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Hon’ble Justice L Nageswara Rao and Hon'ble Justice Hemant Gupta of Supreme Court in the recent matter of The State of Bihar and Ors v. Devendra Sharma passed a Judgement that where the appointment to public posts is found illegal, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise.
The case pertains to an illegal appointment made against class III or class IV posts in the Health Department in Government of Bihar. Court observes that "Right to salary stricto sensu springs from a legal right to validly hold the post for which salary is claimed. It is a right consequential to a valid appointment to such post.” Rejecting a submission made by employees that they have been working for many years, some for more than 25 years, and therefore, the humanitarian view should be taken to set aside the order of termination and regularize their services to make them entitled to pension and other retirement benefits.
Court refers to the full bench Judgement of Patna High Court in Rita Mishra & Ors v. Director, Primary Education Bihar and Ors[1], said:
“Right to salary stricto sensu springs from a legal right to validly hold the post for which salary is claimed. It is a right consequential to a valid appointment to such post. Therefore, where the very root is non-existent, there cannot subsist a branch thereof in the shape of a claim to salary. The rights to salary, pension and other service benefits are entirely statutory in public service. Therefore, these rights, including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non-existing in the eye of the law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise.”
The court allowed the petition.
[1] AIR 1988 PHC 26
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