Saran Kumar Gaur & Ors Vs. State of Uttar Pradesh & Ors  INSC 188
(13 August 1991)
Rangnath (Cj) Misra, Rangnath (Cj) Kuldip Singh (J)
1991 SCR (3) 559 1993 SCC Supl. (2) 749 JT 1991 (3) 478 1991 SCALE (2)350
Law: College teachers--Strike Called back to duty--Not joining within
time--Alternate teachers appointed--Entitlement to salary--Applicability of the
principle 'No work-No pay'--Teachers absorbed back in the same
institution---Seniority--Credit to be given for the interregnum.
appellants, teachers in a minority institution fully financed by State, went on
a strike and when they were called hack to duty, they did not return within
time, lead- ing to appointment of alternate teachers. They approached the High
Court for their absorption. The High Court having dismissed the matter, the
aggrieved teachers have preferred the present appeal by special leave. By
interim orders, this Court has already directed the absorption of the teachers
in different institutions. Seven teachers have been absorbed in the very same
institution. It was contended on behalf of the seven teachers that they should
be paid salary for the period of gap before their absorption and that their
senior- ity should be maintained. The alternate teachers who worked in the interregunum
contended that they should be paid salary for the period they worked.
the appeal, this Court,
1. One set of teachers have actually worked while the other set has not. The
teachers had gone on strike and when they were called hack to duty a group of
teachers including the seven did not return within time and that. led to
appointment of alternate teachers. It is clear from the material on record that
the alternate teachers did work during the period. It may not be appropriate to
hold that they are not entitled to remuneration for the work done.
the institution has admittedly not received any benefit of service during the
relevant period from the other set viz. the seven teachers who were absorbed
later. On the principle that. when work is not done remuneration is not to be
paid, no direction is given for payment. If they are entitled to salary, it is
open to them to take appropriate proceeding to claim the same. It does not 560
finally close their clam against the State or the institu- tion. The alternate
teachers who have worked and if they have not been paid, they should be
disbursed the salary due to them. Then iS some contest as to whether they are quali-
fied or not. On the basis of the facts on record the teach- ers appear to be
qualified and that question should not be reopened. In regard to two teachers Who
were prepared to walt to take their chance, they would not be paid any remu- neration.
Seven teachers who have now been provided jobs under the orders of this Court
and those who were waiting to take their Chance should be equated for the
common period of no Work [562F-H, 563A-C]
However, the seven teachers who have got absorption should be given their
seniority for the period they were out of employment. The Director of Public
Instruction is re- quired to take this order into account and given them credit
for seniority for the period they were out of employment on the deemed
situation. that they had worked. This would not entitle them to salary unless
they are otherwise entitled to the same. [563D]
APPELLATE JURISDICTION: Civil Appeal No. 2 145 of 1988.
the Judgment and Order dated 3.5. 1988 of the Allahabad High COurt in C.M.W.P.
No. 13143 of 1985 Avadh Behari Rohatgi S. Markandeya, G. Seshagiri Rao and Ms.
C. Markandeya for the appellant.
Dikshit, Pankaj Kalra, Ejaz Maqbool, Dileep Tandon, J.M. Khanna and S.K. Jain
for the Respondents.
following Order of the Court was delivered:
appeal by special leave is against the order of the Allahabad High Court. The
subject matter of dispUte is in regard to 11 lady teachers of Saghir Fatima Mohammadia Girls Inter College, Agra. This is claimed to be a minority insti-
tution but fully financed from the State resources.
interlocutory orders made from time to time the real litigative part of has
already been attended to,. We would refer to our order of 2nd May, 1991 where this court ob- served
"We are happy to find that pursuant to our order made earlier in this case
Smt. Kamla 561 Mehra, Smt. Saran Kumari Gaur and Swaliha Begum have been given
postings and they have already reported to duty. So far as petitioners Km. Asifa
Rizvi, Km. Sayyada Rizwani and Shafiqa Begum are concerned, Ms. Dikshit points
out that though there is some possibility of adjusting them in other
institutions it is a time-taking process inasmuch as under the scheme
government have no power to impose teachers from out side on the administration
of the institutions.
think it appropriate in the interest;of justice to require the Director of
Secondary Education to require such of the colleges where appropriate vacancies
are available to adjust these three teachers. To so adjust them the institu- tions
shall take our present order as a direction to adjust them and as and when
called by the Director of Secondary Education it shall be implemented. Failure
to comply shall be teated as violation of our direction.
as Smt. Sudha Dixit is concerned, we gather from the representation made at the
Bar' that a vacancy in the spe- ciality is about to arise in the coming month.
If that be so, Ms. Dikshit has agreed to see that she is so posted.
as two remaining teachers are concerned, they do not agree to go out of the
institution and Ms. Dikshit points out that in their subjects there is no
vacancy. In these circumstances, they have choice to wait indefinitely till
vacancy occurs without.claiming salary till employment. If this is not
acceptable to them the order of termination already made shall be taken as
final and conclusive and their petition shall standdismissed." We are told
that the vacancy which was contemplated in regard to Smt. Sudha Dixit has not
worked out for her. She had been offered a posting in Mathura, away from. the insti- tution where
she had been working and she did not choose to go there. Mr. Markandeya
appearing for her, however, does not agree with this statement made by others
and says that she volunteered to go but was informed that the institution had
not taken a decision to keep her and she was. to be intimated as and when a
decision was taken. No intimation has been received by her as yet.
the two remaining teachers referred to in our order dated 2nd May, 1991, it
appears that one has already been absorbed in Aligarh and the. remaining
teacher, Khaliq Jahan, is holding a lower post for the time being and Ms. Dikshit
has told us that she has already 562 suggested to the Government that as and
when a vacancy arises she should be accommodated in a post according to her
entitlement So far as Smt. Sudha Dixit is concerned, we think 'a situation has
now arisen where the Director must implement our order. We had clothed him with
adequate powers by our order of 2nd May, 199 1 and he must under that authority 'proceed to enforce his
order. The Director should provide employment to Smt. Sudha Dixit in terms of
the assignment made and the institution where she has been directed to join
should accept the teacher. Beyond that we do not intend to say anything at this
leaves the only, remaining question to be dealt.
i.e., as to how the period during which the seven of the teachers who have been
absorbed in that very institution should be dealt with. It is said that during
this gap period of seven years another set of teachers had been working who are
represented before us by Mr. Kalra in these proceedings, It is the submission
of the appellants that the seven teach- ers who are substituted did not possess
the requisite quali- fication and reliance is placed on Section 16(FF) of the
Act to support the submission that they are not entitled to salary for the work
done. SimultaneouSly the seven' teachers have contended through their counsel
that they had been visiting the institution everyday and had been leaving their
attendance with the appropriate authority, therefore, they should be entitled
is not a proceeding in ,which we have to decide who has to be paid the salary.
But as things stand one set of teachers have actually worked while the other
set for reasons which are germane to appropriate management has not, We are
told that teachers had gone on strike and when they were called back to duty a
group of teachers including the seven did not return within time and that led
to appointment of alternate teachers. We must point out that this again is not
an appropriate matter to be decided by us. We are, however, satisfied from the
material placed before us that the 11 teachers who are represented by Mr. Kalra
did work during the period. It may not be appropriate, to hold that they are
not entitled to remuneration for the work done. The institution had admittedly
not received any benefit.of service during the relevant period from the seven
teachers on the appellants' side.
principle that when work is not done remuneration is not to be paid, we dispose
of the present appeal without giving any direction for payment to them. If they
are entitled to salary, it is open to them to take appropriate proceeding to
claim the same, 563 We do not finally close their claim against the' State of
the institution. But so far as teachers represented by Mr. Kalra are concerned,
if they have not been paid, they should be disbursed the salary due to them.
There is some contest as to whether they are qualified or not. On the basis of
the facts on record we are of the view that they appear to be qualified and
that question should not be reopened.
draw support for our view for non-payment to the appellants from our' interim
order of 7th February,
1990. In regard to two
teachers who were prepared to wait to take their chance, we indicated that they
would not be paid any remuneration. Seven teachers who have now been provided
jobs under our orders and those who were waiting to take their chance should be
equated for the common period of no work.
are, however, of the view that seven teachers who have got employment should be
given their seniority for the period they were out of employment. We
accordingly require the Director of Public, Instruction to take our order into
account and given them credit for seniority for the period they were out of
employment on the deemed situation that they had worked, Our doing so, we again
repeat, would not entitle them to salary unless they are otherwise entitled to.
This disposes of the appeal.
sorry that we entertained an appeal of this type by special leave and got
dragged into a dispute which should not have been brought upto this court.
Appeal disposed of.