The state cannot benefit from its own default and deny wages to an employee wrongfully terminated.

Navaniti Prasad Singh, J.

1. Heard the parties and perused the writ petition and the counter affidavit.

2. The petitioner has come to this Court claiming payment of salary for the period 13.09.1994 to 10.02.1997 as a trained Assistant Teacher. The facts are not in dispute. Pursuant to advertisement issued on 09.05.1991, for appointments of Assistant Teachers for which there were about 25000 posts available, petitioner applied. Petitioner sat in the preliminary test as held by the Bihar Public Service Commission on 09.09.1993. The main examination was held on 29.05.1994, which the petitioner cleared. Thereafter, on recommendation of Bihar Public Service Commission petitioner#25;s appointment letter was issued on 30.08.1994. Accordingly, petitioner was posted and he joined on 13.09.1994 and started discharging his duties at the Primary School, Kewra, Poonpoon.

3. It appears that on 21.10.1994 petitioner was informed that the he was restrained from marking attendance and it was also told that the recommendation of the Bihar Public Service Commission in favour of the petitioner stood withdrawn. Accordingly, petitioner was stopped from performing her duties and was virtually treated as retrenched. Petitioner was formally communicated the order on 07.02.1995. Petitioner thereafter filed writ petition being C.W.J.C. No. 2574 of 1995 for setting aside the stay orders. The writ petition was heard and disposed of on 3rd May, 1996. The order of this Court is Annexure-4. This Court clearly held that in similar cases earlier Court had held awarding marks for training to B.Ed. and M.Ed. students was rightly done by Bihar Public Service Commission, it had wrongly been withdrawn and appointments cancelled. Accordingly, Court directed the B.P.S.C. to reconsider the matter by awarding marks and if petitioner re-qualifies reappoint her. Consequently, petitioner was permitted to join on 24.02.1997. Neither these facts nor these dates are in dispute.

4. Petitioner claims that petitioner was regularly appointed and performing her work till she was wrongly terminated/retrenched with effect from 13.09.1994 and restrained from performing her duties till her rejoining on 10.02.1997. Petitioner not being at fault and her termination/retrenchment having held to be bad she was entitled to her remuneration for the said period.

5. On behalf of the State, a contra stand is that she was admittedly retrenched on 13.09.1994 and it was only pursuant to order of this Court that she joined again on 10.02.1997 and, as such, on principles of no work no pay she is not entitled to claim any wages.

6. In my view, the plea of the State is much too wide of the mark. What State wants to do is to take advantage of its own default. It firstly wrongly terminated the service of the petitioner. The termination is held to be wrong by this Court and thereafter she is permitted to rejoin. In my view, it is not open to the State to turn around to say that even though I have committed a default your right is lost. In this connection, all I can do is refer to Chief Justice Chagla in the case of All India Groundnut Syndicate Limited v. Commissioner of Income Tax, Bombay City AIR 1954 Bom 232: But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under Sub-section (2) of Section 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income Tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because #28;I have committed a default and the right is lost because of that default.

7. Thus, having wrongly deprived the opportunity of petitioner to serve a