IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9201 of 2003 Neelam Kumari Singh, daughter of Shri Bishwanath Singh and wife of Shri Markandeya Singh of Road No. 10-A, Rajendra Nagar, P.S. Kadamkuan (Patna) at present residing at C/24, Vijay Nagar (Hanuman Nagar), P.S. Patrakar Nagar (Kankarbagh) in the town and district of Patna. ---------- Petitioner Versus 1. The State of Bihar through Commissioner-cum-Secretary, Secondary Education, Department of Human Resources, Government of Bihar, Patna. 2. Commissioner-cum-Secretary, Secondary Education, Department of Human Resources, Government of Bihar, Patna. 3. Director (Secondary Education), Department of Human Resources, Government of Bihar, Patna. 4. Deputy Director (Secondary Education), Department of Human Resources, Government of Bihar, Patna. 5. Finance Commissioner-cum-Secretary, Department of Finance, Government of Bihar, Patna. -------- Respondents ----------- For the Petitioner :- Mr. Markandeya Singh Adv. Mr. Syed Wazir Ali, Adv. Mr. Balraj Kishore, Adv. Mr. Kumar Rajeev, Adv. Mr. Raghunath Singh, Adv. For the State :- Mr. Anant Kr. Bhaskar, AC to SC2 ----------- 3 13.09.2010 Having heard learned counsel for the parties as with regard to the following prayer:- “1(I) Quashing the office order of Director (Secondary Education), Respondent No.3 issued vide Memo No. 432 (Vidhi) Patna dated 17.7.2003 as contained in Annexure-10, whereby and whereunder he has refused to redress the petitioner’s grievances regarding her continuity in service, w.e.f. 21.12.85, payment of entire arrear 2 salary for the entire period of her posting from 21.12.85 to 19.1.90 with all other consequential benefits accrued to her in the eye of law treating the petitioner in regular service with effect from 21.12.85, the day on which she had first joined her posting of Assistant Teacher in Shoundik Uchcha Vidyalaya, Rajpur (Rohtas) pursuant to her appointment letter vide Memo No. 4315-4405 (Ni) Patna dated 1st August, 1985 as contained in Annexure-1. (II) To command the concerned respondents authorities to grant continuity in her service, as Assistant Teacher w.e.f. 21.12.1985 the date on which she had first submitted her joining on her appointment vide letter of appointment dated 1.8.1985 (Annexure-1) and accordingly to make payment of the entire arrear amount of salary for the period of her waiting for posting from 21.12.1985 to 19.01.1990 with all other consequential benefits permissible in law to her besides granting interest at the rate of 18% per annum on the entire arrear amount of her salary etc.” this Court is of the opinion that once the authority did not issue a fresh order of 3 posting of the petitioner pursuant to the refusal of her joining by the Headmaster of Shoundik Uchcha Vidyalaya, Rajpur (Rohtas) on 21.12.1985 and the fresh order of posting was issued on 16.1.1990, she would be entitled for continuity in service and seniority with effect from the date of her first appointment. The reasonings in the impugned order dated 17.7.2003 (Annexure-10) that the petitioner was interested in getting the posting of her choice or that she had managed to get a rejection letter from the Headmaster of the first school must be held to be bad, inasmuch as, there is nothing on record to show that there was a sanctioned post of a teacher in the subject of Political Science in the first school i.e. Shoundik Uchcha Vidyalaya, Rajpur (Rohtas) or that the authority after being made aware of the rejection of the joining report of the petitioner on 21.12.1985 had passed any other order of posting of the petitioner save and except one dated 16.1.1990 In that view of the matter, the petitioner would be entitled for her 4 seniority from the date of her first appointment as per her merit position in the panel prepared by the Vidyalaya Seva Board and she will be entitled for her continuity in service and seniority but she will not be entitled to payment of salary for the period 21.8.1985 to 16.1.1990. The benefit of payment of salary for the aforesaid period, however, will not be admissible to the petitioner on two scores, namely, that she did not work in the said period and also because this Court on the first occasion had found no merit in such claim while simply remitting the matter back only for grant of seniority as would be evident from the order of this Court dated 18.8.1998 in CWJC No. 7005 of 1997, relevant portion whereof reads as follows:- “This writ petition has been filed for a direction to the respondents to treat the petitioner in service with effect from 21.12.1985, the day o which she had joined pursuant to the letter of appointment dated 1.8.1985 (Annexure-1). It is stated though the petitioner submitted her joining on 21.12.1985, but in absence of any vacant post of Political Science, her joining was not accepted. Thereafter, she submitted her 5 joining in the office of Director, Secondary Education on 23.12.1985. Since then petitioner made several representations before the authorities to enable her to join, but nothing was done until 16.1.1990, when an order was issued by the Deputy Director of Education, as contained in Annexure-4, allowing her to join as Assistant Teacher, Nemichand Shashtri Balika Uchchya Vidyalaya, Arrah against a vacant post of History Teacher. Grievance of the petitioner is that from a bare reference to the facts, noticed above, it would appear that because of the administrative reasons her joining was not accepted prior to 20th of January, 1990. The petitioner, therefore, cannot be penalized for such a delay. It is stated though the petitioner made several representation before the authorities to consider her claim to grant continuity in service and to count seniority with effect from 21.12.1985, the day she had submitted her joining, but no order had been passed. In my view, if the petitioner has already submitted her joining by virtue of a valid order of appointment, there could be no justification on behalf of the respondents to deny her claim with regard to continuity in service and seniority etc. But before coming to final conclusion, it would be essential for the authorities to examine this aspect with reference to the relevant 6 records.” It has to be also noted that the petitioner who did not claim payment for salary either before the authority, had also not made prayer for payment of salary for the aforesaid period, inasmuch as, in her subsequent representation dated 25.8.1998 (Annexure-9) enclosing the aforesaid order of this Court dated 18.9.1998 in CWJC No. 7005 of 1997 her only prayer was for regularization of period of posting and grant of seniority as would be evidenced from the contents thereof reading as follows:- “lsok esa] Jheku funs'kd ¼ek0f'k0½] fcgkj] iVukA izlax %& lh-MCyw-ts-lh- 7005@97 Jherh uhye dqekjh flag cuke LVsV vkWQ fcgkj ,oa vU;A fo"k;%& izrh{kk vof/k dk fofu;eu ,oa ojh;rk bR;kfna egk';] fuosnu ;g gS fd ekuuh; mPp U;k;ky;] iVuk ds }kjk mijksDr fo"k; ds lEcU/k esa fnukad 18-8-98 dks esjh inLFkkiuk dh izrh{kk vof/k dk fofu;eu ls lEc) vkns'k ¼Nk;k izfr layXu½ ikfjr gSA bl lanHkZ esa vkils vuqjks/k gS fd ekuuh; mPp U;k;ky; ds fu.kZ; ds vkyksd esa esjs vkosnu ij lgkuqHkwfriwoZd fopkj djrs gq, inLFkkiu vof/k dk fofu;eu ,oa ojh;rk lEcaf/kr vkns'k fuxZr djus dh d`ik djsaA fo'oklHkktu uhye dqekjh flag lgk;d f'kf{kdk fnukad 25@8@98** Thus, the petitioner must be held to have acquiesced her claim of payment of 7 salary and as such, this part of prayer for the first time after 13 to 18 years must be rejected also on the ground of delay and laches. With the aforementioned observation, this application is disposed of. Rsh (Mihir Kumar Jha, J.)