# Vishnu Sahai Srivastava v. The District Inspector of Schools & Ors

- **Citation:** (2013) 3 ILRA 1661
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-03
- **Case number:** Civil Misc. Writ Petition No.31646 of 1998
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishnu-sahai-srivastava-v-the-district-inspector-of-schools-ors-42869
- **Pages:** 6

## Headnote

Constitution of India, Art.-226-Service
law-claim
of
salary-for
period-not
allowed to work-petitioner made to
retire on age of 58 years-subsequently
DIOS held-retirement age as 60 yearsallowed to join-26.07.97 as such worked
till 30.06.1998-held-no fault on part of
petitioner-entitled for salary for period
not allowed to work-principle of 'no
work no pay' not applicable.

Held: Para-15
In the case in hand, it is a common case
that petitioner's second option has been
accepted by the District Inspector of
Schools in compliance of the order of this
Court dated 04th April, 1997. The order
of the District Inspector of Schools dated
19th July, 1997 allowing the petitioner's
second option to retire at the age of 60
years has not been challenged by the
Committee
of
Management
and
in
compliance thereof, the petitioner was
permitted to join on 26th July, 1997 and
he served the institution till 30th June,
1998 when he attained the age of
superannuation. A short question arose
for consideration in this case is whether
the petitioner is entitled for his salary
from 01st July, 1996 to 25th July, 1997.
From the materials on record it is
established that there was no fault on
the part of the petitioner. He had made
several representations that in view of
his second option he was entitled to
continue till 30th June, 1998. However,
the petitioner was illegally retired and
removed on 01st July, 1996 on the
ground that he has reached the age of
superannuation on attaining the age of
58 years.

Case Law discussed:
(1997) 1 UPLBEC 51; 2007(1) LBESR 538;
2010(3) ADJ 304; (2002) 10 SCC 585; (2007)
7 SCC 689; Civil Appeal No. 6767 of 2013.

## Text

3 All] Vishnu Sahai Srivastava Vs. The District Inspector of Schools & Ors.
1661
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2013

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No.31646 of 1998

Vishnu Sahai Srivastava... Petitioner
Versus
The District Inspector of Schools & Ors...
 . Respondents

Counsel for the Petitioner:
Sri Prakash Chandra Srivastava, Dr. H.N.
Tripathi

Counsel for the Respondents:
C.S.C., Sri Satish Kumar Rai.

Constitution of India, Art.-226-Service
law-claim
of
salary-for
period-not
allowed to work-petitioner made to
retire on age of 58 years-subsequently
DIOS held-retirement age as 60 yearsallowed to join-26.07.97 as such worked
till 30.06.1998-held-no fault on part of
petitioner-entitled for salary for period
not allowed to work-principle of 'no
work no pay' not applicable.

Held: Para-15
In the case in hand, it is a common case
that petitioner's second option has been
accepted by the District Inspector of
Schools in compliance of the order of this
Court dated 04th April, 1997. The order
of the District Inspector of Schools dated
19th July, 1997 allowing the petitioner's
second option to retire at the age of 60
years has not been challenged by the
Committee
of
Management
and
in
compliance thereof, the petitioner was
permitted to join on 26th July, 1997 and
he served the institution till 30th June,
1998 when he attained the age of
superannuation. A short question arose
for consideration in this case is whether
the petitioner is entitled for his salary
from 01st July, 1996 to 25th July, 1997.
From the materials on record it is
established that there was no fault on
the part of the petitioner. He had made
several representations that in view of
his second option he was entitled to
continue till 30th June, 1998. However,
the petitioner was illegally retired and
removed on 01st July, 1996 on the
ground that he has reached the age of
superannuation on attaining the age of
58 years.

Case Law discussed:
(1997) 1 UPLBEC 51; 2007(1) LBESR 538;
2010(3) ADJ 304; (2002) 10 SCC 585; (2007)
7 SCC 689; Civil Appeal No. 6767 of 2013.

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)

1. The petitioner was an Assistant
Teacher in an Intermediate College. He is
aggrieved by the communication of the
District Inspector of Schools, Allahabad
dated
02/05th
June,
1998
to
the
Committee of Management, whereunder
petitioner's claim for his arrears of salary
from 01st July, 1996 to 25th July, 1997
has not been accepted and the Committee
of Management has been directed to take
appropriate decision treating the said
period as the petitioner was on leave
without pay.

2. The foundational facts, in brief,
are that the petitioner was appointed as an
Assistant Teacher in an Intermediate
College, namely, Boys Inter College,
C.O.D., Chheoki, District Allahabad (for
short, the "Institution"), which is a
recognised institution. It receives aid out
of the State fund. The provisions of the
Uttar Pradesh Intermediate Education
Act, 1921 and the Uttar Pradesh High
Schools
and
Intermediate
Colleges
(Payment of Salaries of the Teachers and
1662 INDIAN LAW REPORTS ALLAHABAD SERIES
other
Employees)
Act,
1971
are
applicable to the institution.

3. Present dispute arose in respect of
the option to retire at the age of 60 years. The
date of birth of the petitioner is 25th January,
1938. He was initially appointed in the year
1972.
The
State
Government
by
a
Government Order dated 29th August, 1981
offered option to the teachers to either retire
at the age of 58 years or 60 years in terms of
Rule 15 of the Death and Retirement Rules,
subject to certain conditions. It is stated by
the petitioner that on 30th December, 1982
he submitted his option for retirement at the
age of 58 years. However, he did not receive
any communication from the respondents
either accepting or rejecting the said option.

4. Later on, the State Government
by another Government Order dated 06th
October, 1990 offered a fresh liberty to
the teachers to change their option to retire
either at the age of 58 years or 60 years. It is
averred by the petitioner that pursuant to the
said Government Order dated 06th October,
1990, he again on 14th December, 1990
submitted his option for retirement at the age
of 60 years. Thus, in view of his second
option, petitioner was under the impression
that
he
would
reach
his
age
of
superannuation on attaining the age of 60
years i.e. on 30th June, 1998 but in the
month of March, 1996, to his utter surprise,
he was asked to submit his papers for
pension, etc.

5. It is stated that immediately
thereafter
the
petitioner
made
a
representation dated 08th April, 1996 before
the respondent nos. 1 to 3 to the effect that as
the petitioner had given his second option on
14th December, 1990 for his retirement at
the age of 60 years, there was no question of
his being retired in June, 1996 and he would
retire on 30th June, 1998. It is stated that
whenever the petitioner met the respondents
personally, he was assured that appropriate
decision shall be taken before his retirement.
However, no action was taken and the
petitioner was informed in the last week of
June, 1996 that his option papers are not
traceable in the office of the respondent no.
1, therefore, he would retire on 30th June,
1996.
Against
this
background,
the
petitioner, having no other option, preferred
Civil Misc. Writ Petition No. 11827 of 1997
(Vishnu
Sahai
Srivastava
v.
District
Inspector of Schools, Allahabad). This Court
while disposing of said writ petition on 04th
April, 1997 in terms of the judgement of this
Court reported in (1997) 1 UPLBEC 51
(Awadhesh Pandey v. Deputy Director of
Education, IVth Region, Azamgarh and
others), directed the District Inspector of
Schools to decide the representation of the
petitioner in view of the said judgement.

6. In compliance of the order of this
Court and relying upon the aforesaid
judgement of this Court i.e. Awadhesh
Pandey (supra), District Inspector of
Schools considered the cause of the
petitioner and vide order dated 19th July,
1997 found that in view of the petitioner's
second option, he is entitled to continue in
service upto the age of 60 years. A copy
of the said order dated 19th July, 1997 has
been brought on record as annexure-3 to
the
writ
petition.
Thereafter
vide
communication dated 26th July, 1997 the
Principal of the institution was directed
for compliance of aforesaid order dated
19th July, 1997. A copy of said order/
communication dated 26th July, 1997 is
on the record as annexure-2 to the writ
petition. It is stated that the petitioner was
permitted
by
the
Committee
of
Management to join the institution on
26th July, 1997 and he retired after
attaining the age of 60 years on 30th June,
3 All] Vishnu Sahai Srivastava Vs. The District Inspector of Schools & Ors.
1663
1998, but his salary was not paid from
01st July, 1996 to 25th July, 1997.

7. The dispute arose with regard to
payment of his salary from 01st July,
1996 upto 25th July, 1997. The stand
taken by the Committee of Management
was that since there was no direction by
the District Inspector of Schools for
payment of petitioner's salary from 01st
July, 1996 to 25th July, 1997, the
petitioner is not entitled for salary on the
basis of no work no pay.

8. The petitioner has made several
representations to the District Inspector of
Schools for payment of his salary from
01st July, 1996 to 25th July, 1997. After
several
representations,
the
District
Inspector of Schools has passed the
impugned order dated 02nd/05th June,
1998, whereby he has directed the
Manager/Principal of the College that the
said period may be treated as the
petitioner was on leave and if petitioner's
no leave is due, then said period may be
treated as leave without pay. Aggrieved
by this order, the petitioner has preferred
this writ petition.

9. A counter affidavit has been filed
on behalf of the respondent no. 1, District
Inspector of Schools. In the counter
affidavit it is stated that in compliance of
the order of this Court dated 04th April,
1997 the representation of the petitioner
was allowed and he was allowed to
continue upto the age of 60 years and as
the petitioner did not work from 01st July,
1996, when he was retired, till 25th July,
1997 when in compliance of the order of
the District Inspector of Schools he was
allowed to join, he was not entitled for the
salary. It is also stated that as the
petitioner's option to retire at the age of 60
years has been accepted, he is not entitled
for the gratuity. Only those teachers are
entitled for the gratuity who opt to retire
at the age of 58 years.

10. Respondent nos. 2 and 3, i.e.
Committee of Management and Principal of
the institution, have also filed their counter
affidavit, wherein it has not been denied that
petitioner's second option for his retirement
on attaining the age of 60 years was accepted
and he retired at the age of 60 years.

11. I have heard Dr. H.N. Tripathi,
learned Counsel for the petitioner, learned
Standing Counsel for the respondent no.
1, and Sri Satish Kumar Rai, learned
Counsel for the respondent nos. 2 and 3.

12. Learned Counsel for the petitioner
submits that the petitioner had submitted his
first option on 30th December, 1982 for
retirement at the age of 58 years, but no
communication
was
made
regarding
acceptance of the same. Thereafter in
pursuance of the Government Order dated
06th October, 1990, which permitted the
teachers to change their option, the petitioner
submitted his second option on 14th
December, 1990 to retire at the age of 60
years, which option of the petitioner was
approved by the District Inspector of Schools.
Even after the approval of the petitioner's
second option, he was retired on 30th June,
1996. The petitioner immediately filed Writ
Petition No. 11827 of 1997, which was finally
disposed of by this Court on 04th April, 1997
and a direction was issued to decide the
representation of the petitioner relying on a
judgement of this Court. In compliance of the
order of this Court, petitioner's representation
was allowed and he was allowed to join on
26th July, 1997, therefore, he was entitled for
the salary from 01st July, 1996 till 25th July,
1997, i.e. when he was allowed to join.
Learned Counsel for the petitioner further
1664 INDIAN LAW REPORTS ALLAHABAD SERIES
submits that there was no fault on the part of
the petitioner and as such, the petitioner is
entitled for salary as well as all other benefits.
Learned Counsel for the petitioner has placed
reliance on the judgements of this Court in the
case of Brijendra Prakash Kulshrestha v.
Director of Education, U.P. at Allahabad &
ors., 2007 (1) LBESR 538 (All), and Dr. Raj
Kumari Singh and another v. State of U.P. and
others, 2010 (3) ADJ 304 (DB) to establish
that as the petitioner was not allowed to work,
the principle of 'no work, no pay' shall not be
applicable.

13. Learned Standing Counsel and Mr.
Rai, learned Counsel for the respondent nos.
2 and 3, tried to support the stand of the
respondents taken in the counter affidavit.

14. I have considered the respective
submissions of the learned Counsel for
the parties and perused the record.

15. In the case in hand, it is a common
case that petitioner's second option has been
accepted by the District Inspector of Schools
in compliance of the order of this Court dated
04th April, 1997. The order of the District
Inspector of Schools dated 19th July, 1997
allowing the petitioner's second option to
retire at the age of 60 years has not been
challenged
by
the
Committee
of
Management and in compliance thereof, the
petitioner was permitted to join on 26th July,
1997 and he served the institution till 30th
June, 1998 when he attained the age of
superannuation. A short question arose for
consideration in this case is whether the
petitioner is entitled for his salary from 01st
July, 1996 to 25th July, 1997. From the
materials on record it is established that there
was no fault on the part of the petitioner. He
had made several representations that in view
of his second option he was entitled to
continue till 30th June, 1998. However, the
petitioner was illegally retired and removed
on 01st July, 1996 on the ground that he has
reached the age of superannuation on
attaining the age of 58 years.

16. Pertinently, if the petitioner had
retired at the age of 58 years, he would
have entitled for payment of gratuity as
the Government Order provides that a
teacher who opts for retirement at the age
of 58 years, will be paid gratuity but the
teacher who opts for retirement at the age
of 60 years, shall not be paid gratuity.
Admittedly, the petitioner has not been
paid gratuity as his option to retire at the
age of 60 years has subsequently been
accepted by the District Inspector of
Schools.

17. The principle of 'no work no pay'
has been considered by the Supreme
Court in long course of decisions. The
principle of no work no pay would not be
applicable in those cases where the
employee was not allowed to work
although he was willing to work.
Reference may be made to the judgements
of the Supreme Court in the cases of Burn
Standard Co. Ltd. v. Tarun Kumar
Chakraborty,
(2002)
10
SCC
585;
Commissioner, Karnataka Housing Board
v. C. Muddaiah, (2007) 7 SCC 689; and
Deepali Gundu Surwase v. Kranti Junior
Adhyapak Mahavidyalaya (D.Ed.) and
others, Civil Appeal No. 6767 of 2013,
decided on 12th August, 2013. In
paragraph-17 of Deepali Gundu Surwase
(supra) the Supreme Court held as as
under:

"17. The very idea of restoring an
employee to the position which he held
before
dismissal
or
removal
or
termination of service implies that the
employee will be put in the same position
in which he would have been but for the
3 All] Vishnu Sahai Srivastava Vs. The District Inspector of Schools & Ors.
1665
illegal action taken by the employer. The
injury suffered by a person, who is
dismissed or removed or is otherwise
terminated from service cannot easily be
measured in terms of money. With the
passing of an order which has the effect of
severing
the
employer
employee
relationship, the latter's source of income
gets dried up. Not only the concerned
employee, but his entire family suffers
grave adversities. They are deprived of
the source of sustenance.

The
children
are
deprived
of
nutritious food and all opportunities of
education and advancement in life. At
times, the family has to borrow from the
relatives and other acquaintance to avoid
starvation. These sufferings continue till
the competent adjudicatory forum decides
on the legality of the action taken by the
employer. The reinstatement of such an
employee, which is preceded by a finding
of the competent judicial/ quasi judicial
body or Court that the action taken by the
employer is ultra vires the relevant
statutory provisions or the principles of
natural justice, entitles the employee to
claim full back wages.

If the employer wants to deny back
wages to the employee or contest his
entitlement to get consequential benefits,
then it is for him/her to specifically plead
and prove that during the intervening
period the employee was gainfully
employed and was getting the same
emoluments. Denial of back wages to an
employee, who has suffered due to an
illegal act of the employer would amount
to indirectly punishing the concerned
employee and rewarding the employer by
relieving him of the obligation to pay
back wages including the emoluments."

18. This Court also in the case of
Brijendra Prakash Kulshrestha (supra) has
held that an employee is entitled for his
full salary for the period he could not
work on account of act of the respondents.
In the said case also, the dispute was with
regard to date of retirement and the
employee in the said case was retired at
the age of 58 years although he was
entitled to work upto the age of 60 years.
It is enough to extract only relevant part
of the judgement of Brijendra Prakash
Kulshrestha (supra), as under:

"35. In these facts and circumstances
the appellant is entitled for arrears of
salary for the period in question and with
great respect to the Hon'ble Single Judge
we are unable to agree with the judgment
under appeal to this extent. Our view is
fortified from the exposition off law laid
down by the Apex Court in J.N. Srivastava
(supra)1, Shambhu Murari Sinha (supra)2,
Srikantha S.M. (supra)3 and Virender
Kumar Goel (supra)4 as we have already
discussed where in the case of retirement,
the employee could not discharge any duty
due to such retirement forced upon him by
the
employer
the
Apex
Court
has
consistently held that such employee is
entitled for full salary. Therefore in our
view the appellant is entitled for arrears of
salary for the period he could not work on
account of act of the respondents i.e. from
1-7-1995 to 30-6-1997."

19. The facts of the present case are
identical to the facts of the said case. In view
of the law laid down by the Supreme Court
and the Division Bench in Brijendra Prakash
Kulshrestha (supra), the petitioner is entitled
for his salary from 01st July, 1996 to 25th
July, 1997 as there was no fault on the part of
the petitioner and he, in spite of repeated
1666 INDIAN LAW REPORTS ALLAHABAD SERIES
representations, was retired on 30th June,
1996.

20. After careful consideration of
the facts and circumstances of the case,
for the aforestated reasons, I am of the
view that end of justice would be
subserved in case a direction is issued
upon the respondent no. 1 to pay the
salary of the petitioner from 01st July,
1996 to 25th July, 1997 within a period of
three
months
from
the
date
of
communication of this order. In view of
the
above,
the
order/communication
issued by the District Inspector of Schools
dated 02/05th June, 1998, impugned in
this writ petition, needs to be quashed and
accordingly it is quashed.

21. Accordingly, the writ petition is
allowed.

22. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2013

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE VIPIN SINHA, J.

Civil Misc. Writ Petition No. 45023 of 2010

Sri Navin Tyagi & Anr... .Petitioners
Versus
Union of India & Ors.... Respondents

Counsel for the Petitioner:
Sri Yogendra Nath Rai

Counsel for the Respondents:
C.S.C., Sri R.K. Singh

Constitution of India, Art.-226- Alternative
remedy-petitioner seeking enhancement
of compensation-by quashing arbitration
award-can be challenged under section 34
of arbitration & Cancellation Act 1966held-petition not maintainable.

Held: Para-24 & 25
24. Thus in view of what has been
discussed above and the consistent legal
position, the contention of the learned
counsel for the petitioners that they
cannot seek remedy under the provisions
of the Arbitration and Conciliation Act,
1996 is misconceived and fallacious and
accordingly rejected.

25. Petitioners may approach the
appropriate forum under the provisions
of Section 34 of the Arbitration and
Conciliation Act, 1996. The present writ
petition is thus not maintainable and
accordingly the same is dismissed.

Case Law discussed:
(2011)10 SCC 300; (2006) 4 SCC 445; (2008)
13 SCC 80; (2006) 11 SCC 181; (2011) 5 SCC
758.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. By means of this writ petition
petitioners are challenging the award
dated 29.07.2009 given by the Arbitrator
under Section 3-G(5) of the National
Highways Act, 1956. The reliefs as
sought in the writ petition are as follows:

I) Issue a writ, order or direction in
the nature of certiorari quashing the order
dated 29.07.2009 passed by respondent
no. 3, District Magistrate, Ghaziabad.

II)Issue a writ order or direction in
the nature of mandamus commanding and
directing the respondents to enhance the
rate of the land compensation of the
petitioner Rs. 5000/- per sq. meter or paid
as per the rate given by Gail India Limited
and Indian Oil Corporation fixed by
compromise by both the party Rs. 4400/-
per sq. meter and direct the respondents to
pay
10%
interest
along
with.