IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4058 of 2009 Jaiwanti Prasad Versus The State Of Bihar & Ors ----------- 2. 21.07.2011 Heard learned Counsel for the petitioner, the State and the Accountant General. The petitioner superannuated on 30.5.1992 from the post of Auto Electrician Grade I, (Mechanical Division) Gandak Project, Balmikinagar, West Champaran. He is aggrieved by the order dated 27.10.1998 and the consequential order dated 6.4.1999 reducing his pay scale after his retirement and seeks relief to pay his retiral dues in the scale of Rs. 1400-2300 with all consequential benefits from the date of the impugned orders. Learned Counsel for the petitioner submitted that the State Government on 6.4.1999 has issued orders for reduction of the pay scale after superannuation without any application of its own mind to the materials at the behest of a letter from the office of the Accountant General dated 27.10.1998. He further submits that the specific assertion of the petitioner that the order of the State Government was in violation of the principles of natural justice has not been denied. It is next submitted that the pay scale of the petitioner was fixed in 1977 which he continued to draw for long years till the impugned order dated 6.4.1999 came to be passed. The thrust of the submission therefore is that:- (a) revision of a pay scale after long years; (b) after superannuation when the relationship of master and servant stood severed; (c) the only option available being under the Bihar Pension Rules; 2 (d) the order for reduction of pay scale being in violation of the principles of natural justice was like a still born child and the question of delay was irrelevant; (e) the pay scale from which he superannuated constituted a right to property under Article 300A of the Constitution of India. No counter affidavit has been filed on behalf of the State notwithstanding that nearly two and half years have passed since filing of the writ petition after serving two copies in the office of the Advocate General. A counter affidavit is on record from the office of the Accountant General. The Court on the face of the impugned order dated 6.4.1999 is satisfied that it has been issued at the behest of the office of the Accountant General letter dated 27.10.1998. The order does not state satisfaction of the State Government with regard to the justification for issuance of the same abdicating its statutory powers for fixation of pay scale in favour of the Accountant General. That the Accountant General may raise objection is entirely different matter. After consideration of the same the State may or may not concur with the same with the reasons spelt out. That is not the case. It also cannot loose sight of the fact that the impugned order was issued after the master and servant relationship stood severed and the only course available to the respondents was under the Bihar Pension Rules. The contention that the order being in violation of the principles of natural justice was like a still born child making the delay irrelevant also cannot be brushed aside lightly. The right to a pay scale is a statutory right and not a fundamental right. It shall be a constitutional right also under Article 3 300A of the Constitution of India as right to pay in consequence of the fixation of the scale constitutes a right to property. But, the property right under Article 300A is amenable to interference in accordance with law. The moment it comes under the later part it assumes the dimension of statutory right and not fundamental right. A fundamental right cannot be waived but a statutory right can certainly be waived by person in whose favour the statute was leaning. The respondents have rightly contended that both communications dated 27.10.1998 and 6.4.1999 were duly communicated to the petitioner. There is no statement in the writ application that he had not received the communications. That coupled with the complete absence of any explanation for preferring the writ application nearly eleven years later, satisfies the Court that the petitioner by his own conduct waived the statutory right by accepting the re-fixation of his pay scale irrespective of all considerations. Waiver can be express or it cannot be implied. An express waiver can be in writing. Implied waiver arises by conduct. In (2004) 8 SCC 229 (Krishna Bahadur vs. Purna Theatre) it was held at paragraph 10 as follows:- “10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.” Delay is a relevant ground to deny relief in the discretionary jurisdiction. Every case shall have to be decided on its own facts with regard to the aspect of delay. The nature of breach, the injury caused 4 thereby, the conduct of the injured, the explanation for the delay shall then all have to be balanced before the Court proceeds to exercise its discretion. The discretion has to be tempered by law and is not absolute in nature. The Court in the facts and circumstances of the case is satisfied that the writ application suffers from a voluntary waiver by conduct and is also barred by gross delay and laches. The writ application is dismissed. Snkumar/- (Navin Sinha,J.)