The discretionary nature of relief under Art. 226 of the Constitution and the entitlement of a party to relief based on the facts and circumstances of the case.

The original writ petitioner (Arun Kumar Tiwary) died during the pendency of the writ petition and has been substituted by his widow Urmila Tiwary pursuant to order passed by this Court in respect of I.A. No. 2825 of 2013.

2. The original writ petitioner had filed this writ petition claiming salary for the period 15.12.1998 to 4.5.2006 during which period he had been dismissed and then reinstated. Though the writ petition was filed in the year 2010 there was no counter affidavit. Today affidavits on behalf of respondent no. 3 Director, Secondary Education Department, Government of Bihar, Patna and respondent no. 5, District Education Officer, Patna, have been filed.

3. Heard the parties and with their consent this writ petition is being disposed of at this stage itself.

4. The facts are not in dispute.

5. The original writ petitioner pursuant to advertisement issued was examined, interviewed and selected as a Clerk alongwith 45 others. They were posted within the jurisdiction of Additional Director of Education, Ranchi, in the year 1990. In due course of time some controversy had been raised and certain orders were passed by this Court. In different proceedings all 45 clerks were dismissed in the year 1998. It is not in dispute that several of them approached Ranchi High Court, as then was, and the High Court set aside the orders of dismissal and directed for their reinstatement alongwith a direction to pay the back wages. The petitioner had not moved the High Court. He moved the authority stating that he was similarly situated to those who had moved the High Court and had been reinstated. It is not in dispute that considering the aforesaid fact, by order of the Director, Secondary Education, Government of Bihar (after bifurcation of the State of Bihar) he was reinstated by order dated 5.5.2006, as contained in Annexure-6 to the writ petition and the petitioner joined. He then petitioned the authority for payment of back wages demanding similar treatment that was meted out to others. That has been rejected by the impugned order as contained in Annexure-1 dated 25.7.2008 on the ground that other persons were reinstated pursuant to order of this Court and were paid their back wages pursuant to order of this Court and in the case of the petitioner there were no such order. The legality and propriety of this is under challenge.

6. Having considered the matter, in my view, the writ petition must succeed. Once the authority decided to reinstate the petitioner treating him to be similarly situated with the others who had got order from the High Court then the petitioner cannot be discriminated in regards consequence of reinstatement. The law is well settled by the judgment of Apex Court in the case of Ashwani Kumar and Others vs. State of Bihar and Others since reported in AIR 1997 Supreme Court 1628 [: 1997(1) PLJR (SC)59] wherein in para 17 what their Lordships had held is as follows:-

"Nor can we say that benefit can be made available only to 1363 appellants before us as the other employees similarly circumscribed and who might not have approached the High Court or this Court earlier and who may be waiting in the wings/would also be entitled to claim similar relief against the State which has to give equal treatment to all of them otherwise it would be held guilty of discriminatory treatment which could not be countenanced under Articles 14 and 16( 1) of the Constitution of India."

7. Similar is the provision of clause 4.C(1) of the notified Bihar State Litigation Policy, 2011, which is quoted hereunder:-

"4.C(1) A good number of cases are from the category of similar cases. Each Government Department will aim to consider and settle the claim of the representationist/applicant employee/citizen, if the claim is found covered by any decision of the Court. Many service matters of this nature, can be disposed of at the level of the Department itself without compelling the litigant to come to the Court. In this manner, the Governmen