Court No. - 4
Case :- SPECIAL APPEAL No. - 28 of 2008 Appellant :- State Of U.P. Thru' The Secy. Education Deptt & Ors Respondent :- Ramesh Pati Tripathi And Others Counsel for Appellant :- Sanjay Goswami,A.C.S.C.,Addl. C.S.C. Counsel for Respondent :- R.C. Shukla,Ajit Kumar Srivastava,Shashi Srivastava,Vijay Kumar
Hon'ble Bala Krishna Narayana,J. Hon'ble Irshad Ali,J.
Heard Standing Counsel for the State and learned counsel for respondent no. 1.
This special appeal has been filed by State of U.P. challenging the illegality and validity of the judgment and order dated 02.04.2007 passed by learned Single Judge in Civil Misc. Writ Petition No. 21318 of 2004.
From the perusal of record, it transpires that respondent no.1 Ramesh Pati Tripathi filed the aforesaid writ petition before this Court stating therein that the appellant/petitioner was appointed as Principal of the College vide appointment letter dated 20.8.1979 which was approved by the Vice-chancellor, Sampoornanand Sanskrit Vidyalaya, Varanasi (hereinafter referred to as the ''University') vide letter dated 15.10.1979 fulfilling the requirements under Section 31(11) of the U.P. State Universities Act, 1973 (hereinafter referred to as ''1973 Act'). One Sri Yuvraj Singh was elected as Manager of the Committee of Management of the College and in attempt to get his own candidate appointed as Principal of the College, he compelled the appellant/petitioner to resign or to face dire consequences. The appellant/petitioner was also threatened not to approach police authority or to lodge any first information report. The said Manager also succeeded in obtaining appellant/petitioner's resignation forcibly on 20.1.1984, whereagainst the appellant/petitioner made a complaint to the Deputy Director of Education, Chaturth Mandal, Allahabad vide letter dated 20.8.1984. The matter remained pending and neither the appellant/petitioner was allowed to function as Principal of the College nor the resignation was accepted but the said manager got one person appointed as Principal of the College on 7.9.1988 whereagainst the appellant/petitioner approached this Court in Writ Petition no. 20260 of 1988 stating that against the aforesaid action of the Management, he made representations before the Chancellor but nothing was done. The aforesaid writ petition was disposed of vide judgment dated 2.7.1996 as hereinafter :
"Petitioner was a Principal of Sri Brahmeshwar Sanskrit Vidyalaya, Naubasta, Bengoan, District Fatehpur (here in after referred to as the College.) According to the Management petitioner resigned from service and he stands removed pursuant to his resignation after the approval of the Vice Chancellor of Sampurnanand Sanskrit Vishwa Vidyalaya, Varanasi (herein after referred to as University) Against the aforesaid order of the Vice Chancellor petitioner has filed a representation before the Chancellor under Section 68 of the U.P. State Universities Act. In paragraph 24 of the writ petition it has been stated that the said representation has not been decided so for. Learned counsel for the petitioner at the bar has also made a statement that the representation is still pending.
We have heard the learned counsel for the petition.
As the petitioner has already availed of the alternative remedy of representation before the Chancellor, we do not think it fit and proper to interfere with the matter at this stage.
However, in view of the facts and circumstances of the case, petitioner's representation is liable to be decided at the earliest.
This writ petition is accordingly disposed of with the observation that the chancellor will decided the petitioner's representation at the earliest. Petitioner will file proof of having filed the representation before the Chancellor along with the certified copy of this order within a month from today.
July 2, 1996 Sd. R.A . Sharma Sd. D.K. Seth"
Consequently, the Chancellor decided the matter vide order dated 13.2.1998 wherein it was observed that as per the comments sent by the University, the alleged resignation of the appellant/petitioner was never approved by it and Management was also restrained from not holding any selection for appointment to the post of Principal. Therefore, no cause of action survive to the appellant/petitioner since neither his resignation has been accepted nor any fresh selection for appointment to the post of Principal has been taken by the Management and, accordingly, the representation was disposed of. Consequently, the matter was reconsidered by the Management and vide its resolution dated 5.1.2003, it held that the appellant/petitioner was validly appointed by the College and should be allowed to function as such and should also be paid salary. The appellant/petitioner, therefore, was allowed to function as Principal on 1.4.2003 from which date he again started working as such. However, since he was not paid any salary from January 1984 onwards despite the fact that neither his service was terminated nor his resignation was approved in accordance with provision of the statute, therefore, claiming salary of the aforesaid period, a representation was made by the appellant/petitioner on 5.2.2003 to the Inspector, Sanskrit Pathshala, U.P. Allahabad who referred the matter to the Director for guidance vide his letter dated 2.4.2003 wherein he also stated that the resignation of the appellant/petitioner was obtained forcibly though he used to come to the College regularly but was not allowed to sign attendance register. Since no further action was taken, the management also sent a letter dated 7.9.2003 to District Inspector of Schools, Fatehpur recommending for payment of salary to the appellant/petitioner. The appellant/petitioner also sent a representation dated 27.4.2003 to the Deputy Director of Education (Sanskrit), Directorate of Education, Allahabad. Whereafter the aforesaid writ petition has been filed.
Before the Writ Court, the petitioner/respondent contended that neither he was paid salary since January, 1984 and onwards nor even after he was allowed to join in the College on 1.4.2003 although he was paid current salary and hence the action of the respondents was illegal, arbitrary and violative of Articles 16 and 21 of the Constitution of India.
The petitioner/respondent also submitted that the committee of management had compelled him to submit resignation on account whereof he could not render any service and in this matter the respondent nos.1 to 4 had no role and consequently, no responsibility lies upon them for payment of salary to the petitioner/respondent. Further the Director of Education vide letter dated 29.9.2004 informed the Government about entire facts and sought guidance for further action from the State Government.
The respondent no. 4 filed a separate counter affidavit in the writ petition sworn by Sri Vijai Shankar Misra, Inspector, Sanskrit Pathshala, U.P. Allahabad stating that power to make decision in respect to payment of salary vests in Deputy Director of Education (Sanskrit), Directorate of Education, U.P. Allahabad and, therefore, he has nothing to do in this matter. The University has also filed its counter affidavit stating that the College is not affiliated with the University but presently is affiliated with U.P. Secondary Sanskrit Board. Since the responsibility has been shifted by the various authorities to one or another, the Deputy Director of Education (Sanskrit) Allahabad has also filed a supplementary counter affidavit purporting to have been filed on behalf of respondent no. 2, sworn by Sri Vijai Shankar Mishra, Deputy Director of Education (Sanskrit), Directorate Allahabad, stating that the appellant/petitioner has joined the institution after 20 years illegally without any sanction of leave of such a long time and without seeking any permission from the competent authority. Therefore, the respondent nos. 1 to 3 are not responsible for payment of salary to the appellant/petitioner during the period of his absence as well as after his joining the College. Another supplementary counter affidavit has been filed by respondent no. 5 stating that the then Manager, Sri Yuvraj Singh was responsible for not allowing the appellant/petitioner and as soon as he came to the office, the appellant/petitioner was allowed to join and work. It is further stated that the respondent nos. 2 and 3 have withheld salary of the appellant/petitioner without any rhyme or reason, though he has not been terminated in accordance with law and, therefore, they are liable to pay salary. Further After joining of the appellant/petitioner, he ought to have been allowed his salary but the respondents, educational authorities, have not paid the same despite several attempts by the Management. The University has filed supplementary counter affidavit sworn by Sri Vidyadhar Tripathi, Registrar stating that as per the record of the University, the appellant/petitioner joined service on 20.1.1984 and the said resignation was approved by the Assistant Inspector, Sanskrit Pathsahala, U.P. Allahabad. Thereafter, the University nominated specialists for selection to the post of Principal under Statute 16.11(1) of the Statute of the University in the year 1988 but when the petitioner filed writ petition no. 20260 of 1988, the University took decision not to proceed with the aforesaid selection and also not to grant any approval till the matter is decided. It has also filed copy of the order dated 21.2.1977 sent by the University to the Hon'ble Chancellor giving facts of the case in reference to the appellant/petitioner's representation filed under Section 68 of 1973 Act, which was required to be decided by this Court vide judgment dated 2.7.1996 passed in the above writ petition.
A counter affidavit was filed by respondent no. 3 also sworn by Sri Shiv Sewak Singh, posted as District Inspector of Sanskrit Pathshala, Fatehpur stating that he is only the disbursing authority of salary of sanctioned posts on the direction of the Deputy Director (Sanskrit) Shiksha Nideshalaya, Allahabad and the actual control lies with Deputy Director (Sanskrit), Nideshayala and Inspector of Schools, Sanskrit Pathshala, U.P. Allahabad. Since, no directions in regard to payment of salary has been issued by the respondent no. 2, therefore, no action has been taken by him. However, he has also annexed a copy of the letter sent by the respondent no. 2 enquiring from respondent no. 3 as to whether after disallowing appellant/petitioner from working, any other Principal was appointed in the College, and whether he was paid salary for the period prior and after 1984, whether he was gainfully employed from 1984 and thereafter, whether he has joined on 1.4.2003 and what was the justification for allowing him to join after such a long time. The Deputy Inspector of Schools has submitted pointwise reply, the copy whereof has been filed as Annexure-2 to the said counter affidavit.
Petitioner/respondent filed rejoinder and supplementary rejoinder affidavits reiterating his averments stated in the writ petition. However, in respect to the supplementary counter affidavit filed on behalf of the University, he filed supplementary rejoinder affidavit annexing copy of his letter dated 21.1.1984 which is addressed to Up-kulpati of the University pointing out that the resignation had been obtained by the Manager of the College forcibly and, therefore, the same may be disapproved. He has also annexed copy of the order dated 19.1.1985 sent by the University to the petitioner referring to the Manager's letter with respect to the petitioner's resignation enquiring as to whether he had submitted any resignation and if so, to send its original copy and also file an affidavit that he had submitted the said resignation. Another letter dated 2.5.1985 was filed as Annexure SRA-3A to the supplementary rejoinder affidavit sent by the University to Inspector (Sanskrit Pathshala) stating that the petitioner had claimed that his resignation had been obtained forcibly though the management claimed that after submitting resignation, he is absent, therefore to clarify the factual position after physical verification of the situation prevailing in the College. He has also filed copy of his letter dated 18.8.1988 in respect to various irregularities committed by the Management with regard to the petitioner's alleged resignation requesting the University not to take any action on the aforesaid resignation. The petitioner/respondent also filed a supplementary affidavit annexing a letter dated 15.10.2004 issued by the District Inspector of Schools, Fatehpur directing the Manager of the College to make payment of salary to the petitioner from 1984 to March 2003 from its own resources since it was the Management who was responsible for not permitting the petitioner to work during the aforesaid period. So far as current salary from 1.4.2003 is concerned, it stated that further action would be taken after decision of Deputy Director of Education (Sanskrit) U.P. Allahabad.
A counter affidavit was filed dated 7.9.2006 sworn by Sri Sanjay Yadav, Deputy Director (Secondary Education) 4th Region, Allahabad stating that as per the Government Order dated 10.2.1987, the authority of payment of regular monthly salary to teachers of Sanskrit Schools/Colleges vests in Director of Education, U.P., Allahabad, which is to be implemented by the Director of Education, Sanskrit, Directorate of Education, U.P., Allahabad. A copy of the Government Order dated 10.2.1987 was filed as Annexure CA-2 to the counter affidavit. It was further stated that the appropriate decision in the matter of the petitioner has to be taken by the Deputy Director of Education, Sanskrit, Directorate of Education, U.P. Allahabad and not by the respondent no. 2.
Another counter affidavit dated 8.9.2006 sworn by Sri Vijay Shankar Misra, Deputy Director of Education (Sanskrit), Directorate, Allahabad was filed stating that the College is affiliated to University and is governed by the provisions of 1973 Act and the Statute framed thereunder, namely, First Statute of 1978. Rule 16.17 Part-2 of the Statute provides that a teacher can proceed on leave for maximum period of continuous five years leaving the leaves granted due to long illness. It is said that the petitioner was absent from premises of the School without leave from 1.4.1984 to 31.3.2003,i.e., about 19 years and more. The Principle of ''no work no pay' is, therefore, applicable and the petitioner was not entitled for the payment of any salary for the period he remained absent from School premises.
Learned Single Judge after considering the arguments advanced before him by the learned counsel for the parties and thoroughly scrutinizing the material on record, allowed the writ petition by the impugned order holding as hereunder:
1. That the petitioner/respondent was substantively appointed Principal of the College whose services could not be terminated under the Statute without prior approval of the Vice Chancellor of the University and it is nobody's case that his services were ever terminated.
2. The committee of management of the College in a wholly illegal manner did not permit him to discharge his duties from 1.7.1984 till 30.3.2003 for which the petitioner/respondent cannot be held responsible as he was throughout ready to serve the institution
3. Therefore, neither the principle of "no work no pay" would apply against him nor the petitioner/respondent can be denied salary for the period he was prevented by the management from discharging his duties and non payment of salary to the petitioner is illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India.
4. It cannot be said that in preventing petitioner/respondent from discharging his duties as Principal, the committee of management alone was responsible and since respondents 1 to 4 despite having full knowledge of the state of affairs failed to take any effective step to ensure functioning of the petitioner/respondent as Principal of the College. Hence, they were also equally responsible for inaction which caused injustice to the petitioner/respondent.
On the basis of the aforesaid findings, the learned Single Judge directed the respondents to pay entire salary to the petitioner for the period in dispute together with interest at the rate of 6% on delayed payment of arrears of salary. Learned Single Judge further left it open to the State of U.P. to enquire in the matter for the purposes of ascertaining the authorities responsible for the situation and to recover the entire amount from such authorities as also the management of the College which was also guilty of laches.
Learned Standing Counsel appearing for the appellant submitted that the petitioner is not entitled to any salary for the period before he joined as Principal on 01.04.2003. Further, since the management had allowed the petitioner to join on 1.4.2003 without seeking permission of the prescribed authority, hence, he is not entitled for any salary for the said period also. Further the liability for payment of salary to the petitioner, if any, is on the management and respondents 1, 2 and 3 have no role or responsibility in the matter. It is further contended that except the provision contained in Statute 16.10, there is no provision which permits absence from duty for a period about 20 years. Therefore, the petitioner cannot be paid any salary for such a long time. He was continuously absent from College and did not discharge any duty at all. In any case, the direction for payment of salary should be to committee of management and not to the State authorities.
He further submitted that in view of the above, the order passed by the learned Single Judge cannot be sustained and is liable to be set aside.
Per contra, Sri Rai, learned counsel for the petitioner/respondent made his submissions in support of the impugned judgment and order.
Having heard learned counsel for the parties present and perused the impugned judgment and order as well as other material brought on record, we find that there is no force in the submissions made by learned Standing Counsel.
Learned Single Judge after a meticulous marshalling of the facts of the case and a thread bare scrutiny of the material on record categorically held that it was the committee of management of the College which had prevented the petitioner/respondent who was substantively appointed as Principal from performing his duties as Principal in the College although he was always ready and willing to function as Principal and there was also total lack of effective action on the part of respondent nos. 1 to 4 when the actual state of affairs qua petitioner/respondent was brought to their knowledge and hence, they were also equally responsible for the harassment of the petitioner/respondent.
Learned Single Judge after referring to 'Srikaantha S.M. Vs. Bharath Earth Movers Ltd.', 2005 (8) SCC 314, held that since the petitioner/respondent was prevented from discharging his duties as substantively appointed Principle of the college, the principle of 'no work no pay' cannot be invoked by the respondents and hence, he was entitled to receive his entire arrears of salary payable to him by them w.e.f. 01.04.2003.
Learned Standing Counsel has failed to demonstrate that the view taken by the learned Single Judge suffers from any illegality or legal infirmity requiring any interference by this Court. However, considering the fact that learned Single Judge while imposing exemplary cost of Rs.50,000/- on the State Government which is to be paid to the petitioner/respondent has also held the committee of management of the college equally responsible for the petitioners predicament, we consider it appropriate to apportion the cost equally between the State/respondents and the committee of management. Thus, the committee of management and the appellant/State shall pay Rs. 25000/- each as cost to the petitioner.
We have been informed by the learned Standing Counsel that the entire sum of Rs. 50,000/- has already been deposited by the State before the Registrar General of this Court.
Registrar General of this Court shall refund the sum of Rs. 25,000/- to the State Government. The committee of management of Sri Brahmeshwar Sanskrit Vidhyalaya, Naubasta Bengaon, District Fatehpur shall pay its share of cost of Rs. 25,000/- to the petitioner within one month from today failing which the Collector, Fatehpur shall recover the aforesaid amount from respondent no.2 as arrears of land revenue and pay the same to the petitioner. The impugned judgment and order stands modified to the extent indicated hereinabove.
The appeal is disposed of accordingly.
Order Date :- 22.2.2018/Madhurima