IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6089 of 2001 1. MD. ISMAIL, son of Md. Yakab, resident of Shah Jubair Road, P.S. Kotwali, District Munger 2. Dinesh Kumar, son of Sri Manik Prasad, resident of Sita Sadan, Road no.8, Sastrinagar, P.S. Kotwali, District Munger 3. Rabindra Kumar, son of late Ram Yatan Prasad, resident of Purab Sarai, P.s. Kotwali, District Munger … Petitioners Versus 1. THE STATE OF BIHAR through the Commissioner, Human Resources Development Department, Secondary Education, New Secretariat, Patna, Bihar 2. The Additional Secretary, Human Resources Development Department, Secondary Education, New Secretariat, Patna 3. The Director, Secondary Education, Human Resources Development Department, New Secretariat, Patna 4. The Principal, Government High School, Zila School, Munger … Respondents ----------- 3. 26.8.2010 Heard counsel for the parties. The prayer of the petitioners in this writ application reads as follows: “By this writ petition the petitioners crave indulgence of this Hon’ble Court for issuance of a writ in the nature of mandamus or an appropriate order or direction commanding the respondents to make payment of the petitioners’ arrear salary since April, 1997 to 8th July, 1998 which has deliberately been not paid to the petitioners and/or to pass such other order and orders which your Lordships deem fit and proper under the 2 circumstances of the case.” Counsel for the State would point out that for the same relief the petitioners had earlier moved this Court in C.W.J.C.No. 8295/1997 and when the same was disposed of he had also filed a contempt application, M.J.C.No. 3190/98 wherein it was recorded that the payment of salary for the period April, 1997 to July, 1998 being disputed would not have been directed to be paid in contempt jurisdiction. Counsel, therefore, would proceed to submit that if the petitioners have filed this writ application after two years of the order passed in the contempt application filed by them, they cannot now take any relief especially when working of the petitioners itself is seriously disputed. Counsel for the petitioners, however, would submit that when there are unimpeachable document to show as with regard to working of the petitioners, merely because the petitioners had marked the attendance in a separate register would not mean that the petitioners had not discharged their duty. In this context he would also 3 refer to certain extract of the attendance register which has been annexed with the writ application. As noted above, there is no counter affidavit on behalf of the State which should not surprise this Court because it is bynow an usual phenomenon of the State of not filing a counter affidavit. The difficult, however, is that this Court in absence of the counter affidavit cannot allow the writ petition only by treating the averments made by the petitioners to be sacrosanct. The dispute in fact having been made earlier as noticed in the order of this Court in M.J.C.No. 3190/1998, it will not be, however, safe for this Court to assume the working of the petitioners merely on the basis of some extract of photo copies of the attendance register. None-the-less this Court has found that at one point of time the Director, Secondary Education in his order dated 22nd June, 1999 (Annexure 12) had directed the Principal of Rajkiya Uchcha Vidyalaya, Munger to examine the grievance of the petitioners for payment of salary of the 4 petitioners and as such, this Court would find it not appropriate to now direct the Director, Secondary Education himself to take a final decision as with regard to claim of payment of salary of the petitioners for the period in question i.e. April, 1997 to 8.7.1998. It is made clear that while doing so the Director, Secondary Education will examine all the documents that may be produced by the petitioners as also others which may be summoned and received by them from the school in question. On perusal of such document if the Director, Secondary Education will come to a finding that the petitioners had worked in the relevant period, their salary will not be withheld only on the ground of dispute of reopen (old and new) and/or marking of their attendance in the attendance register (old and new). If there is any documentary proof of working of the petitioners, the respondents must pay their salary. That being so, this application is disposed of with a direction to the Director, Secondary Education to take his final decision within a period of six months 5 from the date of receipt of a copy of this order. In order to expedite the matter this Court would direct the petitioners to file their self content representation alongwith the connected evidence and the Director, Secondary Education must pass his final order within six months of filing of such representation by the petitioners. (Mihir Kumar Jha,J.) Surendra/