IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10200 of 2006 RAM CHARITRA SINGH . Versus THE STATE OF BIHAR & ORS . ----------- 8 9.5.2011 Heard counsel for the petitioner and the counsel appearing for the State. Petitioner was appointed as literate constable in Police Department in the year 1964 and subsequently promoted to the post of Assistant Sub- Inspector of Police with effect from 15.9.1969, and confirmed with effect from 1.3.1976. Petitioner was allowed to officiate against the post of Sub-Inspector of Police along with Heera Nand Jha, Anil Kumar Sinha and Kailash Jha with effect from 2.2.1972. Petitioner continued on the post and vide memo no. 2459 (250) dated 20..6.1984, he was confirmed against the post of Sub-Inspector of Police with effect from 1.7.1972. Petitioner is aggrieved, as he has not been given promotion in the rank of Sub-Inspector of Police with effect from 1.2.1972 but from a subsequent date. Petitioner’s prayer is for a direction to the respondents to consider his case for promotion against the post of Sub-Inspector of Police with effect from 1.2.1972 i.e. date juniors to him like Heera Nand Jha, Anil Kumar Sinha and Kailash Jha and others 2 have been given promotion and for giving promotion to the post of Inspect of Police with effect from 3.11.1982. Earlier for similar relief petitioner had filed CWJC No.12637 of 1999. The writ application was dismissed as not pressed as the counsel for the petitioner could not receive any instructions from the petitioner. The petitioner when came to know about the dismissal of writ application, MJC No.1065 of 2006 was filed for restoration of the writ application, which was dismissed giving liberty to the petitioner for filing a fresh writ application. Accordingly the present writ application has been filed. Specific case of the petitioner is that persons junior to him have been given promotion in the rank of Sub Inspector of Police with effect from 1.2.1972 i.e. the date since when they are allowed to officiate, and subsequently considered for higher post of Inspector of Police with effect from 3.11.1982, petitioner is also entitled for similar relief as given to Heera Nand Jha, since he was junior to the petitioner, in the gradation list. In the last supplementary counter affidavit filed on behalf of respondent nos. 2 to 4 there is an 3 admission regarding promotion given to Heera Nand Jha for the post of Inspector of Police. with effect from 3.11.1982 in the light of the order passed by the High Court in the writ application preferred by him. Simultaneously it has been stated that after Supreme Court’s decision in SLP (Civil) No. 3006 of 2000, State of Bihar vs. Brij Bihari Singh, no such promotion can be given to the petitioner; considering the finding that on the basis of ad hoc promotion, one cannot claim his seniority. So far Heera Nand Jha’s case is concerned, he has already retired long time back and promotion given him cannot be recalled. The counsel for the petitioner, submits that the decision given in Brij Bihari’s case (supra), is not being considered in the right perspective. In this very decision a distinction has been made in respect of ad hoc promotion with stipulations/conditions and ad hoc promotion without any conditions or stipulations. In case of ad hoc promotion coming in the second category, if promotees continuously and uninterruptedly discharging duty on the promotional post and subsequently given regular promotion, his date of seniority will be counted with effect from the date of his officiation. This distinction in Brij Bihari’s 4 case itself has been made, placing reliance on a constitution bench decision in Direct Recruit Class-II Engineering Officers’ Associations and others vs. State of Maharashtra and other (AIR 1990 SC 1607). The finding recorded in Direct recruit Class II Engineering Officers’ Associations and others has been incorporated in Brij Bihari’s decision and the cases have been categorized as category A and B. The case which has been mentioned as category B, while considering cases in these two category, finding recorded is that if the initial appointment is not made by following the procedure laid down by the rule but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.” Petitioner’s case is fully covered under category ‘B’ of the constitution Bench decision, as discussed and relied upon in the case of State of Bihar & ors. Vs. Brij Bihari Prasad Singh. I find that petitioner is entitled for promotion with effect from 1.2. 1972 i.e. the date juniors to him were promoted in the rank of Sub-Inspector of Police. Petitioner is further entitled for promotion to the post of Inspector of Police with effect from 3.11.1984. 5 Petitioner has already retired long back; as such he is entitled for notional promotion. However the benefit of promotion will be given to him in the matters of pension and pensionary benefits. The writ application stands allowed. A. Kumar ( Mridula Mishra, J.)