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CASE NO.: Appeal (civil)  6527 of 2005

PETITIONER: PRINCIPAL,AYURVEDIC COLLEGE & ORS.            

RESPONDENT: SUSHIL CHANDRA MISRA & ANR.                    

DATE OF JUDGMENT: 23/05/2006

BENCH: Dr.AR.LAKSHMANAN & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

Dr.AR Lakshmanan, J.

       Heard both sides.         The appeal is directed against the final judgment and order dt.07.04.2004  passed by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in  Writ Petition No.3920 of 1989 whereby the High Court has dismissed the Writ Petition  filed by the appellants herein.  The first appellant is the Principal, Ayurvedic College,  District Pilibhit (U.P.) and the second appellant is the Director of Ayurvedic and Unani  Services, Lucknow (U.P.).  The third appellant is the State of U.P.through Collector,  Pilibhit, District Pilibhit (U.P.). The respondent No.1 was appointed as Science  demonstrator in Lalit Hari Ayurvedic college, Pilibhit (U.P.).  In the year 1966, the  District Magistrate was appointed as a Receiver in the College.  Thereafter, all the  appointments and removal of teacher was required to be done by the Receiver, i.e., the  District Magistrate.  On 19.11.1967, respondent No.1 was subsequently appointed as  lecturer in science subject by the District Magistrate. He completed his probation of  two years and was confirmed as a lecturer in science subject.  The science section in the  college was closed down in the year 1971-1972 and, thereafter, the post of lecturer in  science in the college was also abolished and the respondent No.1 was declared surplus.           The services of respondent No.1 was terminated vide order dt.06.06.1972.   The order of termination    was communicated to the respondent No.1 by the District  Magistrate who was the Chairman of the college at that time.  The termination order  was issued on 06.06.1972.  Against the termination order dt.06.06.1972, the respondent  No.1 made a representation on 28.08.1972 and the same was allowed on that date by  the Vice-Chancellor. Thereafter, the order dt.28.08.1972 of the Vice-Chancellor along  with all the papers were sent to the Government for consideration on 10.10.1974.           The said college was taken over by the Government vide Notification  No.5915-Sec-9/Five 470/72.  The said Notification contained a clause 7A for obtaining  option from the teacher and the staff to join government services and if the option is  not received within the time, their services will stand terminated.  In para 7B, the  responsibility to fulfil the condition is on the employee otherwise the services of the  previous employment will not be counted towards pension etc.  In the instant case,  according to the appellants, no such option was given by the respondent No.1 within  the stipulated time.  The services of respondent No.1 was again terminated as he had  not given any option to join the government service.           Vide order dt.02.07.1977, the Government terminated the service of the  respondent No.1 as he did not give his option and further directed the appellants to pay  the respondent No.1 for the period starting from 06.06.1972 to 09.01.1975.  The  termination order was set aside and the respondent No.1 was paid the arrears of salary  from 06.06.1972 to 09.01.1975 amounting to Rs.14,901.50 on 19.02.1979.          The respondent No.1 made a claim petition to the Tribunal in the year 1981  against the order of termination communicated to him on 02.07.1977.  The appellants  filed written statement denying the claim.  The Tribunal by order dt.30.11.1987  allowed the claim petition as prayed for.  Aggrieved by the judgment, the appellant- State of U.P. filed a Writ Petition No.3920/1989 which was contested by the respondent  No.1.  The Writ Petition was allowed by the High Court on 04.04.1997.  The respondent  No.1 filed SLP(C) No.1668/1989 and this Court remanded the matter back for  reconsideration on 16.10.1998.  The concluding portion of the Order passed by this

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Court is reproduced as under :-         "The order of the High Court is cryptic and states no reason.  In fact,  the matter has been dealt with in a cursory manner which is not  retrospective of the judicial approach expected of the High Court.   Consequently, the appeals are allowed, the judgment and the order dated  04.04.1997 passed in writ petition (C) No.3920/89 as well as the order dated  13.10.1997 passed in C.M. Application No.11204(W) in W.P.(C) No.3920/89  are set aside and the cases are remitted to the High Court for a fresh  consideration in accordance with the law. It is, however, made clear that the  salary for the period reckoned from the date on which services were  terminated till the date of Tribunal’s judgment, shall be paid to the  appellant, within three months.  There will be no order as to costs."

       After remand, the High Court again dismissed the Writ Petition filed by the  appellants herein on 07.04.2004. Aggrieved by the said order, the appellants have come  to this Court by filing the Special Leave Petition.  Leave was granted on 24.10.2005.   This Court has also stayed the judgment of the High Court until further orders.           We have heard learned counsel appearing on behalf of the appellants and  the respondents.         Mr.Pramod Swarup, learned counsel appearing on behalf of the appellant  submitted that the pendency of the representation is not a valid ground to condone the  delay of four to five years in filing the claim petition before the Tribunal and that the  High Court also did not consider that the college was taken over by the Government on  10.10.1974 and that the information was published in the official gazette and, therefore,  the respondent No.1 shall be deemed to have knowledge of taking over of the college by  the Government as well as requirement of exercising option.  He further submits that  the High Court has committed an error in holding that the claim was filed within time  although the fact on record was that the cause of action had accrued to the respondent  No.1 as far back as on 02.07.1977 when his services were terminated with effect from  10.10.1975.  However, it is pertinent to notice that the plea of limitation has not been  urged before the High Court.  This apart, there is no finding on the issue of limitation   recorded by the High Court.  Concluding his argument, Mr.Pramod Swarup submitted  that the respondent No.1 has already received the salary for the entire period from the  date of termination till the date of the Tribunal’s order dt.30.11.1987 without doing any  work and, therefore, if the order of the Tribunal and as affirmed by the High Court  has now to be implemented, the appellant/the State Government has to pay lakhs of  rupees by way of salary to the respondent without extracting any work from the  respondent herein.   

       It is true that both the parties are litigating in court for all these years.   Therefore, the delay cannot be attributed to either parties.  Therefore, applying the  principle of ‘no work no pay’, we are of the opinion that 50% of the salary if ordered to  be paid to the respondent No.1 it would meet the ends of justice.  We, therefore, direct  the appellant to pay to respondent No.1 the salary from 30.11.1987 till the date of  superannuation (the exact date is not known).           We also make it clear that the respondent No.1 would be entitled for the  salary of lecturer during the relevant period in question.  We also however make it  clear that he would not be entitled to make a claim by way of salary etc. for any further  promotion etc.  The Government may also consider whether any pension is payable to  the respondent No.1 because the college is now taken over by the State Government.   The Government is directed to consider the same and pass appropriate orders  accordingly.               The Government shall pay the salary to the respondent within three months  from today. The Government may also consider the question of payment of pension  within the above said period.  He is not entitled for reinstatement as directed by the  Tribunal or the High Court since he has already retired on superannuation.

       The appeal stands disposed of in the above terms.   There shall be no order  as to costs.  The order passed by the Tribunal as affirmed by the High Court is  modified accordingly.