THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NOS.15825 OF 2007 AND 22070 OF 2009 DATED DECEMBER, 2010 BETWEEN V.Jacintha … Petitioner And Government of Andhra Pradesh, School Education (PS.I) Department, At Secretariat, Hyderabad, Represented by its Secretary to Government. And Others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NOS.15825 OF 2007 AND 22070 OF 2009 COMMON ORDER Success in the earlier round of litigation notwithstanding, the petitioner is sought to be denied the benefits thereof. Hence, these writ petitions. The petitioner is the Headmistress of Our Lady of Fathima Girls High School, Porumamilla, Kadapa District, the fifth respondent in both the writ petitions. She was appointed against an aided post. The genesis of the litigation was the action of the fifth respondent School in relieving her from service, ostensibly upon her resignation letter dated 16.05.1995. According to the petitioner, the said resignation was obtained under coercion and she had, in fact, withdrawn the same immediately thereafter under letter dated 17.05.1995. Her representation in this regard having met with failure before the Commissioner and Director of School Education, Andhra Pradesh, she approached the Government of Andhra Pradesh. By Memo dated 14.06.1996, the Government directed the fifth respondent School to continue the petitioner as Headmistress without break in service and with all consequential financial benefits. Aggrieved thereby, the fifth respondent School filed Writ Petition No.12054 of 1996 before this Court which was allowed by order dated 06.03.1997 on the ground that the School was not given an opportunity of hearing. The matter was therefore remitted to the Government. Thereupon, after consideration of the matter afresh the Government of Andhra Pradesh issued G.O.Ms.No.330, Education (PS.I) Department, dated 17.10.1997, directing the reinstatement of the petitioner in service as the Headmistress of the fifth respondent School with immediate effect. Assailing G.O.Ms.No.330 dated 17.10.1997 the fifth respondent School filed Writ Petition No.28886 of 1997. By order dated 10.08.1999, a learned Judge of this Court dismissed the writ petition holding that the Government was justified in ordering reinstatement of the petitioner in service as the Headmistress of the fifth respondent School. This order stood confirmed in Writ Appeal No.1198 of 1999 instituted by the fifth respondent School, when a Division Bench of this Court by Judgment dated 10.03.2006 dismissed the same. The Supreme Court set its imprimatur on the aforesaid adjudication by this Court when it dismissed the SLP filed by the fifth respondent School on 03.07.2006, observing that it saw no reasons to interfere. As these orders were not given effect to, the petitioner filed Writ Petition No.15825 of 2007 assailing the action of the respondents in not implementing G.O.Ms.No.330 dated 17.10.1997 in spite of its confirmation by the Courts and seeking a consequential direction to the respondents to permit her to join duties as Headmistress of the fifth respondent School and to pay salary to her with effect from 16.05.1995. This Court, by interim order dated 03.12.2007, directed respondents 2 to 5 in the writ petition to forthwith permit the petitioner to join duties as Headmistress of the fifth respondent School and to pay her salary as per G.O.Ms.No.330 dated 17.10.1997. This order was made absolute on 17.01.2008 when the vacate stay petition filed by the fifth respondent School was dismissed. Meanwhile, the Government of Andhra Pradesh issued orders in Memo dated 08.11.2007 instructing the Director of School Education, Andhra Pradesh, to follow up with the management of the fifth respondent School for admitting the petitioner as Headmistress of the School as per G.O.Ms.No.330 dated 17.10.1997 and to direct the School to pay the entire arrears from 16.05.1995 as per the orders of the High Court/Supreme Court. The Government threatened action against the management of the fifth respondent School if it failed to implement the Court orders. In turn, the Director of School Education under proceedings dated 26.11.2007, while communicating the Government Memo dated 08.11.2007, instructed the management of the fifth respondent School to admit the petitioner as Headmistress of the School and to pay her the entire arrears of salary with effect from 16.05.1995. The petitioner was reinstated in service on 22.12.2007. By proceedings dated 29.03.2008, the Director of School Education, Andhra Pradesh, addressed the Principal Secretary to the Government, School Education Department, Government of Andhra Pradesh, Hyderabad, informing him that the petitioner had been admitted as the Headmistress (grant-in-aid post) on 22.12.2007 by the fifth respondent School and that it had also submitted proposals of salaries from 16.05.1995 upto that date. The Director further stated that the District Educational Officer, Kadapa, had forwarded the said proposals under his letter dated 27.03.2008 wherein he stated that the salary arrears claim furnished by the fifth respondent School from 16.05.1995 to 31.03.2008 had been pre-audited by the District Audit Officer, State Audit, Kadapa, under letter dated 26.03.2008 and requested for permission to pay the salary arrears of Rs.25,15,000/- to the petitioner for the said period as this amount had not been claimed earlier for the post. He accordingly sought permission to make the said payment while stating that the same had the approval of his office. As this letter failed to evoke response from the Government of Andhra Pradesh, the petitioner filed WPMP No.14458 of 2009 in Writ Petition No.15825 of 2007 seeking a direction to the Government to forthwith consider the proposals sent by the Director of School Education in his proceedings dated 29.03.2008 and to grant sanction for payment of arrears of her salary. This application was directed to be posted along with the writ petition by order dated 04.08.2009. However, in the meanwhile, the Government of Andhra Pradesh by Memo dated 15.09.2009 rejected the proposals of the Director of School Education, Andhra Pradesh, for payment of arrears to the petitioner from 16.05.1995 to 31.03.2008 on the ground of ‘no work, no pay’. Challenging the said proceedings, the petitioner filed Writ Petition No.22070 of 2009. It appears that earlier she made another representation to the Government on 14.09.2009 which evoked response under Memo dated 17.11.2009 wherein the Government, while affirming its decision embodied in the Memo dated 15.09.2009, opined that as it was not at fault payment of arrears from 1995 to 2008 would not arise and therefore, she should approach the management of the School for redressal. This, then, is the litigative history that precedes the present cases. The tussle, as is obvious from the above facts, is between the Government and the School as to who should shoulder the financial burden occasioned by the reinstatement of the petitioner as Headmistress. It is relevant to note that in G.O.Ms.No.330 dated 17.10.1997, the Government after considering the matter afresh upon remand by this Court held that the resignation tendered by the petitioner was to be considered invalid and accordingly ordered her reinstatement in service as Headmistress with immediate effect. This Court set its seal of approval on this order which found confirmation before the Supreme Court. Therefore, the right of the petitioner to be reinstated in service as Headmistress stood crystallized. The Government was also aware of this fact as is clear from its Memo dated 08.11.2007. However, as the post held by the petitioner was admitted to grant-in-aid, the fifth respondent School sought to disown financial liability and submitted proposals for drawing the arrears of grant-in-aid to pay the salary dues of the petitioner. As this found approval with the Director of School Education, Andhra Pradesh, as is evidenced by his letter dated 29.03.2008, the Government appears to have been in a fix as to how to disown its own responsibility. By the proceedings dated 15.09.2009, the Government struck upon the idea of applying the principle of ‘no work, no pay’ to reject the petitioner’s claim for salary arrears. However, the Government’s Memo dated 17.11.2009 issued soon thereafter contradicts this stand as the petitioner was informed thereunder that the Government was not at fault and therefore payment of arrears would not arise. She was accordingly asked to approach the management of the School for redressal of her issues. The facts aforestated demonstrate that in so far as the petitioner’s right to claim arrears of salary from 16.05.1995 is concerned, the same stood settled under G.O.Ms.No.330 dated 17.10.1997 which was confirmed in the earlier round of litigation. As the post was admitted to grant-in-aid, the Government of Andhra Pradesh is under a statutory obligation under the provisions of the Andhra Pradesh Education Act, 1982 to make good the petitioner’s claim. It is no doubt true that under Section 46(2)(vii) of the said Act, the Government is empowered after making such enquiry as it deems fit to withhold, reduce or withdraw any grant payable to an education institution if the manager of the institution concerned fails to restore, within the time specified by the competent authority, an employee whose services have been wrongfully dispensed with or fails to pay him any arrears of salary or other benefits when directed to do so by the competent authority. However the learned Government Pleader for School Education, upon instructions, informed the Court that no orders were passed under this provision in spite of the failure of the fifth respondent School to comply with the directions contained in G.O.Ms.No.330 dated 17.10.1997. Had the Government passed appropriate orders under this statutory provision, there would be merit in its contention that thereafter, the financial responsibility rested solely upon the fifth respondent School in so far as the petitioner’s arrears are concerned. Having failed to do so, it is not open to the Government to disown its liability at this stage. Having admitted the petitioner’s entitlement in this regard in its Memo dated 08.11.2007, the Government cannot seek to reverse its stand when faced with the consequent financial liability. The advise tendered by the Government to the petitioner in its later Memo dated 17.11.2009 that as it was not at fault, the petitioner should approach the management of the fifth respondent School for her arrears clearly indicates the actual position. The lame and halfhearted attempt on the part of the Government to apply the principle of ‘no work, no pay’ so as to deny the claim of the petitioner cannot therefore be countenanced. I n SRIKANTHA S.M. V/s. BHARATH EARTH MOVERS LTD.[1], the Supreme Court was dealing with a similar situation where an employee had withdrawn his resignation, yet he was not allowed to work. The contention of the employer was that as the employee had not actually worked, even if the Court held that its action was not in consonance with law, the employee would be entitled to other benefits except the salary which should have been paid to him as the principle of ‘no work, no pay’ would apply. The Supreme Court however rejected this contention relying upon its earlier Judgment in J.N.SRIVASTAVA V/s. UNION OF INDIA[2], and held that when the employee was willing to work but the employer did not allow him to do so it would not be open to the employer to deny monetary benefits to the employee who was not permitted to discharge his duties. Reference may also be made to the observations of the Supreme Court in COMMISSIONER, KARNATAKA HOUSING BOARD V/s. C.MUDDAIAH[3]: “34. We are conscious and mindful that even in absence of statutory provision, normal rule is “no work no pay”. In appropriate cases, however, a court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering “as if he had worked”. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected.” In the present case also, the entitlement of the petitioner to seek arrears stood crystallized under the earlier adjudication which was confirmed by the Apex Court. It is therefore not open to the Government to deny the same at this stage by pressing into service a wholly inapplicable principle. The learned Government Pleader for School Education placed reliance on the recent Judgment of the Supreme Court in SENIOR SUPERINTENDENT TELEGRAPH (TRAFFIC) BHOPAL V/s. SANTOSH KUMAR SEAL[4], in support of his contention that the petitioner should not be awarded arrears of salary. It is however to be noticed that the aforestated case arose under the Industrial Disputes Act, 1947 and dealt with the issue as to whether relief of reinstatement and back wages would be justified in the facts of that case or whether monetary compensation would subserve the ends of justice. The case on hand being entirely different on facts, the aforestated Judgment has no application. At the same time, this Court is conscious of the fact that this entire imbroglio is attributable to the actions of the fifth respondent School which did not want to abide by the decision of the Government embodied in G.O.Ms.No.330 dated 17.10.1997. It is surprising to note that the fifth respondent School in spite of the dismissal of its SLP by the Apex Court tried to nullify the effect thereof by applying to the former Chief Minister of the State under its letter dated 23.07.2006 to suspend G.O.Ms.No.330 dated 17.10.1997, review the entire matter and pass necessary orders upholding the right of minority and religious sentiments. This letter is nothing short of committing contempt of the court orders. In so far as the petitioner’s claim for arrears are concerned, the fifth respondent School stated that it did not receive a single pie from the Government towards grant-in-aid for the post of Headmistress and therefore it was not liable to pay the arrears of salary of the petitioner. This stand on the part of the fifth respondent School cannot be accepted, notwithstanding the failure of the Government to exercise power under Section 46(2)(vii) of the Andhra Pradesh Education Act, 1982. The fact remains that the fifth respondent School disobeyed the orders of the Government with regard to the reinstatement of the petitioner issued as long back as in the year 1997. Once the post was admitted to grant-in-aid, the fifth respondent School was bound to comply with the directions of the Government. Having failed to adhere thereto and having chosen the luxury of testing such directions upto the Supreme Court, the fifth respondent School cannot blithely seek to push the financial liability on to the Government and step aside untouched. Reference in this regard may be made to the unreported decision of this Court in SMT.A.THERESAMMA V/s. GOVT. OF A.P., EDUCATION DEPT., SCHOOL EDUCATION[5]. A copy of the said order is placed on record and reflects that in a similar fact situation, a Teacher who had been kept out of service illegally was sought to be denied salary and emoluments for the said period on the application of the principle of ‘no work, no pay’. The learned Judge held that such action was totally perverse. Referring to the earlier litigation in that case, adjudication whereof unequivocally determined and confirmed the Teacher’s entitlement for her salary and emoluments during the period that she was out of service, the learned Judge held that the Education Department was obligated to pay the Teacher’s salary and emoluments for the decade during which she was illegally ousted from service but left it open to the Education Department to determine the question as to whether such ousting was on account of the negligent/extraneous administrative conduct of the School and on such conclusion, to recover the amounts paid to the Teacher from the grant-in-aid funds payable to the School, after giving notice to it of such proposal. In the present case, there can be no doubt that the delay in the reinstatement of the petitioner as Headmistress pursuant to G.O.Ms.No.330 dated 17.10.1997 was solely because of the adamant attitude of the fifth respondent School in not abiding by it and choosing to run the gamut of the judicial hierarchy in its efforts to get it set aside. Therefore, it shall be open to respondents 1 to 4 to initiate necessary action in accordance with law to recover the amounts paid to the petitioner towards her arrears of salary from the fifth respondent School, be it from the grant-in-aid funds or otherwise. The impugned Memo dated 15.09.2009 passed by the Government of Andhra Pradesh is accordingly set aside. There shall be a direction to respondents 1 to 4 to pay the entire arrears of salary to the petitioner from 16.05.1995 as per the proposal dated 29.03.2008 submitted by the Commissioner and Director of School Education, Andhra Pradesh, Hyderabad. She would also be entitled to regular pay and emoluments as per her entitlement and eligibility from the date of her reinstatement. This exercise shall be completed within two (2) months from the date of receipt of a copy of this order. As stated supra, it shall be open to respondents 1 to 4 to initiate necessary action in accordance with law for recovering the amounts paid to the petitioner towards arrears from the fifth respondent School. As no furthers are required in WPMP No.14458 of 2009 in Writ Petition No.15825 of 2007, the same is dismissed. In the result, Writ Petition No.15825 of 2007 and Writ Petition No.22070 of 2009 are allowed. Parties shall bear their own costs. ---------------------------- SANJAY KUMAR, J. ________ DECEMBER, 2010. PGS [1] (2005) 8 SCC 314 [2] (1998) 9 SCC 559 [3] (2007) 7 SCC 689 [4] (2010) 6 SCC 773 [5] W.P.No.21541 of 1999 dated 12.08.2002