Bijay Kumar Sinha And ANR v. The State Of Bihar And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Letters Patent Appeal No.511 of 2015 Arising out of Civil Writ Jurisdiction Case No. 17140 of 2011 Along with Interlocutory Application No.2291 of 2015 ===========================================================

1. Bijay Kumar Sinha, son of Late Binda Lal Srivastava, resident of village- Saheb Tola, Bihiyan, P.O. + P.S.- Bihiyan in tha district of Bhojpur.

2. Sudhir Kumar Keshari, son of Late Ram Chandra Prasad, resident of MohallaMaulabagh, Ara, P.S.- Ara Nawada in the district of Bhojpur. .... .... Petitioners -Appellants

Versus

1. The State of Bihar through the Principal Secretary, Department of Health, Government of Bihar, Patna.

2. The Director-in-Chief, Health Services, Government of Bihar, Patna.

3. The Regional Deputy Director, Health Services, Patna Division, Patna.

4. The Civil Surgeon- cum- Chief Medical Officer, Bhojpur at Ara.

5. The District Leprosy Officer, Bhojpur at Ara. .... .... Respondents- Respondents =========================================================== Appearance :

For the Appellants :

Mr. Sunil Kumar, Advocate For the Respondents :

Mr. Hari Shankar Roy, A.C. to P.A.A.G.

=========================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT GUPTA And HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE HEMANT GUPTA) Date: 20-05-2016 Re.: Interlocutory Application No.2291 of 2015 The application is for condonation of delay of 132 days in filing of the present appeal.

For the reasons mentioned in the application, we find that sufficient cause is shown by the appellants to condone such delay. Consequently, the delay in filing of the present Letters Patent Appeal is

Patna High Court LPA No.511 of 2015 dt.20-05-2016 2/3 condoned.

Interlocutory Application stands allowed accordingly. Re.: Letters Patent Appeal No.511 of 2015 The challenge in the present Letters Patent Appeal is to an order passed by the learned Single Bench of this Court on 10th July, 2014 in CWJC No.17140 of 2011 whereby the claim of the appellants for payment of salary from the date of termination till the date of reinstatement remained unsuccessful.

The services of the appellants were terminated in the year 2003 for the reason that initial appointments were illegal. The writ petitions were allowed, but in Letters Patent Appeal, the matter was referred to a five- member Committee to look into the merits of all the similarly situated candidates. The five-member Committee grouped the persons in three categories on the basis of nature of their initial appointment, i.e., irregular, illegal and forged. The appointments of the appellants were found to be irregular and consequently the appellants were reinstated in service. While reinstating the appellants, there was specific condition that the appellants shall not be paid any salary for the period between the dates of termination till the date of their joining. Challenge to the said order has remained unsuccessful in view of Full Bench judgment reported as Malti Kumari Versus The State of Bihar & Ors., 2013 (2) PLJR 677.

Patna High Court LPA No.511 of 2015 dt.20-05-2016 3/3 We have heard learned counsel for the parties and find no cause for interference in the appeal. The Full Bench judgment reported as Malti Kumari's case (Supra) held as under: "We find considerable force in the submission on behalf of the State that the petitioner cannot blow hot and cold simultaneously. It is a settled principle of law that a person cannot retain the benefit of a part of the order and simultaneously challenge another part of the same order.

Once the direction to be considered afresh for regularisation was accepted and the subsequent order of regularization from September 2007 has not been challenged but accepted without demur by joining in September 2007 it is impermissible for her to question the very order for regularisation by seeking salary for the period prior to regularisation. The fact that the earlier period may have been counted by fiction for purposes of pension only cannot lay the foundation for a relief factually impossible. If regularisation has been done subsequently and accepted, the question of wrongly being denied the right to work for the interregnum period does not arise. The principle of "No work no pay‟ therefore applies."

In view of the aforesaid Full Bench judgment, the present Letters Patent Appeal is dismissed.

(Hemant Gupta, J.) (Ahsanuddin Amanullah, J.) Sunil/- AFR/NAFR CAV DATE N. A Uploading Date 20.05.2016 Transmission Date