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2005 DIGILAW 405 (PAT)

Sheo Kumari v. State of Bihar

2005-04-07

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JUDGMENT C.K. PRASAD, J. - In both the writ applications, common questions of law with little variation of facts arise and as such they were heard together and are being disposed of by this common judgment. 2. Prayer of the petitioners in these writ applications is for payment of salary for the period they are alleged to have kept out of employment. 3. Shorn of unnecessary details, facts giving rise to this application are that in the year 1989, petitioners were appointed as Auxiliary Nurse Mid - wife and in pursuance thereof they have joined their services at their respective places of postings. Latter on their services were terminated by a teleprinter message and on a challenge being made before this Court, same was quashed. However, liberty was given to the State to proceed against such employees in accordance with law. Thereafter show cause notices were given to the petitioners and by order dated 20.12.1991, service of the petitioner Vibha Kumari was terminated whereas the service of petitioner Sheo Kumari was terminated by order dated 24.12.1991. Service of petitioner Kunti Kumari was also terminated in December, 1991. Petitioners state that aggrieved by their termination of services, they preferred CWJC No. 5410 of 1992 before this Court and said writ application along with analogous writ applications were disposed of by order dated 3.10.1994. It is the assertion of the petitioners that the orders of their termination have been set aside and they have been directed to be reinstated in service. Thereafter by order dated 13.2.1995, petitioners Kunti Kumari and Sheo Kumari were posted in Udvant Nagar and Koilwar Block in the District of Bhojpur and the said order indicated that they had joined in the office of the Civil Surgeon on 27.11.1994 and shall be entitled for payment of salary from the date of joining. So far as petitioner Vibha Kumari is concerned, by order dated 8.2.1995, she was posted in Brahmpur Block in the District of Bhojpur and the order indicated that she joined on 26.11.1994 and shall be entitled for salary from the said date. 4. In this writ application, claim of the petitioners is for payment of salary from the date their services were terminated, till they were allowed to join. 5. Mr. Rajendra Prasad, Senior Advocate appears on behalf of the petitioners in CWJC No. 1087 of 2000 whereas Mr. 4. In this writ application, claim of the petitioners is for payment of salary from the date their services were terminated, till they were allowed to join. 5. Mr. Rajendra Prasad, Senior Advocate appears on behalf of the petitioners in CWJC No. 1087 of 2000 whereas Mr. Surendra Kumar Singh appears for the petitioner in CWJC No. 1345 of 2000. JC to SC II as also Government Pleader No. VIII appear on behalf of the State. 6. Learned counsel for the petitioners contend that the petitioners were kept out of employment for no fault on their part and hence, they are entitled for salary for that period and respondents cannot deny salary on the ground that they had not worked during that period. They further contend that in similar circumstance this Court had directed for payment of salary. It is further contended that when the order terminating the services of the petitioners have been set aside by this Court by order dated 3.10.1994 passed in CWJC No. 5410 of 1992 and directed for their reinstatement, respondents cannot escape from the liability of making payment of the salary for the period in between. In support of the submission, reliance has been placed on an unreported decision of this Court dated 21.12.1995 passed in CWJC No. 7121 of 1991 (Ribha Rai and Ors. Vs. The State of Bihar and Ors.) My attention has been drawn to the following passage from the said judgment: "In that view of the matter, this Court directs the respondent authorities to pay the arrears of salary to which the petitioners are entitled to for the period during which they were kept out of the employment by the impugned order of termination. Such arrears of salary must be made available to the petitioners within a period of eight weeks from the date of receipt communication of a copy of this order." 7. It is pointed out that Letters Patent Appeal preferred against the aforesaid order, that is, LPA No. 306 of 1996 (State of Bihar Vs. Ribha Rai & Ors.) has been dismissed by the Division Bench by order dated 30.1.1997 and the Special Leave Petition (Civil) No.1 0449 of 1997 (State of Bihar Vs. Ribha Rai & Ors.) preferred against the aforesaid order has been dismissed by the Supreme Court by order dated 8th of July, 1997. Ribha Rai & Ors.) has been dismissed by the Division Bench by order dated 30.1.1997 and the Special Leave Petition (Civil) No.1 0449 of 1997 (State of Bihar Vs. Ribha Rai & Ors.) preferred against the aforesaid order has been dismissed by the Supreme Court by order dated 8th of July, 1997. My attention has also been drawn to a decision of this Court in the case of Manju Kumari Srivastava and Ors. Vs. The State of Bihar and Ors. [ 2000(1) PLJR 267 ] and my attention has been drawn to the following passage from the said judgment: "4. Thereafter notices were issued and after compliance of the requirements of natural justice services were again terminated. One of those orders in annexure - 3 to this writ application. The petitioners again moved this court and second time their writ application was allowed and second order of termination was quashed. Copy of the High Court order dated 3.10.1994 is annexure - 5 to this writ application. Pursuant to the said order of the High Court, the petitioners were reinstated by the order of the Civil Surgeon - cum Chief Medical Officer on various dates. Those orders of reinstatement are annexure - 6 series. 12. In the result, this writ application is allowed. The respondents authorities are directed to pay the arrear of salary to which the petitioners were entitled to for the period during which they were kept out of employment by illegal order of termination. Such arrear of salary must be paid to the petitioners within a period of three months from the date of receipt/production of a copy of this order." 8. Yet another decision on which reliance has been placed is the decision of this Court dated 28.9.1999 passed in CWJC No. 10322 of 1998 (Talkeshwari Kumari Vs. The State of Bihar and Ors.) in which, following the order of this Court in the case of Ribha Rai (supra), the relief of payment of salary has been granted to the petitioners of the said case in the following words: "Learned counsel for the parties agreed that the point involved in this case is covered by the order of this Court dated 21.12.1995 passed in C.W.J.C. No. 7121 of 1995, as contained in Annexure - 6. However by way of last resort, counsel for the State has contended that as the petitioner has approached this Court at a belated stage the relief claimed for should not be granted. I am afraid that the said submission cannot hold good in as much as not only by the aforesaid order but subsequently by order dated 27. 19C) 9 passed in C.W.J.C. No. 8077 of 1999 this point was also considered and rejected." 9. My attention has also been drawn to the order dated 23.12.1999 passed in CWJC No. 916 of 1999 (Mina Kumari & Ors. Vs. The State of Bihar & Ors.) wherein the direction for payment of salary to the employee has been directed in the following words: "The petitioners were appointed on the post of A.N.M. on 26.2.1990. They joined but their services were terminated on 30.12.1991. The petitioners challenged the order of termination in C.W.J.C. No. 5410 of 1992 and other analogous cases and in C.W.J.C. No. 11316 of 1994. The said writ petitioners were disposed of vide order contained in annexures 4 and 5 and the order of termination was quashed. Thereafter the petitioners were re - instated but the salary was not paid. It is well established rule of law that when order of termination is quashed the employees are entitled to salary with effect from the date of termination. 10. Reliance has also been placed on an unreported decision of this Court dated 21.1.1997 passed in C.W.J.C. No. 9152 of 1995 (Nilam Kumari Sinha & Ors. Vs. The State of Bihar & Ors.) in which it has been observed as follows: "It is true that this Court normally, while interfering with the order of dismissal/termination of appointment, is not supposed to pass any consequential order directing the respondents either to pay the salary for the intervening period or not to pay the same. In exceptional cases in the ends of justice, this kind of order is passed. Where the aggrieved person approaches the court after inordinate delay, it is open to the Court to hold that the persons will not be entitled to salary. In the present case, however, the petitioners approached this Court within a reasonable time. Their services were terminated in December, 1991 and they filed the writ petition, CWJC No. 2376 of 1992 in early part of 1992, which cannot be said to be belated by any account. In the present case, however, the petitioners approached this Court within a reasonable time. Their services were terminated in December, 1991 and they filed the writ petition, CWJC No. 2376 of 1992 in early part of 1992, which cannot be said to be belated by any account. The order of cancellation of appointment having been passed on 'non-est' ground and the petitioners having been prevented from performing their duty during the intervening period, they would not be justified to deny the payment of salary for the period." 11. It is pointed out that Urmila Kumari and others, who were petitioners in CWJC No. 4510 of 1992 along with these petitioners approached this Court in CWJC No. 1801 of 1999 (Urmila Kumari & Ors. Vs. The State of Bihar & Ors.) and by order dated 8.12.1999, this Court had directed for payment of salary to them and as such there is no reason to deny salary to these petitioners. The entire order of this Court in this case is quoted below: "After hearing counsel for the parties, this Court is of the opinion that the case of the petitioners is also covered by the ratio decided in the case of Ribha Rai & Ors. Vs. The State of Bihar and Ors. (C.W.J.C. No. 7121/95 disposed of on 21.12.1995) This Court is given to understand that this order has been sustained right to the Apex Court. Another learned Single Judge of this Court also passed similar order in CWJC No. 8077/98 disposed of on 27.9.99 and CWJC No. 10004/99 disposed of on 27.9.99. This Court also passes the same order. The arrears of salary should be paid to the petitioners within three months from today. This writ petition is thus, disposed of." 12. JC to SC II as also Government Pleader No. VIII, however, contend that the very assumption of the petitioners that orders of termination of their services were set aside by this Court in CWJC No. 5410 of 1992 is erroneous on fact and all the submission having been advanced on such an erroneous assumption has no legs to stand. JC to SC II as also Government Pleader No. VIII, however, contend that the very assumption of the petitioners that orders of termination of their services were set aside by this Court in CWJC No. 5410 of 1992 is erroneous on fact and all the submission having been advanced on such an erroneous assumption has no legs to stand. They point out that few of the petitioners of CWJC No. 5410 of 1992 came to this Court for payment of salary and this Court by its order dated 10.5.2000 passed in CWJC No. 2050 of 1999 did not accede to the prayer for payment of salary holding that this Court in CWJC No. 5410 of 1992 and analogous cases, in fact, had not chosen to set aside the order of termination. My attention has been drawn to the following passage from the said judgment: "From the judgment and order dated 3.10.1994 passed in CWJC No. 5410 of 1992 and analogous cases, it will be evident that the Court did not choose to set aside the order of termination, if any, issued in favour of one or other petitioner. The writ petitions were disposed of with direction to the concerned authorities of the State to consider the cases of petitioners against existing vacancies in the light of Court's order. In the case of Manju Kumari (CWJC No. 6640 of 1994), such consideration for appointment was ordered to be made ignoring the earlier order of cancellation of appointment. Thus it will be evident that in terms with Court's order, the petitioners were given appointment in 1994 and not order of reinstatement. In the circumstances, the petitioners having appointed afresh in terms with Court's order, the question of payment of salary of the period from 1991 to 1994, while they were out of service does not arise." 13. They contend that the matter stands concluded by the judgment of this Court in the case of Malti Kumari Vs. The State of Bihar and Ors. [ 2005(1) PLJR 482 ]. My attention has been drawn to the paragraphs 6 and 7 of the judgment which read as follows: "6. Having considered the rival submission, I do not find substance in the contention of Mr. Singh. The State of Bihar and Ors. [ 2005(1) PLJR 482 ]. My attention has been drawn to the paragraphs 6 and 7 of the judgment which read as follows: "6. Having considered the rival submission, I do not find substance in the contention of Mr. Singh. True it is that the petitioner's service was terminated but in the writ application filed by her, i.e. CWJC No. 5410 of 1992, this Court had not set aside the order of termination but directed the authority concerned to consider the case of the petitioner against the existing vacancy within a stipulated time. It seems that in the light of the aforesaid observation of this Court, the case of the petitioner was considered and by order dated 20.2.1995, she was appointed as Auxiliary Nurse Midwife, I am of the opinion that in a case in which service of an employee is terminated and such an employee is appointed afresh and not reinstated there is no question of payment of back wages from the date of termination till reinstatement. Further in case of reinstatement, this Court may deny back-wages. In the present case, there is no order setting aside termination or directing for reinstatement and payment of back-wages. In that view of the matter, petitioner shall not be entitled for the salary from the date of termination till her appointment. 7. To put the record straight, Mr. Singh has placed reliance on an unreported decision of this Court dated 27.9.1999 passed in CWJC No. 8077 of 1988 (Manju Kumari Srivastava and Ors. Vs. The State of Bihar and Ors.) Order dated 1.9.1994 passed in CWJC No. 307 of 2001 (Nandini Kumari and ors. Vs. The State of Bihar and Ors.) in support of his contention. In the case of Manju Kumari Srivastava (supra), the question was as to whether an employee whose service has been terminated, shall be entitled for back wages in case the order of termination is quashed by this Court. Here in the present case, as observed earlier, the order of termination of the services of the petitioner was not quashed and this Court directed the authority to consider her case against the existing vacancy. In that view of the matter, the decision in the aforesaid case, in no way, supports the case of the petitioner. Here in the present case, as observed earlier, the order of termination of the services of the petitioner was not quashed and this Court directed the authority to consider her case against the existing vacancy. In that view of the matter, the decision in the aforesaid case, in no way, supports the case of the petitioner. So far as the case of Nandini Kumari (supra) is concerned, this Court granted the relief to the petitioner of the said case on the ground that her case was covered by the decisions of this Court in some earlier cases. Nothing has been pointed out to show that in a case in which fresh appointment is made in pursuance of the decision of this Court, the employee shall be entitled for back wages. Hence, this decision also does not support the case in any way." 14. Neither the fact nor the principle or for that matter precedents relied on by the petitioners in any way support their case. 15. In my opinion, the answer to the question is dependent on a single fact and that is, whether in the earlier writ petition filed by the petitioners, the orders of termination have been set aside or not. 16. According to the petitioners aggrieved by the order of termination of their services, they preferred CWJC No. 5410 of 1992 and this Court set aside the order of termination, but when I go closely through the judgment of this Court, prayer of those writ applications were for appointment on the post of Auxiliary Nurse Midwife and this Court while disposing of the said writ application in fact had not set aside the order of termination, but had directed the said authority to consider the case of petitioners for appointment against existing vacancies within four months. Paragraph 1 of the judgment which incorporates the relief sought for by the petitioners reads as follows: "These seven writ applications seeking common relief, namely, appointment of the petitioners of the post of Auxiliary Nurse Mid - wife (A.N.M.) have been taken together and are disposed of by this common order." 17. And the direction given by this Court is in the following words: "These applications are disposed of with direction to the concerned authorities of the State to consider cases of the petitioners against existing vacancies in the light of this order within four months." 18. And the direction given by this Court is in the following words: "These applications are disposed of with direction to the concerned authorities of the State to consider cases of the petitioners against existing vacancies in the light of this order within four months." 18. Hence, it cannot be said that the orders of termination of services of the petitioners were set aside by this Court in the writ application filed by them earlier. The only direction given by this court was to consider the case of the petitioners for appointment against existing vacancies. Therefore, instead of issuing a fresh order of appointment petitioners were allowed to join from the dates indicated above and it was further directed that they shall be entitled for salary from the date of joining. 19. Now I revert to the decision of this Court on which petitioners have placed reliance. In all those cases direction for payment of salary was given on the premise that the order of termination has been set aside, which would be evident from plain reading of the judgments. In the case of Ribha Rai relied of payment of salary was given on the following fact: "Challenging the said order of termination the petitioners filed writ petition being CWJC No. 7164 of 1991 and it has been stated in paragraph 11 of this writ petition that the Hon'ble Court quashed the said order. The said fact is not disputed by the learned counsel appearing for the respondent" 20. Direction for payment of salary in the case of Talkeshwari Kumari (supra) is rendered on the ground that the case is covered by the decision of this Court in the case of Ribha Rai (supra) & Manju Kumari Srivastava (supra) and I have already indicated that in Ribha Rai, direction for payment of salary was given, when it was found that in the earlier writ application, order of termination was set aside. So is the situation in the case of Manju Kumari Srivastava (supra), which would be evident from paragraph 4 of the judgment, which reads as follows: "Thereafter notices were issued and after compliance of the requirements of natural justice services were again terminated. One of those orders is annexure - 3 to this writ application. The petitioners again moved this Court and second time their writ application was allowed and second order of termination was quashed. One of those orders is annexure - 3 to this writ application. The petitioners again moved this Court and second time their writ application was allowed and second order of termination was quashed. Copy of the High Court order dated 3.10.94 is annexure - 5 to this writ application. Pursuant to the said order of the High Court, the petitioners were reinstated by the order of the Civil Surgeon - cum - Chief Medical Officer on various dates. Those orders of reinstatement are annexure - 6 series." 21. In the case of Neelam Kumari Sinha (supra) the question of payment of salary arose, when order of termination was set aside which would be evident from the following passage from the said judgment: "The petitioners moved this Court again in CWJC No. 2376 of 1992. By order dated 3.1.94/8.2.94 the order of termination was again set aside." 22. I had quoted the entire order of this Court in the case of Mina Kumari and from its plain reading it is crystal clear that payment of salary was directed when it was found that the order of termination was quashed earlier. Thus in all the cases relied on by the petitioners, the entitlement of the employee to get the salary after the order of termination is quashed by the Court was an issue. Here in the present case, as stated earlier, the orders of termination of the petitioners' services have not been set aside, but this Court directed for consideration of their cases for appointment against the existing vacancies and as such the decisions relied on in no way support the case of the petitioners. 23. It is pointed out by the learned counsel for the petitioners that when Mina Kumari and others (supra) Urmila Kumari and others (supra), who were the petitioners alongwith the petitioners have been directed to be paid the salary for the intervening period by this Court in the writ application filed by them, there is no justification for denying salary to these petitioners. 24. JC to Standing Counsel No. 2 and GP VIII have entered a caveat. They contend that when Radhika Kumari who was also petitioner along with these petitioners in CWJC No. 5410 of 1992 has been denied the salary, by no stretch of imagination, petitioners can be treated differently. 25. I have given my most anxious consideration to the rival submission. JC to Standing Counsel No. 2 and GP VIII have entered a caveat. They contend that when Radhika Kumari who was also petitioner along with these petitioners in CWJC No. 5410 of 1992 has been denied the salary, by no stretch of imagination, petitioners can be treated differently. 25. I have given my most anxious consideration to the rival submission. True it is that Urmila Kumari and others & Mina Kumari and others have been granted salary for the intervening period, but while doing so, this Court proceeded on an assumption that the order of termination was set aside and on that assumption the payment of salary was directed, relying on its earlier decisions. It is relevant here to state that Radhika Kumari and Ors. who were petitioners in CWJC No. 5410 of 1992, along with the present petitioner have been denied salary by this Court by order dated 10.5.2000 passed in CWJC No. 2050 of 1999. In the said case this Court had gone to the purport of the order passed in CWJC No. 5410 of 1992 which has been quoted in extenso and came to the conclusion that this Court did not choose to set aside the order of termination and accordingly, payment of salary was denied. 26. I respectfully concur with the finding and the ratio of the said case. The view which I have taken also finds support from the judgment of this Court in the case of Malti Kumari (supra) wherein it has been clearly held that in case of fresh appointment, when the order of termination is not set aside, employee shall not be entitled for payment of salary from the date of termination till appointment. 27. As a last straw it is contended on behalf of the petitioners that when no order of appointment was issued after passing of the order by this Court, and petitioners having been allowed to join the service, the order of appointment issued earlier shall continue. This argument has been noted only to keep the record straight and deserves to be rejected outright. According to the petitioners themselves, their services were terminated and a challenge was made to that in CWJC No. 5410 of 1992. Said order of termination has not been set aside by this Court. In that view of the matter order of appointment anterior to the date of termination shall not survive. 28. According to the petitioners themselves, their services were terminated and a challenge was made to that in CWJC No. 5410 of 1992. Said order of termination has not been set aside by this Court. In that view of the matter order of appointment anterior to the date of termination shall not survive. 28. There is yet another impediment in the way of the petitioners. While acknowledging the facts of the petitioners joining the service and posting them by order dated 8.2.1995 and 13.2.1995 it was made clear that they shall be entitled to get the salary from the date of joining. Petitioners accepted the same without any murmur and have chosen to file these applications in the year 2000. Thus the claim of the petitioners is stale and the writ petitions suffer from delay and laches also, which disentitle the petitioners the reliefs claimed herein. 29. In the result, I do not find any merit in these, applications which are accordingly dismissed, but without any order as to cost.