Letters Patent Appeal No.1186 OF 2005 Against the judgment dated 15.9.2005 passed by learned Single Judge of this Court in CWJC No.9005 of 1999; 1.Kamni Kapoor,Wife of late Manohar Prasad, 2.Sanjay Kapoor,Son of Late Manohar Prasad, 3.Ajay Kapoor,Son of late Manohar Prasad, All resident of mohalla-Har Mandir Gali, Patna City, P.S-Chouk, P.O.-Patna City, in the Town and District of Patna.---------Appellants. Versus 1.The State of Bihar through Education Commissioner-cum-Secretary, Bihar,Patna 2.The Director, Secondary Education, Bihar,Patna. 3.The District Education Officer, Patna. 4.The Managing Committee, Sri Guri Gobind Singh Boy’s High School, Patna City, Patna through its secretary S.Pritam Singh, Advocate, Bal Lila, Mani, Son-gate, Patna-800008 5.The Prabandhak Committee, Takhat Sri Harimandir, Patna city, Patna-8 through its General Secretary, Patna Saheb--------- Respondents. For the appellants:-Mr.A.B.Ojha,Advocate For the State:- Mr. Sanjay Kumar Govt. Pleder No.XIV P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD THE HON'BLE MR. JUSTICE SUBASH CHANDRA JHA Prasad & Jha,JJ:- Writ petitioner-appellant aggrieved by the order dated 15.9.2005 passed in CWJC No.9005 of 1999, has preferred this appeal under Clause 10 of the Letters Patent. During the pendency of the appeal appellant had died and this appeal is being pursued by his legal heirs and representatives. 2 Writ petitioner- original appellant,namely, Manohar Prasad, hereinafter referred to as the petitioner, was appointed as Assistant Teacher in Sri Govind Singh School, a Minority Institution on 24.8.1960. By order dated 15.8.1976, he was put under suspension and ultimately dismissed from service on 4.1.1997. Petitioner challenged the order dismissing him from service by filing CWJC No. 1457 of 1980 (Manohar Prasad Vs. State of Bihar & ors.) before this court. By order dated 10th of October,1985 a Division Bench of this Court sustained the objection raised by the respondents that the School being a minority institution is not amenable to the writ jurisdiction of the Court and accordingly dismissed the same. Writ petitioner-appellant preferred Special Leave Petition before the Supreme Court which was registered as SLP(Civil) No.42523 of 1986. The Supreme court by its order dated 18.7.1986 set aside the order of this Court and remitted the matter back for consideration and while doing so it observed that consideration shall not be limited to the question of maintainability only. Thereafter the 3 Division Bench of this Court by order dated 9th of August, 1992 dismissed the writ application. However, while doing so, it observed as follows:- “Although in view of the limitation of our jurisdiction under Article 226 of the Constitution of India, we may not be in a position to issue any writ directing payment of any compensation in favour of the petitioner but we hope that respondent no.11 being head of a religious institution following the preachings of Great Sikh- Gurus shall consider the desirability not only to pay sufficient compensation to the petitioner but also to pay all his dues including the amount due to him by way of subsistence allowance, arrears of salary, if any, to the petitioner. In my opinion, the salary of 3.33 years payable to the petitioner would be just amount of compensation in the facts and circumstances of this case.” This Court further observed that no direction for payment of any compensation can be given. However it observed that the institution may consider the desirability of giving the writ petitioner compensation. It seems that in the light of the aforesaid observation the petitioner filed representation and instead of granting compensation he was informed that he may join his duty as Assistant Teacher. In the 4 light of the aforesaid, petitioner joined on 1.5.1996 and on attaining the age of superannuation retired on 30th of April,1997. Thereafter he had filed writ application for arrears of salary as also other consequential benefits alongwith superannuation benefits. Stamp Reporter objected to these reliefs being clubbed together. Petitioner deleted the relief so far as it related to retirement benefits. The learned single Judge by the impugned order had declined the relief. Mr. A.B.Ojha,appearing on behalf of the appellants submits that the petitioner having been reinstated in service, he is entitled for the arrears of salary from the date he was dismissed from service till reinstatement. We do not find any substance in the submission of Mr. Ojha. Writ petitioner has challenged the order of dismissal before this Court and the said writ application has ultimately been dismissed. No direction for payment of arrears of salary has been given in the said order. In fact on representation of the petitioner he was appointed afresh by letter dated 29.4.1996 and in pursuance thereof he 5 joined on 1.5.1996 and thereafter superannuated on 30.4.1997. In that view of the matter, we are of the opinion that the petitioner shall not be entitled for the arrears of salary for the aforesaid period. Mr. Ojha, then, contends that the petitioner is entitled for grant of retiral benefits. As the said relief prayed by the writ petitioner has been deleted by him, the learned Single Judge has not gone into the same. Mr. Ojha submits that nothing precludes this Court to consider this relief. In this connection out attention has been drawn to Order 7 Rule 8 of the Code of Civil Procedure. We are afraid, present proceeding is not an appropriate proceeding to consider the said relief. One of the reliefs originally sought for in the writ petition was post-retiral benefits. Later on same was deleted. As a result thereof learned Single Judge has not gone into the entitlement of the said relief. In such circumstance it shall be inappropriate to go into this question in the present appeal. Appellants, if so advised, may take recourse to any other remedy available to him in 6 law in regard to the claim of death-cum- retiral benefits. Needless to state that in case any salary was due to the petitioner for the period he had worked, it shall be paid to his legal heirs. In the result, we do not find any merit in this appeal and it is dismissed accordingly but without any order as to cost. (Chandramauli Kr.Prasad,J.) (Subash Chandra Jha,J.) Patna High Court Dated the 20th October, 2008 A.Kumar/NAFR