Chattisgarh High Court
U.K. Shrivastava vs State Of Chhattisgarh 60 Wa/252/2019 ... on 24 October, 2019
Bench: P. R. Ramachandra Menon, Parth Prateem Sahu
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AFR
HIGH COURT OF CHHATTISGARH BILASPUR
Judgment reserved on 28.08.2019
Judgment delivered on 24.10.2019
Writ Appeal No. 224 of 2019
(Arising out of order dated 05.02.2019 passed in Writ Petition (S)
No.6587 of 2008 by the learned Single Judge)
U.K. Shrivastava S/o Late J. K. Shrivastava Aged About 78
Years R/o Anand Nagar, Near Old Labour Court Raipur
District Raipur Chhattisgarh.
---- Appellant
Versus
1. State of Chhattisgarh Through The Secretary to the
Government of Chhattisgarh, Department of Higher
Education DKS, Mantralaya Bhawan, Raipur Chhattisgarh.
(Now Mahanadi Bhawan, Atal Nagar, New Raipur,
Chhattisgarh).
2. Durga Education Society (A Society Registered Under the
C.G. Societies Registration Act 1973) Regid No. 1950-51 Ka
55, Through its President, Durga Mahavidyalaya Campus
Raipur Chhattisgarh.
3. President Durga Education Society Durga Mahavidyalay
Campus Raipur Chhattisgarh.
4. Principal Durga Mahavidyalay Campus, Raipur
Chhattisgarh.
5. Commissioner Department of Higher Education Non-
Government Collegiate Wing D K S, Mantralaya Bhawan,
Raipur Chhattisgarh. (Now Indrawati Bhawan, Atal Nagar,
New Raipur, Chhattisgarh)
---- Respondents
Writ Appeal No. 252 of 2019
1. Durga Education Society (A Society Registered Under the C.G. Societies Registration Act, 1973) Reg. No. 1950-51 Ka 55, Through its President, Durg Mahavidyalaya Campus, Raipur Chhattisgarh.
2. President, Durga Education Society, Durga Mahavidyalaya Campus, Raipur Chhattisgarh.
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3. Principal, Durga Mahavidyalaya, Campus, Raipur Chhattisgarh.
---- Appellants Versus
1. U. K. Shrivastava S/o Late Shri J.K. Shrivastava, Aged About 68 Years R/o Anand Nagar, Near Old Labour Court, Raipur Chhattisgarh.
2. State of Chhattisgarh, Through the Secretary to the Government of Chhattisgarh, Department of Higher Education, DKS, Mantralaya Bhawan, Raipur Chhattisgarh.
3. Commissioner, Department of Higher Education, Non-
Government Collegiate Wing, DKS, Mantralaya Bhawan, Raipur Chhattisgarh.
---- Respondents Writ Appeal No.224 of 2019 For Appellant : Shri Sunil Kumar Soni, Advocate For Respondent/State : Shri Vikram Sharma, Dy. G.A. For Respondents No.2 to 4 : Shri Kishore Bhaduri and Shri Pankaj Singh, Advocates.
Writ Appeal No.252 of 2019 For Appellants : Shri Kishore Bhaduri and Shri Pankaj Singh, Advocates.
For Respondent No.1 : Shri Sunil Kumar Soni, Advocate For Respondent/State : Shri Vikram Sharma, Dy. G.A. Hon'ble Shri P. R. Ramachandra Menon, Chief Justice Hon'ble Shri Parth Prateem Sahu, Judge C A V Judgment Per Parth Prateem Sahu, Judge
1. Since both the writ appeals are arising out of common order dated 05.02.2019 passed by learned Single Judge in Writ 3 Petition (S) No.6587 of 2008, they are being heard together and decided by this common judgment.
2. The challenge of the appellant/employee in Writ Appeal No.224 of 2019 is with respect to non-grant of pay from 31.08.2001 to 31.08.2002 considering the principle of 'No Work No Pay'.
3. The challenge of the appellant/employer in Writ Appeal No.252 of 2019 is to the entire order dated 05.02.2019 passed by learned Single Judge in Writ Petition (S) No.6587 of 2008 whereby the writ petition filed by the employee was allowed in part. For the sake of convenience, Writ Appeal No.224 of 2019 is taken as lead case.
4. The brief facts of the case, in nutshell, are that appellant was appointed on the post of 'Lecturer' in Durga Mahavidyalaya, run by Durga Education Society i.e. respondent No.1. The appellant was working under the control and command of respondent No.4. The initial appointment of the appellant was on 11.07.1964 as 'Lecturer' and thereafter, he was promoted on the post of 'Professor' in the year 1986. The date of superannuation at the time of appointment of appellant was 60 years, but by virtue of amendment, it has been enhanced to 62 years. The State Government has issued a notification for amendment in the age of superannuation of the State Government employees on 21.09.1998 with effect from 07.08.1998. The age of superannuation for the Government 4 Teachers has been enhanced to 62 years from 60 years. It has been made applicable to all the Teachers teaching in Government Educational Institutions including Technical and Medical Institutions also. The Higher Education Department of the erstwhile State of Madhya Pradesh, had issued a circular dated 14.10.1998 addressing the Principals of all Government Aided Private Colleges mentioning therein that as per notification dated 21.09.1998, the age of superannuation of Government Teachers have been enhanced from 60 years to 62 years and in this regard, a separate notification will be published for the Teachers teaching in the Government Aided Private Colleges and till valid notification is brought into force, the Teachers teaching in the Government Aided Private Colleges should not be relieved from their place of posting, who are due to retire after August 1998 and the Principals of the Colleges should wait for further orders in this regard.
5. The State of Madhya Pradesh in pursuant to amendment in the age of superannuation of the Government Teachers has issued another circular dated 21.12.1998 mentioning therein that the Teachers/Government Servants who are going to retire after 30.08.1998 are entitled for their services upto the age of 62 years.
6. The Educational Institution issued a letter of intimation to the appellant that he is going to be superannuated on 31.08.2000 on completion of his 60 years. Thereafter, the 5 appellant made a representation to Durga Education Society which was decided mentioning that there is no amendment in rules and he will retire on 31.08.2000. The appellant along with other employees who are about to reach the age of superannuation have filed a joint writ petition before the Hon'ble High Court of Madhya Pradesh bearing Writ Petition No.2560 of 2000. The appellant thereafter filed a separate writ petition bearing Writ Petition No.5074 of 2000, which came up for hearing on 30.08.2000 and the petitioner succeeded in getting the interim relief in his favour. When the other writ petition bearing Writ Petition No.2560 of 2000 came up for hearing on subsequent date i.e. on 05.12.2000, it was brought to the notice of the Court that the appellant and one Ashok Shukla have filed separate Writ Petition No.5074 of 2000 and Writ Petition No.3 of 2000. When Writ Petition No.2560 of 2000 again listed for consideration on 31.08.2001, the Bench of this Court vacated the interim order passed in Writ Petition No.5074 of 2000 and Writ Petition No.3 of 2000 by mentioning that the said interim order has been obtained by the petitioners by suppressing the material facts and playing fraud on the Court. After vacating of the stay order, the appellant has been retired from the service as he had already completed the age of 60 years, which was the age of superannuation before amendment and explanation was called from them vide order dated 27.09.2001 in Writ Petition No.2560 of 2000. The Court observed that prima facie, contempt is made out against them and directed the appellant 6 and one Ashok Shukla to appear personally or through their Advocate before the Court.
7. The other petitioners in Writ Petition No.2560 of 2000 were granted interim relief vide order dated 31.10.2001 and Durga Education Society has been asked to allow other petitioners to serve and further directed that if they are not allowed to serve, then the Institution will be liable to pay salary and allowances. Writ Petition No.5074 of 2000 came up for hearing on subsequent date and the Co-ordinate Bench accepted unconditional apology submitted by the appellant and further contempt proceeding was dropped.
8. Writ Petition No.5074 of 2000 filed by the appellant in individual capacity came up for hearing on 22.02.2007 and looking to the facts and circumstances of the case i.e. due to vacation of interim order, Petitioner was retired and further crossed the age of superannuation, disposed of the writ petition with a direction to them to file representation for payment of salary during the period he was prevented. It was also directed to consider the same and to pass appropriate orders. Thereafter, appellant submitted representation, which was considered and the same was rejected.
9. Aggrieved by the rejection of the representation submitted by the appellant in pursuance to the order dated 22.02.2007 passed in Writ Petition No.5074 of 2000, he has preferred a Writ Petition (S) No.6587 of 2008. The writ petition came up for 7 hearing on 05.02.2019 and learned Single Judge allowed the writ petition in part. The learned Single Judge in its order held the action of respondent-Institution in superannuating the appellant from 31.08.2000 to be bad and further that it should be treated that the appellant retired/superannuated after attaining the age of 62 years. The learned Single Judge has directed the respondents that the petitioner be treated to have retired from service at the age of 62 years and the petitioner however would be entitled for, all consequential benefits post retirement that he would get treating his age of superannuation to be 62 years, but the wages from 31.08.2001 to 31.08.2002 was not granted on the principle of 'No Work No Pay'.
10. Aggrieved by the aforementioned order passed by learned Single Judge whereby it has been held that the appellant is entitled to retire from service at the age of 62 years and also granted all consequential benefits except the pay from 31.08.2001 to 31.08.2002, the appellant has preferred instant writ appeal.
11. Shri Sunil Kumar Soni, learned counsel appearing for the appellant in Writ Appeal No.224 of 2019 submitted that the counsel appearing for Durga Education Society in his appeal cannot appear as an Advocate as he is one of members of Durga Education Society. He further submitted that respondent No.4 received an intimation from the Higher Education Department, Government of Madhya Pradesh (erstwhile State) 8 that the Government is going to take a decision with respect to enhancement of age of superannuation vide letter dated 14.10.1998 that Teachers of the Government Aided Private Colleges who are going to retire after August 1998 shall not be relieved and wait for the further orders. He further submitted that Pt. Ravishankar Shukla University amended the College Code 28 on 13.07.2001 by enhancing the age of superannuation from 60 years to 62 years and the said notification was received by the respondent-Institution on 20.07.2001 whereas the interim order was vacated only on 31.08.2001. He further submitted that vacation of interim order granted in favour of appellant is for the reason that the Court treated the act of petitioner by filing subsequent second writ petition on same cause of action by suppressing the material facts to be contemptuous, which is a different consideration by the Hon'ble Court, but the consideration for the respondent- Institution in view of amendment dated 13.07.2001, the petitioner ought to have been granted permission to continue on the post which he was continuing in pursuance to interim order passed by the High Court till 31.08.2001. He further submitted that as learned Single Judge has taken into consideration the direction issued by the State Government dated 14.10.1998 as also the fact that appellant on the date of coming into amendment i.e. 13.07.2001 was working as 'Professor' with respondent-Institution, granted him all post retiral benefits and not granting the wages of one year, for which, respondent- 9 Institution was liable as the appellant was forcefully restrained by respondent-Institution in not permitting to perform his duties.
12. Learned counsel for the appellant-employee placed reliance on the judgment dated 21.08.2019 passed by the Hon'ble Supreme Court in Civil Appeal No.6188 of 2019 parties being Jayantibhai Raojibhai Patel v. Municipal Council, Narkhed and Others to support his claim for the Backwages/arrears of salary. He further placed reliance on the judgments passed by the Hon'ble Supreme Court in the matters of Sciemed Overseas Inc. v. Boc India Limited and Others reported in (2016) 3 SCC 70 and Shobha Ram Raturi v. Haryana Vidyut Prasaran Nigam Limited and Others reported in AIR 2016 SC 157 and judgment dated 05.07.2019 passed by the Hon'ble Supreme Court in Criminal Appeal Nos.140-151 of 2012 parties being Central Bureau of Investigation and Another v. Mohd. Parvez Abdul Kayuum Etc.
13. Learned counsel for the appellant during the course of argument has submitted the PPO orders across the table of Shri M.K. Hajra, Shri V.S. Verma, A.S. Kalele and Smt. Nivedita Gupta to show that the other co-petitioners in Writ Petition No.2560 of 2000 have been extended the benefit of amended age of superannuation and they have been superannuated from their services at the age of 62 years.
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14. Per contra, Shri Kishore Bhaduri, learned counsel appearing for the respondent-Institution submitted that he is an ordinary member of Durga Education Society and not an active member. He is not a member of Executive Committee nor taking part in management of affairs of the Society, therefore, there is no direct involvement of his in managing the affairs of the respondent-Institution. He further submitted that there is no bar for him to appear for the respondent-Institution even though he is a member of the Durga Education Society. He further submitted that the appellant by suppressing the fact that he has earlier filed Writ Petition No.2560 of 2000, in which, he could not able to get interim order, has filed another Writ Petition No.5074 of 2000 and obtained interim order in his favour on 30.08.2000 of maintaining status quo with respect to services of the appellant. He further submitted that Bench of this Court has vacated the interim order vide its order dated 31.08.2001 granted in favour of appellant as well as one Ashok Shukla on the ground that the said interim relief obtained by suppressing the material facts and playing fraud on the Court. He further submitted that the respondent-Institution rejected the representation made by the appellant in the month of August 2000 by stating in clear terms that till date, there is no amendment in the rules/regulations and also that the circular will not create any right in favour of appellant and he has to retire at the age of 60 years on 31.08.2000, but by virtue of interim order passed by the Hon'ble High Court, he continued in 11 his services till 31.08.2001. He also submitted that the salary for the period, for which, appellant has worked was already paid to him. He further submitted that the amendment which has been incorporated by University in College Code 28 has been notified only on 13.07.2001 which was not received by them. He further submitted that other co-petitioners have been retired considering the earlier age of superannuation i.e. 60 years and the same has been pleaded in their reply also. He further submitted that respondent No.2 was earlier receiving aid from Government, but now is a Private Unaided Institution in the year 2000 because the Institution was not receiving any aid since 1997, therefore, the age of superannuation for the Government Teachers will not be applicable to the respondent-Institution. He also submitted that the respondent-Institution has challenged the impugned order passed by the learned Single Judge on the ground that prior to coming into force the amendment in College Code 28, petitioner was to retire on 31.08.2000, but only by virtue of interim protection granted by Hon'ble High Court, he was not relieved on 30.08.2000, therefore, no benefit of the amendment could be granted to him. He lastly submitted that learned Single Judge committed an error in extending the benefit of amendment in the age of superannuation vide notification dated 13.07.2001, which was not applicable on the date of superannuation of appellant i.e. 31.08.2000 and prays for setting aside of the impugned order as a whole. 12
15. Learned counsel for the respondent-Institution placed reliance on the judgments passed by the Hon'ble Supreme Court in the matters of State of U.P. v. Harendra Kunwar reported in 1995 All LJ 1603 and Radha Kishun v. Union of India and others reported in (1997) 9 SCC 239 to support his contention that the appellant could not be granted salary for the period, which he has not worked.
16. Learned counsel appearing for the State supported the impugned order passed by learned Single Judge and submitted that the appellant is not entitled for any amount of Backwages or arrears of salary because he has not performed his duties during that period.
17. We have heard learned counsel appearing for the parties and perused the record carefully.
18. The ground raised by the learned counsel for the appellant that Shri Bhaduri could not appear on behalf of Respondents No.2 to 4 because he is one of the members of the Society by relying on the judgment of the Hon'ble Supreme Court in the matter of Mohd. Parvez Abdul Kayuum etc. (supra). Rule 8 under the head rule of profession ethics framed by the Bar Council of India is extracted in the judgment itself, which reads as under :-
"8. An advocate shall not appear in or before any court or tribunal or any other authority for or against an organisation or an institution, society or corporation if he is a member of 13 the Executive Committee of such organisation or institution or society or corporation. "Executive Committee", by whatever name it may be called, shall include any Committee or body of persons which, for the time being, is vested with the general management of the affairs of the organisation or institution, society or corporation: Provided that this rule shall not apply to such a member appearing as amicus curiae or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association."
19. Bare perusal of Rule 8 bar of appearing of an advocate for and against of organization or institution being member is only when he is member of the Executive Committee or the Committee by whatever name for the time is vested with general management of the affairs of organization or Institution.
20. The Hon'ble Supreme Court further held that "A lawyer who is in the Executive Committee of the said Centre, cannot be said to be proper as it is defined as misconduct under the rules".
21. Coming back to the case, Shri Bhaduri already submitted that he is an ordinary member and not in the Executive Committee or involved in managing affairs of Institution. The learned counsel for the appellant could not able to substantiate his argument by placing documentary or evidentiary material on record. In view of the above, ground raised by the learned 14 counsel for the appellant do not stand.
22. The submission of learned counsel for the respondent- Institution that initially the Durga Education Society was an Aided Institution, but subsequently in the year 1997, the aid which was being granted to the institution, has been stopped, thereafter, it has become a self-funding Institution, does not appear to be correct firstly in view of the contents of letter issued by respondent-Institution on 18.08.2007, wherein it has been specifically mentioned that the Institution is an Aided College and the appellant along with other co-petitioners in Writ Petition No.2560 of 2000 were getting salary by the Government which finds place at Annexure P/1 of the writ petition, which is a order of rejection of representation of appellant/writ petitioner on the letter head of respondent No.2- Durga Education Society. Learned counsel for the Institution except his oral submission could not able to place any document to support his contention.
23. Now the question which arises for consideration that what will be effect of amendment in College Code 28 notified on 13.07.2001 in the case of petitioner ?
24. Learned Single Judge in its order dated 05.02.2019 has quoted the circular darted 14.10.1998, in which, it has been specifically mentioned that the Teachers who were working in Government Aided Private Colleges and are going to retire after August 1998, not to be relived for the time being and the 15 management of the College should wait for further orders.
25. The circular dated 14.10.1998 has been filed along with this appeal also as Annexure A-1, which is addressed to all the Principals of Government Aided Private Colleges of State of Madhya Pradesh (before reorganization) by the Higher Education Department of State of Madhya Pradesh (erstwhile State). This circular was brought to the notice of the respondent-Institution by way of making representation by the appellant, which has been rejected by mentioning that there is no amendment regarding age of superannuation to 62 years in non-Governmental Colleges and the Executive Instructions will not prevail over the statute. The Institution was well within the knowledge of the decision of Higher Education Department of the State Government that the decision for amendment with regard to enhancement of age of superannuation of Teachers of Government Aided Private Colleges is pending consideration and there was clear instruction that till notifying the amendment, the Teachers who are attaining the age of superannuation after August 1998 not to be retired, had rejected the representation of appellant. The appellant filed a writ petition along with other co-petitioners, in which, the name of appellant has been shown as petitioner No.2 in Writ Petition No.2560 of 2000, but subsequently, he filed a petition in his individual capacity bearing Writ Petition No.5074 of 2000, in which, interim order of status quo has been granted in his favour on 30.08.2000 i.e. prior to the date of his superannuation i.e. 31.08.2000. By virtue 16 of interim order, appellant continued on his service till 31.08.2001 i.e. the date, on which, the interim order was vacated.
26. It is clear from order dated 31.08.2001 passed in Writ Petition No.2560 of 2000 that the stay order passed in favour of appellant has been vacated on the ground that appellant has obtained an order in his favour by suppressing the material facts and playing fraud on the Court that he has filed one more petition earlier, which was pending on the date of passing of interim order and for that, a contempt proceeding has also been drawn against him. Ultimately, on filing of the apology before the Court, the competent proceeding was dropped. The fact remains that there was a circular dated 14.10.1998 of the State Government not to relieve the Teachers of Government Aided Colleges who are retiring after August 1998 as enhancement in age of superannuation from 60 years to 62 years is pending consideration, the appellant performed his duties till 31.08.2001 and in the meanwhile, College Code 28 was amended and it was notified on 13.07.2001 amending the age of superannuation of the Teachers from 60 to 62 years. It appears that on the date of vacating the interim order of stay, it was not brought to the notice of the Court that the age of superannuation was amended vide notification dated 13.07.2001. But, the respondent-Institution was well aware that the College Code 28 with regard to the age of superannuation of Teachers was amended on 13.07.2001 because they have 17 received a copy of order/notification on 20.07.2001 as evident from record.
27. The other aspect of the case is that the Bench while vacating the stay order passed in favour of appellant vide order dated 31.08.2001 had subsequently granted interim relief in favour of co-petitioners No. 1, 3, 4 and 5 in Writ Petition No.2560 of 2000 vide order dated 31.10.2001 directing the respondent-Institution to permit those petitioners to work and if not, then the Institution alone will be liable to pay salary and allowances.
28. The other petitioners of Writ Petition No.2560 of 2000, who are similarly placed employees have been permitted to work till attaining the age of 62 years. This fact has been very specifically pleaded by the appellant in Writ Appeal No.224 of 2019 that Shri M.K. Hajra, Shri V.S. Verma, A.S. Kalele and Smt. Nivedita Gupta were retired after completion of age of 62 years. The College Code 28 was amended and it was notified on 13.07.2001 and said notification has been forwarded to respondent-Institution, which was received by the Institution on 20.07.2001. After amendment in College Code, amended provisions and amended age of superannuation came to the knowledge of the authorities on 20.07.2001, which is evident from documents available on record wherein the signature of Clerk of respondent-Institution as a recipient of document is available. The fact of receipt of copy of notification/order dated 18 13.07.2001 on 20.07.2001 has been stated to be a correct fact by the Information Officer of respondent-Institution. The said information has been provided to one Shri Anand Wardhan Sahu on 16.08.2010 (Annexure A/15) under Right to Information Act.
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29. Interim order granted in favour of petitioner was vacated by the High Court on 31.08.2001 i.e. after amendment in the age of superannuation, enhancing the age of superannuation from 60 years to 62 years. On the date when the provision of age of superannuation in the College Code was amended, appellant was in employment under the respondent-Institution. Vacating of stay order by the High Court for any of the reasons mentioned therein, could not have affected the continuance of appellant in his service as age of superannuation itself has been amended in College Code and having knowledge of same, respondent-Institution could not have retired the appellant on 31.08.2001 particularly in view of the specific instruction of State Government vide letter dated 14.10.1998 19 not to relieve the Teachers of Government Aided Private Colleges retiring after August 1998 and to wait for further orders. The PPO of the appellant placed on record across the Board by the counsel for the appellant, which shows that commencement of pension of appellant from 01.09.2001, meaning thereby that, respondent-Institution has retired the appellant on 31.08.2001 and not on 31.08.2000.
30. In view of the aforementioned facts and figures, respondent-Institution has committed illegality by not permitting the appellant to perform his duties by their forceful act.
31. The act of forceful restrain in not permitting to perform the duty by the employer has been considered by the Hon'ble Supreme Court in the matter of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and others reported in (2013) 10 SCC 324, in which, Hon'ble Supreme Court held as under :-
"38.5 The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a 20 possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis- à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill-afford the luxury of 21 spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees,, (1979) 2 SCC 80.
38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433, that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."
32. Recently, Hon'ble Supreme Court in the matter of Jayantibhai Raojibhai Patel (supra), considered the aforementioned judgment and held as under :-
"12. In the present case the first inquiry resulted in a report which came to the conclusion that the charge of misconduct was not substantiated. Upon finding that the convening of a fresh inquiry without recording reasons was contrary to law, the High Court would have ordinarily granted liberty to the Municipal Council to take a fresh decision after due notice to the appellant. Such a course of action was, however, rendered impracticable by supervening events. The writ petition instituted by the appellant before the High Court in 1996 remained pending for nearly eighteen years. The appellant had 22 been removed from service on 29 June 1996. Considering the lapse of time, reopening the proceedings would not be expedient in the interest of justice particularly when the appellant had, in the meantime, attained the age of superannuation in 2005. Relegating the appellant to a protracted course of action by restoring the proceedings before the disciplinary authority would also not be fair and proper after a lapse of nearly fourteen years since his retirement.
13. Having due regard to the principles which have been enunciated in Deepali Surwase by this Court, the High Court was not, in our view, justified in denying the back-wages to the appellant altogether. Bearing in mind the circumstances which have been noted above, a lumpsum compensation should be directed to be paid."
33. In case of Jayantibhai Raojibhai Patel (supra), the employee faced departmental enquiry for his misconduct and employer has dismissed the employee, which was found subsequently to be an illegal order and in those circumstances, Hon'ble Supreme Court denying the back wages granted by the High Court was held not to be justified.
34. In the instant case, State Government proposed for enhancement of age of superannuation of Teachers of Government Aided Private Colleges and at the same time, sent a letter through the Higher Education Department of erstwhile State of Madhya Pradesh on 14.10.1998 addressing Principals 23 of all Government Aided Private Colleges. The said letter dated 14.10.1998 (Annexure A/1) reads as under :-
**e/; izns'k 'kklu mPp f'k{kk foHkkx eaa=ky;
dzekad Mh@4515@98@lh&3@38 Hkksiky] fnukad 14-10-98 izfr] izkpk;Z leLr vuqnku izkIr v'kkldh; egkfo|ky; e/; izns'kA fo"k; % 'kS{kf.kd vkSj v'kS{kf.kd laoxZ ds O;fDr;ksa dh vf/kokf"kZdh vk;q eas o`f}A &&00&& jkT; 'kklu us vlk/kkj.k jkti=] fnukad 28 ebZ] 1998 vkSj 2 flrEcj] 98 dks nks vf/klwpuk,a tkjh djrs gq, 'kkldh; f'k{kdksa dh vf/kokf"kZdh vk;q dks 60 o"kZ ls 62 o"kZ vkSj xSj 'kS{kf.kd deZpkfj;ksa dh vf/kokf"kZdh vk;q dk 58 o"kZ ls c<+kdj 60 o"kZ djus dk fu.kZ; fy;k gSA bl rkjrE; eas vuqnku izkIr v'kkldh; egkfo|ky;ksa esa dk;Zjr f'k{kdksa vkSj xSj f'k{kd laoxZ ds O;fDr;ksa ds fy;s i`Fkd ls vf/klwpuk tkjh dh tk;sxhA tc rd fof/kor vf/klwpuk tkjh ugha dh tkrh vkSj ifjfu;eksa esa vko';dr la'kks/ku ugha fd;k tkrk rc rd lHkh vuqnku izkIr v'kkldh; egkfo|ky;ksa esa dk;Zjr ,sls f'k{kdksa dks tks vxLr 1998 ds ckn lsokfuo`Rr gksaxs vkSj ,sls xSj 'kSf{kd deZpkfj;ksa dks tks 30 ebZ 98 ds ckn lsokfuo`Rr gkasxs mUgsa fQygky dk;ZeqDr u fd;k tkosA bl laca/k esa vkxkeh vkns'k dh izrh{kk djsaA lgh@& ¼Mk0 'k'kh jk;½ fo'ks"k drZO;LFk vf/kdkjh] mPp f'k{kk foHkkx-
i`0dzekad Mh@4515@98@lh&3@38 Hkksiky] fnukad 14-10-98 izfrfyfi %& 1@& vk;qDr mPp f'k{kk e/;izns'k-
2@& vfrfjDr lapkyd dk;kZ vk;qDr mPp f'k{kk ¼v'kkldh; 'kS{kf.kd laLFkk½ fgUnh Hkou] ';keyk fgYl] HkksikyA 3@& leLr {ks=h; vfrfjDr lapkyd] mPp f'k{kk e/;izns'k- 4@& dqylfpo] leLr fo'ofo|ky;] e/;izns'kA 5@& jkT;iky ds lfpo] jktHkou] HkksikyA lgh@& fo'ks"k drZO;LFk vf/kdkjh] mPp f'k{kk foHkkx-**
35. A bare perusal of aforementioned letter, in which, it has been very specifically directed that Teachers who are going to retire after August 1998, may not be relieved for the time being and to await for further orders. In the said circumstances, the respondent-Institution was under obligation to comply with the 24 direction issued by the Higher Education Department of the State Government, under which, the Colleges are functioning.
Even otherwise, on the date of issuance of notification of amendment of age of superannuation from 60 years to 62 years i.e. 13.07.2001, appellant was in service though by virtue of an interim order passed by the High Court, but that will not make much difference when there is very directive of Higher Education Department of State Government who was granting aid for payment of the salary of Teachers working under sanctioned post. Retiring the appellant immediately after vacating of stay order that too when age of superannuation has already been amended on 13.07.2001, which was within their knowledge was illegal and arbitrary. Therefore, in the facts and circumstances of the case, particularly, considering direction of Higher Education Department of State Government dated 14.10.1998 for not relieving the Teachers who were going to retire after August 1998; amendment in College Code; enhancement of age of superannuation from 60 years to 62 years on 13.07.2001 and receiving a copy of notification by the College on 20.07.2001, makes the action of respondent- Institution arbitrary and illegal in retiring the appellant on 31.08.2001.
36. In the aforementioned facts, when there is no fault on the part of appellant, in the opinion of this Court, he is entitled for back wages from 31.08.2001 to 31.08.2002 without any interest.
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37. The case of Harendra Kumar (supra) relied upon by the learned counsel for the respondent-Institution is on different facts. In that case, there was dispute of age of superannuation between 58 years and 60 years and the High Court permitted the petitioner therein to continue by interim order after completion of 58 years, but when petitioner completed the age of 60 years, the writ petition has been disposed off as infructuous without deciding the issue of age of superannuation.
38. The case of Radha Kishun (supra) is also on different set of facts and cannot be applied in the facts of the present case. In that case, the employee working in the Telecommunication Department after attaining the age of superannuation i.e. 31.05.1991 remained in office till 31.05.1994 without retiring on actual date of superannuation and continued to enjoy all benefits of service and when recovery of payment made to said employee from the date of superannuation till 31.05.1994 was directed, he approached the Tribunal. The said case travelled upto Hon'ble Supreme Court and in the facts and circumstances of that case, Hon'ble Supreme Court held that petitioner therein has no right to claim salary etc. as he was not re-employed after attaining the age of superannuation.
39. Here, in the instant case, the age of superannuation prior to issuance of letter dated 14.10.1998 was 60 years and in the letter dated 14.10.1998, it has been very specifically mentioned that decision had been taken for enhancement of age of 26 superannuation of Teachers and Staff of Government Aided Private Colleges from 60 years to 62 years as well as 58 years to 60 years. It has been also mentioned that separate notification will be issued for Teachers and Staff working in the Government Aided Private Colleges and till issuance of further orders, Teachers who are going to retire after the month of August 1998 shall not be relieved and during the period when appellant was continuing his service, amended notification was also issued on 13.07.2001, which was received by the Institution on 20.07.2001, but even then, the Institution retired the appellant on 31.08.2001.
40. So far as Writ Appeal No.252 of 2019 filed by respondent- Institution is concerned, the grounds raised in the writ appeal are not sustainable for the reasons mentioned above that though they have issued notice for superannuating the private respondent on 31.08.2000, but prior to date of superannuation, he succeeded in getting interim relief of status quo with respect to service of the petitioner in his favour, which continued till 31.08.2001 i.e. when interim order passed by Hight Court was vacated. Prior to vacation of interim order, there was already a direction issued by Higher Education Department of State Government to all the Principals of Government Aided Private Colleges dated 14.10.1998, not to relieve the Teachers who are attaining the age of superannuation after the month of August 1998 till further orders.
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41. Nonetheless, before vacating of stay order and relieving of respondent No.1 in Writ Appeal No.252 of 2019, State Government has notified the amendment in the age of superannuation of Teachers and extended the age upto 62 years on 13.07.2001 and said notification was received by the College on 20.07.2001.
42. In view of above discussions, learned Single Judge has not committed any error in holding the action of respondent- Institution in retiring the private respondent on 31.08.2001 to be bad and illegal.
43. The ground No.3 raised by respondent-Institution that other similarly placed Teachers of same College were superannuated on different dates in the year 2000 will not affect the case of respondent No.1 in Writ Appeal No.252 of 2019 because other similarly placed Teachers have not approached the Court for any relief. The private respondent in Writ Appeal No.252 of 2019 has filed representation in pursuant to order passed by the High Court and after rejecting the same, he again approached the High Court by filing writ petition challenging the legality and validity of order passed by the Institution wherein it was mentioned that as there was no amendment in age of superannuation on the date of attaining the age of superannuation of private respondent, no benefit can be extended to him.
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44. So far as continuance of service from 31.08.2000 to 31.08.2001 is without any authority is also not sustainable because it is a case where the State Government, is giving funds to Government Aided Private Colleges and is one of the respondent in Writ Appeal No.252 of 2019, had issued a very specific direction for not relieving the Teachers who are going to attain the age of superannuation after August 1998 till coming into force the amendment in age of superannuation which ultimately notified on 13.07.2001. The private respondent (employee) was in employment by virtue of interim order passed by the High Court, therefore, case of private respondent cannot be treated that he continued in service without any order or authority.
45. It is also not the case of the Institution that the State Government has stopped granting aid with respect to payment of salary to persons who had already attain the age of superannuation under unamended regulation, but continued in service till completion of their age of 62 years.
46. In view of the facts and circumstances emerging from the records and discussions made above, Writ Appeal No.224 of 2019 filed by the employee is allowed in part and while upholding the order passed by learned Single Judge except the order denying salary, it is held that the appellant will be entitled for the salary from 01.09.2001 to 31.08.2002 without any interest. The respondent-Institution is directed to make the 29 payments within a period of three months from the date of production of copy of this order. Writ Appeal No.252 of 2019 filed by the Institution is hereby dismissed.
Sd/- Sd/-
(P. R. Ramachandra Menon) (Parth Prateem Sahu)
Chief Justice Judge
Yogesh