IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C NO.4184 OF 2007 1.RAM SWAROOP GUPTA, S/O SRI JANGAL PRASAD GUPTA, R/O VILLAGE ARRAHA, P.O. SUHATH, P.S SAUR BAZAAR, DISTRICT SAHARSA. 2.SHAILENDRA KUMAR, S/O PARMESHWAR PRASAD, R/O VILLAGE NADO, P.O. DAMGARI, P.S SAUR BAZAAR, DISTRICT SAHARSA. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE COMMISSIONER CUM SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.DIRECTOR (PRIMARY EDUCATION), GOVT. OF BIHAR, PATNA. 4.THE DISTRICT MAGISTRATE, MADHEPURA. 5.THE DISTRICT SUPERINTENDENT OF EDUCATION, MADHEPURA. 6.THE HEADMASTER, MIDDLE SCHOOL, MURLI CHANDWA, ANCHAL UDAKISHUNGANJ EAST, DISTRICT MADHEPURA. ………………………RESPONDENTS. ------------- 04/ 12.09.2011 No one appears for the petitioners. Counsel for the State is present. In this writ application, the prayer of the petitioners reads as follows:- “That, this is an application for issuance of a writ of mandamus commanding upon the respondents to make payment of salary of the petitioners since 15.12.1988 in the matric trained scale of in view of the sanction of payment granted by Respondent No. 5 vide Memo No. 686-5 dated (Annexure-6) and the petitioners further pray for grant of any other relief or reliefs to which they are found entitled to.” I From the perusal of the record it 2 would appear that the basis for such a belated claim for claiming payment of salary from 1988 onwards, in this writ application filed on 02.04.2007 i.e. after 19 years of the cause of action is the the letter of the District Superintendent of Education, Madhepura dated 12.03.1996. As with regard to the authenticity of the aforementioned letter dated 12.3.1996 a counter affidavit has been filed by the present District Programme Officer, Madhepura who has doubted the correctness of the letter in the following terms:- “That so far issuance of the letter no. 686-5 dated 12.03.1996 shown as Annexure-5 to this writ petition issued by the then D.S.E., on enquiry it was revealed that on 20.11.1996 there was an incidence of fire in the office of the deponent. Some unknown persons had set a fire to sub obstacle in enquiry regarding illegal appointment/approved of service and illegal promotion. In seems that the said letter was burnt in the said incident occurred on 20.11.1996. And as such the Annexure-6 shown to this writ petition is also within the circumference of doubt to have been issued by the office of deponent. A police case no. 270/96 has also been instituted as record reveals and proceeding is going on.” 3 Not only that, the respondents in their counter affidavit have also stated that the petitioners had never worked as teachers in Middle School, Murli Chandwa, Anchal Udakishunganj East, District Madhepura much less since 15.12.1988 and to support this aspect they have placed reliance on the report of the officials of the Education Department who had made verification from the connected records including the attendance register of the relevant period of the School in question. As a matter of fact when the aforesaid counter affidavit was served on the counsel for the petitioner on 18.08.2011, a prayer was made for adjourning this case for a period of two weeks in order to enable the petitioners to file rejoinder. When such a rejoinder was not filed by the petitioner within the aforesaid prescribed period of two weeks and the matter was again listed on 02.09.2011, a similar prayer made for adjourning the case for filing of reply to counter affidavit was again allowed, but then it was also made clear that if the 4 petitioners will not file rejoinder to the counter affidavit, this Court will proceed on the basis of the pleadings on record. Today neither the counsel for the petitioner has appeared nor there is any rejoinder to the counter affidavit. In such a situation, this Court following the ratio laid down by the Division Bench in the case of Kedar Nath Tripathy Vs. State of Bihar & ors’, reported in 2008 (3) PLJR 470 would find it necessary to dispose of this writ application on merits even in absence of the counsel for the petitioner. As noted above the petitioners' claim for payment of salary could have been allowed only, if their working in the School in the relevant period was an admitted fact and if liability of such payment was also taken over by the State Government. When facts in this regard on both the aforesaid heads has been explained by the respondents in the counter affidavit which has remained unconroverted till date and the claim of the petitioners has been totally denied, this Court would find it difficult to adjudicate these disputed 5 questions of facts within the limited jurisdiction of Article 226 of the Constitution of India. That being so, this application is dismissed. Nothing said in this order, however, will come in the way of the petitioners in claiming the same relief before an appropriate Civil Court if they would be in a position to prove the fact as with regard to their services being recognized by the State Government with the liability for payment of salary as also their working in the School in the period in question. Ranjan (Mihir Kumar Jha, J.)