1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1713 of 2003 CHANDRIKA DEVI, wife of late Pratap Narayan Jha, resident of village Garh Baruari, P.S. and District Supaul … Petitioner Versus 1. THE STATE OF BIHAR through the Secretary cum Commissioner, Health Department, Govt. of Bihar, Patna 2. The Special Secretary, Health Department, Govt. of Bihar, Patna 3. The Director-in-Chief, Health Service, Govt. of Bihar, Patna 4. The Regional Deputy Director, Health Services, Koshi Division, Saharsa 5. The Civil Surgeon, Supaul 6. The Civil Surgeon, Saharsa 7. The Civil Surgeon, Madhepura 8. The Medical Officer, Primary Health Centre, Udakishanganj, Madhepura 9. The Medical Officer, Primary Health Centre, Alam Nagar, Madhepura 10. The Medical Officer, Primary Health Centre, Saharsa 11. The Medical Officer, Primary Health Centre, Kishanpur, Supaul 12. The District Magistrate, Saharsa 13. The District Magistrate, Supaul 14. The District Magistrate, Madhepura 15. The Accountant General, Bihar, Patna … Respondents ----------- 4. 11.8.2010 Heard counsel for the parties. In this writ application the prayer of the petitioner, the widow of late Pratap Narayan Jha, who was an employee of the Health Department, reads as follows: “The petitioner prays for issuance of appropriate writ/s, direction/s and order/s to the respondents to give second time bound promotion on the post of Sanitary Inspector w.e.f. 1.4.1981 with all consequential monetary benefits 2 including arrear of salary and retiral benefits etc. within fixed point of time.” Mr. Pram Kumar Jha, learned counsel for the petitioner, would submit that the husband of the petitioner was entitled for second time bound promotion on the post of Sanitary Inspector with effect from 1.4.1981 but the same was not given to him in his life time, whereafter the widow petitioner has to pursue the same because it would entail consequential monetary benefit in form of arrears of salary and enhanced retiral benefits. Mr. Jha in this context would invite attention of this Court to an order dated 21.4.1989 in the writ application filed by the husband of the petitioner, C.W.J.C.No. 8699/98, and on the basis of same he would contend that when the authorities were directed to consider the issue of payment of salary as also time bound promotion, the same was not complied and therefore, the widow should now be made entitled to the benefit of such time bound promotion. Counsel for the State with the help of the counter affidavit would submit that 3 there was no question of the husband of the petitioner being promoted on the post of Sanitary Inspector, inasmuch as his initial appointment was made on the post of Paridhapak on which he had submitted his joining report on 1.2.1958, whereafter he was promoted to the post of Health Worker with effect from 1.4.1962. He would, accordingly, submit that under the time bound promotion scheme if a person has already earned one promotion he would be at best entitled to only one more time bound promotion and therefore, the prayer of the petitioner, the widow, for second time bound promotion seems to be wholly unsustainable. He would further submit that there was a break in service of the husband of the petitioner for the period 27.5.1961 to 25.7.1961 during the period he had remained under suspension for being absent from duty and that period had to be treated as leave without pay. In the counter affidavit it has also been made clear that the husband of the petitioner had passed the departmental examination for Health Inspector in February, 1981 and by that time the post of 4 Health Worker and Health Inspector were segregated, and normal line of channel of the husband of the petitioner was no longer the post of Health Inspector and therefore the husband of the petitioner could not be promoted on the post of Health Inspector with effect from 1.4.1981. With the aforementioned service history the counsel for the State has submitted that whatever was legally permissible and admissible to the husband of the petitioner either by way of salary or retiral benefit on the post that he had held last before his superannuation, the same was already paid and the widow after the death of her husband is also being paid the family pension. As with regard to G.P.F. counsel for the State submits that even that amount has been fully paid as has been explained in the supplementary counter affidavit. He would finally submit that the claim of transfer allowance of the husband of the petitioner was not admissible as no such bill of T.A. was ever submitted by the husband of the petitioner. It has to be noted that despite 5 service of copy of the counter affidavit there is no rejoinder to the averments made in the counter affidavit filed by the petitioner. From what has been noted above it would now become clear that the widow after the death of her husband has tried to wreck up all those things which were probably admissible in the service span of the husband of the petitioner. Paragraph 7 of the writ petition, strongly relied by the learned counsel for the petitioner, would go to show that by this writ petition the widow wants to in fact claim the following benefits: “That the admitted dues/ claim which are to be paid/ given to the petitioner are as follows: (i) Second Time bound promotion on the post of Sanitary Inspector w.e.f.1.4.1981 with monetary benefits including differential amount of arrear of salary and retiral benefits. (ii) Arrear of salary for the work done/medical leave as Health Worker for the following period:- (a) From 17.5.1961 to 24.5.1961; from 19.1.1963 to 31.1.1963; from 8.2.1963 to 30.4.1963; from September, 1964 to August, 1965 and 6 from the month of July, 1988 to November, 1990 (working at Primary Health Centre, Alam Nagar, Madhepura). (b) from June, 1991 to 31.1.1995 (day when Mr. Jha retired)- (working at Primary Health Centre, Kishanpur, Supaul). (c) From 4.5.1978 to 5.5.1978; from 7.5.1978 to 12.5.1978; from 14.5.1978 to 15.5.1978; from 16.8.1978 to 8.9.1978; from 1.10.1978 to 25.12.1978; from 25.4.1980 to 23.5.1980; from 1.6.1980 to 8.6.1980; from 11.6.1980 to 12.6.1980; 15.6.1980 to 19.6.1980; 11.10.1980 to 11.2.1981; from 1.3.1981 to 31.8.1981 (working at Primary Health Centre, Supaul). (d) from 16.6.1984 to 18.7.1984 and from September, 1984 to Agusut, 1985 (while working in Madhepura) (iii) Retiral benefits including part G.P.F., Gratuity, Leave Encashment and pension including family pension on the basis of revised pay scale. (iv) Five Transfer allowances. (v) To treat the length of service as 36 years 11 months and 30 days and not as 31 years 10 months and 15 days as wrongly calculated by the State- respondents and to give its consequential benefits.” 7 In the light of the aforementioned prayer paragraph 1 of the writ application becomes a misnomer, inasmuch as it no longer remains confined to claim of the husband of the petitioner with regard to second time bound promotion on the post of Sanitary Inspector and its consequential benefit as may be admissible to the petitioner on account of her being widow of the deceased employee. In this context the prayer of the husband of the petitioner in the earlier round of litigation becomes relevant which gets explained from the order of this Court dated 21.4.1989 which reads as follows: “ Heard learned counsel for the petitioner and the State. The Civil Surgeon is present in Court. Having heard learned counsel for the parties and appreciate their attitude with respect to the case of the petitioner irrespective of what was stated by the petitioner in the writ application and the respondents in the counter affidavit, we think that direction to the Civil Surgeon, Madhepura, to consider the case of the petitioner with respect to his arrear claims 8 within a reasonable time and the Directorate of Health Services, Government of Bihar to consider the case for time bound promotion within a reasonable time shall serve the ends of justice without therefore adjudicating any part of the controversy and deciding ourselves as to whether the petitioner is entitled to his claim or not, we hereby direct the petitioner to make- (i) a comprehensive representation with respect to his claim before the Civil Surgeon, Madhepura, within two weeks from today and latter to dispose of the petitioner’s representation within twenty days thereafter and pay thereafter within two months all such claims which are found genuine and payable to the petitioner. If necessary the Civil Surgeon, Madhepura shall call the petitioner to substantiate the claim by production of sub materials including documents which he may desire to produce before him; (ii) a representation to the Director-in-Chief, Health Services, Government of Bihar, on the question of time bound promotion within two weeks from today and the latter to dispose of the same within two months of the receipt of 9 the representation and accordingly, communicated the order to the petitioner. With the directions as above, this application is disposed of.” Let it be noted that thereafter the husband of the petitioner had also filed a contempt application alleging non-compliance of the aforementioned order of the Division Bench dated 21.4.1989 being M.J.C.No. 325/1990 and the same was dismissed for default by an order dated 22.8.1990. The husband of the petitioner is said to have died on 19.8.1999 but he did not choose to either reagitate the matter after dismissal of the contempt application. The widow after almost four years of the death of her husband has taken the mantle on herself to re-agitate the grievance pertaining to service career of her husband and claim benefit not only of promotion but also all sort of dues as would become clear from the reading of paragraph 1 and paragraph 7 of the writ application already quoted above. A question would arise as to whether such claims are belated or are un- ending cause of action which can be raised 10 by the employee or dependent of the employee at any point of time. Mr. Jha would like to satisfy this Court that the husband of the petitioner was vigilant and he had filed a writ application which was disposed of by an order of this Court dated 21.4.1989 and therefore, the delay of next 14 years in which the husband of the petitioner kept on filing representation either for redressal of his grievance or for payment of his due amount would get sufficiently explained. Counsel for the State, however, on the basis of his counter affidavit would submit that whatever was admissible and payable to the husband of the petitioner on the basis of service records as has been explained in the counter affidavit has already been paid and therefore, when the time bound promotion of the petitioner was also not admissible nothing is required to be paid. Mr. Prem Kumar Jha at this stage would submit that the petitioner being widow will be satisfied if the grievance of non- payment of amount and promotion of her husband as explained in paragraph 1 and 7 of 11 the writ application is reconsidered by the Civil Surgeon of the District. A stale claim of the year 1981 could not have been raised in this writ application by the widow, especially when the contempt application filed by the husband of the petitioner had stood dismissed. The petitioner’s husband did not remain vigilant to the cause and the wife, the widow, could have at best got what had flown from the rights of her husband. Now when the counsel for the petitioner submits that the widow will be satisfied with only consideration of such claim as may be admissible to her husband, this Court would direct the authorities to consider such claim of the petitioner strictly in accordance with law and on the basis of records available and if the husband of the petitioner is found entitled for grant of second time bound promotion as claimed in this writ application, the same may be given but if that is not found to be entitled the matter should rest there by making payment of admissible amount of retirement benefit to which the husband of the petitioner was 12 entitled on the basis of last post held by him and last salary paid to him. In nut- shell this Court would not even hold that the husband of the petitioner was entitled for such second time bound promotion and would simply remit the matter back to examine the claim of the husband of the petitioner as with regard to admissibility of time bound promotion as is being claimed by him and has been reiterated by the widow. Such decision, however, must be taken by the Civil Surgeon of the District within a period of six months from the date of receipt/ production of a copy of this order and if the petitioner is found entitled for any enhanced payment of retiral benefit on account of re-fixation of pay of the petitioner the same should also be extended to her within next three months. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/