Patna High Court's Division Bench sets aside judgement of High Court's Single Judge Bench

The Division Bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy allowed the appeal by the State of Bihar against the judgment of Justice Purnendu Singh dated November 2, 2023 passed in Dr. Sarju Prasad @ Sarjoo Prasad Vs. The State of Bihar. It set aside the judgement of the Single Judge Bench. Besides the State of Bihar, the other appellants were: the Principal Secretary, Department of Health, Bihar, the Principal Secretary, Department of Finance, Bihar, the Director-in-Chief, Department of Health, Bihar and the Controlling Officer -cum -H.O.D., Bihar College of Physiotherapy and Occupational Therapy. Besides Dr Sarju Prasad, the Accountant General, Bihar was also a respondent. The careful reading of both the judgements show that both rely on relevant Supreme Court's decisions. If Dr. Sarju Prasad appeals against the decision, there is sufficient possibility of a favorable decision of the Supreme Court. 

The Division Bench relied on the decisions of the  Supreme Court in the cases of C. Jacob vs Director of Geology and Mining & Another; (2008) 10 SCC 115, State of Jammu & Kashmir vs R.K Zalpuri & Others; AIR 2016 SC 3006 and Surjeet Singh Sahni vs State of Uttar Pradesh & Others; (2022) 15 SCC 536. 

Notably, the Single Judge Bench had also relied on Supreme Court's decision in C. Jacob v. Director of Geology and Mining & Anr. reported in (2008) 10 SCC 115 on the maintainability of the writ petition on the ground of delay and laches. In the present writ petition, the original cause of action arose in the year 2002 when the petitioner had superannuated from the service and question raised by the respondent/s that a belated writ petition on account of delay and laches should be dismissed in limine. In this regard, it is relevant to refer the law laid down by the Apex Court in case of . It has been held that the issue has been kept alive being continuing one the law of limitation on delay and laches will not apply. Besides the State of Bihar, the other respondents were: the Principal Secretary, Department of Health, Bihar, the Principal Secretary, Department of Finance, Bihar, the Director-in-Chief, Department of Health, Bihar, the Controlling Officer -cum -H.O.D., Bihar College of Physiotherapy and Occupational Therapy and the Accountant General, Bihar.

It quoted Justice A.L. Smith, who had observed that ““If once a cause of action arises, and the acts complained of are continuously repeated, the cause of action continues and goes on de die in diem. It seems to me that there was a connection in the present case between the series of acts before and after the action was brought they were repeated in succession and became a continuing cause of action. They were an assertion of the same claim-namely, a claim to continue to board sewage into the stream-continuation of the same alleged right. In my opinion, there was a continuing cause of action within the meaning of the rule.” It inferred that "a continuing cause of action would be a recurring cause of action, or to put it differently the phrases, continuing cause of action and recurring cause of action would be synonym. The petitioner is aggrieved by the approach of the competent authority before whom he had prayed for re-fixation of his pension by giving the benefit of ACP/MACP and had also repeated before the competent authority in this regard have been able able to make out a case that writ petition does not suffer from any delay and laches as the act of the respondent/s in not giving the benefit of ACP/MACP has seriously prejudiced the fixation of petitioner’s pension, who has been getting less amount of pension every month and, therefore, the cause of action is recurring or continuing one." 

The penultimate paragraph of the judgement of the Single Judge Bench reads:"The Additional Chief Secretary must ensure to direct the concerned sanctioning authority to fix the pay scale of the petitioner and grant difference of salary on account of pay revision and financial upgradation as a result of ACP/MACP and accordingly direct to sanction the pension by revising it on the basis of the prescribed pay scale of Professor and Head of the Department from the date of appointment of the petitioner in accordance with law within a period of six weeks from the date of passing of this order."

The Division Bench relied the Supreme Court's judgment in the case of Surjeet Singh Sahni. It reads:-“8. As observed by this Court in a catena of decisions, mere representation does not extend the period of limitation and the aggrieved person has to approach the Court expeditiously and within a reasonable time. If it is found that the writ petitioner is guilty of delay and laches, the High Court should dismiss it at the threshold and ought not to dispose of the writ petition by relegating the writ petitioner to file a representation and/or directing the authority to decide the representation, once it is found that the original writ petitioner is guilty of delay and laches. Such order shall not give an opportunity to the petitioner to thereafter contend that rejection of the representation subsequently has given a fresh cause of action.”

The penultimate paragraph of the judgement of the Division Bench reads:"the cause of action for the petitioner having arisen for the first time in the year 1972 when as per his case he was not granted the benefit of Teaching Cadre and atleast before his retirement in the year 2002, the delay and laches on the part of the writ petitioner of at least 17 years cannot be explained with the rejection of his representation. The Court is of the opinion that the writ application ought to have been dismissed on the ground of delay and laches alone and the learned Single Judge has erred in not taking into consideration the submissions made on this count on behalf of the appellant State of Bihar. The Court finds merit in the appeal." It was authored by Justice Partha Sarthy.

Several decisions of the Supreme Court has underlined that mere filing of representation does not extend the period of limitation and the aggrieved person has to approach the Court expeditiously and within a reasonable time. The Single Judge Bench has recorded in its judgement that the original cause of action arose in the year 2002 when the petitioner had superannuated from the service. It has also recorded that the respondent/s had raised the question regarding a belated writ petition. They had sought its dismissal in limine on account of delay and laches. Drawing on the law laid down by the Supreme Court in case of C. Jacob v. Director of Geology and Mining & Anr. reported in (2008) 10 SCC 115, it concluded that the issue has been kept alive being continuing one the law of limitation on delay and laches will not apply.