IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.340 of 2001 TRIPURARI SHARAN Versus THE STATE OF BIHAR & ORS ----------- 4. 26.08.2008 Heard the learned Counsel for the petitioner. No one appears on behalf of the State when the mater is called out. A counter affidavit has been filed on behalf of the State. The matter has remained pending since 2001 and therefore this Court does not consider it proper to adjourn the matter any further to enable the State tobe represented. The Court proposes to dispose of the writ application appropriately after discussing the stand of the State as made out in the counter affidavit. The limited nature of the controversy for promotion to the post of Deputy Secretary of the petitioner has been noticed in the order dated 9.5.2008. Suffice it to note that he was considered by the Departmental Promotion Committee on 6.10.1994. It is his specific assertion in paragraph 13 of the writ application that this recommendation received the approval of the government in between 28.10.1994 and 7.11.1994. The counter affidavit at paragraph 5 dealing with the said averments of the writ petition only states that these are matter of record. The assertion of the petitioner therefore stands admitted. He superannuated on 31.1.1995 without the benefit of the promotion. It is submitted on behalf of the petitioner that he could not procure a copy of the minutes of the Departmental Promotion Committee and therefore proceeds with the matter on basis of materials already on record and dealt with in the counter affidavit. It is submitted on behalf of the petitioner that he was appointed as an Under Secretary on 22.2.1991 and became eligible for promotion 2 after three years in accordance with which he was recommended by the Departmental Promotion Committee. Relying on paragraph 24 of the pleadings in the writ petition learned Counsel submits from the impugned order dated 6.2.200 at Annexure 7 that the respondents have adopted a malafide attitude towards the petitioner by urging that despite availability of six vacancies in the post of Deputy Secretary in the general category the petitioner could not be considered for promotion as the persons at at serial 3, 4 and 5 i.e. Sri Ram Prasad Choudhary, Sri Ramesh Chandra Mishra and Sri Bijay Bahadur Singh came to be promoted when no further vacancy came to be available. The persons at serial 1 and 2 i.e. Sri Sadhu Sharan Prasad and Sri Mahakant Lal are admittedly senior to the petitioner. From their dates of appointment as Under Secretary mentioned in paragraph 24 of the writ petition it is apparent that the latter three were junior to the petitioner and have been recommended by the Departmental Promotion Committee in 1997. The averments in paragraph 24 of the writ petition has not been denied in the counter affidavit and is therefore deemed to have been admitted. If the petitioner became eligible for consideration in pursuance of the recommendation of the Departmental Promotion Committee in October 1994 which received the approval of the Government in October/November 1994 and the persons at serial 3, 4 and 5 of Annexure 7 who are junior to the petitioner and have been recommended for such promotion in 1997, quite logically vacancy for promotion to the post of Deputy Secretary in the general category was equally available prior to superannuation of the petitioner on 31.1.1995. Therefore to contend that his name stood at serial 16 of the list of candidates of the 3 general category awarding promotion to the post of Deputy Secretary has no relevance to the present controversy. Without denying the contention of the petitioner in paragraph 24 of the writ petition that persons at serial 3, 4 and 5 of Annexure 7 were junior to him on the post of Under Secretary, the counter affidavit at paragraph 8 deliberately attempts to found an issue by averring in omnibus manner that the file relating to promotion of persons senior to the petitioner was sent to the Chief Minister and which did not return and therefore file of the petitioner also remained pending when seniors have been promoted in February 1997 in the meantime the petitioner having retired on 31.1.1995. At this stage it is only appropriate to take notice of the submission of the petitioner on the three of the aforesaid being junior to the petitioner. The only denial with regard to the issue of seniority, in the counter affidavit, is with regard to one Sri Baliram Pandey and Rajeshwar Prasad with which the Court do not find any concern as their names did not find mention in Annexure 7. This Court in the facts and circumstances of the case and the materials on record is satisfied that the petitioner has wrongly been denied the benefit of promotion on the post of Deputy Secretary despite the recommendation in his favour of the Departmental Promotion Committee dated 6.10.1994. From the records as placed by the petitioner dealt with in the counter affidavit it is apparent that vacancies were available when persons junior to him are alleged to have been considered and recommended in 1997 by the Departmental Promotion Committee. It follows logically that in between vacancies were available but the petitioner was wrongly denied benefit of such promotion. 4 The Court holds that the petitioner is entitled to be promoted to the post of Deputy Secretary from the date of recommendation i.e. 6.10.1994 with all consequential monetary benefits as also the revision of his pensionary and other retrial benefits from the post of Deputy Secretary. Let monetary arrears of such benefits of promotion and consequent revision of his pensionary benefits be done and appropriate orders passed within a maximum period of four months from the date of receipt and/or production of a copy of this order. The writ application stands disposed. Snkumar/- (Navin Sinha,J.)