IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.3234 of 2005 VIRENDRA KUMAR SRIVASTAVA Versus STATE OF BIHAR & ORS ----------- 13- 12.5.2008 Mr.Akashdeep for the petitioner, Mr. V M K Sinha, learned Special Public Prosecutor for opposite party nos.1 to 5, and Mr.P K Rajgrihar for opposite party no.6 (Accountant General, Bihar) are present. This application has been filed by the petitioner of CWJC No.9179 of 2003 and that of MJC No.697 of 2003 for the alleged non- implementation of the order dated 20.9.2005 (Annexure 1), whereby both the petitions were disposed of with direction to the State Government to consider his case for regular promotion to the post of Additional Director. 2. A brief narration of facts essential for the disposal of this application may be indicated. Prior to 1.8.89, the petitioner was functioning as Deputy Director of Mines, Government of Bihar. He was, along with his Director, faced with a departmental proceeding wherein allegations were levelled against them for opening bank account with respect to Government funds in their personal names. Departmental proceedings were initiated against them leading to order of punishment against the petitioner, whereby he was deprived of a part of his pension. This led to CWJC No.9350 of 1999, which was disposed of by order dt.26.11.2002. This was followed by CWJC No.1929 of 2004, which was disposed of by order dt. 1.2.2005 (Annexure D), whereby the proceedings against the petitioner under rule 43(b) of the Bihar Pension Rules was set aside mainly on the - 2 - ground that it was hit by the time bar engrafted therein. The State Government thereafter took the consequential steps leading to the aforesaid CWJC No.9179 of 2003, as well as MJC No.697 of 2003, which were disposed of by a learned single Judge of this Court by his order dated 20.9.2005 (Annexure 1). The State Government was directed as follows :- (i) To consider the case of the petitioner for grant of salary for the post of Additional Director on which work was taken from 1.8.89 till the date of his superannuation, i.e. 31.5.95. (ii) Consequential determination of retrial dues. (iii)To consider his case for regular promotion to the post of Additional Director. (iv) The steps were required to be taken within a period of three months. 3. The State of Bihar challenged this order by preferring LPA No.1182 of 2005, which was disposed of by order dated 4.1.2007, with the following observations :- “……. It will be, however, open to the State to consider re-initiate the proceeding under rule 43B of the Pension Rules against the writ petitioner-respondent no.1. In case, however, the State Government intends to re-initiate the proceeding under rule 43B of the Pension Rules against the petitioner, it must intimate the respondent in this regard within the months from today. It is made clear that at this stage the court is not expressing any opinion on the validity/competence of the decision to re-initiate the proceeding or on the merits of the charge(s) against the respondent.” - 3 - This order was not challenged further and has attained finality. The State of Bihar did not re-initiate a proceeding under rule 43B as a result of which the said order dated 20.9.2005 (Annexure 1) has also attained finality. 4. In implementation of the order dt. 20.9.2005 (Annexure 1), the State Government has issued notification no.2602, dt.12.11.2007 (Annexure C to the supplementary show-cause on behalf of opposite party nos. 3 to 7), whereby he has been given to the petitioner regular promotion to the post of Additional Director with effect from 25.9.90 till 31.5.95. Paragraph-2 of the order gives him the consequential benefits, and is reproduced hereinbelow for the facility of quick reference :- “2. bUgsa fnukad 25-9-1990 ls 31-5-95 lsok fuo`fr rd vkfFkZd ykHk ns; gkSxk] ysfdu foHkkxh; LOkhd`fr vkns’k la[;k& 1070@,e- fnukad 14-5-03 ds }kjk bUgsa vij funs’kd] [kku ds in dk;Z djus ds fo#) 20 izfr’kr vf?kdre 250@& #i;k Hkqxrku dk vkns’k fn;k x;k Fkk @ ob jkf’k HkqxRks; jkf’k esa ls lkeatu dh tk,xh @” (Emphasis added) Learned counsel for the respondents is right in their submission that paragraph-2 of the order is consistent with the spirit of the aforesaid order dated 20.9.2005 (Annexure 1). Once the State Government has given to the petitioner regular promotion with effect from 25.9.90, he has to be given the regular scale of that post from that date till the date of his superannuation. There was no break in his service and it was continuous officiation from 25.9.90, till the date of - 4 - his superannuation. It appears from a perusal of the order in question that the petitioner has been given the regular promotion along with the money benefits with effect from 25.9.90, along with the pay scales attached to that post, till the date of his superannuation which shall also enure to his post-retirement benefits. The underlined portion only means that the allowance erroneously given to the petitioner in officiating capacity, and now replaced by regular pay-scale for the period 25.9.90 to 31.5.95, shall be adjusted. The same cannot be faulted. 5. Learned counsel for the petitioner raises a grievance that he has not been given the benefit of promotion to the post of Additional Director from 1.8.89 to 24.9.90 in a situation where this Court had found in its order dt. 20.9.05 (Annexure 1) that the petitioner had officiated on that post. He relies on the judgment reported in 2006 (2) PLJR 73 (SC) (Union of India vs. Subedar Devassy P V). On a perusal of the materials on record, it appears that the post of Additional Director became vacant with effect from 25.9.90 and, therefore, the petitioner has rightly been denied the substantive promotion to the post of Additional Director from the date prior to 25.9.90. Once it is found that the petitioner had officiated as Additional Director from 1.8.89 to 25.9.90, in such a situation where there was no substantive vacancy in the office of the Additional Director, he will only be entitled to the allowance, if any, as per the rules. 6. In the result, this application is dismissed as the - 5 - order of this Court has been implemented in full, and nothing survives for consideration. ( S K Katriar ) mrl.