IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14549 of 2003 INDERDEO SHARMA, son of late-Ramdeo Sharma, Resident of Mohalla- Janki Nagar(Hanuman Nagar) P.S.-Patrakar Nagar, P.O.-Lohia Nagar, Kankarbagh, District-Patna-20, at present working as Assistant in Bankipur Circle of Patna Municipal Corporation, Patna. ……Petitioner Versus 1. Chief Executive Officer, Patna Municipal Corporation, Patna. 2. Executive Officer, Bankipore Circle, Patna Municipal Corporation, Patna. ……Respondents. ----------- For the Petitioner : Kamla Lal Shrivastava, Adv For the Respondents : Sri. Chandrashekhar, Adv : Dr. Poonam Kumari Singh, Adv ----------- 06. 13.08.2009 The petitioner substantively was an Assistant Section Officer in the Patna Municipal Corporation. In the Patna Municipal Corporation, in the promotional avenues of Assistant Section Officer there are ten posts of Section Officer out of which three posts are reserved for Schedule Case and Schedule Tribe. Petitioner has no grievance with regard to those three posts. His grievance is that notwithstanding seven additional posts available of Section Officer though he was being made to work as Section Officer his promotion was not being considered nor he was being adequately remunerated in that regard. The Corporation filed counter affidavit and stated that in fact there were only six vacancies available. In the first gradation list petitioner was placed at 10th position, he could not be thus considered for promotion. Fresh 2 gradation list was published on 05.01.2004 in which petitioner is placed on second position. Counsel for the Corporation submits that this gradation list was not final and as such could not be acted upon. The facts remain that once this writ application was filed in the year 2003 petitioner was then made Incharge Section Officer. Petitioner questions the stand of the Corporation that if there were no vacancies to be considered then how was he made to function as a Section Officer first and then made Incharge Section Officer and what happened to the others. He then states a fact which is not denied in the counter affidavit filed by the Corporation that upon superannuation of a Section Officer he has been employed on contractual basis. Thus filling up the promotional avenues available to the petitioner this again is challenged. Petitioner has since retired on 31.08.2006 during pendency of the writ petition. In the substantive post of Assistant Section Officer though for several years prior to his superannuation he had been working as Incharge Section Officer. He submits that the facts would show that he was wrongly deprived of his promotion and emoluments as consequence of promotion with benefits of his retiral dues and pensionery benefits as well. In view of the facts noted above, it is clear that for one reason or other the petitioner was made to work on 3 his promotional post without formally granting him promotion. The post was vacant but formal promotions were not given to the petitioner. The plea of the Corporation that six other persons were promoted and petitioner was 10th in the gradation list does not appear to be correct for the simple reason that if what the Corporation submits is correct then where was the scope of petitioner being made Incharge Section Officer there and should have been no post at all. Petitioner could only work as Incharge Section Officer when that post was vacant. It is not the case of the Corporation that there were more people working on a post then promoted or sanctioned. In that view of the matter, the stand of the Corporation can not be accepted. It is thus evident that posts were vacant, petitioner was qualified, competent and within zone of consideration for promotion but for some ulterior reason not granted due promotion that deprived petitioner of all financial benefits including retiral benefits. The action of the Corporation is thus per se arbitrary. State or State Instrumentality can not be permitted to take work from an employee continuously for long periods at higher position involving higher responsibility and not to give due promotion to persons entitled to those posts. In such a situation I left with no option but to direct the Corporation to consider the case of petitioner’s 4 promotion in view of the facts as noted above and grant him promotion accordingly. His remuneration will be paid as Incharge Section Officer for the period he worked as Incharge Section Officer. In case it is found that the petitioner ought to have been promoted as Section Officer/Incharge Section Officer prior to his superannuation, it would be deem that he was so promoted and all dues including retiral dues would be liable to be recalculated accordingly. The said exercise must be completed by the Corporation within a period of three months from the time a copy of the order of this Court is produced before the concerned Municipal Commissioner, Patna Municipal Corporation, Patna. The writ petition with the said observations and directions is allowed. Shageer (Navaniti Prasad Singh, J)