CIVIL WRIT JURISDICTION CASE No.3102 OF 2009 ---------- IN THE MATTER OF AN APPLICATION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. ---------- Chandrika Mochi, Son of Late Rajgir Mochi, resident of village-Sigori, P.O.- Sigori, Via-Paliganj, District-Patna. -----------------Appellant. VERSUS 1. The State of Bihar. 2. Special Secretary-cum-Directory, Primary Education, Human Resources Development Department, Patna. 3. The District Superintenent of Education, Patna. 4. Sub-Divisional Education Officer, Danapur, Patna. 5. The Block Extension Officer, Bikram, District-Patna. 6. The Block Extension Officer, Paliganj, District-Patna. 7. Area Education Officer, Vikram, Patna. 8. The Headmaster, Primary School, Madhorwa and Kathotia, South Maner, District-Patna. ------------------Respondents. ----------- For the Petitioner : Mr. Bam Bahadur Jha. Mr. Dhanajay Kumar Singh. For the State : Mr. Prabhat Kumar, AC to GA-3. ----------- P R E S E N T THE HON'BLE MR. JUSTICE NAVANITI PRASAD SINGH Navaniti Prasad Singh, J. Heard the parties. The petitioner was an Assistant Teacher. Allegedly, for one days of unauthorized absence he was put under suspension. He was directed to report to the headquarters for the period of suspension. It is now not in dispute that neither did he remain in his parents school nor did he report to the headquarters and, as such, remain traceless for almost 14 years. Ultimately, having been suspended on 06.05.1969 his suspension was revoked. It appears that thereafter petitioner made claim for full payment of remuneration for the suspension period by filing C.W.J.C. No.10537 of 1999. The writ petition was disposed of by judgment and order dated 03.05.2000. There, it was held that the claim of petitioner for - 2 - full remuneration, which has been rejected by order dated 03.04.2000, as contained in Annexure-A to the counter-affidavit therein, could not be sustained as in terms of Rules 97 of the Bihar Service Code. There was no consideration why petitioner was not entitled to full salary for the period of suspension, when no charges were found established against him. It was, thus, directed that the matter be reconsidered. Petitioner had prayed for additional reliefs also. They related to grant of two time bound promotions and due promotions apart from pay fixation. This Court by the said order, while disposing of the said writ petition, had directed the authorities to consider the same within a fixed time frame. The writ petition having been so disposed of, a departmental proceeding was initiated against the petitioner, in which on 19.10.2000 final orders were passed. In this order it was held that petitioner was not entitled to anything beyond subsistence allowance during the period of suspension. Apparently, two increments as a matter of penalty were withheld. This order has never been challenged by the writ petitioner before the any competent forum or this Court. What is more regrettable is that this fact has not even been stated in the writ petition. This fact is apparent from Annexure-3, which is a detailed order whereby all claims of the petitioner has been rejected by the departmental authority by order dated 03.03.2008. This material fact having been suppressed and not challenged in the writ petition, the petitioner cannot get any relief in that regards. In this connection, I may also note facts justifying non- grant of full remuneration for the said period. As noted above, petitioner did not continue in the school where he was posted, after suspension nor did he report to the headquarters, as such, he was traceless. If that be so, coupled with the fact that suspension was invited by his own conduct of - 3 - being absent without due permission, then, it was within the discretion of the authorities in terms of Rule 97 of the Bihar Service Code to grant him full allowance or not. That discretion has not been wrongly exercised and cannot be interfered with, much less, because it has not been challenged. So far as petitioner’s claim for time bound promotion is concerned, the provision relating to grant of time bound promotion itself came in the year 1981. Thus, claim for grant of time bound promotion with retrospective effect could not at all be considered. The departmental promotion committee considered the matter and granted petitioner two time bound promotions. Those orders have also never been challenged. They have neither been brought on record nor findings therein have been challenged. Thus again, petitioner cannot be granted any relief in that regards. So far as pay fixation is concerned, petitioner has a legitimate grievance. A reference to Annexure-6 order dated 04.07.1983, as contained in memo no.3625, by which order the suspension was revoked, would show that so far as remuneration aspect is concerned, it was ordered that he would be given the basic pay scale only. Let it be noted that the petitioner was in service since 1962. Admittedly, in 1983 after 21 years he was being put in basic pay in the basic grade, which is not correct. Even in the counter affidavit that has been filed it has not been mentioned that whether finally pay fixation has been done or not and, if so done, what was the outcome thereof. All that is evident is in the year 2000 there was no order to take steps to finally fix the pay scale of the petitioner, thereafter the petitioner and the department are silent. In the aforesaid circumstances, I have no option but to direct that the District Superintendent of Education would examine the - 4 - service records of the petitioner and fix pay scale, as were prevalent in the relevant period, having due regard to promotions and/or increments that were due from time to time, subject to any penalty order and work out the liability towards arrears of salary accordingly. This exercise should be freshly undertaken and completed within two months from the date of production of a copy of this order and, if any, amount payable to the petitioner, the same would be paid to the petitioner within the ensuing two months therefrom. To end the controversy, the District Superintendent of Education would pass a detailed speaking order in that regards and serve it on the petitioner. With the aforesaid observations and directions, the writ petition stands disposed of. Patna High Court The 22nd June, 2010 (Navaniti Prasad Singh, J.) NAFR Trivedi/