Shyam Narain Upadhyaya vs Director of Education and Others

D.K. Seth, J.—The writ petition was dismissed as infructuous today but before the said order could be signed, the matter was mentioned, therefore, the said order is not signed and the matter is taken up for hearing.

In the present case fact given more or less is admitted. The Petitioner was appointed as Assistant Teacher in Sanskrit in Junior High School on 1.7.1953. The school was upgraded in 1969 as high school and the Petitioner was all along teaching in High School in C. T. Grade. in March, 1974 the school was brought within the grant-in-aid scheme. The Petitioner''s salary was estopped from April, 1974 on the ground that his appointment was not approved. The Petitioner made representation on 2.9.75 and contended that since he was; teaching from 1953, he is entitled to exemption from the requirement of B.Ed. or B. T. qualification. By an order dated 21.8.78 (Annexure II), the District Inspector of Schools had disposed of the said representation holding that since the Petitioner was appointed before the U.P. Higher Education Secondary Act, 1958, therefore, there is no question of granting approval to his appointment. His appointment having been made in 1953, he was qualified according to the qualification prescribed at that point of time, therefore, he should be treated to have been appointed permanently according to the Rules. On this ground the Petitioner was directed to be reinstated with immediate effect from the date of his resumption of duties on the condition that he would not be entitled to any salary for a period during which he did not work and that his pay should be fixed according to the rules on the basis of the pay which he was receiving since before and that the period during which he did not work shall be treated as leave without pay. Against the said order the Petitioner made a representation on 9.9.1978 immediately after joining his duties which was turned down by an order dated 8.10.79. Thereafter he made another representation dated 19.10.1979, in respect whereof reminder was sent on 16.12.1982 (Annexure IV). The said representation was ultimately decided by the said order dated 7.3.1983 which has since been impugned in the present petition.

Mr. Ramendra Asthana, learned Counsel for the Petitioner contended that the Petitioner is in no way responsible for the situation. Though there was no ground for termination of services of the Petitioner, yet the Petitioner''s services were terminated wholly on non est ground. Since on the face of legal position, there was no doubt of dispute about the permanency of the Petitioner''s service, his services have not been terminated on account of any fault of his, therefore, he cannot suffer any penalty on account of certain wrong action on the part of the concerned Respondents. The Respondents having been terminated the services of the Petitioner wrongly cannot take advantage of its own wrong. According to him, even if assuming but not admitting, the Petitioner did not attend his duty even then he is entitled to pay during the said period. He also did not contends that during the entire period Petitioner had been teaching in the institution but he was not paid his salary and was not allowed to sign the attendance register.

Mr. V.K. Singh, learned Counsel for the Committee of Management, Respondent No. 4 disputes that the Petitioner had attended the school and taught the students during the said period and that he was not allowed to sign the attendance register as alleged. He contends that since the Petitioner did not work during that period, he was not entitled to any salary. He further contends that such as the condition in the order of reinstatement pursuant to which the Petitioner had joined, therefore, having accepted the order, he cannot question the same on the ground that he does not intend to accept the other part of the order. According to him his acceptance of the order by means of reinstatement he is estopped from challenging the other part of the order.

Mr. Sabhajit Yadav, learned Counsel for the Respondents No. 1 to 3. on the other hand, adopted the argument on the same ground and contended that on the principle of no work and no pay, the Petitioner cannot be paid his salary.

Having heard learned Counsel for the parties, it appears from the facts disclosed that for the termination of service the Petitioner is in no way responsible. The ground on which the service of the Petitioner was sought to be terminated having been found, in the order contained in Annexure II, as non est it is not open to the Respondent to deny the benefit thereof particularly when the Petitioner was prevented from performing his duty by reason of overt act on the part of the Respondent which by no means they could have done on the basis of legal proposition which is clear on the face of the record. The Petitioner was appointed in 1953 on the basis of qualification then prescribed and as such had been holding permanent post on the basis of the prescribed qualification prevailing at that point of time, when he was appointed. The subsequent prescription of qualification cannot take away the right of the Petitioner. Then again since he was working from before the coming into the operation of 1958 Act, there being no question of granting approval in his case, the termination on the ground of absence of approval is wholly perverse. In the facts and circumstances the action taken by the Respondents being wrong in law, no advantage can be allowed out of such action of the Respondents for the purposes of deriving benefit to the form of non-payment of salary to the Petitioner. If such a situation Is brought into in that event It would amount to inflict punishment on the Petitioner on account of no fault on his part. Whether he has worked or not is immaterial, since by reason of termination the Petitioner was not to be allowed to work. If he has worked then there would not be any doubt that he would be entitled to be paid. But even if he has not worked till then he may not be made to suffer for any wrong action on the part of Respondents. Therefore, the stipulation in the order of reinstatement that he would not be paid for the period during which he has not worked appears to be wholly arbitrary and unreasonable or in other than words perverse.

The contention that Petitioner having accepted the order of reinstatement is precluded or estopped himself from challenging the other part of the order on the condition under which he has been reinstated does not appear to be sound. So far as the order is concerned, it appears to be not based on sound principle of law. In the circumstances a person who has been separated from service and had remained without pay for long time had no option but to accept the reinstatement together with all the conditions under compulsion. But the fact remains that immediately in September, 1978 he had made representation. The making of representation appears to be within the reasonable time from the date of the order which is dated 21.8.1978. From the face of record, the refusal of the first representation does not appear to be based on any sound reason and is not a speaking order. The subsequent representation which was also made within the reasonable time and having been disposed of on 7.3.1983, it cannot be said that the Petitioner is not espousing his cause and that he had accepted the reinstatement without any protest. Since the Respondent had responded to the representation and had rejected the same on 7.3.1983, it cannot be said that there was any delay and laches on the part of the Petitioner and that he remained silent for a long time of five years and waited till he had retired as contended by Mr. Singh. In the circumstances, his cause of action arose on the rejection of the representation on 7.3.1983 and the present writ petition was moved some times in August, 1983 well within reasonable time. Therefore, to my mind, the contention that the Petitioner is estopped from espousing his cause does not stand to be reasonable inasmuch as the poor Petitioner was pitted against the powerful employer added with the fact that the Petitioner was subjected to penury by reason of non-payment of salary for over long four years wholly due to wrong action on the part of the Respondent even if the said wrong action is sought to be explained and to have been undertaken through misconception, the same would not improve the situation for the reason that the Petitioner did not have any contribution to the same and it is the employer who was responsible for his own misconception.

For all these reasons, this writ petition succeeds and is allowed. A writ of mandamus do issue accordingly commanding the Respondents to pay the Petitioner the salary for a period during April, 1974 till August, 1978 at the rate at which his pay was fixed in terms of the order, contained in Annexure II, namely as on September, 1978, together with interest at the rate of 18% per annum from 19.8.1978 till the date, the same is paid as early as possible preferably within six months from production of a copy of this order.

The writ petition Is allowed with costs to be paid by the State.