IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6619 of 2001 REKHA MALLICK & ORS Versus THE STATE OF BIHAR & ORS ----------- 4 9.9.2008 Heard learned counsel for the petitioners and the State. The original petitioner came to this court for promotion to the post of Assistant Director in the Road Construction department. During the pendency of the writ application he has been deceased. He has now been substituted by his wife, son and daughters as legal heirs. The husband of petitioner no.1 was appointed on compassionate ground on the demise of his uncle in service. That such an appointment may not be permissible under the then rule governing compassionate appointment can not be urged by the respondents in this writ application to deny him, the benefit of promotion even while his juniors have been promoted. As his services were earlier terminated, he came to this court in CWJC no. 10528 of 1997. The order was set aside. The respondents challenged the same in LPA no.406/2000 which affirmed the order of the learned Single Judge on merit also. This attained finality inter party and can not be questioned by the respondents. The matter having attained finality inter party the issue of alleged ineligibility of the petitioner’s compassionate appointment in place of his uncle looses its relevance. The respondents can not be permitted to re-agitate in the issue in a collateral proceeding The counter affidavit on behalf of the respondents states that his case for promotion was not considered in view of pendency of - 2 - LPA no. 406 of 2000 preferred by the State. It has already been noted that the LPA was dismissed on merit. The other ground is now non- availability of his confidential record and vigilance clearance. The counter affidavit on behalf of the respondent- Commission states that his character roll and vigilance clearance were never submitted to the Commission. If that be so, it is the respondents who are at fault and for which neither the original deceased-petitioner nor his legal heirs are to be faulted with. This writ application is disposed with a direction to the respondents to consider the case of the husband of petitioner no.1 for promotion on the post of Assistant Director, Road Construction department from the date his juniors have been promoted and grant full retrospective monetary benefit for the same along with revision of the family pension to which the petitioners are now eligible including retrospective monetary benefit of the same. Let compliance of both counts be done within a maximum period of four months from the date of receipt/production of a copy of this order. The writ application stands disposed. shahid (Navin Sinha,J )