1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5376 of 2005 DR.SACHIDA NAND SHRIVASTAVA Versus THE UNION OF INDIA & ORS ---- 7 23/7/2008 Heard counsel for the parties. This writ application has been filed by the petitioner on 28.4.2005 claiming payment of salary for the period from 5.7.1983 to 4.8.1986. Apparently for such belated relief clearly hit by the principles of delay and laches, this writ application is not maintainable. As a matter of fact, there is no explanation in the writ application for such inordinate delay. The representation annexed with this writ application filed by the petitioner also is of the years 1986 to 1999. Counsel for the petitioner, however, has referred to a representation filed on 27.1.2004 addressed to the Director, Rajendra Memorial Institute of Medical Science, Agamkuon, Patna (hereinafter referred to as the Institute) claiming payment of his salary for the period from July, 1983 to August, 1986 and on this basis counsel for the petitioner 2 has submitted that the cause of action for filing this writ application on account of non payment of salary of the years from 1983 to 1986 still continues. In the opinion of this Court such plea of the petitioner is to be noticed for its being rejected. It is on the record that the Institute had already disposed of representation of the petitioner dated 6.4.1990 on 04.09.1990 holding that in absence of valid order of deputation the Institute was not in a position to pay salary of the petitioner. It is thus clear that if not on any other date at least on 4.9.1990 the petitioner had cause of action for claiming payment of his salary for the period from 1983 to 1986, but he did not take notice thereof for the next 14 years and therefore he cannot be permitted to file this writ application with regard to cause of action which had arisen some 19 to 22 years back. This Court would find that the Institute against whom payment of salary is being claimed is not the “State” within the meaning of Article 12 of the 3 Constitution and is merely affiliated to Indian Council of Medical Research (I.C.M.R.), New Delhi. The civil action for claim of money against an Institute therefore had to be brought within three years of cause of action and therefore if civil suit for recovery of the amount by way of his salary could not be filed against the Institute by the petitioner, on or after 4.9.1993, it would be difficult for this Court to entertain a writ application after 14 years of the last communication on the subject by the Institute vide its letter dated 4.9.1990 (Annexure-5). The Apex Court in the case of State of Madhya Pradesh Vs. Bhailal, reported in A.I.R. 1964 S.C. 1006 had observed as follows:- “This Court may consider the delay unreasonable even if less than period of limitation prescribed for the civil action for the remedy, but where the delay is more than this period, it will almost always be permitted for the court to hold that it is unreasonable.” Similar view has been taken by the 4 Apex Court in the case of „Chandra Bhushan Vs. Dy. Director of Consolidation‟ reported in A.I.R. 1967 S.C. 1272, Makashi Vs. Menon, reported in A.I.R. 1982 S.C. 101 and Salonh E.Co. Ltd Vs. Superintendent of Taxes, reported in A.I.R. 1990 S.C. 772. This Court, in fact, had also called upon the respondents including the Institute to file counter affidavit and produce any record which could go to show that the petitioner was continued in deputation in the Institute under any valid order so as to be entitled for payment of his salary from the Institute. A counter affidavit has been filed both by the employer of the petitioner, namely, Government of Bihar, wherein liability of payment of salary has been sought to be shifted on the Institute. The Institute, however, by a separate counter affidavit has denied its liability on the ground that the writ petitioner in the relevant period i.e. July 1983 to August 1986 was not deputed in the Institute and as such the claim for payment of pay and 5 allowances from the funds of Indian Council of Medical Research is not tenable. As a matter of fact, when this Court in its order dated 14.3.2008 had directed the State Government and the Institute to produce any record which would show that there was a valid order for deputation of the petitioner for the period in question, i.e, from 5.7.1983 to 4.8.1986, both the parties have thrown their arms by taking a plea that no document to this effect is available in their offices. In that view of the matter, claim of payment of salary of the petitioner in absence of documentary proof of his valid order of deputation for the period from 5.7.1983 to 4.8.1986 or any proof of his working on the basis of such valid order of deputation cannot be examined, muchless, allowed by this Court. The delay thus caused by the petitioner for filing of this writ application has acted to his detriment because counsel for the respondents have taken a plea that they 6 were not even required to maintain the documents of the period from 1983 to 1986 from which they could examine claim of payment of salary of the petitioner. Counsel for the petitioner also could not point out any provision which would require the respondent, Institute to maintain such document after a lapse of 19 to 22 years of his alleged working in the Institute. From the materials on record it is also manifest that by the order dated 11.11.1982 the State Government had placed the services of the petitioner in the Institute by way of deputation only for a period of one month and 19 days with a clear stipulation that after 31st December, 1982 the petitioner would revert back to his earlier post, Medical Officer, Jagdishpur Block in the district of Bhojpur. It is on the record of this writ application that the State Government had subsequently extended the period of deputation up to 30th June, 1983 by a notification dated 16.3.1983, but thereafter the State Government had not 7 extended the period of deputation nor there is any proof for utilization of the services of the petitioner in the institute. Reliance of the petitioner on a letter of the Honorary Director of the Institute dated 26.3.1984 also is of no avail, in as much as, the Director of the Institute had, much after expiry of period of deputation of the petitioner (up to 30.6.1983) had sought extension of the period of deputation of the petitioner until end of December, 1984. There is nothing on the record to show that this request of the Honorary Director was entertained, muchless, allowed by the Government and therefore it has to be held that the claim of the petitioner that he continued on deputation even after 30.6.1983 is not supported by any Government notification. As a matter of fact, the letter of the Institute dated 4/5-9-1990 would go to show that the Institute had not even requisitioned the services of the petitioner. Infact the Institute in its letter dated 04.09.1990 has taken specific plea to the following 8 effect:- “From the record of the Institute, it is not clear that unless the services of an Officer from outside department on deputation is requisition and approved by the authority competent to sanction a requisition for such deputation borrowing department cannot depute an officer on Foreign Service Deputation i.e, outside the Deptt. In respect of Group „A‟ officer of the Council as such requisition is required approval and sanction of the Director-General of Indian Concil of Medical Research, Ansari Nagar, New Delhi-09 with prior concurrence of the Administrative Ministry, i.e, Ministry of Health & F.W, Govt. of India. In respect of Dr. Srivastava no such approval/saction was accorded by the Director-General of Indian Council of Medical Research, Ansari Nagar, New Delhi. It, however, deputation order of Dr. Srivastava was accorded by the Govt. of Bihar, Department of Health for the services of the council at its this Institute with effect from 25.11.82 to 4.8.86, a copy of the sanction of 9 the Govt. of Bihar, Deptt. Of Health may kindly be forwarded to the Institute at the earliest so that for consideration of payment of his pay and Allowances for the period of his services rendered at this Institute could be taken up with the Director-General of I.C.M.R, New Delhi for Ex-post- Facto sanction.” Copy of the said letter was sent to the petitioner but the petitioner also failed to produce any order of his deputation for the period in question i.e, 5.7.1983 to 4.8.1986. In that view of the matter, when there was no proper order of deputation, and the period of deputation had came to an end on 30.6.1983 he was not legally entitled either to continue in the Institute or to claim payment of salary for any period beyond 30.6.1982. From the correspondence between the Honorary Director of the Institute and the State Government as also the Indian Council of Medical Research, this much is clear that the petitioner wanted to be absorbed in the services of the Institute 10 if I.C.M.R. had accepted the proposal of the State Government for bearing the entire expenses of the salary, emoluments etc. But the said proposal could never materialize and the terms and condition communicated by the State Government to the Honorary Secretary were never confirmed by the Institute. In that view of the matter, the plea of the petitioner that he had served the Institute between 5.7.1983 to 4.8.1986 on the basis of valid order of deputation by the State Government cannot be said to be an admitted fact. As a matter of fact, from the materials on record particularly the affidavit filed by the Dy. Secretary, Department of Health, it becomes clear that the petitioner had received payment of salary for the period from 25.11.1982 to 4.7.1983, which is said to be his period of deputation only from the funds of the State Government in the capacity of his Medical Officer in Jagdishpur Block in the district of Bhojpur. Thereafter, the petitioner was not paid his salary till he 11 reported back to his parent employer, i.e, 5.8.1986. The mystery in this regard has, in fact, been clarified by the petitioner himself by producing a copy of order issued by the office of the Civil Surgeon- Cum-chief Medical Officer, Bhojpur at Arrah contained in his memo No. 1980 dated 11.8.1986 showing that when the petitioner was directed to join his services in the Jagdishpur block by the Health Department vide notification no. 729 dated 12.7.1985 he had done so only by reporting on duty in the Government on 11.8.1886 by claiming that he had been relieved from the Institute on 4.8.1986. It thus appears to this Court in the garb of claiming payment of salary the petitioner is actually trying to get his period of absence from the government service between 1.7.1983 to 4.8.1986 regularized which otherwise may be treated to be a break in service on account of unauthorized absence from duty as there is no order for continuation on deputation of the petitioner in the Institute beyond 30.6.1983. It thus becomes clear that the writ 12 application has been filed with an oblique motive and that too after gross inordinate unexplained delay of more than 19 to 22 years of the cause of action pertaining to payment of salary from the Institute. Such stale claim therefore cannot be gone into by the court. Specially when both the Government and the Institute have taken a common plea that no records are available to verify the alleged claim of the petitioner for continuing on deputation on or after 30.6.1983. Such stand of the Government can be found from paragraph 7 of the supplementary counter affidavit dated 22.7.2008 stating therein that the matter is about 25 years old and the file is not traceable. A similar stand has been taken in the letter of the Institute dated 22.5.2008 that there is no document pertaining to deputation or payment of salary of the petitioner in the Institute. As a matter of fact, when the Institute have not paid salary of the petitioner for even a single day as stands confirmed from the counter affidavit of the Government, this Court also cannot direct the 13 Institute to make payment of the salary of the petitioner. This Court, therefore, finds no merit in this application and the same is hereby dismissed. ( Mihir Kumar Jha, J. ) Abhay Kumar