IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C.No. 86 of 2008 Gyan Vikash Prasad, son of Late Deep Narayan Prasad, resident of village- Kali Asthan Makshuspur, P.S. Kashim Bazar, District- Munger …………….. Petitioner Versus 1.The State of Bihar 2.Secretary-cum-Commissioner, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, patna 3.Director-in-Chief, Health Services, Bihar, Patna 4.Additional Commissioner-cum-Special Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna 5.Regional Deputy Director, Health Services, Munger 6.Regional Deputy Director, Health Services, Bhagalpur 7.Additional Chief Medical Officer, Munger 8.Additional Director, Health Services (Administration) Bihar, Patna …………..Respondents ----------- 2. 30/08/2010 Prayer of the petitioner in this writ application is very limited. He has challenged only that part of the office order of Director-in-Chief, Health Services, contained in Memo No.1117(4) dated 20.9.2007 (Annexure-17), by which his services, along with others, have been absorbed on a Class IV post of Vaccinators with the stipulation that the salary of the incumbents of the period between termination of their services and their joining shall not be paid on the principle of `No Work No Pay’. In view of limited prayer of the petitioner, detailed facts of the case are not required to be noticed herein. It may only be noticed that, as per the case in writ 2 petition, sometime prior to 1974 petitioner was working on daily wages as Vaccinator under the respondents. Due to manifold increase in vaccination work, some advertisement was published against which petitioner applied and was finally appointed by memo dated 16.3.1974 (Annexure-1). He continued to work as such. Later on some vacancies arose of the post of clerk, advertisement was issued for interview in which petitioner appeared and, after some processes, under the orders of respondent Regional Deputy Director of Health contained in letter no.43 dated 15.1.1993 (Annexure-5), he was promoted to the post of Clerk, which he joined on 24.1.1993. However, his promotion as well as promotion of other Class III employees came under cloud and their salary was stopped. Accordingly, petitioner moved this Court through C.W.J.c.No.1898 of 2001. During the pendency of the writ application, by memo no.733(4) dated 18.8.2001 (Annexure-8) petitioner was reverted back to the post of Vaccinator. Thereafter, in the light of one letter of the respondent Regional Deputy Director (Annexure-9), the District 3 Magistrate issued directions to the Civil Surgeon through letter no.2660 dated 3.6.2003 for terminating the services of the petitioner. Accordingly, services of the petitioner was terminated by order dated 27.6.2003. Petitioner challenged the said order in C.W.J.C.No.8022 of 2003. Many other persons, whose services had also been terminated in the like manner, also challenged the said orders in separate writ applications. The said writ application (C.W.J.C.No.8022 of 2003) along with other writ applications were heard and allowed by order dated 8.9.2003, and all impugned orders were quashed and the writ petitioners were directed to be reinstated, but with the condition that “petitioners will not be entitled for their salary/remuneration for the period they had not actually worked”. Respondents moved in appeal in each of the writ applications before the Division Bench. Appeals were heard together, led by L.P.A.No.946 of 2003. The said batch of L.P.As. was disposed of by order dated 26.6.2006 remitting the matters of writ petitioners back to the Health Department, to reconsider and examine their cases for 4 regularisation in terms of paragraph 44 of the Constitution Bench judgment of the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi and others [2006(2) PLJR (SC) 363]. Accordingly their cases were examined and many of the employees were found fit to be regularised. Hence, by the said office order (Annexure-17), services of 91 employees were regularised on different posts, in which petitioner’s services were regularised as Vaccinator. But this was also mentioned specifically in the said order that the said employees will not be entitled to their salary from the date their services were terminated till they join their service pursuant to this office order on the principle of `No Work No Pay’. Learned senior counsel for the petitioner submits that the petitioner was out of service for no fault of his. His termination was, later on, admittedly found to be invalid and therefore, his service was regularised. Thus, it is clear that the respondents had committed mistake in terminating the services of the petitioner at the first instance itself. In the 5 circumstances, he was entitled for salary of the entire period. He also submitted that, in fact, in spite of termination of his service, as the matter was pending in this Court, respondents kept on taking work from the petitioner, which will be evident from Annexures-15 and 16. Hence, on the basis of having continued in work also, petitioner is entitled for his salary of the period. He also submits that in view of the order of the Division Bench in L.P.As., condition put by the learned single Judge while disposing of the writ applications, to the effect that petitioner will not be entitled to his salary of the period he had not actually worked, does not remain operative against him. Therefore, he will be entitled to the salary of the entire period i.e. from the date of termination till the date of his joining pursuant to Annexure-17. He also submits that while reinstating petitioner in service and regularising it, respondents have not considered the validity of his promotion which also they were required to do. He submits that promotion of the petitioner to the post of Clerk had already been found valid on the basis of an enquiry. Hence, 6 while restoring the services of the petitioner and regularising it, respondents were also duty bound to consider his case for restoration of promotion from the initial date with all consequential benefits. In support of his submissions, learned senior counsel for the petitioner relied upon 1990(2) PLJR 248 (Dr.Paras Nath Prasad Vs. State of Bihar & Ors.), (1991)4 S.C.C.109 (Union of India Vs. K.V.Jankiraman), 2008(3) PLJR 282 (Prakash Kumar Vs. State of Bihar) and 2008(3) PLJR 340 (State of Bihar & Ors. Vs. Paras Nath Singh & Ors.). A counter affidavit has been filed along with which said common order passed in the writ applications by the learned single Judge as well as said common order passed by learned Division Bench in appeals have been annexed. Along with the counter affidavit, order passed by a learned Single Judge of this court in petitioner’s earlier writ application i.e. C.W.J.C.No.1898 of 2001 has also been annexed, which shows that in view of his regularisation subsequently, petitioner confined his writ application for payment of salary of the period 26.6.2000 till 27.6.2003, when he was dismissed from 7 service. The said writ application was disposed of on 1.2.2008 noticing the developments in the case of the petitioner during the pendency of the writ application, and with liberty to the petitioner to file representation before respondent no.2 i.e. Secretary-cum-Commissioner, Department of Health, Medical education and Family Welfare for raising the claim for salary for the said period, who was directed to verify and ascertain if the petitioner had actually worked between the said period before passing any order for salary of the period. Learned counsel for the respondents submits that in case of restoration of service, an employee does not, ipso facto, become entitled for his salary of the intervening period, even if his earlier termination was found to be wrong. He submits that all the authorities relied upon by learned senior counsel for the petitioner show that in the facts and circumstances of the particular cases orders for payment of salary of the intervening period were issued by the Court. He submits that in fact this position has been clarified by the Apex Court in the case of Novartis India Limited Vs. 8 State of west Bengal & Ors., reported in (2009)3 S.C.C.124, and has particularly relied upon the observations of the court made in paragraph 21, which is as follows : “21. There can, however, be no doubt whatsoever that there has been a shift in the approach of this Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premise that the burden to show that the workman was gainfully employed during interregnum period was on the employer. This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1872. This Court in the matter of grant of back wages has laid down certain guidelines stating that therefor several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 14 and 16 of the Constitution of India in cases of public employment, etc.” Learned counsel for the respondents also submits that since while disposing of the writ application of the petitioner by order dated 8.9.2003, the Court had specifically disentitled the petitioner from making any claim for salary of the period he had not actually worked, petitioner cannot be 9 held entitled to the salary of any period during which he had not worked. He submits that this is also clear from the order of this Court passed in the earlier writ application of the petitioner, namely, C.W.J.C.No.1898 of 2001 (Annexure-D), which observation was, however, confined to the period prior to his termination. He submits that the said common order of learned single Judge was not interfered with by the Division Bench and the Division Bench merely referred the matters back to the Department to examine individual cases in the light of observations of the Apex Court in paragraph 44 of the said Constitution Bench Judgment. Therefore, if at all, in case petitioner satisfies the authorities, he can be entitled to salary of the period subsequent to the order passed in his case on 8.9.2003 till his joining. To this extent, submission of learned counsel for the respondents appears to be correct. If the arguments of learned senior counsel for the petitioner is accepted that the order of learned single Judge merged into the order of the Division bench, then in that case, order of quashing of his termination and demotion etc. will also be treated as 10 wiped out and the remand order passed by the Division Bench will have to be treated as passed on a clean slate. Hence, this argument of learned senior counsel for the petitioner is of no advantage to the petitioner. However, so far as entitlement of petitioner for the salary of the intervening period is concerned, in view of clear observations of this Court, as quoted above, made in the case of Novartis India Limited (Supra) the same has to be considered and decided by the respondents in particular reference to the facts and circumstances of the case of the petitioner. One line observation made in Annexure-17 of principle of `No Work No Pay’ cannot be of universal application blindfolded and cannot come in the way of claim of the petitioner that in the circumstances of his case, he was entitled for salary of the period. Learned senior counsel for the petitioner accepted that the case of the petitioner has to be separately examined by the respondents in view of the said observations of the Apex Court as quoted above. In the circumstances, this Court gives 11 liberty to the petitioner to file a representation before respondent no.2, Secretary-cum-Commissioner, Department of Health, Medical Education and Family Welfare, Government of Bihar to claim salary of the relevant period, not covered by his earlier representation filed pursuant to the order passed in his earlier writ application, namely, C.W.J.C.No.1898 of 2001. If such a representation is filed within one month from today, said respondent no.2 shall consider the same on its particular facts and circumstances and shall consider as to whether in respect of the petitioner circumstances justify his claim for arrears of salary of the period in question, or not. In the representation, petitioner may also raise the claim for consideration of restoration of his promotion to Class III post giving details facts and supporting materials for consideration of respondent no.2. The representation of the petitioner should be considered and disposed of by respondent no.2 by a speaking order and any monetary benefit which may be found admissible to petitioner should also be released to him preferably within a period of 12 three months from the date of filing of the representation. This writ application is disposed of with the aforesaid observations and directions. However, it is made clear that this Court has not expressed any opinion in respect of merits of the claim of the petitioner. Pradeep/ ( J. N. Singh,J.)