IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5613 of 2007 DR.JYOTI PRAKASH, son of Late Bhuwneshwari Prasad, resident of Mohalla- Jagat Narayan Road, P.O. &P.S.- Kadamkuan, Town &District- Patna. …. Petitioner. Versus 1. THE STATE OF BIHAR 2. The Commissioner cum Secretary, Department of Health, Medical Education & Family Welfare, Government of Bihar, New Secretariat, Patna. 3. The Under Secretary, Department of Health, Medical Education & Family Welfare, Government of Bihar, New Secretariat, Patna. 4. The Accountant General (A & E), Birchandra Patel Marg, Bihar, Patna. ….. Respondents. ----------- 3. 30.09.2010 Having heard learned counsel for the petitioner and learned counsel for the State as with regard to the following prayer; “1. That this is an application praying for issuance of a writ in the nature of mandamus commanding the respondents to grant Notional Promotion on the post of Additional Director in the scale of Rupees 14,300- 18,300 to the petitioner, at least from the 2.1.1996, the date on which posts were available and the date from which the petitioner’s admitted juniors were granted promotion vide Notification contained in memo no. 140(3) dated 20.2.2007 issued under signature of Under Secretary to Government, Department of Health & Family Welfare, and further for issuance of a direction to respondents authorities to grant the petitioner with all consequential benefit, such as arrears of salary and fixation of pension etc. on basis of revised scale of said post.” 2 this Court would find that this petition in fact is only adjunct of the earlier writ petition filed by the petitioner, CWJC No. 9505 of 1997 which has been disposed of on 29.7.2010 wherein the claim of the petitioner for retrospective promotion was rejected while upholding his date of promotion in the senior selection grade w.e.f. 1.4.1987 and Super time Scale w.e.f. 1.11.1995. The submission of the learned counsel for the petitioner that after his retirement on 31.12.1996 the department came out with the impugned notification dated 20.2.2007 promoting a large number of employees from the retrospective date would also entitle the petitioner to claim promotion on notional basis on the post of Additional Director, has to be only noted for its being rejected inasmuch as that would amount to again shifting his date of earlier promotion in Senior Selection Grade and Super Time Scale which as noted above stand affirmed by an order of this Court dated 29.7.2010 in C.W.J.C. No. 9505/1997 . Counsel for the petitioner could also not show from the impugned notification dated 20.2.2007 that any person junior to the petitioner was given such promotion till the date of he had remained in service and infact he had very 3 fairly pointed out that the persons at serial no. 20 onwards in the said notification were actually junior to the petitioner and the date of promotion given to such persons by the impugned notification dated 20.2.2007 is after 31.12.1996 inasmuch as the promotion given to serial no. 20 Dr.(Smt.) Kusum Prasad is w.e.f. 1.12.1997. From the impugned notification it is also clear that till the date the petitioner remained in service i.e. 31.12.1996 only persons upto serial no. 12 i.e upto Maheshwari Saran were given such promotion in the pay-scale of Rs.14300-18300 and there is no dispute that Dr. Maheshwari Saran or for that purpose Dr. Nagendra Narayan Bhagat, Dr. Dinanath Singh, Dr. Jagdish Prasad, Dr. Shaligram Singhm, Dr. Gopal Krishna Das, Dr. Bhupendra Narayan Sinha and Dr. Harinarayan Mandal were admittedly senior to the petitioner and were given their promotion on or after 1.1.1997. Once this aspect becomes clear, the grievance of the petitioner for earning his promotion on the post of Additional Director in the pay-scale of Rs.14300-18300 has to be necessarily rejected inasmuch as no one junior to the petitioner has been given such promotion till the date he had remained in service before his retirement i.e. 31.12.1996. 4 The last limb of submission of learned counsel for the petitioner that there was in all 39 posts on which the promotion ought to have been notified by the respondents is also to be noted for its being rejected inasmuch as the text of the impugned notification makes it clear that on the post of Additional Director/ Deputy Director/ equivalent posts for the period 1.1.1996 to 21.5.1997, there were only 39 posts. Even on 31.12.1996 there were only 39 posts and in fact when the department while issuing notification of as many as 93 doctors has made it clear that all the vacancies which were available upto 15.11.2000 by giving the following explanation; ^^la0la0@izks-&1&12@2006& 140¼3½ @Lok0] LokLF; foHkkx ds i=kad 966¼3½ fnukad 19-07-2004 ,oa i=kad 163¼3½ fnukad 24-3-2006 }kjk 01-01-1996 ls vij funs'kd@mifuns'kd@led{kh; inks ¼fnukad 01-01-1996 ls 21-5-1997 rd 39 in] 22-05-1997 ls 14-11-2000 rd 36 in ,oa 15-1-2000 ls vkxs 25 in½ dks jkT; LokLF; lsok ds xSj 'kS{kf.kd lEoxZ ds fy, fpfUgr fd;k x;kA for foHkkx ds ladYi la[;k 5989¼fo-2½ fnukad 16-08-2004 ds }kjk mu fpfUgr inksa ds fy, osrueku :i;s 14]300&18]300 Lohd`fr fd;k x;kA** It would thus also not be out of place to hold that the petitioner’s grievance even in respect of non- consideration against 39 posts is wholly misconceived inasmuch all these 39 vacancies did not arise on or before 5 31.12.1996 rather only eleven out of thirty six vacancies were available on or before 31.12.1996 whereas petitioner was at serial no. 20 in the combined seniority. Learned counsel for the State has pointed out that even in the posts that has been notified for promotion, the government policy of reservation had to be followed and since the petitioner belongs to the general category the persons who were given promotion in the same notification from the reserved category could not have been deprived from giving such promotion. It would therefore be clear that there was no anomaly in the impugned notification issued by the respondents for granting promotion and if the petitioner could not come within the available sanctioned post upto his retirement 31.12.1996, his promotion could not have been notified. That being so, there is no error in the impugned notification, and this writ application is thus wholly misconceived and is, accordingly, dismissed. kanchan/- (Mihir Kumar Jha, J.)