Kedar Nath vs Mukhya Adhishanta, Gurukul Maha Vidyalaya & Another

Manoj K. Tiwari, J

Gurukul Maha Vidyalaya, Jwalapur, Haridwar is a Sanskrit School, which has various wings. Varanasi Wing of the said school alone is getting grant-in-aid from the State Government, while other wings are not getting any financial aid from the State Government.

Petitioner was appointed as Assistant Karyavahak in the un-aided wing of the aforesaid school on 12.02.1986. His services were terminated vide order dated 28.05.1990. Petitioner filed writ petition, challenging his termination, before Hon'ble Allahabad High Court, which upon transfer to this Court was re-numbered as WPSS No. 6088 of 2001 and was decided by coordinate Bench of this Court vide judgment dated 17.04.2010. Operative portion of the said judgment is extracted below:-

"In the present case, the petitioner has filed the present writ petition for the enforcement of the legal obligations which is cast upon the respondents. It is settled law that the services of an employee cannot be terminated unless the principles of natural justice is followed. From the record, it is clear that the petitioner was appointed in the year 1986 and had worked for four years before his services was terminated. The appointment letter does not indicate that the petitioner was appointed on a fixed term or on a contract basis. On the other hand, it indicates that the petitioner was appointed on a substantive post. Consequently, the impugned order of termination could not have been passed without issuing a notice or affording an opportunity of hearing. Since the principles of natural justice was not complied with, the impugned order cannot be sustained and is quashed. The writ petition is allowed. The respondents are directed to reinstate the petitioner. A prayer has been made for payment of backwages since an interim order was passed staying the termination order. It has been further been stated that inspite of the stay order, the petitioner was not reinstated. In the light of the circumstances that has been brought on record, since the petitioner has not worked during this period, he is not entitled for any backwages."

Mr. Shashikant Shandilya, learned counsel for respondent Nos. 1 & 2 submits that in view of the aforesaid judgment, petitioner was offered reinstatement on the post of Assistant Karyavahak vide order dated 04.05.2010. Since petitioner did not turn up for joining, therefore, one letter dated 17.05.2010 was again issued to him by respondent No. 1, asking him to join duties, as Assistant Karyavahak within one week, failing which it shall be deemed that he is not interested in resuming duties.

Per contra, Mr. Pradeep Chamiyal, learned counsel for the petitioner submits that petitioner was entitled for reinstatement on the post of Clerk, while the Management had offered him the lower post of Assistant Karyavahak, therefore, petitioner had filed CLCON No. 211 of 2010. However, the said contempt petition was dismissed on 14.05.2012 by holding that the order passed by writ court has been complied with. Subsequently, the Management of the concerned School issued one letter dated 31.03.2012, whereby petitioner was reinstated on the post of Clerk. Petitioner joined duties as Clerk immediately thereafter and after serving as Clerk for few months, he attained the age of superannuation and as such retired on 09.01.2013.

In the present writ petition, petitioner has claimed salary for the post of Clerk between 17.04.2010 till completion of age of superannuation i.e., 09.01.2013 and he has also sought retiral benefits for the post of Clerk.

Mr. Shashikant Shandiliya, learned counsel for respondent Nos. 1 and 2 submits that since the concerned wing of the school, in which petitioner was appointed, was not receiving any aid from the State Government and was a self-financed institution and there is no provision for pension to employees of the said wing, therefore, petitioners claim for pension is totally misconceived.

It is settled position in law that one who has served in a pensionable establishment alone is entitled to pension. Since petitioner never served in a pensionable establishment, therefore he is not entitled to pension.

Learned counsel for the respondents further submits that since petitioner had not served in the institution between 17.04.2010 to 31.03.2012, therefore, he is not entitled to any salary on the principle of "No Work No Pay".

This Court finds substance in the submission made by learned counsel for the Respondent Nos. 1 & 2. Petitioner was offered reinstatement on the post of Assistant Karyavahak on 04.05.2010 and it was the petitioner, who declined to accept the offer made by the Management, therefore, petitioner cannot claim salary for the period during which he never served.

In such view of the matter, claim staked by the petitioner for arrears of salary between 17.04.2010 to 1.04.2012 is unsustainable.

Petitioner has been paid salary for the post of Clerk from 01.04.2012 to 09.01.2013, therefore, his prayer for salary during this period cannot be granted. In such view of the matter, there is no scope for interference in the writ petition. Accordingly, the writ petition is dismissed.

However, dismissal of this writ petition will not preclude the petitioner from staking claim for salary for the period between 17.04.2010 to 01.04.2012, before appropriate forum.