IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9891 of 2004 Smt. Nirmala Sinha, D/o-Late Yamuna Nand Prasad, R/o-Vill.-Dirla, P.S.-Eshuapur, District-Saran (Chapra). –Petitioner. VERSUS 1. The State of Bihar through the Secretary, Primary Education, Bihar, Patna. 2. The Director, Primary Education, Bihar, Patna. 3. The Regional Deputy Director of Education, Saran Division, Chapra. 4. The District Education Officer, Saran at Chapra. ----------- 05 05.04.2011 The petitioner was an Assistant Teacher and now is in Bihar Subordinate Education Service. Initially, she has filed this writ petition claiming I.A. trained and B.A. trained pay scale from the date her juniors were given the same. During the pendency of the writ petition, petitioner has been granted the I.A. and B.A. trained scale but the financial benefits have been restricted and they are to accrue prospectively. While doing so A.C.P. (Assured Career Promotion), which had been granted to the petitioner earlier, without notice to the petitioner, has been cancelled/withdrawn. This writ petition was filed in the year 2004 and had been adjourned for filing counter affidavit. Regrettably, no counter affidavit has been filed. The matter has already been pending in this Court for over 7 years. In my view, no further indulgence is to be granted as it appears to be a case depending upon appreciation of law more than facts. Learned counsel for the State submits that in terms of Rule-58 of the Bihar Service Code, as petitioner had not worked as I.A. trained or B.A. trained teacher, she cannot get the higher remuneration in respect thereof and, therefore, granting financial benefit with prospective effect, was fully justified. So far as A.C.P. is - 2 - concerned, he submits that these two promotions having been given, A.C.P. could not have been given and it was rightly withdrawn. Having heard the parties and with their consent, the writ petition is being disposed of at this stage itself. First coming to Rule-58 of the Bihar Service Code. The said rule embodies the principle of no work no pay but that does not mean that if someone illegally and wrongly deprived of his promotion then also he will stand deprived of financial benefits. In my view, that would be extremely arbitrary. It would put a premium of inefficiency and lead to all sorts of nefarious practices of denying promotion in due time. It is well settled that for the fault of State in granting promotion in due time the employee cannot be made to suffer. Here, the employee, admittedly, is not at fault. When she was denied the higher pay scale while juniors were given the same, she has come to this Court. Now, when she has come to this Court for the second time, State realizes its mistake but says that though I have corrected the mistake, I will not give you benefit. In other words, I will not compensate you. There cannot be anything more arbitrary than this. I am reminded of what Chief Justice Chagla says almost six decades back in the case of All India Groundnut Syndicate Limited - Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 : “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his - 3 - right which the law has given to him under sub- section (2) of S 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” Thus, the principle of no work no pay would not apply in such a situation where a person is wrongly deprived of his due promotion and promotion is then granted with retrospective effect. Here, I may also notice one point. Petitioner was an Assistant Teacher. She was only claiming higher pay scale for the same work. The pay scale was given to her juniors and the moment the State found that petitioner was entitled to higher pay scale, it was their duty to give it to the petitioner from the day she was entitled. Petitioner did not have to put extra work apart from coming to this Court to assert her right and claiming liability did not require her to do anything more to satisfy the authorities to give her due higher pay scale. In that view of the matter, I am left with no option but to direct the authorities that the financial benefits would accrue to the petitioner from the day she was entitled of I.A. trained and B.A. trained scale from the respective due date. - 4 - Now, coming to the aspect of the A.C.P, it is pointed out that if the date with effect from which B.A. trained scale is granted to the petitioner is kept in mind that A.C.P. has been granted to the petitioner 12 years thereafter. Petitioner has clearly asserted that several juniors similarly placed have been granted I.A. and B.A. trained scale as well as A.C.P. but in case of petitioner, it was granted but then cancelled without even notice and without assigning any reason. In my view, this cannot be done even if it be assumed that A.C.P. was wrongly granted then before the same can be withdrawn and/or cancelled, a person has to be noticed and heard because that has adverse civil consequences and, therefore, reasons have to be assigned why it is being withdrawn and lastly A.C.P. is not at the whims and caprice of some officers that he cannot grant it to some, withhold to some and cancel to some. The eligibility is same for all. Thus, the order withdrawing and/or cancelling A.C.P. cannot be sustained and is quashed accordingly. The consequential payments would have to be made to the petitioner within three months from the date of production of a copy of this order before the Regional Deputy Director of Education, Saran Division, Saran at Chapra. With the aforesaid observations and directions, the writ petition stands disposed of. Trivedi/ (Navaniti Prasad Singh, J.)