IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10356 of 2005 RESHAM LAL YADAV son of Late Deodutta Prasad Yadav, resident of village Kathotia, P.S. Bihariganj, District Madhepura. Versus 1. THE STATE OF BIHAR 2. The Director, Secondary Education, Bihar, Patna. 3. The Regional Deputy Director of Education, Kosi Division, Saharsa. 4. The District Education Officer, Madhepura. ----------- 3 30.09.2010 Having heard counsel for the petitioner and counsel for the State as with regard to the following relief:- “That this is an application for issuance of a writ in the nature of certiorari for quashing the order issued vide Memo No.679 dated 14.5.2005 under the signature of respondent No.3 under which the representation of the petitioner relating to payment of salary was rejected and further for issuance of a writ in the nature of mandamus directing the respondents to make the payment of salary to the petitioner for the period from 01.04.1983 to 10.06.1997 with interest.” this Court is of the considered view that in absence of an authentic documentary evidence claim of the petitioner for payment of salary for the period 1.4.1983 to 10.6.1997 baring the period of 1.4.1983 to 30.9.1983, already allowed by the impugned order dated 14.5.2005 is not possible, inasmuch as, the authorities have clearly recorded in the impugned order dated 14.5.2005 that the petitioner will be entitled for payment of salary for the period his attendance was found marked in the joint attendance register along with other teachers of the School. The plea of the petitioner 2 that after the school was taken over his name was left out from the Joint attendance register necessitating marking his attendance in a separate aggregated attendance register duly authenticated by the Headmaster of the School and therefore such Register should have been acted upon for the purpose of payment of salary to the petitioner for the period 1.10.1983 to 10.6.1997, cannot be accepted in view of the following statement in the counter affidavit duly supported by the letter of the Headmaster of the school dated 18.1.2006 (Annexure-A) which reads as follows:- "That the pursuant to aforesaid direction the concerned Headmaster vide his letter no. 07 dated 18.01.2006 submitted his report to the answering deponent in which he has clearly stated that from perusal of the records i.e. Attendance Register of the school it appears that attendance of the petitioner for the period 14.3.83 to Sept. 1983 is worked, but from Octo, 1983 to 10.6.1997 the attendance of the petitioner on Attendance Register is not moved." and the following extract of the report of the Headmaster ^^Jh js'keyky ;kno lsok fuo`r l0f'k0 dh mifFkfr ekg vDVwcj 83 ls fnukad 10-6-97 rd fon~;ky; dh f'k{kdksifLFkfr iath ij ntZ ugha gS vkSj u gh mDr vof/k ds dk;Z dk dksbZ lk{; fon~;ky; esa miyC/k gSA** It has to be kept in mind that there is no rejoinder of the petitioner to the aforesaid averments made in the counter affidavit and as such a pure question of fact cannot be decided in a 3 writ petition. Such disputed question of fact as with regard to actual working of the petitioner can be decided by the competent Civil Court with the help of evidence to be adduced by both the parties. Specially when the authorities not only in the impugned order but the respondents also in their counter affidavit have categorically asserted that there is no proof of the petitioner of being worked in the period 1.10.1983 to 10.6.1997. Infact when the petitioner had emerged on the scene only after his services were taken over by the State Government on 11.6.1997 he may be entitled for continuity in service from the date of take over, but his payment of salary can only be made on the evidence of his actual working in the school. Considering all these aspects, this Court would dispose of this writ application by giving liberty to the petitioner to get this question of payment of salary adjudicated by filing a Civil suit. With the aforementioned observation this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)