Prayer of the petitioner in this writ application is limited. He prays for a direction to the respondents to pay him salary of the period during which he was out of service on account of his termination with effect from 6.9.2003 and till 20.9.2007 when he was reinstated in service and regularized.

Facts in short are that the petitioner was appointed as Pharmacist by order dated 12.5.1987, vide Annexure-2, and posted at District Referral Hospital, Shahpur, Bhojpur. By Annexure-3 dated 25.7.1998 his services were confirmed. However, by Annexure-4 dated 6.9.2003, his services were terminated on the ground that his appointment was illegal. This order was challenged in this Court in C.W.J.C.No.10037 of 2003. The said writ application was ultimately heard by a Division Bench along with L.P.A.No.946 of 2003 and other similar cases and disposed of by order dated 26.6.2006 directing the respondents to constitute a High Level Committee for consideration of cases of all the writ petitioners in the light of Constitution Bench Judgment of the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi [2006(2) PLJR 363(SC)]. Cases of the petitioner and others were thereafter considered and were only found irregular and not illegal as per the parameters laid down by the said Constitution Bench. Hence, by order of the Director, Health Services contained in Memo No.1117(4) dated 20.9.2007, vide Annexure-5, he was reinstated and posted in the same Referral Hospital. However, with this order, a condition was imposed that the incumbents would not be entitled for the salary of the intervening period on the Principle of “No Work No Pay”, but the same would be counted for the purposes of pensionary benefits. Petitioner is aggrieved by this condition.

Learned counsel for the petitioner submits that the petitioner was put out of service by the respondents without any rhyme or reason and without any act on his part. He was all the time ready to work but had been prevented by the respondents due to which he had to come to this Court. Finally, in view of the law laid down by the Constitution Bench, his case was found irregular and not illegal. In the circumstances, in terms of the Constitution Bench Judgment, his services were restored and regularized. As such, petitioner was entitled for salary of the intervening period. He also refers to one judgment of a Division Bench which dismissed the appeal of the State, as contained in Annexure-6, in the similar circumstances. Annexure-7 is the order of the Director, whereby writ petitioner of that case was allowed salary of retrenched period. He also places reliance on another judgment of the Apex Court in the case of Burn Standard Company Ltd. Vs. Tarun Kumar Chakraborty [(2002) 10 SCC 585]. In the said judgment, the Apex Court, on facts, held that the period of absence of the respondent would be divided into two parts and for second part, in which there was no reason for him not to be allowed to join, he was entitled for full salary. Another judgment relied upon by learned counsel for the petitioner is also of the Apex Court in the case of Hardwari Lal Vs. State of U.P. & Ors. [(1999) 8 SCC 582]. In this case, the Apex Court found that there was no proper enquiry pursuant to which appellant had been dismissed which order was set aside by the Tribunal and affirmed by the High Court. Hence, considering the long lapse of time, Apex Court allowed 50% salary to the appellant.

A counter affidavit has been filed by the respondents in this case in which they have taken a stand that the petitioner had not worked during the period and thus he was not entitled for salary on the Principle of “No Work No Pay” and particularly when his appointment was found irregular.

Having heard learned counsel for the parties and having perused the materials available on record and judgments of this Court and the Apex Court relied upon by learned counsel for the petitioner, this Court finds that the petitioner was termin