IN THE HIGH COURT OF JUDICATURE AT PATNA In the matter of an application under Article 226 of the Constitution of India Civil Writ Jurisdiction Case No.7223 of 2009 =========================================================== Prabhakar Kumar Sharma, Son of Late Ramadhar Sharma of village Jihuli, P.S. Patahi, District – East Champaran. .... .... Petitioner. Versus 1. The State of Bihar. 2. Director, Primary Education, Bihar, Patna. 3. District Magistrate, East Champaran, Motihari. 4. District Superintendent of Education, East Champaran, Motihari. 5. District Education Establishment Committee, East Champaran, Motihari through its Chairman, District Magistrate, East Champaran, Motihari. .... .... Respondents. =========================================================== Appearance: For the Petitioner. : Mr. Yogesh Chandra Verma, Sr. Advocate Mr. Ansul, Advocate For the Respondents : Mr. Ujjwal Kumar Sinha, AC to AAG XI =========================================================== CORAM: HONOURABLE JUSTICE SMT. MRIDULA MISHRA ORAL JUDGMENT (Per: HONOURABLE JUSTICE SMT. MRIDULA MISHRA) ************** Mridula Mishra, J. Heard counsel for the petitioner and counsel appearing for the State. Prayer of the petitioner in this writ application is for a direction to the respondents to make payment of arrears of salary for the period 1.4.1981 to 21.12.1997 in the old I.Sc. pay scale corresponding to B.Sc. pay scale with annual increments and also for a direction to make payment of salary with effect from 21.12.1997 onwards in the pay scale of I.Sc. trained scale and for making payment of difference of arrears of salary of the B.Sc. trained scale with effect from the date he became Patna High Court CWJC No.7223 of 2009 dt.19-09-2011 2 / 8 2 entitled for B.Sc. trained scale. Petitioner joined his service as Science Teacher on 24.11.1973 in compliance of the appointment letter contained in Memo No. 979 dated 9.11.1973. He gave his joining at Middle School, Zaffar within Chhauradano Block, District – East Chamaparan. Initially State Govt. fixed stipend of Rs.175/- to the petitioner. Subsequently, finding his services satisfactory petitioner was confirmed on the post vide order contained in Memo No. 4561 dated 8.10.1975 issued by the District Superintendent of Education. He was also allowed payment of salary in I.Sc. pay scale with effect from 8.10.1975. Petitioner continued to work till 30.3.1981 but on account of his serious ailment he proceeded on leave on 30.3.1981. Petitioner was suffering from Tuberculosis and as such he had to remain on leave till he became fully cured. After fully being recovered he came to give his joining on 12.4.1982 and filed his application for giving permission to join his duties. The Headmaster of the school did not accept petitioner‟s joining and on his application itself wrote that on account of his termination from his service vide Memo No. 6410 dated 30.3.1982, his joining cannot be accepted. Petitioner had never been informed or supplied his termination letter prior to the date he came to give his joining. Thereafter, the petitioner represented before the authorities concerned and the District Education Officer, vide letter dated 7.12.1990 contained in Memo No. 1035 called Patna High Court CWJC No.7223 of 2009 dt.19-09-2011 3 / 8 3 for a report, considering the representation filed by the petitioner and also directed the Deputy Superintendent of Education, East Champaran, Motihari to enquire into the matter and submit a report. A report dated 17.8.1994 was submitted by the Deputy Superintendent of Education that petitioner‟s termination was not in accordance with law as he had worked for seven years and in case of his continuous leave, the termination order could have been issued only after following the procedure for the same. The District Superintendent of Education, East Champaran, Motihari on receipt of this report submitted a note before the District Magistrate, with a recommendation to reinstate the petitioner. The District Magistrate recommended for „re-appointment‟ of the petitioner but subsequently, the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur on 30.6.1993 directed the District Superintendent of Education to allow the petitioner to re-join his service; after placing it before the District Establishment Committee. The matter was placed before the Establishment Committed and the District Magistrate, as Chairman of District Establishment Committee made a recommendation in favour of the petitioner and also asked for a guidance from the Secretary, Human Resources Development Department vide letter dated 21.12.1993. The State Govt. ultimately vide Memo No. 2926 dated 19.12.1997 issued direction to permit the petitioner to rejoin the school on his post. The Patna High Court CWJC No.7223 of 2009 dt.19-09-2011 4 / 8 4 petitioner submitted his joining on 22.12.1997 but he was not posted anywhere for 14 months, and waited for his posting. Finally the District Superintendent of Education, East Champaran issued an order contained in Memo No. 648 dated 22.4.1999 whereby the petitioner was directed to join in Primary School, Sapan, Dakshin Tola, Block Dhaka south. So far payment of salary is concerned, its‟ payment was started in Matric trained scale. Petitioner again has to represent before the concerned authorities, as he had been allowed I.Sc. trained scale, in the year, 1975 itself with effect from the date of his confirmation. Prior to his proceeding on the leave, he had also been allowed B.Sc. pay scale. There was no reason for making payment of his salary in the Matric trained scale, when his termination order was considered to be an illegal order and the petitioner was reinstated in his service. Petitioner‟s case is that he is entitled for B.Sc. trained scale with effect from 11.4.1981 as juniors to him or the persons who had joined with him were given B.Sc. trained scale with effect from 11.4.1981. Subsequently they were also promoted to the post of Headmaster. So far petitioner is concerned, till 30.6.2009 i.e. the date he has superannuated, was not allowed to receive his salary in the B.Sc. trained scale. His salary continued to be paid in the Matric trained scale. Counter affidavit has been filed on behalf of the District Patna High Court CWJC No.7223 of 2009 dt.19-09-2011 5 / 8 5 Superintendent of Education, East Champaran, Respondent No. 4 in which there is an admission that, considering that petitioner‟s termination order had been issued in violation of the rule of natural justice, as well contrary to the Service Conditions Rules, he was reinstated in his service and joined on 24.12.1997. Petitioner‟s case of 14 months waiting for posting has also been admitted. Regarding the payment of salary in the Matric trained scale and petitioner‟s entitlement for B.Sc. trained scale, it has been stated that after so many years for the first time petitioner has represented on 30.10.2000. Prior to that he never raised any objection regarding payment of the salary in Matric trained scale. Regarding arrears of salary for the period 1982 to 22.12.1997, the statement in the counter affidavit is that the policy of the Govt. “no work no pay”. Petitioner, as such is not entitled for any salary for the period of 30.3.1982 to 22.12.1997 as he has not worked, even for a single day. The Counsel for the State submits that since petitioner remained on unsanctioned leave, he is not entitled for salay for the period in between 30.3.1982 to 22.12.1997. Counsel for the petitioner has placed reliance on a decision reported in AIR 1999 SC 1571(J.N. Srivastava Vs. Union of India & Anr. ) as well as 2006(4) PLJR 544 (Rajendra Paswan Vs. The State of Bihar & Ors.) The decision reported in 2006(4) PLJR 544, has been decided placing reliance on a Supreme Court decision reported in AIR Patna High Court CWJC No.7223 of 2009 dt.19-09-2011 6 / 8 6 1991 SC 2010 (Union of India and Ors. Vs. K.V. Jankiraman and Ors). In this case Rule 48 of the Bihar Service Code and Rule 74 of the Bihar Finance Rules have been discussed and it was held that issue relating to “no work no pay” has been considered by the Apex Court in the decision of Union of India and Ors. Vs. K.V. Jankiraman and Ors. The Supreme Court has considered Rule 17(1) of the Fundamental Rules and Supplementary Rules which is pari materia with Rule 58 of the Bihar Service Code. There also the principle of “no work no pay” had been raised, in similar circumstances. The Supreme Court in para 22 has recorded a finding, as follows:- “We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of “no work no pay” is not applicable to cases as such the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. There is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(10 will also be inapplicable to such cases.” So far present petitioner‟s case is, he came to give his joining on 12.4.1982. He was informed about his illegal termination, since then he Patna High Court CWJC No.7223 of 2009 dt.19-09-2011 7 / 8 7 continued to approach the authorities, who could have taken right decision and allowed the petitioner to join his duties and to work as a teacher. It was only at the behest of the respondents that petitioner was not allowed to work during the period 12.4.1982 till 22.12.1997. His joining was accepted on 22.12.1997 even thereafter for 14 months he was not posted anywhere and was not allowed to work. In this circumstance, the principle of “no work no pay” cannot be made applicable for the period 12.4.1982 to 22.12.1997. Petitioner was willing to discharge his duty but he was restrained from discharging the duty on account of inaction of the respondents. In this circumstance, the petitioner could not be deprived from getting his salary with increments for the period 12.4.1982 to 22.12.1997. So far the period in between 30.3.1981 to 12.4.1982 is concerned, petitioner had proceeded on medical leave. There is no document or material to show that leave was not sanctioned to the petitioner. Subsequently, the termination order being quashed, it will be deemed that the period during which he remained on leave was sanctioned to him. In this circumstance, he is also entitled for his salary for the period 30.3.1981 to 12.4.1982. Regarding B.Sc. trained scale it has been stated that all relevant records are not available to find out whether petitioner was entitled for B.Sc. trained scale with effect from 1.4.1981 but there is no denial with Patna High Court CWJC No.7223 of 2009 dt.19-09-2011 8 / 8 8 regard to petitioner‟s entitlement for I.Sc. trained scale from October, 1975. Petitioner remained in service subsequently and also fulfilled the requisite criteria for getting B.Sc. trained scale. In the facts and circumstances, respondents are directed to make payment of difference of arrears of salary to the petitioner for the period 1.4.1981 to 22.12.1997 and till the date of his superannuation in B.Sc. trained scale with annual increments. Petitioner‟s case for payment of difference of salary in the B.Sc. trained scale shall be allowed to the petitioner with effect from the date the juniors to him were allowed such benefits. The difference of arrears of salary in B.Sc. trained scale will be allowed to the petitioner with effect from the date of his entitlement. All payments must be made to the petitioner within twelve weeks from the date of production/communication of the order. This application is allowed. (Mridula Mishra, J.) Patna High Court, Dated 19th September, 2011, DKS/NAFR.