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2014 DIGILAW 426 (PAT)

Umesh Prasad Singh v. State of Bihar

2014-04-07

MIHIR KUMAR JHA

body2014
ORDER 1. Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- "For issuance of an appropriate writ in the nature of mandamus for commanding and directing the respondent authorities concerned i.e. the District Education Officer, Begusarai or any competent authority to re-fix the petitioner's pay scale since 19.04.1988 in Intermediate trained pay scale as similarly situated Shiva Kant Jha, Assistant Teacher of District Begusarai has been given revised pay scale on the basis of the direction of this Hon'ble High Court passed in C.W.J.C. No. 8333 of 1999 on 29.07.2004 whereas the petitioner is getting the lower pay scale than similarly situated Shiva Kant Jha. For issuance of an appropriate writ in the nature of mandamus for commanding and directing the respondent authorities concerned to make the payment (difference of salary) of the petitioner since 19.04.1988 in accordance with the salary so fixed by the authority concerned. For issuance of an appropriate writ in the nature of mandamus for commanding and directing/declaring that the salary/pay scale of the petitioner so fixed by the authority concerned has been made in accordance with law/policy decision of the State Government as such there is no illegality, infirmity in the said fixation of the petitioner's pay scale and same is a valid and legally and fully justified." 3. Learned counsel for the petitioner has submitted that once it is an admitted position that the respondents in the case of one Shiva Kant Jha allowed pay fixation to newly appointed I.Sc trained teachers in the year 1988 with the benefit of three increments in terms of the Finance Department Resolution No. 3/PAR-01-3/89, 6022.F(2) dated 18.12.1989 same treatment can be made in the case of the petitioner and in fact he would be also entitled for the same relief. He has further submitted that the respondents will be bound to make complete re-fixation of the pay of the petitioner from 16.04.1988 ever since he had entered into service. 4. Learned counsel for the State on the other hand has submitted that the petitioner has raised a stale issue and in fact a cause of action of the year 1988 has been sought to be raised by filing this writ application. 5. In reply, Mr. 4. Learned counsel for the State on the other hand has submitted that the petitioner has raised a stale issue and in fact a cause of action of the year 1988 has been sought to be raised by filing this writ application. 5. In reply, Mr. Umesh Mishra learned counsel appearing on behalf of the petitioner submits that earlier the petitioner had filed a writ application, being C.W.J.C. No. 13295 of 2007 and that was disposed of by this Court with a direction to the authorities to reconsider the grievance of the petitioner and when an order was passed on 12.08.2008, a contempt application was filed by the petitioner being M.J.C. No. 2606 of 2008 and therefore, if the order which was passed during the pendency of the contempt application by which the petitioner was given the benefit of pay fixation in the revised pay scale of 1200-2040 by an order dated 13.12.2010, it cannot be said that the petitioner is raising stale matter. 6. In the considered opinion of this Court, this writ application has to be dismissed for a simple reason that the cause of action of the year 1988 is sought to be raised in this writ application. If the petitioner was not given the relief in his earlier writ application and the order in contempt application passed on 15.12.2010, that order had to be challenged. If the petitioner was satisfied with that order and did not raise the issue for a period of three years as is apparent from the date of filing of this writ application i.e. 13.12.2014, the present writ application claiming salary or pay fixation or arrears of salary for a period of three years prior to the institution of the writ application must be held to be not maintainable and in fact ill advised. Reference, in this connection may be usefully made to the judgment of the Apex Court in the case of Union of India vs. Tarsem Singh, (2008) 8 SCC 648 wherein paragraph 7 and 8, Justice Raveendran had to say:- "7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of thirds parties. But if the claim involved issues relating to seniority or promotion, etc. affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition. 8. In this case, the delay of sixteen years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to sixteen years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances." 7. That apart, this Court would find that the case of Shiv Kant Jha has become somehow bad precedent in the sense that the order passed by the learned single judge is in complete ignorance and in fact without noticing the statutory provisions. It ought not to have granted interest on arrears in such circumstances." 7. That apart, this Court would find that the case of Shiv Kant Jha has become somehow bad precedent in the sense that the order passed by the learned single judge is in complete ignorance and in fact without noticing the statutory provisions. Any teacher who got appointed prior to 18.12.1989 in view of the resolution of the defence will be bound by the statutory provisions for fixation of pay under Rule-78 of Bihar Service Code, which lays down the mode and manner of fixation of pay. In fact the norms given in Finance Department Resolution No. 3/PAR-01-3/89, 6022. F(2) dated 18.12.1989 that in all cases of new appointments made on or after 1st January, 1986 but before issue of these orders or in case of promotion either substantive or officiating made on or after 1st January, 1986 but before issue of these orders the appointment/promotion will be deemed to have been made in the Revised scale. That would mean that the petitioner's appointment though made on 16.04.1988 in the pay scale of Rs. 730-1080 would be deemed to have been made in the pay scale of 1200-1800. The submission of learned counsel for the petitioner that on the date of appointment in the intermediate trained pay scale, the petitioner will become entitled for grant of three increments has to be again noted for its being rejected. Had the petitioner been appointed in the matric trained pay scale and subsequently promoted in the I.A. trained pay scale prior to 01.01.1986, probably the things could have been different. 8. Here in this case the petitioner entry in the service at the point of time when the new pay scales were to be enforced did not give him any scope as per the Finance Department Resolution No. 3/PAR-01-3/89, 6022. F(2) dated 18.12.1989. In fact that is also the scope of Rule-78 of Bihar Service Code. 9. In view of the above, this Court must hold that the judgment in the case of Shiv Kant Jha has been unnecessarily pressed. In fact that was the reason for this Court that in the aforesaid order disposing of the review application and the contempt application, did not hold that denial of the petitioner's three increments as being demanded by him in the earlier writ application was errnoeous. In fact that was the reason for this Court that in the aforesaid order disposing of the review application and the contempt application, did not hold that denial of the petitioner's three increments as being demanded by him in the earlier writ application was errnoeous. As a matter of fact, the order passed in the case of Shiv Kant Jha being in teeth of Rule-78 of Bihar Service Code as also the pay fixation notification dated 18.12.1989 has to be held to be per incurium. 10. By now it is also well settled that the judgment which has become per incurium need not be followed and in fact never be made precedent for other cases. Reference in this connection may be usefully made to the judgment of the Apex court in the case State of Bihar vs. Upendra Narayan Singh, 2009 (5) SCC 65 . 11. For the reasons indicated above, this Court does not find any merit in the application and the same is, accordingly, dismissed.