IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.752 of 2010 1. VIVEKANAND THAKUR S/O LATE GHANANAND THAKUR DEPUTED UPPER GRADE CLERK TREASURY OFFICE, SAMASTIPUR. …. Appellant/petitioner Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, LABOUR EMPLOYMENT & TRAINING DEPARTMENT GOVERNMENT OF BIHAR, PATNA 3. THE JOINT SECRETARY, LABOUR EMPLOYMENT & TRAINING DEPARTMENT GOVERNMENT OF BIHAR, PATNA 4. THE DIRECTOR, LABOUR EMPLOYMENT & TRAINING (EMPLOYMENT ) DEPARTMENT GOVERNMENT OF BIHAR, PATNA 5. THE DISTRICT COLLECTOR SAMASTIPUR 6. THE DEPUTY DEVELOPMENT COMMISSIONER SAMASTIPUR 7. THE B.D.O. PUSA BLOCK, DISTT-SAMASTIPUR. … Respondents/Opposite parties. ------- For the appellant : Mr. Satish Chandra Jha, Adv. ----------- 3. 12.05.2010 I. A. No. 3973 of 2010 Having heard learned counsel for the appellant and also taking into consideration the facts and circumstances mentioned in this application, the delay of four days in filing of this appeal is hereby condoned. I. A. No. 3973 of 2010 is, accordingly, allowed. L. P. A. No. 752 of 2010 As we have condoned the delay in preferring the appeal, we are also inclined to take up the appeal for final disposal at the admission stage itself. 2 In this intra-court appeal, the order dated 4.3.2010 passed by the learned Single Judge in CWJC No. 17746 of 2009 has been assailed by the appellant-writ petitioner to the extent it denies back wages for the period he remained out of service before being reinstated to his earlier post. It is not disputed that the appointment of the appellant-writ petitioner was made in a temporary scheme Unemployment Symbolic Allowance Scheme in Samastipur Collectorate in the month of March 1982 and such scheme was abolished by the State Government by a Government decision dated 8.4.2005 with effect from 1.4.2005. Subsequently, the State Government had sought to absorb all such persons working in the scheme on the post of Accounts Clerk and the appellant-writ petitioner was adjusted on the post of Accounts Clerk in the Establishment Section in Samastipur Collectorate. The appellant had moved this Court for payment of salary for the period 1.4.2005 to 16.7.2006 which has been rejected by the learned Single Judge recording following reasons:- “…. The appointment being under a scheme, it naturally came to an end on expiry of the scheme. The petitioner had no claim even for 3 absorption. A policy decision for absorption rightly stipulated on the principles of „no work no pay‟ that the time spent in a decision of absorption followed by actual absorption, if work had not been taken, no salary would be paid. That the petitioner may have been willing to work during this period when the matter for absorption was pending is of relevance, in as much as he had no compulsive right to absorption. The petitioner accepted his absorption subject to the conditions contained in the order dated 20.5.2006. Having availed the benefit of the absorption under the said order, he cannot blow hot and cold by accepting the benefit of absorption and yet questioning Clause-6 of the order of absorption denying him salary pending absorption….” Mr. Satish Chandra Jha, learned counsel for the appellant-writ petitioner submits that once it was a concluded fact that the appointment of the appellant-writ petitioner was terminated on account of abolition of scheme and subsequently he was reinstated in service, he would also be entitled for payment of salary. In the opinion of this Court, such submission of learned counsel for the appellant-writ petitioner has to be noted only for its being rejected. From perusal of the order dated 15th July 2006 4 passed by the Collector of the Samastipur District it becomes clear that on abolition of the unemployment scheme the appellant-writ petitioner had become a surplus hand for which the Government had come out with a policy for adjusting or absorbing him and other similarly situated persons in some other posts and that is how, the Government had issued directions to the Collector to adjust them on vacant posts by making it clear that they were not entitled for payment of salary from the date of abolition of the scheme i.e. 1.4.2005 to their adjustment/absorption. The Government, however, had made it clear that there would be no break of service for the period the appellant-writ petitioner and similar situated persons had to remain out of service between 1.4.2005 to the date of their absorption. The appellant-writ petitioner had accepted those terms and had submitted his joining with his wide open eyes in terms of his order of adjustment/absorption dated 15th July 2006 and therefore the learned Single Judge has rightly held that the appellant-writ petitioner could not have claimed payment of back wages. As a matter of fact, the principle of reinstatement with back wages would also not apply for a 5 simple reason that in case of abolition of posts if the employer has been considerate to make some alternative arrangement by way of adjustment/absorption and that too by giving benefit of past services for continuity and length of service, such employee cannot claim also back wages for the period in which the employer was making efforts of finding out the vacancies and laying down the scheme for adjustment/absorption of similarly situated employees. That being so, we find no error in the order of the learned Single Judge and consequently, this appeal, being devoid of any merit, must be and is hereby dismissed without any order as to costs. kanchan (Dipak Misra, CJ.) (Mihir Kumar Jha, J.)