IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1102 of 2009 Sheo Charan Paswan Versus The State Of Bihar & Ors ------- For the Petitioner: Md. Khurshid Alam, Advocate For theState : Mr. S.D.Sanjay, AAG 12 -------- 4. 08.08.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner is aggrieved by what he alleges is the wrong fixation of his pay scale in the cadre of Junior Accounts Clerk in the Public Health Engineering Department (hereinafter referred to as „the PHED‟) at the time of his appointment on 14.12.1989. Learned Counsel submits that by a notification dated 18.2.1981 the post of Junior Accounts Clerk and Senior Accounts Clerk in the PHED were merged with effect from 1.5.1980 as Accounts Clerk in the pay scale of Rs. 260 - 480/-. The petitioner was appointed in the pay scale of Rs. 535 – 690/- designated as Junior Accounts Clerk when he should have been assigned the pay scale of Rs. 730 – 1080/- as Accounts Clerk. The posts were de-merged subsequently by notification dated 28.9.1999.The petitioner could not have been appointed on a non existent post of Junior Accounts Clerk which was resurrected only after demerger. It is submitted that the matter stands decided by this Court inter alia in CWJC No. 15512 of 2001. Additional reliance is placed on an order dated 3.11.2009 referring to a Finance Department clarification dated 28.9.1999 that those designated as Junior Accounts Clerk but appointed prior to 27.7.1999 are entitled to the pay scale of Senior Accounts Clerk after demerger i.e. Rs. 4500 – 7000/- after 1.1.1996. Reliance was also placed on (1995) 5 SCC 628 (M. R. Gupta Vrs Union of India), to urge that fixation of a wrong pay 2 scale was a continuing cause of action and the issue of delay would not arise. Counsel for the State opposed the application to submit that the 4th Pay Revision Committee had fixed separate pay scale for Junior Accounts Clerk and Senior Accounts Clerk. The petitioner was awarded pay scale in that categorization. No such claim was raised by the petitioner in CWJC No. 879 of 1997 and therefore principle of constructive resjudicata shall apply. Having accepted the appointment in 1989 the petitioner cannot reagitate the matter after 20 years. Reliance is further placed on a Finance Department letter dated 30.5.1985 issued in pursuance of the recommendation of the 4th Pay Revision Committee. The Court had put a specific query to the State earlier if the 4th Pay Revision Committee was apprised of the government decision for merger of the posts of Junior Accounts Clerk and Senior Accounts Clerk on 18.2.1981 before the Committee came to make its recommendation for separate pay scale for Junior Accounts Clerk and Senior Accounts Clerk. This query has been answered in second supplementary counter affidavit at paragraph 3 acknowledging that the decision for merger was not communicated to the 4th Pay Revision Committee. It is also submitted that by order dated 2.7.1998 the petitioner was given revised pay scale of Junior Accounts Clerk. If after 18.2.1981 there existed no post of Junior Accounts Clerk consequent to merger till its resurrection by a notification for demerger on 24.8.1989 it is difficult to appreciate how the respondents contend appointments being made on a non existent post of Junior Accounts Clerk. The petitioner came to this Court earlier in CWJC No. 879 of 1997. The order amply reflected that he was fighting for the higher pay scale of Accounts Clerk and was seeking correction of the same. Though the order 3 of the Court does not specifically notice the words that he was seeking the pay scale of Accounts Clerk the order of the Court has to be understood in the background of nature of the dispute. It cannot be said that the petitioner was sitting idle. The clarification issued by the Water Resources Department, of the State Government as late as 3.11.2009 satisfies the Court that the issue has unnecessarily been sought to be kept alive by the respondents when no issue existed more so after pronouncement of the Court on more than one occasion. In the case of M. R. Gupta (Supra) relied upon by the petitioner the ratio is that the fixation of wrong pay scale was a continuing wrong and therefore delay can be no impediment . But the ultimate relief has been subjected to the law of limitation. After disposal of CWJC No. 879 of 1997 on 2.4.1997 the petitioner appears to have represented as late as 18.11.2008. The Court is not satisfied that the petitioner had actively been pursing the matter more particularly after the order dated 2.7.1998. The Court is also satisfied that the order dated 2.7.1998 granting him revised pay scale of a non existent post can be no impediment to the claim of the petitioner. The petitioner is therefore held entitled to the revised pay scale of Accounts Clerk (re- designated as Senior Accounts Clerk after demerger) but the arrears have necessarily to be limited to the period of past three years commencing from the period of filing of the writ petition i.e. 15.1.2009. The view taken finds support in the case of State of Madhya Pradesh v. Yogendra Shrivastava, (2010) 12 SCC 538 “18. We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the 4 Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application.” Let this order be complied with by payment of all arrears to the petitioner and issuance of necessary consequential orders for fixation of the correct pay scale within a maximum period of three months. The writ application stands disposed. Snkumar/- (Navin Sinha,J.)