# The observation made in J.K.Synthetics Ltd v. K.P.Agrawal

- **Citation:** (2014) 3 ILRA 1485
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-11-12
- **Case number:** Civil Misc. Writ Petition No. 41068 of 1996
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-observation-made-in-j-k-synthetics-ltd-v-k-p-agrawal-43050
- **Pages:** 6

## Headnote

U.P. Intermediate Education Act, 1921chapter II Regulation 3(1)(b)-seniority
determination-petitioner
as
well
Respondent-5 appointed as lecturer on
same day approval-Respondent-5 joined
earlier than petitioner-authority concern
without considering the age factorwrongly held-respondent-5 senior than
petitioner-in meantime regular principal
retired-management send proposal for
officiating
principal
to
respondent-5
approved by DIOS-petitioner retired on
30.06.2000-while
respondent-5
on
30.06.2002-admittedly petitioner being
senior most lecturer-could not discharge
the duty of officiating principal-hence
except compensation of Rs. 2 lacs no
salary-payable
w.e.f.
01.07.96
to
30.06.2002-but fixation of salary shall be
made as officiating principal notionally
with all other retirement benefits-what
so ever amount paid to respondent-5shall not be recovered.
Held: Para-22
As the respondent no.5 has already
worked as officiating Principal in the
institution w.e.f. 1.7.1996 to 30.6.2002,
she must have been paid salary against
the said post, therefore, considering the
aforesaid fact and also the fact that the
petitioner actually did not function on
the said post during the aforesaid period,
it is not possible to grant salary of the
post of Principal to the petitioner as
claimed by her, however, considering the
fact that her statutory right was violated
on account of arbitrary and illegal action
of the official respondent no.1, Deputy
Director of Education, Agra Region, Agra,
the
petitioner
deserves
to
be
compensated
for
the
financial
loss
caused to her. Considering the facts and
circumstances of the case an amount of
Rs.2
lakh
payable
by
the
State
Government to the petitioner shall be
adequate
compensation
to
the
petitioner. The aforesaid amount shall be
paid by the respondent State to the
petitioner
within
two
months.
In
addition to the above, it is provided that
the salary of the petitioner shall be fixed
treating her as officiating Principal of the
institution w.e.f. 1.7.1996 notionally and
based
thereon,
the
post
retirement
benefits like pension, etc. be revised and
re-fixed, if permissible under the rules,
within a period of six months from the
date a certified copy of this order is
produced before the concerned officer.
The
salary,
emoluments
and
post
retirement benefits already paid to the
respondent
no.5
and
consequential
benefits based thereon, shall remain
unaffected by this judgement.
Case Law discussed:
2007 Law Suit (All) 90:207(3) ADJ 1; [2011
(4) ADJ 401]; (1998) UPLBEC 181.

## Text

3 All]. Smt. Satyabhama Dubey Vs. Regional Deputy Director of Education, Agra & Ors.
1485
Court or Tribunal will be fully justified in
directing payment of full back wages. In
such cases, the superior Courts should not
exercise power under Article 226 or 136 of
the Constitution and interfere with the award
passed by the Labour Court, etc., merely
because there is a possibility of forming a
different opinion on the entitlement of the
employee/workman to get full back wages or
the employer's obligation to pay the same.
The Courts must always be kept in view that
in the cases of wrongful/ illegal termination
of service, the wrongdoer is the employer
and sufferer is the employee/workman and
there is no justification to give premium to
the employer of his wrongdoings by
relieving him of the burden to pay to the
employee/workman his dues in the form of
full back wages.
vi) In a number of cases, the superior
Courts have interfered with the award of
the primary adjudicatory authority on the
premise that finalization of litigation has
taken long time ignoring that in majority
of cases the parties are not responsible for
such delays. Lack of infrastructure and
manpower is the principal cause for delay
in the disposal of cases. For this the
litigants cannot be blamed or penalised. It
would amount to grave injustice to an
employee or workman if he is denied
back wages simply because there is long
lapse of time between the termination of
his service and finality given to the order
of reinstatement. The Courts should bear
in mind that in most of these cases, the
employer is in an advantageous position
vis-a-vis the employee or workman. He
can avail the services of best legal brain
for prolonging the agony of the sufferer,
i.e. , the employee or workman , who can
ill afford the luxury of spending money
on a lawyer with certain amount of fame.
Therefore, in such cases it would be
prudent to adopt the course suggested in
Hindustan Tin Works Private Limited v.
Employees of Hindustan Tin Works
Private Limited (supra).
vii)
The
observation
made
in
J.K.Synthetics
Ltd.
v.
K.P.Agrawal
(supra)
that
on
reinstatement
the
employee/workman
cannot
claim
continuity of service as of right is
contrary to the ratio of the judgments of
three Judge Benches referred to herein
above and cannot be treated as good law.
This part of the judgment is also against
the very concept of reinstatement of an
employee/workman."
11. In view of the above taking into
consideration the facts and circumstances
of this case I am of the view that the
petitioner is entitled for 40 percent of the
back wages. The petitioner shall be paid
the said amount within four months from
the date of communication of this order.
12. Let a certified copy of this order be
issued to learned Standing Counsel free of
cost for communication and compliance of
this order. Writ petition is allowed.
13. There shall be no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.11.2014
BEFORE
THE HON'BLE RAJAN ROY, J.
Civil Misc. Writ Petition No. 41068 of 1996
Smt. Satyabhama Dubey
...Petitioner
Versus
Regional Deputy Director of Education,
Agra & Ors.
...Respondents
Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare, Sri
Mukesh Kumar
1486
 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
S.C., Dr. Daya Shankar, Sri K.N. Singh, Sri
P.K. Jain
U.P. Intermediate Education Act, 1921chapter II Regulation 3(1)(b)-seniority
determination-petitioner
as
well
Respondent-5 appointed as lecturer on
same day approval-Respondent-5 joined
earlier than petitioner-authority concern
without considering the age factorwrongly held-respondent-5 senior than
petitioner-in meantime regular principal
retired-management send proposal for
officiating
principal
to
respondent-5
approved by DIOS-petitioner retired on
30.06.2000-while
respondent-5
on
30.06.2002-admittedly petitioner being
senior most lecturer-could not discharge
the duty of officiating principal-hence
except compensation of Rs. 2 lacs no
salary-payable
w.e.f.
01.07.96
to
30.06.2002-but fixation of salary shall be
made as officiating principal notionally
with all other retirement benefits-what
so ever amount paid to respondent-5shall not be recovered.
Held: Para-22
As the respondent no.5 has already
worked as officiating Principal in the
institution w.e.f. 1.7.1996 to 30.6.2002,
she must have been paid salary against
the said post, therefore, considering the
aforesaid fact and also the fact that the
petitioner actually did not function on
the said post during the aforesaid period,
it is not possible to grant salary of the
post of Principal to the petitioner as
claimed by her, however, considering the
fact that her statutory right was violated
on account of arbitrary and illegal action
of the official respondent no.1, Deputy
Director of Education, Agra Region, Agra,
the
petitioner
deserves
to
be
compensated
for
the
financial
loss
caused to her. Considering the facts and
circumstances of the case an amount of
Rs.2
lakh
payable
by
the
State
Government to the petitioner shall be
adequate
compensation
to
the
petitioner. The aforesaid amount shall be
paid by the respondent State to the
petitioner
within
two
months.
In
addition to the above, it is provided that
the salary of the petitioner shall be fixed
treating her as officiating Principal of the
institution w.e.f. 1.7.1996 notionally and
based
thereon,
the
post
retirement
benefits like pension, etc. be revised and
re-fixed, if permissible under the rules,
within a period of six months from the
date a certified copy of this order is
produced before the concerned officer.
The
salary,
emoluments
and
post
retirement benefits already paid to the
respondent
no.5
and
consequential
benefits based thereon, shall remain
unaffected by this judgement.
Case Law discussed:
2007 Law Suit (All) 90:207(3) ADJ 1; [2011
(4) ADJ 401]; (1998) UPLBEC 181.
(Delivered by Hon'ble Rajan Roy, J.)
1. Heard Shri Siddharth Khare,
learned counsel for the petitioner and
learned Standing Counsel for respondents
no.1, 2 and 3. None appears for the
respondent no.5.
2. The petitioner and respondent no.5
were appointed as lecturer in the respondent
institution vide order dated 30.11.1972 and
there is no dispute in this regard. It is also
not in dispute that in pursuance to the
aforesaid order of substantive appointment,
the petitioner joined on the post in question
on 1.12.1972 whereas respondent no.5
joined earlier, i.e., 30.11.1972. In paragraph
13 of the writ petition a categorical assertion
has
been
made
that
the
aforesaid
appointment
of
the
petitioner
and
respondent no.5 were approved by the
competent authority by the same order of
the same date passed sometime in
December, 1972. This fact has not been
categorically and specifically denied by any
of the respondents.
3 All]. Smt. Satyabhama Dubey Vs. Regional Deputy Director of Education, Agra & Ors.
1487
3.
A seniority list of lecturers was
issued by the management in the year 198182 wherein the petitioner was shown as
senior to the respondent no.5. Thereafter, on
11-3-1985, an order was passed by the
respondent no.2 declaring the respondent
no.5 as senior to the petitioner on the ground
that the respondent no.5 has joined her
service prior to the petitioner, as already
mentioned in the earlier part of this
judgement.
4. Being aggrieved, the petitioner
filed a writ petition before this Court
challenging the aforesaid order dated
11.3.1985 which was disposed of on
22.1.1996 setting aside the said order on
the ground of violation of principles of
natural justice with liberty to the
respondents to pass a fresh order after
giving due opportunity of hearing.
5. In pursuance to the aforesaid, the
Deputy Director of Education, Agra
Region, Agra, issued a notice to the
petitioner
and
other
concerned
on
26.4.1996. In response thereto, the
petitioner herein, replied and the other
concerned persons also filed the reply.
6. In the meantime, while the
proceedings were pending before the
Deputy Director of Education, Agra
Region, Agra, the regular incumbent
working on the post of Principal retired
on 30.6.1997.
7. On 1.7.1997, an order was passed
by
the
management,
appointing
respondent no.5 as officiating Principal of
the institution which was approved by the
official respondent.
8. Being aggrieved, the petitioner
herein, filed a writ petition before this
Court which was disposed of vide
judgment dated 5.8.1996 with a direction
to the Deputy Director of Education
(Secondary), Agra Region, Agra, to
decide the inter se seniority dispute
between the petitioner and respondent
no.5 within a stipulated period.
9. In pursuance to the aforesaid, the
impugned order dated 26.11.1996 was
passed, wherein, the respondent no.5 has
been held to be senior to the petitioner,
consequently, her officiation on the post
of Principal of the institution has been
affirmed.
10. The contention of Shri Khare,
learned counsel for the petitioner is that
both the contesting parties having been
substantively appointed by an order of the
same date and such appointment having
been approved by the competent authority
on the same date by the same order, it is
their age which would be the determining
factor in the matter of seniority, in view
of the provisions contained in Regulation
3(1)(b) of Chapter II of the Regulations
framed under U.P. Intermediate Education
Act, 1921 (for short "Act of 1921"). The
contention is that the petitioner being
elder in age was senior and his seniority
was wrongly upset by the respondents
resulting in officiating appointment of
respondent no.5 and deprivation of right
of the petitioner to officiate as Adhoc
Principal and causing financial loss to her.
The petitioner has mentioned her date of
birth in paragraph 9 of the writ petition as
10.8.1939, whereas the date of birth of
respondent
no.5
is
mentioned
as
14.1.1942. He contends that this fact has
not been denied in the counter affidavit.
11. Learned counsel for the
petitioner submitted that keeping in mind
1488
 INDIAN LAW REPORTS ALLAHABAD SERIES
the financial loss caused to the petitioner,
she should be treated as officiating
Principal
w.e.f.
1.7.1996
with
consequential salary of the post etc.
12. Shri Khare has contended that as
the petitioner was willing to work but was
prevented to do so, therefore, the principle
'no work, no pay' will not apply and the
petitioner shall be entitled to full salary
for such period during which she was
prevented from working as officiating
Principal.
13.
In this regard he has relied upon
the judgements of this Court in Brijendra
Prakash Kulshrestha v. Director of Education
and others, 2007 Law Suit (All) 90 : 207 (3)
ADJ 1 and in Kishori Lal v. Chairman Board
of Director, Aligarh Gramin Bank Aligarh,
[2011 (4) ADJ 401].
14. The contention of learned
Standing Counsel is that as the respondent
no.5 has joined on the post of lecturer
prior to the petitioner, therefore, she has
rightly been held to be senior to the
petitioner.
15. I have heard learned counsel for
the parties and perused the record.
16. The seniority of teachers in the
institution in question is to be determined
in
accordance
with
the
provisions
contained in Regulation 3 of Chapter II of
the Regulations framed under the Act of
1921. Regulation3 of the Regulations is
extracted as hereinbelow:
"3. (1) The Committee of Management
of every institution shall cause a seniority
list of teachers to be prepared in
accordance with the following provisions-
(a) The seniority list shall be
prepared separately for each grade of
teachers
whether
permanent
or
temporary, on any substantive post;
(b) Seniority of teachers in a grade
shall be determined on the basis of their
substantive appointment in that grade. If
two or more teachers were so appointed
on the same date, seniority shall be
determined on the basis of age;
(bb) Where two or more teachers
working inh a grade are promoted to the
next higher grade on the same date, their
seniority inter se shall be determined on
the basis of the length of their service to
be reckoned from the date of their
substantive appointment in the grade from
which they are promoted:
Provided that if such length of
service is equal, seniority shall be
determined on the basis of age.
ij T;s"Brk fu/kkZfjr dh tk;sxhA
(2) The seniority list shall be revised
every year and the provisions of Clause
(1) shall mutatis mutandis apply to such
revision."
17. The aforesaid provision clearly
states that the seniority of teachers shall
be determined on the basis of their
substantive appointment on the said post.
Substantive appointment in this case
would be an appointment which is duly
approved by the competent authority.
Both the petitioner and respondent no.5
were
appointed
vide
order
dated
30.11.1972. The averments made in
paragraph 13 of the writ petition to the
effect that their appointments were duly
approved by the same order passed
sometime in December 1972 has not been
categorically and specifically denied by
any of the respondents by asserting to the
contrary. A bald denial has been made
which is no denial in the eye of law. No
3 All]. Smt. Satyabhama Dubey Vs. Regional Deputy Director of Education, Agra & Ors.
1489
material has been produced before the
Court to establish that the respondent
no.5's appointment was approved prior to
that of the petitioner. The contents of
paragraph 9 of the writ petition wherein
their respective dates of birth have been
mentioned, have also not been denied by
the respondents and there is nothing on
the record to show to the contrary. The
petitioner having been born on 10th
August 1939 is older in age to the
respondent no.5 herein, who was born on
14.1.1942, therefore, clearly in view of
the aforesaid provisions, the petitioner
was senior to respondent no.5.
18. On a perusal of the impugned
order, I find that the concerned authority
has only considered part of the provisions
contained in Regulation 3 (1)(b) of the
Regulations
that
too
cursorily
and
superficially. He has only referred to the
first line of the provision to the effect that
seniority will be determined on the basis
of the date of substantive appointment and
thereafter has proceeded to consider the
date of joining of the contesting parties
and has held the respondent no.5 to be
senior based thereon, without noticing
that the date of joining is not mentioned
as a criteria for determining seniority,
instead, in the event two or more persons
have been appointed on the same date,
then, their age is to be the determining
factor. He has not at all considered the
age of the parties while determining the
seniority dispute. Thus, clearly the
consideration of the said authority is
without adverting to the relevant and
complete
provisions,
referred
to
hereinabove. In this regard, learned
counsel for the petitioner has relied upon
a decision of the Lucknow Bench of this
Court in Jagat Narain Dwivedi vs. Deputy
Director of Education, Ivth Region,
Allahabad and others, reported in (1998)
1 UPLBEC 181. In paragraph 4 and 13 of
the said judgment it has been held that
where the order of appointment and
approval are of the same date, then, it is
the age that is the determining factor in
the mater of seniority of the teachers.
19. As no interim order has been
passed in this case, therefore, the
respondent no.5 officiated on the post of
Principal of the institution w.e.f. 1.7.1996
to the date of her retirement on 30.6.2002.
20. The petitioner herein, retired
from service on 30.6.2000 therefore, due
to the aforesaid circumstances she was
prevented from working as officiating
Principal inspite of being senior. It is trite
that in absence of regularly selected
candidate for the post of Principal the senior
most teacher shall officiate as Adhoc
Principal. In this regard a provision is
contained in Section 16E (ii) read with the
Proviso to Regulation 2 of Chapter II of the
Regulations made under the Act of 1921
and in Section 18 of the U.P. Secondary
Education Service Selection Board Act of
1982. It is nobody's case that the petitioner
was otherwise ineligible for such officiation
and did not have the requisite qualification.
Had the seniority been rightly determined,
she would have officiated as Principal of the
institution w.e.f. 1.7.1996 till 30.6.2000.
There is no dispute that an officiating
Principal is also entitled to the salary of the
post in question and consequential benefits
resulting therefrom.
21. In view of the above, the
impugned order cannot be sustained and
the same is, accordingly, quashed.
22. As the respondent no.5 has
already worked as officiating Principal in
1490
 INDIAN LAW REPORTS ALLAHABAD SERIES
the
institution
w.e.f.
1.7.1996
to
30.6.2002, she must have been paid salary
against
the
said
post,
therefore,
considering the aforesaid fact and also the
fact that the petitioner actually did not
function on the said post during the
aforesaid period, it is not possible to grant
salary of the post of Principal to the
petitioner as claimed by her, however,
considering the fact that her statutory
right was violated on account of arbitrary
and
illegal
action
of
the
official
respondent no.1, Deputy Director of
Education, Agra Region, Agra, the
petitioner deserves to be compensated for
the
financial
loss
caused
to
her.
Considering the facts and circumstances
of the case an amount of Rs.2 lakh
payable by the State Government to the
petitioner shall be adequate compensation
to the petitioner. The aforesaid amount
shall be paid by the respondent State to
the petitioner within two months. In
addition to the above, it is provided that
the salary of the petitioner shall be fixed
treating her as officiating Principal of the
institution w.e.f. 1.7.1996 notionally and
based thereon, the post retirement benefits
like pension, etc. be revised and re-fixed,
if permissible under the rules, within a
period of six months from the date a
certified copy of this order is produced
before the concerned officer. The salary,
emoluments and post retirement benefits
already paid to the respondent no.5 and
consequential benefits based thereon,
shall
remain
unaffected
by
this
judgement.
23. In view of the aforesaid, the writ
petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2014
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Civil Misc. Writ Petition No. 42092 of 2011
Ashok Kumar Singh & Anr. Petitioners
Versus
Union of India & Ors.
...Respondents
Counsel for the Petitioner:
Sri Siddharth Khare
Counsel for the Respondents:
A.S.G.I., Sri Sanjeev Singh, Sri P.K.
Singhal, S.C.
Regional Rural Bank (appointment &
promotion) of officer and employees
Rules 2010-Part III Rule 10 (i)(d)-
Recruitment without advertisement in
two national daily news papers having
vide circular in locality-merely on basis
of
application
from
such
candidate
registered in employment exchangeheld-being violative of Art. 14 and 16 of
constitution
of
India-illegal-petition
allowed-with direction to fill up the
vacancy-after
following
mandatory
provision of Rule 10 from open marketadvertising two widely circulated new
paper one in vernacular and other in
regional language-on official website.
Held: Para-26
For the reasons stated hereinabove, the
vires of rule 10 and paragraph no. 1(d)
of part III of Regional Rural Banks
(Appointment and Promotion of Officers
and Employees) Rules 2010 is declared
intravires of the Constitution of India.
The mode of calling applications as
prescribed
under
rule
10
would
mandatorily include inviting candidates
from the open market by advertising in
two widely circulated newspapers (one
in vernacular language) over which the
Regional Rural Bank have to fill up the
vacancies
including
posting
the
advertisement on the official website.
Case
Law
discussed: