Patna High Court
Birendra Kumar Sinha vs Zila Parishad, Patna on 11 January, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.904 of 2021
======================================================
Birendra Kumar Sinha Son of Brahamdeo Sinha Resident of Village-
Bandpar, P.S.- Islampur, District- Nalanda.
... ... Petitioner/s
Versus
1. Zila Parishad, Patna through its Deputy Development Commissioner-cum-
Chief Executive Officer, Zila Parishad, Patna.
2. The Deputy Development Commissioner-cum- Chief Executive Officer, Zila
Parishad, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Mrigendra Kumar, Adv.
For the Respondent/s : Mr. Nikesh Kumar, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 11-01-2024
Heard Mr. Mrigendra Kumar, learned counsel
appearing on behalf of the petitioner and Mr. Nikesh Kumar,
learned counsel for the Zila Parishad, Patna.
2. The petitioner, who superannuated on 28.02.2018
from the post of Junior Engineer, Zila Parishad, Patna, has filed
the writ petition seeking a direction upon the respondents to
ensure payment of all his retiral dues as well as other payable
dues, which accrued on account of revision of Pay Commission,
payment of arrears of Time Bound Promotion, ACP, along with
interest over the delayed payment.
3. It is submitted on behalf of the petitioner that
admittedly the petitioner superannuated in the year 2018,
Patna High Court CWJC No.904 of 2021 dt.11-01-2024
2/6
however, on account of intervention of this Court, during
pendency of the present writ petition, payment of part provident
fund, gratuity, earned leave and arrears of salary/pension on
account of 4th and 6th Pay revision has only been accorded to the
petitioner. Till date, the petitioner has not been accorded the
benefit of First Time Bound Promotion as well as the 1 st and 2nd
ACP.
4. The learned counsel for the petitioner, while
drawing the attention of this Court to paragraph no. 11 of the
counter affidavit filed on behalf of the Zila Parishad, submitted
that the, very reason for not assigning the benefits of First time
Bound Promotion, is said to be in absence of confidential
remarks; thus, for that the petitioner cannot be blamed. He
submits at the Bar that in any view of the matter the petitioner
was appointed on 17.01.1983 as a Junior Engineer vide Memo
No. 367 dated 17.01.1983 and as such, he is entitled for the
benefit under the First Time Bound Promotion after completion
of 12 years of his service.
5. He further, referring to the order issued by the Zila
Parishad, Patna as contained in Memo No. 376 dated
01.01.2019
, submitted that though a decision has been taken
(Annexure-4 to the writ petition) to ensure benefit of financial
Patna High Court CWJC No.904 of 2021 dt.11-01-2024
progression under the Assured Career Progression Scheme, but
till date the same has not been accorded. He next submitted that
the petitioner is also entitled for the officiating allowance in
view of Memo No. 577 dated 28.03.2008, whereby the
petitioner has been directed to discharge the work of two posts.
6. At this juncture, learned counsel for the Zila
Parishad has submitted that the petitioner was appointed on the
recommendation of the Selection Committee of the Zila
Parishad on 24.01.1983 and on 01.12.1984 on account of certain
irregularities, he was put under suspension in contemplation of
departmental proceeding till 05.05.1987, resulting into
withholding of two annual increments with cumulative effect,
apart from, the petitioner has been allowed only officiating
allowance during suspension period. Referring to the other
averments in the counter affidavit, he further submits that so far
the admissible dues of the petitioner is concerned, the same has
already been accorded, moreover, the benefit of ACP is not
applicable to the employees of the Zila Parisahd and till date
this benefit has not been accorded to any of the employee. He
further submits that regarding the officiating allowance, the
same is neither admissible nor has been paid to any employee of
the Zila Parishad. He lastly submitted that the petitioner had
Patna High Court CWJC No.904 of 2021 dt.11-01-2024
earlier moved before this Court for the same and identical relief
in CWJC No. 15046 of 2011 which stood dismissed on account
of non-prosecution. Thus, the present writ petition is not
maintainable being barred by res judicate.
7. This Court has heard the submissions advanced on
behalf of the respective parties. So far maintainability of the
writ petition is concerned, this Court does not find any merit as
there was neither any decision on merit nor any adjudication on
the earlier point of time, thus, there shall be no applicability of
principle of res judicata. This issue has also been dealt with in
various cases, recently the Hon'ble Apex Court in the case of
Prem Kishore & Ors. vs. Brahm Prakash& Ors. reported in
2023 LiveLaw (SC) 266, has elaborately explained the general
principle of res judicate.
8. In the case of Daryao vs. The State of U.P. (AIR
1961 SC 1457), it was held that when the petition filed in the
High Court under Article 226 is dismissed not on merit but
because of laches of the party applying for the writ or because
the party had an alternative remedy available to it, then the
dismissal of the writ petition would not constitute a bar to the
subsequent petition under Article 32.
9. It is well settled principle of law that the principle
Patna High Court CWJC No.904 of 2021 dt.11-01-2024
of res judicate will be applicable only when the issues have
been decided and it has attained finality. If it is not discernible
from the order that the case has been dismissed on merit the bar
of res judicate will not prevail either in filing the writ petition
before the Supreme Court or the High Court.
10. So far the remaining claim of the petitioner as
stated hereinabove, this Court finds that so far the First Time
Bound Promotion is concerned, the same cannot be denied in
absence of confidential remarks, which is required to be done by
the superior authorities of the Zila Parishad, hence the same
must be considered by the respondent, Zila Parishad after taking
note of service record of the petitioner, in accordance with law,
within a period of eight weeks.
11. So far other grievance, regarding ACP, 7 th Pay
Commission as well as officiating allowance(s) are concerned,
the petitioner is at liberty to file an appropriate representation
before the Deputy Development Commissioner-cum-Chief
Executive Officer, Zila Parishad, Patna, who shall also consider
the same and pass a reasoned and speaking order, preferably
within the afore-noted stipulated period.
12. Needless to observe that in case any of the
identically situated employees have been accorded the benefit of
Patna High Court CWJC No.904 of 2021 dt.11-01-2024
ACP and 7th Pay Commission, the same benefit should be
accorded to the petitioner also.
13. This disposes the present writ petition.
(Harish Kumar, J)
Anjani/-
AFR/NAFR
CAV DATE
Uploading Date 16.01.2024
Transmission Date
