Holding

The respondent is not entitled to reinstatement as he has already superannuated; he is entitled to 50 % of his salary from 30 Nov 1987 until his superannuation.

Summary

The respondent, S.C. Misra, was appointed lecturer in science at an Ayurvedic college. When the science section was closed in 1971‑72 his post was abolished and his services were terminated on 6 June 1972. After the college was taken over by the Government, he failed to submit the required option to join government service and his services were again terminated effective 9 January 1975. He filed a claim before the Service Tribunal in 1981; the Tribunal allowed his petition and ordered reinstatement and back salary, which was upheld by the High Court, but the Supreme Court later set aside the reinstatement order. The Supreme Court held that because the respondent had already superannuated, reinstatement was impossible and, applying the principle of ‘no work, no pay’, ordered payment of only 50 % of his salary from 30 November 1987 until his superannuation, directing the government also to consider any pension liability. The appeal was disposed of with no costs awarded.

Issues considered

Whether a service employee who has superannuated can be reinstated under a Tribunal order.
Whether the delay in filing the claim petition can be attributed to either party and its effect on the relief.
What quantum of monetary relief is appropriate when the employee has not performed any work during the disputed period.

Subjects

service lawtermination of servicesreinstatementsuperannuationdelayno work no paysalary arrearspension

Judgment

PRINCIPAL, AYURVEDIC COLLEGE AND ORS. A
v.
SIJSHIL CHANDRA MISRA AND ANR.

MAY 23, 2006

[DR. AR. LAKSHMANAN AND LOKESHWAR SINGH PANTA, JJ.] B

Service law :

Termination of Services-Claim for reinstatement-On facts, held,
since the employee has already superannuated, question of reinstatement C
does not arise-The delay involved in the litigation cannot be attributed to
either the employer or the employee-Ends of justice would be met if the
employee is paid 50% of th~ salary from 30.11.1987 till date of
Superannuation.

Respondent No.1 was appointed as a lecturer in 'Science subject'
D
in an Ayurvedic College. In 1971-72, the Science section was closed
down and the post of lecturer in science was abolished, and the services
of respondent No.t were terminated vide order dated 6.6.1972. Against.
the termination order, Respondent No.I made a representation on
28.8.1972. On 10.10.1974, the college was taken over by the Government E
and employees of the college were asked to submit option within 3
months for continuing in Government service. On 2.7.1977, Government
terminated the services of respondent No.I from 10.1.1975 as he had not
given any option to join the Government service and further directed
appellants to pay salary to respondent No. I for the period starting from F
6.6.1972 to 9.1.1975. Respondent No.I made a claim petition to the
Tribunal in I981 against the order of termination communicated to him
on 2.7.1977. Vide Order dated 30.ll.I987, Tribunal allowed the claim
petition. Appellants unsuccessfully filed writ petition before High Court.
Hence the present appeal. .
G
Disposing of the appeal, the Court

HELD: 1.1. Respondent no. I is not entitled for reinstatement as
directed by the Tribunal or the High Court since he has already retired
on superannuation. [867-G] H
863
864 SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A 1.2. 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', 50% of the salary is ordered
to be paid to respondent no. I which would meet the ends of justice.
Therefore, Appellants are directed to pay to respondent no. I the salary
from 30.I l.1987 till the date of superannuation. It is clarified that he
B 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 respondent no. I 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
C 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. [867-C-F[

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6527 of
D 2005.

From the Judgment and Order dated 7.4.2004 of the High Court of
Judicature at Allahabad Lucknow Bench in W.P. No. 3920 (SIB) of 1989.

Pramod Swarup for Jatinder Kumar Bhatia Adv., for the Appellants.

E Sudhir Kulshreshtha Adv., for the Respondents.

The Judgment of the Court was delivered by

DR. AR. LAKSHMANAN, J. : Heard both sides.
F 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
G 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. I 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
H
PRINCIPAL, AYURVEDIC COLLEGE AND ORS. v. S.C. MISRA AND ANR. (LAKSHMANAN, J.] 865

done by the Receiver, i.e., the District Magistrate. On 19.11.1967, respondent A
No. I 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.I was declared
surplus.
B

The services of respondent No.I was terminated vide order dt.
06.06.1972. The order of termination was communicated to the respondent
No. I 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 c
order dt. 06.06.1972, the respondent No.I 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.
D
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 E
counted towards pension etc. In the instant case, according to the appellants,
no such option was given by the respondent No. I within the stipulated time.
The services of respondent No. I was again terminated as he had not given
any option to join the government service.
F
Vide order dt. 02.07.1977, the Government terminated the service of
the respondent No. I as he did not give his option and further directed the
·appellants to pay the respondent No. I for the period starting from 06.06.1972
to 09.01.1975. The termination order was set aside and the respondent No.I
was paid the arrears of salary from 06.06.1972 to 09.01.1975 amounting to
Rs. 14,901.50 on 19.02.1979. G

The respondent No. I 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 H
866 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A the judgment, the appellant-State of U.P. filed a Writ Petition No.3920/1989
which was contested by the respondent No. I. The Writ Petition was allowed
by the High Court on 04.04.1997. The respondent No. I filed SLP(C)
No.1668/1989 and this Court remanded the matter back for reconsideration

B
on 16.10.1998. The concluding portion of the Order passed by this 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
c 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.l 1204(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 tenninated till the
D 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
E 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.
F
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
G infonnation was published in the official gazette and, therefore, the respondent
No. I 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
H of action had accrued to the respondent No. I as far back as on 02.07.1977
PRINCIPAL, AYURVEDIC COLLEGE AND ORS. v. S.C. MISRA AND ANR. [LAKSHMANAN, J.] 867

when his services were tenninated with effect from 10.10.1975. However, A
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 Swamp
submitted that the respondent No. I has already received the salary for the
entire period from the date of tennination till the date of the Tribunal's
order dt.30. 11.1987 without doing any work and, therefore, if the order of
B
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.
c
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. I it would meet the
ends of justice. We, therefore, direct the appellant to pay to respondent No. I D
the salary from 30.11.1987 till the date of superannuation (the exact date is
not known).

We also make it clear thatthe respondent No.I would be entitled for
the salary oflecturer 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 E
etc. for any further promotion etc. The Government may also consider
whether any pension is payable to the respondent No. I because the college
is now taken over by the State Government. The Government is directed to
consider the same and pass appropriate orders accordingly.
F
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.
G
The appeal stands disposed of in the above tenns. There shall be no
order as to costs. The order passed by the Tribunal as affinned by the High
Court is modified accordingly.

D.G. Appeal disposed of. H