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2008 DIGILAW 626 (PAT)

Ram Narayan Chaudhary v. State Of Bihar

2008-04-21

NAVIN SINHA

body2008
Judgment 1. Heard learned counsel for the petitioner and the learned counsel for the State. 2. The petitioner is before this Court with a claim for payment of the pay in the pay scale of District Sports Officer in the Bihar Education Service, Class-ll and subsequently of a Deputy Director in Bihar Education Service, Class-I. On both posts he was directed to officiate from 12.5.1987 and 31.12.1987 from which he superannuated on 31.11.1992. 3. The submission on behalf of the petitioner is that he was fully eligible for promotion to the aforesaid posts. Notwithstanding his eligibility and the availability of the post he was asked to officiate on the superior post while holding his substantive rank in the Subordinate Education Service "Upper Division". That given his position in the gradation list and the vacancy position he should have been substantially promoted. In absence of the same he is entitled to now be given the arrears of pay by granting him the scales of the aforesaid two posts after deduction of what has already been paid to him. He came to this Court earlier in CWJC No. 3641 of 2005 with the prayer that his representation dated 31.10.2004 was pending for disposal. This Court directed the disposal of his representation within four months when the impugned order dated 9.1.2007 came to be passed. It denies him relief on the ground that he was never appointed/promoted to the higher post, but that he was only given officiating charge of the post while holding his substantive post in his lower post. 4. Learned counsel for the petitioner has relied upon a Bench decision of this Court reported in Dr. Sachita Kumar Sinha V/s. The State of Bihar and Others, 1995 1 PLJR 363 in support of his submission. 5. Learned counsel for the State, opposing the prayer, submitted that the cause of action in the writ application originates on 12.5.1982. The petitioner has superannuated on 31.11.1992. There is no material on record with regard to the diligence of the petitioner for enforcement of his rights as presently sought while he was in service, much less any representation in that regard. The first representation has been submitted nearly 12 years later after the retirement on 31.10.04. The petitioner in fact seeks enforcement of a claim of 1987 belatedly. The first representation has been submitted nearly 12 years later after the retirement on 31.10.04. The petitioner in fact seeks enforcement of a claim of 1987 belatedly. Reliance is placed on paragraph 16 of the judgment relied upon by the petitioner to submit that the order itself clarifies that it has no precedential value. 6. The fact that the claim for the higher pay scale may be belated is an entirely different aspect from the statutory duty of the respondents themselves to pay the compensatory allowance to the petitioner under Rule 103 of the Bihar Service Code. Learned counsel for the State found it difficult to explain why this statutory responsibility was not discharged by the respondents in distinction from the claim of the petitioner for the higher pay scale sought to be denied on the grounds of delay. 7. In the facts and circumstances of the case, this Court thus finds substance in the contention of the respondents that the claim was much belated in so far as the claim for pay scale of the higher posts is concerned. This Court is not persuaded to hold that the order of this court in CWJC No. 3641 of 2005 will vest a cause of action in the petitioner to wipe out the unexplained delay in his conduct for nearly 12 years. The order of this Court itself notices that no counter affidavit has been filed. That a representation was pending without furthermore. The Court, therefore, declines to grant the relief of the higher pay scale on the ground of unexplained delay and laches on the part of the petitioner. This Court concurs with the respondents that in view of paragraph 16 of the judgment, as above, relied upon by the petitioner it has no precedential value. In any event the petitioner therein had retired from service on 31.12.91 and had instituted the writ petition in the year 1992 with alertness. 8. This Court, however, does not arrive at the aforesaid conclusion in so far as the entitlement of the petitioner to compensatory allowance under Section 103 of the Bihar Service Code is concerned, that was the duty of the respondents without awaiting for any further action from the petitioner. He was left with no option except to approach them with begging bowl for the same that was his right. 9. He was left with no option except to approach them with begging bowl for the same that was his right. 9. The writ application is, therefore, allowed to the extent only that this Court holds that the petitioner is entitled to the compensatory allowance of the higher posts that he held from 12.5.1987 and 31.12.1987 till his retirement on 31.11.1992. The failure of the respondents to abide by their statutory duty in this regard also persuades this Court to grant interest to the petitioner on the compensatory dues amount at the rate of 7%. 10. Let the dues of such compensatory allowance be paid to the petitioner within a maximum period of 12 weeks from the date of receipt/presentation of the copy of this order, failing which the amount shall carry interest at the rate of 12% till the date it is actually paid to him.