SUDHIR AGARWAL, J. - (1.) THIS intra Court appeal under the Rules of the Court has been filed against the judgment dated 9-5-2003 passed on review application of the petitioner-appellant (hereinafter referred to as the 'appellant') partly reviewing the judgment dated 6-3-2003. The appellant is aggrieved by the order only to the extent it has denied him arrears of salary from 1-7- 1995 to 30-6-1997.
(2.) THAT facts in brief are that the appellant was working as Assistant Teacher L.T. Grade in Saraswati Inter College, Sipri Bazar, Jhansi (hereinafter referred to as the 'Institution'). He had exercised his option for retirement at the age of 58 years but did not receive any communication from the Deputy Director of Education accepting the same. The State Government vide G.O. dated 4-11-1991 gave another opportunity to the teachers to opt for retirement at the age of 58 or 60 years pursuant whereto the appellant exercised his option on 1-2-1992 for retiring at the age of 60 years. No order was passed on the said option also by the Deputy Director of Education. On 1-12-1994 the DIOS passed an order declining to accept second option observing that the option already exercised has become final and now it cannot be changed and returned option papers to the Manager/authorized controller of the Institution. The authorized controller vide letter dated 8-12-1994 accordingly informed the appellant that he is liable to retire on attaining the age of 58 years. Aggrieved by the aforesaid order of DIOS and authorized controller, the appellant filed Writ Petition No. 2817 of 1995 which came up for admission on 2-2-1995 and this Court directed the respondents to file counter affidavit. During the pendency of the aforesaid writ petition question as to whether option once submitted could be withdrawn or not was referred to a Larger Bench and the Full Bench vide its opinion dated 13-4-2000 in the case of Smt. Prabha Kakkar v. Joint Director of Education, Kanpur, 2000(2) LBESR 34 (All) (FB) : 2000(2) ESC 1118 (All.), held that in order to make the option final acceptance thereof by the Deputy Director of Education and its communication to the employee was necessary and in the absence of such communication the option exercised by the teacher cannot be said to have attained finality. Thus such a teacher can submit a fresh option changing his earlier option so long he is not communicated acceptance of his option. Accordingly, the Hon'ble Single Judge disposed of the aforesaid writ petition of the appellant vide judgment dated 6 3 2003 holding that he was entitled to continue till the age of 60 years i.e. up to 30 3.1997 and if lie had worked, would be entitled for post retiral benefits accordingly. The appellant sought review of the operative part of the said order stating that he was entitled to continue till 30-6-1997 and since he was denied opportunity to work from 1-7-1995 to 30-6-1997, he is also entitled for full salary for the said period and retiral benefits till he attained the age of 60 years. The review application was disposed of by the Hon'ble Single Judge vide its judgment under appeal observing as under:- “I find that the petitioner has not rendered any work after the age of 58 years upto 60 years and for that period the petitioner wants to get pecuniary benefit i.e. for the period lie had not rendered the work. Since this Court has already taken the view that petitioner was to retire at the age of 60 years, therefore, the petitioner is entitled to retiral benefit treating him to have been retired at the age of 60 years on 30th June, 1997 treating the same the actual dale of retirement and/or calculating the post retirement benefit. However, since the petitioner has not worked about two years i.e. after 58 years upto the age of the 60 years, therefore, he is not entitled to be given any salary for that period i.e., between 58 to 60 years. “ Thus though the Court held that treating the appellant to have retired on 30-6-1997 on attaining the age of 60 years he would be entitled for retiral benefits accordingly but it has denied arrears of salary for the period of 1-7-1995 to 30-6-1997 on the ground that he did not render any work during the aforesaid period. Against this part of the order, the appellant has preferred this appeal. Sri G.K. Singh, learned Counsel for the appellant contended that the principle of “no work, no pay” would not be attracted in the case in hand since the appellant at no point of time showed his unwillingness. On the contrary he was always ready and willing to work but it is the respondents who created a situation and did not permit him to discharge any duty. He was also diligent in approaching this Court for enforcement of his right to continue to work inasmuch as he preferred the writ petition as soon as the impugned orders dated 1-12-1994 and 8-12-1994 were communicated to him and the writ petition was presented to the Court on 1-2-1995 whereupon on 2-2-1995 the respondents were directed to file counter affidavit. This Court in the nature of relief sought in the writ petition did not grant any interim order though a stay application was also submitted by the appellant praying for stay of operation of the orders dated I 12.1994 and 8-12-1994 and mandamus to the respondents restraining them from interfering in the peaceful functioning of the appellant as L.T. Grade Teacher in the institution till he attains the age of 60 years. Therefore due to the illegal orders passed by the respondents if the appellant could not discharge any duty, it cannot be said that he was guilty of rendering no work attracting the principle of “no work, no pay” and therefore, is entitled for, entire arrears of salary for the aforesaid period. Reliance is also placed on the judgments of the Apex Court in Union of India v. K.V. Jankiraman, AIR 1991 SC 2010, Vasant Rao Roman v. Union of India and Ors., 1993 (Supple.) (2) SCC 324, J.N. Srivastava v. Union of India and Anr., 1998 (9) SCC 559, Harwindra Kumar v. Chief Engineer, Karmik and Ors., 2006(1) LBESR 178 (SC) : 2006(1) UPLBEC 20 (SC) and a Division Bench judgment of this Court in Ram Swaroop Srivastava v. Allahabad District Cooperative Bank Allahabad and Ors., 2005(1) LBESR 1061 (All) : 2005 (2) ESC 1215, (in which one of us Hon'ble S. Rafat Alam, J. was a member).
(3.) ON the contrary Sri Arvind Kumar, learned Addl. Chief Standing Counsel submitted that the appellant retired on attaining the age of 58 years in view of the law as it was at that time. Since the Government Orders were not clear, true position was settled for the first time only when the Full Bench decided Smt. Prabha Kakkar (supra) and therefore, it cannot be said that the respondents were guilty of any deliberate illegality or irregularity in retiring the appellant on attaining the age of 58 years. Since it is admitted by the appellant that he did not render any work from 1-7-1995 to 30-6-1997 and therefore, the principle of “no work, no pay” would apply with full force and he placed reliance on the Apex Court judgments in Paluru Ramkrishnajah and Ors. v. Union of India and Anr., 1989 (2) SCC 541, Virender Kumar v. Avinash Chandra Chadha and Ors., AIR 1991 SC 958, State of Haryana v. O.P. Gupta and Ors., 1996(2) LBESR 33 (SC) : 1996 (7) SCC 533 : AIR 1996 SC 2936, A.K. Soumini v. State Bank of Travancore and Anr., 2003 (7) SCC 238 : AIR 2003 SC 3137 and Kendriya Vidyalaya Sangthan v. S.C. Sharma, 2005(2) LBESR 861 (SC) : 2005 (104) FLR 863 (SC) : 2005(2) SCC 363. He also submitted that the judgment cited by the learned Counsel for the appellant were either the cases pertaining to departmental inquiry or non promotion and would not apply to the facts and circumstances of the case in hand.;