KESHAV TRIPATHI Vs. STATE OF U P

JUDGEMENT

(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.

(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. "