IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 379 of 2002 LAKSHMI ROY Son of late Ajodhi Roy, Chairman, Bihar Public Service Commission, Patna .......... PETITIONER Versus 1. THE STATE OF BIHAR 2. The Chief Secretary, Govt. of Bihar, Patna. 3. Dr. Arvind Prasad, Secretary, Personnel and Administrative Reforms Dept. Govt. of Bihar, Patna 4. The Teasury Officer, Secretariat Branch, Patna. 5. The Bihar Public Service Commission through its Secretary ----------- For the petitioner :- Mr. Rajendra Pd.Singh, Sr.Advocate & Mr. Rajeev Kr. Singh. For the State : Mr. Sanjay Prakash Verma’ J.C. to G.A.5 For B.P.S.C. :- Mr. D.K.Sinha,Sr.Advocate & Mr. Anil Kr.Singh,Advocate. ------------- 8 16-1-2009 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel appearing for the Bihar Public Service Commission. This writ petition has been preferred by the petitioner, an Ex-Chairman of the Bihar Public Service Commission ( hereinafter referred to as `the Commission`). to claim salary and other allowances for which he has submitted bills but has not been paid. Petitioner has also prayed for award of interest at the rate of 18% per annum. He has also claimed reimbursement of legal expenses from the Commission and compensation from the State. The period for which the petitioner has claimed salary is from 11-11-2000 to 1-7-2001. Most of the relevant facts are not in dispute. Petitioner was appointed as the Chairman of the Commission vide a notification dated 24-1-1997 and he joined his duty on the next day and - 2 - functioned as such since then. He has alleged in paragraph-9 of the writ petition that planning was made to implicate the petitioner and pursuant to that certain high-up and certain politicians hatched up a plan and got him arrested on 11-11-2000. From the records, particularly, an earlier judgment of this Court dated 2-7-2001 contained in annexure-12, it is clear that petitioner was taken into custody by the Central Bureau of Investigation in connection with a Criminal Case , R.C. 43(A)/97/Pat relating to irregularities in the Engineering Entrance Examination. At the relevant time the petitioner was Principal, Regional Institute of Technology, Jamshedpur After the Investigating Agency i.e. C.B.I. defaulted in submitting charge-sheet within the period of 90 days the petitioner was granted bail in terms of Section 167(2) of the Code of Criminal procedure on 12-2-2001. On the very next day he went to the office with a view to resume his duties with information to the State Government and the Governor etc. However, he was not allowed to perform his duty on account of an In-charge Chairman of the Commission already appointed in terms of Article 316 (1A) of the Constitution of India. The Incharge Chairman had assumed charge in terms of a notification dated 28-11-2000 which permitted him to continue till further orders. In the aforesaid circumstances the petitioner had preferred a writ petition bearing C.W.J.C. No. 7011 of 2001 seeking direction from this court to restrain the Incharge Chairman from functioning as Chairman of the Commission, to declare all decisions - 3 - taken by him on or after 13-2-2001 as null and void and unconstitutional and to further declare that the notification dated 28- 11-2000 had become infructuous and inoperative with effect from 13- 2-2001. The judgment of this Court in that writ petition contained in annexure-12 shows that in paragraph-11 this court held that absence of the regular Chairman i.e. the petitioner, came to an end on 13-2-2001 and thereafter the continuance of the Incharge Chairman was not inconsonance with clause (1 A ) of Article 316 of the Constitution. The Court further held that the clause “ till further orders” was itself contrary to the aforesaid provisions of the Constitution. However, applying the de facto doctrine, this Court saved action of the Incharge Chairman till the petitioner could start functioning on account of said judgment of this court with effect from 1-7-2001. On behalf of petitioner it has been submitted that he had to undergo incarceration on account of action of the State Authorities which were wrong and mala fide and therefore for the period he remained in custody i.e. 11-11-200 to 12-2-2001 he could not work due to wrong action of the State authorities resulting into his incarceration and for the subsequent period ending on 1-7-2001, as per judgment of this Court contained in annexure-12, the Incharge Chairman wrongly continued to function. The notification itself was bad since 13-2-2001, hence petitioner must be paid all his salary and allowances along with interest for the period 11-11-2000 till 30th June, 2001. According to petitioner the respondents have acted in an illegal manner in not honouring the bills submitted by the petitioner and - 4 - therefore, petitioner must be paid interest and damages. On behalf of State it has been submitted that the appointment of the Incharge Chairman was definitely valid so long as petitioner was absent, that is till 12-2-2001 but as per judgment contained in annexure-12 the action of the Incharge Chairman even for subsequent period has been held to be lawful and therefore, the respondents should not be directed to pay the salary and allowances of the petitioner for the aforesaid period when the Incharge Chairman had functioned in terms of a notification under clause (1A) of Article 316 of the Constitution. According to him petitioner has rightly been paid only for the period he had worked i.e. after 1-7-2001 when he was permitted to resume his duty and worked as per judgment of this court dated 2nd July, 2001 ( Annexure 12 ). As observed earlier the facts of this case are not in dispute. It is clear that petitioner could not function as Chairman of the Commission on account of his incarceration in connection with a C.B.I. case from 11-11-2000 to 12-2-2001. Thereafter he could not function as Chairman till 1-7-2001 on account of wrong action of the respondents in allowing the Incharge to continue even when the regular Chairman of the Commission was available to work. Such wrong and illegal act of the respondents was brought to an end by judgment and order of this court contained in annexure-12. Thereafter petitioner continued as Chairman of the Commission till he completed his tenure. Petitioner was wrongly prevented from working for the period 13-2-2001 to 1-7-2001. He is thus found entitled for all his pay - 5 - and allowances for the aforesaid period. So far as payment of salary for the period of incarceration of the petitioner is concerned, the issue has to be examined from a different perspective. The criminal case is still pending and this court would not like to go into the submissions that petitioner has been involved in that case due to wrong and mala fide influence. He can urge all the available grounds in this regard only in appropriate proceeding when he choses to challenge the criminal case which is still pending. In view of constitutional provisions, the State was within its power in appointing an Incharge Chairman for the period of petitioner’s absence and unless there be some legal provisions authorizing the petitioner to claim salary and allowances for the period he was unable to attend to his office the State is free to say that no salary is payable on account of “no work no pay” for the period when Incharge Chairman could be and was appointed and paid. No legal provision has been brought to the notice of this court which may entitle the petitioner to claim salary and allowances for the period he was in jail custody. Hence, it is held that petitioner will not be entitled to claim salary and allowances for the period 11-11-2000 to 12-2-2001 but he is entitled to get his salary and allowances for the period 13-2- 2001 to 1-7-2001. The same must be paid to the petitioner without any delay and in any case within two months from the date of production/communication of a copy of this order. Over the aforesaid dues of salary and allowances the petitioner is held entitled to an interest at the rate of 7 per cent per annum from the date of - 6 - Naresh presentation of the bills till the date of actual payment. However, he is not entitled to claim for damages. The writ petition is allowed to the aforesaid extent. The claim for damages cannot be entertained in this proceeding and the issue is left open. If the petitioner succeeds in criminal case and if he is so advised, he may claim for damages. ( Shiva Kirti Singh,J)