Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 1205 (PAT)

Shyama Nand Jha v. State Of Bihar

2013-10-01

NAVIN SINHA, VIKASH JAIN

body2013
ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 1. We have heard counsel for the Appellants, State and for the Respondent University. 2. The present Appeal arises from order dated 21.1.2013 dismissing CWJC No. 1267of 2009. The Learned Single Judge held that the claim of the Appellants for “additional funds to enable payment to them” since 28.8.1981 under State government circular dated 23.2.1978 was barred by gross unexplained delay and laches of approximately thirty years in a writ petition filed in the year 2009. 3. Learned Senior Counsel for the Appellants submitted that they were appointed as lecturers in Phool Devi Kushishwar Jha Degree College, Bachaspati Nagar, Madhubani, within the staffing pattern. The college was granted affiliation by the State government on 19.3.1981. They have been working on the first posts duly created by State government letter dated 28.8.1981. The State government had issued circular dated 23.2.1978 containing the policy for grant of deficit funds that the College was not able to garner for payment of salary from admission fee, tuition fee and fine collected from the students. The Principal of the college sent proposal to the University for grant of deficit funds on 27.2.1988. The matter has been pursued regularly but with no response. The University on 25.7.2012 had forwarded the claims of the Appellants for consideration to the State government. The Appellants have been subjected to hostile discrimination as other colleges similarly situated have been given deficit funds. Directions may be issued to the State government for considering the recommendation of the University for release of deficit grant. 4. During submissions, Learned Senior Counsel fairly acknowledged that the Appellants were not in a position to demonstrate or provide any explanation for the gross inordinate delay in the raising of the claims. The relief sought, was therefore moulded before us. It was submitted that the claim for salary is a continuing wrong and therefore the appellants are entitled to claim it at least for a period of 3 years prior from the date of filing of the writ application. 5. Learned counsel for the State and the University submitted that grant of deficit funds was not a matter of right. In view of the new policy dated 21.11.2008 the entire parameters for grant of deficit funds had changed. The question of considering any claims for deficit grants under a policy of 1978, no more in vogue, does not arise. 5. Learned counsel for the State and the University submitted that grant of deficit funds was not a matter of right. In view of the new policy dated 21.11.2008 the entire parameters for grant of deficit funds had changed. The question of considering any claims for deficit grants under a policy of 1978, no more in vogue, does not arise. The grant of any relief today under a non-existent policy with retrospective effect will impose an unreasonable financial burden on the State and give an advantage to the Appellants for their own lapses. The college is free to apply under the new policy and if it fulfils the conditions it may be considered in accordance with law. No discrimination has been practiced with the appellants. Even if they be of that opinion, in order to claim relief based on parity they ought to have approached the Court in contemporaneous time. Delay in approaching the Court for similar relief is itself a ground to deny relief based on parity even. The College in question is getting deficit grant on basis of performance under the new policy dated 21.11.2008. Others from the same College had approached this Court for like relief in CWJC No. 14027 of 2010 disposed on 13.4.2011 with directions to the Director, Human Resources Department [Higher Education] to pass appropriate orders after hearing them. The claims have been rejected from 9.12.1982. There is no justification for the Appellants from the same College to seek the same relief in the garb of different persons. 6. We have considered the submissions made on behalf of the parties. The order under appeal does not notice or discuss the facts of the case. Delay is undoubtedly vital in exercise of discretionary writ jurisdiction. But it is not an absolute principal. If a litigant is to be shut out at the threshold on grounds of delay, the foremost duty of the Court is to make him aware that the Court has fully understood and appreciated the facts of the case in its entirety and for reasons to be specified was not satisfied to condone the delay. It is therefore necessary for us to set out the relevant facts for the parties to appreciate our understanding of the controversy and the reasons in support of our conclusion. 7. It is therefore necessary for us to set out the relevant facts for the parties to appreciate our understanding of the controversy and the reasons in support of our conclusion. 7. No college has a legal right to receive the grant in aid by way of deficit funds even if it fulfils the requirements for the same. Equally there cannot be any arbitrary denial. But, to sustain such relief, the claimant must approach the Court in time and under an existing policy. The Appellants have referred to other institutions with regard to events of 1988 – 1990 etc. If others could have approached the Court in due time, there has to be some explanation from the Appellants why they did not do so. There is no explanation at all forthcoming for the gross inordinate delay from 1982 until 2009 when the writ application was filed. The submission that they would be entitled to be considered under the policy of 1978 at least from the year 2006 also does not appeal to us. If the argument were to be accepted, it would essentially be condoning the delay from 1981. Intervening circumstances by change of policy on 21.11.2008 is a crucial factor to hold that no relief can be granted under a circular of 1978 not in vogue. We are not inclined to consider the claim on non-est grounds for a cause of action. Nothing prevents the College today from applying for deficit funds under the new policy and be considered in accordance with law if it fulfils the conditions for the same. Obviously it has to be prospective in nature only. 8. In conclusion, for reasons discussed, we do not find any reason to take a different view from the order under Appeal. The Appeal is dismissed. Vikash Jain, J. – I agree.