Madhya Pradesh High Court
Dr. R.K. Sharma vs The State Of Madhya Pradesh on 29 November, 2019
Equivalent citations: AIRONLINE 2019 MP 1893
Author: Sanjay Yadav
Bench: Sanjay Yadav, Rajendra Kumar Srivastava
1 WA-1857-2019
THE HIGH COURT OF MADHYA PRADESH
(Division Bench)
WA-1857-2019
Dr. R.K. Sharma
versus
State of Madhya Pradesh and others
Shri Ashok Tiwari, learned counsel for the appellant.
Shri A.T. Faridee, learned Government Advocate for the
respondents/State and its functionaries.
CORAM :
Hon'ble Mr. Justice Sanjay Yadav, Judge
Hon'ble Mr. Justice Rajendra Kumar Srivastava, Judge
ORDER
(Jabalpur, dated : 29-11-2019) Per : Sanjay Yadav, J :
There is delay of 1227 days in filing the appeal, condonation whereof is being sought vide I.A. No.13632/2019, though opposed by respondents; however, taking into consideration the circumstances which prevented the appellant from filing the appeal within limitation, sufficient cause is made out. Consequently, delay is condoned. I.A. No.13632/2019 is disposed of.
2. This Appeal under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 is 2 WA-1857-2019 directed against order dated 29.03.2016 passed in Writ Petition No.16662/2011(s).
3. In the writ petition, the issue as to whether the Teachers employed in Government aided Private Educational Institution are entitled for the benefit of enhanced age of superannuation of 65 years has been answered against the appellant-teacher.
4. It is submitted by learned counsel for the parties that the issue has been settled by Hon'ble Supreme Court vide order in Civil Appeal Nos.4675-4676 of 2019 (R.S. Sohane Vs. State of M.P.) and connected Civil Appeals decided on 07.05.2019, wherein it is held :
"13. Section 36 of the 1973 Adhiniyam empowers the Coordination Committee to prepare the First Statutes of the Universities. Power is conferred on the Coordination Committee to amend or repeal any Statute and to draft a Statute proposed by the Executive Council of the University. The Coordination Committee is competent to frame Statutes on its own motion. In case a draft is proposed by the Executive Council, the Coordination Committee may approve such a draft and pass the Statute. If the Coordination Committee is not satisfied with the draft, it can reject or return the draft to the Executive Council for reconsideration. The recommendations made by the Executive Council shall, thereafter, be considered by the Coordination Committee which has the power to either approve or reject them. The Statute shall become effective from the date specified by the Coordination Committee after its approval.
14. Statute No.28 which is the College Code governs the service conditions of teaching staff. 'College' is defined in Clause I of the College Code which includes a College receiving grant from the State 3 WA-1857-2019 Government or Madhya Pradesh Uchcha Shiksha Anudan Ayog and Non-Grantee College not receiving any aid. The College Code shall apply to all Colleges admitted to the privileges of the University except the Colleges maintained or managed by the State Government or a Municipal Corporation or the University. Clause 26 of the College Code provides that a permanent Teacher shall be entitled to be in the service of the College until he/she completes the age of 60 years. The decision of the Coordination Committee dated 07.01.2004 was implemented by an amendment of the Clause 26 of Statute No.28 (College Code) which is as under:
"It was appropriate to maintain the age of superannuation of Principals, Teachers and employees of private Colleges at par with the age of superannuation of Principals, Teachers and employees of government Colleges."
15. Section 36 of the 1973 Adhiniyam reads as:
36. Statutes How Made (1) The first Statutes of the University shall be prepared by the Co-ordination committee.
(2) The Co-ordination Committee may, from time to time make amend or repeal any Statutes by passing a Statute in the manner hereinafter appearing.
(3) The Co-ordination committee may on receiving a proposal from the Executive Council of a University or on its own motion consider the draft of a Statute that is in the interest of either one or all the Universities;
(4) Where a draft is proposed by the Executive Council, the Co-ordination Committee may approve of such draft and pass the Statute or reject it or return it to the Executive Council for reconsideration either in whole or in part together with any amendment, which the Coordination Committee may suggest.
(5) After any draft returned under sub-section (4) has been further considered by the Executive Council together with any amendment suggested by 4 WA-1857-2019 the Coordination Committee it shall again be presented to the Co-ordination Committee with a report of the Executive Council thereon and the Co- ordination Committee may approve or reject the Statute.
(6) The Co-ordination Committee shall not take into consideration nor the Executive Council shall propose the draft of any Statutes or of any amendment of a Statute or of the repeal of any Statute:
(a) affecting the Statutes, power or constitution of any authority of the University until such authority has been given an opportunity of expressing an opinion upon the proposal; or
(b) affecting the conditions of admission of Colleges to privileges of the University, until the Academic Council has been given an opportunity of expressing an opinion upon the proposal and such opinion shall be forwarded by the Executive Council to the Coordination Committee along with any draft it may propose.
(7) Where the Co-ordination Committee approves the Statutes, they shall become effective from such date as the Co-ordination Committee may specify."
16. There is no manner of doubt that the Coordination Committee has the power to prepare, amend and repeal the Statutes. It can do so on its own motion or on receiving a proposal from the Executive Council of a University. The procedure to be followed in case there is a proposal from the Executive Council of the University to frame Statutes is prescribed thereunder. A plain reading of Section 36 would make it clear that the views of the Executive Council have to be obtained by the Coordination Committee only in case the proposal has emanated from the Executive Council of a University for preparing a Statute. Such procedure is not applicable when the Coordination Committee prepares a Statute on its own motion. The High Court erroneously held that the amendment made to Statute 28 of the College Code was only a recommendation which was not accepted either by 5 WA-1857-2019 the Executive Council of the respective Universities or by the State Government.
17. Admittedly, the amendment to Statute 28 of the College Code on 07.01.2004 was not based on any proposal from the Executive Council of any University. It was made by the Coordination Committee on its own motion. The interpretation of Section 34 (4) of the 1973 Adhiniyam by the High Court that the Coordination Committee can only suggest modifications of the said Statutes in force is not correct.
18. The High Court has gone wrong in observing that any proposal for amendment to a Statute made by the Coordination Committee has to be sent to the Executive Council of the University. The power to amend the Statute is conferred on the Coordination Committee and not on the Executive Council as has been understood by the High Court. A further error committed by the High Court was to hold that there is no recommendation of the Standing Committee on the basis of which a Resolution was passed on 07.01.2004. The High Court lost sight of the minutes of meeting of the Standing Committee dated 01.04.2003 by which recommendation was made to maintain the age of superannuation of Teachers working in aided private Colleges at par with those working in the Government Colleges.
19. We are not in agreement with the conclusion of the Full Bench of the High Court that the language of the Resolution dated 07.01.2004 is in the nature of a recommendation. It is clear from the facts narrated above that the matter pertaining to the age of superannuation of Teachers working in aided private Colleges was referred by the Coordination Committee to the Standing Committee. On the basis of the recommendations of the Standing Committee, the Coordination Committee passed a Resolution on 07.01.2004 which was given effect to by an amendment to Clause 26 of the College Code. The second point answered by the Full Bench is that the UGC Regulations are not applicable to the State Government per se but are to be adopted by the State 6 WA-1857-2019 Government. The High Court was of the opinion that the Government had accepted the payment of revised pay scales only in respect of the Teachers working in the Government Institutes. The Standing Committee and the Coordination Committee of the University is represented by the Senior Officers of the State Government and it is not for the State Government to contend that they will not extend the benefit of enhancement of the age of superannuation till 65 years to the Teachers working in the private aided institutes in spite of the provisions in the College Code.
20. 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."
5. In view whereof, the present appeal deserves to be and is allowed in the terms of judgment in R.S. Sohane (supra). As a necessary corollary the impugned order is set aside.
6. As the appellant has already crossed 65 years of age, he will be entitled for entire arrears of wages for extended years of service.
7. Though a cavil is raised on behalf of respondents that since the appellant had not worked for the period of 3 years he 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 his duties till 65 years, the principle of 'no 7 WA-1857-2019 work no pay' is not applicable. For an authority, reference can be had of the decision in State of Uttar Pradesh vs Dayanand Chakrawarty (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 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 8 WA-1857-2019 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.
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:
9 WA-1857-2019 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.
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."
8. Similar view has been expressed in Shobha Ram Raturi vs Haryana Vidyut Prasaran Nigam Ltd. (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'."
10 WA-1857-2019
9. 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 he 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 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.
10. The Appeal stands disposed of finally in above terms. No costs.
(Sanjay Yadav) (Rajendra Kumar Srivastava)
Judge Judge
vinod
Digitally signed by VINOD
VISHWAKARMA
Date: 2019.12.04 10:43:34 +05'30'