B. L. Yadav, J. - (1.) WHETHER the judgment and order passed by the Supreme Court in Civil Appeal No. 5891 of 1983 dated 26th September, 1986 (Rajendra Prasad v. Kayastha Pathshala), reported in 1987 Education Cases 313 SC can be given effect to by a relief in the present writ petition filed under Article 226 of the Constitution of India, or the petitioner must be relegated to avail of the remedy of execution proceedings in the Civil Court, and whether the petitioner was entitled to entire arrears of his salary from the State of U. P. and the District Inspector of Schools, respondent nos. 1 and 2 and from Kulbhaskar Ashram Agriculture College, Allahabad, respondent no. 4, (for short the College) since the date he was suspended, as the suspension order has been held to be illegal, and whether the order of suspension should continue till date for about twenty one years without framing charges and without holding any enquiry particularly when no opportunity of hearing was given to him, are the questions for our determination in this petition filed by the petitioner for a writ of Mandamus commanding the respondents to make payment of entire arrears of his salary accrued to him as the order of suspension, was illegal and by way of punishment without framing any charge and without affording any opportunity, could not be deemed to continue till date.
(2.) THE facts leading to the present petition present an interesting but a decimal chequered history prevailing in the educational institutions. THE petitioner obtained a degree in M. Sc. in Chemistry. He had requisite qualification for the appointment as lecturer, was appointed as lecturer in Chemistry on 15-7-62 in the Kulbhaskar Ashram Agriculture Intermediate College, Allahabad, in accordance with the provisions of U. P. Intermediate Education Act, 1921, (for short the Act) and the regulations framed thereunder, in the present petition the controversy is about the order of suspension dated 30-12-65/7-1-66. It is noticeable that prior to that the petitioner was suspended on 20-2-64. For that he had to file a Civil Suit No. 193 of 19b4 (Rajendra Pd. v. Kayastha Pathshala) in the Court of Munsif West, Allahabad, seeking a declaration and injunction that the order of suspension dated 20-2-64 was illegal. That suit was dismissed by the Trial Court. But the First Appeal (F. A. No. 583 of 1965) was allowed on 7-12-65 and the order of suspension dated 20-2-64 was held to be illegal. THE Second Appeal (No. 1111 of 1966) filed by the defendant Kayastha Pathshala against the petitioner was dismissed by this Court by its order dated 8-4-68 (Annexure-2 to the petition). Even prior to that within a couple of days from the date of petitioner's appointment his services were attempted to be terminated by the Vice-President Incharge of the College. THE petitioner had to file Suit No. 482 of 1963 (Rajendra Prasad v. Kayastha Pathshala). But by order dated 6-9-63 the order of termination was withdrawn by the Kayastha Pathshala. That order of termination was not approved by the District Inspector of Schools and was withdrawn. It is the third inning in which the management again suspended the petitioner by the aforesaid order and the petitioner filed a Civil Suit No. 48 of 1966 (Rajendra Prasad v. Kayastha Pathshala) for a declaration that the aforesaid order of suspension dated 30-12-65/7-1-66 (for short the suspension order), was void and without jurisdiction. On 31-3-69 the 1st Additional Munsif decreed the suit holding the suspension order of the petitioner to be illegal, void and without jurisdiction. THE defendant respondent, Kayastha Pathshala preferred an appeal (Appeal No. 117 of 1969) against the judgment and decree of the learned Munsif. THE said appeal was transferred to the Additional Civil Judge, who allowed the same by his judgment and decree dated 20-8- 70, holding the suspension order to be legal. THE petitioner filed a Second Appeal against the aforesaid judgment and decree of the Additional Civil Judge, which was numbered as Second Appeal No. 2038 of 1970, and was pending in this Court. During the pendency of the Second Appeal in this Court, an application for amendment of the plaint and adding the grounds in the memo of Second Appeal, was made by the petitioner on 2-4-77, consequent upon the amendment in the Act, by U. P. Secondary Education Laws (Amendment) Act, 1975, whereby the following provisions were added i " 16-G (6) :-Where any head of the institution or teacher is suspended by the Committee of Management, it shall be reported to the Inspector within thirty days from the date of commencement of the U. P. Secondary Education Laws (Amendment) Act, 1975. In case the order of suspension was passed before such commencement and within 7 days from the date of order of suspension and the report shall contain such particulars as may be prescribed and accompanied by all the relevant documents. (7) No such order of suspension, unless approved in writing by the Inspector, remain in force for more than 60 days from the date of commencement of U. P. Secondary Education Laws (Amendment) Act, 1975, or as the case may be, from the date of such order and the order of Inspector shall not be questioned in any court." But the aforesaid amendment sought by the petitioner was rejected by order dated 19-11-79 by the learned Single Judge of this Court. The petitioner preferred an appeal to the Supreme Court and by order dated 20-2-80 the Supreme Court allowed the appeal and directed this Court to allow the application for amendment. These facts have been noted in para II of the judgment of Second Appeal No. 2038 of 1970 connected with First Appeal No. 450 of 1982, decided on October 23, 1983, reported in 1983 Education Cases 161. The amendment was contained in para 13-A of the plaint and ground (G) was added in para 14 of the plaint. Those paragraphs are considered to be material for the decision of this petition, Consequently they are set out below i " 13-A. That in accordance with the above amended provisions of Intermediate Amendment Act the respondents have neither reported the above alleged suspension to Distt. Inspector of Schools, Alld. within thirty days nor sought the approval of the alleged suspension of the appellant, nor the alleged suspension has been approved in writing by the Distt. Inspector of Schools, Alld. and thus order of alleged suspension dated 30-12-65/7-1-66 shall not remain in force beyond sixty days from the date of commencement of U. P. Secondary Education Laws (Amendment) Act, 1975 enforced on 18th August, 1975 or from the date of such order and the alleged suspension order dated 30-12-65/7-1-66 is infructuous, invalid, void and is vitiated and became inoperative and nullity in the eye of law, in any case." " 14 (g). That the provisions of section 16 (g) (6) and (7) of U. P. Intermediate Education Act, 1921 (U. P. Act No. II of 1921) as amended by U. P. Secondary Education Laws (Amendment) Act No. XXVI of 1975, dated 18th August, 1975 have not been complied with and as such order of suspension dated 30-12-65/7-1-66 in question shall not remain in force for more than sixty days from the date of commencement of U. P. Secondary Education Laws (Amendment) Act, 1975, dated 18th August, 1975 or from the date of such order and the alleged impugned suspension order dated 30-12-65/7-1-66 is invalid and void and is vitiated and becomes inoperative and nullity in the eyes of law, in any case. "
(3.) THE petitioner's Second Appeal No. 2038 of 1970 was dismissed, whereas the First Appeal No. 450 of 1982 preferred by the Kayastha Pathshala was allowed. That first appeal No. 450 of 1982 arose out of the suit filed by the plaintiff, the present petitioner, for recovery of arrears of pay Rs. 7812.92, including Dearness Allowance and other emoluments along with the amount of Provident Fund since 2-2-64 to 20-2-1967 which was decreed by the trial court. Against that the management of Kayastha Pathshala filed a First Appeal No. 268 of 1969, which was got transferred to this Court while hearing the aforesaid Second Appeal and that First Appeal transferred from the District Judge was numbered in this Court as First Appeal No. 450 of 1982. As stated above, the Second Appeal was dismissed and the First Appeal filed by the management of the Kayastha Pathshala was allowed dismissing the suit of the petitioner for arrears of salary. THE petitioner preferred an appeal to the Supreme Court, which was numbered as Civil Appeal No. 5891 of 1983 and was decided on 26th September, 1986, reported in 1987 Education Cases 313 (Supra). Their Lordships of the Supreme Court in the aforesaid Civil Appeal preferred by the petitioner had taken the view that even though the suspension order dated 30-12-65/7-1-66 cannot be said to be illegal, null and void, but certainly it did cease to be operative with effect from 17-10-75 on the expiry of 60 days from the commencement of U. P. Secondary Education Laws (Amendment) Act, 1975. The conclusion was given by the Supreme Court at page 313 as follows a " Having recorded this finding the High Court refused to exercise its discretion to grant declaration that the order of suspension ceased to be operative with effect from 17-10-75. We think that the High Court was wrong in refusing to grant declaration. We, therefore, declare that the order of suspension ceased to be operative from 16-10-75. The appeal against the judgment of the High Court in Second Appeal No. 2077 of 1980 is disposed of accordingly." In the appeal against judgment of the High Court in F.A. No. 450/82 we do not see how the appellant can be denied his salary for the period between 20-2-64 to January 15, 1966, the date on which the effective order of suspension was communicated to him. Instead of sending the case back to the trial court for determining the amount, we think that a decree may be straight away passed for a sum of Rs.10,000/- which will include the salary for the period. It is so decreed. This amount will carry interest at the rate of 9% from today if not paid immediately. The decree of the trial court and the High Court is set aside and the appeal is disposed of accordingly. " ;