IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 7033 of 2009 Ramesh Prasad Gupta, son of late Ganga Prasad Gupta, resident of Patna University, Water Tank, Near Engineering College, Patna – 6 - Petitioner Versus 1 The Patna Municipal Corporation through its Chief Executive Officer, Budh Marg, Patna 2 Patna Water Board through its Chief Executive Officer, near Patna High Court, Patna 3 Chief Executive Officer, Patna Municipal Corporation, Budh Marg, Patna 4 Chief Executive Officer –cum- Commissioner, Patna Water Board, near Patna High Court, Patna 5 Chief Engineer, Patna Water Board, near Patna High Court, Patna 6 Executive Engineer, Patna Water Board, near Patna High Court, Patna - Respondents *** 4 29.07.2009 The petitioner was working on the substantive post of Chargeman under the Patna Water Board. By Office Order No 83 dated 11.11.1994 vide Memo No 216, petitioner was communicated that he was appointed to the post of Incharge, Supervisor in anticipation of approval of the Bihar Public Service Commission (BPSC) with immediate effect. Petitioner retired but while fixing his retiral dues, his pay, emoluments and benefits were taken up to be that of the Chargeman and not Supervisor. This writ application has been filed. The ground taken by the Patna Water Board for their said action is that petitioner was never promoted to the post of Incharge, Supervisor though the communication, as contained in Annexure-3 being Memo No 216 dated 11.11.1994 in respect of Office Order No 83, is not denied. Then what is stated is that as BPSC has not approved the promotion, petitioner could not be considered to be validly promoted to the post of Supervisor. Petitioner then has specifically urged giving names and 2 illustrations of various other persons of the Patna Water Board who retired under similar circumstances without their promotions being approved by the BPSC still they were given retiral dues as per the last pay drawn in respect of the promotional post which the petitioner has been denied. Respondents, in their counter affidavit, have avoided to answer this issue at all. Petitioner states that petitioner’s case was in fact never sent for BPSC’s approval and it is wrong to suggest that BPSC did not approve petitioner’s promotion. The question of BPSC approving or disapproving only arose if the case was sent for approval. Again, in the counter affidavit, there is no specific reply to this. It, thus, stands admitted that though the promotion was subject to approval of BPSC, petitioner’s case was not sent to BPSC by the respondents themselves. Now, for the fault of the Water Board itself, the petitioner is being denied his due promotion. This cannot be accepted for it is a fundamental principle of law that no person can be made to suffer for fault of another. What Water Board is trying to say is yet I could have sent or ought to have sent your case for BPSC’s approval but I did not do it. I slept over the matter. Your right is lost because of my default. In my view, there cannot be anything more arbitrary than this. In this connection, I am reminded of what Chief Justice Chagla has said more than 50 years back in the case of All India Groundnut Syndicate Limited -Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 : “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S 24. 3 In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” Thus, in view of these two facts, firstly that petitioner was not at fault rather than Water Board not having sent the case of petitioner to BPSC for approval and secondly persons, similarly situated as named in paragraph-14 of the writ petition, having been given full benefits under similar circumstances, I am left with no option but to hold that petitioner would be deemed to have retired while acting as Incharge, Supervisor in the Patna Water board and his retiral dues would be liable to be calculated as such with all consequential benefits. The writ petition is, accordingly, allowed. The Administrator/Municipal Commissioner/Town Commissioner of the Patna Water Board is directed to take appropriate decision and make payments of arrears of retiral dues to the petitioner within a period of 3 months from the date of production of a copy of this order. M.E.H./ (Navaniti Prasad Singh)