Principal,Ayurvedic College & Ors Vs. Sushil Chandra Misra & Anr  Insc 337
(23 May 2006)
& Lokeshwar Singh Panta Dr.Ar Lakshmanan, J.
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.
services of respondent No.1 was terminated vide order dt.06.06.1972.
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.
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.
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.
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.
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.
Court has also stayed the judgment of the High Court until further orders.
have heard learned counsel appearing on behalf of the appellants and the
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.
true that both the parties are litigating in court for all these years.
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).
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
Government is directed to consider the same and pass appropriate orders
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
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