IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6135 of 2005 Sheo Prasad Singh , son of Late Jaggam Bhagat, resident of Nala Road (Ramanand Mishra Lane) P.O. & P.S. Kadamkuan, Patna …Petitioner Versus 1. The State Of Bihar through the Commissioner-cum- Secretary, Urban Development Department , Govt. of Bihar, new Secretariat, Patna 2. The Administrator/Chief Executive Officer, Patna Municipal Corporation, Budh Marg, Patna …Respondents --- 10. 29.11.2011 Heard Mr. Manmohan for the petitioner and Ms. Binita Singh for the Respondent-Patna Municipal Corporation (for short „the Corporation‟). Petitioner is a retired employee of the Corporation. He superannuated from service with effect from 30.11.1996. Nine years thereafter, he has raised a claim that he was entitled to time-bound promotion as was granted to him by order dated 19.4.1995 (Annexure-3). Relevant facts, in a nutshell, are that in the year 1968 petitioner was appointed as Revenue Inspector in the Corporation which was later re-designated as Misc. Licence Inspector(M.L.I.) with effect from 01.08.1969 in the same scale of pay. Petitioner was thereafter given the charge of the post of Revenue Officer in the Corporation vide office order no. 393 dated 12.4.1990 (Annexure-2). He was granted time-bound promotion with effect from 12.04.1990 in the scale of Rs. 1400- 2300 as mentioned in Annexure-3, but payment as per the said order was not made. Petitioner subsequently superannuated from 2 service of the Corporation with effect from 30.11.1996. Non grant of post retiral dues, upon superannuation, propelled him to approach this Court in CWJC No. 9652 of 1997. This Court by a proceeding dated 3.12.1997 (Annexure-9) disposed of the same directing the petitioner to file a petition/representation before the Administrator of the Corporation setting out details of the post retiral dues payable to him and the Administrator of the Corporation was directed to consider and pay the admitted dues to the petitioner within a time-frame. Considering the delay in disbursement of the post retiral dues, it was also held that the petitioner would be entitled to interest at the statutory rate on the amount to which he was found entitled to on account of post retiral dues. Petitioner thereafter approached this Court in MJC No.867 of 1998 raising a grievance that all admitted dues have not been paid and, therefore prayed for initiation of contempt proceeding against the authorities. This Court on a consideration of the mater by a proceeding dated 17.11.1998 (Annexure-10), disposed of the same in the following manner:- “Having regard to the facts that substantial payment had been made to the petitioner and the balance amount is also to be paid shortly, I do not think that any case of contempt is made out. The petition is dismissed.” Petitioner remained satisfied with the payment made to him on account of post retiral benefits/dues. Nearly seven years thereafter he has filed the present writ petition seeking the aforesaid relief(s). 3 A counter affidavit has been filed on behalf of the Respondent-Corporation to oppose the writ petition. Petitioner has filed reply/rejoinder thereto. Learned counsel in support of the application submits that by reason of order contained in Annexure-3, petitioner was granted time-bound promotion and his scale of pay was fixed at Rs. 1400-2300/- and, as such, he was required to be paid in the said scale. It is next contended that some of the employees of the Corporation were later granted the benefits of time-bound promotion but the case of the petitioner was ignored. In this regard, he has referred to the averments made in paragraph 16 of the writ petition. Per contra, learned counsel for the respondents has contended that at the time the petitioner superannuated from services of the Corporation, there was no provision for grant of time-bound promotion to its employees inasmuch as the State Government had not taken any decision for extending the said benefits of time-bound promotion to the employees of the Corporation or any other Municipal Corporation. Without such decision of the government extending the benefits of time-bound promotion to the employees of the Corporation, the petitioner could not have been granted the benefit thereof and thereby to bear additional financial burden arising out of grant of such time-bound promotion to the petitioner and other employees. Learned counsel has in this regard relied on averments made in paragraph 7 of the counter affidavit. It is next contended that 4 relevant facts have not been disclosed about those cited in paragraph 16 and, as such, it cannot be argued that based on those averments the petitioner was discriminated in the matter of grant of time-bound promotion. Learned counsel further contended that the present writ petition would be barred by principles of gross delay, laches and indolence inasmuch as from the materials on record it would appear that petitioner acquiesced in the calculations made by the Corporation towards payment of post retiral benefits/dues. In the submission of the learned counsel for the respondents, the application is fit to be dismissed on this ground alone. From perusal of the order passed by this Court on the previous writ petition filed by the petitioner (Annexure-9), it appears that an issue relating to grant of time-bound promotion was raised by the petitioner in CWJC No. 9652 of 1997. Petitioner was directed to file a detailed representation in this regard which was to be considered and admitted dues were to be paid to the petitioner. The representation filed by the petitioner pursuant to disposal of CWJC No. 9652 of 1997 has not been brought on record. On perusal of the order dated 17.11.1998 passed in MJC No. 867 of 1998 (Annexure-10) it appears that petitioner accepted the payment of admitted dues to him pursuant to the aforesaid order dated 3.12.1997. If at all he was aggrieved by non grant of benefit of time-bound promotion pursuant to Annexure-3, he could have approached this Court immediately. From the averments made in the writ petition it 5 appears that only in the wake of filing of the present writ petition a representation (Annexure-11) is said to have been filed on 20.4.2005. Obviously, the same was made in order to explain the gross delay and laches on the part of the petitioner in approaching this Court for the relief(s) prayed for in the writ petition. It further appears that a rejoinder affidavit has been filed on behalf of the petitioner but it has not been asserted therein relying on any supporting document that by the time the petitioner superannuated from service the Corporation had adopted the recommendation of the Pay Revision Committee providing time-bound promotion. Delay defeats equity. Learned counsel for the respondents is right in her submission relying on 1998 (8) SCC 682 (Union of India & Anr. Vs. S.S.Kothiyal & Ors.) that filing of representation in such matter would not explain the delay. In the case at hand, it appears that after disposal of the contempt proceeding in the year 1998, no such grievance was even raised before the authority until the representation contained in annexure-11 was filed on 20.4.2005. This Court could have considered the application on merit even after delay if the petitioner had positively a good case. As I have noticed that respondents have taken a positive stand that till superannuation of the petitioner time-bound promotion was not applicable to the employees of the Corporation as no decision in this regard was taken by the government as well as the Respondent-Corporation. Aforesaid stand of the Corporation has not been controverted by the petitioner. The averments made 6 in this regard in paragraph 6 of the rejoinder is wholly insufficient. This Court will not come in aid of the order passed by the authority without there being any basis therefor. If there was no decision taken by the government extending the benefits of time-bound promotion to the Corporation and its employees like the Corporation in question and/or any decision of the Corporation adopting the aforesaid recommendation of the Pay Revision Committee, then how can the order contained in annexure-3 be sustained by a court invoking its high prerogative and discretionary writ jurisdiction.. In view of aforesaid, I find no merit in this application which is accordingly dismissed. hr ( Kishore K. Mandal )