The Supreme Court on 17th May, 2018 said that “no work no pay” as per the provisions of UP Financial Handbook and concerned rules are completely valid and should be used in appropriate cases. This judgment was given by the bench of Hon’ble Justices Arun Mishra and Uday Umesh Lalit in the case of District Basic Education Officer Allahabad V. Sushila Jaiswal (Dead) through her Lrs and Ors.[CIVIL APPEAL NO. 5628 OF 2018]
This appeal challenged the decision dated 21.03.2017 passed by the High Court of Judicature at Allahabad dismissing Special Appeal (Defective) No.374 of 2015 preferred by the appellant herein.
The Institution named “Junior High School, Dandupur, Chaka, Allahabad” is an Institution recognized under UP Basic Education Act, 1872 and its staff receives salary under the provisions of UP Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978. 1st respondent-Sushila Jaiswal (since deceased, represented by her legal representatives) was initially appointed as Assistant Teacher in a Primary School on the basis of appointment letter dated 12.06.1979. 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.
The aforesaid order was challenged by 1st respondent by filing Writ Petition No.18853 of 2010 and the High Court by its order dated 07.04.2010 directed CMO, Allahabad to conduct medical test in respect of 1st respondent and submit a report. The Chief Medical Officer recorded that 1st respondent was suffering from osteoarthritis and could not stand for long period but observed that she was 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.
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 1strespondent 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.
The decision of no pay was challenged by 1st respondent by filing Writ Petition No.30513 of 2011 which was allowed by Single Judge o the High Court vide order dated 10.03.2015. The Single Judge set aside the no pay decision 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, 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.
The appelants contended before the Supreme Court 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.
The Supreme Court in its judgment said “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 ofteaching. 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 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 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.
Considering all these facts and circumstances the Supreme In its decision said , the orders passed by the Single Judge and the Division Bench in the present matter, in our view are unsustainable and erroneous. Therefore the court allowed this appeal and set aside the Judgment and Order under appeal and dismiss Writ Petition No.30513 of 2011.