IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1265 of 2002 RAMASHANKAR PRASAD, son of late Mushaddi Lal, resident of village Bhakuvahar, P.S. Bairangania, District Sitamarhi … Petitioner Versus 1. THE STATE OF BIHAR 2. The Director Secondary Education, Bihar, Patna 3. The Regional Deputy Director of Education, Sitamarhi 4. The District Superintendent of Education, Sitamarhi 5. The Special Secretary, Finance Department, Govt. of Bihar, Patna 6. Regional Education Officer (Riga), Sitamarhi 7. Middle School Bairagania, District Sitamarhi … Respondents ----------- 5. 27.8.2010 Heard Mr. Ashwani Kumar Singh, learned counsel for the petitioner and the counsel for the State. In this writ application the prayer of the petitioner reads as follows: “The petitioner seeks the following relief through the present writ application (a) for issuance of a writ in the nature of certiorari for quashing the memo bearing no. 2981 dated 13th September, 1997 as contained in Annexure 6 to this writ petition issued under the signature of the District Superintendent of Education, Sitamarhi whereby and whereunder a direction has been given to realize Rs. 18,886/- in four instalments of Rs. 4722/- each which had been paid to the petitioner in excess to the pay fixed between 1.3.1989 to 2 30.5.1989.” At the out set Mr. Singh, learned Senior counsel appearing on behalf of the petitioner, would submit that the amount of Rs. 18,886/- has already been recovered from the petitioner way back in the year 1997 and that the result of this writ application if allowed in favour of the petitioner would be to refund the amount already deducted from the petitioner. He has also submitted that he does not dispute to the fact that the petitioner was not entitled for such excess amount but then such excess amount was paid to the petitioner without any fraud or misrepresentation on his part. He would also make it clear that it was on account of wrong fixation of payment of salary of the petitioner that an excess amount of Rs. 18,886/- was paid to him. He would also rely on the judgment of the Apex Court in the case of Syed Abdul Qadir & ors. vs. the State of Bihar & ors., reported in (2009)3 SCC 475, to contend that in similar circumstances when recovery was already affected from the salary of some of the school teachers the Apex Court had directed 3 for refund of such amount. Counsel for the State, who has not filed any counter affidavit, would, however, raise a preliminary objection with regard to maintainability of the writ application on the ground of delay and laches on the part of the petitioner. He would submit that the impugned order came to be passed way back on 13.9.1997 and in fact was also given effect to by making recovery between September, 1997 to February, 1998 and as such, this writ application filed on 22.1.2002 after everything was finalized and done would not be maintainable. In this respect he has also submitted that once the petitioner does not dispute the fact that such excess amount drawn by him was not admissible to him, there can be no reprieve for him in paying back the said amount as the same is a part of public fund. Having given anxious consideration to the aforementioned submission, this Court is of the opinion that this writ application is fit to be dismissed only on the ground of delay and laches on the part of the petitioner. True it is that there is no 4 limitation for filing a writ application but a relief sought herein being out and out a monetary claim of refund, even a civil (money) suit for this purpose was not maintainable after expiry of the period of three years. The writ petition, therefore, cannot become a substitute for claiming such time barred monetary benefits. There is in fact also no explanation whatsoever as with regard to delay of almost five years in filing of this writ application and therefore, this Court must hold that this writ application is fit to be dismissed only on the ground of delay and laches. As with regard to applicability of the Supreme Court judgment in the case of Syed Abdul Qadir (supra) it must be made clear that the petitioners teachers subjected to recovery on account of wrong fixation of pay in terms of interpretation of Rule 22C of the Fundamental Rules had immediately moved this Court and the learned Single Judge had initially stayed the recovery whereafter the writ application was finally dismissed allowing such recovery to be made from them. In the interregnum period 5 while the appeal was pending before the Division Bench and the matter had traveled to the Apex Court the Government had made recovery in terms of the final judgment of the learned Single Judge. It was under such circumstances the Apex Court while finally deciding the issue in the judgment in Syed Abdul Qadir (supra) had observed that once the authority had chosen to recover the excess amount only during the pendency of the writ application even when the authority themselves were not aware of the applicability of Rule 22C of the Fundamental Rules, they were bound to refund such amount which was deducted from the salary of the teachers. As noted above, the petitioner took five years to understand his position and therefore, the ratio or direction given in Syed Abdul Qadir (supra) cannot be made applicable in the peculiar facts and circumstances of this case. That being so, this application is wholly misconceived and is, accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/ 6