IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5560 of 2002 GANESH RAM & ORS Versus THE STATE OF BIHAR & ORS ----------- 6 27-1-2009 Heard the parties. All the four petitioners have a common grievance that even after judgment and order of this court dated 26th August, 1996 (Annexure-1) whereby their writ petition bearing C.W.J.C.No. 7124 of 1991 was allowed and respondents were directed to pay salary to the petitioners for their respective posts, the respondents have paid salary to the petitioners only for period after they were allowed to work in the light of said judgment and order of this court and not for the earlier period starting from various months in the year 1990 till February 1997 in the case of petitioner no.4 and for slightly lesser period in the case of other petitioners. The period when salary was not paid to petitioners 1 and 3 is from June 1991 to February,1997 and in the case of petitioner no.2 from January 1992 to February, 1997. The defence of the respondents is that during said period the writ petitioners had not worked on the posts in question and therefore following the principles of “no work no pay” they have not been paid their salary till they resumed their duties after February 1997 pursuant to this Court’s judgment contained in annexure1 and since then they have been paid their salary regularly. On behalf of petitioners it has been argued that petitioners were ready and willing to work but since the respondents after appointment of petitioners pursuant to advertisement and selection - 2 - raised a false plea that appointment was made on non-sanctioned posts and hence it was no appointment in the eyes of law, petitioners were held not entitled to salary. In the aforesaid situation petitioners had approached this court through writ petition bearing C.W.J.C.No. 7124 of 1991 in which this court held that petitioners appointment was against sanctioned posts and after following the procedure prescribed for the purpose. It also noticed the claim of the respondents in the preceding paragraph that petitioners were appointed against non- sanctioned posts and were, therefore not entitled to any salary and rejected the aforesaid plea by holding that they were entitled for payment of salary. Learned counsel for the petitioners has placed reliance upon various paragraphs of the counter-affidavit to submit that at the stage of earlier writ petition also similar plea was taken by the respondents. In the reply to counter-affidavit, the part of earlier averments on behalf of respondents have been quoted to show that there is no new plea for denying the salary and other allowances to the petitioners when a direction to that effect has already been issued by this court in annexure-1. The operative part of annexure-1 is as follows : “ In the result the writ petition succeeds and is allowed. The respondents are directed to pay salary to the petitioners for their respective post. The future salary will be paid from month to month and arrears within six months.” On hearing the parties, this court finds that the contempt application filed by the petitioners earlier bearing M. J.C. No. 385/98 - 3 - was dismissed .on a wrong averment made by the respondents which is noticed in the opening paragraph of annexure-2, the order dated 18- 1-2001, holding that the respondents had paid the entire salary and other allowances to the petitioners from the date of filing of the writ petition till the disposal of the same . Now in the counter-affidavit it has been explained that the aforesaid averment in the show cause filed in the contempt case was on account of inadvertent typographical error and the respondents actually wanted to plead that salary and allowances had been paid to the petitioners except for the period from the date of filing of the writ petition till its disposal. From the facts available on record, this court finds that earlier the petitioner would have succeeded in getting the arrears of salary had incorrect averment not been made in the show-cause. The earlier direction contained in annexure-1 to pay arrears of salary and allowances to the petitioners within six months was sufficient to give relief to the petitioners and they would not have been required to move this court again through another writ application if correct facts were brought on record in the contempt proceeding. In view of the earlier order contained in annexure-1 and other facts and circumstances, this writ petition is allowed. The respondents are directed to pay all the lawful dues of the petitioner for the concerned period without any delay and in any case within three months from today. (Shiva Kirti Singh,J) - 4 -