IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.5623 OF 2007 BHUPENDRA NATH VERMA,S/O LATE DAROGA PRASAD, R/O VILLAGE + P.O MAHMOODPUR, P.S BARHARIA, DISTRICT SIWAN. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE COMMISSIONER CUM SECRETARY, HUMAN RESOURCE DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.THE DIRECTOR, (SECONDARY EDUCATION), GOVT. OF BIHAR, PATNA. 4.THE DISTRICT MAGISTRATE, SARAN (CHAPRA). 5.THE DISTRICT EDUCATION OFFICER, SARAN (CHAPRA). 6.DISTRICT PROVIDENT FUND OFFICER SARAN, DISTRICT SARAN. 7.THE HEAD MASTER PRABHUNATH, HIGH SCHOOL DEORIA, DISTRICT SARAN. ………………………RESPONDENTS. ----------- 02/ 29.08.2011 Having heard counsel for the parties and taking into account that the dispute relates only to payment of salary of the petitioner for the period from 06.02.1999 to 07.05.1999 for which this writ application was filed only on 30.04.2007, this Court is not inclined to allow such belated writ application specially when the petitioners has received all his retirement benefit on the basis of his last pay drawn on 31.10.1999 when he had superannuated from service. The delay of more than nine years from cause of action by itself would be sufficient to dismiss this writ 2 application. Counsel for the petitioner has, however, explained that the consequence of non payment of salary of these three months on the ground of his being on strike in the aforementioned period has disastrous consequence, inasmuch as, on account of such non payment the period aforesaid has not been taken towards the pensionary reliefs as a result of which the petitioner has also been prejudiced in the receipt of his retirement benefits including monthly pension. In the facts and circumstances of this case while this Court would not allow such prayer of the petitioner for payment of salary for the aforementioned period from 06.02.1999 to 07.05.1999 only on the ground of unexplained delay and laches of more than nine years on the part of the petitioner in moving this Court, it will accept the limited submission to the effect that the petitioner has a continuing cause of action with regard to lesser payment of his monthly pension on account of non 3 payment of salary for the aforementioned period and consequential break in service. This Court would accordingly remit the matter back to the Director of Secondary Education to consider the question of break in service in terms of Rule 103 of Bihar Pension rules and the Circulars issued thereunder which authorizes appointing Authority/competent Authority for condoning such break in service for a period upto two years. If therefore, the petitioner’s aforementioned period of unauthorized absence in service has been treated to be break in service and/or has not been taken into account in computing the total length of service in terms of his qualifying service under Bihar Pension Rules, the Director of Secondary Education having examined the records as with regard to payment of post retirement benefits to the petitioner would pass necessary orders in terms of Rule-103 of the Bihar Pension Rules. Such an exercise must be completed within a period of six months of receipt/production of a copy of 4 this order. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)