ALLAHABAD HIGHCOURT, ORDER, SALARY : 40 वर्ष पहले गलत वजह से नौकरी से निकाली गयी अध्यापिका को दें पूरा वेतन, विभाग चाहे तो दोषी अधिकारी से वसूल कर दे वेतन ।

ALLAHABAD HIGHCOURT, ORDER, SALARY : 40 वर्ष पहले गलत वजह से नौकरी से निकाली गयी अध्यापिका को दें पूरा वेतन, विभाग चाहे तो दोषी अधिकारी से वसूल कर दे वेतन ।

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR
Court No. - 3
Case :- SERVICE BENCH No. - 826 of 2014
Petitioner :- Smt. Rajmati Singh
Respondent :- State of U.P. through its Principal Secretary U.P. Shasan Lucknow and others
Counsel for Petitioner :- R.B. Srivastava
Counsel for Respondent :- C.S.C.,Navendu Srivastava

Hon'ble Sudhir Agarwal,J.
Hon'ble Ravindra Nath Mishra-II,J.
1. Heard Sri R.B. Srivastava, learned counsel for the petitioner and learned Standing Counsel for respondents.
2. Petitioner admittedly was appointed as Assistant Teacher (Untrained) in Block Jagatpur vide order dated 25.01.1971 passed by Adhyaksha, Zila Panchayat, Rai Bareilly. After enactment of U.P. Basic Education Act, 1972 (hereinafter referred to as the "Act, 1972"), the Schools maintained by Zila Panchayats were transferred to Board of Basic Education and thereafter it appears that petitioner was permitted to undergo B.Ed. course in Session 1973-74 by the then District Basic Education Officer, Rai Bareilly (hereinafter referred to as the "DBEO") vide order dated 02.08.1973, which is on record at page 97 of paper book. After completion of aforesaid course petitioner submitted her joining on 03.07.1974 but she was not allowed to join on the ground that she was granted study leave to undergo B.T.C. training and not B.Ed. and her services stand terminated. Petitioner represented against aforesaid termination which was ultimately rejected vide order dated 04.06.2009, whereagainst she filed review and then Claim Petition No. 1072 of 2010 before State Public Service Tribunal (hereinafter referred to as the "Tribunal") which has been decided vide judgment dated 13.12.2013, impugned in this writ petition, whereby Tribunal has partly allowed claim petition and set aside order dated 04.06.2009 declaring that petitioner should be treated to have continued in service but would not be entitled for any salary for the period she has not worked. Tribunal has also held that her representation was wrongly decided since petitioner could not have been terminated orally. At the best, department could have taken action after holding departmental inquiry and, therefore, Tribunal has further directed respondents to pass a fresh order on petitioner's representation.
3. Learned counsel for petitioner submitted that at no point of time petitioner was terminated and since she was actually appointed by a written order, she could not have been terminated orally. Further, non-functioning of petitioner was for the fault of respondents inasmuch as she was allowed to undergo B.Ed. course in 1973-74 but on a totally misconceived and false premise that she was allowed to undergo B.T.C. training, she was not allowed to join after completion of B.Ed. course when she submitted joining in July, 1974 and thereby kept out of employment, patently illegally. Since she was appointed by a written order, which was not terminated by a written order, in law, she continued to work and would be entitled for all consequential benefits.
4. We find from record that admittedly petitioner was granted permission to undergo B.Ed. course in Session 1973-74 vide order dated 02.08.1973 issued by DBEO, which reads as under:

  "श्रीमती राजमती देवी सहायक अध्यापिका, कन्या जूनियर हाईस्कूल गौरा, रायबरेली के आवेदन पत्र दिनांक 31.7.1973 जो उप विद्यालय निरीक्षक की संस्तुति सहित इस कार्यालय को अग्रसारित किया गया है, के सन्दर्भ में उन्हें रणधीर रणन्जय महाविद्यालय अमेठी, सुल्तानपुर के सत्र 1973-74 में बीएड के अध्ययन, प्रशिक्षण एवं परीक्षा हेतु एतद्वार अनुमति प्रदान की जाती है । उक्त प्रशिक्षणोपरान्त श्रीमती राजमती देवी, कन्या जूनियर हाईस्कूल गौरा, रायबरेली, में ही सहायक अध्यापिका की हैसियत से अध्यापन कार्य करती रहेंगी ।"

"With regard to the application dated 31.07.1973 of Shrimati Rajmati Devi, Assistant Teacher, Kanya Junior High School, Gaura, Raebareli which has been forwarded to this office with the recommendation of Deputy Inspector of School, she is hereby permitted for study, training and examination of B.Ed. at Randhir Rananjay Mahavidyalaya, Amethi, Sultanpur in session 1973-74. After the said training, Shrimati Rajmati Devi shall continue to work in the capacity of Assistant Teacher at Kanya Junior High School, Gaura, Raebareli itself."
(English translation by the Court)
5. Aforesaid permission granted to petitioner does not amount to termination but in the context of service jurisprudence, it is considered as "study leave", during which period incumbent is entitled for full salary. After completion of B.Ed. course, petitioner submitted joining which was not accepted on a totally false, illegal and non-est premise that she was to undergo B.T.C. training, which she did not.
6. It is also evident from record that in 1971 when petitioner was appointed in erstwhile Junior High School maintained by Zila Panchayat, her appointment was not illegal or contrary to any Rule. Aforesaid institutions were taken over by Board of Basic Education under the provisions of Act, 1972, there is also no provision which contemplates that Teachers already appointed in Schools maintained by local bodies, if do not possess training qualification of B.T.C. or equivalent, their appointment shall stand terminated or would be terminated in case they did not attain qualification of B.T.C. or equivalent thereto. On the contrary, Government orders issued from time to time show that those Teachers who did not possess training qualification of B.T.C. or equivalent, despite opportunity, were given untrained pay scale and those who could gain aforesaid qualification, were given pay scale applicable to trained Teachers. Appointment of petitioner, per se, was never treated to be illegal or contrary to law.
7. The further fact that petitioner's grievance was attended by respondents after more than 30 years, itself shows a complete laxity and dereliction on the part of respondents-authorities who did not care to attend petitioner's grievance despite her representations and also deprived her from serving educational institution for no fault on her part.
8. Tribunal unfortunately has not appreciated this fact that in 1971 when petitioner was appointed, B.T.C. training qualification was not a condition precedent for appointment and appointment was not held illegal after enactment of Act, 1972 whereunder Basic Education Institutions maintained by local bodies were transferred to Board of Basic Education and teaching and non-teaching staff of such institutions were transferred on the same terms and conditions, as applicable on the date of transfer. There was no provision that, a Teacher, if does not possess B.T.C. training qualification, his/her appointment would be illegal and liable to be terminated.
9. Denial to petitioner to join service after she completed B.Ed. course, under permission of DBEO, was patently illegal and arbitrary for which petitioner cannot be made to suffer. It is a case where entire fault lie on the officials of Basic Education Department and in particular, the DBEO, Rai Bareilly, and for their fault petitioner cannot be made to suffer so as to deny salary for the period she was not permitted to work, illegally and in the teeth of law and that too without even terminating her services.
10. The principle of "no work no pay" will not apply to this case. This Court in Brijendra Prakash Kulshrestha Vs. Director of Education & others 2007 (3) ADJ 1 (DB) has considered applicability of "no work no pay" and it has been held that an 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 employer.
11. In Bhanu Pratap Vs. Director, Ayurvedic and Unani Sewae, U.P. Lucknow & Ors., 2011 (11) ADJ 606 this Court said:
"9. This Court is of considered view that dismissal of petitioner from service having been found wholly illegal, and it is also having been seen that he was denied work on the post in question by employer in a wholly illegal manner, petitioner should be given relief of reinstatement with all consequential benefits including arrears of salary. This would be in consonance with the principle that an employee has 'no right to work' but only right to claim salary. In absence of anything to show that employee himself was unwilling to work, principle of "No Work No Pay' ought not to be applied in such a case. Such a principle in a case like this, if applied, would amount to confer a premium upon employer to enjoy benefit of a fault of his own. This would amount to allowing him (employer) to take advantage of his own wrong, which is not permissible in law particularly in a court of equity and justice. It is against all canons of justice."
12. Here is a case which do not justifiably attract principle of "no work no pay" for the reason that petitioner has been made to suffer by a total illegal, arbitrary and unjust action on the part of officials of Basic Education Department.
13. In the result, writ petition is allowed. Impugned judgmengt dated 13.12.2013 is hereby modified to the extent that petitioner is declared to have continued in service and entitled for all consequential benefits including salary. However, we grant liberty to Respondent-1 to make appropriate inquiry so as to find out who was/were the officer(s) in Basic Education Department, responsible for such a situation, and may recover entire amount, which is found ultimately payable to petitioner, from such officer(s).
14. Petitioner is also entitled to costs, which we quantify to Rs. 25,000/-.
Order Date :- 24.1.2017
AK