- (1.) D. K. Seth, J. The writ petition was dismissed as infructuous today but before the said order could be signed the matter was mentioned, therefore, the said order is not signed and the matter is taken up for hearing.
(2.) IN the present case, fact given more or less is admitted. The petitioner was ap pointed as Assistant Teacher in Sanskrit in Junior High School on 1-7-1953. The school was upgraded in 1969 as high school and the petitioner was all along teaching in high school in C. T. Grade. IN March 1974 the school was brought within the grant-in-aid scheme. The petitioner's salary was stopped from April 1974 on the ground that his appointment was not ap proved. The petitioner made repre sentation on 2-9-75 and contended that since he was teaching from 1953, he is entitled to exemption from the require ment of B. Ed, or B. T. qualification. By an order dated 21-8-78 (Annexure II) the District INspector of Schools had disposed of the said representation holding that since the petitioner was appointed before the U. P. Higher Education Secondary Act, 1958, therefore, there is no question of granting approval to his appointment. His appointment having been made in 1953, he was qualified according to the qualifica tion prescribed at that point of time, there fore, he should be treated to have been appointed permanently according to the Rules. On this ground the petitioner was directed to be reinstated with immediate effect from the date of his resumption of duties on the condition that he would not be entitled to any salary for a period during which he did not work and that his pay should be fixed according to the rules on the basis of the pay which he was receiving since before and that the period during which he did not work shall be treated as leave without pay. Against the said order the petitioner made a representation on 9-9-78 immediately after joining his duties which was turned down by an order dated 8-10-79. Thereafter he made another rep resentation dated 19-10-79, in respect whereof reminder was sent on 16-12-82 (Annexure IV ). The said representation was ultimately decided by the said order dated 7-3-83 which has since been im pugned in the present petition. Mr. Ramendra Asthana, learnet Counsel for the petitioner contended that the petitioner is in no way responsible for the situation. Thought here was no ground for termination of services of the petitioner yet the petitioner's service; were terminated wholly on non-est ground. Since on the face of legal position there was no doubt on dispute about the permanency of the petitioner's service, hi: services have not been terminated on ac count of any fault of his, therefore, hi cannot suffer any penalty on account o certain wrong action on the part of the concerned respondents. The respondent having been terminated the services of the petitioner wrongly cannot take advantage of its own wrong. According to him, even assuming but not admitting, the petition did not attend his duty even then he entitled to pay during the said period. H also contends that during the entire period petitioner had been teaching in the in stitution but he was not paid his salary an was not allowed to sign the attendance register. Mr. V. K. Singh, learned Counsel for the committee of management respondent No. 4 disputes that the petitioner had attended the school and taught the students during the said period and that he was not allowed to sign the attendance register as alleged. He con tends that since the petitioner did not work during that period he was not en titled to any salary. He further contends that such was the condition in the order of reinstatement pursuant to which the petitioner had joined, therefore, having accepted the order, he cannot question the same on the ground that he does not in tend to accept the other part of the order. According to him his acceptance of the order by means of reinstatement he is es topped from challenging the other part of the order.
(3.) MR. Sabhajit Yadav, learned Coun sel for the respondents No. 1 to 3, on the ether hand, adopted the argument on the same ground and contended that on the principle of no work and no pay, the petitioner cannot be paid his salary. Having heard learned Counsel for the parties it appears from the facts dis closing that for the termination of service the petitioner is in no way responsible. The ground on which the service of the petitioner was sought to be terminated having been found, in the order contained in Annexure II, as non est, it is not open to the respondent to deny the benefit thereof particularly when the petitioner was prevented from performing his duty by reason of overt act on the part of the respondent which by no means. They could have done on the basis of legal proposition which is clear on the face of the record. The petitioner was appointed in 1953 on the basis of qualification then prescribed and as such had been holding permanent post on the basis of the prescribed qualification prevailing at that point of time when he was appointed. The subsequent prescription of qualification cannot take away the right of the petitioner. Then again since he was work ing from before the coming into the opera tion of 1958 Act there being no question of granting approval in his case, the termina tion on the ground of absence of approval is wholly perverse. In the facts and cir cumstances the action taken by the respondents being wrong in law, no ad vantage can be allowed out of such action of the respondents for the purposes of deriving benefit in the form of non-pay ment of salary to the petitioner. If such a situation is brought into in that event it would amount to inflict punishment on the petitioner on account of no fault on his part. Whether he has worked or not is immaterial, since by reason of termination the petitioner was not to be allowed to work. If he has worked then there would not be any doubt that he would be entitled to be paid. But even if he has not worked till then he may not be made to suffer for any wrong action on the part of respon dents. Therefore, the stipulation in the order of reinstatement that he would not be paid for the period during which he has not worked appears to be wholly arbitrary and unreasonable or in other words per verse.;