District Basic Education Officer ... vs Sushila Jaiswal (Dead) Through Her Lrs

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 1 st 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 3 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 1 st 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:-

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 1 st 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 5 on 01.07.2010 and by her application dated 17.07.2010 1 st 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.

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 1 st 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 1 st 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 8 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 1 st 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.

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, 1 st 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.

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 9 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 10 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.