IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3622 of 2010 1. SURESHWAR RAM S/O LATE BALKESHWAR RAM R/O VILL &P.S.TILAUTHU,DISTT-ROHTASH Versus 1. THE STATE OF BIHAR THROUGH SECRETARY CUM- COMMISSIONER DEPARTMENT OF EXCISE GOVERNMENT OF BIHAR,PATNA 2. THE DEPUTY COMMISSIONER DEPARTMENT OF EXCISE (EXCISE INVESTIGATION BUREAU) BIHAR,PATNA 3. THE ASSISTANT COMMISSIONER OF EXCISE DEPARTMENT GOVERNMENT OF BIHAR,NEW SECRETARIAT BAILEY ROAD ,PATNA ----------- 2. 14.9.2010 Heard learned counsel for the petitioner and the State. The petitioner seeks the relief to be considered for promotion on the post of Assistant Sub-Inspector (Excise) after condoning the age bar of 50 years as has been done in the case of his juniors and who have been so promoted. The petitioner came to this Court in C.W.J.C. No. 120 of 2005 which was dismissed on 1.9.2005. L.P.A. No. 1295 of 2005 preferred against the same was dismissed on 13.11.2006. The submission on behalf of the State therefore is that in so far as the petitioner is concerned, the issue of his claim to be considered for promotion has attained finality and he cannot have the benefit of any orders passed with regard to the case of any others. Counsel for the petitioner submits that 2 after dismissal of his writ petition, and before his appeal came to be dismissed, a Bench of this Court on 27.2.2006 allowed C.W.J.C. No. 14908 of 2004 (2006 )2 PLJR 199) holding that the age bar of 50 years under the rules could not be applied when the fault lay with the respondents in not considering promotions in time annually as required under the rules. In the circumstances the DPC had itself relaxed the age bar with regard to others for the same reason. This order was questioned in L.P.A. No. 355 of 2006 dismissed on 20.2.2007. The special leave petition Civil No. 23005 of 2007 against the same has been dismissed by the Supreme Court also. The juniors of the petitioner have subsequently been granted promotion by relaxing the age bar after dismissal of the petitioner's writ petition and appeal. The petitioner is therefore entitled to be considered for promotion also. Though the claim of the petitioner can technically be stated to have attained finality by dismissal of L.P.A. No. 1295 of 2005 dated 13.11.2006, the fact remains that in between on 27.2.2006, C.W.J.C. No. 14908 of 2004 raising a similar issue came to be allowed . That judgment already pronounced was not considered in L.P.A. NO. 3 1295 of 2005. The L.P.A. 355 of 2006 against C.W.J.C. NO. 14908 of 2004 has been dismissed on 20.2.2007. The situation that emerges is that while the claim of the petitioner for relaxation of age bar has attained finality in rejection in so far as this Court is concerned, simultaneously, there is another finality attained by a Division Bench order with regard to a direction to relax the age bar. Therefore, this Court has two conflicting orders before it. One of them has been affirmed by the Supreme Court on challenge. The issues are common. This Court is therefore not inclined to take a hyper-technical view as it is satisfied that it shall amount to denying justice to the petitioner in the peculiar facts and circumstances of the case. To do justice in the case, this Court considers it proper to direct that if the juniors of the petitioner have been promoted by relaxing the age bar, his case is also required to be considered in accordance with law relaxing the age bar notwithstanding the dismissal of C.W.J.C. No. 120 of 2005 and L.P.A. No. 1295 of 20005. In all fairness to the State, it is expected not to behave as a private litigant but to assist the Court in the dispensation of 4 justice. This Court holds that it was the duty of the State in all fairness to place the judgment of this Court in C.W.J.C. No. 14908 of 2004 delivered on 27.2.2006, when the mater was being considered in L.P.A. No. 1295 of 2005. If there were any doubt on this issue, it stands affirmed by the failure of the State to bring to the notice of the Division Bench hearing L.P.A. No. 1295 of 2005 that the State had already preferred L.P.A. No. 155 of 2006 against the judgment in C.W.J.C. No. 14908 of 2004 so that there could be a final authoritative pronouncement by the Court rather than an ambiguous situation of two conflicting judgments on the same issue attributable to non placement of relevant materials before the Court. The respondents are directed to consider the case of the petitioner in accordance with law as discussed above within a maximum period of four months from the date of receipt/production of a copy of this order and/or the next DPC as the case may be. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)