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Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5628       OF 2018 (Arising out of Special Leave Petition (Civil) No.28895 of 2017)

District Basic Education Officer Allahabad         ………Appellant

VERSUS

Sushila Jaiswal (Dead) through her Lrs and Ors.                 ..…. Respondents

JUDGMENT

Uday Umesh Lalit, J.

Leave granted.

2. This appeal challenges the decision dated 21.03.2017 passed by the

High Court of Judicature at Allahabad dismissing Special Appeal (Defective)

No.374 of 2015 preferred by the appellant herein.

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3. The  Institution  named  “Junior  High  School,  Dandupur,  Chaka,

Allahabad” is an Institution recognized under UP Basic Education Act, 1872

and its staff receives salary under the provisions of UP Junior High School

(Payment of Salaries of Teachers and other Employees) Act, 1978.             1st

respondent-Sushila  Jaiswal  (since  deceased,  represented  by  her  legal

representatives) was initially appointed as Assistant  Teacher in a Primary

School on the basis of appointment letter dated 12.06.1979.

4. 1st  respondent  was  thereafter  promoted  on  26.06.2000  in  upper

Primary Institution, Dandupur, Chaka, Allahabad.  She was on medical leave

from 25.11.1999 to 30.06.2000 and later  from 01.08.2001 to 05.09.2002.

When 1st respondent came back on 06.09.2002, she was not allowed to join.

By order dated 19.10.2002 the appellant requested Chief Medical Officer,

Allahabad to examine 1st respondent and to provide medical report regarding

her fitness.  Despite such clear requisition, no medical report was received.

The  request  was  reiterated  by  the  appellant  vide  further  letters  dated

30.10.2002 and 25.11.2002.  It appears that 1st respondent thereafter filed

Civil Miscellaneous Writ Petition No.14885 of 2006 submitting that she was

not being permitted to join the services and prayed for relief of reinstatement

as well as for providing arrears of salary.  It further appears that no order for

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reinstatement or for payment of any salary was passed in said writ petition

and said writ petition was later dismissed for default.   

5. While compiling list of Teachers who had absented themselves from

School for a long period without any authority, the name of 1st respondent

was  included  in  such  list  and  consequently  notice  was  issued  by  the

appellant to 1st respondent on 07.10.2009 either to join the services or to

explain  unauthorized  absence.  Pursuant  thereto,  1st respondent  appeared

before the appellant on 16.12.2009 but could not explain her absence.  By

proceeding dated 14.01.2010 the appellant passed following order:-

“In  the  aforesaid  matter,  Assistant  Basic  Education Officer, Chaka and Smt. Sushila Jaiswal were called for hearing on 16.12.2009 in the office of District Basic Education Officer, Allahabad.  At the time of hearing Smt. Jaiswal came on walker and assisted by her husband.  Looking at her condition, it can be safely concluded that Smt. Jaiwal is unable to stand without the help of another person and walker and that she is not fit for teaching  job.   Therefore  the  provisions  as  given  under  the Financial Handbook Volume II, part 2 to 4, Rule 18 for persons who are absent for more than 5 years would be applicable and disciplinary actions be taken against Smt. Sushila Jaiswal.    

Smt.  Sushila  Jaiswal  is  also  liable  for  not  producing fitness  certificate  from  the  office  of  Chief  Medical  Officer, Allahabad to this office and also for absenting herself from her teaching  work  for  more  than  5  years,  the  services  of  Smt. Sushila  Jaiswal,  Assistant  Teacher,  Upper  Primary  School, Dandupur, Block-Chaka are terminated.”   

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6. The aforesaid order was challenged by 1st respondent by filing Writ

Petition No.18853 of  2010 and the High Court by its order dated 07.04.2010

directed CMO, Allahabad to conduct medical test in respect of 1st respondent

and submit a report.  The Chief Medical Officer recorded that 1st respondent

was suffering from osteoarthritis  and could not  stand for long period but

observed that she was fit for teaching job.  Based on this report, the High

Court  vide  its  order  dated  21.04.2010  directed  that  1st respondent  be

reinstated  and  in  so  far  as  the  period  of  absence  was  concerned  an

appropriate order in accordance with law be passed by the appellant.   

7. In compliance of the order dated 21.04.2010, the appellant vide order

dated  05.05.2010  directed  1st respondent  to  join  services  in  Junior  High

School of Lohandi, Block-Karchhana, Allahabad as no post was available in

her former School namely Junior High School, Dandupur, Chaka, Allahabad.

Accordingly,  1st respondent  joined  the  services  on  15.05.2010.   On

17.05.2010 an order was passed by the appellant treating the period between

01.08.2001  to  14.05.2010  as  period  of  absence  and  directed  that  1st

respondent was not entitled to payment of salary for that period on the basis

of “no work no pay” as per the provisions of UP Financial Handbook and

concerned rules.  1st respondent who had joined on 15.05.2010 worked till

20.05.2010 whereafter the School closed for summer vacation.  It re-opened

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on  01.07.2010  and  by  her  application  dated  17.07.2010  1st respondent

applied for voluntary retirement and retired on 31.07.2010 i.e. much before

her normal date of superannuation which was to be 30.06.2011.

8. In the meantime, 1st respondent had filed Writ Petition No.30948 of

2010 in the High Court challenging the aforesaid order dated 17.05.2010.

Said writ petition was disposed of by the High Court on 25.05.2010 giving

liberty to 1st respondent to make a representation ventilating her grievances

which were then to be looked into and to be dealt with by passing a reasoned

speaking order.  A representation so preferred by 1st respondent was dealt

with by Secretary, Department of Basic Education, and by communication

dated 29.04.2011 the representation was rejected.  It was observed,:-

“The report  of  the  Basic  Education  Officer,  Allahabad and  the  representation  of  the  petitioner  received  through the Director  Education  (Basic)  and  after  examining  them,  it  is found that Smt. Jaiswal continuously absented herself from her teaching  job  from 01.08.2001  to  14.05.2010  and  during  this period, she did not make any serious effort.  Therefore, there is no logic in paying the salary for the period between 01.08.2001 to 14.05.2010, when she had absented herself from the work. In the Financial Hand Book Volume-II, Part 2 to 4 and Rule 18 also  the  theory  of  no  work  no  pay  has  been  described. Therefore on the basis of aforesaid rules and the circumstances described above, the representation of the petitioner is rejected and matter is disposed of.  

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9. The aforesaid  communication  was challenged by 1st respondent  by

filing Writ Petition No.30513 of 2011 which was allowed by Single Judge of

the High Court vide order dated 10.03.2015.  The Single Judge set aside the

communication  dated  29.04.2011  and  directed  that  1st respondent  was

entitled to  arrears  of  salary with effect  from 06.09.2002 till  the date she

resumed her duties i.e. till 15.05.2010 with 8½ % interest thereon, if paid

within three months.  If the amount was not paid within three months, 1st

respondent was held entitled to interest at the rate of 12%.  She was also

awarded costs quantified at Rs.20,000/-.  The order of the Single Judge was

put  in  challenge  by  the  appellant  by  filing  Special  Appeal  (Defective)

No.374 of 2015 and by its order dated 21.03.2017, which is presently under

appeal the Division Bench of the High Court dismissed said special appeal.

10. While issuing notice, this Court stayed the operation of the judgment

and order under appeal, whereafter pleadings were exchanged.  We heard

Mr.  Rakesh  Mishra,  learned  Advocate  for  the  appellant  while  the  legal

representatives  of  1st respondent  were  represented  by  Mr.  Sanjay  Singh,

learned Advocate.  It was contended by the appellant that after 31.07.2001 1st

respondent had worked only for a period of 36 days but under the orders of

the  High  Court  she  was  to  be  paid  salary  for  the  entire  period  from

06.09.2002 till 15.05.2010.  It was further submitted that the Department had

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regularly been paying the pension to 1st respondent from her retirement on

31.07.2010.

11. The  facts  on  record  are  clear  that  despite  the  requisition  dated

19.10.2002 by the appellant requesting Chief Medical Officer, Allahabad for

medically  examining  1st respondent  to  certify  her  fitness  and subsequent

requests, no such report was sent to the Department.  The writ petition filed

by 1st respondent in the year 2006 was dismissed for non-appearance and no

further  steps  were  taken  to  revive  the  petition.   When  1st respondent

appeared before the appellant, the order dated 14.01.2010 records that she

was unable to stand on her own and she was not fit for teaching job.  It is

true that pursuant to the order issued by the High Court, a medical test was

conducted by Chief Medical Officer, Allahabad who found 1st respondent to

be  unable  to  stand  on her  legs  for  long but  found her  to  be  capable  of

teaching.   In  accordance  with  the  orders  issued  by  the  High  Court  1st

respondent  was  ordered  to  be  reinstated  and  did  join  the  Institution  on

15.05.2010,  shortly  whereafter  there  was a  summer break.   After  she re-

joined on 01.07.2010, within few days she applied for voluntary retirement.

These facts certainly indicate the physical discomfort and disinclination on

part of 1st respondent.  The facts further show that right from 2002 no serious

effort was made by 1st respondent to pursue her legal rights.   The first action

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in point of time was in the year 2006 which culminated in dismissal of writ

petition  in  default.   In  the  face  of  these  facts,  the  order  passed  by  the

appellant holding 1st respondent not to be entitled to any salary in respect of

period of absence was correct and justified.  The effect of the orders passed

by the High Court, on the other hand, is that 1st respondent is to be paid

salary for nearly 10 years when in reality she had actually worked for only

36  days  during  that  period.   She  herself  sought  pre-mature  voluntary

retirement and was allowed to retire and was extended all retired benefits.

12. Considering all these facts and circumstances, the orders passed by

the Single Judge and the Division Bench in the present matter, in our view

are unsustainable and erroneous.  We therefore allow this appeal, set aside

the Judgment and Order under appeal and dismiss Writ Petition No.30513 of

2011.  No costs.

………………………J. (Arun Mishra)

………………..……J. (Uday Umesh Lalit)

New Delhi, May 17, 2018

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ITEM NO.1501               COURT NO.9               SECTION XI

              S U P R E M E  C O U R T  O F  I N D I A

                      RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)  No(s).  28895/2017

(Arising out of impugned final judgment and order dated  21-03-2017 in SAD No. 374/2015 passed by the High Court Of Judicature At Allahabad)

DISTRICT BASIC EDUCATION OFFICER ALLAHABAD         Petitioner(s)

                               VERSUS

SUSHILA JAISWAL (DEAD) THROUGH HER LRS & ORS.      Respondent(s)

Date : 17-05-2018 This petition was called on for hearing today.

For Petitioner(s)    Mr. Rakesh Mishra, AOR

Ms. Roopali Chaturvedi, Adv.

For Respondent(s)     Mr. Rajeev Singh, AOR

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       Hon'ble Mr. Justice Uday Umesh Lalit pronounced the

judgment of the Bench comprising Hon'ble Mr. Justice  Arun Mishra

and His Lordship.  

Leave granted.

Appeal is allowed in terms of the Signed non-reportable

Judgment.  

(NEELAM GULATI)                                 (JAGDISH CHANDER)

COURT MASTER (SH)                                  BRANCH OFFICER

(SIGNED JUDGMENT IS PLACED ON THE FILE)