IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5493 of 2008 SUNAINA DEVI Versus THE STATE OF BIHAR & ORS ----------- 5 2.7.2008 Heard Counsel for the petitioner. In this writ application, the petitioner, widow of Dr. Dilip Singh, has made a prayer that her husband should be exempt from passing the Hindi Noting and Drafting Examination w.e.f. 10.1.1988 in place of 24.1.1996 and upon such shifting of the date of exemption of passing of the departmental examination, the amount of increments which have been withheld by the Government in the payment of salary of the husband of the petitioner for the earlier period should also be recalculated and paid and consequently on that basis, the last emolument drawn should be recalculated for the purposes of payment of re-fixation and payment of pension and other retirement benefits. A counter affidavit has been filed in this case wherein the respondents have taken a firm stand that Dr. Dilip Singh retired on 31.1.1996 and on the eve of his retirement, the department had granted him exemption from passing the departmental examination w.e.f. 24.1.1996. The case of the respondents therefore is that such exemption can only be given with prospective effect and not retrospective effect. In this regard, the Counsel for 2 the State has also placed reliance on the original 1968 rules which lays down that exemption in passing of departmental examination upon completion of 50 years of age is to be given on satisfaction of the Government that the concerned Government servant was not required to do a work relating to Hindi Noting and Drafting Examination and consequently came to be assigned such duty only on attaining 50 years of age. Counsel for the Respondent therefore submits that this Court may not interfere with such subjective satisfaction of the Government for allowing the prayer of the widow of Dr. Dilip. In the opinion of this Court, the writ application suffers from the vice of inordinate unexplained delay inasmuch as the cause of action for such a relief had become available to Dr. Dilip Singh, the husband of the petitioner way back on 10.1.1988. The vague explanation given by the petitioner that her husband had filed his first writ application in the year 1997 is also of no avail because that was confined to the payment of retirement benefit and did not raise a question of shifting back the date of exemption of departmental examination. The petitioner then relies on a writ petition filed by her husband being CWJC No. 8978/1999 which according to the petitioner came to be dismissed on 20.8.2004 because by that time, the husband of the petitioner, the writ petitioner of CWJC 3 No. 8978/1999, had died on 6.11.2003. This also in fact will not help the case of the petitioner because if that writ petition was dismissed for default, the petitioner ought to have taken steps for restoration of that writ application instead of filing this writ application which also came to be filed after almost three and a half years of the dismissal of the earlier writ application. Apart from the delay, this Court is also satisfied that no order for passing of an order of granting exemption can be made with retrospective effect in terms of 1968 rules. Therefore, once the order of exemption of the petitioner was passed in the year 1996, the benefit of the same could have been given to the husband of the petitioner only from prospective effect. The husband of the petitioner also from 1996 to 1999 did not take any steps probably on account of being his satisfied and later on had raised this dispute in the year 1999 which as noted have came to be dismissed due to want of prosecution. At this stage, Counsel for the petitioner has tried to impress before this Court by producing some paper before this Court that a representation was filed in the year 1988 by the husband of the petitioner seeking such exemption from appearing in the departmental examination. In the opinion of this Court, first of all, such practice of producing some documents from the hat must 4 be deprecated specially when this plea has not been raised in the present writ application so as to elicit response from the respondents in their counter affidavit. Consequently, the explanation that such a representation was filed by the petitioner in the year 1998 should have been the basis for appearing in the departmental examination can also not be accepted. The rules regarding passing of a departmental examination/Hindi Noting and Drafting Examination is part of the service condition and has been framed under proviso to Article 309 of the Constitution of India and the same cannot be disregarded in the manner it has been chosen to be either in this case. An employee who has to work under defined service condition must be conscious of his limitation and therefore only because he has retired or died, the operation of the rules cannot be changed to subserve the cause of equity for making payment of retirement benefit of salary. The 1968 rules requiring passing of the Hindi Noting and Drafting Examination being one of mandatory in nature, and that the provision thereof having been not complied by the husband of the petitioner in his life time even could not have claimed exemption as a matter of right from retrospective effect. The petitioner being the widow of such a government servant cannot have a better right than her husband. 5 Be that as it may, there is no merit in this writ application and the same is accordingly dismissed. Rsh ( Mihir Kumar Jha, J.)