IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1586 of 2006 RAJENDRA PASWAN Versus THE STATE OF BIHAR & ORS ----------- 12 8/7/2009 Heard counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “That this is an application for issuance of an appropriate writ/writs, order/orders, direction/directions for directing the respondents to pay the full salary of the petitioner from May 1982 till 21.9.99 and to pay the remaining salary from 22.9.1999 till date after calculating all annual increment etc. because from May 82 to September, 1999 the petitioner is being paid the basic salary only without any increment and other benefits, i.e, time bound enhanced pay scale etc.” Before this Court would adjudicate the aforementioned prayer it must begin with an observation that this case has chequered history. The petitioner claims to be appointed some time in the year 1980 on the post of Excise Constable though no letter of appointment of the petitioner of the year 1980 is on the record, but then this Court must proceed that the petitioner was appointed as Excise Constable and his services were terminated by an order dated 17.5.1982. The petitioner, in fact, after termination of his services happily sat over six years and thereafter filed a writ application in the year 1988 which was dismissed by a Division Bench this Court by order dated 22.4.1998. The petitioner, in fact, did not do anything for the next two years and came to file a review application in the year 1990 and that review application 2 seeking recall of the order dated 22.4.1998 in C.W.J.C. No. 2128 of 1988 challenging the order of termination, was also dismissed as withdrawn with a liberty to the petitioner to institute another application for the same cause of action. The petitioner thereafter in the year 1991 had filed C.W.J.C. No. 756 of 1991 challenging the aforementioned order dated 17.5.1982 terminating him from the service, and this Court by order dated 6th August, 1999 had quashed the order of termination of services of the petitioner with a direction to reinstate him in service on the post of Excise Constable by holding that the petitioner will be entitled for the consequential benefits. It has to be noted here that the said order of the Learned Single Judge was affirmed by the Division Bench of this Court by order dated 19.10.2000 in L.P.A. No. 474 of 2000. While appeal against the said order of the Division Bench was still pending before the Apex Court the respondents under threat of contempt had reinstated the petitioner in service by order dated 28.9.2001 with effect from 22.9.1999, the date on which the petitioner had submitted his joining report pursuant to the order of the Learned Single Judge quashing the order of termination dated 6.8.1999. There is no dispute that the petitioner is getting salary from 22.9.1999, but real rub is as to what would be the meaning of the word “consequential benefit” used in the order of this Court dated 6th August, 1999 in the context of the petitioner when he had 3 remained out of service for 17 long years. Mr. Thakur, learned counsel for the petitioner would submit that the consequential benefit will always mean the entire salary from the date of removal till the date of joining of the petitioner. He would also submit that the time bound promotion or any other promotion due will also be automatically become available to the petitioner because in the show cause reply to the contempt application, the respondents have already conceded for giving full salary for the period the petitioner had remained out of service. The respondents, however, have taken a different plea in the counter affidavit that the petitioner was never appointed and in fact by adopting fraudulent methods the petitioner had entered in service on the post of Excise Constable. The respondents, therefore, have taken a plea that these issues were raised by him before the Apex Court against the order of the Division Bench and the Apex Court in its order dated 24.9.2001 (Annexure-3) had made certain observations with a liberty to the State of Bihar the petitioner before the Apex Court, to file a review petition against the said order dated 19.10.2000 in L.P.A. 474/2009, by raising a plea that the petitioner's earlier writ petition C.W.J.C. No. 2128/1988 for the same relief had been dismissed. At this stage it has to be noted that even the contempt application filed by the petitioner was dismissed by holding that the order of this Court dated 6.8.1999 had stood fully complied. The interpretation being made in respect of said order by Mr. 4 Thakur may have some bearing on the result of this application but as the main issue still remains and in fact this Court had not defined entitlement of the petitioner by way of consequential relief upon reinstatement, this Court is now called upon answer to this question. The Apex Court and this Court had held that reinstatement automatically does not mean payment of full back wages. The expression “Consequential benefit” used in the order of this Court dated 6.8.1999 has to be understood in that context. The question, in fact, would be as to whether appointment of the petitioner which was sought to be terminated was ever made. Counsel for the petitioner has not annexed letter of appointment but has produced from his custody few documents to show that the petitioner was asked to appear in the interview alongwith the document for screening his appointment and that subsequently he was also sought to be engaged on officiating basis by order dated 5th August, 1981 when one Bimal Narayan Choudhary and Tarkeshwar Choudhary had proceeded on long leave and the same is claimed to be Officiating appointment of the petitioner. It is further contended that in the same status the petitioner has been described as mEehnokj mRikn flikgh and later on by order dated 17.5.1982 services of the petitioner was terminated. In the opinion of this Court, there being no appointment of the petitioner in the year 1980 as claimed by him, the expression „reinstatement‟ used with consequential benefit in 5 the order of this Court dated 6.8.1999 has to be understood in the context of the petitioner who was Excise Constable and he was to be taken in the same capacity. While this Court is recording this finding it is also conscious with the earlier order dated 5.8.1981 which was passed on the entering point of services of the petitioner which also includes order of appointment dated 26.5.1980 in which there is clear demarcation that appointment of the petitioner had been stood LFkfxr and there is nothing to show that the petitioner was ever appointed in the year 1980 and was sought to be taken in service by the Excise Superintendent by using expression “mEehnokj mRikn flikgh “ . In such a situation, if the petitioner did not challenge the order of termination between the years 1980 to 1988 the State will not be liable to pay salary for the period from 1980 to 1988. The next question would be as to how the period of 1988 to 1999 has to be treated. As the petitioner in the aforesaid period had not worked even for a day therefore the State cannot be penalized by way of payment of salary for the aforementioned period. Usually, even in case of reinstatement full back wages are not paid as a matter of right and therefore the petitioner would start getting benefit of his service in the basic scale as was given him on the post of Excise Constable on 22.9.1999. It goes without saying that if the petitioner is found entitled for payment of any amount from 22.9.1999 till date the same must be paid to him within a period of six months from the 6 date of this order. With the aforesaid observations/directions this application is dismissed. Abhay Kumar (Mihir Kumar Jha, J.)