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AFR
Court No. - 17
Case :- WRIT - A No. - 33360 of 2017
Petitioner :- Angad Yadav And 7 Others
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Kamal Pati Shukla, Anurag Shukla
Counsel for Respondent :- C.S.C., Manu Singh
Hon'ble Pradeep Kumar Singh Baghel,J.
This petition has been moved on behalf of eight teachers of the
Basic Schools. Petitioner nos. 1 to 5 and 8 were Headmaster and petitioner
nos. 6 and 7 were Assistant Teacher. They are aggrieved by the
Government Order dated 02nd May, 2017 issued by the Special Secretary,
Government of U.P., Lucknow, whereby the claim for their salary during
the period when they were not allowed to function has been denied on the
ground of no work no pay.
The basic facts may briefly be stated. The petitioners were working
as Headmasters and/or Assistant Teachers, as the case may be, in Junior
Basic Schools/ Senior Basic Schools conducted by the Uttar Pradesh
Board of Basic Education1
. The basic schools are governed under the
provisions of the Uttar Pradesh Basic Education Act, 19722
, Rules framed
thereunder and the Uttar Pradesh Basic Education (Teachers) Service
Rules, 19813
.
In the Rules, 1981 the age of superannuation of teacher is provided
as 62 years. Rule 29 of the Rules, 1981 deals with the age of
superannuation. Proviso to Rule 29 provides that a teacher who retires
during an academic session (July 1 to June 30) shall continue to work till
the end of the academic session i.e. 30th June and such period shall be
deemed as extended period of employment.
Dates of birth of the petitioners fall between May, 1953 to July, 1953
on different dates. For the sake of convenience, the details of the
petitioners' date of birth and date of superannuation are mentioned in the
1 Board
2 Act, 1972
3 Rules, 1981

table below: Petitioner nos. Date of birth Date of superannuation 1 01.07.1953 31.03.2016 2 01.06.1953 31.03.2016 3 01.05.1953 31.03.2016 4 03.05.1953 31.03.2016 5 01.07.1953 31.03.2016 6 01.07.1953 31.03.2016 7 01.07.1953 31.03.2016 8 15.05.1953 31.03.2016 According to Rule 29 of the Rules, 1981, the petitioners were entitled to continue till the end of the academic session i.e. 30th June, 2015, but in the meantime on 09th December, 2014 the State Government pursuant to a policy decision changed the academic session with effect from the academic year 2015-16 from 01st April to 31st March. Earlier the academic session was from 01st July to 30th June. The State Government issued other Government orders on 15th June, 2015 and 29th June, 2015 in this regard clarifying the earlier Government orders. Interpreting the said Government orders, the Secretary, Basic Education took a view that the teachers, who attain the age of 62 years before 30th June, 2015, shall not be entitled to sessional benefit beyond 30th June, 2015. The Government orders and the consequential order of the Secretary, Basic Education, were challenged in a large number of writ petitions in this Court and at Lucknow Bench wherein interim protections were granted to the teachers for their continuance till 31st March, 2016 on the ground that their dates of superannuation fall after 01st April, 2015. Hence, after the change of the academic session, they were allowed to continue till the end of the academic session i.e. 31st March, 2016. Those writ petitions were finally decided by a Division Bench of this Court in Special Appeal Defective No. 360 of 2015, State of

It is stated that the petitioners after their joining retired from their respective posts on 31st March, 2016. After their retirement, the petitioners claimed their salary for the period from 30th June, 2015 to 21st November, 2015 when they were illegally made to retire. The petitioners made representations for their salary for the said period. However, in the meantime the State Government issued an order dated 02nd May, 2017, wherein it is provided that the teachers, who were retired on 30th June, 2015 and due to change of the academic session were allowed to rejoin, would not be entitled for the salary during the period when they have not worked on the basis of 'no work, no pay' but that period would be treated on duty for the purposes of pension and retiral benefits. Challenging this Government order dated 02nd May, 2017, the instant writ petition has been filed. Since pure question of law is involved in the matter, learned counsel for the parties agreed for final disposal of the writ petition without calling any response from the respondents. Hence, with their consent the writ petition is being disposed of finally at this stage in terms of the Rules of the Court. I have heard Sri K.P. Shukla, learned counsel for the petitioners, and learned Standing Counsel. Learned counsel for the petitioners submits that in view of the law laid down by this Court in the case of Ramesh Chandra Tiwari (supra) and the consequential Government Order, which has been issued on 08th October, 2015 the petitioners were entitled to continue till the end of the academic session i.e. 31st March, 2016, whereas they were forced to retire on 30th June, 2015, hence the principle of 'no work, no pay' shall not be applicable in the facts of the present case. He further submits that all the teachers were allowed to work till the end of the academic session (31st March, 2016) but the respondents illegally retired the petitioners on 31st March, 2015 and did not allow them to discharge their duties. He has placed reliance on the judgment of the Supreme Court in State of Bihar v. Kripa Nand Singh5, Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others6, Raghubir Singh v. General Manager, Haryana Roadways, Hissar7, and Burn Standard Company Limited v. Tarun Kumar Chakraborty8, and of this Court in Smt. Rajmati Singh v. State of U.P. and others9, and Brijendra Prakash Kulshrestha v. Director of Education and others10. Learned Standing Counsel has supported the impugned Government order on the ground that the petitioners have been rightly denied the salary on the ground of no work no pay. I have considered the rival submissions advanced by the learned counsel for the parties and perused the record. The services of the petitioners are governed under the Rules, 1981. Rule 29 thereof provides that the age of superannuation of a teacher in a basic school shall be 62 years. Rule 29 reads as under: "29. Age of superannuation.- Every teacher shall retire from service in the afternoon of the last day of the month in which he attains the age of 62 years: Provided that a teacher who retires during an academic session (July 1 to June 30) shall continue to work till the end of the academic session, that is, June 30 and such period of service will be deemed as extended period of employment." Previously, the academic session in the basic schools and Intermediate colleges was from 01st July to 30th June. The State Government by two separate Government Orders dated 15th October, 2014 and 09th December, 2014 respectively changed the academic session in the Intermediate colleges and basic schools from 01st April to 31st March. Proviso to Rule 29 clearly provides that in case the date of superannuation falls during the academic session, the teacher shall be allowed to continue 5 2014 LawSuit (SC) 689 : 2014 (14) SCC 375 6 2013 LawSuit (SC) 994 : 2013 (10) SCC 324 7 2014 LawSuit (SC) 650 : 2014 (10) SCC 301 8 2000 LawSuit (SC) 764 : 2002 (10) SCC 585 9 2017 (3) ADJ 656 (DB)(LB) 10 2007 LawSuit (All) 90 : 2008 (6) AWC 5580

till the end of the academic session. A similar provision is provided in all the statutes, which deal with the educational authorities as the First Statutes of the University, Regulations framed under the Intermediate Education Act, the Rules, 1981, which deals with the service conditions of the teachers in the basic schools conducted by the Board, and the Rules, 1978, which deals with the service conditions of the teachers working in the recognised institutions under the Act, 1972 established by the societies registered under the Societies Registration Act and managed by the Committee of Management elected by them. The object of the aforesaid provision regarding continuance under the different Services Rules/ Statues is that if a teacher retires during the course of the academic session, his service is extended by virtue of the rules/statues till the end of the academic session, so that the studies of the students may not be affected. Therefore, underlying purpose is primarily to give benefit to the students. In the present case, as is evident from the details of their dates of birth mentioned above in the table, they were born after 1st of April in 1953. Thus, their superannuation falls after 01st of April, 2015. When first time the change of the academic session (from 01st April, 2015 to 31st March, 2016) became effective, indisputably they were entitled for the sessional benefit and they should not have been retired prior to 31st March, 2016. However, the Secretary of the Board wrongly interpreted the Government orders and issued a direction for not extending the sessional benefit to all those teachers whose date of superannuation was falling upto 30th June, 2015. This Court in Ramesh Chandra Tiwari (supra) had the occasion to consider the order issued by the Secretary, Basic Education dated 15th June, 2015 and it was set aside by the Court in its elaborate judgment. Suffice it would be to mention that the State Government did not challenge the judgment of this Court in Ramesh Chandra Tiwari (supra) and it issued a Government Order dated 08th October, 2015,

wherein after extracting the operative portion of the judgment of Ramesh Chandra Tiwari's case the State Government has issued necessary directions to all the concerned educational authorities to comply with the aforesaid judgment and it was further directed that all such teachers, whose date of birth falls after 01st April, 2015, shall be allowed to continue till the end of the academic session i.e. 31st March, 2016. The State Government has also mentioned in the said order that necessary amendment be carried out in the Rules, 1981 and other concerned rules in terms of the law laid down by this Court in Ramesh Chandra Tiwari (supra). In compliance with the said judgment of this Court and the Government Order dated 08th October, 2015, admittedly all the petitioners were allowed to re-join their duties and their pension was stopped. The petitioners have brought on record their joining orders, which demonstrate that they have been allowed to join their posts in November, 2015. They were paid their salaries onwards till their superannuation on 31st March, 2016. Hence, it is a common ground between the parties that they did not work from 01st July, 2015 till the date of their joining in November, 2015 when they were allowed to work in their respective institutions. The only question which arises in the present petition is whether the petitioners are entitled for their salaries from 01st July, 2015 until they were allowed to join their posts in November, 2015 or not. In this regard, the State Government has formed an opinion on the basis of the advice of the Finance Department that the petitioners are not entitled for their salary for the period when admittedly they have not rendered any service on the ground of 'no work, no pay'. The core question that arises in the present case is whether the principle of 'no work, no pay' shall be applicable in the facts and circumstances of the present case. Learned counsel for the petitioners has strenuously urged that the petitioners were always ready and willing to work in the institutions as Headmasters/ Assistant Teachers, as the case may be, but they were

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"As noted above, the Division Bench has declared the Government Order dated 15th June, 2015 illegal.

Regard may be had to the fact that on the basis of the said order, the petitioners were denied sessional benefits. Once the said order was set aside, the petitioners became entitled to continue. The respondents have also allowed the petitioners to rejoin their position.

Therefore, in the said background and on a careful consideration of the entire facts and circumstances of the case, I am of the considered view that the impugned Government Order dated 02nd May, 2017 has to be set aside and is accordingly set aside. The petitioners are entitled for their salary from 30th June, 2015 till the date of their rejoining. Ordered accordingly.
Thus, the writ petition stands allowed.
No order as to costs."

Order Date :- 19.8.2017
sailesh/SKT/-