
view of the fact that the appellant was prevented from discharging
her duties till 65 years, the principle of 'no work no pay' is not
applicable. For an authority reference can be had of the decision in
State of Uttar Pradesh Vs. Dayanand Chakrawarty and others;
(2013) 7 SCC 595, wherein it is held :
“43. Now the question arises as to what consequential
benefits to which the respondents and other employees who
have not moved before any court of law shall be entitled ?
44. By impugned judgment the High Court observed:
“Similar benefit is already available to the employees
who are continuing in service by virtue of interim order
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passed by the competent court. They should continue
till the age of 60 years. The law helps those who are
vigilant and not to those who go to sleep as per maxim
vigilantibus, et non dormientibus, jura subveniunt. So,
this benefit will not be given to the employees who
peacefully retired on attaining the age of 58 years and
never came before the Court. But there may be another
class of the employees who came before this Court and
could not get the interim order but writ petitions were
admitted. Admittedly, these employees have not worked.
So, on the basis of no pay no work, they will not be
entitled for arrears. However, their back wages will be
restricted @ 20% of the basic salary as per the ratio
laid down in the case of M/s Gvalli v. Andhra
Education Society 2010 AIR 1105 SC. Lastly, it is
clarified that the extended service will be counted for
all the purpose to the above mentioned employees. The
petitions are allowed. No cost.”
45. In Harwindra Kumar vs. Chief Engineer, Karmik and
others (Supra), this Court while allowing the employees of
Nigam to continue till the age of 60 years in view of
Regulation 31, ordered that no recovery shall be made from
those who continued up to the age of 60 years. This Court
further observed that the employees who have not been
allowed to continue after completing the age of 58 years by
virtue of erroneous decision taken by the Nigam for no fault
of theirs, would also be entitled to payment of salary for the
remaining period up to the age of 60 years.
46. In U.P. Jal Nigam vs. Radhey Shyam Gautam, following
the decision in Harwindra Kumar (supra) case, this Court
held that the employees of the Nigam shall be entitled for full
salary for the remaining period up to the age of 60 years.
47. However, in U.P. Jal Nigam vs. Jaswant Singh, this
Court allowed the benefits of arrears of salary only to those
employees of the Nigam who had filed writ petitions and
denied the same to others who have not moved before a court
of law.
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48. In view of the orders passed by this Court in Harwindra
Kumar (supra), Radhey Shyam Gautam (supra) and Jaswant
Singh (supra), it was not open to the High Court to rely on
some other decision of this Court, ratio of which is not
applicable in the present case for determining back wages of
respondents restricting it to be 20% of the basic salary. We
observe that the principle of ‘no pay no work’ is not
applicable to the employees who were guided by specific
rules like Leave Rules etc. relating to absence from duty.
Such principle can be applied to only those employees who
were not guided by any specific rule relating to absence from
duty. If an employee is prevented by the employer from
performing his duties, the employee cannot be blamed for
having not worked, and the principle of ‘no pay no work’
shall not be applicable to such employee.
49. In these cases as we have already held that Regulation
31 shall be applicable and the age of superannuation of
employees of the Nigam shall be 60 years; we are of the view
that following consequential and pecuniary benefits should
be allowed to different sets of employees who were ordered to
retire at the age of 58 years:
49.1. The employees including respondents who moved
before a court of law irrespective of fact whether interim
order was passed in their favour or not, shall be entitled for
full salary up to the age of 60 years. The arrears of salary
shall be paid to them after adjusting the amount if any paid.
49.2 The employees, who never moved before any court of
law and had to retire on attaining the age of superannuation,
they shall not be entitled for arrears of salary. However, in
view of Regulation 31 they will deem to have continued in
service up to the age of 60 years. In their case, the appellants
shall treat the age of superannuation at 60 years, fix the pay
accordingly and re-fix the retirement benefits like pension,
gratuity etc. On such calculation, they shall be entitled for
arrears of retirement benefits after adjusting the amount
already paid.
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49.3. The arrears of salary and arrears of retirement benefits
should be paid to such employees within four months from
the date of receipt of copy of this judgment.”
Similar view has been expressed in Shobha Ram Raturi Vs.
Haryana Vidyut Prasaran Nigam Ltd. & others; (2016) 16 SCC 663,
wherein it is held :
“The fault lies with the respondents in not having utilised 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'.”
In view whereof, the contention raised on behalf of the
respondents that the appellant will not be entitled for arrears on the
principle of 'no work no pay' is negatived. The appellant is held
entitled for entire service benefit as if she was in service till 65 years
of age. Let the arrears be settled within three months. The settlement
of arrears will be subject to adjustment of if any amount paid
towards retiral dues . It is further directed that the amount of
arrears be paid by the Institution where the appellant was in
service. The institution will be at liberty to recover from the State as
per law.
Appeal stands disposed of finally in above terms. No costs.”
[Emphasis Supplied]
11. This view is consistently followed in the case of Dr. Sushant Kumar
Sinha and Dr. R.K. Thassu (supra) by other Division Benches. The
Principal Seat in Dr. Sushant Kumar Sinha (supra) , considered the
circular of Higher Education Department and opined as under:-
“ 5. It is pertinent to note that the decision in R.S. Sohane (supra)
has been implemented by the State Government vide its Order No.1-
23/2019/38-3 dated 26.02.2020, reproduced below for ready
reference :
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NEUTRAL CITATION NO. 2026:MPHC-GWL:26230
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For the aforementioned reasons, we set aside the
judgment of the Full Bench of the High Court and the
consequential judgments of the Division Bench of the
High Court and direct the Government of Madhya
Pradesh to pay salaries to the Teachers in aided private
Colleges who are working and also those who have
worked till they attained the age of superannuation of 65
years.
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’kklu }kjk fu.kZ; fy;k x;k gS fd vuqnku izkIr v’kkldh; egkfo|
ky; eas vuqnkfur inksa ij dk;Zjr~ f’k{kdksa dh vf/kokf"kZdh vk;q 62 o"kZ
ls c<kdj 65 o"kZ fu/kkZfjr dh tkrh gS rFkk ,sls lHkh ik= f’k{kdksa ds
osru dk Hkqxrku jkT; ’kklu }kjk fd;k tkosxk A
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ds i`"Bkadu Øeakd 375@2020@foRr@fu;e@pkj fnukad 26-02-2020
ls i`"Bkafdr dh tkrh gS A
Ek/;izns’k ds jkT;iky ds uke ls
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6. Thus, with the decision in R.S. Sohane (supra) ,
the issue as to the retirement age of the staff engaged in
class room teaching in Govt. aided institution to be 65
years stood settled.
7. The petitioner who had bowed down to the
decision by the Full Bench as on 02.08.2017, has, with
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the law being laid down by the Supreme Court in R.S.
Sohane (supra) , filed this appeal seeking setting aside of
the impugned order and for the benefit which enure from
the decision in R.S. Sohane (supra) . It is urged, and
rightly so that, with the law being settled and the
petitioner being within the ambit of its applicability, as he
is retired on 30.11.2015 at the age of 62 years, he has a
right to claim the benefit, thereunder.
8. In view whereof, we are of the considered opinion
that since the petitioner was engaged in class room
teaching in grant-in-aid private institution, he is entitled
to enhanced age of retirement of 65 years, with all
consequential benefits, to be borne by the State of
Madhya Pradesh.
9. The appeal is finally disposed of in above terms.
No costs.”
[Emphasis Supplied]
12. At the cost of repetition, the appellants in all aforesaid writ appeals
and the present appellants are similarly situated. All of them were
prematurely retired at the age of 62 years. As per judgment of the Supreme
Court in Dr. R.S. Sohane (supra) , they were taken back. Thus, the
judgment of Dr. R.S. Sohane (supra) is a judgment in rem. There is no
quarrel between the parties about the age of superannuation of teachers
i.e. 65 years. The only question raised by Shri Pushyamitra Bharga,
learned Additional Advocate General is based on the order of the learned
Single Judge. The same was the situation in all the aforesaid writ appeals
because writ appeals were filed against orders passed by learned Single
benches which became different after the judgment of Dr. R.S. Sohane
(supra) . The principles of “no work no pay” cannot be applied because
appellants were willing to perform their duties which is very evident for
the simple reason that even before retirement order could be translated
into reality, they filed writ petition.
13. The Apex Court in its recent judgment in North Delhi Municipal
Corporation (supra) quoted with profit the previous judgment reported in
(2013) 7 SCC 595 The State of Uttar Pradesh v/s Dayanand
Chakrawarthy & Others relevant portion of which reads as under:-
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“48. If an employee is prevented by the employer from performing
his duties, the employee cannot be blamed for having not worked,
and the principle of ‘no pay no work’ shall not be applicable to
such employee...”
14. Once it is clear that the reason for non-payment of salary for
intervening period to present appellants and other similarly situated
persons who were appellants in aforesaid writ appeals is same, the only
question is whether there exists any justifiable reason to put the present
appellants in a comparatively disadvantageous position. In our opinion, if
we take a different view, it will be a travesty of justice. It is profitable to
consider the judgment of the Supreme Court on this aspect reported in
(1985) 2 SCC 468 (Inder Pal Yadav & Others v/s Union of India &
Others) . Relevant portion of the aforesaid case reads as under:-
“There is another area where discrimination is likely to rear
its ugly head. These workmen come from the lowest grade of
railway service. They can ill afford to rush to court. Their
Federations have hardly been of any assistance. They had
individually to collect money and rush to court which in case of
some may be beyond their reach. Therefore, some of the retrenched
workmen failed to knock at the doors of the court of justice because
these doors do not open unless huge expenses are incurred. Choice
in such a situation, even without crystal gazing is between incurring
expenses for a litigation with uncertain outcome and hunger from
day to day. It is a Hobson's choice. Therefore, those who could not
come to the court need not be at a comparative disadvantage to
those who rushed in here. If they are otherwise similarly situated,
they are entitled to similar treatment if not by anyone else at the
hands of this Court.”
[Emphasis Supplied]
If we take a different view and deprive the similarly situated
appellants from the benefit of salary for intervening period, it will amount
to dividing a homogeneous class of Teachers and create a class within the
class.
15. This will be contrary to the mandate of article 14 of the Constitution
of India. In this view of the matter, we are unable to hold that the
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appellants can be deprived from benefit of salary for the intervening
period.
16. Resultantly, the respondents are directed to pay full salary to the
appellants for the intervening period forthwith. The entire exercise be
completed within a period of 90 days from the date of production of
certified copy of this order .
The Writ Appeals are allowed.”
5. As the controversy involved in the present case has already been decided
by the Division Bench in Balkrishna Rathi (supra) in the aforesaid manner,
present petition is allowed and disposed of in the following manner:
(i) Respondents are directed to pay salary to petitioner for the
period from November, 2017 till November, 2018 after adjusting the
pension drawn for the said period; and
(ii) Respondents are further directed to comply with the aforesaid
direction within a period of three months from the date of receipt of
certified copy of this order, failing which the entire amount shall carry
interest at the rate of 6% per annum from the date of entitlement till
actual payment.
(Anand Singh Bahrawat)
Judge
pd
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