IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10839 of 2010 1. Binod Kumar Yadav S/O Late Mishri Lal Yadav R/O Vill.- Sandalpur, P.S.- Munger, Distt.- Munger Versus 1. The State Of Bihar Through The Secretary Department Of Art, Culture And Youth Affairs, Govt. Of Bihar, Patna 2. The Secretary, Department Of Art, Culture And Youth Affairs Govt. Of Bihar, Patna 3. The Director, National Credit Corps (Bihar And Jharkhand) Rajendra Path, Bihar, Patna 4. The Joint Director, Directorate Of Ncc (Bihar & Jharkhand) Rajendra Path, Patna-19 5. The Commanding Officer No.9, Bihar Battalian Ncc, Munger (Bihar), Patna 6. The Group Commander, Ncc Group Head Quarter, Bhagalpur, Bihar, Patna ----------- 2. 14.11.2011 Heard learned counsel for the petitioner and the State. The writ petition was filed on 2.7.2010 after serving two copies of the writ application in the office of the Advocate General on 1.7.2010. A passage of nearly one year and three months has been considered insufficient by the respondents to assist this Court in dispensation of justice by filing a counter affidavit, a constitutional obligation under Chapter-4 of the Constitution. This Court has held in more than one order that the respondents appear to be labouring under a misconception of a vested right to demand adjournment at the first listing of the case for a filing of a counter affidavit irrespective of the more than reasonable period that may have passed from the date of filing/serving of the writ petition, thereby clogging the 2 dockets of the Court and hindering timely dispensation of justice. The Court is not persuaded to accept the request of the State counsel for adjournment to seek instructions in view of the very short nature of the controversy involved when the facts to that extent from the records do not appear in dispute. The petitioner superannuated on 1.3.2008. While in service, on 19.3.2005 he applied for exemption from appearing at the Departmental Accounts Examination so as to enable him to be considered for grant of 1st and 2nd A.C.P. He gave reminder to the respondents again while in service on 18.9.2006. On 24.2.2009 after his superannuation, the respondents have communicated to him that his request for exemption from passing the departmental examination had been recommended and forwarded to the appropriate authority for consideration on 27.3.2006/ 25.1.2007. A final decision was still awaited. Counsel for the State submits that the writ application may be disposed with directions to take a final decision in light of the recommendation dated 24.2.2009. The grant of exemption from passing the departmental examination was not a matter of right for 3 the petitioner. But if he made a request for exemption and gave a reminder too during his service tenure, the application was either required to be granted or rejected. The petitioner cannot be denied the exemption by sheer inaction and failure to consider the same and thereby also deny him the consequential right to be considered for grant of A.C.P. The Court has no hesitation in holding from the recitals in the communication dated 24.2.2009 that his case had been recommended for exemption. It is but an acknowledgment that he fulfills the conditions for the same. As otherwise he would have been convey a regret for non fulfillment of the conditions for exemption. In the facts and circumstances of the case rather than disposing the matter in the manner suggested by the learned State counsel the Court holds it to be a fit case for grant of deemed exemption and allow the writ application. The respondents are directed to now consider his claim for A.C.P. in light of the exemption granted under orders of this Court by a deemed application of the provisions and provide him the monetary benefits of the first and second A.C.P. in accordance with law and simultaneously revise his pensionary benefits accordingly so that the actual benefit of the same by 4 issuance of necessary revised payment order etc. all may be available in the entirety to the petitioner within a maximum period of five months from the date of receipt/production of a copy of this order. In 2006 (2) PLJR 169 (Dinesh Narayan Mishra Vs. State of Bihar) relief was granted applying the theory of deemed exemption at Pargraph-4 as follows:- “4. Considering all the facts and circumstances, it is found that petitioner was entitled for consideration for exemption from taking the required examination on account of having crossed 50 years of age and since the concerned authorities granted him time bound promotion without asking him to make specific application for relaxation or condonation, it should be deemed that the concerned authorities granted the required relaxation/exemption from taking the departmental examination. It is further found that the petitioner not being guilty of any misrepresentation or fraud cannot be deprived of the benefit of such promotion after long number of years when he has superannuated from service. Accordingly, the relevant part of decision contained in Annexure-1 affecting the pension of the petitioner adversely is quashed and the Accountant General, Bihar is directed to redetermine the pension and gratuity of the petitioner without ignoring the time bound promotion granted to him by the State of Bihar w.e.f. 15.12.1994.” The writ application stands allowed. P. Kumar ( Navin Sinha, J.)