IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9842 of 2007 Dwarik Paswan, Son of Late Gouri Paswan, Resident of Village Barena, P.S. Sarsi (Old Dhamdaha), District Purnea. ------- Petitioner Versus 1. The State of Bihar. 2. Commissioner-cum-Secretary, Home (Police), Bihar, Patna. 3. District Magistrate-cum-Collector, Purnea. 4. Sub Divisional Officer, Banmankhi, District Purnea. 5. Superintendent of Police, Purnea. 6. Officer Incharge, Sarsi Police Station, District Purnea. -------- Respondents ----------- 2 18.1.2010 Heard learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1(i) By issue of an appropriate writ the respondents be commanded/directed to pay the arrears of salary to the petitioner forthwith with 18% interest per annum thereon since the date of its accrual till the date of actual payment. (ii) The respondents be directed to pay the salary to the petitioner regularly each month and they be further directed not to harass and persecute the petitioner in any manner. (iii) The respondents be commanded to produce the order stopping the salary of the petitioner since 1.12.2003 and the same be quashed by issue of an appropriate writ. (iv) An ad-interim order be passed directing the respondents to pay arrears of salary to the petitioner and regular salary each month during 2 the pendency of this writ application. (v) The respondents be directed to pay a consolidated sum of Rs. 50,000/- to the petitioner by way of compensation for having caused uncirmountable problem to the petitioner by not paying his salary for no fault on him. Learned counsel for the petitioner would submit that for no justifiable reason, the payment of salary of the petitioner has been withheld from 1.12.2003 and he has not being paid salary till date. The respondents despite expiry of a period of nearly two and half years have not filed any counter affidavit and even today, learned counsel for the State makes a prayer to adjourn this case in order to file a counter affidavit. In the opinion of this Court, such practice of the counsel of the state and the official respondents have to be depreciated for a simple reason that when two copies of the writ application are being served on the counsel for the State, it is always expected that at least a counter affidavit dealing with the facts of the case would be filed within a period of three months from the date of receipt of the copy of 3 the writ application. Coming to the merits of the case, this Court would find that there has been some controversy as with regard to the appointment of the petitioner. From the letter of the Sub-Divisional Officer, Banmankhi addressed to the Deputy Collector of the district in the establishment of Purnea dated 19th July, 2006, it appears that the service record of the petitioner is missing. Counsel for the petitioner also is not in a position to produce either the appointment letter of the petitioner of the year 1982 or the letter under which he was given benefit of the government decision dated 17.1.1990 bringing him in the pay-scale of Class-IV employee. In that view of the matter, this Court is not in a position to decide the pure question of fact and accordingly, the issue is now remitted to the Collector of the district who will now make necessary enquiry and if he finds the petitioner’s appointment on the post of Chaukidar in the year 1982 and his being made entitled for the government pay-scale in terms of the Government decision dated 17.1.1990 was justified, he would proceed to make enquiry as to 4 whether the petitioner has discharged his duty for the period 1.12.2003 onwards. In the event, the Collector of the district will come to a finding that the petitioner has worked on the post and has a valid and legal appointment in the eye of law, he will also direct for payment of salary to the petitioner but if he does not find so, he would reject the claim of the petitioner by a speaking order. However, such an exercise should be completed by the Collector of the district within a period of three months from the date of receipt/production of a copy of this order. Let it be made clear that this Court has expressed no opinion on the merit of the claim of the petitioner and the matter has to be decided by the Collector of the district on the basis of the materials available on record. With the aforementioned observations and direction, this application is finally disposed of. Rsh (Mihir Kumar Jha, J.)