IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11167 of 2001 PANDEY VENKTESH PD.SINHA & ANR Versus THE STATE OF BIHAR & ORS ----------- For the petitioners:- Mr. Banwari Sharma & Mr. Shiv Kumar For the State:- Mr. Rajesh Singh, J.C. to A.A.G.II 3 22-9-2008 Heard learned counsel for the petitioners and learned counsel for the State. Both the petitioners took the 30th Combined Competitive Examination conducted by the Bihar Public Service Commission. Initially the Bihar Public Service Commission erred in not recommending their names although persons securing lesser marks than the petitioner got appointed and hence petitioner no.1 had filed a writ petition in this court bearing C.W.J.C.No. 494 of 1984 which was disposed of on 11-7-1987. Against relief granted to the petitioners the Bihar Public Service Commission filed a Special Leave Petition bearing SLP No. 13679/1987 before the Hon’ble Supreme Court which was disposed of on 28-9-1988 and the Supreme Court also decided in favour of petitioner no.1. Petitioner no.2 also filed a similar writ petition in 1984 and ultimately on account of judicial order the names of both the petitioners were recommended by the Bihar Public Service Commission and the petitioners were appointed to the post of Child Development Project Officers in the Welfare department. Copy of appointment letters of five persons including - 2 - petitioners dated 22-6-89 issued by the Personnel and Administrative Reforms Department, Government of Bihar has been annexed as annexure-1. It has been submitted that persons who had obtained lesser marks than the petitioners were appointed on 13-9-1985 and therefore in annexure-1 itself it was stated that the inter se seniority of the persons appointed by annexure-1 shall be the same as per the merit list prepared with respect to merit of other persons who are appointed on 13-9-1985. Thus, the merit list prepared on the basis of 30th Combined Competitive Examination appears to have been accepted as the criteria for inter se seniority between the officers of the same batch regardless of the dates of appointment. The dispute appears to be on account of claim of the petitioners that they should also be given pay allowances with effect from the date persons securing lesser marks were appointed in the year 1985. In support of that claim learned counsel for the petitioners has placed reliance upon a judgment of Division Bench of this Court dated 9th December 1988 passed in C.W.J.C.No. 9022/94 contained in annexure-2. A perusal of that judgment shows that on the principle of no work no pay the claim of actual payment of salary and allowances for the period prior to actual appointment was rejected but it was held that the petitioner of that case is entitled for fixation of his pay at par with those similarly situated but appointed earlier. If a person securing higher marks in a competitive examination is wrongly denied appointment, the litigation even if decided in favour of such - 3 - Naresh person is bound to take time but for such delay the person concerned cannot be penalized. His pay must be notionally fixed at par with those who secured lesser marks but were appointed earlier. In the matter of such notional pay fixation the basic pay as well as increments and other emoluments must also be kept in mind. The benefit of such notional parity of pay and emoluments will become payable to the petitioners with effect from the date they actually came in service and started working. For the earlier period they will not be paid but the monetary benefits for the period they joined the service should be paid to them without any delay and preferably within three months from the date of production/communication of a copy of this order. The writ petition is allowed accordingly. ( Shiva Kirti Singh,J) -------