IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.231 of 2006 1. THE STATE OF BIHAR 2. The Secretary, Animal Husbandry & Fisheries, New Secretariat, Bihar, Patna 3. The Director, Dairy Development Directorate, Government of Bihar, New Secretariat, Patna 4. The Joint Director, Dairy Development Director, New Secretariat, Bihar, Patna 5. The Deputy Director (Head Quarter), Dairy Development Directorate, New Secretariat, Bihar, Patna 6. The District Dairy Development Officer, Begusarai 7. Girish Prasad Gupta …. Respondents/Appellants Versus GIRISH PRASAD GUPTA, son of Late Badri Lal Gupta, resident of Village Shokhara, Rajendra Road, Barauni, Police Station Phulwari, District Begusarai, at present working as Accountant, District Dairy Development Office, Begusarai ….. Petitioner/Respondent ----------- For the Appellants : Mr. Lalit Kishore, AAG III Mr. Piyush Lal, Assistant Counsel to AAG III For the Respondent : Mr.Chittaranjan Sinha 08- 18.12.2009 The State of Bihar and its functionaries have preferred this appeal under clause 10 of the letters patent of the High Court of Judicature of Patna, and are aggrieved by the order dated 12.12.2005, passed by a learned single Judge of this Court, in CWJC No.7602 of 2004 (Girish Prasad Gupta vs. State of Bihar & Ors.), whereby the writ petition has been allowed and the order of the State Government cancelling the benefit of the first time-bound promotion to him, has been set aside, and the benefit has been restored. 2. A brief statement of facts essential for the disposal of the appeal may be indicated. The facts shall be drawn from the writ proceedings, except by special reference to the 2 present appeal. The respondent herein joined the services of the erstwhile Bihar State Dairy Development Corporation (hereinafter referred to as `the Corporation’), a public sector undertaking of the Government of Bihar, as Office Assistant on 4.4.73 (Annexure -1). By order bearing memo no. 308, dated 25.8.78 (Annexure-2), four persons including the present petitioner were given promotion to the higher pay scale of Rs.290-460/-. By order bearing memo no. 309 of the same date (Annexure 2/1), they were given higher assignments/postings. By resolution of the State Government dated 10.2.84 (Annexure -4), the Corporation was dissolved, and its duties and functions were transferred to the State Government, and all its employees became government servants including the petitioner. By office order no. 98, dated 21.4.84 (Annexure-4/1), issued by the Bihar Government in the Department of Animal Husbandry & Fisheries (Dairy Development), the services of the petitioner along with others were taken over by the State Government with effect from the date of the notification. The question as to the date on which the employees of the quondam Corporation became the employees of the Bihar Government was raised in CWJC No. 4616 of 1995, which was disposed of by order dated 19.10.1995, wherein it has been held that such employees of the Corporation shall get continuity of service from the date(s) they had joined the Corporation. 3. The Bihar Government issued order dated 3 28.5.97 (annexure 6), whereby the petitioner was granted the first time-bound promotion with effect from 1.5.1994, counting his service in the Bihar Government with effect from 21.4.84. The same was cancelled by order dated 15.9.2000 (Annexure 8), on the ground that the writ petitioner had already received one promotion in the Corporation. The matter was re-considered by the authorities, and by order dated 10.9.2003 (Annexure 9), the petitioner was granted the first time-bound promotion taking into account his continuity of service with effect from the date he had joined the services of the Corporation. The same was cancelled by order dated 17.6.2004 (Annexure 10), on the ground that the petitioner had already been granted promotion by the said order dated 25.8.78 (Annexure 2 and Annexure 2/1), leading to the writ petition. The same has been allowed by the learned single Judge, and the order dated 17.6.2004 has been set aside. The learned single Judge has also noted that the petitioner has superannuated from the services of the Bihar Government during the pendency of the writ proceeding and, therefore, there cannot be question of recovery of any amount from him. 4. We have perused the materials on record and considered the submissions of learned counsel for the parties. Determination of the nature and character of the two orders of 25.8.78 is an important aspect which arises for our consideration. The relevant portion of order no.308, dated 25.8.78 (Annexure 2), with respect to the four persons including 4 the petitioner, is set out hereinbelow for the facility of quick reference:- vkns”k la[;k 308 iVuk] fnukad 25-8-78 funs'kd i"kZn ds 38oha cSBd fnukad 14-8-78 esa fy;s x;s fu.kZ;kuqlkj fcgkj LVsV Ms;jh dkjiksjs'ku fyfeVsM] esa dk;Zjr fuEufyf[kr oxZ&3 ds deZpkfj;ksa dks muds uke ds lkeus vafdr osrueku esa vkns”k fuxZr dh frfFk ls vLFkk;h rkSj ij izksUufr nh tkrh gS A inLFkkiu laca/kh vkns”k vyx ls fuxZr fd;k tk jgk gS A bldh ojh;rk ckn esa fu/kkZfjr dh tk;sxh A dze la0 deZpkfj;ksa dk uke ,oa inuke izksUufr in dk osrueku vH;qfDr .. .. .. .. .. .. .. .. .. .. .. .. 4. Jh lqnkek izlkn xqIrk] Mk;jh ,.M fMLiSp DydZ]eq[;ky; 296-460/- :0 .. .. .. .. .. -- .. .. .. .. .. .. 8. Jh fxjh”k izlkn xqIrk] dk;kZy; lgk;d] dEiksftV feYd IykUV] cjkSuh A 296-460/- 9. Jh ;qxs”oj izlkn flUgk] dk;kZy; lgk;d] eq[;ky; A 296-460/- 10. Jh vQkd vkye] dk;kZy; lgk;d] eq[;ky; A 296-460/- The same was followed by order no.309, dated 25.8.78 (Annexure 2/1). The corresponding portion with respect to the aforesaid four persons as found in the accompanying order no.309, dt. 25.8.78, is reproduced hereinbelow for the facility of quick reference:- vkns”k la[;k 309 fnukad 25-8-78 vkns”k la[;k 308 fnukad 25-8-78 ds }kjk izksUufr deZpkfj;ksa dks muds uke ds lkeus vafdr in ij inLFkkfir fd;k tkrk gS A dze la0 deZpkfj;ksa dk uke inLFkkfir in dk uke ,oa osrueku vH;qfDr 5 .. .. .. .. .. .. .. .. .. .. .. .. 4. Jh lqnkek izlkn xqIrk Mk;jh ,.M fMLiSp DydZ eq[;ky; ojh; dk;kZy; lgk;d] eq[;ky; 296&460 .. .. .. .. .. .. .. .. .. .. .. .. 8. Jh fxfj”k izlkn xqIrk] Dk;kZy; lgk;d LVksj dhij] eq[;ky; 296&460 9. Jh ;ksxs”oj izlkn flUgk Dk;kZy; lgk;d] eq[;ky; Okjh; dk;kZy; lgk;d] eq[;ky; 296&460 10. Jh vQkd vkye Dk;kZy; lgk;d] eq[;ky; lqijokbZtj lsYl] i”kq vkgkj dkj[kkuk 296&460 On a perusal of the same, it appears to us that the petitioner along with three others were, on the eve of the order, enjoying the pay scale of Rs.220-315/-, and were on promotion given the higher pay scale of Rs.296-460/-. Those were cases of promotion becomes evident from the relevant portion of order no.309, dated 25.8.78, reproduced hereinabove. It is evident from the description of their posts as mentioned at Sl. No.4, 8, 9 and 10 that these were cases of promotion. We would, therefore, prefer to conclude that this was in the nature of promotion to the four persons including the petitioner. 5. This, however, does not conclude matters. The next aspect of the matter really gives rise to a feeling of uneasiness in our minds. Learned counsel for the respondent (the writ petitioner) has taken us through the relevant portions of the writ petition and the counter affidavit in an effort to establish that the four persons were similarly circumstanced before and after issuance of the two orders of 25.8.78. He is right in his submission that all the four persons were similarly circumstanced, notwithstanding which the other three persons 6 continued to enjoy the benefit of first time-bound promotion given to them by the State of Bihar in complete oblivion of the orders dated 25.8.78, and the respondent (writ petitioner) has been singled out, subjected to hostile discrimination, and the order granting him the first time-bound promotion has been cancelled. No explanation has been offered to justify the difference of treatment meted out to the respondent. To this has to be added the position that the respondent has superannuated from the services of the Bihar Government during the pendency of the writ proceedings. Learned counsel for the respondent is right in his submission that the issue relating to hostile discrimination was raised in the writ petition, notwithstanding which the authorities have not taken steps to cancel the identical orders in favour of the other three persons. Before us also no submission has been made on behalf of the State of Bihar that steps would be taken to cancel the benefit of first time-bound promotion granted to those three persons. We would, therefore, prefer to lean in favour of the writ petitioner, the respondent herein. 6. In the result, the appeal is dismissed. We entirely agree with the conclusion arrived at by the learned single Judge, though on different grounds. ( S K Katriar ) 7 ( Kishore K Mandal ) mrl