MALTI KUMARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) The reference to us is occasioned by the difference of opinion by a Learned single Judge with an order passed by a coordinate Bench, opining that the direction for payment of back wages in the latter was contrary to the express prohibition ordered by another Learned single Judge in the earlier litigation. The petitioner was appointed as an Auxiliary Nurse Midwife on 18.2.1980. Her services were terminated on 27.6.2003 on the ground that her registration in the Nursing Council was subsequent to the date of appointment. CWJC No. 9066 of 2003 preferred by her was allowed on 8.9.2003 by a Learned single Judge along with a batch of similar cases led by CWJC No. 4702 of 2003, (Sitendra Kumar Singh vs. State of Bihar, 2003 4 PLJR 282). The Court did not examine the order of termination on merits. It was held that termination after such long period of time was not equitably justified even if the appointment was not strictly in accordance with law. It was however directed that no salary shall be payable for the period not actually worked. LPA No. 492 of 2005 was preferred by the State. It was heard and disposed on 26.6.2006 along with a batch of analogous Appeals led by LPA No. 946 of 2003. The correctness of the appointments and termination was referred for reconsideration and possible regularisation to a five man committee in accordance with (Secretary, State of Karnataka vs. Uma Devi, 2006 4 SCC 1). Upon reconsideration, the respondents regularised the services of the petitioner by order dated 20.9.2007 from the date of joining. Salary was denied from the date of termination to the date of joining on the principle of 'No work no pay', but the period was to count for purposes of pension only.

(2.) Learned Counsel for the petitioner submitted that claim shall lie for salary from 8.9.2003, when the termination was set aside by the Learned single Judge till date of regularisation and joining on 20.9.2007. The termination having been set aside, the Division Bench in Appeal did not set aside that order but only referred the matter to the State Government, subsequently reinstatement has been ordered, the period is being counted for pension, the reinstatement is from the date of termination by fiction. The same period cannot be valid for certain purposes and invalid for other. A fiction must be given full operation with continuity by payment of salary for the period that the right to work was wrongly denied. Reinstatement was evidence that the termination itself was illegal. The right to work was wrongly denied. Denial of salary in the circumstances is a continuing wrong. Delay has no relevance in the facts to defeat the claim for salary. Reliance has been placed on (Om Prakash vs. State of Bihar, 2009 4 PLJR 690).

(3.) It was next submitted that consistency in the orders of the Court in common cases must be maintained. Reliance was placed on (Sunderjas Kanyalal Bhatija vs. Collector, Thane, 1989 3 SCC 396). Salary had been allowed in several writ applications to similarly situated persons, i.e. CWJC Nos. 16854 of 2009, CWJC Nos. 2256 of 2012 Reported in , : 2012 (4) PLJR 401, CWJC Nos. 11015 of 2012 (which in turn follows CWJC Nos. 2256 of 2012 Reported in , : 2012 (4) PLJR 401, CWJC Nos. 4914 of 2012, CWJC Nos. 3917 of 2012 and CWJC Nos. 3076 of 2012) and LPA Nos. 230 of 2011 Reported in 2012 (3) PLJR 547, LPA Nos. 224 of 2011 Reported in 2012 (3) PLJR 547 and LPA Nos. 298 of 2011 Reported in 2012 (3) PLJR 547.