Court No. - 2
Case :- WRIT - A No. - 30694 of 2009 Petitioner :- Smt. Ashok Kumari And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Vivek Saran,Archana Tyagi,Ashok Khare,C.K. Mishra,N.K.Tripathi,P.K. Tripathi,Pankaj Kumar Tyagi,S.K. Mishra,Siddharth Khare Counsel for Respondent :- C.S.C.,D.S.Pandey
Hon'ble Suneet Kumar,J.
Heard learned counsel for the parties.
The petitioners three in number were working as Assistant Teachers with the respondent-Institutions since 1976-1984 in aided junior high schools recognized by the respondent State Authorities. By the instant writ petition, petitioners are assailing the notice-cum-order passed by the fifth, sixth and seventh respondents calling upon the petitioners to retire at the age of 60 years instead of 62 years.
Contention of the learned counsel for the petitioners is that the age of retirement of teachers of Basic Schools is 62 years as contemplated in Rule 14 of U.P. Recognized Basic Schools, Rules, 1978 (for short, 'Rules, 1978') which was duly amended vide notification dated 25 October 2005.
Reliance has also been placed on the Government Order dated 14 January 2004, wherein, it has been provided that the age of superannuation of Assistant Teachers in Basic Schools, in grant- in-aid, has been raised from 60 years to 62 years. The petitioners also sought information under the Right to Information Act from the third respondent, Basic Shiksha Adhikari, Ghaziabad who has also categorically stated that the age of retirement of basic school teachers is 62 years (page 29 of the writ petition).
In the counter affidavit filed by the State respondents in paragraph 4 it has been stated that the enhanced age is only applicable to the primary schools and junior high schools run by the U.P. Basic Education Board, and is not applicable to basic schools in aid of the State.
On specific query, learned Standing Counsel is unable to show from the Rules, 1978 and the Government Order that the said Rule would not apply to the recognized aided institutions. He admits that the amended provision (Rule 14) of Rules, 1978 on plain reading is applicable to aided basic schools and the petitioners were in employment on the date of amendment i.e. 25 October 2005.
"14. Superannuation. - Every Headmaster or Assistant Teacher of a recognised school shall retire in the afternoon of the last day of the month in which he attains the age of sixty two years, provided that a Headmaster or Assistant Teacher who retires during an academic session, not being Headmaster and Assistant Teacher retiring on June 30, shall continue to work till June 30, following next after the date of retirement and such period of service shall be deemed as extended period of employment."
On plain reading, Rule 14 has been made applicable to all the teachers who were working as Assistant Teachers in the institutions in aid of the State.The stand of the State respondents and the private respondents are contrary to the statutory provision.
It is urged that similar controversy came to be settled by this Court in Smt. Krishna Sharma vs. State of U.P. and others (Writ Petition No. 24442 of 2009) decided on 11 May 2009. The order reads thus:
"Heard Sri Vivek Saran, learned counsel for the petitioner and learned Standing Counsel who represents the respondent no. 1 to 3.
Issue notice to the respondent no. 4 Counter affidavit may be filed within six weeks. Two weeks for filing rejoinder affidavit.
List in the last week of August, 2009 for admission/hearing.
The petitioner is working as an Assistant Teacher under respondent no. 4. The age of superannuation/retirement of Teachers of Primary Schools attached to Junior High Schools is 62 years. The Basic Shiksha Adhikari while engaging a Primary School Teacher of Modi Nagar, Ghaziabad has indicated that the age of retirement of Primary School Teachers of aided institution is 62 years and according to the current policy of the Government, the petitioner ought to have been retired on attaining 62 years of age. Petitioner is being forced to retire on 30th June, 2009. She should have been allowed to continue till 30th June, 2011. The petitioner has a prima facie case in her favour.
Accordingly, the petitioner shall be allowed to continue as Teacher under the services of the respondent no. 4, she shall not be retired on 30th June, 2009 and shall also be paid her salary regularly."
Learned Standing Counsel finally submits that petitioners have since retired, therefore, are not entitled to backwages on the principle of no work no pay.
Submission lacks merit and is accordingly rejected in view of the decision rendered by Supreme Court in the case of Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Limited and others, (2016) 16 SCC 663; the Court held that principle of "no work no pay" cannot be applied where the fault lies with the employer in not utilizing the services for the period. In the instant case the petitioner came to be retired illegally, in violation of Rule, 14, therefore, it cannot be held that the petitioners were at fault, the principle of "no work no pay" would not apply in the present case. It is settled law that when an employee is not allowed to work due to fault of employer/authorities, such person is entitled for salary for the period he has not been allowed to work. The employer cannot deny salary to an employee, who is always willing and ready to work but was not allowed to do so by an act or omission directly attributable to the employer. (Refer : Division Bench decision rendered in the case of U.P. State Road Transport Corporation and another Vs. Prayag Narain Dubey (Special Appeal Defective No. 405 of 2018).
Having due regard to the facts and circumstances of the case and the decision rendered by this Court in Smt. Krishna Sharma (supra), the writ petition is allowed with all consequential benefits. The impugned order dated 21 May 2009 passed by fourth respondent and order dated 13 June 2009 passed by sixth respondent, is set aside and quashed.
The petitioners have since retired, accordingly, the petitioners are entitled to arrears of salary for the two years and consequently are also entitled to arrears of retiral dues including pension upon recomputation at 62 years.
Order Date :- 28.2.2019 S.Prakash