The dismissal of the writ petition on grounds of delay was erroneous; the petitioner was entitled to salary and retiral benefits due to lack of termination of service.

ORDER :

1. Delay condoned; abatement is set aside.

2. Application for substitution is allowed.

3. The widow and son of the original petitioner, Sheo Shankar Prasad (since deceased), shall be brought on record as substituted petitioners.

4. Leave granted.

5. Sheo Shankar Prasad instituted a writ petition¹[Writ Jurisdiction Case No.7506 of 2011] in the High Court of Judicature at Patna. By an order dated 18th January, 2016, the Single Judge of the High Court dismissed the writ petition on the ground of delay.

6. An intra-court appeal ² [Letters Patent Appeal 593/2016] was carried to the Division Bench of the High Court by Sheo Shankar Prasad. The said appeal was also dismissed by an order dated 03rd May, 2017 on the ground that the learned Judge was right in dismissing the writ petition on the ground of delay.

7. We have no hesitation to hold that both the learned Judge as well as the Judges of the Division Bench were grossly wrong in dismissing the writ petition on the ground of delay. It is on this short ground that the impugned judgment(s) and order(s) could have been set aside and the matter remanded to the High Court for fresh decision. However, having regard to the fact that Sheo Shankar Prasad passed away during the pendency of the proceedings before this Court, we propose not to order a remand but proceed to consider the grievance raised in the writ petition on its own merits.

8. Sheo Shankar Prasad was appointed as an Assistant Teacher in the year 1981 in the Primary School, Ghutiya in Chakay Block, District Munger. The relevant office order containing terms and conditions of appointment of Sheo Shankar Prasad as well as other teachers was issued by the Director District Education, Munger on 10th December, 1981. Name of Sheo Shankar Prasad figured at serial No.28.

9. Sheo Shankar Prasad, in terms of such appointment order, joined the school and continued to discharge the functions of an Assistant Teacher. On 18th December, 2004, he was served with an order issued by the District Education Officer-cum-Block Education Officer, Jamuee calling upon him to produce within twenty four hours, copies of his appointment letter, service book, educational training certificate, and residence proof in three copies duly self attested for verification. By the said order, the salary of Sheo Shankar Prasad was stopped with immediate effect till completion of inquiry.

10. At paragraph 9 of the writ petition, Sheo Shankar Prasad averred that upon receipt of the memo dated 18th December, 2004, he had submitted all the requisite documents in the office of the B.S.E. Jamui. It has further been averred in paragraph 7 that he had worked in the said school till his date of retirement without there being any adverse entry in his service book.

11. Upon attaining the age of superannuation, Sheo Shankar Prasad retired on 14th August, 2010. It was also averred by him that on several occasions, he made oral and written requests for payment of salary from 18th December, 2004 till 14th August, 2010 but the authority did not accede to his request thereby triggering the writ petition supported by an affidavit sworn some time in 2011.

12. It is such a writ petition that failed before the learned Judge of the High Court on the ground of delay and such dismissal was affirmed by the Division Bench.

13. We are constrained to observe that there was in fact no delay in presentation of the writ petition. The writ petition was presented a year after the retirement of Sheo Shankar Prasad and not years later. What Sheo Shankar Prasad claimed was a personal right to have his salary paid in lieu of discharging service from 18th December, 2004 till 14th August, 2010 and the retiral benefits which had accrued in his favour, taking into account the long service rendered by him since 1981. No parallel third-party right would have been affected, if relief claimed by Sheo Shankar Prasad were found to be due and, hence, granted. It was also not a case where the respondents would have, in