SHIV NANDAN MAHTOversusSTATE OF BIHAR & ORS.

                         [2013] 8 S.C.R. 62                            -
A                      SHIV NANDAN MAHTO
                                 v.
                     STATE OF BIHAR & ORS.
                  (Civil Appeal No. 5306 of 2013)
                            JULY 8, 2013
B
    [SURINDER SINGH NIJJAR AND RANJAN GOGOi, JJ.]

        Service Law:

c        Back wages - Appointment as a clerk - In a school -
    During an inspection, name of the appellant inadvertently
    shown as 'Librarian' - School taken-over by State - Services
    of the appellant not taken-over, because the post of 'Librarian'
    was not approved - On representation, directions by the
    competent authority to adjust the appellant against the post
D
    of clerk in a school - Due to lack of vacancy, was not posted
    in any school - Writ petition seeking reinstatement and
    consequential benefits - Single Judge of High Court though
    directed his reinstatement with continuity of service, but
    denied remuneration for the period when he had not worked -
E
    Order of Single Judge confirmed in writ appeal, by Division
    Bench of High Court - Held: The appellant was entitled to full
    back wages for the period, he was illegally kept out of service,
    due to a mistake - Direction to pay the entire full backwages
    from the period, he was kept out of service till reinstatement
F   with 9% interest.

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    5306 of 2013.

        From the Judgment and Order dated 03.08.2011 of the
G                                                                      <\
    High Court of Judicature at Patna in LP.A. Bo. 1859 of 2010.

         Dinesh Chandra Pandey for the Appellant.
                                                                        j
H                                  62
~'
        SHIV NANDAN MAHTO v. STATE OF BIHAR & ORS.                63


            Chandan Kumar (for Gopal Singh) for the Respondents.       A

            The following order of the Court was delivered
                                   ORDER

            1. We have heard learned counsel for the parties.          B

            2. Leave granted.

             3. The appellant was appointed against a permanent post
        of Clerk in the Raj Kishore Balika High School, Narhan,
        Samastipur, Bihar on 31.12.1978. He joined on the said post c
        on 1.1.1979. Subsequently, the aforesaid school was granted
        permission by the Directorate of Secondary Education vide
        office memo No. 31346 dated 19.11.1981 for establishment
        of the aforesaid school. The school was inspected by the
        special Board on 6.8.1982. In the inspection report, the name D
        of the appellant was inadvertently/wrongly shown as a Librarian.
        On coming to know of the aforesaid wrong entry, the appellant
        submitted a representation before the Directorate of Secondary
  _,    Education seeking correction thereof. On 1.5.1983, the
        inspection committee submitted its report and confirmed that E
        the appellant had been working as a clerk since the very
        beginning in the aforesaid school. The school was taken over
        by the Government of Bihar on 2.8.1983 in terms of the
        provisions of Section 3 of the Bihar Non-Government
        Secondary Schools (Taking Over of Management and Control) F
        Act, 1981. The services of the appellant were not taken over,
        as his name was wrongly shown against the post of Librarian,
        which post was not approved. Aggrieved by the action of the
        respondent, the appellant submitted a representation before
        the Director, Secondary Education, Patna on 17.11.1983 and G
  ,J~   the Director issued directions to adjust the appellant against
        the post of Clerk in a school in the aforesaid District. On
        3.2.1984, the Director, Secondary Education, Patna directed
        the posting of the appellant as Clerk in the High School, Virhan,
..,..                                                                  H
     64       SUPREME COURT REPORTS                [2013) 8 S.C R


A.   Madhubani upon transfer of another teacher. However, it later
     transpires that there was no vacancy on the post of Clerk in the
     District. Therefore, directions were issued to adjust the
     appellant as and when vacancy is available. Since there was
     no post of Clerk in the High School Virhan, Madhubani, the
B    appellant was made to join the office of the District Education
     Officer, Virhan with effect from 3.3.1984 and allotted duties and
     work in the aforesaid office. Subsequently, directions were
     issued to post the appellant as a Clerk in a different school. It
     appears that due to lack of vacancy, the appellant was not
C    posted in any school for some time. The appellant again
     protested to the Director for not being given posting orders on
     the post of Clerk. It appears that the appellant was made a
     rolling stone for long period of time being shunted from school
     to school in an effort to locate a vacancy for him. In the
     meantime, the appellant had not received any salary from any
0
     source. Ultimately, the appellant moved the High Court by way
     of Civil Writ Petition No. 516 of 1990 with a prayer seeking
     reinstatement and consequential benefits.

          4. The learned single Judge of the High Court, upon
     noticing the entire fact situation, accepted the plea of the
     appellant that he had been duly appointed as Clerk and wrongly
     shown as a Librarian. Consequently, directions were issued to
     reinstate the appellant forthwith. It was also noticed that the
     removal of the appellant from service was not for any fault of
     his. He was also directed to be given the benefit of continuity
     of service and other benefits. However, surprisingly, the learned
     single Judge directed that he will not be entitled to any
     remuneration for the period when he was not in service on the
     ground that he had not worked. The respondent did not
     challenge the finding of fact recorded by the learned single
     Judge. In fact, it was the appellant who challenged the judgment
     of the learned single Judge on the ground that he ought to have
     been granted full backwages for the period he had been kept
     out of service. The appeal was dismissed by the High Court in
     limine with the following observations :-
·'    SHIV NANDAN MAHTO v. STATE OF BIHAR & ORS.                         65


                "Upon hearing learned counsel for the appellant, we            A
          dismiss this appeal for the reasons that it is settled law
          that no work no pay. Therefore, learned single Judge is
          correct in not ordering for salary during which the appellant
          was under suspension.
                                                                               B
                However, since reinstatement of the appellant, he
          shall be paid salary regularly as directed by the learned
          single Judge."

          5. Having heard learned counsel for the parties, we are
     constrained to observe that the High Court failed to examine              C
     the matter in detail in declining the relief to the appellant. In fact,
     a perusal of the aforesaid short order passed by the Division
     Bench would clearly show that the High Court had not even
     acquainted itself with the fact that the appellant was kept out
     of service due to a mistake. He was not kept out of service on            D
     account of suspension, as wrongly recorded by the High Court.
     The conclusion is, therefore, obvious that the appellant could
     not have been denied the benefit of backwages on the ground
     that he had not worked for the period when he was illegally kept
     out of service. In our opinion, the appellant was entitled to be          E
     paid full backwages for the period he was kept out of service.

          6. Consequently, the appeal is allowed. The order passed
     by the Division Bench is quashed and set aside. The appellant
     has already been reinstated in service. The respondents are,
                                                                               F
     however, directed to pay to the appellant the entire full
     backwages from the period he was kept out of service till
     reinstatement. The full backwages shall be paid to the appellant
     with 9% interest. Let the amount be paid to the appellant within
     a period of three months from the date of receipt of copy of
     thiso~er.                                                                 G
·'
     K.K.T.                                             Appeal allowed.