IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5724 of 2010 1. Jai Prakash Prasad S/O Late Ram Awatar Roy R/O Vill.- Sakari Saraiya, P.S.- Kurhani, Distt.- Muzaffarpur 2. Baidya Nath Baitha S/O Late Singheshwar Baitha R/O Mohalla- Imamganj, P.S.- Town, Distt.- Muzaffarpur Versus 1. The State Of Bihar 2. The Principal Secretary, Road Construction Department, Govt. Of Bihar, Bishweshwaraiya Bhawan, Bailey Road, Patna 3. The Engineer-In-Chief-Cum-Additional Secretary-Cum- Special Secretary, Road Construction Department, Govt. Of Bihar, Bishweshwaraiya Bhawan, Bailey Road, Patna 4. The Chief Engineer, Road Construction Department, Govt. Of Bihar, Patna 5. The Superintending Engineer, Road Construction Department, National Highway Cirlce, Muzaffarpur 6. The Executive Engineer, Road Construction Department, National Highway Division, Muzaffarpur 7. The Assistant Engineer, Road Construction Department, National Highway Sub-Section, Muzaffarpur ---------------------------------- 4. 30.08.2011 Heard learned Counsel for the petitioners and the learned Counsel for the State. The original relief sought in the writ application was for payment of arrears of salary since January 2004 inclusive of current salary. The petitioners are stated to be employed in the work charge establishment. From the order of the Court dated 1.12.2010 it transpires that earlier in 1990 also they had come for similar relief. Directions were given to ensure that they are paid their monthly salary as work charge staff in a regular manner “so that they are not put to unnecessary harassment”. The salary of the petitioners should not remain in arrears for more than three months at one stretch….” Their grievance is that 2 despite such direction their salary is in arrears. This Court on 1.12.2010 issued show cause notice as to why contempt proceeding be not initiated against the Executive Engineer, Road Construction Department, National Highway Circle, Muzaffarpur within three weeks. The counter affidavit by Sri Arvind Kumar Verma, Executive Engineer, N. H. Division, Muzaffarpur, filed in response to the writ application states that the payment was made to the petitioners in 2006 for arrears of wages till December 2003. A committee of three Secretaries has been constituted for regularisation of work charge staff. After the decision of the committee the Department will take proper action for regularisation and payment of salary. That the details of wages/salary have been sent to the concerned authority. It needs no gainsaying that regular payment of salary for works being discharged in the work charge status is an entirely different matter from regularisation. The two cannot be confused. The Executive Engineer in his counter affidavit appears to be taking the stand that so long as the decision on regularisation is not taken, the State has the liberty to take „Begar‟ from the petitioners in their work charge capacity, free to violate Article 23 of the Constitution. Thereafter a supplementary counter affidavit has been filed by the same deponent. He states that the required funds have been received from the headquarters and that arrears of wages from January 2004 “to till the date of working” has been paid. That the grievance of the petitioners stands redressed. The Court is at a complete loss to understand and appreciate what the Executive Engineer wishes to communicate. If the petitioners are not working after a specified date, nothing precluded the Executive Engineer from saying so in explicit terms in his affidavit. 3 The show cause in reply to the notice as to why contempt proceeding be not initiated, the same deponent again states that wages from January 2004 “to till date of working” has been paid. It does not improve the explanation given by him in the earlier counter affidavit. Counsel for the petitioners has contended that up to date wages are not being paid. If the petitioners are discharging duties in work charge capacity surely the officials would not be a party to violation of Article 23 of the Constitution of India by taking „begar‟ from employee. Conversely if the petitioners are not working after a specified date no claim for salary can be raised after such date. When a citizen approaches this Court with a claim, the Court considers his grievance as presented by him in conjunction with the reply that the respondents make. If the petitioner citizen is found to be having no case on merit he may not be entitled to relief or to limited relief as the case may be. When a citizen presents a case before this Court the respondents do not stand as an adversarial litigant. Their duty is to assist the Court in dispensation of justice as an instrument in discharge of sovereign functions. Each Department which swears an affidavit representing the stand of the respondents discharges sovereign function and is required to appreciate adequately the seriousness of his duty. Unfortunately that is found to be completely wanting in the two counter affidavits filed by the Executive Engineer and in the show cause filed by him. The Court is constrained to observe that the affidavit filed by him reflects an attitude of utmost casualness. It not only hinders this Court in proper adjudication with finality but also creates nebulous situation by which the respondents ensure that litigation continues by inconclusive orders of the Court. 4 . The State Litigation Policy framed by the State Government and published on 31.3.2011 provides that there shall be a Nodal Officer in each Department for monitoring the proper management of government litigation. Every Department shall be mindful of its responsibility. The Government was required to behave as a responsible litigant ensuring that correct facts and full information is placed before the Court. That the policy was based on the recognition that it was the responsibility of the Government to protect rights of the citizen and their fundamental rights and those incharge of government litigation should never forget the same. Chapter V of the policy specifically provides that care shall be taken while drafting affidavits for filing in the Court. Full care should be taken to forward all necessary relevant informations. The counter affidavit should not be filed casually. The Court is therefore left with no option but to now burden the Principal Secretary of the Road Construction Department to himself examine what has been paid to the petitioner, what has not been paid to the petitioner and whether he has received his wages till the date that he has worked and if he is continuing to work that the wages are paid to him. The Court further expects the Principal Secretary to examine the manner in which the counter affidavit has been filed with casualness so that at least in future at least one Department sets the trend of filing responsible counter affidavit. The Court expects the Principal Secretary to take such a decision in accordance with law expeditiously preferably within a maximum period of two months from the date of receipt and/or presentation of a copy of this order. It is further expected that if he finds justification in the claim or in any part 5 of the claim necessary consequential orders shall be issued simultaneously. The writ application stands disposed. Snkumar/- (Navin Sinha,J.)