- (1.) R. A. Sharma, J. By order dated 16-6-1993, Principal of Sarvodaya Degree College, Ghosi. Azamgarh (hereinafter referred to as the College) Informed the petitioner who was Lecturer in English, that 1-6-1933 being his date of birth he will retire from service on 30-6-1993 on which date he will attain the age of superannuation. Petitioner filed writ petition No. 22760 of 1993 before the Court challenging the said order of the Principal. A learned Single Judge of this Court on 25-6-1993 passed an interim order, which is reproduced below, permitting the petitioner to work on his post upto 30-6-1994 ; "learned standing counsel has accepted notices for respondents 1 to 4. He prays for and is granted a month's time to file counter-affidavit. Petitioner will have three weeks' thereafter to file rejoinder affidavit. List this petition after expiry of the aforesaid period. In the meantime, the petitioner shall be allowed to work on his post and shall be paid salary till 30th June, 1994 provided he moves an application along with a medical Certificate showing that he is physically fit to discharge his duty. ''
(2.) ON the basis of the above order the petitioner continued to work upto 20-6-1994 as Lecturer in the College and was also paid his salary for that period. After June 30, 1994 the petitioner sent his papers to the Director, Higher Education, U. P, for payment of pension and other post retirement benefits. The Director vide order dated 12-7-1994 finalised the petitioner's pension. However, by order dated 28-11- 1994 he cancelled the said order dated 12-7-1994 and directed the management of the College to let him know under what authority petitioner has been paid salary from 1-7-1993 to 30-6-1994. In response to the above order of the Director the Management of the College sent a letter dated 1-12-1994 to the Director informing him that the petitioner has been permitted to work upto 30-6-1994 and was also paid the salary for that period in view of the interim order passed by this Court. The Director, however, did not pass any further order. The petitioner, being aggrieved, has filed the second writ petition No. 9773 of 1995 before this Court praying for writ of certiorari quashing the order dated 28-11-1994 passed by the Director. Writ of mandamus directing the respondents to give him pension and other post retirement benefits with interest has also been claimed. The respondents have filed counter-affidavit and the petitioner has filed rejoinder-affidavit In reply thereto. We have heard the learned counsel for the parties. Statutes of the University to which the College is affiliated, while laying down the age of superannuation, has also provided that if the date of retirement of a teacher does not fall on June 30 he shall continue in service till the end of the academic session i. e. , June, 30 following. A Learned Single Judge in Khan Chandra Madhu v. Deputy Director of Education, writ petition No. 13867 of 1993, decided on 14th May, 1994, has held that a person will retire on the date on which his date of birth falls and, therefore, a teacher born on 1st July will attain the age of superannuation on the 1st July and not a day earlier, with the result that such a teacher is entitled to continue upto the end of the academic session (30th June following ). When the petitioner filed his writ petition No. 22760 of 1993 the aforesaid judgment of the learned Single Judge was holding the field and, therefore, the interim order was passed on 25-6-1993 by a learned Judge in favour of the petitioner, on the basis of which he worked upto 30th June, 1994 and was also paid his salary till then, the judgment of the learned Judge in Khan Chandra Madhu v. Deputy Director of Education (supra), was however, overruled by a Division Bench in Special Appeal No. 524 of 1993 decided on 31-8-1993, wherein it has been laid down that a teacher who is born on first July till attain the age of superannuation on 30th June and, therefore, be cannot be said to have retired in the mid academic session, so as to entitle him to work upto the end of session. But in spite of the decision in Special Appeal the respondents herein did not apply for vacation of the stay order passed in favour pf the petitioner in writ petition No. 22760 of 1993. The result was that the stay order granted to the petitioner continued to remain operative on the basis of which he worked as a teacher upto the end of academic session. The respondents filed application for vacation of the stay order alongwith counter-affidavit on 17-11-1995 before this Court. This application has also been placed before us. The contention of the learned Standing Counsel is that as the petitioner has retired oil 30-6-193 he was neither entitled to continue thereafter as a teacher nor was he liable to be paid the salary from 1-7- 1923 to 30-6-1994, therefore, the same is liable to be recovered from him. It is further contended that as the recovery of the said amount paid to the petitioner was not possible the impugned order cancelling sanction of pension was passed so as to enable the Department to adjust the aforesaid amount from his pension and other post retirement benefits. Therefore, the question is as to whether the petitioner is liable to refund the salary for the period from 1-7-1993 to 30-6-1994, during which period he worked as Lecturer on the basis of interim order dated 25-6-1993 passed in earlier writ petition.
(3.) SUPREME Court in Dr. Ramji Dwivedi v. State of U. P. , 1993 UPLBEC 426, has held that if a teacher has worked on the basis of interim order of the Court even though his appointment was not valid he is entitled to payment of salary for the period during which he has worked. Relevant extract from the said judgment is as under : "undoubtedly appellant is a highly qualified person. There was nothing hanky panky in his appointment. If the power to make appointment was not suspended we would have no difficulty in upholding the appointment of the appellant and we are not oblivious to the machinations of Sh. Jagannath, who possibly thought that the appellant would be a formidable rival and wanted him to bi out of way. The private manage ment, at the instance of Sh Jagannath appears to have subsequently backed out from the appointment of the appellant which at one stage they were willing to defend. But as there was no power of appointment, we are unable to help the appellant. However, we would like to make it very clear that the appointment was otherwise valid, though ineffective and if appellant under the orders of the High Court functioned as Principal, discharged his duties and was paid, no question of recovery of amount paid to him could arise and neither the Government nor the Committee of Management nor the Institution would be entitled to recover any salary paid to the appellant. " This Court in Niranjan Rai v. District Inspector of Schools, (1991) 2 UPLBEC 1416, has also laid down the same principle, relevant extract from which is reproduced below : "the case, however, does not rest here. The petitioner is being asked to refund the salary which he drew during his continuance as Lecturer on ad hoc basis. If any salary was paid to the petitioner even after the fixed term for which he was appointed that could not be ordered to be refunded for the simple reason that the petitioner had rendered work oven after his fixed term had expired. Till the date he rendered his work he has drawn his salary. He cannot be asked to refund his salary and any order in this regard issued by the District Inspector of Schools is against law. Therefore, the order for refund of salary drawn by the petitioner while serving in the Institution even after the expiry of his fixed term is bad and would amount to asking the petitioner to render the services gratis which is not recognised by our law. ";