IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1857 of 2010 Brinda Prasad S/O Late Yadu Prasad R/O Vill.-Pauram, P.O. And P.S.-Hayaghat, Distt.-Darbhanga. ...........Appellant/Petitioner Versus 1. The State Of Bihar 2. The Commissioner-Cum-Secretary, Water Resources Dept., Bihar, Patna. 3. The Commissioner-Cum-Secretary, Personal And Administrative Reforms Deptt. Of Bihar, Patna. 4. The Finance Secretary, Govt. Of Bihar, Patna. 5. Sri Binay Krishna, The Joint Secretary, Water Resources Deptt., Govt. Of Bihar, Patna. 6. The Bihar Public Service Commission Through Its Chairman, Baily Road, Patna. ...............Respondents/Respondents For the Appellant/Petitioner : Mr. Bishnu Kant Dubey, Adv. For the State : Mr. Himanshu Kumar Akela, A.C. to G.A.-3 ----------- 05 02.08.2011 Heard Mr. Bishnu Kant Dubey, learned counsel for the appellant/petitioner and Mr. Himanshu Kumar Akela, Ac. to G.A.-3, learned counsel for the State. This Letters Patent Appeal has been filed against the judgment and order dated 15.07.2010 passed in C.W.J.C. No. 3025 of 2004. Upon hearing the learned counsel for the parties, we are of the view that the Finance Department was wrong in advising the Cabinet Secretary of the Government that the notional promotion cannot be given. The fact reveals that the petitioner’s case was considered under the direction of this Court and the Government processed the promotion of the petitioner, in the meantime petitioner retired from his service and papers were sent to the Bihar Public Service 2 Commission and the Commission was recommended on the post of Chief Engineer. The notional promotion has been denied only on the advise of the Finance Department. The Finance Department is not the law department and it was a pure question of law and which is settled by catena of the judgments of the Supreme Court that if a person became eligible to be promoted, he shall be considered from that date, if the vacancies are available. In the present case, no doubt, there was vacancy under reserved category for the Scheduled Tribe and was lying vacant for more than five years. Therefore, in view of the Bihar Reservation Rules of 1991, this post should go to Scheduled Castes candidates. Accordingly, the post was available when the petitioner claimed promotion. Learned counsel for the State relied on the following paragraph of the judgment of this Court passed in C.W.J.C. No. 3079 of 1998 which is reproduced herein as under:- “In my view, since the petitioner has already retired from service as there is no specific grievance in this writ application that any person junior to the petitioner has been promoted to the post of Engineer-in- 3 Chief, hence, it will not be appropriate for this Court to issue any direction for notional promotion to the petitioner. However, it will be open to the petitioner to file a representation claiming appropriate relief before the Secretary of the department if such a representation is filed within one month from today, then the same may be disposed of in accordance with law expeditiously and in any case within six months from the date of its filing. Before parting with this order it is relevant to record that on behalf of respondent no. 8 it was submitted that the petitioner has already availed more than one promotion on the basis of being a member of the Scheduled Cast and hence as per latest judgment of the Supreme Court on this issue be cannot claim further promotion on the basis of reservation. In my view, the aforesaid submission made on behalf of respondent no. 8 as well as of other relevant aspects of the matter will have to be considered by the concerned respondent which disposing of the petitioner’s representation. In so far as the grievance of the appellant/petitioner is concerned, his claim was based not that his junior has been promoted but his claim was based on a vacancy to be filled up by a reserved category candidates. The vacant post was reserved for Scheduled Tribe candidates and petitioner being a Scheduled Caste 4 candidate, could claim promotion if Scheduled Tribes candidate was not available which stand proved as the post was lying for last five years. The learned Single Judge has further held that only one promotion can be given by way of reservation not the second one. This observation by the learned Single Judge was contrary to the provisions contained under Article 16 (4-A) of the Constitution of India. There is reservation of the vacancies at the every level under the Bihar Reservation Rules, 1991 (6)(ka). Thus, the appellant/petitioner was fully entitled for notional promotion. Therefore, we direct the State Government to issue a notional promotion order in favour of appellant/petitioner but no salary shall be paid to the appellant/petitioner. This service shall be counted only for the purpose of pensionary benefit. Appeal is disposed off. Safik (Prakash Chandra Verma, J.) (Aditya Kumar Trivedi, J.)