Ram Maya Devi vs The State Of Bihar
2023 Latest Caselaw 5564 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Letters Patent Appeal No.839 of 2019
                                           In
                    Civil Writ Jurisdiction Case No.7739 of 2015
     ======================================================

Shyam Kishore Singh son of Late Kali Singh, resident of Mohalla- Shri Krishnapuri, Qr. No. L-1/40, P.S.- S.K. Puri, District Patna.

... ... Appellant/s Versus

1. The State of Bihar

2. Municipal Commissioner, Patna Regional Development Authority Dissolved/ Patna Municipal Corporation, Patna

3. The Controller of Finance and Accounts, Patna Regional Development Authority Dissolved/ Patna Municipal Corporation, Patna

... ... Respondent/s ====================================================== with Letters Patent Appeal No. 1010 of 2019 In Civil Writ Jurisdiction Case No.7739 of 2015 ====================================================== Ram Maya Devi, Wife of Late Ram Ballabh Prasad Singh, resident of Mohalla Khasmahal, Road No. 4, Chiraiyatar, Patna- 800001.

... ... Appellant/s Versus

1. The State of Bihar through the Commissioner-cum-Secretary, Urban Development and Housing New Secretariat, Patna.

2. Municipal Commissioner, Patna Regional Development Authority Dissolved/Patna Municipal Corporation, Maurya Lok Complex, Block - C, 2nd Floor, Dakbunglow Road, Patna - 800001.

3. The Controller of Finance and Accounts, Patna Regional Development Authority Dissolved/Patna Municipal Corporation, Maurya Lok Complex, Block - C, 2nd Floor, Dakbunglow Road, Patna - 800001.

... ... Respondent/s ====================================================== Appearance :

(In Letters Patent Appeal No. 839 of 2019) For the Appellant/s : Mr. Shravan Kumar Singh, Sr. Advocate Mr. Dinesh Maharaj, Advocate Mr. Krishna Kumar Singh, Advocate Mr. Shyama Kant Singh, Advocate For the Respondent/s : Mr. Vindhyachal Singh, Sr. Advocate Mr. Ranjeet Kumar Pandey, Advocate Mr. Prasoon Sinha, Advocate Patna High Court L.P.A No.839 of 2019 dt.07-11-2023

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJIV ROY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 07-11-2023

Petitioner Nos. 1 and 5 in the writ petition are the

appellants in the separate appeals filed against the judgment

impugned. Petitioner Nos. 1 to 6 in the writ petition had sought

for the benefits of Assured Career Progression (for brevity

"ACP") Scheme applicable to the Government Employees of

the State of Bihar. Petitioner Nos. 2, 3 and 6 were found to have

filed earlier writ petitions, which was not disclosed in the writ

petition. The 5th petitioner in the writ petition was found to have

filed another writ petition CWJC No. 6656 of 2015 in which

there was a claim of ACP.

2. The writ petition was dismissed also on the ground

that the petitioners had retired and were no longer in service

when the ACP Scheme was implemented in the Patna Municipal

Corporation (for brevity "the Corporation"). In so far as

Petitioner Nos. 2, 3 and 6, there is no appeal filed. The 4 th

petitioner was the successor of one deceased employee who had

not produced the succession certificate. The 4th petitioner also

has not filed any appeal. The appeals are only by the 1 st Patna High Court L.P.A No.839 of 2019 dt.07-11-2023

petitioner and the 5th petitioner.

3. Learned counsel for the appellants submits that the

Corporation employees were made entitled to ACP benefits as

on 2006, as is evident from Annexure-1 produced in the writ

petition. The very same scheme as applicable to the Government

employees were brought in force. It is also pointed out that in

LPA No. 1010 of 2019 by affidavit dated 12.09.2022,

Government orders dated 10.10.2017 & 06.04.2022, by which

which the ACP Scheme was retrospectively made applicable to

retired government employees, are also produced. This enabled

those employees who had retired also to the benefits of ACP

retrospectively. As far as the finding that the 5th petitioner had

filed another writ petition that was for retirement benefits of her

deceased husband and not the benefit of ACP.

4. Learned Senior Counsel appearing for the

Corporation submits that the writ-petitioners were never

employees of the Corporation and were employees of the Patna

Regional Development Authority (for brevity "PRDA"). It is,

however, submitted that the order of 2006 was issued by the

PRDA, which has been adopted by the Corporation in the year

2007 after the Corporation succeeded to the PRDA.

5. Admittedly, there was no ACP Scheme in the Patna High Court L.P.A No.839 of 2019 dt.07-11-2023

PRDA at the time when one of the writ-petitioners and the

husband of the other were employed, nor even when they retired

in the year 2002. Appellant in LPA No. 839 of 2019 is said to

have retired on 22.08.2002 and the husband of the appellant in

LPA No. 1010 of 2019 on 22.10.2002. The ACP Scheme came

to be adopted by the PRDA only in the year 2006. The

retrospective effect given to the scheme was only for

government employees, who were in employment when the

scheme came into force in the Government. It is pertinent that

even according to the affidavit the order of 06.02.2022 was with

respect to a government employee who retired on 30.01.2015.

Moreover, they were government employees and not employees

of the Corporation or the erstwhile PRDA. Hence, as on the date

of adoption of the Scheme of 2006 since the appellants were not

employed with the PRDA, they cannot claim retrospective

application of the Scheme.

6. We find force in the contention of the respondent

Corporation that even at the time of adoption of the scheme it

applied only to the employees existing in employment as on the

date of adoption, which was in 2006, after the retirement of the

appellant and the husband of the other appellant.

7. The Corporation was formed in the year 2007 when Patna High Court L.P.A No.839 of 2019 dt.07-11-2023

the Corporation also adopted the very same ACP Scheme and by

communication dated 22.09.2008 produced as Annexure-2, it

was specified that it would be applicable only to the existing

employees. The said order was never challenged by the

appellants. The affidavit dated 12.09.2023 only produces a

document which indicates that government employees were

given the benefit retrospectively. However, that does not flow

automatically to the Corporation employees unless the

Corporation takes a decision to grant the benefit retrospectively

to its employees, or to the employees of the PRDA, which has

been taken over by the Corporation subsequently.

8. We cannot but notice that the judgment handed over

to us to dispel the ground that there was an earlier writ petition

filed for the same relief of ACP does not dispel it. Therein, it is

seen that the writ petitioner had withdrawn the case on the

submission that her grievances were redressed. This does not

indicate that she had not prayed for the relief of ACP also in the

earlier writ petition. In any event, when the earlier writ petition

of 2015 was filed, it was incumbent upon the writ petitioner to

raise all claims entitled to her at that point of time. If not so

raised, then there is a presumption of waiver and in any

circumstance, this Court could refuse to exercise the discretion Patna High Court L.P.A No.839 of 2019 dt.07-11-2023

to invoke the extraordinary remedy.

9. We hence, find no substance in the grounds raised

by the appellants. The appeals stand dismissed.

10. Interlocutory Application(s), if any, shall stand

closed.

(K. Vinod Chandran, CJ)

(Rajiv Roy, J) P.K.P./-

AFR/NAFR
CAV DATE
Uploading Date          10.11.2023
Transmission Date