IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5786 of 2006 ASHOK KUMAR MANDAL, S/O BRIJLAL MANDAL, ASSISTANT TEACHER IN GOVERNMENT SCHEDULE CASTE RESIDENTIAL HIGH SCHOOL, NEEMA, KATIHAR, DISTRICT KATIHAR. .............PETITIONER. VERSUS 1.THE STATE OF BIHAR THROUGH THE SECRETARY, DEPARTMENT OF WELFARE, GOVERNMENT OF BIHAR, PATNA. 2.THE SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT OF BIHAR, PATNA. 3.THE DIRECTOR, DEPARTMENT OF WELFARE, BIHAR, PATNA. 4.THE DEPUTY DIRECTOR, WELFARE, KOSHI DIVISION, PURNEA. 5. THE DISTRICT WELFARE OFFICER, KATIHAR, DISTRICT KATIHAR. 6.THE HEADMASTER CUM DRAWING & DISBURSING OFFICER,GOVERNMENT SCHEDULED CASTE GIRL'S HIGH SCHOOL, NEEMA, KATIHAR, DISTRICT KATIHAR. .............RESPONDENTS. ---------- 05/ 24.06.2011 Having heard counsel for the parties and taking into account that it was not a fault on the part of the petitioner that his juniors could get promoted w.e.f 31.12.1994, without his case being considered, this Court does not find any logic much less a jurisdiction in the stand of the respondents in depriving the petitioner his payment of arrears of difference of salary of the promotional post from the date he was given such promotion. From the order of this Court dated 12.05.2004 contained in Annexure-1 to the writ application, being an inter party order in earlier writ petition by itself would go to show that the name of the petitioner was for some reason or another not included in the gradation list of the year 1994 and as such his case for promotion could not be considered when similarly situated 112 persons were given such promotion by order no. 6180 dated 31.12.1994 and its modification order contained in letter no. 5114 dated 21.11.1995. Accordingly, the petitioner having failed to get relief of the same promotion at least from the date his juniors were given promotion had to move this Court and this Court by an order dated 12.02.2004 had directed the Authorities to consider the case of the petitioner for promotion in view of the fact that his name was ultimately included at serial no. 25 of the gradation list. Pursuant thereto though the Authorities had promoted the petitioner by an order dated 30.03.2005 but his payment of difference of salary in the Graduate Trained Scale of pay of Rs. 1500- 2750 w.e.f 31.12.1994 by way of arrears of salary was refused on the ground that the Finance Department did not concur with the proposal for such payment of arrear of salary. Counsel for the petitioner would submit that it would be a travesty of justice that the respondents themselves would be first committing a mistake in denying the promotion of the petitioner on the ground that his name was not there in the seniority list and subsequently when the name of the petitioner was included in the seniority list and placed at appropriate place and the respondents had allowed his promotion from the date his juniors were given promotion, he could not have been deprived of the similar benefit of payment of enhances salary which was also given to his juniors w.e.f 31.12.1994. Counsel in this context would also highlight and differentiate the cases of notional promotion with the cases of actual promotion where such promotion is denied on account of juniors having been promoted without any fault/laches. Counsel for the State would not question any of the aforementioned settled proposition of law but then he would submit that there is a circular of the Finance Department in the form of resolution dated 04.04.1985 (Annexure-A), wherein, the following portion thereof would come in the way of the petitioner in getting his due of arrears of difference of salary on the promotional post. In the considered opinion of this Court such reliance on the following passage of the circular dated 04.04.1985 by the learned counsel for the State:- (iii)ojh;rk iqujh{k.k ds pyrs mRiUu ekeyksa esa izksUufr dk ykHk A dqN ekeys ,sls Hkh gSa ftuesa inkf/kdkfj;ksa dh ikjLifjd ojh;rk dk ekeyk fooknkLin jgrk gS A bl rjg ds ekeys esa ;fn lHkh vkSipkfjdrkvksa dk fuokZg djrs gq, iz”kklh foHkkx iwoZ dh ojh;rk lwph esa l”kks/ku djrs gSa] oks bl rjg ds ekeys esa ojh;rk iqujh{k.k ds pyrs ojh; ?kksf’kr gksus okys ljdkjh lsod dks duh; dks nh x;h izksUUfr dh frfFk ls izksUufr nsrs gq, mldk osru mPprj osru esa bl izdkj fuf”pr fd;k tk,xk ekuks os duh; dks nh x;h izksUufr dh frfFk ls izksUur gksa] ijUrq ojh; ljdkjh lsod ds }kjk fofnr izfdz;k dk vuqlj.k djrs gq, fuxZr l{ke vkns”k@ vf/klwpuk ds vk/kkj ij Hkkj xzg.k ds iwoZ dk dksbZ cdk;k vuqekU; ugha gksxk A is apparently misconceived and inasmuch as the same would not cover the cases of the present kind where promotion of the petitioner was denied on account of laches on the part of the respondents who had not placed the petitioner in the gradation list and had accordingly not notified his promotion on 31.12.1994 when at least 86 persons being junior to him were given such promotion. The petitioner's inclusion in the year 1998 and then thereafter not being given the benefit of promotion had led to filing of the writ application, wherein, this Court had given direction for following the promotion of the petitioner w.e.f. 31.12.1994, his juniors were given such promotion. In that view of the matter, it cannot be said that it was a case of revision of seniority list on the aspect which alone was covered by the aforementioned portion of the circular of Finance Department. In any event Rule 78 of Bihar Service Code would also stand in the way of the respondents wherein it would always be the right of a senior incumbent to claim for fixation of pay as being paid to his juniors and therefore, the circular dated 04.04.1985 does not lay down anything new much less seeks to restrict the payment of arrears as a whole to employees who have been given retrospective promotion. In the said category only a notional promotion could be covered wherein the Government may come out with the theory of 'no work no pay' but whenever the question of a senior being initially ignored and denied the promotion and being ultimately given the benefit of retrospective promotion for the purpose of extending monetary benefit, which was given to his counter part juniors would arise the same will have to be answered in favour of the person who for no fault on his part had been deprived from promotion as also monetary benefits. Based on the aforementioned consideration, this Court would find it difficult to uphold the correctness of the impugned order dated 23.01.2006 (Annexure- 3), so far it seeks to deny the benefit of difference of arrears of salary of the promotional post to the petitioner. Annexure-3 is accordingly quashed and the respondents are directed to make payment of difference of arrears of salary of the promotional post to the petitioner w.e.f 31.12.1994, within a period of three months from the date of receipt/production of a copy of this order. This application, to the extent indicated above, is allowed. Ranjan (Mihir Kumar Jha, J.)