Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15795 of 2013 ====================================================== Jagdeo Roy S/O Late Ayoddhya Roy Resident Of Village- Bhograjpur Dashara, P.S.- Patori, District- Samastipur .... .... Petitioner Versus 1. The State Of Bihar Through The Director, Primary Education, Bihar, Patna 2. The Regional Deputy Director Of Education, Darbhanga 3. The District Magistrate, Samastipur 4. The District Education Establishment Committee, Through Its Secretary, The District Programme Officer (Establishment), Samastipur 5. The District Education Officer, Samastipur 6. The Block Education Extension Officer, Mohiuddin Nagar, District- Samastipur .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Sunil Kumar Thakur, Adv For the Respondent/s : Mr. Tej Bahadur Singh AAG-7 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 20-08-2013 Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows:-
Legal Reasoning
"commanding and directing the respondent authorities to make payment of the arrears of salary to the petitioner with statutory interest thereon after re-fixing the salary of the petitioner modifying his First Time Bound Promotion, which has been paid/given to the similarly situated teachers;" Learned counsel for the petitioner has submitted that when the petitioner was initially appointed on 16.10.1973 as Science teacher, he was given only stipend 2 of Rs. 150 per month and subsequently he was given the prescribed pay scale of the post of Science teacher w.e.f 12.12.1975 and therefore, now when the petitioner has already retired from service and persons like him have also been paid their salary in the prescribed pay scale of Science teacher ever since the date of their first appointment on stipend, this Court should also direct for payment of salary to the petitioner for the period from 16.10.1973 to 12.12.1975. In this regard, reliance has been placed by him on an office order dated 09.12.2005 in case where three similarly situated teachers, namely, Ram Udit Choudhary, Baidyanath Pathak and Ramashish Rai have been granted matric trained pay scale.
Legal Reasoning
Learned counsel for the State on the other hand has raised a preliminary objection as with regard to maintainability of the writ application as in respect of the cause of action of the year 1975. According to him, this writ application filed by the petitioner after his retirement as with regard to the cause of action of the year 1973 to 3 1975 cannot be entertained only on the ground of unexplained delay of almost 40 years. Learned counsel for the petitioner in reply has submitted that on account of grant of such personal relief to the petitioner, no one is going to be adversely affected nor the petitioner is going to claim any seniority for any other purpose and in fact would be satisfied if the salary for the aforementioned period is paid to him which may only enable him to claim also time bound promotion because in that event his time bound promotion will become admissible from 1983, which may lead to enhancement of his retirement benefits. In the considered opinion of this Court, such prayer of the petitioner cannot be allowed for more than one reason. Firstly, the petitioner has not brought on record either his initial appointment letter by which his appointment was made only on stipend basis nor has he also brought on record the subsequent order by which he was granted benefit of the Science teacher in the year 4 1975. As is well known the post under the EIP Scheme had initially contained the clause of appointment on fixed stipend and the salary in the pay scale became payable only when such post became permanent post in the cadre. Had the petitioner raised this issue at an appropriate point of time in the year 1973-75, the respondents could have been easily compelled to also produce those records but after a gap of 40 years even the respondents cannot be expected to retain such records of the initial appointment of the petitioner and the grant of stipend and pay scale. It is this aspect of the matter, where the delay becomes fatal. If such practice is encouraged by this Court that anyone can be allowed to claim salary for any period because there is no limitation prescribed for filing of the writ petition, it would really lead to out and out abuse of the process of the Court. As a matter of fact, Apex Court in the case of Union of India v. Tarsem Singh reported in (2008) 8 SCC 648, the Apex Court had deprecated the practice of 5 the High Courts in entertaining such writ petition, wherein, it has been held as follows:- 7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of thirds parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition. 8. In this case, the delay of sixteen years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to sixteen years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances”. In the background of the law laid down by the Apex Court in the case of Tarsem Singh (supra) when it is found that the petitioner actually wants his arrear of pay from 1973 and his grant of first time bound promotion from 1983 whereas this writ application has been filed on 6 14.08.2013 after the petitioner has already retired on 31.07.2010 and has also got his entire retirement benefits. Thus, if the restriction of period of three years as laid down in the case of the Tarsem Singh (supra) is applied in the case of the petitioner, that would also revert back only to the date of 14.08.2010 and on that date too the petitioner had already retired with all his due claim settled and paid. Thus this writ application must fail only on the ground of delay and laches. It is, accordingly, dismissed. (Mihir Kumar Jha, J) A.Ahmad/Ranjan