Case: District Basic Education Officer Allahabad Vs. Sushila Jaiswal (dead) through her L.Rs. and Ors

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 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.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 81/2 % 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 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 rejoined 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 rejoined 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 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.