IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17120 of 2009 1. DEV DAS MANDAL S/O LATE SHRI SHIVNANDAN MANDAL R/O VILL- BARI DARIA PUR, P.S. JAMALPUR, DISTT. MUNGER Versus 1. THE STATE OF BIHAR, THROUGH THE COMMISSIONER-CUM- SECRETARY HUMAN RESOURCES DEVELOPMENT DEPTT., NEW SECRETARIATE, VIKAS BHAWAN, PATNA 2. DIRECTOR, PRIMARY EDUCATION HUMAN RESOURCES DEVELOPMENT DEPTT., NEW SECRETARIATE, VIKAS BHAWAN, PATNA 3. THE DEPUTY SECRETARY HUMAN RESOURCES DEVELOPMENT DEPTT., NEW SECRETARIATE, VIKAS BHAWAN, PATNA 4. THE DISTRICT SUPERINTENDENT OF EDUCATION MUNGER ----------- 2 1.4.2010 Heard counsel for the petitioner and the counsel appearing for the State. Prayer of the petitioner is for a direction to the respondent Deputy Secretary, Human Resources Development Department, Government of Bihar, Patna for payment of arrears of salary for the period 28.10.1991 to 8.3.1994 i.e. the period during which he remained out of service, on account of his termination. Petitioner has also prayed for quashing of the part of Office order no. 114 dated 13.1.1994 and consequential order contained in memo no. 2244-53 dated 8.3.1994 issued by the District Superintendent of Education, Munger, depriving the petitioner from his back wages and other consequential benefits, for the period in between his termination and reinstatement. 2 Petitioner is physically disabled person. He had applied for his appointment for the post of Assistant Teacher against the post reserved for physically disabled. After due verification, he was appointed as Assistant Teacher, in Primary School Kasar Block, Ariari, in the district of Munger and continued to function on the post. Subsequently one writ application was filed by one of the unsuccessful candidate and the Court directed for physical verification of all candidates including those who were selected and appointed pursuant to the advertisement. A medical Board was constituted but the petitioner could not appear before the Board for physical verification on account of non- appearance before the Medical Board, he was terminated but subsequently appeared before Medical Board and his disability was assessed to be up to 40%, as such reinstated on his post. Petitioner remained out of service in between 28.10.1991 to 8.3.1994 , on account of these controversies he remained out of service in between 28.10.1991 to 8.3.1994. The petitioner represented for payment of salary for the period he remained out of 3 service, but its payment has been denied vide order No. 114 dated 13.1.1994 issued by respondent no.3. In compliance of the order passed by Respondent no.3, the District Superintendent of Education has also issued consequential order contained in Memo No. 2244-53 dated 8.3.1994. Petitioner’s grievance is that on account of non- payment of salary for this period he will suffer in more than one ways. This period will be counted as break in service, affecting his seniority, promotion and finally will reduce his pension and pensionary benefits. Counsel for the petitioner has drawn my attention towards order passed by this Court in a similar matter in CWJC No. 1190 of 2007, wherein it has been held that if any one is appointed, in the category of physically handicapped, presumption will be that before appointment, he was physically verified and only on being satisfied, the candidate was appointed in the category of physically disabled. Petitioner was appointed in the physically disabled category, after due verification, but subsequently termination order was 4 passed and after re-verification reinstated. The period for which, the petitioner remained out of service, he could not have been denied benefit of salary and other benefits. Such termination orders which subsequently could not be justified and resulted into a reinstatement, cannot be made a basis for denying the salary and other consequential benefits. Accordingly, the part of the order issued by the Respondent nos. 3 and 4 are quashed. A direction is being issued to both the respondent Nos. 3 and 4 for making payment of salary, and other consequential benefits to the petitioner, for the period he remained out of service i.e. 28.10.1991 to 8.3.1994. His period will also be counted as continuous service. All payment must be made within a period of six weeks from the date of production/communication of this order. (Mridula Mishra,J.) A.kumar