IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10940 of 2003 RAMESHWAR PASWAN, son of late Shiv Charan Paswan, resident of village and P.O. Kakroul, via Rahika, District Madhubani … Petitioner Versus 1. THE STATE OF BIHAR 2. The District Magistrate, Madhubani 3. The Sub-divisional Officer, Benipatti, District Madhubani … Respondents. ----------- 5. 13.1.2010 Heard Mr. Pramod Mishra, counsel for the petitioner and the counsel for the State. The prayer in this writ application of the petitioner reads as follows: “This application is being filed for issuance of a writ in the nature of mandamus commanding and directing the respondents concerned to provide monetary benefits to the petitioner in view of the order of promotion w.e.f. 1.3.1997 as the petitioner has been promoted to the post of Head Assistant by the order of the competent authorities w.e.f. 1.3.1997 but monetary benefit has been provided from the date of joining the post and/or any other relief/reliefs for which the petitioner is found entitled to in the facts and circumstances of the case.” Mr. Mishra in support of the aforementioned prayer would submit that from the tenor of the order of promotion of the 2 petitioner dated 16th March, 2002 it would be clear that the petitioner was wrongly ignored and sidelined despite his being senior to Rajan Paswan in the matter of promotion in junior selection grade of the post of Clerk in Madhubani Collectorate. He would, therefore, submit that if the petitioner was ultimately given promotion by the order dated 16th March, 2002 (Annexure 1) with effect from 1.3.1997 he ought to have been also allowed the financial benefit from the same date. Mr. Mishra, therefore, would conclude his submission by taking a plea that there being no laches on the part of the petitioner the respondents cannot make premium of their own mistake and deprive the petitioner the amount of salary and emoluments to which he was entitled to had he been promoted in place of Rajan Paswan with effect from 1.3.1997. Counsel for the State as usual is not in a position to say anything because he has no instructions and has not filed counter affidavit. This writ application was filed on 30.9.2003 and if a period over six years has not been good enough for filing of 3 the counter affidavit this Court must presume that the respondents have no answer to the issue raised by the petitioner. Silence is not always golden, some time it is also fatal. This Court would find that in the order dated 16th March, 2002 whereby and whereunder the petitioner was given promotion nothing was said which could have even affected him adversely or being disqualified for promotion when a decision in the meeting of the Establishment Committee was taken on 3.5.1997 granting promotion to one Rajan Paswan in place of the petitioner who admittedly was senior to Rajan Paswan. If therefore it took five years for the respondents to realize this mistake and consequently the petitioner was given promotion on 16th March, 2002 with effect from 1.3.1997 by cancelling the promotion of Rajan Paswan, the petitioner cannot be made to suffer in the matter of monetary benefit simply because Rajan Paswan was given an out turn and in fact illegal promotion with full financial benefit. The respondents could have recovered the excess 4 Surendra/ amount paid to Rajan Paswan on account of illegal promotion given to him but if they have been benevolent to Rajan Paswan by not making such recovery, the petitioner cannot be made to suffer for the same and therefore, the financial benefit extended to the petitioner in terms of Rules 58(a) and 58(b) of the Bihar Service Code only from the date of holding the higher post was/is a wholly unjustified approach of the respondents. Consequently this Court would allow this writ application and direct the respondents to pay full financial benefit of the promotion given to the petitioner by an order dated 16th March, 2002 with effect from 1.3.1997 and its actual payment should be extended to the petitioner by recalculating the difference of salary and emoluments beyond the period paid to the petitioner within a period of six months from the date of receipt/ production of a copy of this order. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) 5