IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.54 of 2006 BHUWNESHWAR ROY ……………. APPELLANT Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, ROAD CONSTRUCTION DEPARTMENT, BIHAR, PATNA 3. THE SECRETARY, FINANCE DEPARTMENT, BIHAR, PATNA 4. THE ENGINEER-IN-CHIEF –CUM-ADDITIONAL COMMISSIONER-CUM-SPECIAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, BIHAR, PATNA 5. THE CHIEF ENGINEER, CENTRAL DESIGN ORGANISATION, ROAD CONSTRUCTION DEPARTMENT,BIHAR, PATNA ……. RESPONDENTS --- For the appellant: Mr. Dhurjati Kumar Prasad, Advocate For the respondents : None P R E S E N T Hon'ble the Chief Justice And Hon'ble Mr. Justice Kishore K. Mandal --- Dated, the 21st November, 2008 The appellant is an unsuccessful petitioner. He challenged the order dated 13th August, 2001, whereby promotion granted to him as Laboratory Assistant vide order dated 9th of June, 1997 with effect from 23rd June, 1981 came to be cancelled by filing a writ petition. The Single Judge dismissed the writ petition on 13th of December, 2005. Aggrieved thereby, the present letters patent appeal has been preferred. 2. We shall refer the present appellant, ‘the petitioner’ and the respondent nos. 1 to 5, ‘the State government’. 2 3. The petitioner is B.Sc. He was appointed as Laboratory Khalasi with ten other persons by the State government in the office of the Chief Engineer, Central Design Organization vide office order dated 23rd May, 1981. His name in the office order finds place at serial no. 10. He joined his duty to the post of Laboratory Khalasi on 23rd of May, 1981. The other candidates, particularly, the candidates at serial nos. 4 to 8 in the office order, joined their duties few days after the petitioner joined his duty. It appears that these candidates who joined their duties to the post of Laboratory Khalasi after the petitioner were given promotion to the post of Laboratory Assistant on 23rd of June, 1981. The petitioner, however, was not given promotion at that time and later on he has been given promotion to the post of Laboratory Assistant on 10th of January, 1986. We do not deem it necessary to go into the details of the representation made by the petitioner to the State government for giving him promotion to the post of Laboratory Assistant with effect from 23rd of June, 1981 instead of 10th of January, 1986 and the writ petition filed by him earlier before this court for redressal of his grievance in this regard. Suffice it to say, that by the order dated 9th of June, 1997, the petitioner’s grievance was redressed and he was given promotion to the post of Laboratory Assistant with effect from 23rd of June, 1981. However, after a lapse of four years, the order dated 9th of June, 1997 was cancelled by order dated 13th of August, 3 2001. As notice above, the petitioner challenged this order by filing a writ petition. 4. As noticed above vide office order dated 23rd of May, 1981, eleven persons were given appointment to the post of Laboratory Khalasi. The said office order provided that the service would commence from the date of joining. That the five persons above him in that office order, namely, M/s Surendra Kumar, Ram Vijay Singh , Mahesh Singh, Tarun Kumar and Shailendra Nath Sahay joined their duties after the petitioner had joined does not appear to be in dispute. However, the fact of the matter is that these five persons who joined after the petitioner, were given promotion to the post of Laboratory Assistant with effect from 23rd of June, 1981, while the petitioner was not given promotion at that time. In our view, since the service was to commence from the date of joining, as per the appointment order, obviously, in the cadre of Laboratory Khalasi, the petitioner was entitled to be considered for promotion to the post of Laboratory Assistant at the time the case of promotion of five other persons was considered. 5. The single judge placed reliance upon some government decision prescribing ‘Kalawadhi’ of minimum five years for grant of promotion. However, in our considered view, it was not open to the State government to apply this decision selectively. If ‘Kalawadhi’ was applicable, it ought to have been applied to 4 aforesaid five persons also but that was not done and those five persons were given promotion to the post of Laboratory Assistant in the year 1981 itself. As a matter of fact, the illegality committed by the State government was rectified by issuing order on 9th of June, 1997, and the petitioner was also given promotion to the post of Laboratory Assistant with effect from 23rd of June, 1981. However, after a lapse of four years, the order dated 13th of August, 2001 came to be issued by the State government withdrawing the order dated 9th of June, 1997, which , in our view, cannot be sustained. The order dated 13th of August, 2001 (Annexure -11), therefore, has to go. 6. Few things, however, we intend to clarify. First, by this order, the rights of five persons afore-noticed who were promoted to the post of Laboratory Assistant with effect from 23rd of June, 1981, shall not be affected in any manner whatsoever and any observation made by us in this order shall not operate prejudicially to the aforesaid five persons as they are not party in the appeal; although they were initially impleaded but later on deleted from array of parties. Secondly, the counsel for the appellant made an unequivocal and unambiguous statement after seeking instructions from the appellant that the appellant forgoes his claim of monetary benefits as Laboratory Assistant for the period from 23rd of June, 1981 to 10th of January, 1986. Thirdly, this order shall not be treated 5 as final expression of opinion on the aspect of inter-se seniority of the appointees (sl. nos.4 to 8) and the petitioner appointed vide order dated 23rd May, 2001. 7. In what we have clarified above, we allow this letters patent appeal and set aside the judgment and order of the single judge as well as the order dated 13th of August, 2001. Since respondents have not chosen to appears, no order as to cost. R. M. Lodha, CJ. Kishore K. Mandal, J. Neyaz/-