IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.304 of 2001 PRABHU DAS Versus THE STATE OF BIHAR & ORS ----------- 4/ 27/8/2008. Heard learned counsel for the petitioner and learned counsel for the State. The father of the petitioner is stated to have been a regular cook in the Jaipur Kalyan Chhatrawas who died in harness on 2.12.1987. In pursuance of an application the petitioner came to be appointed on compassionate ground by the committee on 19.9.1992 when he joined duties as such at the Harijan Kalyan Chhatrawas on a vacant post of peon who has not been paid salary from 1.4.1998. It is his specific assertion in paragraph-4 of the writ application that he has been working continuously and has not been terminated from service. A counter affidavit has been filed on behalf of the respondents. From the counter at annexure-A, an order dated 23.9.1993 of the Deputy Director, welfare, Bhagalpur Division, it is apparent that the act of his appointment on a vacant post in the hostel in question is not in disputed as is also not in dispute that salary was paid to him till 1998 when after that for lack of - 2 - allotment of funds salary has not been paid. Surprisingly, the same, even while stating that the petitioner was appointed on a vacant post, concludes by saying that there is no sanctioned post. The inherent contradiction has only to be noticed. The counter affidavit then goes on to suggest that he could not be given the benefit of payment in absence of vacancy when his appointment came to be regularized on 12.4.2004 and that salary has now been paid to him for the period 16.4.2004 to October, 2006. For the period 1.4.1998 to 15.4.2004, it is stated that after receiving a report from the District Welfare Officer appropriate decision for the payment shall be taken soon after the allotment of funds is received. The petitioner came to this Court in January, 2001. More than seven years later the respondents chose to file a counter affidavit on 30.7.2007 in a non-committal manner. His assertion that he has been working has not been denied in the counter affidavit and is, therefore, tenable. Assertion of continuous discharge of duties as stated in paragraph-8 of the counter affidavit to submit that it needs no comments. The factual - 3 - position therefore stands admitted. The respondents are therefore directed to pay the legitimate dues of the petitioner from 1.4.1998 to 15.4.2004 within a maximum period of three months from the date of receipt/production of a copy of this order. In the event that the legitimate dues after quantification are not paid within the aforesaid period, the arrears shall carry interest at the rate of 5% till payment which shall be required to be recovered by the Government from the salary of the delinquent officials for whose fault the payment could not be made to the petitioner after fixing the responsibility. It is made clear that the direction of the Court is to ascertain the quantification of the legitimate dues and to pay the same within the aforesaid period as the eligibility is not in dispute. It is only the quantification. The writ application stands allowed. KC ( Navin Sinha, J )