IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3892 of 2009 Atul Kumar Verma Versus The State Of Bihar & Ors ----------- For the Petitioner: Mr. Mukul Sinha, Advocae For the State : Mr. Ujjawal Kumar Sinha, AC to AAG XI ------ 2. 21.07.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner is stated to have superannuated on 31.3.1998 while holding the substantive post of Chief Engineer but officiating as Engineer in Chief from 6.5.1997. Learned Counsel for the petitioner submits that:- (a) the petitioner is entitled to the salary of the higher post for the period that he worked on the same; (b) the petitioner is entitled to revision of his pension in accordance with the pay scale of Engineer in Chief; (c) payment of the legitimate arrears under both heads. It is submitted that the denial of the salary or revision of pension for the higher post is a continuing wrong and therefore he cannot be non suited on the ground of having preferred the writ application in 2009. Reliance is placed on 2008 (8) SCC 648 (Union of India & ors. Vs Tarsem Singh). It was further submitted that under a circular dated 20.10.1982 of the Personnel and Administrative Reforms Department, Clause 4(b) states that if vacancies were available, in absence of any other legitimate candidate, the question of relaxation of the time period to be considered for the promotional post, must also be considered. Since no other candidate was available for the post of Engineer in Chief, the petitioner was entitled to be considered for that post by making due relaxation of the time period of four years required for the same. 2 Counsel for the State with emphasis to paragraph 9 of the counter affidavit submitted that as per a notification of the Personnel and Administrative Reforms Department of 12.6.1984, the time period to be spent as Chief Engineer before the person becomes eligible to be considered for the post of Engineer in Chief was four years. The petitioner worked as Chief Engineer for one year six months only from 1.9.1996 till his superannuation on 31.3.1998. He therefore did not fulfill the conditions to be considered for promotion. An objection was raised on behalf of the State to either of the reliefs on the ground of delay. It was lastly submitted that it is not the contention of the petitioner in his pleading that he has not been paid any officiating allowance under Rule 103 of the Bihar Service Code. The pleadings in the writ application do not contain even a whisper of a suggestion explaining why after superannuation on 31.3.1998 the writ petition was filed as late as 20.3.2009. The contention sought to be raised on behalf of the petitioner today were issues all available to him during his service tenure. Even thereafter if he had approached the Court immediately after his superannuation, there may or may not have been a claim for consideration. The writ application states that he was given charge of the post of Engineer in Chief in accordance with his due seniority as persons above him had superannuated and no other eligible candidate was available and that he did not supersede any body. That does not change the position from 1998 till 2009.The writ petition does not plead specifically that he fulfilled all the conditions of eligibility prescribed by the Rules so as to even make it a case for substantive promotion if that could be the explanation for the delay. 3 If the petitioner has not been able to convince the Court for having sought relief belatedly, the same predicament shall continue to attach to him even if he were to mould the relief by giving up the claim for arrears as suggested during argument and confining it to the prospective revision of pension only. In the case of Tarsem Singh (Supra), the claim for disability pension was made in 1999 due to invalidation from Army Service on 13.11.1993. The eligibility to the disability pension was not in dispute. In that background it was held that denial of pension from due date was a continuing wrong. The emphasis laid by the Counsel for the petitioner upon paragraph 7 of the judgment must be noticed by the Court as follows;-_ “7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the 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.” The distinguishing feature of the present case is that it is not the case of the parties that the petitioner fulfils all the pre conditions for 4 promotion to the post of Engineer in Chief. The question of delay to debar the relief is more a matter for sound exercise of discretion rather than a matter of law. It shall therefore depend on the facts and circumstances of each case. The claim for arrears of pension simplicitor shall fall in a separate category. The claim for pension on a foundation of fulfilling the claims for that post out of which the claim for pension arises is an entirely different matter. The answer to the contention of the petitioner has to be found in the very same paragraph of the case of Tarsem Singh relied upon on behalf of the petitioner noticed above. The State has raised on objection of delay. The present claim is nearly eleven years after superannuation. In a claim for promotion raised after eight years of superannuation the Supreme Court held in the case of Bhakra Beas Management Board v. Krishan Kumar Vij (2010) 8 SCC 710 at paragraph 37 as follows:- “37. Yet, another question that draws our attention is with regard to delay and laches. In fact, Respondent 1's petition deserved to be dismissed only on that ground but surprisingly the High Court overlooked that aspect of the matter and dealt with it in a rather casual and cursory manner. The appellant had categorically raised the ground of delay of over eight years in approaching the High Court for grant of the said relief. But the High Court has simply brushed it aside and condoned such an inordinate, long and unexplained delay in a casual manner. Since, we have decided the matter on merits, thus it is not proper to make avoidable observations, except to say that the approach of the High Court was neither proper nor legal.” The reference to a similar order of the Court in CVWJC No. 9789 of 2000 and a analogous case dated 7.1.2000 is again misconceived. The claim was based on confirmation dated 7.4.1997. The arrears were claimed from 2.10.1980. The writ petition was filed within three years of the confirmation. The Court finds no merit in this application. It is accordingly dismissed. Snkumar/- (Navin Sinha,J.) 5