IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2236 of 2002 ---------- In the matter of an application under Article 226 of the Constitution of India. ---------- MAHABIR PRASAD SINGH, S/O LATE SHRI SHAHDEO PRASAD SINGH, R/O VILLAGE AND P.O.-KARHARIA, P.S.-SULTANGANJ, DISTRICT-BHAGALPUR. ………………PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. REGIONAL DEPUTY DIRECTOR OF EDUCATION, BHAGALPUR. 3. DISTRICT SUPERINTENDENT OF EDUCATION, BHAGALPUR. 4. AREA EDUCATION OFFICER, SULTANGANJ, BHAGALPUR. 5. DISTRICT ACCOUNTS OFFICER, PAY FIXATION CELL, BHAGALPUR. …………………RESPONDENTS. For the petitioner : Mr. Ganpati Trivedi, Adv., Mr. Tarkeshwar Prasad Verma, Adv. and Mr. Prabhat Kumar, Adv. For the respondents: S.C.-IX. ----------- P R E S E N T THE HON’BLE MR.JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh, J: After his superannuation, petitioner has filed this writ application for a direction to the respondents to grant him benefit of revised pay scale with effect from 1.4.1981, of the period 3.8.1979(?) to 6.12.1983, as well as benefit of time bound promotion and benefit of pay scale of Senior Selection Grade, granted to him by the District Superintendent of Education by memo no. 19651 dated 26.12.1985, vide Annexure-3, with effect from - 2 - 1.4.1981(?) and for payment of arrears of salary etc. along with re-fixation of his consequential benefits with 12% interest per annum. 2. The case of petitioner is that he was appointed in the scale of Rs.55-90 as Assistant Teacher under the letter no. 71 dated 7.1.1957 issued under the signature of respondent District Superintendent of Education, Bhagalpur. Upon his appointment and posting, he joined in Elementary School, Paisraha, Sultanganj in the District of Bhagalpur on 12.1.1957. In view of Government letter no. 1439 dated 4.5.1968, his pay scale was changed and he was put in the pay scale of Rs.150-250. Lateron his pay scale was further revised to Rs.230- 340 in view of the department letter no. 3406 dated 14.3.1973. Thereafter, under memo no. 27994-28952 dated 12.12.1975 issued by the respondent District Superintendent of Education, Bhagalpur, he was granted Junior Selection Grade with effect from 1.4.1969 and was placed in the pay scale of Rs. 240- 396. 3. In course of transfer and posting petitioner was posted at Elementary School, Pipara, when he fell ill on 3.8.1979 and his illness continued upto 6.12.1983. After recovery, he submitted his joining on 28.6.1983 in the office of respondent District Superintendent of Education, - 3 - Bhagalpur with fitness certificate of the Doctor concerned. Prior to his absence on account of illness, with a view to remove anomaly in the pay scale of the petitioner, respondent District Superintendent of Education, Bhagalpur under his memo dated 17.3.1980, and in the light of Finance Department letter no. 8333 dated 27.4.1974, fixed his pay at Rs.246/- + personal pay at the rate of Rs.12/- (total comes to Rs.258/-) per month. Accordingly his pay was fixed as Rs. 308/- immediately before this proceeding on leave on medical grounds. In terms of the 4th pay revision introduced by the Finance Department Order No. 10770 dated 31.12.1981 with effect from 1.4.1981, petitioner was put in the scale of 580-860. 4. Petitioner waited for his posting on submission of his joining for some time. Finally respondent District Superintendent of Education, Bhagalpur passed orders regularizing his absence period as extra-ordinary leave in terms of Rule 236 of Bihar Service Code and by order dated 6.12.1983, vide Annexure-1, permitted him to join at his last place of posting. Accordingly, petitioner joined on 7.12.1983. It is contended that in terms of the 4th pay revision, petitioner’s pay was revised in the pay scale of Rs.580-860 with effect from 10.1.1985. Just before proceeding on leave on medical grounds - 4 - with effect from 2.8.1979 petitioner was drawing pay at the rate of Rs. 308/- per month. However, when petitioner’s pay was revised, in terms of 4th pay revision, his pay as on 31.3.1981, was taken as Rs.308/- and, after calculating the Dearness Allowance etc., his pay was revised as on 1.4.1981. However, the said pay as fixed on 1.4.1981 was allowed to the petitioner upon his joining with effect from 7.12.1983. Some of the calculations, in respect of the pay fixation during this period, have been mentioned in paragraph 16 of the writ application and the relevant portion of the service- book of the petitioner containing details of the same have been annexed as Annexure-2. 5. It is contended that the calculation shows that the petitioner was not given two increments in the old scale upto 31.3.1981 and was not given one increment in the revised pay scale from 1.4.1981 to 7.12.1983 and the pay of the petitioner was revised on the basis of his last pay drawn before his proceeding on leave on medical grounds with effect from 3.8.1979 and the benefits of the said revised pay scale was given to him from the date of his joining i.e. 7.12.1983. It is contended that, petitioner was granted pay scale in Senior Selection Grade of Rs.730-1080 with effect from 1.4.1981 by the orders of the respondent District Superintendent - 5 - of Education, Bhagalpur contained in memo no. 19651 dated 26.12.1985 as evident from Anneuxre-3. However, benefit of the same was also not granted to him of the period on account of his absence from duty till 6.12.1983. Thereafter, petitioner was granted new pay scale in Rs.1200-2040 in terms of Finance Department letter no. 6022 dated 18.12.1989 with effect from 1.1.1986. 6. In view of the anomaly in fixation of his pay scale, petitioner filed a representation before the respondent District Superintendent of Education, Bhagalpur on 2.5.1998, a copy whereof is annexed as Annexure-4 to the writ application. While his representation was pending for consideration petitioner superannuated from service with effect from 31.12.1998. It is contended that after superannuation his service book was sent for the approval to the District Accounts Officer, Pay Fixation Cell, Bhagalpur who, without applying his mind to the wrong fixation of his pay, returned the same. The representation of the petitioner having not been disposed of for quite some time, petitioner filed this writ application for the aforesaid reliefs. 7. A counter affidavit has been filed in the case by respondent no. 3 as well as by respondent no. 5. It is contended that the petitioner was not - 6 - entitled for time bound promotion as he had availed the benefits of promotion to Junior Selection Grade, order in this regard has been annexed as Annexure-B with the counter affidavit of respondent no. 3. It is also contended that the said letter (Annexure-3 to the writ application) was later on corrected, vide Annexure-C to the counter affidavit of respondent no. 3, shifting back the date of eligibility for grant of Senior Selection Grade to 31.4.1984, but the petitioner never claimed benefits of the same. With regard to the period 3.8.1979 to 6.12.1983, during which period petitioner was absent on medical grounds, it is stated in the counter affidavit of both the respondents that the petitioner was not entitled for benefits of the revision of the pay scale during this period as the petitioner was not on duty. Enclosing resolution no. 10770 dated 31.12.1981, respondents have heavily relied on the wordings of paragraph 2 of the said resolution to contend that the resolution clearly laid down that in case of a Government employee who was under suspension or on leave or was not on duty on 1st April, 1981, the benefits of revised pay scale was to be made admissible to him from the date of his returning on duty. 8. In view of the pleadings made in the counter affidavit, learned counsel for the - 7 - petitioner, during the hearing, gave up the claim of petitioner with regard to grant of time bound promotion. However, he seriously challenged the refusal of the respondents to grant the benefit of revision of pay scale to the petitioner with effect from 1.4.1981 and consequent revision of his pay scale in Senior Selection Grade. He submitted that the said stipulation in the said Government resolution annexed by the respondents as Annexure-A to the counter affidavit was in fact arbitrary, unreasonable, discriminatory and fit to be quashed. He explained that the absence of employees from duty as on 1st April, 1981 may be of different fortuitous circumstances on which the employee may not have any control, and therefore without considering the circumstances under which an employee was not on duty on 1.4.1981 depriving him of the benefits of revision from the appointed date is highly arbitrary. Giving an example, it was submitted that it may be possible that an employee was under suspension from before and continued as such on 1st April, 1981 onwards and lateron, on some date his suspension was revoked with or without enquiry finding him clean of any charges. Still as per the said stipulation in the resolution he would stand denied of the benefits of the pay revision with effect from 1.4.1981 for no fault of his. He also - 8 - submitted that it may be possible that as on 1.4.1981 an employee may be on casual leave or earned leave or any other admissible leave, which, as per law, could not affect his service condition to his detriment. But in the light of the said stipulation he would stand denied of the benefits of the pay revision from 1.4.1981 till he joins his duty. However, he submitted that, instead of holding the entire resolution as ultra vires on this score, or the said stipulation at least, it is open to this Court to read down the said stipulation so as to make it workable and reasonable, as quashing of the same may create anomalous situation as the same has been in operation since last several years. 9. Learned counsel for the respondents, in reply, submitted that the said resolution no.10770 dated 31.12.1981 has been in operation since 1981 itself. He submitted that thousands of cases of grant of revised pay scale and consequent fixation and grant of consequential benefits thereof may have been done by the respondents by now. He submitted that by holding the said stipulation in the resolution as ultra vires after more than 25 years may unsettle settled transactions giving rise to de novo exercise in thousands of cases after 25 years. He submitted that in the circumstances of this case doctrine of stare decisis may be invoked by this - 9 - Court to refrain from unsettling a settled law and operating since last 25 years. He submitted that, in the facts and circumstances of this case, this Court may not go into that question as the writ application itself suffers from delay and laches and is fit to be dismissed on that ground alone. 10. So far as legal proposition is concerned, the submissions of learned counsel for the petitioner may be correct. The resolution which was made applicable to all State Government employees with effect from 1.4.1981, unreasonably carves out a category of employees for making the resolution applicable in their cases, only on the date of their return to duty, in case they are not found on duty on 1.4.1981 for any reason. It does not take into account situations in which an employee may not be on duty on 1.4.1981 for different fortuitous circumstances on which he may not have any control. Therefore, depriving such an employee all the benefits of the revision from the date of resolution coming into force for no fault of theirs, without going into the reasons for their absence in individual cases with liberty to the concerned employees to explain the same, appears to be arbitrary, unreasonable and as such fit to be held ultra vires Article 14 and 16. How far the same could be saved by application of doctrine of stare - 10 - decisis is also a question to be considered. 11. However, the fact situation of this case does not warrant going into the legal aspect in respect of the validity the said stipulation in the said resolution as apparently the writ application suffers from unexplained gross delay and laches on the part of the petitioner. Petitioner has admitted in his pleadings, and by producing Annexure-2, that he had come to know about non-grant of three increments, otherwise admissible to him during his absence period, in the year 1985 itself. He had full knowledge of the fact that his pay was fixed in the revised scale under the 4th pay revision with effect from 1.4.1981 on the basis of his pay last drawn immediately before proceeding on leave without adding admissible increments to the same. He had also full knowledge of the fact that the pay fixed in revised scale as on 1.4.1981 was paid to him upon his re-joining on 7.12.1983 without adding increments admissible in the revised scale also. Even after the said wrong fixation of pay in revised scale, he availed the benefits of Senior Selection Grade, and further revision on the basis of that wrong fixation, but never raised any grievance before the respondents till he approached his age of superannuation. The records show that, inspite of having knowledge of the said alleged wrong fixation - 11 - of his pay scale in the revised scale in 1985 itself, petitioner, for the first time filed representation on 2.5.1998 merely 7 months before his due date of superannuation. This shows that the petitioner has been negligent and callous towards his claim and only woke up in the matter to raise his grievances after about 13 years of his coming to know of his having deprived of the same. 12. In the circumstances, without giving any findings on the merits of the submissions of learned counsel for the petitioner in respect of vires of the said stipulation in the resolution, and without going into the merits of the claim of the petitioner in respect of wrong fixation of his pay in the revised scale, this Court holds that the writ application suffers from enormous delay and laches on the part of the petitioner in pursuing his claim and, therefore, on that score only the writ application is fit to be dismissed. 13. In the result, this writ application is dismissed but without costs. Patna High Court The 28th October, 2009 N.A.F.R./Arvind (J. N. Singh, J.)