AI Structured Summary
Not yet generated for this judgment
Judgment
Date : 11-08-2026 Heard the learned Senior Counsel for the petitioner and the learned counsel appearing on behalf of the State.
The present writ petition has been filed for the following reliefs:
“(i)For a direction to the
respondents to consider the name of the petitioner on the post of Auxiliary Nurse Midwifery (A.N.M.in short) from the date of similarly situated person along with petitioner who had been appointed by a competent authority i.e. Civil Surgeon-cum-Chief Medical Officer Madhepura, vide memo no.568 dated 20.04.1994 and grant seniority and other benefits from the initial date of appointment as given to other similarly situated person.
(ii)For a direction to the respondent to grant similar financial benefits, pay scale, increments, as has been given to other similarly situated person appointed along with the petitioner.
(iii)For any other relief or reliefs to which the petitioner may be found entitled to on the facts and the circumstances of this case.”
An Interlocutory Application bearing I.A. No.02 of 2026 was filed for addition of some other prayers. Vide order dated 03.08.2026 passed in this case, I.A. No.02 of 2026 was allowed and the prayers made therein were made part and parcel of the writ petition. The same are quoted hereinbelow:
“IV) for quashing the orders passed by civil surgeon cum chief medical officer, Madhepura, issued vide Memo No. 1692 dated 11.09.2024 sand revised order vide memo no. 2039 dated 28.10.2024, were by and were under, Petitioner has been debarred for his pay when he was out of service on the policy of no work no pay, without considering all the relevant facts and materials.
V) For quashing the order dated 21.03.2025, by the Director in Chief, Health services, Bihar, Patna vide letter No. 6/N-07-69/2024 328(6) dated 21.03.2025 Where by and where under he has affirmed the order of Civil surgeon Madhepura issued vide memo no. 1692, dated 11.09.2024 and memo no, 2039 dated 28.10.2024, also affirmed no work no pay of the period when petitioner was out of service since 31.12.2002 up to 25.10.2011.”
FACTS OF THE CASE
The brief facts, which gave rise to the present writ petition, are that the petitioner, after completion of her training of A.N.M. course, vide Memo No.568 dated 20.04.1994, issued under the signature of the Civil Surgeon-cum-Chief Medical Officer, Madhepura, was appointed as Lady Health Worker against the vacant post of A.N.M. and was posted at Additional Primary Health Centre, Gwalpara, Madhepura. She gave her joining on 21.04.1994. All of a sudden, without issuance of any show-cause notice to the petitioner and other similarly situated employees, vide Memo No.1423 dated 07.11.1994, issued under the signature of the Civil Surgeon-cum-Chief Medical Officer, Madhepura, the services of the petitioner and 12 other persons were terminated on the ground that their appointment was illegal and was made contrary to the government circular and reservation policy. Consequential letter was issued vide Memo No.319 dated 09.11.1994 issued under the signature of the In-charge Medical Officer, Primary Health Centre, Gwalpara. Similarly situated persons namely Samouli Devi and others filed a writ petition bearing C.W.J.C. No.2829 of 1999 and its analogous cases, being aggrieved with the order of termination dated 07.11.1994. The writ petition was heard by a Hon’ble Single Judge of this Court and vide order dated 26.06.2000 the same was disposed of with a direction to the respondents to reinstate the petitioners therein, however it was directed that they will not receive any salary for the intervening period, though the period, while they were forced to remain out of service, shall be counted for all other purposes. In terms of the order dated 26.06.2000 passed in C.W.J.C. No.2829 of 1999 and its analogous cases, the petitioner preferred a representation before the competent authority and the competent authority vide his order contained in Memo No.1258 dated 16.11.2000 directed for reinstatement of the petitioner in terms of order dated 26.06.2000 passed in C.W.J.C. No.2829 of 1999. The petitioner gave her joining on 17.11.2000, however immediately thereafter vide Memo No.798 dated 20.08.2001, issued under the signature of the Civil Surgeon-cum-Chief Medical Officer, Madhepura, the petitioner was issued show-cause that since she was not a party in the writ petition bearing C.W.J.C. No.2829 of 1999 and benefits in terms of the said order has been granted to her, therefore she was directed to file her reply that why her services be not terminated. The petitioner submitted her reply to the said show-cause notice dated 20.08.2001, however vide Letter No.1456 dated 31.12.2002, issued under the signature of the Civil Surgeon-cum-Chief Medical Officer, Madhepura, the services of the petitioner was terminated. Being aggrieved with the order of termination dated 31.12.2002, the petitioner preferred C.W.J.C. No.6565 of 2008 and the same was allowed vide order dated 26.11.2009 passed by a Hon’ble Single Judge of this Court, whereby the enquiry report, by which the services of the petitioner was put in the illegal category, was set aside and the respondents were directed to treat the appointment of the petitioner as an irregular appointment and allow her similar benefit, which was allowed to such employees of the Health Department. It was directed that the petitioner be reinstated. So far the consequential benefits relating to salary for the intervening period is concerned, it was observed that the authority will consider and decide it in accordance with law. The State of Bihar preferred L.P.A. No.1666 of 2010 against the order dated 26.11.2009 passed in C.W.J.C. No.6565 of 2008. The L.P.A. filed by the State of Bihar was dismissed by a Hon’ble Division Bench of this Court vide order dated 21.07.2011. The State of Bihar preferred Special Leave to Appeal (Civil) No.17795/2013 before the Hon’ble Supreme Court of India. Vide order dated 08.10.2013 passed by the Hon’ble Supreme Court of India, the appeal of the State of Bihar was dismissed on the ground of delay as well as on merit. It is further case of the petitioner that during pendency of the appeal before the Hon’ble Supreme Court of India, vide Memo No.1754 dated 24.10.2011, issued under the signature of the Civil Surgeon-cum-Chief Medical Officer, Madhepura, the petitioner was reinstated in service, subject to the result of the appeal filed by the State of Bihar, before the Hon’ble Supreme Court of India. After dismissal of the appeal filed by the State of Bihar, the petitioner filed a representation before the Civil Surgeon-cum-Chief Medical Officer, Madhepura with a prayer to grant her salary for the period, during which she was illegally terminated and to grant similar benefits, which was accorded to similarly situated persons, who were terminated along with the petitioner on 07.11.1994. When no decision was taken on the representation filed by the petitioner, she was constrained to file the present writ petition. During pendency of the writ petition, vide order contained in Memo No.1692 dated 11.09.2024, issued under the signature of the Civil Surgeon-cum-Chief Medical Officer, Madhepura, the salary for the period, during which the petitioner is said to have been illegally terminated, was refused on the ground of no work no pay and it was further observed that since the petitioner has already filed a writ petition bearing C.W.J.C. No.15052 of 2014, further decision will abide by the decision given by this Hon’ble Court in the writ petition. It further appears that vide Letter No.328(6) dated 21.03.2025, issued under the signature of the Director-in-Chief, Health Services, Bihar, Patna addressed to the Civil Surgeon, Madhepura, the Director-in-Chief, Health Services, Bihar, Patna gave his approval with regard to non-payment of any salary to the petitioner for the period under termination i.e. 31.12.2002 to 25.10.2011 on the principles of no work no pay.
SUBMISSIONS ON BEHALF OF THE PETITIONER
The learned Senior Counsel for the petitioner submits that similarly situated employees, who were terminated along with the petitioner by the same impugned letter dated 07.11.1994, moved before this Hon’ble Court by filing writ petition and their writ petition was allowed by a Hon’ble Single Judge of this Court vide order dated 26.06.2000, they have been permitted to join, pursuant to the said order and are continuously discharging their duties, however they were not directed to be paid any salary and the period, for which they were forced to remain out of service, was directed to be counted for grant of other benefits. He submits that in terms of the said order, the petitioner was also reinstated, however on account of illegal order passed by the Civil Surgeon-cum-Chief Medical Officer on 31.12.2002, the petitioner was again terminated. The learned Senior Counsel for the petitioner submits that the said illegal termination order was assailed by the petitioner by filing writ petition bearing C.W.J.C. No.6565 of 2008 and the termination order of the petitioner was set aside, however liberty was given to the respondent authorities to decide in accordance with law with regard to payment of salary for the intervening period i.e. 31.12.2002 till reinstatement of the petitioner dated 24.10.2011. He submits that even the appeal preferred by the State before the Hon’ble Division Bench and the Hon’ble Supreme Court of India was dismissed, therefore the petitioner is entitled for payment of her entire salary for the period, during which she was illegally forced to not perform her duties. He submits that the termination of the petitioner was found to be illegal by this Hon’ble Court and therefore she was directed to be reinstated, then there is no justification in denying the salary to the petitioner for the said period. He further submits that since similarly situated employees were reinstated, pursuant to the order dated 26.06.2000 passed by a Hon’ble Single Judge of this Court and they continuously performed their duties and have been paid their respective salary, the petitioner is also entitled for the same relief, which has been denied to her.
The learned Senior Counsel for the petitioner to justify the claim of the petitioner for payment of salary refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in (2013) 10 SCC 324 (Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) & Ors.), wherein in paragraph no.22, the Hon’ble Supreme Court of India has held as follows:
“22.The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter’s source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.”
The learned Senior Counsel for the petitioner further refers to and relies upon a judgment of the Hon’ble Co-ordinate Bench of this Court reported in 2008 (4) PLJR 118 (Madan Paswan & Ors. vs. The State of Bihar & Ors.), wherein in paragraph nos.9 and 10 it has been held as follows:
“9.This Court can do no better than to quote from the relevant extract of paragraph 29 of the judgment of the Hon’ble Supreme Court reported in (2006)2 Supreme Court Cases 747, (State of Karnataka and Others vs. C. Lalitha).
29.“Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the Court that would not mean that persons similarly situated should be treated differently”….
10.To the same effect is the observation of the Supreme Court in paragraph-16 of the judgment reported in (2006)9 Supreme Court Cases 406 (K.T. Veerappa and Others vs. State of Karnataka and Others):-
16.“The defence of the State Government that as the appellants were not the petitioners in the writ petition filed by 23 employees of the respondent-University to whom the benefit of revised pay scales was granted by the Court, the appellants are estopped from raising their claim of revised pay scales in the year 1992-94, is wholly unjustified, patently irrational, arbitrary and discriminatory. As noticed in the earlier part of this judgment, revised pay scales were given to those 23 employees in the year 1991 when the contempt proceedings were initiated against the Vice-Chancellor and the Registrar of the University of Mysore. The benefits having been given to 23 employees of the University in compliance with the decision dated 21.6.1989 recorded by the learned Single Judge in WPs Nos. 21487-506 of 1982, it was expected that without resorting to any of the methods the other employees identically placed, including the appellants, would have been given the same benefits, which would have avoided not only unnecessary litigation but also the movement of files and papers which only waste public time.””
The learned Senior Counsel for the petitioner further refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in (2006) 2 SCC 747 (State of Karnataka & Ors. vs. C. Lalitha), wherein in paragraph nos.29 and 32 it has been held as follows:
“29.Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to.
32.Justice demands that a person should not be allowed to derive any undue advantage over other employees. The concept of justice is that one should get what is due to him or her in law. The concept of justice cannot be stretched so as to cause heart-burning to more meritorious candidates. Moreover, at the end of the day, the respondent has got what could be given to her in law. As of now, she had already been enjoying a higher scale of pay than what she would have got if she was to join the post of Assistant Controller. We, therefore, are of the opinion that interest of justice would be subserved if she is allowed to continue in her post and direct the appellant to consider her seniority in the administrative service in terms of the order of this Court dated 15-3-1994 that she would be the last in the seniority list of the appointees in the post of Category I Assistant Commissioner (Karnataka Administrative Service).”
The learned Senior Counsel for the petitioner further refers to and relies upon a Hon’ble Full Bench judgment of this Hon’ble Court reported in 2018 (2) PLJR 929 (Amresh Kumar Singh vs. The State of Bihar & Ors.), wherein in paragraph nos.8 to 11 it has been held as follows:
“8.We are conscious of the law laid down in the case of Uma Devi (supra) and various other legal issues that are involved in the matter, but the fact remains that in the cases of thirty employees who were dealt with under similar circumstances, not only similar, but under identical situations, twenty-eight employees, by virtue of the orders passed in the writ petitions and L.P.A's. have been reinstated and it is only two persons who are litigating the matter. The Bihar State Litigation Policy, 2011, as indicated hereinabove, mandates that all similarly situated employees should be granted the benefit of covered matters and if orders of the Court have been implemented in case of certain litigants, it should be implemented in respect of all other identically situated persons. If the State Litigation Policy is to be implemented, we have no hesitation in holding that the present respondents should also be dealt with in identical fashion i.e. respondent Surendra Prasad Mahto @ Surendra Pd. Mahto in L.P.A. No.1509 of 2009 and the appellant Amarish Kumar Singh in L.P.A. No.1028 of 2007 in identical situation and once on 21.4.2011 a Division Bench of this Court in all other cases has granted benefit to the employees, there is no reason to go into the legal questions involved in the matter and answer them when we find that in the cases of twenty-eight employees the benefit has been granted to them by virtue of the orders passed by this Court.
9.Accordingly, we are of the considered view that the legal question referred for consideration and the tenability or otherwise of the orders passed on 20th of January, 2008 in L.P.A. No.799 of 2007 and the order passed on 21.4.2011 in L.P.A. No.1470 of 2009 and other cases need not be gone into now in these two cases.
10.The legal questions are kept open, to be considered in any appropriate case, but taking note of the fact that under identical situations employees, more than twenty-eight in number, have been granted the benefit, we dismiss the L.P.A. filed by the State Government i.e. L.P.A. No.1509 of 2009, allow the L.P.A. filed by the appellant Amarish Kumar Singh, i.e. L.P.A. No.1028 of 2007, in view of the findings recorded on 20th of January, 2008 in L.P.A. No.779 of 2007 and on 21.4.2011 in L.P.A. No.1471 of 2009, quash the order passed by the learned Writ Court in C.W.J.C. No.7493 of 2000 and direct that both Amarish Kumar Singh and Surendra Prasad Mahto @ Surendra Pd. Mahto should be dealt with in identical fashion as has been done in the cases of twenty-eight persons who have been reinstated in service vide order dated 19.8.2011. The issue with regard to applicability of the orders passed on 21.4.2011 in L.P.A. No.1471 of 2009 and on 20th of January, 2008 in L.P.A. No.799 of 2007 to other employees apart from the thirty employees involved in the matter is kept open, to be considered as and when required in accordance with law and it is made clear that the orders passed by this Court on 21.4.2011 in L.P.A. No.1471 of 2011 and on 20th of January, 2008 in L.P.A. No.779 of 2007 will not be treated as a precedent for the purpose of its applicability to any other employees other than the thirty employees involved in the matter. The State Government will have liberty to challenge the orders passed in these L.P.A's. with respect to any other employee except these thirty employees.
11.Accordingly, L.P.A. No.1028 of 2007 is allowed. Order passed in C.W.J.C. No.7493 of 2000 quashed and Amarish Kumar Singh is directed to be reinstated and granted the benefit as has been granted to the twenty-eight employees by virtue of the order passed on 19.8.2011 by the State Government. Similarly L.P.A. No.1509 of 2009 is dismissed. The order passed by the learned Writ Court is upheld and the respondent Surendra Prasad Mahto @ Surendra Pd. Mahto is also directed to be granted the benefit of the order dated 19.8.2011 passed by the State Government.”
SUBMISSIONS ON BEHALF OF THE STATE
Per contra, the learned counsel appearing on behalf of the State would submit that the Hon’ble Single Judge, while allowing the writ petition filed by similarly situated employees being C.W.J.C. No.2829 of 1999 and its analogous cases, while directing for reinstatement of the petitioners therein, clarified that they will not be entitled for any salary for the intervening period, though the period, during which they were forced to remain out of service, shall be counted for all practical purposes. In terms of the order dated 06.06.2000 passed by the Hon’ble Supreme Court of India, the same principle will apply in the case of the petitioner and she will not be entitled for any salary for the intervening period, however she will be entitled for all the benefits of her past service for all practical purpose. He further submits that since the petitioner was not a party in the writ petition, her service was terminated, after giving due opportunity to file her reply to the show-cause notice. He submits that while dismissing the petitioner vide order dated 31.12.2002, the principles of natural justice was followed and after passing of the order dated 26.11.2009 by the Hon’ble Single Judge of this Court in C.W.J.C. No.6565 of 2008, the petitioner was again reinstated in service on 24.10.2011. He submits that since the petitioner did not work for the intervening period, the salary has been denied to her on the principles of no work no pay and there is no infirmity in the order passed by the respondent authorities denying the salary to the petitioner for the intervening period.
CONCLUSION / CONSIDERATION
Having heard the learned counsel for the parties and after going through the records, it appears that the petitioner, along with others was appointed on 20.04.1994. She gave her joining and started performing her duties, however, all of a sudden, without any show-cause notice, the services of the petitioner and others were dispensed with vide order dated 07.11.1994. Some of the persons, whose services were dispensed with along with the petitioner, preferred writ petition bearing C.W.J.C. No.2829 of 1999. The said writ petition was heard along with some other cases and a Hon’ble Single Judge of this Hon’ble Court vide order dated 26.06.2000 allowed the writ petition by holding that all the petitioners of C.W.J.C. No.2829 of 1999 stands reinstated, however, it was directed that for the intervening period they would not be paid any salary and further they would be entitled for counting their past services for all practical purposes. In terms of the said order, the petitioner also gave a representation before the authorities concerned, since the petitioner was also terminated by the same impugned order, which was set aside by order dated 26.06.2000 by a Hon’ble Single Judge of this Court. On the representation filed by the petitioner, the Civil Surgeon-cum-Chief Medical Officer by his order dated 16.11.2000 reinstated the petitioner in the services of the State Government and was posted to perform her duties. All of a sudden, a show-cause notice was issued to the petitioner on 20.08.2001, whereby she was asked to file her reply that why her services be not terminated, since she was not a party in C.W.J.C. No.2829 of 1999. The petitioner submitted her reply to the said show-cause notice dated 20.08.2001, however vide Letter No.1456 dated 31.12.2002, issued under the signature of the Civil Surgeon-cum-Chief Medical Officer, Madhepura, the services of the petitioner was terminated. The petitioner assailed the said order by filing writ petition bearing C.W.J.C. No.6565 of 2008. The writ petition filed by the petitioner was allowed vide order dated 26.11.2009 passed by a Hon’ble Single Judge of this Court and the petitioner was directed to be reinstated in service. So far the consequential benefits for the intervening period i.e. 31.12.2002 till the reinstatement of the petitioner, was directed to be considered by the respondent authorities in accordance with law. The State of Bihar preferred Letters Patent Appeal before this Hon’ble Court, however, the same was dismissed vide order dated 21.07.2011. After dismissal of the Letters Patent Appeal, the petitioner was reinstated in service vide Memo No.1754 dated 24.10.2011 issued under the signature of the Civil Surgeon-cum-Chief Medical Officer, Madhepura. The State of Bihar preferred Special Leave to Appeal (Civil) No.17795/2013 against the order dated 21.07.2011 passed in L.P.A. No.1666 of 2010 before the Hon’ble Supreme Court of India. Finally the appeal preferred by the State of Bihar was dismissed vide order dated 08.10.2013 passed by the Hon’ble Supreme Court of India. When the appeal preferred by the State of Bihar was dismissed by the Hon’ble Supreme Court of India, the petitioner filed a representation before the authorities concerned on 23.11.2013, for payment of salary for the intervening period i.e. 31.12.2002 till 24.10.2011 i.e. the date on which the petitioner was reinstated in service. The authorities concerned slept over the matter, therefore, the petitioner preferred the present writ petition. During pendency of the present writ petition, the claim of the petitioner has been rejected by the Civil Surgeon-cum-Chief Medical Officer by his order dated 11.09.2024 and the same has been approved by the Director-in-Chief, Health Services by order dated 21.03.2025.
From the pleadings on record, it appears that the case of the petitioner was similar to the case of the petitioners of C.W.J.C. No.2829 of 1999 and she was rightly reinstated in service after passing of the order dated 26.06.2000, however, on erroneous consideration, for the reasons best known to the authorities concerned, the petitioner was terminated from service by the Civil Surgeon-cum-Chief Medical Officer, Madhepura on 31.12.2002. The said order was set aside by a Hon’ble Single Judge of this Hon’ble Court and finally the State of Bihar lost the battle against the said order up to the Hon’ble Supreme Court of India. Left with no other option, the petitioner was reinstated in service by the Civil Surgeon-cum-Chief Medical Officer, Madhepura vide Memo No.1754 dated 24.10.2011. Now the only question which remains for consideration of this Court is the back wages for the period, during which the petitioner was kept out of service by the respondents. The law with regard to payment of back wages of an employee, who remained under termination on account of the laches on the part of the authorities concerned has gone a lot of change. The Hon’ble Supreme Court of India in the case of Deepali Gundu Surwase (supra) in paragraph no.22 has clearly held that if the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages, including the emoluments.
In view of the law laid down by the Hon’ble Supreme Court of India in the case of Deepali Gundu Surwase (supra), in the considered opinion of this Court, the order contained in Memo No.1692 dated 11.09.2024 issued under the signature of the Civil Surgeon-cum-Chief Medical Officer, Madhepura, Memo No.2039 dated 28.10.2024 issued under the signature of the Civil Surgeon-cum-Chief Medical Officer, Madhepura and Letter No.328(6) dated 21.03.2025 issued under the signature of the Director-in-Chief, Health Services, Government of Bihar, Patna deserve to be set aside and are accordingly, set aside. The petitioner is held entitled for payment of salary for the period 31.12.2002 till 24.10.2011. The entire salary must be paid to the petitioner by the respondent authorities within a period of four months from the date of receipt/production of a copy of the order. The petitioner would further be entitled for counting her entire service for granting service related benefits, including any other benefits, for which she is entitled.
With the aforementioned observations and directions, the writ petition is allowed.
Pending application(s), if any, shall also stand disposed of.