D.G.R. Patnaik, J.
1. Heard.
2. The prayer of the petitioners in this writ application is now confined to the relief for directing the respondents to pay them the salary with effect from 16.05.2001, till the date when they were absorbed in service.
Initially the main prayer of the petitioners was for issuance of a direction upon the respondents to absorb them in service. During the pendency of this writ application, the petitioners have been absorbed in service under the respondents but their claim for salary for the period from 16.05.2001 till the date of their absorption, has been refused on the ground that the petitioners did not work during the aforesaid period and therefore on the principle of 'no work no pay', they are not entitled to claim salary for the said period.
3. Learned Counsel for the respondents submits that at the time of their absorption, it was clearly mentioned to the petitioners that their absorption in service in the various departments of the State Government was by way of a fresh appointment and they would not be entitled to claim for salary for the period prior to the date of their appointment.
4. Relying upon the judgement of this Court in the case of Bhubneswar Mahto v. State of Jharkhand vide W.P. (S) No. 4751 of 2003 learned Counsel for the petitioners on the other hand explains that the petitioners, like several other similarly situated employees were initially employed in the Non-formal Education Project under the Education Department. On the ground that the Mass Education Project of the State Government under which the petitioners were appointed, was closed pursuant to the withdrawal of the scheme by the Central Government, a notification to this effect was published declaring that the employees under the Mass Education Project, are surplus employees. After making such declarations, the concerned authorities of the State Government did not take the services of the petitioners nor paid their salary ever since after 16.05.2001.
5. The matter was referred to this Court in Bhubneswar Mahto's case in which, upon considering the facts, this Court had observed that the writ petitioners were admittedly working since long but after closure of the Nonformal Education Project, the employees who were earlier engaged, were not retrenched and the authority concerned did not take any work from such employees. There being no latches on the part of the employees, the respondents cannot deny the salary to such employees.
Learned Counsel adds further that the facts of the present case are identical to the facts in Bhubneswar Mahto's case and though the State Government has now absorbed the petitioners in service in the various departments but, the salary of the petitioners from 16.05.2001 till the date of their absorption, has not been paid to them.
6. From the rival submissions, the admitted facts are that the petitioners were initially appointed in the Adult Education Project on the post of Adult Education Supervisors. They had continuously worked for more than two decades without any break.
It also appears that subsequently the State Government had taken a decision to absorb all such surplus employees of the Non-formal Education Project in its various departments and pursuant to which, the details of all such surplus regular employees were obtained and they were absorbed in service under the State Government.
7. It further appears that the objection to the petitioners claim for payment of salary for the period 16.05.2001 till the date of their absorption on the ground that the petitioners are not entitled to salary on the principle of 'no work no pay', was also taken by the respondent State Government in the case of Bhubneswar Mahto. This Court on considering the facts of the case, had observed that in absence of any order of retrenchment of the employees working under the Non-formal Education Project, the failure of the authorities concerned to take any work from such employees, would not deprive the salary to the employees for the period when they were kept idle, and the principle of 'no work no pay' will not apply. It was also observed that there being no latches on the part of the employees, the respondents cannot deny the salary to the employees.
8. It does appear that the facts of the present case are one and the same as in the case of Bhubneswar Mahto (Supra) and therefore the ratio decided in Bhubneswar Mahto's case squarely applies to the facts of the present case. The contention of the learned Counsel for the respondents that the absorption of the petitioners has to be treated as a fresh appointment, as indicated in the letters of appointments issued to the petitioners respectively, cannot be accepted in view of the fact that the petitioners cannot be given any differential treatment other than what has been given by the State Government to other similarly situated employees.
The other contention of the learned Counsel for the respondents is that in absence of any pleadings on behalf of the petitioners that during the entire period, after the closure of the Non-formal Education Project, till the date of their absorption, they were not gainfully employed and therefore no order for payment of back wages/salary can be passed against the respondents.
This argument also does not appeal to reason in view of the fact that admittedly, the services of the petitioners were never terminated by way of any formal order of termination/retrenchment. On the contrary, the petitioners had all along been offering their services but it was the concerned authorities of the State Government who had not taken work from them.
9. Considering the aforesaid facts, the respondent State Government is therefore duty bound to pay salary to the petitioners since, after the date of abolition of the Non-formal Education Project, the petitioners were not retrenched and yet, the concerned authorities of the State Government did not take any work from them, without there being any latches on the part of the petitioners.
10. In the facts and circumstances, this writ application is allowed. The respondents are directed to pay the petitioners their salary for the period from 16.05.2001 till the date of their absorption in service, within two months from the date of receipt/production of a copy of this order, failing which the amount payable shall carry interest @ 5% per annum, calculated from the date of expiry of the stipulated period of two months till the date of final payment.
With these observations, this writ application is disposed of.
Let a copy of this order be given to the counsel for the respondent State.