IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8264 of 2002 SAROJ KUMARI, aged about 37 years, Daughter of Sri Sheo Nandan Singh, resident of Village Okari, P.S. Jaitipur Kurwa, District Jahanabad. Versus 1.STATE OF BIHAR through the Secretary Cum Commissioner, Department of Health and Family Welfare, Govt. of Bihar, New Secretariat, Vikash Bhawan, Patna. 2.Director-in-Chief, Health Services, Govt. of Bihar, New Secretariat, Vikash Bhawan, Bailey Road, Patna. 3.Civil Surgeon Cum Chief Medical Officer, Kaimur, Bhabhua. ----------- 5 23.7.2010 Heard Mr. Shivendra Kishore, learned counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “That this is an application for direction to the respondents to pay arrear of salary of the petitioner with all consequential benefits for the period petitioner was forced to remain out of service i.e, from July, 1997 to June, 2000.” With reference to the aforementioned prayer Mr. Shivendra Kishore, learned counsel for the petitioner would submit that the petitioner was appointed on the post of Auxiliary Nurse and Midwife (A.N.M.) in the chain of appointment of 48 persons in all and her such appointment was cancelled by order dated 27.11.1997 and the same on being interfered by this Court was again reinstated by order dated 21.12.1998. He has further submitted that such common order of termination of 48 persons was initially interfered with by this Court in the order dated 12.8.1999 in C.W.J.C. No.764 of 1999 wherein after quashing the order of termination the matter was remitted back for passing fresh 2 order. He would also submit that in view of order of this Court the similarly situated persons including Kumari Shushma Sinha, writ petitioner in C.W.J.C. No.764 of 1999 was reinstated in service by order dated 3.12.1997 and subsequently by another order dated 5.4.2000 the respondents had also reinstated yet another batch in lot of 48 persons who were petitioners in C.W.J.C. No.2561 of 1999 (Shushila Kumari & Ors. Vs. The State of Bihar & Ors.) Vide order dated 5.4.2000. Learned Counsel points out that after all these the respondents had also on their own had reinstated the petitioner by order dated 12.6.2000, whereafter she had continued to work. It is claimed by him that all 48 persons have already been paid their salary for the period they had been forcibly kept out of service, but similar treatment has not been extended to the petitioner. In this context reliance has also been placed by the learned counsel for the petitioner on an order of this Court dated 21.12.1995 in C.W.J.C. No.7121 of 1995 and another order dated 3.1.2002 in C.W.J.C. No. 16039 of 2001. On the basis of all these orders and the consequential action taken for payment of salary to the similarly situated persons of lot of 48 A.N.Ms who were terminated by the same order as in case of the petitioner he seeks parity for the petitioner even in the matter of payment of her salary for the period in question, i.e. July, 1997 to June, 2000 in which she too had been forcibly kept out of service. Counsel for the State, on the other hand, has filed a counter affidavit, wherein none of the facts mentioned in the writ 3 application has been remotely denied. In the counter affidavit however the reasons for non payment of salary to the petitioner has been explained in its paragraph nos. 6, 7 and 8, and for sake of convenience and clarity is reproduced hereinbelow:- “6.That it is submitted that petitioner has not worked from July, 1997 to June, 2000 due to termination of service and according to the rule no work no pay, the petitioner can not be paid arrear of salary. 7.That it is submitted that no order has been passed in this respect either by the Hon‟ble Court or by the higher authorities. Only those A.N.M.s were paid who had earlier come before this Hon‟ble Court for payment of the arrear of salary and order has been passed by this Hon‟ble Court, but so far as the case of the petitioner is concerned no such order has been passed by this Hon‟ble Court with respect to payment of arrear of salary from July, 1997 to June, 2000 during which petitioner was forced to remain out of service. 8.That it is submitted that petitioner has even not approach before this respondent for payment of arrear of salary as above mentioned and petitioner has not filed any representation for payment of arrear of salary.” So far the issue of „no work no pay‟ is concerned, this Court would find that the issue had been settled in an earlier order of this Court to which the State of Bihar is a party. In an order dated 21.12.1995 in C.W.J.C. No.7121 of 1995 (Ribha Rai & Ors. Vrs. State of Bihar & Ors.), dealing this very aspect a learned Single Judge had held as follows:- “This Court is of the view that the principle of „No work no pay‟ cannot be applied in the facts and circumstances of this case. It is already decided by the Apex Court in the case of „Union of India- Petitioner Vs. K.B.Janki Raman- Respondent (A.I.R. 1991 S.C. 2010) that the principle of „No work no pay‟ cannot be made applicable in the case where employee is willing to work but has been kept away from the work by the authorities for no fault on his 4 part. In the instant case the employees are kept out away from the work by termination order which was ultimately quashed by this Hon‟ble Court. Therefore, it cannot be said that the petitioners did not perform their duties and do not work for any fault on their part. In that view of the matter this Court follows the ratio of the judgment in the aforesaid case and holds that the stand taken by the respondents is not correct. In that view of the matter, this Court directs the respondent authorities to pay the arrears of salary to which the petitioners are entitled to for the period during which they were kept out of the employment by the impugned order of termination, such arrears of salary must be made available to the petitioners within a period of eight weeks from the date of receipt/ communication of a copy of this order.” Such order of the learned Single Judge, in fact, stands affirmed on account of dismissal of L.P.A. No. 306 of 1996 by a division bench of this Court and S.L.P. No. 10449 of 1997 by Apex Court as would be evident from the orders Vide Annexures 12 and 13 of the writ application. Therefore, this Court will have to accept that the plea of „No work no pay‟ cannot be made applicable in all cases even where the order termination is based on an illegal ground and the persons concerned had been kept out of employment and thus were deprived from working due to no fault on their part. Therefore the plea of „No work no pay‟ of the respondents in the case of the petitioner also must be rejected. The other plea that there was no order of this Court for payment of salary in the case of petitioner has to be again only noted for its being rejected. The Civil Surgeon on his own had chosen to reinstate the petitioner by following the ratio of two similar cases and therefore if he had gone to make payment of 5 salary in the cases of other persons either on his own or being directed by this Court, he has to again follow the same principle in the case of the petitioner. For that purpose he did not require any order of this Court specially when he had also not required any order of this court for reinstating the petitioner back in the service. This Court would also find that the ground of termination of service in the case of Ribha Rai (supra) does not seem to be same and in fact from reading of the relevant order it would be clear that it was the only case for enforcement of rules which led to termination of her service. Same is not the case of the petitioner or other 48 teachers, inasmuch as, here it is said that some of them did not possess requisite qualification apart from not undergoing the prescribed procedure under Articles 14 and 16 of the Constitution relating to issuance of advertisement and selection process. This would be manifest from the order of termination of the petitioner issued on 27.11.1997, wherein reasons for termination of here service were recorded as follows:- ^^mi;qZDr dafMdk& rhu ds vkyksd esa lfefr }kjk fuEuor izfrosnu fnukad 25-11-97 dks izLrqr fd;k x;k ftldk eq[; fcUnq fuEuor gS& ¼d½ izklkafxd lHkh fu;qfDr;ksa esa vkj{k.k ds fu;eksa dk ikyu ugha fd;k x;k gSA ¼[k½ 48 ,u0 ,e0 dh fu;qfDr ds fy, dksbZ foKkiu ;k lwpuk izdkf'kr ugha fd;k x;kA ¼x½ 76 ,u0 mu0 ,e0 dh fu;qfDr ds fy, izdkf'kr foKkiu ds vuq:I fu;qfDr;ka ugha dh xbZ gSA ¼?k½ fu;qfDr es?kk lwph ¼esfjV fyLV½ ugha rS;kj dh xbZ ftlls ;g irk py lds fd lgh izkIrkad okys ;ksX; mEehnokjksa dk p;u gqvkA 6 ¼M-½ dWeqj ftyk esa fu;qfDr jksgrkl ftyk ds lekgRrkZ dh v/;{krk esa gksuk Hkh vfu;fer gS D;kasfd jksgrkl rFkk dSeqj nks vyx&vyx ftyk gSA vFkkZr dSeqj ftyk ds lekgRrkZ ds vuqifLFkfr esa ftyk esaq ,0 ,u0 ,e0 dh fu;qfDr dh xbZA mi;qZDr ds vykos ,0 ,u0 ,e0 ds in ij fu;qfDr gsrq fu/kkZfjr 'kS{kf.kd ;ksX;rk ,oa fcgkj fo|ky; ijh{kk ls izosf'kdkmRrhZ.k rFkk fcgkj ifjpkf;dk fuca/ku iVuk ls iathd`r gksuk pkfg, ijUrq tkap ds dze esa ik;k x;k gS fd lLor e/;ek fgUnh lkfgR; mRrhZ.krk izkIr vH;fFkZ;ksa dh Hkh izklkafxd fu;qfDRk esa lfEefyr fd;k x;k gS rFkk dqN mEehnokjksa dh fu;qfDr ds i'pkr~ fcgkj ifjpkfjdk fuca/ku ifj"kn esa iathd`r djkus dk ekeyk Li"V gqvk gSA lkFk gh LokLF;] fpfdRlk f'k{kk ,oa ifjokj dY;k.k foHkkx ds i= la[;k&19 fnukad 11-1-91 }kjk LokLF; foHkkx ds v/khuLFk dk;kZy;ksa esa o"kZ&3 ,oa 4 in ij fu;qfDr gsrq xfBr ftyk Lrjh; lfefr gsrq xfBr ftyk Lrj;h lfefr ds vuqlkj izklkafxd 48 ,0 ,u0 ,e0 dh fu;qfDr gsrq vuq'kalk gh izkIr ugha dh xbZ rFkk 76 ,0 ,u0 ,e0 dh fu;qfDr gsrq xfBr ftyk Lrjh; lfefr izklkafxd LokLF; foHkkxh; i= esa fufgr funsZ'k ds vuq:i ugha ik;h x;hA mi;qZDr of.kZr rF;ksa ls Li"V gksrk gS fd izlkaxk/khu 48 ,oa 76 ,0 ,u0 ,e0 dk fu;qfDr;ka lHkh fu;qfDr dHkh fu;eksa@funsZ'kdksa ds izfrewy gSA vr% bu lHkh fuokZfpr dks rkRdkfyd izHkko ls jn~n fd;k tkrk gSA ekuuh; mPp U;k;ky; }kjk bl laca/k esa ikfjr vkns'k ds vkyksd esa lacaf/kr ,0 ,u0 ,e0 dks bl vkns'k fuxZr gksus dh frfFk rd lHkh 48 ,oa 76 dk;Z ls foeqDr ,0 ,u0 ,e0 dks dk;kZof/k rd vuqekUk yxkus dk vLi"V] jksgrkl ,oa dSeqj }kjk lqfuf'pr fd;k tk;sxkA** Thus, it would be clear that in some of the cases of lot of 48 persons there were also dispute with regard to some of them not possessing the requisite qualification for the post of A.N.M. apart from not undergoing prescribed process of selection. If a person does not possess the requisite qualification and professed to 7 possess so, it would amount to playing fraud in obtaining employment. Such appointment will be, in fact, void as was held in the case of „Rita Mishra & Ors. Vs. Director Primary Education Bihar & Ors.’ Reported in 1987 P.L.J.R. page 1090. In that view of the matter, while this Court would hold that since others A.N.Ms. like the petitioner have been paid salary for the interregnum period in which they were out of service, the petitioner would be also entitled for payment of such salary, but before the same is paid to the petitioner, the Director-in-Chief of the Health Services would be required to hold a limited enquiry for being satisfied with regard to the petitioner possessing of required qualification prevailing on the date of appointment of the petitioner including registration of the petitioner in the Bihar Nurses Registration Council. If in course in such enquiry the Direction-in-Chief would find that the petitioner had possessed the requisite qualification as prescribed, he would direct the competent authority for payment of salary to the petitioner without going into any other issue. In order to expedite the matter, this Court would give liberty to the petitioner to file a compact representation enclosing the relevant documents along with a copy of this order and thereafter the Director-in-Chief, Health Services will pass his order and also a direction for payment of salary, if the petitioner had possessed requisite prescribed qualification for appointment on the post of A.N.M. This exercise must be completed within a 8 period of six months from the date of receipt/production of a copy of this order. With the aforementioned observations/directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)