IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.866 of 2009 1. The State Of Bihar through the Chief Secretary, Patna, 2. The Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna 3. The Additional Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna 4. The Deputy Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna ……………… Appellants – Respondents Versus 1. Smt. Abha Devi, wife of late Tripurari Sharan, 2. Ramjit Sharan, 3. Navneet Sharan, both sons of late Tripurari Sharan, all residents of B/73, Police Colony, Anisabad, P.S. Gardanibagh, District – Patna 4. Smt. Sangeeta Asthana, D/o late Tripurari Sharan and wife of Shri Vivek Asthana, r/o Club Road, Mithanpura, Muzaffarpur ………….. Respondents ----------- For the Appellants : Shri Pushkar Narain Shahi, AAG XIV For the Respondents : Shri Laxmi Narayan Das, Advocate ---------------- 6/ 7.2.2011 We have heard learned counsel for the parties on the point of limitation as well as on the merits of the Letters Patent Appeal. As each day’s delay has been explained by the appellants, this court is convinced that the reasons shown in the petition for condonation of delay are sufficient and, accordingly, the delay in filing the appeal is condoned. Present L.P.A. has been filed against the order dated 26.8.2008 passed in C.W.J.C. No. 340 of 2001 whereby and whereunder the learned Single Judge has been pleased to allow the writ petition acceding to the claim of the original respondent Tripurari Sharan (for the sake convenience hereinafter referred to as ‘original respondent’) for promotion to the post of Deputy Secretary on the ground that a recommendation was made by the 2 Departmental Promotion Committee in favour of the original respondent on 6.10.1994 but still he was not given promotion. The learned Single judge disposed of the writ petition on the basis of the counter affidavit since no one appeared on behalf of the state in spite of call. The original respondent had approached this court in C.W.J.C. No. 1278 of 1995 claiming his promotion to the post of Deputy Secretary of the Government of Bihar and the same was disposed of by the learned Single Judge vide order dated 13.8.1996 directing the state to consider the case of the original respondent. The order was annexed as Annexure 1 to the L.P.A. In the said judgment, the learned Single Judge was very categorical in his observations that in the present case, it has not been stated that any person junior to the petitioner has been promoted to the post of Deputy Secretary. Having held so, the learned Single Judge has declined to go into the merits of the case as to whether the original respondent was eligible for promotion or not but, however, it was made clear that if the original respondent was granted promotion from any retrospective date, in that case, the appellants will release consequential benefits of the same including the arrears of salary and revision of post retirement benefit and the arrears thereto. With the aforesaid observation, the writ petition was disposed of. From the records of the case, it appears that the judgment has become final because it was not challenged by the state. The records also show that the deceased respondent had also 3 filed C.W.J.C. No. 7466 of 1998 which was disposed of vide order dated 10.11.1999 (Annexure 3). The relief sought in the above noted writ petition also relates to seeking promotion to the post of Deputy Secretary. In the above case, the stand taken by the State Government that six posts of the Deputy Secretary were vacant prior to retirement of the respondent, which were to be filled up from amongst the general category. Against one vacancy, name of three persons were to be considered and for six vacancies, names of 18 persons were required to be considered for promotion. The original respondent came within the zone of consideration being placed at serial number 16 in the seniority list of general category. Even then, the said fact relating to the original respondent’s position in the seniority list was disputed by the counsel for the respondent. However, the aforesaid question was not required to be determined at that stage as the authorities being bound to consider the case of the respondent for promotion. It was also observed that the original respondent’s case was earlier considered by the Departmental Promotion Committee and was recommended for promotion. The learned Single Judge set aside the order dated 4th September, 1997 and directed the official respondents therein to place the records of the original respondent before the Departmental Promotion Committee and a time frame of two months was also fixed from the date of receipt/production of a copy of the order. C.W.J.C. No. 340 of 2001 was filed by the original 4 respondent when he was denied promotion in spite of the fact that recommendation was made by the Departmental Promotion Committee on 6.10.1994 whereby the original respondent was made eligible for the post of Deputy Secretary and though the said recommendation was sent to the Government for approval of Cabinet but, finally it was not approved. A counter affidavit also was filed and the assertions made on behalf of the original respondent were admitted by the appellants. But, however, the promotion was not effected as the cabinet had not given its approval. Meanwhile the original respondent superannuated on 31.1.1995 without getting the benefit of the promotion. The learned Single Judge, taking into consideration the fact that the case of the original respondent was recommended and even though the approval of the government was not received and he superannuated on 31.1.1995, he was held entitled for all consequential monetary benefits from the date of recommendation, i.e., 6.10.1994 and other retiral benefits from the post of Deputy Secretary. Shri Pushkar Narain Shahi, learned AAG XIV argued in support of the appeal and submitted that the claim of the respondent herein is not sustainable in view of the fact that even though a recommendation was made by the departmental promotion committee in favour of the respondent but finally it was not approved by the government and in the meanwhile, the original respondent happened to superannuate on 31.1.1995. He 5 has also fairly submitted that the original respondent died and this fact was also brought on record of the writ petition. This is a case where the learned Single Judge had occasion to consider the case of the original respondent, firstly, in C.W.J.C. No. 1278 of 1995 which was disposed of on 13.8.1996 followed by C.W.J.C. No. 7466 of 1998 where an admission was made before the court by the then Secretary, Personnel and Administrative Reforms Department Sri Arvind Prasad that six posts of Deputy Secretary were vacant prior to retirement of the respondent, which were to be filled up from amongst general category. A direction was issued to consider the case of the original respondent, setting aside the order under challenge, within a period of two months. However, the records show that no action was forthcoming on the basis of such order. Learned Additional Advocate General fairly submitted before us that no departmental proceeding was ever pending against the original respondent and only reason for his claim not being fulfilled even though it was recommended by the Departmental Promotion Committee, was no approval having been received from the government. The original respondent had to approach this court on two occasions in the writ proceeding despite the fact that no departmental proceeding has been pending against him and he superannuated on 31.1.1995 when the matter was pending before the government and thus, the deceased respondent cannot be 6 found fault due to inaction on the part of the Government. Considering the facts and circumstances of the case, we concur with the opinion of the learned Single Judge and direct the appellants herein to grant promotion to the original respondent with effect from the date the recommendation in that regard was made, i.e., 6.10.1994 by the Departmental Promotion Committee. Since the original respondent Tripurari Sharan has died, the consequential monetary benefits accruing on account of his promotion including revised penesionary benefits shall be paid to his heirs and legal representatives who have been substituted in this appeal in accordance with law as expeditiously as possible. With the aforementioned observation/direction, this Letters Patent Appeal is disposed of. Anil/ (T. Meena Kumari, J.) ( Dharnidhar Jha, J.)