IN THE HIGH COURT OF JUDICATURE AT
PATNA
Civil Writ Jurisdiction Case No.5898 of 2009
Dr.Ram Raj Ram
Versus
The State Of Bihar & Ors
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For the Petitioner : Mr.Deo Govind Prasad, Advocate
For the State : AAG XI with Mr. Ujjawal Kumar Sinha,
AC to AAG XI
For the Accountant General: Mr. Binod Kumar Labh, SC, A & A.D.
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5. 25.08.2011 Heard learned Counsel for the parties.
I.A. No. 5701 of 2011 has been filed stating that the original writ
petitioner has been deceased on 19.9.2009 during pendency of the
application. His legal heirs as mentioned in para 2 thereof desire to be
substituted.
Having heard Counsel for the parties and keeping in mind that
the claims in the writ petition has financial implications for the family of
the deceased the I.A. application is allowed. The legal heirs are
permitted to be substituted in place of the original now deceased writ
petitioner.
Learned Counsel for the petitioner submits that the deceased
while in service was promoted to the post of Director, Animal
Husbandry, on 9.1.1996 with effect from 11.1.1984. He is therefore
entitled to the arrears of salary of the promotional post from the date of
promotion. He relies upon a judgment of the Supreme Court in (2002)
1 Supreme 364 (Food Corporation of India Vs S. N. Nagarkar).
Counsel for the State submits that the promotion order dated
9.1.1996 itself states that the financial benefits of the promotion with
retrospective effect may be given only after approval of the
Department of Finance. The Finance Department approved such
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promotion with effect from 1.1.1996 only. The petitioner was
suspended on 26.2.1996 and continued under suspension till his
superannuation on 30.4.2003. The departmental proceedings initiated
during his service tenure have resulted in orders of punishment under
Rule 43 (b) of the Bihar Pension Rules withholding full pension and
gratuity. An additional objection of delay has been raised that
monetary relief is claimed on basis of an order dated 9.1.1996 in a writ
petition filed in the year 2009.
Learned Counsel for the petitioner submits that the final order
of punishment under Rule 43 (b) of the Bihar Pension Rules has been
challenged in another writ petition. Explaining the delay it is submitted
that the cause of action accrued only when the Department of Finance
finally took a decision on 1.9.2003 and again on 4.4.2006 granting the
arrears of the promotional post to his juniors with effect from 1.1.1996.
Till such decision was taken there was no occasion for the petitioner to
approach the Court on a mere apprehension.
In this application the Court is not concerned with the final
orders of punishment under Rule 43 (b) of the Pension Rules. The only
issue for consideration is the claim for arrears of salary on the
promotional post from the date of promotion i.e. 11.1.1984.The counter
affidavit filed by the State respondents misdirects itself by dealing only
with the issue of his suspension and the final orders under Rule 43 (b).
It is completely silent with regard to the assertion of the petitioner for
arrears of salary of the promotional post from the date of retrospective
promotion.
A separate counter affidavit has been filed on behalf of the
Accountant General. Para 3 of the same states that a letter had been
written to the Secretary, Animal and Fisheries Resources Department
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(Animal Husbandry), Bihar, with regard to the order of retrospective
promotion issued in favour of the petitioner but no response had been
received from the State Government. It is unfortunate that the
respondents do not answer the pleadings in the writ petition and do not
respond to the queries of the Accountant General also. Perhaps they
need to be reminded that it is their constitutional obligation to assist the
Court in dispensation of justice.
The claim for arrears of salary is based on an order dated
9.1.1996.There is no explanation in the writ petition why the petitioner
took no steps for enforcing his claim for arrears of salary from 9.1.1996
till he instituted the present writ application in 2009.The relief that he
claims today with effect from 1984 was well available to him in January
1996 on the very same ground which he today urges from the
judgment of S. N. Nagarkar (Supra), more particularly para 16 of the
same. But a judgment cannot be read in isolation by merely culling out
ratio of the case devoid of the facts of the case. In that case promotion
was granted in November 1989 with retrospective effect. The writ
petition was filed in 1993. In the present case the writ petition has been
filed 13 years later. The Court cannot remain unmindful of the sudden
financial burden that it shall impose on the State by directing payment
of the arrears in a lump sum specially when the petitioner has not been
able to demonstrate what steps he took to enforce his rights for these
13 long years. The Court could have considered granting him that
relief from three years prior to the institution of the writ application
relying on the decision in (2010) 12 SCC 538 (State of Madhya
Pradesh v. Yogendra Shrivastava) when the claim for arrears was
objected on the ground of delay of 15 years and it was held at
paragraph 12 as follows:-
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“18…..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 the
original application.”
But that relief cannot be granted to the petitioner as he came to
be suspended before that and is therefore not entitled to his salary.
.The contention that the cause of action accrued only in 2003
or 2006 when the Finance Department issued a notification granting
the arrears to his juniors from 1.1.1996 and not with retrospective
effect does not appeal to the Court. The cause of action for arrears of
salary from 1984 was individual to the petitioner if he was aggrieved by
the decision of the respondents postponing retrospective payment or
to consider granting it prospectively only. He cannot be permitted to
indulge in fence sitting awaiting any decision with regard to others to
then found a cause of action for himself.
The reliance by the petitioner on (2009) 1 Supreme 546 (Er.
Gurucharan Singh Grewal Vrs Punjab Electricity Board) to submit that
no junior can be granted a pay scale higher than a senior and
therefore the petitioner is entitled to his arrears of salary is of no avail
for him. It is apparent from the facts in para 3 of the judgment that it
was a fight inter se between two individuals for fixation of pay scale.
Such is not the case presently.
In conclusion the Court finds it difficult to grant any relief to the
petitioner for any arrears of pay on the post of Director from 11.1.1984
to 25.21996.
What shall be the extent of entitlement of the petitioner
excluding the aforesaid period subsequent to decision of the Finance
Department with regard to grant of monetary benefits shall naturally
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remain dependant and have to be subject matter of consideration in
the writ application filed challenging the final order of punishment
under Rule 43 (b) of the Bihar Pension Rules.
The writ application is dismissed.
Snkumar/- (Navin Sinha,J.)