VISHWANATH KUMAR Vs. STATE

JUDGEMENT

(1.) THIS application has been filed for issuance of a writ in the nature of mandamus commanding the respondents to pay to the petitioner salary from 13.4.1993 till the termination of his service i.e. 30.12.1999.

(2.) SHORT facts giving rise to the present application are that by order dated 28.12.1991 (Annexure -1) petitioner was engaged to perform the function of a Clerk on daily wages. Thereafter by order dated 8.4.1993 (Annexure -2) passed by the Civil Surgeon -cum -Chief Medical Officer, service of the petitioner was regularised in the scale of pay of Rs. 1200. -1800 and in pursuance thereof it seems that he had joined as such on 13.4.1993. It is the grievance of the petitioner that since his joining as Clerk on regular scale of pay on 13.4.1993 and till the date of termination of his service, no remuneration has been paid to him. It is further stand of the petitioner that anotherperson appointed in the same manner as that of the petitioner has been paid the remuneration.

(3.) MR . Santosh Kumar Sinha, appearing on behalf of the petitioner submits that the petitioner having worked as Clerk, he is entitled for payment of the salary for the period aforesaid. He also contends that on 8.7.1993 the date on which the Civil Surgeon certified for payment of the salary to the petitioner he was competent to make appointment on a Class lll post. J.C. to G.P. VIII however contends that the Civil Surgeon regularised the service of the petitioner by order dated 8.4.1993 and on that date he was not competent to make appointment to a Class III post and hence the appointment of the petitioner being absolutely illegal, he is not entitled for any emolument. In support of his submission he has placed reliance on an unreported Division Bench decision of this court in LPA No. 41 of 2002 dated 31.1.2002 (The State of Bihar & Ors. V/s. Rakesh Kumar) and my attention has been drawn to the following passage from the said judgment: