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2020 Supreme(Pat) 658
IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH, J.
Ambika Prasad Singh - Appellant
Versus
The State of Bihar and Ors. - Respondent
Civil Writ Jurisdiction Case No. 18140 of 2011
Decided On : 28-05-2020
Advocate Appeared:
For the Appellant :Satyabir Bharti, Advocate
Headnote:
Bihar Service Code, 1952 – Rule 103 – Salary – Temporary posting on officiating basis – Petitioner has approached this Court ten years after his superannuation – Present application should not be entertained on ground of delay and laches – Petitioner's plea that he was waiting for ultimate decision of Division Bench on challenge made by State of Bihar to file writ application cannot be accepted as a valid ground to overlook delay in filing of writ application – Petitioner did not pursue his claim for several years and was not at all vigilant – He chose to sit on fence till somebody else's case came to be decided – When a person is not vigilant to his rights and acquiesces into the situation, writ petition cannot be entertained claiming parity with similarly situated who were vigilant about their rights – Delay defeats equity and where writ petitioner approaches High Court after a long time, reliefs prayed for may be denied to him on the ground of delay and laches, irrespective of fact that he is similarly situated to other candidates who obtained benefit of judgment – Even if 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 – Petitioner is not entitled even on merits, higher salary admissible for post of Excise Superintendent – Unless it is held that combination of posts, one held in substantive capacity and other(s) is/are officiating capacity are independent posts, Government servant cannot get additional/compensatory pay on strength of Rule 103 of Bihar Service Code – Unless it is held that combination of posts, one held in substantive capacity and other(s) is/are officiating capacity are independent posts, Government servant cannot get additional/compensatory pay on strength of Rule 103 of Bihar Service Code – Writ application dismissed. (Paras 5, 9, 11, 14 to 18)
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. 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
