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PETITIONER: SMT. SARAN KUMAR GAUR & ORS.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH & ORS.

DATE OF JUDGMENT13/08/1991

BENCH: MISRA, RANGNATH (CJ) BENCH: MISRA, RANGNATH (CJ) KULDIP SINGH (J)

CITATION:  1991 SCR  (3) 559        1993 SCC  Supl.  (2) 749  JT 1991 (3)   478        1991 SCALE  (2)350

ACT:     Service  Law:  College teachers--Strike Called  back  to duty--Not    joining   within    time--Alternate    teachers appointed--Entitlement   to  salary--Applicability  of   the principle  ’No work-No pay’--Teachers absorbed back  in  the same  institution---Seniority--Credit  to be given  for  the interregnum.

HEADNOTE:     The appellants, teachers in a minority institution fully financed  by  State,  went on a strike and  when  they  were called hack to duty, they did not return within time,  lead- ing  to appointment of alternate teachers.  They  approached the  High Court for their absorption. The High Court  having dismissed the matter, the aggrieved teachers have  preferred the present appeal by special leave. By interim orders, this Court has already directed the absorption of the teachers in different institutions. Seven teachers have been absorbed in the very same institution. It was contended on behalf of the seven  teachers  that  they should be paid  salary  for  the period of gap before their absorption and that their senior- ity should be maintained. The alternate teachers who  worked in  the  interregunum  contended that they  should  be  paid salary for the period they worked. Disposing the appeal, this Court,      HELD 1. One set of teachers have actually worked  while the  other set has not. The teachers had gone on strike  and when  they  were  called hack to duty a  group  of  teachers including the seven did not return within time and that. led to  appointment of alternate teachers. It is clear from  the material  on  record that the alternate  teachers  did  work during  the period. It may not be appropriate to  hold  that they  are  not entitled to remuneration for the  work  done. However,  the  institution has admittedly not  received  any benefit of service during the relevant period from the other set viz. the seven teachers who were absorbed later. On  the principle that. when work is not done remuneration is not to be  paid,  no direction is given for payment.  If  they  are entitled  to salary, it is open to them to take  appropriate proceeding to claim the same. It does not 560 finally  close their clam against the State or the  institu-

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tion.  The  alternate teachers who have worked and  if  they have not been paid, they should be disbursed the salary  due to them. Then iS some contest as to whether they are  quali- fied or not. On the basis of the facts on record the  teach- ers  appear to be qualified and that question should not  be reopened.  In  regard to two teachers Who were  prepared  to walt to take their chance, they would not be paid any  remu- neration.  Seven  teachers who have now been  provided  jobs under the orders of this Court and those who were waiting to take their Chance should be equated for the common period of no Work [562F-H, 563A-C]     2.  However, the seven teachers who have got  absorption should be given their seniority for the period they were out of  employment.  The Director of Public Instruction  is  re- quired to take this order into account and given them credit for seniority for the period they were out of employment  on the  deemed situation. that they had worked. This would  not entitle them to salary unless they are otherwise entitled to the same. [563D]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2 145  of 1988.     From  the  Judgment  and Order dated 3.5.  1988  of  the Allahabad High COurt in C.M.W.P. No. 13143 of 1985     Avadh  Behari Rohatgi  S. Markandeya, G.  Seshagiri  Rao and Ms. C. Markandeya for the appellant.     Ms., Shobha Dikshit, Pankaj Kalra, Ejaz Maqbool,  Dileep Tandon, J.M. Khanna and S.K. Jain for the Respondents. The following Order of the COurt was delivered:     This appeal by special leave is against the order of the Allahabad  High Court. The subject matter of dispUte  is  in regard to 11 lady teachers of Saghir Fatima Mohammadia Girls Inter College, Agra. This is claimed to be a minority insti- tution but fully financed from the State resources.     By interlocutory orders made from time to time the  real litigative  part of has already been attended to,. We  would refer  to  our order of 2nd May, 1991 where this  court  ob- served "We are happy to find that pursuant to our order made earlier in this case Smt. Kamla 561 Mehra,  Smt. Saran Kumari Gaur and Swaliha Begum  have  been given  postings and they have already reported to  duty.  So far as petitioners Km. Asifa Rizvi, Km. Sayyada Rizwani  and Shafiqa  Begum  are concerned, Ms. Dikshit points  out  that though there is some possibility of adjusting them in  other institutions  it is a time-taking process inasmuch as  under the scheme government have no power to impose teachers  from out side on the administration of the institutions.     We  think it appropriate in the interest;of  justice  to require the Director of Secondary Education to require  such of the colleges where appropriate vacancies are available to adjust these three teachers. To so adjust them the  institu- tions shall take our present order as a direction to  adjust them  and  as and when called by the Director  of  Secondary Education  it shall be implemented. Failure to comply  shall be teated as violation of our direction. So far as Smt. Sudha Dixit is concerned, we gather from the representation  made at the Bar’ that a vacancy in the  spe- ciality  is about to arise in the coming month. If  that  be so, Ms. Dikshit has agreed to see that she is so posted. As far as two remaining teachers are concerned, they do  not agree  to go out of the institution and Ms.  Dikshit  points

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out  that  in their subjects there is no vacancy.  In  these circumstances,  they have choice to wait  indefinitely  till vacancy  occurs without.claiming salary till employment.  If this  is  not acceptable to them the  order  of  termination already  made  shall be taken as final  and  conclusive  and their petition shall standdismissed."     We  are told that the vacancy which was contemplated  in regard  to Smt. Sudha Dixit has not worked out for her.  She had been offered a posting in Mathura, away from. the insti- tution where she had been working and she did not choose  to go  there. Mr. Markandeya appearing for her,  however,  does not  agree with this statement made by others and says  that she volunteered to go but was informed that the  institution had  not  taken a decision to keep her and she  was.  to  be intimated  as and when a decision was taken.  No  intimation has been received by her as yet.     Out  of  the two remaining teachers referred to  in  our order  dated 2nd May, 1991, it appears that one has  already been absorbed in Aligarh and the. remaining teacher,  Khaliq Jahan,  is holding a lower post for the time being  and  Ms. Dikshit has told us that she has already 562 suggested  to  the  Government that as and  when  a  vacancy arises she should be accommodated in a post according to her entitlement     So  far  as Smt. Sudha Dixit is concerned, we  think  ’a situation  has now arisen where the Director must  implement our  order. We had clothed him with adequate powers  by  our order  of  2nd May, 199 1 and he must under  that  authority ’proceed  to enforce his order. The Director should  provide employment  to Smt. Sudha Dixit in terms of  the  assignment made and the institution where she has been directed to join should  accept the teacher. Beyond that we do not intend  to say anything at this stage.     This  leaves the only, remaining question to  be  dealt. with,  i.e., as to how the period during which the seven  of the teachers who have been absorbed in that very institution should be dealt with. It is said that during this gap period of seven years another set of teachers had been working  who are represented before us by Mr. Kalra in these proceedings, It is the submission of the appellants that the seven teach- ers who are substituted did not possess the requisite quali- fication and reliance is placed on Section 16(FF) of the Act to  support  the submission that they are  not  entitled  to salary for the work done. SimultaneouSly the seven’ teachers have  contended  through their counsel that  they  had  been visiting the institution everyday and had been leaving their attendance  with the appropriate authority, therefore,  they should be entitled to salary.     This is not a proceeding in ,which we have to decide who has  to be paid the salary. But as things stand one  set  of teachers  have  actually  worked while  the  other  set  for reasons which are germane to appropriate management has not, We  are told that teachers had gone on strike and when  they were  called back to duty a group of teachers including  the seven did not return within time and that led to appointment of alternate teachers. We must point out that this again  is not  an  appropriate  matter to be decided by  us.  We  are, however,  satisfied from the material placed before us  that the  11 teachers who are represented by Mr. Kalra  did  work during  the period. It may not be appropriate, to hold  that they are not entitled to remuneration for the work done. The institution  had  admittedly  not  received  any  benefit.of service  during the relevant period from the seven  teachers on the appellants’ side. On the principle that when work  is

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not  done remuneration is not to be paid, we dispose of  the present  appeal without giving any direction for payment  to them. If they are entitled to salary, it is open to them  to take appropriate proceeding to claim the same, 563 We  do not finally close their claim against the’  State  of the  institution. But so far as teachers represented by  Mr. Kalra are concerned, if they have not been paid, they should be  disbursed the salary due to them. There is some  contest as to whether they are qualified or not. On the basis of the facts  on record we are of the view that they appear  to  be qualified and that question should not be reopened.     We  draw  support for our view for  non-payment  to  the appellants from our’ interim order of 7th February, 1990. In regard  to  two teachers who were prepared to wait  to  take their  chance, we indicated that they would not be paid  any remuneration. Seven teachers who have now been provided jobs under  our orders and those who were waiting to  take  their chance should be equated for the common period  of no work.     We,  are, however, of the view that seven  teachers  who have got employment should be given their seniority for  the period  they were out of employment. We accordingly  require the  Director of Public, Instruction to take our order  into account  and given them credit for seniority for the  period they  were  out of employment on the deemed  situation  that they  had worked, Our doing so, we again repeat,  would  not entitle  them to salary unless they are  otherwise  entitled to. This disposes of the appeal.     We are sorry that we entertained an appeal of this  type by special leave and got dragged into a dispute which should not have been brought upto this court. G.N.                                        Appeal  disposed of. 564