IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8774 of 2005 SHIVA SHANKAR SINGH son of late Jaladhar Singh, resident of village & P. O. Sardiha, Police Station Simiri- Bakhtiarpur, District Saharsa. …Petitioners Versus 1. THE STATE OF BIHAR through the Food Commissioner- cum-Secretary to Government, Food, Civil Supply and Commerce, Bihar Old Secretariat Patna. 2. Deputy Secretary to Government, Food, Civil Supply and Commerce Department, Bihar, Old Secretariat, Patna. 3. Under Secretary to Government, Food, Civil Supply and Commerce Department, Bihar, Patna 4. District Magistrate, Saharsa. 5. Subdivisional Magistrate-Sadar, Subdivision, Saharsa. 6. Treasury Officer, Saharsa. ….Respondents. ----------- 3. 24.06.2009. Heard counsel for the petitioner and counsel for the State. Originally, the prayer of the petitioner in this writ application was as follows:- “1(A) Issuance of direction, order or writ in the nature of mandamus or any other appropriate writ from this Hon’ble Court commanding the respondents to pay salary from 9.2.1996 to 31.3.1997 as Assistant District Supply in the pay scale of 6500-200-10500/- for performing the duties and functions of the said post as per order of the Government of Food Civil Supply and Commerce Department, Bihar. (B) Issuance of direction, order or writ in the nature of 2 certiorari, setting aside the letter no. 253 dated 15.1.2002 of the Government contained in Annexure-6 to this writ application whereby the pay of the petitioner has been fixed in the pay scale of Rs.5500-9000 instead of the pay scale of Rs.6500-10500/- contrary to law. (C) Issuance of direction or writ in the nature of mandamus commanding the respondent to allow the consequential benefits during the service period and even after retirement if any to the petitioner along with cost.” It is not in dispute that the petitioner after almost 8 years of his retirement came out with this writ application for claiming a relief for payment of certain monetary benefit by way of salary from February 1996 to March 1997 which could not have been entertained and allowed in a civil suit. That apart the order dated 15.1.2002, in the opinion of this Court does not suffer from any infirmity inasmuch as the decision to make payment of salary in a higher pay scale will also depend on the factum of promotion and an order to that effect. There was, however 3 no such decision taken on or before 15.1.2002 on the basis of which the petitioner could have claimed pay scale of Rs.6500-10500/-. The petitioner has however now filed a supplementary affidavit today enclosing a notification dated 22.6.2007 under which he along with fourteen other retired officials have been given notional promotion in the pay scale of Rs.6500- 10500/- with effect from 1.1.1996. The moment, the petitioner has been given notional promotion from 1.1.1996 he becomes entitled for all the entitlement of pay fixation for the purposes of retirement benefit and therefore the real grievance of the petitioner now remains confined to payment of salary for the period 9.2.1996 to 31.3.1997. That cannot be, however, allowed both in view of the delay in filing of this writ application as also emergence of similar claim of other persons at least 15 of them, all of whom have been given notional promotion along with the petitioner. Counsel for the petitioner has 4 been specially asked by this Court as to whether the petitioner has assailed the government decision giving promotion to him on national basis w.e.f. 1.1.1996. Learned counsel however submits that the petitioner does not intend to challenge the said notification of his notional promotion. In that view of the matter, once the petitioner has accepted notional promotion without any demur or protest with effect from 1.1.1996 he must be also prepared to accept the all the consequences of such notional promotion under which there is no concept of payment of actual salary. Reliance placed by counsel for the petitioner upon a decision of Hon’ble Apex Court, in the case of Union of India & Ors. vs. Tarsem Singh reported in 2009(1) All India Services Law Journal 371, is also wholly misconceived inasmuch as that very judgment restricts the claim of payment of salary to a period of three years, as would evident from the last sentence of paragraph 5 reading to the following effect 5 “…..As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” Admittedly, this writ application was filed on 25.7.2005 and therefore even if every thing is accepted the petitioner’s salary for the period 9.2.1996 to 31.3.1997 cannot be allowed as the same is not within a period of three years. It is, however, made clear that on the basis of notional benefit of promotion the respondents will be required to fix the last pay of the petitioner and also take the same into account for the purposes of calculation and payment of retirement dues to the petitioner. Subject to aforementioned observations, this writ application being devoid of any merit is hereby dismissed. Kanchan (Mihir Kumar Jha, J.)