The case examines the entitlement of dismissed employees to compensation for a designated timeframe and acknowledgment of their previous service. The respondents, originally appointed as Adult Education Supervisors from 1981 ...
No Acts & Articles mentioned in this case
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10806 OF 2018
(Arising out of SLP (C) No. 7358 of 2018)
THE STATE OF BIHAR AND ORS. …. APPELLANTS
:Versus:
BALIRAM SINGH & ORS. …. RESPONDENTS
J U D G M E N T
A.M. Khanwilkar, J.
1.Leave granted.
2.This appeal arises from the final judgment and order
dated 15
th
January, 2018 in L.P.A. No.2307 of 2016 passed by
the Division Bench of the High Court of Judicature at Patna
whereby the judgment and order passed by the Single Judge
in Civil Writ Jurisdiction Case No.22208 of 2013 dated 22
nd
August, 2016 allowing the writ petition preferred by the
2
respondents inter alia for relief of payment of salary for the
period from 1
st
October, 2001 till 3
rd
July, 2007 and
consequently directing the appellants to pay the amount
towards salary for the said period had been upheld.
3.The respondents filed a writ petition initially praying for a
direction against the appellants to make payment of salary to
them for the period from 1
st
October, 2001 till 3
rd
July, 2007,
along with statutory interest. By way of an amendment, a
further relief was claimed to issue a writ of mandamus to the
appellants to give continuity of past services to the
respondents taking into account the period from 1
st
October,
2001 till 3
rd
July, 2007 for the purpose of making payment of
salary to the respondents for the said period. The respondents
asserted that they were appointed as Adult Education
Supervisors between 1981 and 1987 pursuant to
advertisements published between 1979 and 1983. It is stated
that 771 posts of Adult Education Supervisor were abolished
in terms of the decision of the State Government after
3
adjusting the remaining 367 supervisors who continued to
work until the abolition of the posts in the year 1991.
4.These termination orders were challenged by the
association of the respondents, namely, the Bihar State Adult
and NonFormal Education Employees Association, by way of
CWJC No.5036 of 1992. That writ petition was disposed of
along with connected cases vide judgment dated 24
th
May,
1996
1
. Paragraph Nos.36 and 37 of the judgment read thus:
“36. There is no doubt that petitioners’ initial appointments
were made to a scheme which was purely temporary,
therefore, it may not be possible for me to ask the
respondent authorities to regularize their services. But I
have already noticed that their appointments were made as
per the prescribed norms of the Government after proper
advertisement etc. I have also noticed that having regard to
their past services rendered continuously for ten to fourteen
years, the State authorities had themselves absorbed at least
771 of such Supervisors and for rest steps were under
contemplation. Petitioners have also been able to establish
successfully that the decision of the authorities to cancel
such adjustment was not only malafide rather shameful. But
now a stand is being taken by the respondents that those
771 posts were also temporary hence a decision was taken to
terminate the petitioners. Therefore, in these backgrounds, it
would not be proper to quash the order of petitioners’
termination.
37.But it cannot be ignored that having regard to the long
services rendered by the petitioners, administrative
1 The Bihar State Adult and NonFormal Education Employees Association and Ors. Vs.
The State of Bihar and Ors. 1996 SCC Online Pat 235;(1996) 2 PLJR 394
4
authorities had suggested steps for their absorption even in
other departments. Therefore, having taken into
consideration entire facts and circumstances of the case, I
dispose of the writ petitions with the following direction to
the respondentauthorities: (a) to allow the petitioners and
interveners to continue against these 771 posts, against
which they were adjusted in terms of the letter of the
concerned department, dated 19
th
December, 1990. But such
adjustment is to be made as per their seniority or (b) in case
those posts have also been abolished, take steps to
absorb/adjust the petitioners along with the interveners in a
similar manner, the employees of Consolidation Department
were adjusted or (c) if for any justified reason condition nos.
(a) or (b) are not possible, take a decision similar to the State
of Uttar Pradesh, which I have already indicated in
paragraph no.18 of this order and adjust/absorb them
accordingly. But in the facts and circumstances of the case, I
could not persuade myself to quash the impugned order.
With the aforesaid directions/observations, these writ
applications are, thus, disposed of. But the parties are left to
bear their own costs.”
5.Consequent to the said decision, the appellants
appointed the respondents in the NonFormal Education
Scheme/Adult Education Scheme vide order dated 15
th
March,
1998. The said order reads thus:
“The Government of Bihar
Secondary, Primary and Adult Education Department
Office Order
Patna, date: 15
th
March, 98
No.24/Mu. 5042/92 P.E. 112/C.W.J.C.5036/92
1. In the light of order passed on the date of 24.5.96 by
the Hon’ble Patna High Court in C.W.J.C. No.5036/92 and
other annexed petitions and in the light of order passed on
the date of 26.11.97 in M.J.C. No.2884/96 and 3172/96,
against the sanctioned and vacant posts of the Project
5
Officers, under Informal Dist. Public Education Program
under Public Education Directorate, to the following service
relieved Adult Education Supervisors along with the other
allowances payable from time to time by the Government, in
payscale1600502300602700, making appointment in
temporary way on the post of Project Officer under Informal
Education, order is passed to make joining in Public
Education Directorate, Bihar Patna.
S.N. Name Amended/
Provisional
Home DistrictDist. From
where
retrenchment
was made
1.Mrs. Kalyani
Devi
1 Bhagalpur Pakud
2. 2
3. 3
4.
5.
453Mr. Panna Lal
Yadav
500 W. Singhbhum W. Singhbhum
2. Aforesaid all appointed employees at the time of
joining, shall submit necessarily Medical Certificate issued
by Civil Surgeon.
3. This appointment shall be deemed fresh
appointment, resultantly their earlier services shall not
be calculated for their pension,/ promotion/ time bound
promotion etc.
4. If by the aforesaid employees, their earlier charges are
not handed over, then only after handing over earlier charge,
joining shall be made at new posted place.
5. To all aforesaid employees only starting salary of
payscale mentioned in this letter shall be payable
immediately.
6. The service of all aforesaid employees shall be under
policy and principle of Informal Education Program/Adult
Education Program.
6
7. The service conditions of aforesaid all appointed
employees shall be deemed under circulars issued earlier
in the context of retrenchment and adjustment by the
Personnel Department and Finance Department.
8. On being any kind of alteration in Sl. No. in amended
Provisional Seniority List prepared by Public Education
Directorate, Bihar, Patna, alteration may be made in the post
of employees mentioned in this letter also.
9. If during review by Public Education Directorate, proof
is found of arrear or defalcation against any aforesaid
employee, then action shall be taken for its recovery. If
against any employee serious charges are found or their
service is found unsatisfactory, then their service may be
terminated.
10.The aforesaid appointed employees shall submit
affidavit in the context of their appointment at the time of
joining stating therein that, their appointment is made in
formal way and as per rule and if in future their
appointment is found illegal/irregular, then their service
shall be terminated and they shall be liable to punishment.
11.The employee who was appointed on the post of
Project Officer, under informal education for the period
of three years on the basis of contract earlier in category
of Adult Education Supervisor and whose service was
extended up to December, 97, his appointment also shall
be deemed fresh appointment.
12.Aforesaid all appointed employees shall make
joining in Public Education Directorate, Bihar, Patna
within one month from date of issuance of this letter,
otherwise their appointment shall be terminated.
Sd./dated 15398
[Vishnu Kumar]
Director, Public Education, Bihar, Patna
Memo no.412/Patna, Date: 15 March 1998
Copy sent to;Accountant General, Bihar, Patna/Ranchi for
information and necessary action.
Sd./dated 15398
7
[Vishnu Kumar]
Director, Public Education, Bihar, Patna
Memo no.412/Patna, Date: 15 March 1998
Copy sent to: The Treasury Officer, Vikas Bhawan, Patna
Secretariat for information and necessary action.
Sd./dated 15398
[Vishnu Kumar]
Director, Public Education, Bihar, Patna
Memo no.412/Patna, Date: 15 March 1998
Copy sent to: All Dist. Magistrates/all Dy. Development
Commissioner/all Dist. Public Education Officer/all
Assistant Driector, Informal Education for information and
necessary action.
Sd./dated 15398
[Vishnu Kumar]
Director, Public Education, Bihar, Patna
Memo no.412/Patna, Date: 15 March 1998
Copy sent to: All concerned
employees……………………………………..for information and
necessary action.
Sd./dated 15398
[Vishnu Kumar]
Director, Public Education, Bihar, Patna
Memo no.412/Patna, Date: 15 March 1998
Copy sent to: The Secretary, Secondary, Primary and Adult
Education Department, Bihar, Patna for information and
necessary action.
Sd./dated 15398
[Vishnu Kumar]
Director, Public Education, Bihar, Patna
Memo no.412/Patna, Date: 15 March 1998
[True Translated Copy]”
(emphasis supplied)
8
6.Be it noted that the appointment of the respondents to
the post of Project Officer was a fresh appointment. The
respondents accepted the said terms and conditions of
appointment and none of the respondents challenged the
same. The scheme, in respect of which the respondents were
appointed, was abolished w.e.f. 1
st
April, 2001, as a result of
which all of them came to be terminated. The respondents,
however, neither challenged the policy decision to abolish the
scheme under which the Informal Education Programme
Scheme was implemented by the State Government nor their
termination order. Indeed, some of the affected persons
challenged their order of termination by way of writ petitions.
We shall advert to this aspect a little latter.
7.It is indisputable that the State Government took a policy
decision on 20
th
May, 2005 to adjust all the 1427 retrenched
employees. The policy is reflected in the resolution, which
reads thus:
“State of Bihar
Department of Human Resources Development
(Primary and Adult Education)
9
Resolution
Patna Dated: May, 2005.
Like other states in State of Bihar, Informal Education
Program in the form of Central sponsored programe was
managed in order to arrange primary education to such
children who are aged about 614 years and not going to
government school for study. Central Government and State
Government were bearing the expenses incurred in this
programe in specified ratio. The Central Government has
taken decision to stop Informal Education Programe and to
regulate the Education Guarantee Program/Objective and
Navachari Education Programe with effect from 01.04.2001
for the purpose of this object. Subsequently the following
employees for informal Education Program were retrenched
with effect from 01.04.2001.
S.
No
.
Post Name Req.
qualification
Salary No.
Reentrant
Emp.
1.Project Officer Graduation 5,000
8,000
316
2.Clerk Cum Accnt.Matric 4,000
6,000
346
3.Clerk Cum TypistMatric 4,000
6,000
346
4.Stenographer Matric 4,000
6,000
1
5.Driver Literate 3,050
4,590
30
6.Peon Literate 2,550
3,200
370
Total 1,427
2. The matter of a adjustment of 1427 retrenched
employees under the aforesaid explained in formal education
programe was pending before the government. State
government has taken decision for adjustment of the
retrenched employees against the available vacancies in
different departments in the following manners:
J.The concerned retrenched employee shall be
adjusted on such post for which he possesses the
10
required prescribed educational qualification and no
new post shall be created for him.
B.They shall be adjusted for the same salary at which
they were retrenched. In case of unavailability of
post/vacancy and upon furnishing their written
consent, retrenched employees shall also be adjusted
at minimum salary.
C.The reservation roster shall, necessarily be
complied with. The retrenched employees shall be
adjusted against the roster point of the same class,
they belong to.
D.The maximum limit of age shall be exhausted for
adjustment.
E.In the light recommendation of personnel and
administrative reforms department, as per the
definition of retrenched employees mentioned in their
resolution no.209 dated 06.07.92, Public Education
Director shall prepare, self sufficient panel, in the light
of advice of learned counsel, all 1,427 employees have
been deemed to be retrenched.
F.The direct recruitment shall not bestopped in
series of adjustment in different departments. The
Public Education Director shall initiate proceedings to
mark the post for the purpose of adjustment in
different departments.
G.Consent of Bihar Employees Selection Commission
is not necessary in filing the marked post through
adjustment.
H.According to availability of vacancies, the
appointments shall be made from such panel time to
time through adjustment after obtaining the approval
of chief secretary. Chief Secretary must be empowered
by the governor or Council of Ministers of State for
giving such approval.
I.The adjustment of retrenched employees shall
be deemed to be a new appointment. They shall
11
not get the benefit of seniority on the basis of their
service before being retrenched. But the period of
service prior to retrenchment shall be used for
pension purpose.
J.The retrenched employees whose immediate
adjustment is not done due to unavailability of
vacancy, after preparing their list they shall be
adjusted against vacancy post available in next five
years.
By the order of Governor of Bihar.
SD/illegibleVijay Prakash
Secretary
Primary and Adult Education
20/5/2005”
(emphasis supplied)
8.Even this policy makes it amply clear that the
adjustment of retrenched employees was to be a new
appointment and the employees would not get the benefit of
seniority on the basis of their services before being retrenched.
However, the period of service prior to retrenchment would be
reckoned for pension purposes only. Even this policy has not
been challenged by the respondents.
9.The respondents eventually came to be appointed
pursuant to the letter dated 16
th
March, 2007. The said letter
reads thus:
12
“Letter no.13/Est. 1505/06 270/
The Government of Bihar
Human Resource Development Department
From,
Dr. Madan Mohan Jha
CommissionercumSecretary.
To,
CommissionercumSecretary,
Food and Supply Department,
Bihar, Patna.
Patna, Date: 16 March, 2007
Subject:About the adjustment on the posts equivalent of
Supervisors of Adult Public Education, in the
compliance of order passed by the Hon’ble Patna
High Court in C.W.J.C. No.5036/92 and M.J.C.
No.2884/96, in course of Resolution No.582 dated
20.05.05 and 1638 dated 11.10.06 passed by the
State Government.
Sir,
1. In the context of aforesaid subjects, as per instruction,
it is to say that, a decision is taken by the State Government
of readjustment against the vacant posts equivalent to
supervisory category under different departments, of the
employees of concerned Adult Education Supervisor
Category, in context of which decision was taken of
adjustment in other departments as consequence of
conclusion of Informal Education Program with effect from
date 01.04.01 and whose adjustment was made in year 1998
under Informal Education Program on account of wants of
posts, for some time against the post of clerk, the employees
of Adult Education Supervisor Category, concerned with
Resolution No.582 dated 20.05.05 for the adjustment
against the vacancies available in different
Departments/Offices, of retrenched employees of Informal
Education Program. In this context, the copy of Resolution
No.582 dated 20.05.05 and Resolution No.1638 dated
11.10.06 are annexed.
Vide Letter No.646 dated 25.03.05 of the Food and
Supply Department, on the basis of said decision of the
Government and option received for adjustment from
13
employees against the communicated rest vacancies of
Supply Inspector, for the appointment/adjustment in pay
scale [50008000] against vacant posts of Supply Inspector,
under Food and Supply Department, of the following
retrenched employees of Adult Education Supervisory
Category:
S.
No.
Name Reservatio
n Category
D.O.B. Home
Dist.
Date of
First
joining on
the post of
Adult
Education
Supervisor
Presently in which
office department
adjusted or to be
adjusted
1.Swarn Lata
Fransis
S.T. 25.06.58Kodrama 01.03.82 Clerk in the Office of
D.S.I. Samastipur
2.Dinesh
Chandra
Manjhi
S.T. 02.04.56Giridih 05.03.82 R.D.E.D. Darbhanga
3.Rasique
Murm
S.T. 03.01.57Dumka 13.04.82 R.D.E.D. Darbhanga
4.Munshi
Murmu
S.T. 03.01.57Dumka 14.04.82 R.D.E.D. Darbhanga
5.Thiyophil
Tuddu
S.T. 12.08.49Dumka 15.04.82 Clerk in the Office of
S. Madhubani
6.Timothy
Marandi
S.T. 19.04.55Dumka 27.01.83 Clerk in the P.T.E.C.
Ghoghradih
Madhubani
7.Jagnath
Singh
S.T. 16.01.58Ranchi 01.09.84 R.D.E.D. Darbhanga
8.Kumari
Usha Kiran
W.B.C.1 05.06.56Patna 21.05.80 W. Supervisor C.D.P.
Badhara Bhjojpur
9.Bhagwan
Osta
B.C.1 16.07.49Dumka 15.06.81 Office of Dist.
Magistrate, Katihar
10.Radha
Prasad
Verma
B.C.1 30.07.51Palamu 15.01.82 Dis. Magistrate
Purnia
11.Devendra
Thakur
B.C.1 09.03.54Bhojpur 06.08.82 Recommended in
Welfare Department
12.Muneshwa
r Prasad
B.C.1 25.09.52Gaya 06.08.82 Clerk in Sub
Divisional Office
Masaodi
13.Moise
Ansari
B.C.1 05.02.57E.
Champaran
06.08.82 Dist. Magistrate
Gopalganj
14.Ramayan
Choudhary
B.C.1 03.12.55W.
Champaran
07.08.82 Dist. Magistrate W.
Champaran
14
15.Arjun
Mahto
B.C.2 24.01.58Palamu 15.01.82 Welfare Department
16.Arvind
Kumar
B.C.2 02.01.59Ranchi 15.01.82 Recommended on
the post of
accountant welfare
department
17.Krishna
Kumari
B.C.2 30.08.56Vaishali 27.02.82 Welfare Department
18.Raj
Kishore
B.C.2 09.08.59Hazaribagh01.03.82 Recommended on
the post of clerk in
Youth sports art &
cultural depart.
19.Manohar
Ram
Madani
B.C.2 18.07.55Giridih 03.03.82 Clerk in 04 Bihar
Batalian N.C.C.
Bhagalpur
20.Gangadhar
Mandal
B.C.2 10.09.58Dhanbad 05.03.82 Clerk in Office of 23
Bihar Batalian
N.C.C. Bhagalpur
21.Abdula
Kasmi
B.C.2 11.04.55Ranchi 22.03.82 Recommended on
the post of
accountant in
welfare department
22.Sudhir
Kumar
Gupta
B.C.2 31.12.48Bhagalpur 13.04.82 Recommended on
the post of clerk in
Youth Sports Art &
Culture Depart.
23.Om
Prakash
Mandal
B.C.2 24.05.54Deoghar 14.04.82 Recommended on
the post of clerk in
Youth Sports Art &
Culture Depart.
24.Ganesh
Prasad
Umar
B.C.2 02.01.52Deoghar 20.04.82 Recommended on
the post of clerk in
Youth Sports Art &
Culture Depart.
25.Suraj
Prasad
B.C.2 22.06.48E.
Champaran
06.08.82 D.M. W. Champaran
26.Sudha
Rani
Jaiswal
B.C.2 01.08.52E.
Champaran
06.08.82 Recommended on
the post of clerk in
Youth Sports Art &
Culture Depart.
27.Krishna
Kumar
Prasad
B.C.2 08.06.53Gopalganj 06.08.82 Recommended in
Welfare Department
28.Narendra B.C.2 28.01.56Nalanda 06.08.82 Recommended in
15
Dev Welfare Department
29.Dasrath
Singh
Yadav
B.C.2 15.10.57Palamu 26.12.82 Recommended on
the post of clerk in
welfare department
30.Kamal
Kumar
Jaisawal
B.C.2 02.03.61Godda 27.01.83 Welfare department
31.Rama
Mahto
B.C.2 07.07.50Palamu 01.05.83 Welfare department
32.Dilip
Kumar
Maiti
B.C.2 11.04.58E.
Singhbhum
24.08.84 Recommended in
Welfare Department
33.Shoukat
Ara
B.C.2 16.03.48Purnia 02.02.85 Recommended in
Welfare Department
34.Naresh Kr.
Jaiswal
B.C.2 05.01.58Saharsa 18.04.85 Recommended in
Welfare Department
35.Mira
Kumara
General 19.07.50Purnia 05.02.80 Child Development
Office, Purnia
36.Dineshwar
Pathak
General 17.08.54E.
Champaran
11.06.81 D.M. Office Purnia
37.Krishna
Kumar
General 01.08.55Palamu 15.01.82 Youth sports, art &
culture depart.
38.Sharmasip
tansu
Konar
General 01.01.54Dhanbad 27.02.82 I.C.D.S. Social
Welfare Department,
Bihar
39.Vinod
Kumar
General 28.06.53Dhanbad 01.03.82 I.C.D.S. Social
Welfare Department,
Bihar
40.Anand
Singh
Choudhary
General 05.02.58Dhanbad 08.03.82 I.C.D.S. Social
Welfare Department,
Bihar
41.Satish
Kumar
Sinha
General 15.11.55Dhanbad 13.04.82 I.C.D.S. Social
Welfare Department,
Bihar
42.Ajijur
Rahman
General 02.06.50Dumka 19.04.82 D.E.O. Office Munger
43.Nand
Kishore
Mishra
General 01.06.50Dumka 20.04.82 Welfare Department
44.Vimla DeviGeneral 05.06.55Gaya 06.08.82 Collectariate Patna
45.Baliram
Singh
General 13.10.55Gopalganj 06.08.82 Recommended in
Gopalganj
Collectariate
46.Radha
Krisna
Mishra
General 01.05.57Gopalganj 06.08.82 Gopalganj
Collectariate
16
2. In the adjustment, compliance of Reservation roster
shall be mandatory. Retrenched employee shall be
adjusted/appointed against roster point of same category of
reservation to which they belong.
3. Their adjustment shall be deemed new
appointment and on the basis of their service prior to
retrenchment benefit of seniority shall not be
permissible to them but their service prior to
retrenchment shall be calculated for the purpose of
pension.
4. All employees were under the control of Dist. Public
Education Officer/Public Education directorate. So Joining
of all employees should be accepted at their new place only
after receiving No Objection Certificate issued by Dist. Public
Education Officer/Public Education Directorate. The
employees who have made joining in any other department
earlier as result of adjustment, such employees shall
produce No Objection Certificate issued from concerned
Office.
5. After the appointment of aforesaid employees, copy of
appointment letter send immediately to the under signatory,
so that, information should be sent to the Hon’ble High
Court.
6. On finding any kind of discrepancy, inform
immediately, so that, it may be resolved immediately.
Sincerely
Sd./dated 16/03/07
[Dr. Madan Mohan Jha]
Commissioner & Secretary
Memo No.270, Patna Date: 16 March, 2007”
(emphasis supplied)
17
10.This appointment letter reiterated the position that the
appointment/adjustment of the respondents was to be a new
appointment and, on the basis of their service prior to
retrenchment, benefit of seniority would not be permissible to
them but it would be reckoned only for the purpose of
pension. The respondents acted upon the said conditions and
did not challenge the same. The writ petition, however, came
to be filed only in 2013, being CWJC No.22208 of 2013, for the
following reliefs:
“i)To issue an appropriate writ/order/direction in the
nature of Mandamus commanding the respondents to make
payment of salary to the petitioners of the period 1.10.2001
to 3.7.2007 with statutory interest.
ii)To any other relief or reliefs for which the petitioner is
found to be entitled in the facts and circumstances of the
case.”
The respondents sought further relief by way of an
amendment, which reads thus:
“1.(iii). To issue an appropriate writ/order/direction in the
nature of mandamus commanding the Respondents to give
continuity of past services of the Petitioners taking into
account the period 20012007, for the purpose of making
payment of salary to the Petitioners of the said period.”
18
11.The sole basis to buttress the relief as claimed was that
in the case of Smt. Ram Laxmi Mishra Vs. State of Bihar
and Ors.
2
similar reliefs had been granted and the
respondents were similarly placed. The writ petition filed by
the respondents was resisted by the appellants by inter alia
placing reliance on the decision of this Court in the case of
State of Bihar and Ors. Vs. Arun Kumar
3
. According to the
appellants, no relief could be granted to the respondents as
they were appointed as per the policy articulated in
communication dated 20
th
May, 2005 and including the terms
and conditions of appointment noted in the communication
dated 16
th
March, 2007. Inasmuch as, the respondents acted
upon the terms and conditions of fresh appointment without
any demurrer. Further, the case of the respondents was not
similar to the factual matrix involved in the case of Smt. Ram
Laxmi Mishra (supra). In any case, no relief can be granted in
2 Decided on 29
th
August, 2005 in CWJC No.1712/2002 passed by the High Court of
Judicature at Patna.
3 Decided on March 2, 2016 in Civil Appeal No.2433 of 2016 and connected appeals.
19
the fact situation of the present case by invoking Article 14 or
16 of the Constitution of India.
12.Even though the learned Single Judge of the High Court
noted the argument of the appellants that, in a similar case of
Arun Kumar (supra), this Court had refused to grant relief of
backwages, but nevertheless proceeded to answer the matters
in issue by holding that the appellants could not point out the
factual difference between the case of Smt. Ram Laxmi
Mishra (supra) and that of the respondents. Further, the
decision in Smt. Ram Laxmi Mishra (supra) had been
affirmed right up to this Court by dismissal of the Special
Leave Petition being SLP (Civil) No.18429 of 2009 on 24
th
July,
2009. On that basis alone, the writ petition came to be
allowed. Thus, the reliefs claimed in the writ petition were
granted to the respondents by directing the appellants to pay
salary for the period from 1
st
October, 2001 till 3
rd
July, 2007.
20
13.The appellants, therefore, carried the matter in appeal by
way of Letters Patent Appeal No.2307 of 2016 before the
Division Bench of the High Court. The Division Bench also
disposed of the appeal vide impugned judgment and order
dated 15
th
January, 2018, which reads thus:
“Heard counsel for the State, the appellants, as well as
the private respondents.
Since the learned single Judge allowed the writ
application, gave a direction for payment of salary for the
period 01.10.2001 to 03.07.2007 in conformity with a
similar decision passed in the case of Smt. Ram Laxmi
Mishra, which order in turn even upheld by the Division
Bench as well as by the Hon’ble Apex Court. In the interest
of maintaining consistency in identical situation, the learned
single Judge has committed no error in allowing the writ
application and granted direction for payment for the period
indicated above.
We do not find any infirmity in the order. The appeal is
dismissed.”
14.The appellants would contend that the sole basis on
which the High Court granted reliefs to the respondents is
tenuous. For, the factual matrix involved in the case of Smt.
Ram Laxmi Mishra (supra), is inapplicable to the case of the
respondents and moreso, unlike in the case of Smt. Ram
Laxmi Mishra (supra), the respondents not only failed to
21
challenge the termination order passed against them
consequent to abolition of the scheme w.e.f. 1
st
April, 2001 but
also failed to challenge both, the policy of the State articulated
in communication dated 20
th
May, 2005 and the terms and
conditions of the letter of appointment dated 16
th
March, 2007.
Having failed to do so, the respondents were not entitled to
any relief whatsoever. Besides, the cause of action first arose
in 2001, then in May 2005 and again, in March 2007, but the
writ petition seeking relief of backwages for the stated period
came to be filed by the respondents, without challenging the
termination order or the policy, for the first time in the year
2013. In other words, the writ petition filed by the respondents
also suffered from laches. It is then contended that in the case
of Smt. Ram Laxmi Mishra (supra), the High Court directed
reinstatement and, as a consequential relief, ordered payment
of backwages, after setting aside the termination order. In the
present case, there is no challenge against the termination
order or the terms and conditions specified in the appointment
letter dated 16
th
March, 2007, being fresh appointment of the
22
respondents. If it is not a case of reinstatement, the question
of granting backwages for the stated period would not arise.
Moreover, since the respondents had not worked during the
relevant period at all, the principle of ‘no work, no pay’ would
inevitably come into play.
15.The respondents, on the other hand, would contend that
the High Court, while granting relief to the respondents, has
placed reliance on the dictum in the judgment rendered in
Smt. Ram Laxmi Mishra (supra). That judgment has been
upheld by this Court by dismissal of Special Leave Petition
(Civil) No.18429 of 2009 on 24
th
July, 2009. Further, the High
Court while deciding the case of Smt. Ram Laxmi Mishra
(supra) had adverted to the decision of the same High Court in
the case of Binod Kumar Verma
4
, which decision has also
been affirmed by this Court by dismissal of Special Leave
Petition (Civil) No.11560 of 2005 on 16
th
December, 2005.
Reliance has also been placed on the decision of the same
4 Decided on 14
th
February, 2005 in CWJC No.15365 of 2001 passed by the High
Court of Judicature at Patna.
23
High Court in Krishnandan Singh
5
and also on the decisions
rendered in Amar Nath Prasad Karn
6
, Yogi Kamti & Sunil
Kumar
7
and Asgar Ali
8
. The decision in Asgar Ali has been
affirmed by this Court by dismissal of Special Leave Petition
(C) CC Nos.1036110364 of 2014 on 18
th
July, 2014. Further,
the decision of the High Court of Jharkhand at Ranchi in LPA
No.359/2009 dated 10
th
October, 2009 came to be affirmed by
dismissal of SLP (C) No.1377 of 2011 on 2
nd
August, 2013. As
regards the decision of this Court in State of Bihar & Ors.
Vs. Arun Kumar (supra), and connected cases, it is submitted
that the same is distinguishable. According to the
respondents, the appointment of Smt. Ram Laxmi Mishra and
other petitioners who succeeded before the High Court was on
the same terms and conditions consequent to the policy dated
20
th
May, 2005. The respondents submitted that no fault could
5 Decided on 23
rd
May, 2003 in CWJC No.12469 of 2002 passed by the High Court of
Judicature at Patna.
6 Decided on 10
th
July, 2017 in CWJC No.18490 of 2008 passed by the High Court of
Judicature at Patna.
7 Decided on 11
th
July, 2017 in CWJC No.18960 of 2008 and 18993 of 2008 passed by
the High Court of Judicature at Patna.
8 Decided on 4
th
January, 2010 in WPS No.729 of 2004 by the High Court of
Jharkhand.
24
be found with the impugned decision of the High Court for
having followed the decision in Smt. Ram Laxmi Mishra
(supra), which has been upheld by this Court by dismissal of
the concerned Special Leave Petition. It is, therefore, prayed
that the appeal be dismissed, being devoid of merits.
16.We have heard Mr. Ranjit Kumar, learned senior counsel
appearing for the appellants and Mr. Navaniti Prasad Singh,
learned senior counsel appearing for the respondents.
17.The principal issue that arises for consideration is
whether the reliefs as prayed for can be granted to the
respondents, who not only failed to challenge the termination
w.e.f. 1
st
April, 2001 pursuant to the policy decision of the
State Government at the relevant time but also failed to
challenge the latest policy decision of the State Government
noted in communication dated 20
th
May, 2005, regarding
adjustment of the terminated employees on terms and
conditions stipulated thereunder and including the terms and
conditions specified in the appointment letter dated 16
th
25
March, 2007. Neither the single Judge nor the Division Bench
of the High Court has dilated on this aspect at all. The learned
Single Judge mechanically followed the decision in Smt. Ram
Laxmi Mishra (supra). What has been completely glossed over
by the learned Single Judge as well as the Division Bench in
the present case is that the writ petition filed in Smt. Ram
Laxmi Mishra (supra), was to challenge the order of
termination dated 1
st
April, 2001, in which the said petitioner
succeeded in establishing that her initial appointment was in
the Adult Education Scheme and not in the NonFormal
Education Scheme. What weighed with the High Court in that
case was that the closure of the NonFormal Education
Scheme in which the concerned petitioner was working at the
relevant time, would not affect her service condition in the
cadre of Adult Education Scheme. Notably, in Smt. Ram
Laxmi Mishra (supra), the petitioner succeeded in the
challenge to her termination order and it came to be set aside
with consequential reliefs of reinstatement and monetary
benefits, which included backwages for the relevant period.
26
18.In the present case, however, the respondents have
neither challenged the termination order after closure of the
NonFormal Education Scheme w.e.f. 1
st
April, 2001 nor the
policy dated 20
th
May, 2005 under which they have been
appointed or the appointment letter dated 16
th
March, 2007.
Even the appointment letter dated 16
th
March, 2007
unambiguously predicates that the appointment was a fresh
appointment and the past services would be reckoned only for
the purpose of grant of pension and nothing more.
Indisputably, the respondents acted upon such terms and
conditions of appointment without any demurrer. They chose
to file the subject writ petition only in the year 2013, when the
cause of action first arose on 1
st
April, 2001, then on 20
th
May,
2005 and once again, on 16
th
March, 2007. Unless the
respondents are to be reinstated in their previous post (held
prior to 1
st
April, 2001), the question of awarding backwages
would not arise at all. The relief of backwages is and can be
linked only to the order of reinstatement. It cannot be awarded
27
in isolation or, for that matter, during the period when the
respondents were not in employment at all.
19.A fortiori, we have no hesitation in taking the view that
the writ petition filed by the respondents for the stated reliefs
is devoid of merits for more than one reason. First, it suffers
from laches since it came to be filed only in the year 2013.
Second, there is no challenge to the termination w.e.f. 1
st
April,
2001 and including the policy dated 20
th
May, 2005, or to the
terms and conditions of appointment letter dated 16
th
March,
2007. No order of reinstatement could be passed in favour of
the respondents and sans such an order, the respondents
cannot be bestowed with backwages for the period during
which they were not in the employment of the appellants and
also because they did not work during that period. Third, the
scheme in respect of which the respondents were employed on
temporary basis was closed w.e.f. 1
st
April, 2001. No order of
reinstatement could be made much less of backwages for the
period subsequent thereto and until the engagement of the
respondents on 16
th
March, 2007 in a new post. If the scheme
28
in which they were employed has been abolished, by no
stretch of imagination can the court direct payment of back
wages for the period after abolition of the scheme w.e.f. 1
st
April, 2001. Fourth, the principle of ‘no work, no pay’ would
disentitle the respondents from the relief of backwages. Fifth,
the decision in Smt. Ram Laxmi Mishra (supra), is
distinguishable on facts and, in any case, a relief wrongly
granted to the petitioner therein cannot be the basis to grant
similar relief to the respondents herein, which is not in
conformity with the extant regulations or policy, the dismissal
of Special Leave Petition of the State by this Court in that case
notwithstanding. Lastly, the principle underlying the decision
of this Court in State of Bihar and Ors. Vs. Arun Kumar
(supra), would apply proprio vigore to the case of the
respondents.
20.Counsel for the respondents was at pains to point out
that in all other cases of similarly placed persons, relief of
backwages for the relevant period has been granted by the
29
High Court, which has been upheld right up to this Court by
dismissal of Special Leave Petition(s) filed by the State
Government and for that reason, unequal treatment ought not
to be meted out to similarly placed persons. To buttress this
submission, reliance was placed on the decision of this Court
in Ashwani Kumar and Ors. Vs. State of Bihar and
Others,
9
in particular, the dictum in paragraph 18 thereof.
The said paragraph reads thus:
“18.Now is the time for us to take stock of the situation in
the light of our answers to the aforesaid three points. As a
logical corollary to these answers the appeals are liable to be
dismissed as the decision of the High Court is found to be
well sustained. The submission made by the learned counsel
for the appellants to sustain services of these appellants on
humanitarian grounds cannot be countenanced. When 6000
appointees are found to have been illegally loaded on the
State Exchequer by Dr Mallick and when there were only
2250 sanctioned posts, in the absence of clear data as to
who were the senior most and which were the sanctioned
posts available at the relevant time against which they could
be fitted, it would be impossible to undertake even a
jettisoning operation to offload the removable load of excess
employees amounting to 3750 by resorting to any judicial
surgery. Once the source of their recruitment is found to be
tainted all of them have to go by the board. Nor can we say
that benefit can be made available only to 1363
appellants before us as the other employees similarly
circumscribed and who might not have approached the
High Court or this Court earlier and who may be waiting
in the wings would also be entitled to claim similar relief
9 1997 (2) SCC 1
30
against the State which has to give equal treatment to
all of them otherwise it would be held guilty of
discriminatory treatment which could not be
countenanced under Articles 14 and 16(1) of the
Constitution of India. Everything, therefore, must start on
a clean slate. Reliance placed by the learned counsel for the
appellants on the doctrine of tempering justice with mercy
also cannot be pressed in service on the peculiar facts of
these cases as mercy also has to be based on justice. The
decision of this Court in the case of H.C. Puttaswamy
10
also
can be of no assistance to the appellants on the facts of the
present cases as in that case the Chief Justice of the High
Court had full financial powers to create any number of
vacancies on the establishment of the High Court as
required and to fill them up. There was no ceiling on his
such powers. Therefore, the initial entry of the appointees
could not be said to be unauthorised or vitiated or tainted.
The fault that was found was the manner in which after
recruitment they were passed on to the establishments of
subordinate courts. That exercise remained vitiated. But as
the original entries in High Court service were not
unauthorised these candidates/employees were permitted to
be regularised. Such is not the present case. The initial entry
of the employees is itself unauthorised being not against
sanctioned vacancies nor was Dr Mallick entrusted with the
power of creating vacancies or posts for the schemes under
the Tuberculosis Eradication Programme. Consequently the
termination of the services of all these appellants cannot be
found fault with. Nor any relief as claimed by them of
reinstatement with continued service can be made available
to them.”
(emphasis supplied)
21.For the reasons already recorded, the argument under
consideration does not commend to us. As mentioned earlier,
the factual position stated in the decisions in which relief has
10 1991 Supp. (2) SCC 421
31
been given to the petitioners in the concerned petitions is
distinguishable. More importantly, in those petitions, order of
termination was the subject matter of the challenge and,
having set aside the impugned termination, the court granted
consequential relief of reinstatement with backwages to the
concerned petitioner(s). The respondents herein, however, for
reasons best known to them, did not challenge the order of
termination which event had occurred w.e.f. 1
st
April, 2001
consequent to abolition of the scheme in which they were
employed. Taking an overall view of the matter, therefore, the
respondents are not entitled to the reliefs as claimed, having
acted upon the terms and conditions upon which they came to
be engaged vide appointment letter dated 16
th
March, 2007.
22.Accordingly, this appeal must succeed. The impugned
judgment and order passed by the High Court on 15
th
January, 2018 in LPA No.2307 of 2016 is quashed and set
aside. The writ petition filed by the respondents, being Civil
32
Writ Jurisdiction Case No.22208 of 2013, stands dismissed.
The appeal is allowed with no order as to costs.
.....……………………………...J.
(A.M. Khanwilkar)
…..…………………………..….J.
(L. Nageswara Rao)
New Delhi;
October 29, 2018.
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