IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10370 of 2005 RAM BARAN SINGH . Versus THE STATE OF BIHAR & ORS . ----------- 3. 25.01.2010 Heard learned counsel for the petitioner and the State. The petitioner was appointed as a constable and then went on to become a learner driver constable which is a separate cadre. He appeared at the test for becoming a driver constable required under Rule 1186 of the Bihar Police Manual in 1996 but was declared unsuccessful. He was then transferred from B.M.P. 2 to B.M.P. 10 in the capacity of a constable. From the document of the respondents appended to the counter affidavit dated 13.10.2005 (Annexure-F), it appears that he was brought back as a constable on his own request. In between, a letter dated 22.5.1997 of B.M.P. 2 states that the petitioner can be considered for a fresh driving test after his failure on the earlier occasion. It is the specific case of the petitioner that after his transfer back to B.M.P. 2, he continued to work as driver constable and finally came to be absorbed as driver in 2001. Therefore, any delay on the part of the respondents in not conducting the test after recommendation on 22.5.1997 cannot operate to his prejudice. The responsibility and duty for conducting the test lay with the respondents alone. The petitioner cannot be allowed to suffer for their inaction. Counsel for the respondents submitted that the petitioner had failed to clear the necessary test in 1996. But the 2 counter affidavit of Respondent no. 5 at paragraph 10 admits that after approval of selection, the petitioner has been granted the benefit of promotion in the driver cadre in 2001. From the counter affidavit of the respondents, it is apparent that the petitioner has acquired the requisite proficiency for the post of a driver constable and has been given that cadre from 2001. That only leaves the issue of fixation of his appropriate seniority excluding the period prior to 1996 when he failed. If the petitioner was recommended for a fresh test on 22.5.1997 and the respondents chose not to hold the test, when the responsibility lay exclusively with them, there is no justification in law not to direct consideration of seniority of the petitioner at least from 22.5.1997 keeping in mind that the respondents in any event have themselves found him to be competent and appointed him as a constable driver, fully competent and eligible to the post. Let such consideration be done by the respondents within a maximum period of three months from the date of receipt and/or presentation of this order and the appropriate seniority of the petitioner be then fixed in accordance with law. The application stands disposed. AKS/ (Navin Sinha, J.)