SMT. SARAN KUMAR GAUR & ORS.versusSTATE OF UTTAR PRADESH & ORS.

              SMT. SARAN KUMAR GAUR & ORS.
                                                                                A
                           v.

              STATE OF UTTAR PRADESH & ORS.

                           AUGUST 13, 1991 .
                                                                                B
     [RANGANATH MISRA, CJ AND KULDIP SINGH. J.]

      Service Law: College teachers-Strike-Called back to duty-
Not joining within time-Alternate teachers appointed-Entitlement to
salary-Applicabi!ily of ihe principle 'No work-No pay'-Teachers
absorbed back in the same institution-Seniority-Credit to be given for
the mterreg11um.
                                                                                c
        The appellants, teachers in. a minority institution fully financed
 by State, went on a strike and when they were called back to duty, they
 did not return within time, leading to appointment of alternate
.teachers. They approached the High Court for their absorption. The             D
 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 t_he 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 seniority 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,
                                                                                F
      HELD J. One set of teachers have actually worked while the other
set has not. The 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. 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        G
to remuneration for the work done; However, the institution has admit-
tedly 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 cl2im the same. It does not              H

                                    559
    560                    SUPREME COURT REPORTS             [1991J 3 S.C.R.

    finally close their claim against the State or the institution. The
A
    alternate teachers who have worked and if they have not been paid, they
    should be disbursed the s~lary due to them. There is some contest as to
    whether they are qualified or not. On the basis of the facts on record the
    teachers appear to be qualified and that que<tion should not be
    reopened. In regard to two teachers who were p•·epared to wait to take
B   their chance, they would not be paid any remuneration. 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 ofno 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.
c   The Director of Public Instruction is required 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. [5630]
D
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2145
    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.
E
         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.
F
          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.
G   This is claimed to be a minority institution but fully financed from the
    State resources.

          By interlocutory orders made from time to time the real litigative
    part of the dispute has already been attended to. We would refer to
    our order of 2nd May, 1991 where this court observed "We are happy to
H   find that pursuant to our order made earlier in this case Smt. Kamla
                    SARAN GAUR '· STATE OF U.P.                      561

Mehra, Smt. Saran Kuma·i Gaur and Swaliha Begum have been given
                                                                            A
postings and they have already reported to duty. So far as petitioners
Km. Asifa Rizvi, Km. Sayyada Rizwani and Shafiqa Begum are con-
cerncd .. Ms. Dikshit points out that though there is some possibility of
adju~ting 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.           B

      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 institutions shall take our present order as a direc-
tion to adjust them and as and when called by the Director of Secon-
dary Education it shall be implemented. Failure to comply shall be          c
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 speciality is about
to arise in the coming month. If that be so, Ms. Dikshit has agreed to      D
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 out that in
their subjects there is no vacancy. In these circumstances, they have
choice to wait indefinitely till vacancy occurs without claiming salary     E
till employment. If this is not acceptable to them the order of termina-
tion already made shall be taken as final and conclusive and their
petition shall stand dismissed."

      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        F
a posting in Mathura, away from the institution where she had been
working and she did not choose to go there. Mr. Markandeya appear-
ing 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 ha.s been         G
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    H
    562                   SUPREME COURT REPORTS             [!99lj 3 S.C.R.

    suggested to the Government that as and when a vacancy arises she
A
    shoulJ be accommodated in a post according to her entitlement.

          So far as Smt. Sudha Dixit is concerned, we think :l situation has
    now arisen where the Director must implement our order. We had
    clothed him with adequate powers by our order of 2nd May, 1991 and
B   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
c   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
0   teachers who are substituted did not possess the requisite qualification
    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, there-
E   fore, 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 appro-
    priate management has not. We are told that teachers had gone on
F   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 appoint-
    ment 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 rep-
    resented by Mr. Kalra did work during the period. It may not he
G   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 not done remun-
    eration 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.
H   it is open to them to take appropriate proceeding to claim the same.
                    SARAN GAUR v. STATE OF U.P.                      563

We do not finally close their claim against the State of the institution.   A
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.
                                                                            B
       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 c
.of no work.

      We, are, however, of the view that seven teachers who have got
employment should be given their. iiCniority 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        D
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     E
leave and got dragged into a dispute which should not have been
brought upto this court.

G.N.                                                 Appeal disposed of.