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2020 DIGILAW 289 (PAT)

Ambika Prasad Singh v. State of Bihar

2020-05-28

CHAKRADHARI SHARAN SINGH

body2020
JUDGMENT : CHAKRADHARI SHARAN SINGH, J. 1. The petitioner was appointed as Sub-Inspector of Excise in 1970. He was promoted to the rank of Inspector of Excise with effect from 08.03.1988, i.e. the date when he started officiating on the said post, by a subsequent notification dated 27.05.1989. He was asked to function on the next higher post of the cadre of Excise Superintendent by an order dated 25.05.1999, issued by the Excise and Prohibition Department, Government of Bihar. It was clearly indicated in the said order dated 25.06.1999 that such posting on officiating basis shall be temporary and shall not be treated to be promotion in any manner. A copy of the said order dated 25.06.1999 has been brought on record by way of Annexure-3 to this writ application. He is said to have started discharging his duties as Excise Superintendent Munger-cum-Jamui-cum-Lakhisarai with effect from 05.07.1999, and continued till the date of his retirement on 31.07.2001. 2. In the present writ application filed more than ten years of his superannuation on 14.10.2011, under Article 226 of the Constitution of India, the petitioner is seeking a direction for payment of higher salary admissible to an officer holding the post of Excise Superintendent, for the period 05.07.1999 to 31.07.2001. It is precisely his case that the respondents were though duty bound to consider his case for promotion to the rank of Excise Superintendent in 1999, because of the available vacancies, it was not done and instead of granting him regular promotion, he was allowed to function as Superintendent Excise on officiating basis. It is his case, that since he was allowed to continue as Excise Superintendent till the date of his superannuation, the said arrangement cannot be treated to be temporary and stopgap in nature. It is accordingly his case that he is entitled for salary of higher post for the said period. There is statement made in paragraph 15 of the writ application that he had made representations on 24.05.2002 and 18.07.2003 seeking payment of higher salary prescribed for the post of Excise Superintendent. No copy of the said representations has been brought on record. 3. I have heard Mr. Satyabir Bharti, learned counsel for the petitioner and learned AC to AG appearing on behalf of the State of Bihar. No copy of the said representations has been brought on record. 3. I have heard Mr. Satyabir Bharti, learned counsel for the petitioner and learned AC to AG appearing on behalf of the State of Bihar. A counter affidavit has been filed on behalf of the State of Bihar in which reliance has been placed on a Division Bench decision of this Court reported in 2012 (4) PLJR 996 . It is averred in the counter affidavit that there was no stipulation in the order posting him as Excise Superintendent that he would get salary of Excise Superintendent rather it was clearly mentioned that the said order would not be treated in any manner as promotion. 4. It is accordingly the case of the State of Bihar that the petitioner, in the facts and circumstances of the case is not entitled to any relief. 5. Learned AC to AG has raised, at the very outset, a preliminary objection and has submitted that delay and laches on the part of the petitioner in approaching this Court, ten years after his superannuation, itself, defeats his claim to seek relief under Article 226 of the Constitution of India, in the absence of any valid explanation for delay. 6. Mr. Satyabir Bharti, learned counsel appearing on behalf of the petitioner has placed reliance on a Division Bench decision of this Court rendered in LPA No. 1406 of 2005 dated 23.08.2011, in case of State of Bihar and another v. Shiv Shankar Singh, wherein this Court, in similar circumstance, did not find the arrangement of posting of an Excise Inspector to higher post of Excise Superintendent as stopgap arrangement. The said decision has been brought on record by way of Annexure-4 to the writ application. He has submitted that the said Division Bench has relied on Supreme Court's decision in case of Selvaraj v. Lt. Governor of Island, Port Blair and others ( AIR 1999 SC 838 ). He has also relied on a coordinate Bench decision of this Court in C.W.J.C. No. 905 of 2008 (Narsing Prasad Choudhary v. State of Bihar) dated 18.04.2008 to submit that the petitioner is entitled for higher pay. Governor of Island, Port Blair and others ( AIR 1999 SC 838 ). He has also relied on a coordinate Bench decision of this Court in C.W.J.C. No. 905 of 2008 (Narsing Prasad Choudhary v. State of Bihar) dated 18.04.2008 to submit that the petitioner is entitled for higher pay. Justifying filing of the writ application in 2011, he has submitted that soon after the Division Bench decision was rendered in case of State of Bihar v. Shiv Shankar Singh (supra), the petitioner approached this Court by filing present writ application and, therefore, the application may not be rejected on the ground of delay and laches. He has contended that, in any event, since no third party right has accrued because of the delay in approaching this Court, the right of the petitioner, which accrued to him after having discharged the duties of Excise Superintendent, cannot be defeated on the ground of delay and latches in the facts and circumstances of the present case. 7. He has also placed reliance on a Division Bench decision of this Court reported in case of the State of Bihar and another v. Sidheshwar Chaudhary reported in 2004 (1) PLJR page 34. 8. I have carefully examined the rival pleadings on record including the rejoinder filed on behalf of the petitioner to the counter affidavit of the State of Bihar. I have given anxious consideration to the submissions advanced on behalf of the parties. 9. I find force in submission made on behalf of the respondents State of Bihar that this application should not be entertained on the ground of delay and laches. The plea on behalf of the petitioner that he filed the present writ application after Division Bench decision was rendered in case of State of Bihar v. Shiv Shankar Singh (supra) and therefore, delay and laches on the part of the petitioner cannot be a ground for dismissal of the writ application, is not acceptable to this Court. In case of State of Bihar v. Shiv Shankar Singh (supra), the writ petition was filed in 2004 claiming higher salary for the post of Excise Superintendent against which the writ petitioner of that case was directed to officiate. The writ application was allowed on 19.1.2005. In case of State of Bihar v. Shiv Shankar Singh (supra), the writ petition was filed in 2004 claiming higher salary for the post of Excise Superintendent against which the writ petitioner of that case was directed to officiate. The writ application was allowed on 19.1.2005. In such circumstance, the petitioner's plea that he was waiting for ultimate decision of the Division Bench on the challenge made by the State of Bihar to file the writ application cannot be accepted as a valid ground to overlook the delay in filing of the writ application. If the petitioner, according to his own case, was waiting for a decision to come in someone's other case and did not press his claim for payment of higher salary by approaching this Court immediately after the right, according to him, accrued to him, he can be termed as a 'fence sitter' and therefore, he would not deserve consideration of his belated claim. 10. The petitioner apparently did not pursue his claim for several years and was not at all vigilant. He chose to sit on the fence till somebody else's case came to be decided. It is reiterated that case of Shiv Shankar Singh (supra) was decided by the Writ Court in January 2005 itself. It is a different matter that the LPA remained pending. The petitioner's case that he was waiting for final adjudication in LPA No. 1406 of 2005 is self-destructive. 11. The decisions rendered by the Supreme Court in case of S.M. Kotrayya reported in (1996) 6 SCC 267 and UP Jal Nigam v. Jasvant Singh can be profitably referred to wherein the Supreme Court refused to extend the benefit of judgment passed in respect of other similarly situated employees on the ground of laches and delay. When a person is not vigilant to his rights and acquiesces into the situation, the writ petition cannot be entertained claiming parity with similarly situated who were vigilant about their rights. Similar view has been taken in case of Jagdish Lal v. State of Haryana reported in 1997 (6) SCC 538 wherein the Court held that delay disentitles a party to discretionary relief under Article 226 or Article 22 of the Constitution. Similar view has been taken in case of Jagdish Lal v. State of Haryana reported in 1997 (6) SCC 538 wherein the Court held that delay disentitles a party to discretionary relief under Article 226 or Article 22 of the Constitution. The Court observed that the appellants of the said case kept sleeping over their rights for long and woke up when they had the impetus from Union of India v. Virpal Chauhan ( 1995 (6) SCC 684 ). 12. In case of UP Jal Nigam v. Jaswant Singh reported in (2006) 11 SCC 464 the Supreme Court laid down that acquiescence doesn't mean standing by, while the violation of right is in progress, but assent after the violation has been completed and the claimant has become aware of it. The Court ruled that it would be unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to waiver of it; or whereby his conduct and neglect, though not waving the remedy, he has put the other party in a position in which it would not be reasonable to place him, if the remedy were afterwards to be asserted. The Court held that in such cases, lapse of time and delay are most material. These are the considerations, the Supreme Court held, upon which the doctrine of laches rests. In case of UP Jal Nigam v. Jaswant Singh (supra) the Supreme Court, while denying benefit, which was allowed to similarly situated persons, on the ground of delay laches and acquiescence laid down as under in paragraph 13:- "In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?" 13. The Supreme Court had yet another occasion to consider the legal principle relating to grant of relief, when a particular set of employees is given relief by the Court, in case of State of UP v. Arvind Kumar Srivastava reported in 2015 (1) SCC 347 and enunciated the law in following terms in paragraph 22 as follows:- "22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under. 22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2. However, this principle is subject to well-recognized exceptions in the form of laches and delays as well as acquiescence. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2. However, this principle is subject to well-recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extended the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularization and the like (see K.C. Sharma v. Union of India). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence." (Underlining for emphasis) 14. The said decision of Supreme Court has been relied on by a full bench of this Court in case of Jailal Paswan v. State of Bihar (MANU/BH/1942/2019) Further in case of Chairman/Managing Director UP Power Corporation Limited and others v. Ram Gopal, a three-Judge Bench of Supreme Court in its decision rendered on 30.01.2020 reported in MANU/SC/0108/2020 has reiterated the principle of law that delay defeats equity and where the writ petitioner approaches the High Court after a long time, reliefs prayed for may be denied to him on the ground of delay and laches, irrespective of the fact that he is similarly situated to other candidates who obtained the benefit of judgment. The Supreme Court in case of UP Power Corporation Limited v. Ram Gopal (supra) reiterated the view expressed in case of Arvind Kumar Srivastava (supra). 15. Following the dictum as laid down in case of Jaswant Singh (supra) I have no hesitation in reaching a definite conclusion that even if the petitioner had any valid right to claim, of higher pay of Excise Superintendent, his conduct of not raising his claim and approaching this Court within a reasonable time amounts to waiver of his claim. As laid down in the said case, acquiescence, in this sense, doesn't mean standing by, while the violation of right is in progress but after the violation has been completed and the claimant has become aware of it. The petitioner was not vigilant, even if he had any right to claim, as can be seen from the facts disclosed hereinabove. 16. In any view of the matter, the petitioner is not entitled even on merits, higher salary admissible for the post of Excise Superintendent. The Division Bench of this Court in case of Md. Masood Yousuf v. State of Bihar reported in 2012 (4) PLJR 996 , had the occasion to consider claim of higher pay on the ground of an Officer having been asked to discharge his duties against higher post while holding lower post in substantive capacity. The claim was based on the prescriptions under Rule 58 and 103 of the Bihar Service Code. Dealing with Rule 103, the Division Bench in case of Md. Masood Yousuf v. State of Bihar (supra) held in paragraph 18,19 and 20 as follows:- "18. The claim was based on the prescriptions under Rule 58 and 103 of the Bihar Service Code. Dealing with Rule 103, the Division Bench in case of Md. Masood Yousuf v. State of Bihar (supra) held in paragraph 18,19 and 20 as follows:- "18. As regards their claim under Rule 103 of the Bihar Service Code is concerned, it would be appropriate to quote the provision itself:- "103. The pay of a Government servant appointed by the State Government to hold substantively, as a temporary measure, or to officiate in, two or more independent posts at one time shall be regulated as follows:- (a) The highest pay to which he would be entitled if his appointment to one of the posts stood alone, may be drawn on account of his tenure of that post; (b) For each other post he may draw such reasonable pay, in no case exceeding half the presumptive pay (excluding overseas pay) of the post, as the State Government may fix; and (c) If a compensatory allowance is attached to one or more of the posts he may draw such compensatory allowance as the State Government may fix provide that such allowance shall not exceed the total of the compensatory allowance attached to all the posts." Below Rule 103 of the Bihar Services Code, there is a note which reads thus:- "Note 1.-The expression "independent posts" used in this rule means posts which are independent of one another i.e. posts the incumbent of one of which is not expected to do the duties of any other." 19. In order to claim benefit under Rule 103 of the Bihar Service Code an employee has to establish that he was holding two or more "independent posts". The expression "independent posts" has been clarified in Note-1 as quoted above. The State of Bihar vide Memo No. 1479F dated 30.12.1968 had issued a clarification on the grant of additional pay under Rule 103 of the Bihar Service Code. While Clarifying the position it has been specifically mentioned in the above mentioned letter that the additional post, duties of which are combined should not be on the same establishment or office and should not fall in the line of normal promotion. While Clarifying the position it has been specifically mentioned in the above mentioned letter that the additional post, duties of which are combined should not be on the same establishment or office and should not fall in the line of normal promotion. Citing example, it says that the post of Under Secretary/Deputy Secretary, Deputy Directors, Deputy Commissioner, Accountants, Assistants and Clerks in the same office or establishment are not independent of each other for the purpose of the rule. However, in the present case there is no whisper in either of the writ applications field by Md. Masood Yusuf and Md. Mojibur Rahman that the post of District Malaria Officer which they claimed to have held in officiating capacity was independent of the duties of the Assistant Malaria Officer which they were holding substantively. For this reason also, we find that the petitioners cannot claim benefit of Rule 103 of the Bihar Service Code to claim the pay admissible to the post of District Malaria Officer. 20. As we have held that the respondents in LPA Nos. 484 of 2006 and 485 of 2006 are not entitled for any enhanced pay on the basis of their claim that they officiated on higher post of District Malaria Officer, there is no occasion for us to decide whether they would be entitled to revision of pension on that basis or not." 17. The decision rendered in case of Dr. Sachita Kumar Sinha v. State of Bihar reported in 1995 (1) PLJR 362 was held to be not laying correct law. Paragraph 22 of the decision in case of Md. Masood Yousuf (supra) is being reproduced hereinbelow:- "22. Md. Farooque Moazzam, learned counsel appearing on behalf of the writ petitioners (respondent in the Appeals preferred by State) has heavily relied on a single Judge judgment of this Court reported in 1995(1) PLJR 362 (Dr. Sachita Kumar Sinha vs. State of Bihar), in order to contend that they are entitled for higher pay and for consequent revision of pension. We are of the view that the said judgment has not scrutinized the relevant rules under the Bihar Service Code and cannot be held to be a good law. Sachita Kumar Sinha vs. State of Bihar), in order to contend that they are entitled for higher pay and for consequent revision of pension. We are of the view that the said judgment has not scrutinized the relevant rules under the Bihar Service Code and cannot be held to be a good law. Unless it is held that the combination of posts, one held in substantive capacity and other (s) is/are officiating capacity are "independent posts", the Government servant cannot get additional/compensatory pay on the strength of Rule 103 of the Bihar Service Code." 18. In view of the discussions above, I do not find any merit in the writ application, this writ application is accordingly dismissed. 19. There shall be no order as to costs.