IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14041 of 2002 Lalita Prasad, Wife of Shri Madanjee Vidyarthi, Resident of Mohalla Chatradhari Bazar, Near Ram Janki Mandir, P.S. & P.O. Chapra Town, District Saran. --------- Petitioner Versus 1. The State of Bihar. 2. The Director, Primary Education, Patna. 3. The District Superintendent of Education, Chapra, P.S. & P.O. Chapra Town, District Saran. 4. Chalu Gupta, Wife of not known, Headmistress Ram Chandra Prasad Mahashya Arya Sishu Middle School, Chapra, P.S. & P.O. Chapra Town, District Saran. ---------- Respondents ----------- 3 30.06.2010 Heard learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1. That this application is to issue appropriate writ or writ in the nature of mandamus or direction directing the Respondents No.2 and 3 to pay the petitioner the pay scale of B.A. Trained for which she is fully entitled.” It appears that for the same relief, the petitioner had earlier moved this Court in CWJC No. 7238 of 1990 and this Court, noticing the grievance of the petitioner, had remitted the matter to the Director, Primary Education, whereafter the order dated 30.10.2001 has been passed. Learned counsel for the petitioner 2 would submit that once the petitioner was already given I.A. Trained Scale of Pay prior to the school being taken over by the State Government, there would be no question of reduction of pay of the petitioner in the Matric Trained Scale of Pay so as to take away the benefit that the petitioner was drawing higher scale. He would also submit that the respondent no.4, in fact, was still allowed to get the same benefit and as such, the petitioner cannot be discriminated among the same set of persons. In this case, there is no counter affidavit filed by the respondents and in fact, this Court would not be surprised on this aspect, inasmuch as, even the earlier case filed by the petitioner, CWJC No. 7238 of 1990 was disposed of on 18.2.1999 without filing of the counter affidavit by remitting the matter back to the authority. This Court, therefore, now has to reluctantly accept that the continued practice of the officials of the State Government of not filing their counter affidavit has gained notorious proposition, which if not arrested would only 3 lead to repeated litigation on the same subject causing not only drainage of avoidable government revenue but also in a way systemic annihilation of the right of people to get justice from the court of law. The repeated round of remand orders passed by this Court not only multiplies in pendency of cases of this Court but also puts a strong question mark on the functioning of the government which gets no credit in becoming the biggest irresponsible and indifferent litigant before this Court. This Court, however, hopes that the government functionaries would to do something drastic before it is too late. This Court would not like to say anything more though it finds such growing practice of not filing counter affidavit clearly causes interference in the power of this Court in dispensation of justice. Under such constrain, this Court on examination of materials on record has found from the order dated 30.10.2001 (annexure-12) passed by the Director, Primary Education that the petitioner was not a direct 4 appointee in the service of the State Government rather her service was taken over along with the school by an order dated 5.1.1984. In the order of taking over of the school, it was clearly said that the trained teachers would be paid their salary in Matric Trained Scale of Pay and others in Untrained Scale of Pay. That being the part of condition of takeover of the service of the petitioner of which she was well aware right from the year 1984, she cannot now be allowed to challenge the same after more than two decades by claiming salary of I.A. Trained Scale of Pay or B.A. Trained Scale of Pay till she would be entitled to the same as per the seniority acquired by her in the cadre of the Government Middle School. In that view of the matter, the earlier salary granted to the petitioner in I.A. Trained Scale of Pay before takeover of the school can not be taken into account for continuation of payment of salary to the petitioner after her takeover in view of the specific statutory provisions in Section 4(2) of the Bihar Non-Government Primary School 5 (Taking Over Control) Act, 1976. The plea that the respondent no.4 was allowed to draw such salary has in fact also been looked into by the Director, Primary Education in his order dated 30.10.2001 (Annexure-12) wherein it has been said that if the respondent no.4 was also granted higher pay-scale despite she also being entitled only for Matric Trained Scale of Pay in the same order of takeover of the school dated 5.1.1984, remedial action should be taken. There is no averment in the writ application that despite the aforementioned order of the Director of Primary Education, the salary of the respondent no.4 has not been suitably modified and/or reduced. In that view of the matter, this Court now cannot allow the petitioner to take a plea of discrimination, inasmuch as, if there has been one illegality which also has leave sought to be redressed, that cannot become a precedent for repeating the same illegality. The moment it is found that the terms and conditions of the takeover of the petitioner was only by way of grant of Matric 6 Trained Scale of Pay as on 5.1.1984, the petitioner’s earlier salary fixed in I.A. Trained Scale of Pay could not have been of any use or advantage to her after she had accepted the same for becoming a government servant. That being so, though there is no challenge to the order of the Director of the Primary Education dated 30.10.2001 which has been passed pursuant to the direction of this Court in the earlier writ application of the petitioner, since that order deals with the entire grievance as raised in this writ application, the petitioner cannot be granted relief as prayed for in this writ application. The respondents, however, are directed to ensure that the aforesaid order of the Director is also given effect to in letter and spirit even in respect of respondent no.4, if not already acted upon. In that view of the matter, this application, subject to the aforesaid observation and direction, is dismissed. Let a copy of this order be sent to the learned Advocate General, Chief 7 Secretary, State of Bihar, Principal Secretary, Human Resources Development Department and Law Secretary to Government of Bihar. Rsh (Mihir Kumar Jha, J.)