IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8593 of 2003 MURLIDHAR ISHWAR, son of Sri Yogendra Ishwar, resident of Mohalla Marufaganj Pathar Ghat, Patna City, P.S. Malsalami, Town and District Patna at present A.P.P. Incharge, Sadar Court, Gaya … Petitioner Versus 1. THE STATE OF BIHAR through the Chief Secretary, Govt. of Bihar 2. The Home Secretary, Govt. of Bihar, Patna 3. The Deputy Secretary, Home (Police), Govt. of Bihar, Patna 4. The Director General of Prosecution, Govt. of Bihar, Patna 5. The Additional Director, Prosecution, Bihar, Patna … Respondents. ----------- 3. 7.1.2010 Heard counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “This application is for a writ of mandamus commanding the respondent to notify that the petitioner be deemed to be posted as Divisional Prosecuting Officer w.e.f. 17.2.2003 when by various notifications (Annexure 1) even juniors have been transferred and posted as such and further directing the respondent to pay the scale of District Prosecuting Officer, Gaya w.e.f. 12.10.1998 when resolution under Memo No. 10502 (Annexure 3) was issued to give scales of pay of District Prosecuting Officer or issue such appropriate writ/ writs, direction/ 2 directions or pass other order/orders as your Lordships deem fit and proper.” With respect to the aforementioned prayer counsel for the petitioner fairly submitted that the first part of the relief of the petitioner being deemed to be posted as Divisional Prosecuting Officer with effect from 17.2.2003 has become infructuous, inasmuch as the petitioner has already retired from service. Counsel for the petitioner seems to be correct because an order of posting can only be issued in favour of a person whether on an effective basis or deemed basis if he continues to be in service. Consequently the first part of the prayer of the petitioner being deemed to be a Divisional Prosecuting Officer must be and is hereby rejected. Coming to the second part of the prayer which was solely dependent on the first part of the prayer, namely, the petitioner to be deemed to be the District Prosecuting Officer, this Court in fact would hold that the petitioner will not be entitled for any benefit as none in the 3 cadre had been given any pay scale till the filing of the writ application and/or till superannuation of the petitioner. The reference by the learned counsel for the petitioner to Annexure 3 as with regard to certain policy decision of the Government and the Home Department will not clinch the issue, inasmuch as the cadre reconstitution with three posts was envisaged therein but the same was not given effect to. At this stage counsel for the petitioner produces a resolution of the Finance Department dated 29.2.2006 wherein the resultant notification of pay scale of the Assistant Prosecuting Officers (A.P.Os.) has been given effect to from the retrospective date i.e. 21.4.2003. In the opinion of this Court the said resolution of the Finance Department is only the fore-runner to the actual order of promotion and anyone can be given the benefit of higher pay scale only when such formal order of promotion is issued in their name. Admittedly the petitioner was never promoted in his service career and therefore, the petitioner can claim such 4 benefit of higher pay scale even in terms of the resolution dated 29.2.2006 only if any junior to him having been given regular promotion till the date the petitioner remained in service has been given such benefit. The petitioner in fact has brought nothing on record to this effect which may inspire confidence that any person junior to him have been given the benefit of the resolution of the Finance Department dated 29.2.2006. Moreover the petitioner cannot be heard to say that the arrangement made either in the year 1999 by the respondents while making posting of 31 District Prosecuting Officer vide notification No. 3257 dated 21.3.1999 or the subsequent notification No. 1681 dated 17th February, 2003 posting five other persons as District or Divisional Prosecuting Officer would clothe him with any right of claiming pay scale only on the ground of alleged seniority. The petitioner had never challenged either the 1999 notification or the 2003 notification nor has impleaded anyone of them as a party to this writ 5 application and therefore, the petitioner cannot claim benefit on deemed basis by getting the post on a notional basis and claim salary thereon. He can get only such benefit if effectively someone junior to him during his service period had got such benefit. With the aforementioned observation this application is dismissed. (Mihir Kumar Jha,J.) Surendra/