IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4906 of 2003 DR.RAJESH KUMAR JHA, son of Sri Upendra Kumar Jha, resident of village Bishwpuria, P.O. Kalluchak, P.S. Navgachia, District Bhagalpur, at present posted at as Doctor (Homeophath) Additional Primary Health Centre, Purihara Balia, District Begusarai … Petitioner Versus 1. THE STATE OF BIHAR 2. The Director, Deshi Chikitsa, Bihar, Patna 3. The Deputy Secretary, Deshi Chikitsa, Bihar, Patna 4. The Civil Surgeon cum Chief Medical Officer, Begusarai 5. The Medical Officer In-charge, Balia, Begusarai … Respondents with CWJC No.12353 of 2003 DR.JAI KISHOR PRASAD YADAV, son of late Rajendra Prasad Yadav, resident of village + P.O. Nadaul, P.S. Masauri, District Patna, at present working as Doctor (Homeopath), at Primary Health Centre, Utrapatti (Ratuifaridpur), Jehanabad … Petitioner Versus 1. THE STATE OF BIHAR 2. The Director, Deshi Chikitsa, Bihar, Patna 3. The Deputy Secretary, Deshi Chikitsa, Bihar, Patna 4. The Civil Surgeon cum Chief Medical Officer, Jehanabad 5. The Civil Surgeon cum Chief Medical Officer, Arwal 6. The Civil Surgeon cum Chief Medical Officer, Darbhanga 7. The Civil Surgeon cum Chief Medical Officer, Saran (Chapra) … Respondents -------- 3. 23.7.2010 Heard Mr. Sheel Bhadra Jha, counsel for the petitioners and the counsel for the State in both the cases. The prayer in these two writ applications reads as follows: 2 In C.W.J.C.No. 12353/2003 “This is an application for issuance a writ in the nature of mandamus or any other writ or writs, order or orders, direction or directions commanding the respondents to pay 10 months the salary of the petitioners from their joining in the office of the Director, Deshi Chikitsa, Bihar, Patna (respondent no.2) till their posting which was held due to waiting for posting. As well as to direct the respondents to pay the petitioners at revised scale of pay Rs. 6500-10,500/- from the date of their appointment which is granted by the 5th Pay Commission.” In C.W.J.C.No. 4906/2003 “This is an application for issuance a writ in the nature of mandamus on any other writ or writs, order or orders, direction or directions commanding the respondents to pay the salary of the petitioner from 13.7.99 to 31.12.99 which is dues upon the respondents for the work done by the petitioner in the office of the respondent no.2 as well as to direct the respondent to give the petitioner at revised scale of pay Rs. 6500-10500/- from the date of his appointment which is granted by 3 the 5th pay commission.” Mr. Jha, learned counsel for the petitioners, however, has confined his submissions only on the following two issues:- (i) The petitioners having been appointed for the first time on a Class III post of Deshi Chikitsak pursuant to the recommendation of the Bihar Public Service Commission vide notification dated 2.7.1999 with a stipulation of joining within 15 days of such notification, having submitted their joining within the aforementioned period cannot be deprived of payment of salary from the date of submission of their joining till the date of their posting/ acceptance of joining at the posted place. (ii) The petitioners though appointed on Class III post of Deshi Chikitsak with a pay scale of Rs. 1500-2750 as shown in the advertisement would be entitled to the replacement pay scale of Rs. 2200-4000 in view of the Government decision dated 15th September, 1997 and therefore, would be further entitled for replacement pay scale of Rs. 6500-10500 being 4 replacement pay scale of Rs. 2200-4000 and the decision of the Government to make payment of their salary in the revised pay scale of Rs. 5000-8000 is incorrect and either in ignorance of the Government resolution dated 15th September, 1997 or has issued without superseded the same. Counsel for the State, on the other hand, in both the cases would submit that none of the two issues raised by the counsel for the petitioners would merit any consideration, inasmuch as it is a settled principle of law that the payment of salary can only be made for the work done and to that extent he relies on the principle of „no work no pay‟. Explaining this aspect it has been submitted that true it is that the petitioners had submitted their joining pursuant to their notification of appointment dated 2.7.1999 but then they would not be entitled to payment of salary only from the date their joining was accepted at the place of posting in terms of the Government order. The first issue as raised above need not detain this Court, inasmuch as the 5 said period on the basis of pleadings has to be bifurcated into two parts. It is an admitted position that the Government had issued a notification for their appointment on 2.7.1999 and such notification itself envisaged the following conditions: ^^ 2-bUgsa vkns”k fn;k tkrk gS fd os fdlh vlSfud “kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh ls LokLF; izek.k izek.k i= izkIr dj 15 fnuksa ds vUnj ns”kh fpfdRlk funs”kky; fcgkj iVuk esa ;ksxnku djsa] vU;Fkk mudk fu;qfDr jn~n dj nh tk;sxh A 3-fu;qDr mEehnokjksa dks ngst u ysus u nsus dk ?kks’k.kk i= Hkh izLrqr djuk iM+sxk vU;Fkk ;ksxnku Lohdkj ugha fd;k tk;sxk A 4-;ksxnku ds fy, fdlh Hkh izdkj dk ;k=k HkRrk ns; ugha gksxk A 5-;ksxnku Lohd`fr ds iwoZ lHkh ewy izek.k i=ksa dh tkWap iqu% dh tk;sxh A 6-;ksxnku Lohd`fr ds mijkUr buds inLFkkiu dk dkjZokbZ vyx ls dh tk;sxh A** Thus, it would be clear that the joining was to be submitted by the persons appointed by the said notification within 15 days i.e. on or before 17th July, 1999. The procedure in fact as explained in the notification of their appointment was that they had to give declaration with regard to not accepting any dowry as also present their all original certificates and only on presentation/ verification of the same their joining could be accepted leading to their further notification of posting. It is not in dispute that the Government ultimately 6 had issued the notification dated 29.12.1999 posting the persons appointed by the appointment notification dated 2.7.1999 and therefore, when the said order of the Government dated 29.12.1999 itself contained a clause that the persons appointed by the notification dated 2.7.1999 who had submitted their joining report and were waiting for their posting, were being posted at different places, the Government cannot take a plea of no work no pay for the period when they had submitted their joining report and had remained waiting for their actual posting in terms of the notification of their appointment dated 2.7.1999. The two petitioners have different date of their joining as shown in the two writ petitions and therefore, they would be deemed to have complied the terms and conditions of the notification dated 2.7.1999 on presentation of their joining report and if they have thereafter also complied the order of notification of their posting dated 29.12.1999 within the stipulated period or its modified order they would be also entitled for their full 7 payment of salary from the date of first submission of joining report in the month of July, 1999 to the date of their actual acceptance of joining report in terms of their subsequent order of posting. The petitioners, however, would not be entitled for payment of salary of any period after 29.12.1999 till acceptance of their joining report if they had not submitted their joining report at their respective place of posting within seven days of the aforesaid notification dated 29.12.1999. The case of the petitioner Dr. Jai Prakash Prasad Yadav who by an order dated 29.12.1999 was posted at Additional Primary Health Centre Chausa, Buxar would be examined separately was much as it appears that his joining was accepted only after 8.5.2000 when another notification of his posting was issued. In other words, this aspect of the matter, in cases of both the petitioners will have to be enquired into individually and for this purpose the petitioners must file their separate representations giving their proof of such joining and the other details and on receipt of such 8 representation the competent authority of the State Government would pass a final order in the light of the aforementioned observations within a period of three months from the date of their filing of the individual representations. As with regard to the second grievance of the petitioners there appears to be some sort of confusion in the mind of the authorities of the Health Department. No doubt the petitioners had even after being a four year Diploma holder in the course of Homeopathy had been appointed as Homeopathic Chikitsak in the pay scale of Rs.1500-2750 as set out in the advertisement but then in the meantime in fact before issuance of such order of the notification of their appointment dated 2.7.1999 the State Govt. had already taken a policy decision vide its resolution dated 15th September, 1997 wherein a conscious decision was taken for replacement of pay scale of Rs. 1500-2750 to 2200-4000 as would be evident from the following extract of the said resolution dated 15th December, 1997:- ^^ 4-ekuuh; U;k;ky; ds funsZ”k ds vkyksd esa okfn;ksa }kjk lefiZr vH;kosnu ij jkT; ljdkj ds }kjk xaHkhjrkiwoZd fopkj fd;k x;k A leh{kk ds lanHkZ esa ;g 9 Hkh rF; lkeus vk;k fd LokLF; fpfdRlk f”k{kk ,oa ifjokj dY;k.k foHkkx us fnukad 21-11-92 ds fuxZr vf/klwpuk ds tfj, gksfe;ksiSfFkd fpfdRlk in~/kfr esa fof/k }kjk LFkkfir fo”ofo|ky; vf/kdk; vFkok cksMZ }kjk o’kZ 1983 rd iznRr prqFkZ oxhZ; ¼Mh0 ,p0 ,e0 ,l0½ fMIyksek bu gksfe;ksiSfFkd esMhlhu ,oa ltZjh izek.k i= ¼;ksX;rk½ ds fMxzh ds led{k ekU;rk iznku djus dk fu.kZ; fy;k gS A mi;qZDr i`’BHkwfe esa gksfe;ksiSfFkd fpfdRld ds osrueku ds la”kks/ku dk iz”u ljdkj ds fopkjk/khu Fkk A 5- ekuuh; mPp U;k;ky; ds funsZ”k] iape vlaxfr fujkdj.k lfefr dh vuq”kalk ,oa LokLF; fpfdRlk f”k{kk ,oa ifjokj dY;k.k foHkkx ds ladYi fnukad 21- 11-94 ds n`f’V iFk esa j[krs gq, lE;d~ fopkjksijkUr jkT; ljdkj us ;g fu.kZ; fy;k gS fd fMxzh/kkjh gksfe;ksiSfFkd fpfdRld@jkT; ljdkj }kjk gksfe;ksiSfFkd fpfdRlk in~/kfr esa fof/k }kjk LFkkfir fo”o fon~;ky; vf/kdk; vFkok cksMZ }kjk o’kZ 1983 rd iznRr prqFkZoxhZ; ¼Mh0 ,p0 ,e0 ,l0½ fMIyksek bu gksfe;ksiSfFkd esMhlhu ,oa ltZjh izek.k i= ¼;ksX;rk½ /kkjd gksfe;ksiSfFkd fpfdRlksa ds fy, :0 1500&2750 ds LFkku ij :0 2200&4000 dk osrueku Lohd`r fd;k tk; A 6- la”kksf/kr osrueku dk oSpkfjd ykHk fnukad 1&1&85 ls ,oa fnukad 1&3&89 ls vuqekU; gksxk A fnukad 1&3&89 ls 31 ekpZ 1995 rd dk cdk;s jkf”k lacaf/kr dfeZ;ksa ds lkekU; Hkfo’; fuf/k [kkrs esa tek fd;k tk;xk rFkk mRdzfer osrueku esa osru fu/kkZj.k ds vuqlkj 1 vizhy] 1985 ls gh uxn Hkqxrku fd;k 7- ftu ljdkjh lsodksa ds osru fu/kkZj.k bl ladYi ds tfj, gksxk mudk osru foRr foHkkx ds ladYi la[;k 6921 fnukad 18-11-89 ,oa 781 fnukad 6-6-96 esa fufgr fl)kUr ,oa izfdz;k ds vuqlkj fu/kkZfjr fd;k tk;xk A la”kksf/kr osrueku esa osru dk lR;kiu l{ke inkf/kdkjh ds }kjk vko”;d gksxk A ** From the reading of the aforementioned conscious Government decision it would be clear that four year Diploma holders were treated as class apart and in fact equivalent to degree holders in the matter of parity of pay scale. In that view of the matter, the submission of the learned counsel for the State by placing reliance on the Government resolution dated 6.11.2007 10 admittedly would lead to some sort of confusion, inasmuch as the decision runs contrary to the aforementioned earlier Government resolution dated 15th September, 1997 specially when the same has been issued without annulling the same as would be apparent from the following passage of the said resolution dated 6.11.2007 (Annexure „B‟): ^^ ladYi fo’k;%& fMIyksek/kkjh gksfe;ksiSFkh fpfdRlksa ds fy, iqujhf{kr osrueku dh Lohd`fr A jkT; dfeZ;ksa dks dsUnz ds vuq:Ik fnukad 1-1-96 ls osrueku dh vuq”kalk gsrq fQVesaV dfefV dk xBu fd;k x;k Fkk A fQVesaV dfefV ds }kjk jkT; ljdkj ds LokLF; foHkkx ds v/khu dk;Zjr fMIyksek/kkjh gksfe;ksiSFkh fpfdRldksa ds osrueku dh vuq”kalk ugha dh x;h A QyLo:Ik fMIyksek/kkjh gksE;ksiSFkh fpfdRldksa dks jkT; ljdkj }kjk dksbZ osrueku Lohd`r ugha fd;k tk ldk A jkT; ljdkj }kjk gksfe;ksiSFkh fpfdRldksa ds fy, lE;d~ fopkjksijkUr muds viqujhf{kr osrueku 1500&2750 :0 ds fy, fnukad 1-1-96 ls 5000&8000 :0 dk iqujhf{kr osrueku Lohd`r djus dk fu.kZ; fy;k x;k gS A mDr osrueku esa osru fu/kkZj.k ,oa Hkqxrku foRr foHkkxh; ladYi la0&660 fnukad 8-2-99 esa fu/kkZfjr izfdz;k ds vuq:Ik dh tk;xh A** One thing, however, which would appear from the subsequent resolution dated 6.11.2007 is that all the diploma holders whether of four years or less have been treated to be a class apart for fixation of their pay scale of Rs. 5000-8000 but then if there was a separate decision taken only for 11 four years diploma course holders for its being treated as equivalent to four year degree course in the matter of parity of pay scale as is manifest from the reading of Annexure 11, the resolution dated 15th September, 1997, the State Govt. has to address itself on this aspect and take a conscious decision in the matter of fixation and payment of salary. It is true that the fixation of pay is a job of expert in which normally this Court in exercise of power under Article 226 of the Constitution of India can not make any interference but then if the Government resolution dated 15th September, 1997 was issued in terms of an order passed by this Court in C.W.J.C.No. 2950/1995 (Dr. Amreshwar Prasad vs. the State of Bihar & ors.) the Government cannot annul or over look the said order of this Court which in fact was earlier implemented by issuing the resolution dated 15th September, 1997 in a direct manner while issuing prospective notification of pay revision. These aspects, therefore, have to be gone into by the Principal Secretary of the Health Department 12 himself. For this purpose the petitioners are given liberty to produce all the relevant materials by filing their compact joint representation whereafter the Principal, Health Secretary, would obtain order of the State Government in consultation with the Finance Department for taking a final decision with regard to payment of salary of the petitioner in the pay scale of Rs. 6500-10500 in place of Rs. 5000-8000 as is now sought to be given to them. This exercise also must be completed within a period of six months by passing the resultant order and/or extending its benefits to the petitioners within the same period. It goes without saying that if the respondents would reject the claim of the petitioners for payment of salary for any period after 13.7.1999 onwards or the pay scale of Rs. 6500-10500, they would be obliged to give reasoned order in support of their such order. With the aforementioned observation and direction, these applications are disposed of. (Mihir Kumar Jha,J.) Surendra/ 13