IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7734 of 2001 RADHA MOHAN PRASAD, Son of Late Govind Prasad, Resident of village Kako, P.S. Kako, District Jehanabad … Petitioner Versus 1. THE STATE OF BIHAR through the Chief Secretary, Government of Bihar, Patna 2. Secretary, Public Health Engineering Department, Government of Bihar, Patna 3. Joint Secretary, Public Health Engineering Department, Government of Bihar, Patna 4. Engineer-in-Chief cum Special Secretary, Public Health Engineering Department, Bihar, Patna 5. Superintending Engineer, Public Health Circle, Patna 6. Executive Engineer, Public Health Division, Nalanda at Bihar Sharif 7. Sri Basant Kumar Sinha, son of not known, Executive Engineer, Public Health Division, Nalanda at Bihar Sharif 8. The Accountant General, Bihar, Patna … Respondents. ----------- 6. 7.7.2009 Heard counsel for the petitioner and the counsel for the State. In this writ application the petitioner after retirement from service has moved this Court for the following relief: “(a) By issue of an appropriate writ the order dated 22.5.99 passed by the Chief Engineer, P.H.E.D. contained in Annexure 11 be quashed. (b) By issue of an appropriate order the order dated 22.5.99 passed by the Chief Engineer be declared illegal, void ab initio, arbitrary and not binding. (c) By issue of an appropriate order the respondents be directed to pay the arrears of salary after first time bound promotion having been granted to the petitioner as per his entitlement minus what has been paid to the petitioner with effect from due date with 18% per 2 annum interest thereon till the date of payment. (d) By issue of an appropriate order the respondents be directed/ commanded to pay arrears of salary to the petitioner after second time bound promotion having been allowed to the petitioner with effect from due date as per his entitlement minus what has been paid to the petitioner. (e) The respondents be directed to treat the petitioner Store Keeper in the department and on that basis his salary be worked out and the difference between his entitlement and what has been paid to him be directed to be paid to the petitioner forthwith with 18% interest per annum thereon till the date of payment.” Counsel for the petitioner as with regard to the aforementioned prayer would basically submit that once the petitioner was appointed in the work charge establishment under the Public Health Engineering Department, was made against the post of Store Keeper cum Clerk as would be evident from the office order dated 6.10.1959 the respondents had no jurisdiction or authority to bring him to a lower post of Pipe Line Inspector and make him suffer by giving a lower lesser pay scale of Pipe Line Inspector. This aspect of the matter in fact has been explained at length in the impugned 3 order, which also was passed by the Chief Engineer in the light of earlier direction of this Court in the order dated 21.4.1998 in C.W.J.C.No. 6411/1997, after considering all the relevant issues raised by the petitioner in his representation dated 17.6.1998 and reads as follows: fcgkj ljdkj yksd LokLF; vfHk;a=.k foHkkxA ------------ Kki la[;k 3@eqd 10127@98&558 iVuk 15] fnukad 22-5-99 lsok esa] Jh jk/kk eksgu izlkn xzke& tykyiqj iks0& lksgljk; ftyk& ukyUnk fo"k;& lh0MCyw0ts0lh0 la0 6411@97 ds ekeys esa fnukad 21-4- 98 dks ekuuh; mPp U;k;ky; }kjk ikfjr fu.kZ; ds vkyksd esa izLrqr vH;kosnu ds laca/k esaA mi;qZDr fo"k;d fnukad 17-6-98 dks izkIr vkids vH;kosnu esa mfYyf[kr rF;ksa ,oa vuqjks/k dks iw.kZ leh{kk ljdkjh vfHkys[kksa ls dh xbZA iw.kZ leh{kksijkUr ;g ik;k x;k fd ;fn dk;ZHkkfjr LFkkiuk esa vkidh fu;qfDr fnukad 6-10-59 dks dke pykm O;oLFkk ds rgr HkaMkjiky lg fyfid ds in ij dh xbZA lkFk gh vkids gh vuqjks/k ds vkyksd esa Kkikad 7132 fnukad 28-12-66 ds }kjk vkidks vius dk;kZsa ds lkFk lkFk ty dk;Z fujh{kd ds in ij Hkh dk;Z djus dh vuqefr nh xbZA bl rjg yksd LokLF; izeaMy] fcgkj'kjhQ esa fnukad 11-9-68 rd HkaMkjiky lg fyfid lg ty dk;Z fujh{kd ds in ij vki dk;Zikfjr LFkkiuk esa dk;Zjr jgsA foHkkxh; dk0vk0la0 341 fnukad 6-9-68 ds }kjk vkidk LFkkukUrj.k yksd LokLF; voj izesMy gtkjhckx esa ty dk;Z fujh{kd ds fjDr in ij djrs gq, inLFkkfir fd;k x;kA mDr vkns'k ds vuqikyu esa vkids iqoZ in ;Fkk HkaMkjiky lg fyfid dks R;kx dj x;s in ;Fkk ty dk;Z fujh{kd ds izHkkj dks lg"kZ 4 xzg.k dj fy;ka mDr vkns'k dks u rks vkids }kjk pqukSrh nh xbZ vkSj ugha vkius ty dk;Z fujh{kd ds fjDr in dks Lohdkj djus esa dksbZ vkifRr O;Dr dhA iqu% vkids futh vuqjks/k ds vkyksd esa vkidsk LFkkukUrj.k foHkkxh; dk0vk0 la0 619 fn0 6-10-72 ds }kjk yksd LokLF; voj izeaMy fogkj'kjhQ esa fjDr fujh{kd ds in ij fd;k x;k rFkk mDr in ds fy, Lohd`r osrueku esa gh fujUrj vkidk osru fu/kkZj.k ,oa osru o`fn;ka Lohd`r fd;k tkrk jgk gSA bl rjg fnukad 12-9-68 ls vkidk ekfyd in HkaMkjiky lg fyfid u jgdj ty dk;Z fujh{kd jg x;k rFkk dk;kZy; vk0 la0 155 fn0 27-4-79 ds }kjk ty dk;Z fujh{kd ds in ij gh vkidksa fu;fer LFkkiuk esa ifj.kr djrs gq, fnukad 1-4-70 ds izHkko ls osrueku 220&315 esa Li"V fd;k x;kA le; le; ij mDr osrueku dk gh iqujhf{kr osrueku fu;ekuqlkj vkidks Lohd`r fd;k tkrk jgk gSA lsok fuo`fr dh frfFk rd vki ty dk;Z fujh{kd ds fjDr in ds fo:n~/k gh dk;Z djrs jgs gSA vr% vkidk ;g nkok fd vki HkaMkjiky lg fyfid ds in ij fu;qDr gq, vkSj blh in dk osrueku fnukad 1-4-81 ls Lohd`r fd;k tk; fcYdqy rdZghu ,oa fu;e fo:n~/k gS] D;ksafd fcgkj lsok lafgrk ds fu;e 58 esa bl ckr dk Li"V mYys[k gS fd ljdkjh lsod ftl in dk izHkkj xzg.k djsa] mUgsa blh in ls lacn~/k osru ,oa HkRrk inHkkj xzg.k fd frfFk ls vuqekU; gksxsA vkids }kjk fnukad 12-9-68 ls lsok fuo`fr dh frfFk rd ty dk;Z fujh{kd ds in dk izHkkj /kkfjr fd;k x;k gS u fd HkaMkjiky lg fyfid dkA vr,o fnukad 1-4-81 ls HkaMkjiky lg fyfid ds osrueku esa vkids osru fu/kkZj.k ds nkos dks loZ/kk vk/kkjghu ekurs gq, vLohd`r fd;k tkrk gSA tgka rd vkids izFke] f}rh; dkycn~/k izksUufr] ns; cdk;s] NqVVh osru dk Hkqxrku rFkk isa'ku ,oa miknku ds fu/kkZj.k@Lohd`r dk iz'u gS] rks ml laca/k esa ;g lwfpr djuk gS fd yksd LokLF; izeaMy] fcgkj'kjhQ ds i=kad 251 fnukad 25- 2-99 v/kh{k.k vfHk;ark] iVuk vapy ds Kk0 377 fnukad 15-3-99] 457 fnukad 26-3-99 ,oa 378 fnukad 15-3-99 ds }kjk bl ekeys esa fu;ekuqlkj fu.kZ; fy;k tk pqdk gSA mDr ifjis{; esa fnukad 11-6-98 dks lefiZr vkids vH;kosnu dks fu"ikfnr 5 fd;k tkrk gSA g0@& AvkWu eqgEEnA eq[; vfHk;ark uk0A It is thus clear that the petitioner ever since 1968 was assigned the work of Pipe Line Inspector and ultimately on his request was transferred to the post of Pipe Line Inspector on 6.10.1972 and finally was brought to regular establishment from work charge establishment by an order dated 27.4.1979 in the regular establishment on the said post of Pipe Line Inspector. From 1979 the petitioner had continued to get the benefit of the post of Pipe Line Inspector in next twenty nine years of service i.e. 31.1.1997, the date of his retirement. As a matter of fact after the petitioner had retired on 31.1.1997, he could become aware of his alleged rights that he was entitled to get the benefit of a post of Store Keeper cum Clerk in work charge establishment of the year 1959 and that is how he filed C.W.J.C.No. 6411/1997 after his retirement from service basically by claiming the benefit of that post of work charge establishment and its pay scale. This 6 Court without expressing any opinion on the merits of such claim had merely directed the respondents to dispose of the representation of the petitioner which was done by the impugned order dated 22.5.1999 and records categorical reason for treating the petitioner to be entitled for benefit of post of Pipe Line Inspector. Such reasons including that the petitioner continued to work from 12.9.1968 onwards only against the post of Pipe Line Inspector and that he was brought in regular establishment from the work charge establishment on the post of Pipe Line Inspector and got confirmed on the said post with effect from 1.4.1971 in view of the order of regularization passed on 27.4.1979 (Annexure C) and as such, was not entitled for the pay scale of the post of Store Keeper under stop gap arrangement are at least valid and sound reasons which cannot be lightly brushed aside by this Court merely on asking of the petitioner. The petitioner in fact has failed to understand that an engagement on daily wages in an Engineering Department, its being brought in the work charge 7 establishment and being regularized from such work charge establishment in regular establishment are three different things altogether. Merely because the petitioner was a Store Keeper in the work charge establishment on stop gap arrangement even otherwise could not have been conferred him a right to be absorbed in a regular establishment as a Store Keeper. As a matter of fact such stop gap arrangement of the petitioner came to an end way back in 1968 when he was assigned the work of Pipe line Inspector in work charge establishment on his own request and thus he could not have claimed any right merely because he had earlier worked on the post of Store Keeper. Therefore, the person seeking regularization on their own request on the post like the petitioner cannot be heard to say as to why he was absorbed on such a post when he was earlier worked on the post of Store Keeper. The basic premises, therefore, of the petitioner suffers from a fallacy both on fact and in law. The only argument that the learned counsel for the petitioner would advance for 8 sustaining his claim is a letter of Superintending Engineer dated 28.6.1994 which is by way of inter departmental communication from one authority to another authority and somehow only mentions that to mitigate hardship being caused to the petitioner on account of a reduced pay scale of Pipe Line Inspector, the petitioner should be given the benefit of an equivalent pay scale of the post of Work Sarkar. This Court would really fail to appreciate the power/ authority of such Superintending Engineer to pass such an order contrary not only to the sprit of the order of regularization of the petitioner of the year 1979 bringing him on the post of Pipe Line Inspector but also passing an order for payment of salary of the post of Work Sarkar with effect from 1.4.1989. Wherefrom and as to how a Superintending Engineer got this power to revise the pay scale of a regularized Pipe Line Inspector claiming salary of the post of Store Keeper of work charge establishment for being paid salary for the post of work Sarkar is to be only understood by the petitioner who got 9 this collusive order and the authority who has obliged him. Such order in fact cannot confer any right on the petitioner, especially when the counsel for the petitioner is not in a position to say a word about Annexure C, the order dated 27.4.1979, regularizing and confirming the petitioner on the post of Pipeline Inspector w.e.f. 1.4.1971 in the pay scale of Rs. 220- 315 and only explanation gives now that Annexure C was not served upon the petitioner in his entire service span cannot be accepted, specially when he had not only taken benefit the higher pay scale with retrospective effect but had also admitted the same in paragraph no.6 of his last representation dated 29.5.1998 as well by giving his date of permanence as 1.4.1971 which was on no other post but the Pipeline Inspector vide Annexure C to the counter affidavit. It is thus obvious that the petitioner has not only raised a stale claim after more than two decades but in doing so he has adopted dubious means and has gone to the extent of making false statement and has obviously not approached this Court with 10 clean hands. That being so, this Court would find that the appetite of the petitioner for getting relief well after his retirement was wholly unjustified and uncalled for and therefore, this writ application is dismissed. Considering the fact that the petitioner has already retired from service this Court by way of mercy would not impose cost for indulging in frivolous litigation. (Mihir Kumar Jha,J.) Surendra/