IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13248 of 2001 MAHANAND THAKUR Versus THE STATE OF BIHAR & ORS ----------- 4 26.09.2008 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner retired from the post of Correspondence Clerk (Senior Selection Grade) on 31.12.2000. The grievance of the petitioner is for a direction to the respondents to identify need based post in promotional scale for the petitioner and fix his pay in such promotional scale and on that basis grant pension to the petitioner in appropriate scale. Petitioner also wants arrears of salary on account of such re-fixing of his scale in promotional scale. From the counter affidavit filed on behalf of respondent State, it appears that they have not accepted that there was any requirement to determine a need based post in promotional scale after 1996 and although a promotional post(Head Clerk) was available for the petitioner and it was offered to him in the year 1996 but he declined to accept the same by filing a representation. Those orders and representations are Annexure-E series to the counter affidavit. It appears from the records that subsequently three other employees were granted promotional scale against three higher posts of Head Clerk w.e.f. 1.1.1996. The three persons included one Nityanand Singh, Head Clerk. It further appears that petitioner has claimed to be senior to Sri Nityanand Singh and latter had filed a - 2 - Title Suit at Purnea bearing Title Suit No. 22/1980 against his reversion and that has been dismissed as withdrawn on 10.3.2006. So far as this writ petition is concerned, NItyanand Singh or any other private respondent has not been made a party respondent nor any order in favour of any private respondents granting him promotional scale has been challenged by the petitioner. It further appears from Annexures- 37 and 38 that recently, the Government of Bihar in the Road Construction Department has issued some letters in the month of February and July, 2007 which appear to be in favour of the petitioner’s claim that he was entitled to the benefit of promotional scale. Even if it be accepted that petitioner was senior to some other employees who were wrongly granted promotional scale, since those employees are not respondents here and the the orders passed in their favour are not under challenge, it is not possible to create a post in promotional scale for grant of benefit to the petitioner. However, if such post exists or the government can find out such post for the petitioner and government finds that he is entitled for promotional scale on account of his seniority then the respondents may consider the claim of the petitioner and grant him such benefit at an early date preferably within three months. This writ petition is disposed of. pkj (Shiva Kirti Singh,J)