Allahabad High Court
Angad Yadav And 7 Others vs State Of U.P. And 4 Others on 19 August, 2017
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 17 Case :- WRIT - A No. - 33360 of 2017 Petitioner :- Angad Yadav And 7 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Kamal Pati Shukla, Anurag Shukla Counsel for Respondent :- C.S.C., Manu Singh Hon'ble Pradeep Kumar Singh Baghel,J.
This petition has been moved on behalf of eight teachers of the Basic Schools. Petitioner nos. 1 to 5 and 8 were Headmaster and petitioner nos. 6 and 7 were Assistant Teacher. They are aggrieved by the Government Order dated 02nd May, 2017 issued by the Special Secretary, Government of U.P., Lucknow, whereby the claim for their salary during the period when they were not allowed to function has been denied on the ground of no work no pay.
The basic facts may briefly be stated. The petitioners were working as Headmasters and/or Assistant Teachers, as the case may be, in Junior Basic Schools/ Senior Basic Schools conducted by the Uttar Pradesh Board of Basic Education1. The basic schools are governed under the provisions of the Uttar Pradesh Basic Education Act, 19722, Rules framed thereunder and the Uttar Pradesh Basic Education (Teachers) Service Rules, 19813.
In the Rules, 1981 the age of superannuation of teacher is provided as 62 years. Rule 29 of the Rules, 1981 deals with the age of superannuation. Proviso to Rule 29 provides that a teacher who retires during an academic session (July 1 to June 30) shall continue to work till the end of the academic session i.e. 30th June and such period shall be deemed as extended period of employment.
Dates of birth of the petitioners fall between May, 1953 to July, 1953 on different dates. For the sake of convenience, the details of the petitioners' date of birth and date of superannuation are mentioned in the table below:
Petitioner nos.
Date of birth Date of superannuation 1 01.07.1953 31.03.2016 2 01.06.1953 31.03.2016 3 01.05.1953 31.03.2016 4 03.05.1953 31.03.2016 5 01.07.1953 31.03.2016 6 01.07.1953 31.03.2016 7 01.07.1953 31.03.2016 8 15.05.1953 31.03.2016 According to Rule 29 of the Rules, 1981, the petitioners were entitled to continue till the end of the academic session i.e. 30th June, 2015, but in the meantime on 09th December, 2014 the State Government pursuant to a policy decision changed the academic session with effect from the academic year 2015-16 from 01st April to 31st March. Earlier the academic session was from 01st July to 30th June. The State Government issued other Government orders on 15th June, 2015 and 29th June, 2015 in this regard clarifying the earlier Government orders.
Interpreting the said Government orders, the Secretary, Basic Education took a view that the teachers, who attain the age of 62 years before 30th June, 2015, shall not be entitled to sessional benefit beyond 30th June, 2015.
The Government orders and the consequential order of the Secretary, Basic Education, were challenged in a large number of writ petitions in this Court and at Lucknow Bench wherein interim protections were granted to the teachers for their continuance till 31st March, 2016 on the ground that their dates of superannuation fall after 01st April, 2015. Hence, after the change of the academic session, they were allowed to continue till the end of the academic session i.e. 31st March, 2016.
Those writ petitions were finally decided by a Division Bench of this Court in Special Appeal Defective No. 360 of 2015, State of U.P. through the Secretary, Basic Education, Lucknow and others v. Ramesh Chandra Tiwari and others, wherein the aforesaid interim order granted by the learned Single Judge was challenged. The Division Bench following the decisions of three earlier Division Benches, the details of which are given in the forthcoming paragraphs, quashed the order passed by the Secretary, Basic Education, Lucknow dated 15th June, 2015 and allowed all the writ petitioners therein to continue till the end of the academic session i.e. 31st March, 2016.
It is stated that all the petitioners were compelled to retire on 30th June, 2015 pursuant to the order of the Secretary of the Board dated 15th June, 2015.
Pursuant to the law laid down by this Court in Ramesh Chandra Tiwari (supra) the State Government issued a Government Order dated 08th October, 2015, wherein it was provided that any teacher who retires between 01st April and 31st March shall be entitled to continue till the end of the academic session i.e. 31st March. It was also provided in the Government order that all such teachers shall be allowed to continue till the end of the academic session and the Government order dated 09th December, 2014 shall stand modified to that extent. It was also provided that Rule 29 of the Rules, 1981 and the corresponding Rule 14 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 19784 shall be amended accordingly. In the said Government order the operative portion of the judgment of Ramesh Chandra Tiwari (supra) was extracted. A copy of the said Government order is on the record.
In compliance with the said Government order, it is stated, all the petitioners were allowed to join their respective posts vide order of the District Basic Education Officer, Sant Kabir Nagar dated 21st November, 2015 and in the said order of the District Basic Education Officer it was made clear that they will continue till the end of the academic session i.e. 31st March, 2016.
It is stated that the petitioners after their joining retired from their respective posts on 31st March, 2016.
After their retirement, the petitioners claimed their salary for the period from 30th June, 2015 to 21st November, 2015 when they were illegally made to retire. The petitioners made representations for their salary for the said period. However, in the meantime the State Government issued an order dated 02nd May, 2017, wherein it is provided that the teachers, who were retired on 30th June, 2015 and due to change of the academic session were allowed to rejoin, would not be entitled for the salary during the period when they have not worked on the basis of 'no work, no pay' but that period would be treated on duty for the purposes of pension and retiral benefits. Challenging this Government order dated 02nd May, 2017, the instant writ petition has been filed.
Since pure question of law is involved in the matter, learned counsel for the parties agreed for final disposal of the writ petition without calling any response from the respondents. Hence, with their consent the writ petition is being disposed of finally at this stage in terms of the Rules of the Court.
I have heard Sri K.P. Shukla, learned counsel for the petitioners, and learned Standing Counsel.
Learned counsel for the petitioners submits that in view of the law laid down by this Court in the case of Ramesh Chandra Tiwari (supra) and the consequential Government Order, which has been issued on 08th October, 2015 the petitioners were entitled to continue till the end of the academic session i.e. 31st March, 2016, whereas they were forced to retire on 30th June, 2015, hence the principle of 'no work, no pay' shall not be applicable in the facts of the present case. He further submits that all the teachers were allowed to work till the end of the academic session (31st March, 2016) but the respondents illegally retired the petitioners on 31st March, 2015 and did not allow them to discharge their duties. He has placed reliance on the judgment of the Supreme Court in State of Bihar v. Kripa Nand Singh5, Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others6, Raghubir Singh v. General Manager, Haryana Roadways, Hissar7, and Burn Standard Company Limited v. Tarun Kumar Chakraborty8, and of this Court in Smt. Rajmati Singh v. State of U.P. and others9, and Brijendra Prakash Kulshrestha v. Director of Education and others10.
Learned Standing Counsel has supported the impugned Government order on the ground that the petitioners have been rightly denied the salary on the ground of no work no pay.
I have considered the rival submissions advanced by the learned counsel for the parties and perused the record.
The services of the petitioners are governed under the Rules, 1981. Rule 29 thereof provides that the age of superannuation of a teacher in a basic school shall be 62 years. Rule 29 reads as under:
"29. Age of superannuation.- Every teacher shall retire from service in the afternoon of the last day of the month in which he attains the age of 62 years:
Provided that a teacher who retires during an academic session (July 1 to June 30) shall continue to work till the end of the academic session, that is, June 30 and such period of service will be deemed as extended period of employment."
Previously, the academic session in the basic schools and Intermediate colleges was from 01st July to 30th June. The State Government by two separate Government Orders dated 15th October, 2014 and 09th December, 2014 respectively changed the academic session in the Intermediate colleges and basic schools from 01st April to 31st March. Proviso to Rule 29 clearly provides that in case the date of superannuation falls during the academic session, the teacher shall be allowed to continue till the end of the academic session. A similar provision is provided in all the statutes, which deal with the educational authorities as the First Statutes of the University, Regulations framed under the Intermediate Education Act, the Rules, 1981, which deals with the service conditions of the teachers in the basic schools conducted by the Board, and the Rules, 1978, which deals with the service conditions of the teachers working in the recognised institutions under the Act, 1972 established by the societies registered under the Societies Registration Act and managed by the Committee of Management elected by them.
The object of the aforesaid provision regarding continuance under the different Services Rules/ Statues is that if a teacher retires during the course of the academic session, his service is extended by virtue of the rules/statues till the end of the academic session, so that the studies of the students may not be affected. Therefore, underlying purpose is primarily to give benefit to the students. In the present case, as is evident from the details of their dates of birth mentioned above in the table, they were born after 1st of April in 1953. Thus, their superannuation falls after 01st of April, 2015. When first time the change of the academic session (from 01st April, 2015 to 31st March, 2016) became effective, indisputably they were entitled for the sessional benefit and they should not have been retired prior to 31st March, 2016.
However, the Secretary of the Board wrongly interpreted the Government orders and issued a direction for not extending the sessional benefit to all those teachers whose date of superannuation was falling upto 30th June, 2015. This Court in Ramesh Chandra Tiwari (supra) had the occasion to consider the order issued by the Secretary, Basic Education dated 15th June, 2015 and it was set aside by the Court in its elaborate judgment.
Suffice it would be to mention that the State Government did not challenge the judgment of this Court in Ramesh Chandra Tiwari (supra) and it issued a Government Order dated 08th October, 2015, wherein after extracting the operative portion of the judgment of Ramesh Chandra Tiwari's case the State Government has issued necessary directions to all the concerned educational authorities to comply with the aforesaid judgment and it was further directed that all such teachers, whose date of birth falls after 01st April, 2015, shall be allowed to continue till the end of the academic session i.e. 31st March, 2016. The State Government has also mentioned in the said order that necessary amendment be carried out in the Rules, 1981 and other concerned rules in terms of the law laid down by this Court in Ramesh Chandra Tiwari (supra).
In compliance with the said judgment of this Court and the Government Order dated 08th October, 2015, admittedly all the petitioners were allowed to re-join their duties and their pension was stopped. The petitioners have brought on record their joining orders, which demonstrate that they have been allowed to join their posts in November, 2015. They were paid their salaries onwards till their superannuation on 31st March, 2016. Hence, it is a common ground between the parties that they did not work from 01st July, 2015 till the date of their joining in November, 2015 when they were allowed to work in their respective institutions.
The only question which arises in the present petition is whether the petitioners are entitled for their salaries from 01st July, 2015 until they were allowed to join their posts in November, 2015 or not.
In this regard, the State Government has formed an opinion on the basis of the advice of the Finance Department that the petitioners are not entitled for their salary for the period when admittedly they have not rendered any service on the ground of 'no work, no pay'.
The core question that arises in the present case is whether the principle of 'no work, no pay' shall be applicable in the facts and circumstances of the present case.
Learned counsel for the petitioners has strenuously urged that the petitioners were always ready and willing to work in the institutions as Headmasters/ Assistant Teachers, as the case may be, but they were compelled not to work by the concerned educational authorities, who have passed the orders that they shall stand retired on 30th June, 2015 and they would not be given the sessional benefit, hence it cannot be said that the petitioners have not worked during the said period.
The order of the Secretary, Basic Education dated 15th June, 2015 was found to be illegal by the Division Bench in Ramesh Chandra Tiwari (supra), hence the stand taken by the State Government that they would not be allowed to work after 30th June, 2015 was not accepted and declared illegal and the order was accordingly set aside.
Recently, the Supreme Court has clarified that the principle of 'no work, no pay' would not be applicable in certain circumstances, amongst others, when employee was compelled not to work in spite of his willingness to perform his duties. The Supreme Court in Kripa Nand Singh (supra) has held that 'no work, no pay' is a rule and 'no work yet pay' is an exception. The Court has held that if the employee is not permitted to join the duty, then the principle of no work no pay shall not be applicable as he was not at fault.
It is a trite that if services of an employee have been terminated and if it is found that the termination was contrary to the law and it is set aside, he would be entitled to full back wages. The Supreme Court in a long line of decisions has held that full back wages would be the normal rule and if the employer objects it, the employer must establish the circumstances taking a contrary view. The tribunals/courts can exercise their discretion while awarding back wages but the discretion should be exercised judiciously. The said view taken by the Supreme Court in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited11 was consistently followed.
Later, the Courts started taking pragmatic view of the matter when the orders of termination were set aside after a long time. The Courts in such circumstances realised that an industry which is not in sound financial position should not be compelled to pay to its employees back wages for the period during which they did not perform any duty. In such a situation it was left to the discretion of the tribunal/courts not to grant mechanically full back wages but consider the other factors also such as (i) whether the employee was gainfully engaged somewhere else; (ii) the financial position of the employer; and, (iii) prolonged litigation. The Court found that no precise formula can be adopted nor 'cast-iron rule' can be laid down regarding payment of full back wages and it depends upon the facts and circumstances of each case while considering awarding of back wages. Reference may be made to the judgments of the Supreme Court in the cases of U.P. State Brassware Corpn. Ltd. and another v. Uday Narain Pandey12; Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and another13, Uttaranchal Forest Development Corpn. v. M.C. Joshi14, Jaipur Development Authority v. Ramsahai and another15, and Jagbir Singh v. Haryana State Agriculture Marketing Board and another16.
But in the recent years the Supreme Court is reiterating its earlier decisions that reinstatement with full back wages is normal rule, it has emphasised that if the employer wants to avoid payment of full back wages, then he has to plead and prove that the employee was gainfully employed and was getting wages equal to the wages he/she was drawing prior to termination of service. It has held that the Courts must keep in view that the wrongdoer is the employer and the sufferer is the employee and there is no justification to give a premium to the employer for his wrongdoings by not granting full back wages. Sometimes the Courts take the view that due to pendency of the cases for a long time the employer should not be saddled with the payment of full back wages, but this view was not found favour with the Supreme Court and it was held in the case of Deepali Gundu Surwase (supra) that lack of infrastructure and manpower is one of the principal reasons for the delay in disposal of the cases in the tribunals and Courts and for this the employee cannot be blamed or penalised. It was further held that it would be miscarriage of justice if he is denied back wages simply because there was a long lapse of time between termination of his service and reinstatement by the Court and in such situation, the employer, who is a wrongdoer, gets the benefit of the delay. The relevant part of the judgment of the Supreme Court in Deepali Gundu Surwase (supra) reads as under:
"38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation 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 principle 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-a-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 spending money on a lawyer with certain amount of frame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees17."
The judgment of Deepali Gundu Surwase (supra) has been quoted with approval in the recent cases in Pawan Kumar Agarwala v. General Manager-II and Appointing Authority, State Bank of India and others18 and Raj Kumar v. Director of Education and others19.
In the case of Educational Society, Tumsar and others v. State of Maharashtra and others20 the Supreme Court had the occasion to consider the termination of an employee in an educational institution, whose termination was found to be against the statutory provision. The Court observed that as per the normal principle, when termination of an employee of an aided school is held to be illegal, the Government is supposed to bear the payment of back wages. It has also been observed that the payment of back wages are in the nature of salary for the intervening period to the employee who would have earned these benefits had he remained in service and for the said reason the Government cannot deny the full back wages. The relevant part of the judgment of the Supreme Court reads as under:
"11. We have considered the aforesaid submissions of the learned counsel for the parties and have gone through the statutory provisions. It cannot be denied that as per the normal principle, whenever a terminated employee of an aided school challenges the termination and termination is held to be illegal by a competent judicial forum/court and order is passed for payment of back wages, etc., the Government is supposed to bear the said burden. The reason for the same is that such back wages or any other payment are in the nature of salary for the intervening period or other compensation in lieu thereof which is to be paid to the employee who would have earn these benefits had he remained in service. In that eventuality, obviously, the Government/Education Department would have paid those benefits in terms of financial aid provided to such a school. However, if there is a specific provision contained in any statute which contains contrary position, then such provision would prevail upon the aforesaid general rule. Likewise, if there is any administrative order which is contrary to the aforesaid general rule, the said administrative order shall prevail as in that situation, it would be treated that the aid is given subject to the conditions contained in such administrative order."
(Emphasis supplied) Applying these principles on the facts of the present case, I find that the petitioners in terms of the change of the academic session, when admittedly their dates of superannuation fall during the academic session i.e. 01st April, 2015 to 31st March, 2016 as their dates of birth are 01.07.1953, 01.06.1953, 01.05.1953, 03.05.1953, 01.07.1953, 01.07.1953, 01.07.1953 and 15.05.1953 respectively, they were entitled for the sessional benefit and to continue upto 31st March, 2016. There was no fault on their part as they were not allowed to work after 30th June, 2015. A specific direction was issued not to allow them to continue beyond 30th June, 2015. The said direction, as mentioned above, was manifestly erroneous and contrary to the well settled practice and the relevant Rules to give the session benefit to such teachers whose date of superannuation falls during the academic session. The State Government has issued a Government Order dated 08th October, 2015 rectifying the said mistake, hence the Government Order dated 02nd May, 2017 that the teachers who were allowed to continue after the judgment of Ramesh Chandra Tiwari (supra) and the Government Order dated 08th October, 2015, will not be paid salary from 30th June, 2015 till their rejoining is arbitrary and unreasonable. When the Government itself had issued an order dated 08th October, 2015, there was no justification to issue the impugned order dated 02nd May, 2017, which is contrary to the law laid down by this Court in Ramesh Chandra Tiwari (supra). As noted above, the Division Bench has declared the Government Order dated 15th June, 2015 illegal.
Regard may be had to the fact that on the basis of the said order, the petitioners were denied sessional benefits. Once the said order was set aside, the petitioners became entitled to continue. The respondents have also allowed the petitioners to rejoin their position.
Therefore, in the said background and on a careful consideration of the entire facts and circumstances of the case, I am of the considered view that the impugned Government Order dated 02nd May, 2017 has to be set aside and is accordingly set aside. The petitioners are entitled for their salary from 30th June, 2015 till the date of their rejoining. Ordered accordingly.
Thus, the writ petition stands allowed.
No order as to costs.
Order Date :- 19.8.2017 sailesh/SKT/-