ORDER
I.A. No. 1512 of 2003
1. This is a petition for condoning the delay of 16 days in filing the appeal. This is opposed. But having heard both sides, we are satisfied that sufficient cause has been made out for condoning the delay. This petition is, therefore, allowed.
L.P.A. No. 227 of 2003
2. When the matter came up for admission, Respondent No. 1, the contesting respondent, had appeared. Counsel for Respondent No. 2 was also present, With the consent of the parties, both sides were heard and this appeal is being disposed of finally by this judgment.
3. The first respondent was working on daily wages from 6.5.1987. That appointment was terminated. The first respondent whereupon filed C.W.J.C. No. 1297 of 1990 (R) before this Court. This Court found that the original appointment was illegal and without jurisdiction, since the authority, who had made the appointment, was not’ competent to do so. Thus the writ petition filed by the first respondent was found to be without merit and the first respondent was found to have no legal right to obtain any relief. But considering the circumstances available in the case, it was observed that if the first respondent filed a representation before the Director of Industries bringing to his notice the circumstances in which the order of appointment was passed and the other relevant facts, the matter of approval of appointment of the first respondent or for issuing a fresh order of her appointment may be considered by the Director of Industries ex-peditiously. The first respondent was not given any relief on the basis of her representation. She, therefore, again approached the Patna High Court with C.W.J.C. No. 3089 of 1997 (R). The Court proceeding on the basis that the case of the first respondent was covered by an earlier decision rendered by the Court, issued the following direction:–
In this case of the aforesaid decision this writ application is allowed and the concerned respondent/respondent Nos. 1 and 3 are directed to give same treatment to the petitioner as was given to the similar situated persons and issue fresh letter of appointment. The entire formalities shall be completed by the respondents within a period of two months from the date of receipt of a copy of this order.”
Pursuant to this direction, the first respondent was given a letter of appointment, Annexure-2, whereunder the Director of Industries passed an order to the effect that the order passed by the Deputy Commissioner on 16.11.1988 appointing the respondent was being approved. This order was passed on 9.7.1999.
4. The first respondent claimed that she was entitled to salary from 17.4.1990, the day next after the order of termination dated 16.4.1990 was passed originally and which was not set aside by the earlier Division Bench. She approached this Court with a writ petition, being C.W.J.C. No. 3709 of 2001, claiming the issue of a direction for payment of her salary for the period from 17.4.1990 to 12.8.1999. This Court without going into the merits, remitted the matter to the General Manager, District Industries Centre, Lohardaga, to decide the issue within a period of two months and to pay the admitted dues, if found payable, within two month from the date of such decision. On 8.10.2001, the first respondent was informed by Annexure-10 to the writ petition, that she was appointed only by an order dated 9.7.1999 and it was not a case where appointment was made on 17.4.1990 and in the order of appointment there was no direction to pay her any salary for the period claimed by her and in that context, she was not entitled to any salary prior to he fresh appointment and joining the service on 13.8.1999. Being aggrieved by this communication, the first respondent approached this Court with the present writ petition, W.P. (S) No. 3389 of 2002.
5. Apparently, the case of the first respondent was forwarded on the wording of the order dated 9.7.1999, which had referred to the earlier order of the Deputy commissioner, Lohardaga dated 16.1.1988. According to the first respondent, it was a case of her being regularised in service with effect from 16.11.1988 and, therefore, she was entitled to salary from 17.4.1990 as claimed by her. This claim was resisted by the appellants by pointing out that the termination order dated 16.4.1990 had been upheld by a Division Bench in C.W.J.C. No. 1297 of 1990 and that by the subsequent judgment in C.W.J.C. No. 3089 of 1997. what was directed was only to give her a fresh appointment treating her as similarly situated to certain other persons, whose cases were covered by two other judgments. It was, therefore, submitted that nothing turns on the wording of the order dated 9.7.1999, relied on by the respondent, and consistent with the judgment of this Court the order can be understood only as a fresh order of appointment on 9.7.1999 and the first respondent having joined service pursuant thereto on 13.9.1990, was entitled to salary only from that date in terms of Rule 58 of Bihar Service Code.
6. The learned Single Judge after simply . referring to the judgment in C.W.J.C. No. 3089 of 1997 (R) and without even referring to the judgment in C.W.J.C, No. 1297 of 1990, the earlier judgment upholding the order of termination dated 16.4.1990, ordered that the first respondent be paid her salary for the period from 17.4.1990 to 12.8.1999.
7. Challenging this decision, learned counsel for the appellants contended that the termination of the first respondent on 16.4.1990, was found valid by the Division Bench of this Court and that the direction was only to consider the representation made by the first respondent. Counsel further pointed out that in the subsequent judgment in C.W.J.C. No. 3089 of 1977, the learned Judge had directed that equal treatment be given to the first respondent, as given in the cases of the petitioners in C.W.J.C. Nos. 6619 of 1991 and 5383 of 1995 and to issue a fresh letter of appointment. Counsel, therefore, submitted that the letter of appointment dated 9.7.1999 has to be understood to be consistent with the directions of this Court and so the concerned authority felt no difficulty in coming to the conclusion that the first respondent would be entitled to salary only from the date of joining duty pursuant to the letter of appointment dated 9.7.1999. Counsel also submitted that the direction of the learned Judge was totally unjust, since what has been directed to be paid was salary for the period during which the first respondent had not rendered any service or done any work.
8. These contentions are sought to be met by counsel for the first respondent by pointing out that the termination of the first respondent on 16.4.1990 was itself bad in law and it was really a clash of egos between the Deputy Commissioner and the Director of Industries. He, therefore, submitted that the first respondent should not suffer the consequences of such a conflict. He further submitted that the order dated 9.7.1999 has referred to regularisation of the original order dated 16.11.1988 and if properly understood, it must be taken that the services of the first respondent continued uninterrupted and she would be entitled to the salary for the period in question, whether she had worked or not, since she was denied the opportunity to work by the illegal acts of the appellants.
9. We think that the order or letter dated 9.7.1999 has to be understood only in the context of the decision in C.W.J.C. Nos. 1297/90 and 3089/90. The letter cannot be divorced from the directions in those judgments. Earlier, the Division Bench upheld the order dated 16.4.1990 finding that the authority, who allegedly appointed the first respondent had no jurisdiction to make the appointment at all. Thereafter, the first respondent was given an opportunity to make a representation before the Director of Industries. That rep-resentation did not yield any immediate fruit and the first respondent again approached this Court in C.W.J.C. No. 3089 of 1997. This Court directed the Authorities to give the first respondent the same treatment as was given to other similarly situated persons and directed the issue of a “fresh letter of appointment”. Therefore, the letter dated 9.7.1999, understood in the light of these two judgments, makes it clear that the first respondent was appointed afresh or regularly only with effect from 9.7.1999. Pursuant to that, the first respondent joined service on 13.8.1999 in terms of Rule 58 of the Bihar Service Code. The first respondent was, therefore, entitled to salary only from 13.8.1999 and nor for any prior period. The learned Single Judge, in our view, had no kept in mind the effect of the decisions in C.W.J.C. Nos. 1297/90 and 3089/90 and thereby has erred in directing the appellants to pay salary for a period prior to 13.8.1999.
10. For the reasons stated above, we are constrained to interfere with the decision of the learned Single Judge, We, therefore, allow this appeal and setting aside the decision of the learned Single Judge, dismiss the writ petition filed by the first respondent, clarifying that she will be entitled to salary only with effect from 13.8.1999. We make no order as to costs.