IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.5076 of 1999 1. Gayatri Kumari, D/o Sri Madhusudan Singh, resident of village Deshri, P.S. Deshri, District Vaishali at Hajipur at present posted as A.N.M. in Tarari Block Primary Health Centre, Tarari, P.S. Tarari, District Bhojpur 2. Nilam Kumari, D/o Sri Rameshwar Singh, resident of village Salimpur, P.S. Karai, P.O. Salimpur, Via Karar Parasuraj District Nalanda at present posted as A.N.M. in Tarari Primary Health Centre, Tarari, P.S. Tarari, District Bhojpur 3. Asha Kumari, D/o late Manik Chandra Singh, resident of Timaha Kurma (Nasiriganj), P.O. Karma District Rohtas at present posted as A.N.M. in Tarari Block Primary Health Centre, Tarari, P.S. Tarari, District Bhojpur 4. Madhuri Sinha, D/o Sri Raghunandan Gorai, resident of village Muzafara, P.O. Tharthari, District Nalanda, at present posted as A.N.M. in Tarari Block Primary Health Centre, Tarari, P.S. Tarari, District Bhojpur … Petitioners Versus 1. The State Of Bihar through the Secretary cum Commissioner, Health Department, Govt. of Bihar, Patna 2. The Director-in-Chief, Health Department, Govt. of Bihar, Patna 3. The Civil Surgeon cum Chief Medical Officer, Bhojpur at Arrah … Respondents ---------------------------------- 5. 27.7.2011 Heard counsel for the parties. The prayer of the petitioners in this writ application is for a direction to make payment of salary for the period 27.12.1991 to 17.4.1995. Counsel for the petitioners would submit that the petitioners would be entitled for payment of salary for the aforesaid period even though they have not worked for the aforementioned period on the post of A.N.M. in the district of Bhojpur because their appointment made in the year 1990 was wrongly terminated and the respondents ultimately on the basis of a direction given by this Court had reconsidered their cases and had reinstated them in service. He would, therefore, submit that since this was an act of the respondents depriving the petitioners to 2 work on the post in the period in question the petitioner would be entitled for payment of salary. Counsel for the State, on the other hand, has not only relied on the two orders passed by this Court dated 9.5.1995 in C.W.J.C.No. 4836/1994 and the order dated 15.3.1995 in C.W.J.C.No. 3596/1994, as contained in Annexures A and B to the counter affidavit, to contend that in similar cases this Court has refused to grant payment of salary for the period the similarly situated A.N.Ms. were kept out of service. Counsel for the petitioners, on the other hand, would submit that this Court in another writ application, C.W.J.C. No. 9021/2000 disposed of on 6.9.2007 has held the Nurses/ A.N.Ms. removed from service to be entitled for payment of salary. In the considered opinion of this Court the basic principle which would be governing such cases as with regard to payment of salary for the period one would be kept out of service is as to whether keeping out such persons out of service was an altogether illegal action which required to be set aside by directing reinstatement under the order of the Court. In the present case of the petitioners it is the categorical assertion of the respondents that the Civil Surgeon of Bhojpur District in the year 1990 without advertising the post in the newspaper and without undergoing any process of selection had appointed them on the post of A.N.M. which were subsequently cancelled in the year 1991 after giving show cause notice to the petitioners and others. Such appointment though cancelled by an order dated 27.12.1991 was challenged by 3 the petitioners by filing a writ petition in this Court in C.W.J.C.No. 3596/1994 after almost a period of three years of their removal from service as is admitted by the petitioners in paragraph no. 3 and 4 of this writ application reading as follows:- "3. That after a year from their service, the service of the petitioner were terminated vide order dated 27.12.1991 by the Civil Surgeon-cum-Chief Medical Officer. 4. That the petitioners filed a writ petition vide C.W.J.C. No. 3596 of 1994 challenging therein the order of the termination of the petitioner which was disposed of vide order dated 13.3.1995 by this Hon'ble Court." It is to be noted that this Court while disposing the aforesaid writ petition of the petitioners had not even interfered with the order of termination of service dated 27.12.1991 and had simply remitted the matter back to the Civil Surgeon to consider the case of the petitioner in the light of an earlier decision taken in the case of Kiran Kumari. As a matter of fact this Court while remitting the matter back in its order dated 15.3.1995 in C.W.J.C. No. 3596/1994 had made it clear that the delay of three years would make the petitioners stand deprived from getting payment of salary for the intervening period and to that extent the aforesaid inter party order would be binding on both the petitioner and the State passed in the case of the petitioners themselves, reading as follows: “C.W.J.C. No. 3596/1994 Nilam Kumari & Ors. Vs. State of Bihar 4. 15.3.1995 The petitioners are aggrieved by orders dated 27.12.1991, as contained in Annexure-1 and 1/A, whereby, their services were terminated. The petitioners have claimed that they after getting proper training, got their names registered with Bihar Nurses Registration Council on 6.2.1990. 4 Thereafter they were appointed on 20.2.1990 as Ausillary Nurse Mid-Wife (in short A.N.M.) It is stated that one Kiran Kumari, whose services were also in the similar manner, had filed C.W.J.C. No. 2472 of 1992. A Bench of this Court disposed of the writ application by order dated 3.1.1994, directing the authority to examine her case. The claim of the petitioners is that the grounds, which have been taken by the respondents authorities to terminate the services of the petitioners, are nonest. Such formalities are not required to be carried in appointment of A.N.M. In the background of the facts, stated above, I direct the Civil Surgeon cum-Chief Medical Officer, Bhojpur (Arrah), to examine the grievance of the petitioners, provided their cases are identical to that of Kiran Kumari and mother who had filed C.W.J.C. No. 2472 of 1992 and thereafter pass an appropriate reasoned order in accordance with law expeditiously without any unnecessary delay. However, it is clarified if the claim of the petitioners are allowed, they shall not be entitled for arrears of salary since they have approached this Court after a long delay and no plausible explanation has been furnished for such delay. With the aforesaid observation/observations, this writ application is thus disposed of. It would thus be shocking for this Court to find that the petitioners despite being aware and bound by the aforesaid inter party order have ventured to file this frivolous writ application claiming payment of arrears of salary when they were fully aware that they could not have been given payment of arrear of salary in view of the last order passed by this Court in their case on 15.3.1995 in C.W.J.C.No. 3596/1994. To that extent there is a direct attempt on the part of the petitioners to suppress the facts in order to mislead this Hon'ble Court by giving incomplete statement containing only half truth inasmuch it has been stated in paragraphs no. 5 to 8 that:- 5 "5. That the aforesaid writ application was disposed at in the light of order dated 3.1.1994 passed in C.W.J.C. No. 2472/1992 filed by one Kiran Kumari and the services of the petitioner were also in the similar manners. 6. That the Hon'ble High Court direct the Civil Surgeon-cum-chief Medical Officer, Bhojpur at Arrah to examine the grievance of the petitioners provided their cases are identical to that of Kiran Kumari and anothers who has filed C.W.J.C. No. 2472 of 1992 and thereafter pass an appropriate reasoned order in accordance with law expeditiously without any unnecessary delay. 7. That in the light of order dated 15.3.1995 passed in C.W.J.C. No. 3596 of 1994, after the examination of the grievance of the petitioners by the Civil Surgeon-cum-Chief Medical Officer, Bhojpur at Arrah, the petitioners were again appointed by the Civil Surgeon-cum-Chief Medical Officer, Bhojpur and were directed to join their service with effect from the date of taking the charge. 8. That it is relevant to mention here that others whose services were identical and similar to the service of the petitioners have been paid the due salary whereas, the petitioners have not been paid the arrears of the salary for the reasons best known to them." In that view of the matter, this Court would find that the reliance placed on the order by the learned counsel for the petitioners in the case of Chandra Kanta Kumari & Ors. vs. the State of Bihar & ors., C.W.J.C. No. 9021/2000, disposed of on 6.9.2007 is absolutely misconceived and not at all comparable, inasmuch as in their case it does appear that there was such an earlier inter party order depriving them from payment of arrear of salary upon their reinstatement. A precedent in fact can only be made applicable if there is a decision on a question of law or the facts are identical in all respect. The moment this Court would find that in the case of the petitioners there was an inter party order 6 dated 15.3.1995 in C.W.J.C No. 3596/1994 depriving them the benefit of payment of arrears of salary it will not be difficult to reach to a conclusion that the petitioners had intended to mislead this Court by not only suppressing the material information but also by placing reliance on a wholly, incomparable case of Chandra Kanta Kumari (supra). That being so, this application is wholly misconceived and is, accordingly, dismissed with a cost of Rs. 5000/- against each of the four petitioners to be realized from their salary. Let a copy of this order be sent to the office of Civil Surgeon-cum-Chief Medical Officer, Bhojpur at Arrah (Respondent no. 4) for its strict compliance. (Mihir Kumar Jha,J.) Surendra/