IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5898 of 2009 Dr.Ram Raj Ram Versus The State Of Bihar & Ors ---------------------------------- For the Petitioner : Mr.Deo Govind Prasad, Advocate For the State : AAG XI with Mr. Ujjawal Kumar Sinha, AC to AAG XI For the Accountant General: Mr. Binod Kumar Labh, SC, A & A.D. ------------- 5. 25.08.2011 Heard learned Counsel for the parties. I.A. No. 5701 of 2011 has been filed stating that the original writ petitioner has been deceased on 19.9.2009 during pendency of the application. His legal heirs as mentioned in para 2 thereof desire to be substituted. Having heard Counsel for the parties and keeping in mind that the claims in the writ petition has financial implications for the family of the deceased the I.A. application is allowed. The legal heirs are permitted to be substituted in place of the original now deceased writ petitioner. Learned Counsel for the petitioner submits that the deceased while in service was promoted to the post of Director, Animal Husbandry, on 9.1.1996 with effect from 11.1.1984. He is therefore entitled to the arrears of salary of the promotional post from the date of promotion. He relies upon a judgment of the Supreme Court in (2002) 1 Supreme 364 (Food Corporation of India Vs S. N. Nagarkar). Counsel for the State submits that the promotion order dated 9.1.1996 itself states that the financial benefits of the promotion with retrospective effect may be given only after approval of the Department of Finance. The Finance Department approved such 2 promotion with effect from 1.1.1996 only. The petitioner was suspended on 26.2.1996 and continued under suspension till his superannuation on 30.4.2003. The departmental proceedings initiated during his service tenure have resulted in orders of punishment under Rule 43 (b) of the Bihar Pension Rules withholding full pension and gratuity. An additional objection of delay has been raised that monetary relief is claimed on basis of an order dated 9.1.1996 in a writ petition filed in the year 2009. Learned Counsel for the petitioner submits that the final order of punishment under Rule 43 (b) of the Bihar Pension Rules has been challenged in another writ petition. Explaining the delay it is submitted that the cause of action accrued only when the Department of Finance finally took a decision on 1.9.2003 and again on 4.4.2006 granting the arrears of the promotional post to his juniors with effect from 1.1.1996. Till such decision was taken there was no occasion for the petitioner to approach the Court on a mere apprehension. In this application the Court is not concerned with the final orders of punishment under Rule 43 (b) of the Pension Rules. The only issue for consideration is the claim for arrears of salary on the promotional post from the date of promotion i.e. 11.1.1984.The counter affidavit filed by the State respondents misdirects itself by dealing only with the issue of his suspension and the final orders under Rule 43 (b). It is completely silent with regard to the assertion of the petitioner for arrears of salary of the promotional post from the date of retrospective promotion. A separate counter affidavit has been filed on behalf of the Accountant General. Para 3 of the same states that a letter had been written to the Secretary, Animal and Fisheries Resources Department 3 (Animal Husbandry), Bihar, with regard to the order of retrospective promotion issued in favour of the petitioner but no response had been received from the State Government. It is unfortunate that the respondents do not answer the pleadings in the writ petition and do not respond to the queries of the Accountant General also. Perhaps they need to be reminded that it is their constitutional obligation to assist the Court in dispensation of justice. The claim for arrears of salary is based on an order dated 9.1.1996.There is no explanation in the writ petition why the petitioner took no steps for enforcing his claim for arrears of salary from 9.1.1996 till he instituted the present writ application in 2009.The relief that he claims today with effect from 1984 was well available to him in January 1996 on the very same ground which he today urges from the judgment of S. N. Nagarkar (Supra), more particularly para 16 of the same. But a judgment cannot be read in isolation by merely culling out ratio of the case devoid of the facts of the case. In that case promotion was granted in November 1989 with retrospective effect. The writ petition was filed in 1993. In the present case the writ petition has been filed 13 years later. The Court cannot remain unmindful of the sudden financial burden that it shall impose on the State by directing payment of the arrears in a lump sum specially when the petitioner has not been able to demonstrate what steps he took to enforce his rights for these 13 long years. The Court could have considered granting him that relief from three years prior to the institution of the writ application relying on the decision in (2010) 12 SCC 538 (State of Madhya Pradesh v. Yogendra Shrivastava) when the claim for arrears was objected on the ground of delay of 15 years and it was held at paragraph 12 as follows:- 4 “18…..But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application.” But that relief cannot be granted to the petitioner as he came to be suspended before that and is therefore not entitled to his salary. .The contention that the cause of action accrued only in 2003 or 2006 when the Finance Department issued a notification granting the arrears to his juniors from 1.1.1996 and not with retrospective effect does not appeal to the Court. The cause of action for arrears of salary from 1984 was individual to the petitioner if he was aggrieved by the decision of the respondents postponing retrospective payment or to consider granting it prospectively only. He cannot be permitted to indulge in fence sitting awaiting any decision with regard to others to then found a cause of action for himself. The reliance by the petitioner on (2009) 1 Supreme 546 (Er. Gurucharan Singh Grewal Vrs Punjab Electricity Board) to submit that no junior can be granted a pay scale higher than a senior and therefore the petitioner is entitled to his arrears of salary is of no avail for him. It is apparent from the facts in para 3 of the judgment that it was a fight inter se between two individuals for fixation of pay scale. Such is not the case presently. In conclusion the Court finds it difficult to grant any relief to the petitioner for any arrears of pay on the post of Director from 11.1.1984 to 25.21996. What shall be the extent of entitlement of the petitioner excluding the aforesaid period subsequent to decision of the Finance Department with regard to grant of monetary benefits shall naturally 5 remain dependant and have to be subject matter of consideration in the writ application filed challenging the final order of punishment under Rule 43 (b) of the Bihar Pension Rules. The writ application is dismissed. Snkumar/- (Navin Sinha,J.)