IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.912 of 2006 SYED SAIFUL HAQUE, son of Late S. M. Hazique, resident of Flat No. 202, Chaman Apartment, Mohalla Bhikna Pahari, P. S. Pirabahore, District- Patna. …. Petitioner. Versus 1. THE STATE OF BIHAR 2. The Director-in-Chief, Health Services, Department of Health, Government of Bihar, Patna. 3. The Commissioner-cum-Secretary, Department of Health, Government of Bihar, Patna. 4. The Commissioner-cum-Secretary, Department of Finance, Government of Bihar, Patna. 5. The Under Secretary, Finance Department (Personnel) Claim Pay Fixation Section) Government of Bihar, Patna. 6. The Chief Malaria Officer, Bihar, government of Bihar, Patna. ….Respondents. ----------- 4. 27.08.2010 Heard Mr. Farooqua Moazzam, learned counsel for the petitioner and Mrs. Nivedita Nirvikar, learned G. P. 16 for the State. The prayer of the petitioner in this writ application reads as follows:- “1. That the instant writ petition is being filed in this Hon’ble Court for issuance of an appropriate writ or order or direction commanding the respondents to grant the petitioner to be deemed promotion to the post of District Malaria Officer on which post the petitioner worked as its Incharge till the date of his superannuation i.e. on 31.12.1990 with the payment of salary of the post of District Malaria Officer after due deduction which the petitioner already received to the post of Assistant Malaria Officer while working as Incharge District Malaria Officer in view of recent 2 pronouncement by this Hon’ble Court in CWJC No. 9448/1997 and CWJC No. 5942/1998 disposed of on 27.10.2005 together as contained in Annexure-1 to this writ application and further subsequent direction for payment of post retirement benefits along with leave encashment and other benefit on the basis of principles of last pay drawn as provided in Bihar Pension Rules.” Mr. Moazzam, learned counsel for the petitioner as with regard to the aforementioned prayer would submit that it is not in dispute that the petitioner while holding the substantive post of Assistant Malaria Officer was asked to work as District Malaria Officer from a period in between 23.6.1981 to 31.12.1990 and therefore he would be entitled for the salary and emoluments of the post of District Malaria Officer. In this regard, reliance has been placed on an order of this Court dated 27.10.2005 pass in CWJC No. 9448 of 1997 to CWJC No. 5942 of 1998. Mr. Mozzam however, immediately adds that the aforementioned order of the learned single Judge dated 27.10.2005 has already been made subject matter of appeal at the instance of the State of Bihar and the operation of the order of the learned single Judge has been stayed. 3 Counsel for the State, on the other hand, having filed a counter affidavit has raised a preliminary objection as with regard to maintainability of the writ application on the ground of delay. In this context, it has been submitted that the cause of action for the petitioner to claim salary for the post of District Malaria Officer for the period of his working between 1981 to 1990 arose at least some 20-27 years back but the present writ application was filed only on 23.1.2006 and as such the delay itself would be fatal for the petitioner in this case. It is also pointed out that now when the petitioner had moved this court claiming payment of deputation allowance in CWJC No. 12177 of 1995 i.e. after five years of his retirement, no one had stopped him from also claiming the payment of salary for the post of District Malaria Officer and therefore it would be deemed that the prayer of deputation allowance also contained the element of salary of the post of District Malaria Officer. She has therefore proceeded that when the writ application was disposed of on 11.4.1997, its review was also dismissed and the appeal was also got rejected and the petitioner did not get any relief and the petitioner became 4 wiser only on account of an order of this Court dated 27.10.2005 which however would not give the petitioner a new cause of action inasmuch as the aforementioned inter parte order dated 27.10.2005 also is no longer in force on account of its being stayed by the Division Bench. She has finally submitted that the said order in fact is per incurium inasmuch as it does not take into consideration the scope of Rule 103 of Bihar Service Code which actually is cut out for this very situation when a person holding an inferior rank is allowed to work on the higher post. Mr. Mozzam in reply, would submit that there is no difficulty in understanding the scope of Rule 103 of Bihar Service Code and in fact the petitioner has been paid his full salary by giving him the benefit of Rule 103 i.e. 20% of the salary of the higher post but that would not satisfy the petitioner because he had worked on the higher post and as such entitled for payment of full salary of that post. In the considered opinion of this Court there are insurmountable difficulties in the way of the petitioner the first of being, the inordinate delay in filing of this writ application. In this regard it has to be taken into account 5 that the petitioner had worked on the post of District Malaria Officer while holding his substantive post of Assistant Malaria Officer continued to receive month to month salary from 1981 to 1990 but did not choose to protest in that period that he will not work on the post of District Malaria Officer, unless he is given the salary of that post. The petitioner in fact happily accepted 20 % additional salary of higher post in terms of Rule 103 of Bihar Service Code and thereafter had kept mum till next 16 years of his retirement i.e. upto 2006. In fact, the counsel for the State seems to be correct that such belated cause of action was sought to be revived by the petitioner despite his losing in earlier round of litigation. Thus only because of an order passed in similar case by this Court on 27.10.2005 which also has already been stayed by the Division Bench which this Court is not required to follow the ratio laid down therein specially when the said order on the face appears to be per incurium inasmuch as it does not take into consideration the scope of Rule 103 of Bihar Service Code, will not give a fresh cause of action to the petitioner. That being so, when the petitioner earlier also 6 moved this Court his either not making the prayer for full salary or having made prayer for this very relief had lost his writ application, an interparte order passed therein would bind him and therefore he cannot now raise the same question only because this Court in similar other case had passed an order (which also is no longer in operation on account of its being stayed). The petitioner had already received benefit of 20 % salary of post of District Malarai Officer and therefore that should satisfy him because that was all that he was entitled to get in terms of Rule 103 of Bihar Service Code. For the reasons indicated above, this is no merit in this writ application and the same is, accordingly, dismissed. kanchan (Mihir Kumar Jha, J.)