IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10572 of 2003 Ashok Kumar Sinha, son of late Dharamdev Narayan Sinha, presently Assistant in L.N.M. University, Kameshwar Nagar, Darbhanga. -------- Petitioner Versus 1. Vice Chancellor, L.N.M. University, Kameshwar Nagar, Darbhanga. 2. Registrar, L.N.M. University, Kameshwar Nagar, Darbhanga. 3. Shri Naresh Pathak, Father’s name not known, Assistant in L.N.M. University, Kameshwawr Nagar, Darbhanga. 4. Shri Ashok Kumar Karn, father’s name not known, Assistant Account Section, in L.N.M. University, Kameshwwar Nagar, Darbhanga. --------- Respondents ----------- 3 20.09.2010 Having heard counsel for the petitioner and counsel for the L.N.M. University, this Court, as with regard to the following prayer of the petitioner:- “1. That this application is being filed for issuance of appropriate writ, order or direction for directing the respondent no.1 and 2 to correct the proposed Gradation List contained in Annexure-8 in accordance with the seniority of the petitioner as shown in earlier proposed Gradation list contained in Annexure-4 and a further direction to the Respondents to grant senior selection grade to the petitioner.” is of the considered view that even if the petitioner has retired from service during 2 pendency of this writ application, the respondent would be still required to consider the grievance of the petitioner as with regard to the inter-se seniority vis-à- vis the respondent nos. 3 & 4 for the limited purpose of grant of selection grade promotion, notified in the case of respondent no.3 and 4 by an order dated 6.2.2006 w.e.f. 1.1.1996 and 1.4.1998 respectively. The University, however, in order to complete this exercise within a period of six months will be well advised to also issue notice to the respondent nos. 3 & 4 before passing any final order on the representation of the petitioner, which is contained in Annexure-9 to this writ application highlighting his grievance as against the impugned gradation list specially towards the fact that he claims to have been absorbed on the post of Lower Division Assistant with effect from 1.3.1973 and not 1.4.1974, inasmuch as, as per the petitioner the date 1.4.1974 is the date of confirmation and not the absorption. This Court, while remitting the 3 matter would not like to observe anything in favour of the petitioner particularly when the respondent nos. 3 & 4, despite service of notice, have not appeared before this Court but then it has to be noted that during pendency of this writ application, the authority had passed an order on 19.5.2006 Annexure-12, whereby and whereunder, the petitioner reckoned to be junior to all such Lower Division Assistants who had joined their post before 8.4.1974 on the ground that the petitioner was designated as Lower Division Assistant only with effect from 8.1.1974 vide office Memo No. A/C 1363-79/74 dated 8.4.1974. It is this aspect of the matter which has to be looked into by the authority of the University, inasmuch as, the case of petitioner in his representation seems to be that when his service was apportioned to the L.N. Mithila University from the Bihar University under the order of the State Government dated 5.1.1973 as a typist/R.C., the post held by him in Bihar University is since 1.8.1964 and he stood appointed afresh on Lower Division Assistant 4 by the Vice Chancellor of the Mithila University vide his order dated 1.4.1974 giving such appointment a retrospective operation i.e. with effect from 1.3.1973. The Vice Chancellor of the University, therefore, is directed to look into the limited grievance of the petitioner and if it is found that the petitioner’s seniority position as fixed in the impugned order dated 19.1.1998 goes to adversely affect the petitioner in the matter of grant of his promotion on the higher post, the same will be revised so that he could be considered for promotion at least with effect from the same date on which juniors including respondents were given such promotion vide notification dated 6.2.2006. In other words, if the respondent nos.3 & 4 had been promoted before the date of superannuation of the petitioner only on the account of their being made senior in the impugned gradation list, the University will be required to do this exercise of examining and deciding the inter- se seniority of the petitioner vis-à-vis respondent nos. 3 and 4. It is also made 5 clear that if the petitioner’s seniority over the respondent nos.3 & 4 is restored and would also lead to his promotion, from the date of promotion of respondent nos. 3 and 4, though the petitioner may not be entitled for financial benefit of such promotion due to delay of more than five years in assailing the impugned gradation list dated 16.1.1998 (Annexure-8) by filing this writ petition on 25.9.2003, his last pay on the promotional post would be fixed on the notional basis and the same will be taken into account at least for payment of all his post retirement benefit. Let it be however made clear that this Court has expressed no conclusive opinion on the merit of the claim of the petitioner and the same has to be decided by the respondents strictly in accordance with law. With the aforementioned observation and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)