Prava Kumari v. The State Of Bihar & Ors.

Heard learned Counsel for the appellant and the State. The present appeal arises from the order dated 10.1.2013 dismissing the claim for arrears of salary in CWJC No. 18341 of 2010 for the period 25.10.1991 to 12.5.1995. Learned Counsel for the appellant submits that the impugned order is not reasoned and does not reflect appreciation of the facts and the arguments made in support of the claim. It simply declines jurisdiction on grounds of delay. The writ jurisdiction being discretionary, mere delay cannot defeat a rightful claim unless there be a question for accrual of third Patna High Court LPA No.193 of 2013 (2) dt.26-02-2013 2 party rights. If arrears of salary are granted no third person is prejudiced. Reliance is placed on AIR 1970 SC 898 (M/s. Tilokchand Motichand and others v. H. B. Munshi, Commissioner of Sales Tax, Bombay and another), AIR 1974 SC 259 (Ram Chandra Shanker Deodhar V. State of Maharastra) and 1992 (2) PLJR (SC) 5 (M/s. Dehri Rohtas Light Railway Company Limited, Appellant v. District Board, Bhojpur and others). Counsel for the State has opposed the application and supported the impugned order. The appellant claims that after selection and registration as Auxillary Nurse Midwifery she joined and started discharge of duties on

1.11.1989. Termination followed on 25.5.1990 leading to reinstatement pursuant to CWJC No. 11316 of 1994. She resumed duties on 13.5.1995 and has been drawing her salary regularly. The claim for salary is for the period that she was wrongly kept out of duty. We have gone through the order in CWJC No. 11316 of 1994 of 1994 disposed on 20.11.1995. It follows an earlier order dated 3.10.1994 in CWJC No. 5410 of 1992.The writ petitions were not allowed on merits. Directions were given to consider the case of the petitioners afresh against existing vacancies in accordance with law. No directions were given regarding payment of salary or consideration of the same. The only explanation given by the petitioners for moving the Court after reinstatement for salary fifteen years later is that they were pursuing the matter by way of representations. Additionally reliance for parity in treatment is based on an order dated 6.9.2007 passed in CWJC No. 9021 of 2000 granting relief for arrears of salary relying on certain similar orders passed in writ petitions filed in the year 1998 – 1999 noticed in the order. If the appellants were terminated for any reason in 1990 and Patna High Court LPA No.193 of 2013 (2) dt.26-02-2013 3 obtained orders from this Court in 1995 for consideration of their claims, it was for them to have been more cautious and obtained appropriate directions simultaneously for the manner in which the period in interregnum was to be treated. We find that their termination order were not set aside as being invalid in law. The direction was for afresh consideration of their candidature. Those who move the Court in time and those who do not do so, form separate class under Article 14 and delay by itself is sufficient ground to deny relief on parity. If the termination was done in 1990 and consideration directed in 1995 those who came in 1998/1999 or in 2000 fall in a separate category of vigilant litigants while the appellant falls in the category of an indolent litigant sufficient to distinguish her. In (2009) 15 SCC 32 (Ghulam Rasool Lone v. State of Jammu and Kashmir) it has been held has follows:- “13. The Court in a given case may be inclined to pass similar order as has been done in the earlier case on the basis of equality or otherwise. The discretionary jurisdiction under Article 226 of the Constitution may, however, be denied on the ground of delay and laches.” In (1997) 11 SCC 13 (Jai Dev Gupta v. State of H.P.) setting aside the order of the Tribunal in a claim for salary fifteen years later on the reasoning of having made representation it was observed at paragraph 2 in back wages “2. Learned counsel appearing for the appellant submitted that before approaching the Tribunal the appellant was making a number of representations to the appropriate authorities claiming the relief and that was the reason for not approaching the Tribunal earlier than May 1989. We do not think that such an excuse can be advanced to claim the difference In Administrator of Union Territory of Daman and Diu v. R.D. Valand this Court while setting aside an order of the Central Administrative Tribunal has observed that the Tribunal was not justified in putting the clock back by more than 15 years and the Tribunal fell into patent error in brushing aside the question of limitation by observing that the respondent has been making representations from time to time and as such the limitation would not come in his way. In the light of the the year 1971. Patna High Court LPA No.193 of 2013 (2) dt.26-02-2013 4 above decision, we cannot entertain the arguments of the learned counsel for the appellant that the difference in back wages should be paid right from the year 1971….” A claim for salary is a statutory right subject to due performance of duties. If the Government servant has not performed duties, the principle of “No work no pay” will arise, unless the Court arrives at a conclusion of rank illegality in the termination and issues specific direction for reinstatement along with arrears of salary. Presently such is not the case. If salary is a statutory right tantamounting to a money claim the law of limitation will apply and it had to be raised within three years from the date of cause of action by reinstatement. If that right has stood extinguished attributable to the lapse of the appellant herself she cannot be permitted to circumvent that remedy and by invoking the extra ordinary remedy under Article 226 of the Constitution. In (2010) 12 SCC 538 (State of Madhya Pradesh v. Yogendra Shrivastava the distinction between denial of a claim for arrears of salary and it being a continuing wrong amenable to relief for last three years only was considered at paragraph 18 as follows: “18. We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of in accordance with Patna High Court LPA No.193 of 2013 (2) dt.26-02-2013 5 the original application.” Presently such is not the case.The clock stops in the year

1998. The remedy under Article 226 being discretionary in nature, there is no statutory rule to reject a writ application on grounds of delay. It is therefore a practice by discretion adopted by the Court and which therefore necessarily has to depend on the facts of each case for the manner of discretion as also pointed out in the judgements relied upon on behalf of the appellant. In fairness to the appellant we must consider each of the judgements cited. In M/s. Tilokchand Motichand (supra) discretion came to be exercised on the facts of the case and it was observed at paragraph 10 as follows:- “10…..…In India I will only say that each case will have to be considered on its own facts. Where there is appearance of avoidable delay and this delay affects the merits of the claim, this Court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction.” In Ramchandra Shankar Deodhar (supra) the explanation given for the delay in the background of change in the rules after reorganisation of the State was held at paragraph 9 as follows:- “9………….The petitioners were, therefore, justified in proceeding on the assumption that there were no unified rules of recruitment to the posts of Deputy Collector and the promotions that were being made by the State Government were only provisional, to be regularised when unified rules of recruitment were made. It was only when the petition in Kapoor's case was decided by the Bombay High Court that the petitioners came to know that it was the case of the State Government in that petition - and that case was accepted by the Bombay High Court…..” Patna High Court LPA No.193 of 2013 (2) dt.26-02-2013 6 In M/s. Dehri Rohtas Light Railway Company Limited, (supra) as apparent from paragraph 12 the Court entertained the claim satisfied that the demand by the respondent was apparently without any authority of law. case. None of the cases have application in the facts of the present We find no merit in the appeal. It is dismissed. (Navin Sinha, J) (Shivaji Pandey, J) Snkumar/-