Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7240 of 2013 ====================================================== Girisha Nand Roy, son of late Harihar Roy, Resident of Village Manikpur, P.S. Simari, Dist. Buxar and at present Vishnu Nagar, Bazar Samiti, Ara (Bhojur), retired at Lower Division Clerk from the office of Anoupcharik Shiksha Pariyojana Khusharupur, Dist. Patna. .... .... Petitioner Versus 1. The State Of Bihar through Commissioner cum Secretary, Secondary, Primary and Adult Education, Bihar, Patna. 2. The Commissioner cum Secretary, Secondary, Primary and Adult Education, Bihar, Patna. 3. The Deputy Secretary, Secondary, Primary and Adult Education, Bihar, Patna. 4. The Director, Jan Shiksha Pariyojana, Patna. 5. The Director, Jan Shiksha Officer, Dist. Patna. 6. The Joint Secretary, Finance Department, Govt. of Bihar, Patna. 7. The Director, N.C.C. Directorate, Bihar, Patna. .... .... Respondents ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 09-05-2013
Legal Reasoning
Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows:- “1(I) To direct and command the respondents to grant First and Second Time Bound Promotion as well as Assured Career Progression with consequential benefits to the petitioner who remained in service for last 35 years and though entitled for the benefits of promotion aforesaid during the tenure of service.” Learned counsel for the petitioner has submitted that the petitioner who had entered in service on 14.1.1975 had superannuated on 31.7.2001 and till the date of retirement, he was not given the benefit of either of the two time bound promotions. Patna High Court CWJC No.7240 of 2013 (2) dt.09-05-2013 2/6 He has further submitted that when the ACP Rules came into force in the year 2003, the petitioner also became entitled for grant of ACP because such ACP had become admissible from the year 1999. According to the learned counsel for the petitioner, the cause of action of the year 1985 when the first time bound promotion became due to the petitioner or the second time bound promotion became due in the year January, 2000 cannot be denied to him only on the ground of delay in filing of this writ application. He has also submitted that so far the ACP is concerned, as the scheme itself had come after the retirement, there would be no question of any delay for the petitioner in claiming the aforesaid relief. In this regard, reliance has also been placed by the learned counsel for the petitioner on a Division Bench judgment in the case of Amrendra Kumar Singh Vs. The State of Bihar & Ors. reported in 2008(4)PLJR 592. Learned counsel for the State on the other hand has submitted that any person including a pensioner whenever he would move court of law for claiming a monetary relief, he must approach within a reasonable period because even if the writ jurisdiction is not circumscribed by the law of limitation, the delay by itself can be a factor on which a person can become disentitled for getting such relief. He has further submitted that it is not that Patna High Court CWJC No.7240 of 2013 (2) dt.09-05-2013 3/6 the petitioner is an illiterate person or was not aware of his rights inasmuch as, if there was some delay in payment of his retirement benefit, he had moved this Court by filing a writ application in the year 2004 being CWJC No. 10173 of 2004 and, therefore, if the petitioner for the belated cause of action of the year 1985, 2000 and 2003 has filed this writ application after a lapse of ten to twenty-eight years, the writ application has to be dismissed only on the ground of delay and laches. In this regard, he has also invited attention of this Court towards the first representation. As per the petitioner himself, he had filed representation for the aforesaid relief of time bound promotion and/or ACP in the year 2007 followed by another one in the year 2012 which would go to show that the petitioner has not remained vigilant to his cause. In the considered opinion of this Court, the submission of the learned counsel for the State has to be upheld. The time bound promotion was a creation of the Finance Department Resolution dated 30.12.1981 entitling every person to get first time bound promotion on completion of ten years and second one after 25 years. The petitioner who had come in service in the year January 1975 itself became entitled for the first time bound promotion in January, 1985 but that relief is now being sought in Patna High Court CWJC No.7240 of 2013 (2) dt.09-05-2013 4/6 this writ application which has been filed in the year 2013. The unexplained delay of twenty-eight years, therefore would stares on the face of the petitioner. This Court is also not informed by the petitioner as to whether his case was ever considered for first time bound promotion or as to whether the petitioner had passed the departmental examination. In fact, if the service record of the petitioner as stated in paragraph no.3 is correct that he had already got the benefit of the higher pay-scale on completion of 13 years of service by the year 1979 and thus was not entitled for grant of first time bound promotion because the scheme dated 30.12.1981 which very categorically required that a person should not get either promotion or higher pay-scale beyond which one was appointed. Thus, the claim of the petitioner for first time bound promotion even otherwise is not sustainable. Similar analogy in fact will apply for the petitioner in getting the second time bound promotion because the petitioner had already got the benefit of higher pay-scale in the year 1979 and, therefore, if his services were to be counted from the year 1975 when he was brought in the zone of regular establishment, the period of twenty-five years service to be reckoned from the year 1975 will be in the year 2000 by which period the second Patna High Court CWJC No.7240 of 2013 (2) dt.09-05-2013 5/6 time bound promotion had already been abolished. In fact, the second time bound promotion got abolished on 31.12.1995 and no one is entitled to get second time bound promotion on or after 1.1.1996. That being so, this Court would find no merit at all in the claim of the time bound promotion as claimed by the petitioner. Reverting back to the claim of ACP, this Court must hold that since the scheme came after the retirement of the petitioner and he had not claimed it till 2012 before filing of this writ application on 5.4.2013, he will be entitled for the benefit of ACP so far it relates to giving him the benefit in enhancement of his retirement benefit but he will not be entitled for any arrear because he has moved this Court on 5.4.2013 i.e. after ten years of the framing of the ACP Rules 2003. Thus, the respondents are hereby directed to only consider the petitioner’s eligibility of ACP and if he is found entitled for such ACP, his Last Pay should be revised by adding the ACP benefit so that the petitioner’s monthly pension can get revised. It is, however, made clear that neither the petitioner will be entitled for grant of any arrear of pay nor pension or retirement benefit and he will be only getting the financial benefit Patna High Court CWJC No.7240 of 2013 (2) dt.09-05-2013 6/6 of enhancement of the monthly pension by way of grant of benefit of ACP from the date of this order. With the aforementioned observations and direction,
Decision
this application is disposed of. (Mihir Kumar Jha, J) Rishi/-