SUPREME COURT OF INDIA
Principal, Ayurvedic College and Others
Vs
Sushil Chandra Misra and Another
Appeal (Civil) 6527 of 2005
(Dr. Ar. Lakshmanan and L. S. Panta, JJ)
23.05.2006
DR. A.R. LAKSHMANAN, J.
Heard both sides.
The appeal is directed against the final judgment and order dt.07.04.2004
passed by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in
Writ Petition No.3920 of 1989 whereby the High Court has dismissed the Writ
Petition filed by the appellants herein. The first appellant is the Principal,
Ayurvedic College, District Pilibhit (U.P.) and the second appellant is the
Director of Ayurvedic and Unani Services, Lucknow (U.P.). The third appellant
is the State of U.P.through Collector, Pilibhit, District Pilibhit (U.P.). The
respondent No.1 was appointed as Science demonstrator in Lalit Hari Ayurvedic
college, Pilibhit (U.P.). In the year 1966, the District Magistrate was
appointed as a Receiver in the College. Thereafter, all the appointments and removal
of teacher was required to be done by the Receiver, i.e., the District
Magistrate. On 19.11.1967, respondent No.1 was subsequently appointed as
lecturer in science subject by the District Magistrate. He completed his
probation of two years and was confirmed as a lecturer in science subject. The
science section in the college was closed down in the year 1971-1972 and,
thereafter, the post of lecturer in science in the college was also abolished
and the respondent No.1 was declared surplus.
The services of respondent No.1 was terminated vide order dt.06.06.1972. The
order of termination was communicated to the respondent No.1 by the District
Magistrate who was the Chairman of the college at that time. The termination
order was issued on 06.06.1972. Against the termination order dt.06.06.1972,
the respondent No.1 made a representation on 28.08.1972 and the same was
allowed on that date by the Vice-Chancellor. Thereafter, the order
dt.28.08.1972 of the Vice-Chancellor along with all the papers were sent to the
Government for consideration on 10.10.1974.
The said college was taken over by the Government vide Notification
No.5915-Sec-9/Five 470/72. The said Notification contained a clause 7A for
obtaining option from the teacher and the staff to join government services and
if the option is not received within the time, their services will stand
terminated. In para 7B, the responsibility to fulfil the condition is on the
employee otherwise the services of the previous employment will not be counted
towards pension etc. In the instant case, according to the appellants, no such
option was given by the respondent No.1 within the stipulated time. The
services of respondent No.1 was again terminated as he had not given any option
to join the government service.
Vide order dt.02.07.1977, the Government terminated the service of the
respondent No.1 as he did not give his option and further directed the
appellants to pay the respondent No.1 for the period starting from 06.06.1972
to 09.01.1975. The termination order was set aside and the respondent No.1 was
paid the arrears of salary from 06.06.1972 to 09.01.1975 amounting to Rs.14,
901.50 on 19.02.1979.
The respondent No.1 made a claim petition to the Tribunal in the year 1981
against the order of termination communicated to him on 02.07.1977. The
appellants filed written statement denying the claim. The Tribunal by order
dt.30.11.1987 allowed the claim petition as prayed for. Aggrieved by the
judgment, the appellant- State of U.P. filed a Writ Petition No.3920/1989 which
was contested by the respondent No.1. The Writ Petition was allowed by the High
Court on 04.04.1997. The respondent No.1 filed SLP(C) No.1668/1989 and this
Court remanded the matter back for reconsideration on 16.10.1998. The
concluding portion of the Order passed by this Court is reproduced as under:-
"The order of the High Court is cryptic and states no reason. In fact,
the matter has been dealt with in a cursory manner which is not retrospective
of the judicial approach expected of the High Court. Consequently, the appeals
are allowed, the judgment and the order dated 04.04.1997 passed in writ
petition (C) No.3920/89 as well as the order dated 13.10.1997 passed in C.M.
Application No.11204(W) in W.P.(C) No.3920/89 are set aside and the cases are remitted
to the High Court for a fresh consideration in accordance with the law. It is,
however, made clear that the salary for the period reckoned from the date on
which services were terminated till the date of Tribunal's judgment, shall be
paid to the appellant, within three months. There will be no order as to
costs."
After remand, the High Court again dismissed the Writ Petition filed by the
appellants herein on 07.04.2004. Aggrieved by the said order, the appellants
have come to this Court by filing the Special Leave Petition. Leave was granted
on 24.10.2005. This Court has also stayed the judgment of the High Court until
further orders.
We have heard learned counsel appearing on behalf of the appellants and the
respondents.
Mr.Pramod Swarup, learned counsel appearing on behalf of the appellant
submitted that the pendency of the representation is not a valid ground to
condone the delay of four to five years in filing the claim petition before the
Tribunal and that the High Court also did not consider that the college was
taken over by the Government on 10.10.1974 and that the information was
published in the official gazette and, therefore, the respondent No.1 shall be
deemed to have knowledge of taking over of the college by the Government as
well as requirement of exercising option. He further submits that the High
Court has committed an error in holding that the claim was filed within time
although the fact on record was that the cause of action had accrued to the
respondent No.1 as far back as on 02.07.1977 when his services were terminated
with effect from 10.10.1975. However, it is pertinent to notice that the plea
of limitation has not been urged before the High Court. This apart, there is no
finding on the issue of limitation recorded by the High Court. Concluding his
argument, Mr.Pramod Swarup submitted that the respondent No.1 has already
received the salary for the entire period from the date of termination till the
date of the Tribunal's order dt.30.11.1987 without doing any work and, therefore,
if the order of the Tribunal and as affirmed by the High Court has now to be
implemented, the appellant/the State Government has to pay lakhs of rupees by
way of salary to the respondent without extracting any work from the respondent
herein.
It is true that both the parties are litigating in court for all these years.
Therefore, the delay cannot be attributed to either parties. Therefore,
applying the principle of 'no work no pay', we are of the opinion that 50% of
the salary if ordered to be paid to the respondent No.1 it would meet the ends
of justice. We, therefore, direct the appellant to pay to respondent No.1 the
salary from 30.11.1987 till the date of superannuation (the exact date is not
known).
We also make it clear that the respondent No.1 would be entitled for the salary
of lecturer during the relevant period in question. We also however make it
clear that he would not be entitled to make a claim by way of salary etc. for
any further promotion etc. The Government may also consider whether any pension
is payable to the respondent No.1 because the college is now taken over by the
State Government. The Government is directed to consider the same and pass
appropriate orders accordingly.
The Government shall pay the salary to the respondent within three months from
today. The Government may also consider the question of payment of pension
within the above said period. He is not entitled for reinstatement as directed
by the Tribunal or the High Court since he has already retired on superannuation.
The appeal stands disposed of in the above terms. There shall be no order as to
costs. The order passed by the Tribunal as affirmed by the High Court is
modified accordingly.