IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6991 of 2011 Bharat Kant Jha, son of late Mauje Jha, resident of Village – Durgauli, P S – Benipatti, District-Madhubani Versus 1. The State of Bihar through the Secretary, Department of Home (Police), Government of Bihar, Patna. 2. The Director General of Police, Government of Bihar, Patna. 3. The Inspector General of Police, Spcial Branch, Bihar, Patna. 4. The Deputy Inspector General of Police, Special Branch, Bihar, Patna. 5. The Superintendent of Police (Accounts), Special Branch, Bihar, Patna. 6. The Deputy Superintendent of Police, Special Branch, Muzaffarpur. ----------- For the petitioner: Mr. Barun Kumar Choudhary. For the State ; M/S. Sunil Kumar Mandal, SC-24 & Mr. Bipin Kumar. ----- 04. 22.7.2011 I.A. No. 4216 of 2011 has been filed by the legal heirs of the petitioner in the circumstances that the original petitioner died on 17.5.2011. The names of the legal heirs are indicated in para – 4 of the petition. I.A. No. 4216 of 2011 is allowed. Let the legal heirs be substituted in place of the petitioner. The erstwhile petitioner was a constable appointed some time in the year 1969. He was made to superannuate on 30.4.2004 on the basis of the so-called date of birth mentioned in the service book, which was recorded as 1946. Original petitioner disputed the said position, filed writ application and the writ application succeeded in favour of the petitioner as by order dated 11.1.2005, contained in Annexure-1, learned single Judge did hold that the date of birth of the original petitioner as per the matriculation certificate would be considered to be the 2 correct date of birth, which was held to be 5.1.1949. If this date of birth is given to the erstwhile petitioner, his date of retirement would be in the year 2009 and not 2004. Since State decided to file an appeal against the order, obviously no order was issued at their level directing the erstwhile petitioner to report back in service. The LPA in question was finally dismissed on 11.7.2008. There is nothing to indicate that State decided to go further up on the issue but one thing is evident that erstwhile petitioner was never ordered to report back to duty and ultimately he had to file writ application claiming benefit on the basis of the new date of superannuation, which included salary. Counsel for the State submits that the issue is under consideration of the authorities and some decision is likely to be taken. If the authorities have not taken any decision in the last three years, the Court does not want that the authorities should take decision at their own sweet will. There is a judicial pronouncement in favour of the original petitioner in terms of Annexure-1, which was passed way back in the year 2005. May be the State had a right of appeal but their appeal was also dismissed in the year 2008 before the date of superannuation of the erstwhile petitioner. In other words, the benefit of judicial order or pronouncement never accrued in favour of the erstwhile petitioner for the reasons attributable not to him but 3 the respondent State. If that is so, then the original petitioner cannot be held liable for not working in the period when he was compulsorily ordered to be retired on a date of birth contrary to the date of birth declared by the High Court. Original petitioner’s right to continue on the post on the basis of date of birth to be 1949 will have to be honoured. He will be treated to be in service and he will be entitled to all the benefits accruing therefrom including salary and other allowances. The stand of the State that it may be a case of ‘No pay for no work’ will not apply to the case of the erstwhile petitioner because it was not his conduct, which can be said to be voluntary. He was prevented from working even though there was a desire on his part to do so on a judicial pronouncement. Writ is allowed with a direction upon both respondents No.1 and 2 that they have an obligation now to calculate the salary of the erstwhile petitioner from the period when he was made to retire on 30th April, 2004 till his new date of superannuation worked out in the year 2009, which must be done within a period of three months from the date of production or communication of a copy of this order. The plea of ‘no work no pay’ will not be available to the State in the above noted circumstances. If there are any other dues which are required to be settled, it must be done so because erstwhile petitioner is no more and it is the family consisting of legal heirs, who have been 4 substituted and they must get what they rightfully deserve. rkp ( Ajay Kumar Tripathi, J.)