Civil Writ Jurisdiction Case No. 16976 of 2009 In the matter of an application under Articles 226 and 227 of the Constitution of India; ***** Jitendra Kumar Singh Son of Brij Mohan Singh R/) Vill- Gulnikushaha, P.S. Shambhugan, Distt. Banka ---------petitioners Versus 1. The State of Bihar 2. The Commissioner cum Secretary Water Resources Deptt. Govt. of Bihar, Patna 3. The Joint Secretary Water Resources Deptt. Govt. of Bihar, Patna 4. The Deputy Secretary Water Resources Department, Govt. of Bihar, Patna. 5. The Under Secretary Water Resources Deptt. Govt. of Bihar, Patna 6. The Chief Engineer Water Resources Deptt. Govt. of Bihar, Patna. ----------- Respondents. ------ For the Petitioner:- Mr. Rajendra Kumar Jain, Advocate For the State:- Government Pleader No. 18. P R E S E N T The Hon’ble Justice Smt. Mridula Mishra Mridula Mishra,J:- The writ application has been filed by the petitioner for payment of full salary and benefits to him 2 with effect from 16.3.2006 to 18.2.2008, which remained unpaid on account of pendency of his matter before the State Advisory Committee Bihar, Patna as well as the Ministry of Personnel Public Grievances and Pensions ( Department of Personnel & Training) Government of India, New Delhi. Petitioner was posted in the office of Chief Engineer, Water Resources Department, Bhagalpur in the Secretariat cadre of Peon. In the year 2006, he was allotted the Jharkhand cadre by the order of Personnel, Public Grievances and Pension Ministry, Government of India, New Delhi vide order no. 46 of 2006 dated 27.1.2006 under the provisions of Section 72 of Re-Organization Act. Immediately thereafter he was relieved for giving joining at Jharkhand in pursuance to the cadre division of the States. The impugned order of allotment of cadre dated 26.1.2006 was challenged by the petitioner by filing CWJC No. 4737 of 2006 on the ground that without giving any opportunity to exercise his option and without seeking his consent, he was allotted to Jharkhand cadre. The writ application was 3 disposed off, giving liberty to the petitioner for filing representation before the competent authority. The representations were filed by the petitioner before the Chairman of State Advisory Committee, Bihar, Patna as well as Commissioner-cum-Secretary, Water Resources Department, Government of Bihar. The representation filed before the Commissioner was rejected, but so far representation filed before State Advisory Committee, it remained pending. Again petitioner filed CWJC No. 10927 of 2006 which was disposed off by order dated 12.3.2007 giving option to the petitioner to pursue his representation pending before the State Legal Advisory Committee. Fresh representation was filed by the petitioner on 4.4.2007 before the State Advisory Committee, Patna for consideration of his case relating to cadre division. This time the Chairman, State Advisory Committee recommended and forwarded the representation of the petitioner to Central Advisory Committee, Government of India, New Delhi for taking final decision in respect to the allotment of the cadre division in 4 case of petitioner. The Deputy Secretary, Government of India passed order in the matters of revision of allocation of cadre of the petitioner and vide order dated 15.2.2008 the allocation of cadre in case of petitioner was revised. He was allocated the Bihar Cadre and the letter was communicated to the Additional Secretary, Government of Bihar, Patna. This order was further communicated to the Chief Engineer, Water Resources Department, Bhagalpur in terms of order contained in memo no. 1577 dated 9.5.2008, the joining of the petitioner was accepted in the office of Chief Engineer, Water Resources Department, Bhagalpur with effect from 18.2.2008. The matter relating to cadre division remained under consideration before the concerned Department of Government of Bihar and Government of India for almost two years. During this period petitioner did not give joining at Jharkhand State, despite the fact that he had been relieved for giving joining in pursuance of the allotment of cadre. The petitioner did not receive any salary for the period 16.3.2006 to 18.2.2008. Several representations were filed by him before 5 the authorities concerned. Finally the Chief Engineer, Water Resources Department, Bhagalpur vide order contained in Memo no. 2566 dated 18.8.2008 had denied the payment of salary to the petitioner for the period 16.3.2006 to 18.2.2008 on the ground that he remained absent from duty for this period. Petitioner’s case is that denial on the part of the respondents is completely illegal and arbitrary as it is settled principle of law that a permanent employee cannot be denied his salary on technical grounds, even if no work is being taken from him. Petitioner’s case is that he was never relieved by issuing a personal letter, rather a general order of relieving was passed. Despite this order, he continuously remained working in the office of the Chief Engineer, Water Resources Department, Bhagalpur. If no opportunity to discharge the duty was given to him by the respondents it cannot be a ground for non- payment of salary for a period about two years. 6 Counter affidavit has been filed on behalf of respondent nos. 2,4,5 and 6 stating that petitioner’s claim has duly been rejected vide office order no. 2566 dated 18.8. 2008. Petitioner was relieved as Jharkhand cadre was allotted to him, disobeying the order passed by the State Advisory Committee and Central Advisory Committee. He remained absent from his duty, as such he cannot claim entitlement for his salary for the period of absence from duty. Counsel for the petitioner submits that for allotment of cadre, it was essential that the petitioner would have been given opportunity to exercise option. Since it was not done the order itself was bad. He represented against such illegal order immediately after its issuance. The delay was caused on account of latches on the part of the respondents, since they took a long time in taking decision. For the latches on the part of the respondents, petitioner cannot be penalized. Petitioner has placed reliance on a decision reported in the case of Shashi Bhushan Pandey Vs. State of 7 Bihar ( 2007(3) PLJR 176). In this case also after order of termination from service was quashed by the Court, respondent instead of taking immediate action for reinstatement of the writ petitioner, kept the matter pending and issued order for posting only when petitioner initiated contempt proceeding. Subsequently the payment of salary was denied to the petitioner on the principle of “ no work no pay”. It was held that since the petitioner did not work for the period in question, as no place of posting was allotted by the respondents. The respondents took unreasonable time for passing necessary orders of posting, as such the allegation of not discharging duties, cannot be attributed to him. It is well settled that a person cannot be allowed to suffer on account of failure on the part of the other side. Since the petitioner was denied salary for the period, he was waiting for posting, the blame cannot be attributed to him. A direction was issued for making payment of salary. In the present case the respondents on the same principle can consider petitioner’s case. They can allow the 8 period of absence as earned leave or pass necessary orders for payment of salary to the petitioner under the provisions contained in Bihar Service Code as well as different Government circulars/provisions, it will be unreasonable, if entire period during which the matter relating to allocation of cadre to the petitioner pending before the State authority as well as the Government of India, will be treated as period “ no work no pay”. Petitioner cannot be denied salary for the entire period as principle of no work no pay cannot be made applicable in the facts and circumstances of the Case. The respondent Deputy Secretary, Water Resources Department, Government of Bihar and the Chief Engineer, Water Resources Department, Govt. of Bihar are directed to consider the case of the petitioner and pass an order relating to adjustment of two years period of absence from service, in accordance with the rules in Bihar Service Code as well as other applicable Rules. Petitioner must be paid reasonable salary for this period. Necessary orders must be passed in this regard within a period of four weeks from the date of 9 production/communication of this order and payment must also be made within four weeks from the date of the passing of the order. This application is allowed. (Mridula Mishra,J.) Patna High Court Dated 28 .7.2010 A.Kumar/NAFR