IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3058 of 2005 GAYATRI DEVI WIFE OF LATE Markandey Thakur, resident of village Basantpur Jhitkahi, P.S.Sakara, District-Muzaffapur.—Petitioner. Versus 1. THE STATE OF BIHAR 2. The Director, Primary Education, Primary, Secondary and Adult Education Department, Govt. of Bihar, New Secretariat, Patna 3. The Regional Deputy Director, Muzaffarpur, 4. The District Education Officer, Muzaffarpur 5. The District Superintendent of Education, Muzaffarpur 6. The District Magistrate-cum-Chairman, District Education Establishment Committee, Muzaffarpur, through the Deputy Development Commissioner, Muzaffarpur, Dist-Muzaffarpur 7. The District Provident Fund Officer, Muzaffarpur 8. The Accountant General, Bihar, Patna.— Respondents. For the petitioner : Mr. V.K.Singh For the State : Mr. Shankar Kumar, AC AAG-5 For the A.G. : Mr. Arun Kumar Arun --- 5. 12.1.2010. Heard learned counsel for the parties. The original petitioner Late Markandey Thakur had filed the present writ petition seeking, inter alia, a direction to the respondent authorities for fixing his pension and other retiral benefits together with arrears of salary. The facts of the case, in brief, are that the petitioner was appointed as an Assistant Teacher in Bahnagari Up-graded School by the District Superintendent of Education, Muzaffarpur vide memo dated 10.2.1959 (Annexure-1). It is stated that the petitioner joined his 2 assignment on 12.2.1959 and thereafter he was transferred to Arajkiya Uchch Vidyalaya on 28.2.1959, where he served until May, 1960. It is stated that in June, 1960 the petitioner was transferred to Arajkiya Uchch Buniyadi Vidyalaya, Simri in the district of Muzaffarpur where he was working until September, 1966. It is contended that on 14.9.1966, the petitioner applied for earned leave from 18.9.1966 to 15.12.1966 to look after his seriously ailing father and thereafter he extended his leave from time to time. It is contended that on 5.1.1980 the petitioner sought permission to join his duty and kept sending reminders to the authorities of the State Government in the Education department but the said department did not accord him permission and the District Superintendent of Education by letter dated 10.5.1984 directed the petitioner to produce certain documents mentioned in the said letter (Annexure-6). The petitioner contended that despite complying with the requirement, he did not get any order of joining and he continued to file representation before the authorities. As per the date of birth, the petitioner would have retired from service on 31.1.1995. It is thereafter a lapse of almost ten years that the present writ petition came to be filed with the 3 relief as set forth hereinabove mentioning therein that as there was no termination order issued by the authorities, the petitioner was entitled to the reliefs of continuous service and for payment of the retiral dues. Learned counsel for the petitioner relies on a Division bench judgment of this Court reported in 1991 (2) PLJR 148 (Sidhnath Upadhyay Vs. The State of Bihar and ors). That was a case in which a person was not allowed to join the service after remaining absent for 19 years and an order came to be issued in purported exercise of powers under Rule 76 of the Bihar Service Code dated 31.12.1987. The said petitioner was dismissed by the Managing Committee by order dated 7.7.1990 and whereafter the writ petition was filed in the same year in 1999. The Division Bench taking note of the situation and the earlier order of this Court in the case of Sobhna Das Gupta Vs. The State of Bihar (1973 BBCJ 202: 1974 PLJR 382), came to a conclusion that the dismissal of the said petitioner was not in accordance with law and that there had to be a proceeding for dismissal of the employee and in absence thereof, the dismissal order was not sustainable, more so for the reasons that Rule 76 of the Bihar Service Code which was the basis for dismissal, had been declared 4 ultravires in the judgment rendered in the case of Sobhna Das Gupta (supra). Learned counsel for the petitioner, thus, submits that the case of the petitioner is covered the judgments of this court. A counter affidavit has been filed on behalf of respondent no.5, i.e the Deputy Superintendent of Education, Muzafarpur and in para-16 thereof, it is stated that the petitioner worked in Non-Government School from 1959 to 1966 and thereafter he remained absent. It is also mentioned that at the time of nationalization of the said school, the name of the petitioner was not mentioned and thus, the service of the petitioner never came to be taken over. It is further stated that whatsoever dues was admissible to this petitioner, was paid to him for the period of service rendered by him. Be that as it may, the fact is that the petitioner absented himself since the year 1966 to 1980 as admitted by him. It is also indisputed position that the petitioner sought his joining as back as on 15.5.1980 (Annexure-5) and he was not allowed to join the service and whereafter he kept making rounds of the authorities of the Education Department without seeking legal recourse. During this time, even the normal tenure to 5 which the petitioner would have worked under the State Government, expired on 31.1.1995, still the petitioner did not chose to seek legal recourse and has approached this Court even a decade thereafter in the year 2005. The petitioner is certainly not entitled for any indulgence by this Court and the writ petition is hopelessly, suffering from the vice of gross laches and delay. The judgment relied upon by the petitioner no doubt covers the cases of such kind where a person after long absence has not been allowed to join duty but the case of the petitioner does not fall under the said category for the reason that the petitioner has awoken from a long slumber of almost 30 years in seeking legal recourse. In that view of the matter, I am not inclined to exercise the discretionary jurisdiction provided under Article 226 of the Constitution. For the reasons aforesaid, the writ petition is dismissed. ahk (Jyoti Saran,j.)