IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12040 of 2010 ====================================================== 1. Kameshwar Jha S/O Late Mahabir Jha R/O Professor Colony, Dighi, West Darbhanga, P.S. & Distt.- Darbhanga .... .... Petitioner/s Versus 1. The State Of Bihar Through The Chief Secretary Null Government Of Bihar, Patna 2. The Principal Secretary, Water Resources Department, Govt. Of Bihar, Patna 3. The Deputy Secretary Water Resources Department, Government Of Bihar, Patna 4. Chief Engineer, Water Resources Department, Samastipur 5. Superintending Engineer, Water Resources Department, Darbhanga 6. Executive Engineer, Water Resources Department Design Division No.3 (Irrigation), Darbhanga .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Binodanand Mishra For the Respondent/s : Mr. (Aag3) ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 01-12-2011 Heard learned counsel for the petitioner and the State. The petitioner superannuated on 31.3.2000 from the post of Junior Engineer. The respondents granted him and other superannuated employees promotion to the post of Assistant Engineer by order dated 28.3.2002 with effect from 1.1.1992. Monetary benefits were payable from the date of the order. Notional or actual benefits from the date of the promotion would be determined on the opinion of the finance department. On 21.10.2002 it was clarified that Patna High Court CWJC No.12040 of 2010 (2) dt.01-12-2011 2 promotion was notional from the retrospective date and actual financial benefits were payable from the date of taking of charge. Learned counsel for the petitioner submits that it was the lapses of the respondents because of which the petitioner could not be considered and promoted from the due date though eight years of his service were left. The conditions imposed by the respondents were impossible of compliance because the petitioner superannuated before the issuance of the order. The petitioner is therefore entitled to the arrears of salary for the post of Junior Engineer with effect from 1.1.1992 along with revision of pension accordingly. The delay in consideration for promotion in due time was attributable to the respondents singularly. The petitioner cannot be saddled with the consequences. The question of any delay on part of the petitioner in approaching the Court is not relevant. No third party rights shall be affected if the relief is granted. Once the promotion has been granted retrospectively and the wrong done acknowledged, the right to receive the arrears of salary becomes a fundamental right under Article-21 of the Constitution. This Court in C.W.J.C. No.2193/05 considering a claim for monetary benefits in pursuance of a retrospective order of promotion allowed the same which Patna High Court CWJC No.12040 of 2010 (2) dt.01-12-2011 3 was affirmed in L.P.A. No.316/07. If benefits of a similar nature have been granted by this Court in similar circumstances, there is no justification for denial of the same to the petitioner. Reliance has been placed on 2000(2) P.L.J.R. 187 (Mohan Prasad Singh vs. State of Bihar) and 2008(4) P.L.J.R. 125 (Santosh Kumar Jha vs. State of Bihar) in support of the last proposition. Reliance has further been placed on AIR 1994 S.C. 44 (Ramchand & Ors. Vs. Union of India & Ors) AIR1974 S.C. 259 (Ram Chandra Shankar Deodhar vs. State of Maharashtra) (2006) 2 SCC 747 (State of Karnataka vs. C. Lalitha) and 2007) 4 P.L.J.R. 661 (Indrawati Devi vs. State of Bihar), (1992) 2 SCC 598 (M/s. Dehri Rohtas Light Railway Co. ltd vs. District Board, Bhojpur.) Learned counsel for the State emphasized the aspect of gross unexplained delay on part of the petitioner in approaching the Court for relief. It was urged that unexplained delay can be a sufficient ground by itself to deny relief even on a claim for parity with similar relief granted to others. Furthermore, to grant relief with effect from the date of promotion, keeping in mind the indolence of the petitioner himself, shall be imposing an unreasonable financial burden on the State which the Court may take into consideration also relying on (2006) 11 Patna High Court CWJC No.12040 of 2010 (2) dt.01-12-2011 4 SCC 709 (Col. B. J. Akkara (retd) Vs. Government of India). It was lastly urged that in any event the petitioner has not worked on the promotional post and therefore is not entitled to any arrears of salary for the same. The right to salary was a statutory right and not a fundamental right. There shall be a difference between the two. The writ petition therefore merited no consideration and relief may be declined. The order of promotion upon which relief is claimed was passed on 28.3.2002. There is no explanation whatsoever in the writ petition when the petitioner was made aware of the order. The order was directed to be published in the Gazette. It is not the case of the petitioner that it was never published in the Gazette. Gazette publication is notice by itself. The order further marks copies of the same to the concerned for action which shall necessarily include the petitioner also. Despite having knowledge of the order dated 28.3.2002 he does not explain why he took no steps for unreasonably long years to enforce his claims. He appears to have become wiser eight years later when he moved under the Right to Information Act on 4.5.2010 and then filed the writ application in July 2010. Can he be permitted to wake up at his leisure and invoke the discretionary jurisdiction of the Court to seek relief urging simply that no third party Patna High Court CWJC No.12040 of 2010 (2) dt.01-12-2011 5 rights are affected. The question of delay has been a vexed question for exercise of powers under Article-226 of the Constitution of India. There is no standardized yardstick for the same, but more a matter of discretion to be exercised in the facts of a case. Merely because no third party rights have been created cannot be an infallible rule that belated applications can still be considered. If that were to be so, there would be no end to a litigant approaching the Court for relief belatedly contending that none other was going to be affected. The concept of third party rights also cannot be given a restricted interpretation by reading it down to other claimants only excluding the government. The inevitable result will be clogging of the dockets of the Court leaving to it no time or hardly any time for those who may be vigilant in approaching the Court for granting relief. A logical outcome would also be imposing belated burden on the State affecting its finances and planning. The observation of the Supreme Court in (1975) 1 SCC 152 ( P.S.Sadasivaswami Vs. State of Tamil Nadu cautioning the Court from exercise of discretion under Article-226 in belated service matters lest it clog the dockets of the Court has perhaps become extremely relevant today. “2…….. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there Patna High Court CWJC No.12040 of 2010 (2) dt.01-12-2011 6 can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work.” The right to receive salary, as rightly urged, is a statutory right and not a fundamental right. While a fundamental right cannot be waived, there may be waiver of a statutory right. The waiver can be express or implied by conduct also. It is not the case of the petitioner that he pursued matters during his service by legal recourse for promotion. If the respondents have granted him promotion after superannuation, he cannot be allowed to turn it into a bonanza for himself taking advantage of his own lapse in not having staked his claim while in service. The fact that he sought no relief even for eight years after his superannuation is sufficient evidence of a waiver by conduct on his part. He declines to make adequate disclosures and explain how and why he suddenly became wiser. Patna High Court CWJC No.12040 of 2010 (2) dt.01-12-2011 7 The principle as explained in (2006) 11 SCC 464 (U.P. Jal Nigam v. Jaswant Singh) is :- “12……Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.” In Ram Chandra Shankar Deodhar’s case (supra) the delay was condoned noticing that the petitioners proceeded on the assumption of certain information furnished to them by the Commissioner, the Secretary of the Revenue Department that the Rules for promotion were only provisional and were to be regularized after which unified Rules of recruitment were to be made. It was only when Inder Kapur’s case was upset by the Bombay High Court that the petitioners were made aware that the unified recruitment Rules had been made available throughout the State of Bombay. The petitioner did not lose any time thereafter in filing of a writ petition for seeking relief. The facts of the case are completely distinguishable from the present case. Patna High Court CWJC No.12040 of 2010 (2) dt.01-12-2011 8 In M/s. Dehri Rohtas Light Railway Company Limited (supra) it has been reiterated that the Rule with regard to condonation of delay was not a Rule of Law, but a Rule of practice based on sound and proper exercise of discretion dependent on the facts of each case. Paragraph- 12 of the judgement notices that the demands raised itself were without authority of law. The appellant had offered an explanation for not raising the questions of legality in the earlier proceedings. The authorities had proceeded under a mistake of law as to the nature of the claim. That perhaps is sufficient to distinguish the case on facts from the present case. In Ramchandra’s case (supra) it has been held that the statutory authority cannot take the plea that although it has not performed its duty within reasonable time the person wronged also did not take appropriate steps. But, at the same time, considering the aspect of law the Court declined to go into the question of the acquisition of the lands confining it to the quantum of compensation only. Apart from the provisions of the Land Acquisition Act, the Court cannot lose sight of the fact that claims with regard to an immovable property like land and deprivation thereof will violate Article-300 A of the Constitution of India. In C. Lalitha (supra) the relief on question of parity came to be granted in the background of the need for Patna High Court CWJC No.12040 of 2010 (2) dt.01-12-2011 9 construction of an inter parties order of the Supreme Court with regard to the validity of the amendment of reservation policy. It was in context of the pronouncement of the law on a serious question and noticing the subsequent developments that had taken place in the meantime with regard to the rest that the reliefs were granted on principles of parity. The case is again clearly distinguishable on its own facts from the present case. In Mohan Prasad Singh (supra) the writ petition was filed 10 years later questioning an order of termination. A similar challenge had been upheld up to the Supreme Court. It was held that there could be no straight jacket principle to deny relief on grounds of delay and the matter has to be left to the discretion of the Court to be exercised on equitable principles. The relief was granted primarily on the basis that no third party right has been created and therefore the question of delay was not relevant. In Santosh Kumar (supra) the direction simply was in terms of orders passed in similar nature of cases without considering the aspect of delay as a ground to deny parity in relief. In Indrawati Devi (supra) the claim for arrears of salary was based on actual discharge of duties of the higher post. In All India Imam Organization (supra) it was held that financial difficulties of an institution cannot defeat the fundamental right of a citizen. Presently we are Patna High Court CWJC No.12040 of 2010 (2) dt.01-12-2011 10 concerned with the statutory rights and not fundamental rights. Law is not static but evolves according to the demand of the times. A law which may have been good at a point of time may lose relevance by passage of time or may become inapplicable by change of circumstances and may possibly be rendered incapable of compliance also. To read the law as rigid as a line shall stultify development and growth of law. What may have been relevant at a particular point of time can certainly become irrelevant with the change of times and circumstances. Learned counsel for the State has rightly relief upon the case of Col. B. J. Akkara (retd) to submit that the Court cannot lose sight of the financial implications of its orders. In (2005) 13 SCC 161 (State of Andhra Pradesh vs. Andhra Pradesh Pensioners’ Association) emphasizing the aspect of financial implications it has been observed at paragraph-38 :- “38. The decisions of this Court which have been noticed in Amar Nath Goyal categorically point out that financial implication is one of the relevant considerations for the State to deny certain benefits to a class of employees who retire on or before a particular date.” In (2010) 8 SCC 467(Sulochana Chandrakant Galande v. Pune Municipal Transport) considering a claim for grant of relief based on parity it has been held at Patna High Court CWJC No.12040 of 2010 (2) dt.01-12-2011 11 paragraph 32 as follows:- “32. In Rup Diamonds v. Union of India, this Court considered a case where the petitioner wanted to get relief on the basis of the judgment of this Court wherein a particular law had been declared ultra vires. The Court rejected the petition on the ground of delay and laches observing as under: “8. … there is one more ground which basically sets the present case apart. Petitioners are reagitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided.” Similar view has been taken in (2011) 3 SCC 436 ( State of Orissa vs. Mamata Mohanty) at paragraph-54 as follows:- “54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time.” The Court therefore does not uphold the contention of the petitioner that irrespective of all other considerations condoning the delay on his part, applying the principles of parity, he should be granted the relief for arrears of salary from 1.1.1992. If the respondents were wanting in their Patna High Court CWJC No.12040 of 2010 (2) dt.01-12-2011 12 conduct, the petitioner clearly had much to answer which he has been unable to do. The scale of justice cannot be tilted in favour of the citizen alone irrespective of other considerations merely the adversary happens to be the State. The scale shall have to be balanced. In (2001) 8 SCC 378 (Laxman Dundappa Dhamanekar v. Vishwa Bharata Seva Samiti ) considering the delay in raising the claim for salary, it has been held in the relevant extract at paragraph-13 as follows:- “13……….. If the appellants were not paid salary, they ought to have made a representation to the Head of the Department or gone to a court of law for recovery of arrears of salary which they did not do so. Therefore, they are not entitled to arrears of salary for the last ten years. Under such circumstances, we are of the view that the appellants are entitled to arrears of salary only for the last 3 years….” Similar view has been taken in (2010) 12 SCC 538 (State of Madhya Pradesh v. Yogendra Shrivastava) holding at paragraph-18 as follows:- “18. …Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application.” The Court is satisfied that if the petitioner has superannuated in the year 2000, promotion granted in 2002, salary cannot be given for three years prior to 2002 as writ petition was filed eight years after superannuation. Patna High Court CWJC No.12040 of 2010 (2) dt.01-12-2011 13 It may also not be proper exercise of discretion in a writ petition filed in the year, 2010 to grant him relief for arrear of salary for three years past. The petitioner is acknowledged to be receiving the pension in accordance with the revised scale of the promotional post. The only question for consideration was the grant of arrears of salary from 1.1.1992 till the date of superannuation. For reasons already discussed, the Court finds no merit in the same. The application is dismissed. Krishna Chandra Jha/- (Navin Sinha, J)