IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11953 of 2001 PANKAJ KUMAR PUSHPAM, SON OF SRI BHAGWAN PRASAD YADAV, RESIDENT OF MOHALLA HAJI SUBHAN, POLICE STATION KOTWALI,DISTRICT MUNGER… PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM-SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, NEW SECRETARIAT, VIKAS BHAWAN, PATNA 2. COMMISSIONER-CUM-SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, VIKASH BHAWAN, PATNA 3. DIRECTOR, PRIMARY EDUCATION, HUMAN RESORUCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, VIKASH BHAWAN, PATNA 4. DISTRICT SUPERINTENDENT OF EDUCATION, MUNGER 5. THE HEADMASTER, PRIMARY SCHOOL, SHANKARPUR COLONY, MUNGER MUFFASSIL, P.S. AND DISTRICT MUNGER…………………………. RESPONDENTS ----------- 3. 30.06.2009 Heard learned counsel for the petitioner and learned counsel for the State. It appears that the petitioner was earlier appointed by the respondents as Assistant Teacher in Primary School, Shankarpur Colony, Munger Muffasil, in the quota for handicapped candidates by order dated 21.4.1982 as contained in Annexure-1. Later on, on the basis of some subsequent circular of the State Government, it was found that the petitioner was not having the requisite percentage of disability for his - 2 - appointment against the quota. Hence, by order dated 28th October, 1991, services of the petitioner as well as of some others were cancelled. Thereafter the petitioner moved this Court by filing a writ application which was disposed of by order dated 28.6.1995. While disposing of the writ application of the petitioner and others, this Court directed the respondents to constitute a Medical Board with an Orthopaedic Surgeon and a Radiologist as members to ascertain the percentage of disability of the petitioners. They were also directed to ascertain in regard to factual position regarding minimum percentage of disability required to hold a person handicapped as on 10.4.1981 for his appointment against quota for disabled candidate. This Court directed the respondents to pass appropriate final order within a period of four months from the date of receipt of a copy of the order. It appears that thereafter the Medical Board was constituted and it held the petitioner handicapped by 30 per cent. It was also found that at the time of appointment of the petitioner and others, minimum percentage of disability had - 3 - not been fixed for eligibility for appointment against the quota. Therefore, the order was issued by the Director, Primary Education, Bihar, Patna dated 22.9.1998 as contained in Annexure-6 by which the services of the petitioner and others were directed to be restored. Consequent to the said order, the services of the petitioner were restored by the District Superintendent of Education, Munger by his order dated 14.12.1998, copy whereof is Annexure-6/A. It is stated that since then the petitioner is working and he is being paid salary. However, since the very ground for cancellation of appointment of the petitioner was non est, the petitioner has filed this writ application for direction to the respondents to pay his salary of the period from 28.10.1991 till 13.12.1998 during which period he was out of service on account of cancellation of his appointment. He has also prayed in the writ application for grant of benefits of continuity of services in the matter of seniority etc. Learned counsel for the petitioner submits that since the petitioner remained out of service for no fault of his, he is entitled for the salary for that period as the very basis of - 4 - cancellation of appointment of the petitioner was subsequently found to be non est and he was restored to his service. Learned counsel for the State submits that the petitioner was out of service, therefore, on the principle of “no work, no pay”, salary cannot be directed to be paid to the petitioner for the period he had not actually worked. He submits that in the earlier order of this Court, there was no positive direction with regard to payment of salary to the petitioner in case of restoration of service of the petitioner. The principle of “no work, no pay” has been applied by this Court and by the Hon’ble Supreme Court in several cases. It is not possible for this Court to direct payment of salary of the entire period to the petitioner. However, in its earlier order dated 28.6.1995, this Court had directed the respondents to pass appropriate final orders within a period four months from the date of receipt of the order. In spite of the said direction of this Court, the matter remained pending with the respondents which itself amounted to non-compliance of the order of this Court. Therefore, this Court finds - 5 - that the petitioner becomes entitled to his salary of the post on expiry of four months from the date of the said order of this Court passed in his case earlier. Further this Court finds that since the ground of cancellation of his appointment was found to be non est and his services have been restored, the petitioner is entitled to benefits of continuity of service for the purpose of seniority etc. In these circumstances, this Court directs the respondents to pay salary of the petitioner from November, 1995 till passing of the order restoring his services i.e. 14.12.1998. The respondents are also directed to treat the petitioner notionally in continuous service from the date of his initial appointment for the purpose of seniority etc. With the above observations and directions, this writ application is disposed of. B.T (J.N. Singh, J.)