IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10544 of 2005 Sidh Nath Sharma, Son of Late Mathura Sharma, Resident of Village Kespa, P.S. Tekari, District Gaya. ------- Petitioner Versus 1. The State of Bihar. 2. The Commissioner of Excise, Department of Excise and Prohibition, Bihar, Patna. 3. The Collector, Aurangabad. 4. The Collector, Gaya. 5. The Superintendent of Excise, Aurangabad, District Aurangabad. 6. The Assistant Commissioner of Excise, Gaya. ---------- Respondents ----------- 2. 11.01.2010 Heard counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1(i) For issuance of an appropriate writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities to allow the First Time Bound Promotion and Second Time Bound Promotion to the petitioner with effect from the due date of his promotion. (ii) For issuance of an appropriate writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities for payment of all consequential monetary benefit to the petitioner after allowing the notional time bound promotion with further direction to revise the post retirement benefits of 2 the petitioner on the basis of revised pay-scale. (iii) For issuance of writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities to fix the petitioner’s pension on the basis of a day on initial appointment not on the basis of a day on confirmation of his service.” Counsel for the petitioner would submit that in the entire service length of the petitioner which began from 7.8.1962 and continued till the date of his retirement i.e. 31.1.1997 the petitioner was not given a single time bound promotion though he was entitled for such time bound promotion at least from 1.4.1981 and 7.8.1987 on completion of 10 years and 25 years of service. In this regard, he also relies on the order of this court dated 28.4.2004 passed in CWJC No. 246 of 2004 wherein according to him this Court had observed that the apprehension of the petitioner on account of an order of punishment as modified by the order dated 24.2.2003(Annexure-3) was held to be not coming in his way in claiming payment of other benefits. According to counsel for the petitioner now when the petitioner’s time 3 bound promotion has also been withheld on the basis of order of punishment in view of observation made in the order dated 28.4.2004 the petitioner would be entitled for payment of his monetary benefits in terms of time bound promotion scheme. Counsel for the State on the other hand would submit that the petitioner’s case for grant of time bound promotion was specifically considered by the competent authority by order dated 3.2.2004 and a decision was taken by the State Government that as the petitioner had been convicted in a Sessions Case and sentenced to undergo imprisonment which was further affirmed even by the Revisional Court (this Court) and the petitioner thereafter was also found guilty in the departmental proceeding, his service record could not be treated to be clean so as to be given time bound promotion. There is no rejoinder affidavit and therefore the facts with regard to previous conviction and the chequered service record of the petitioner as asserted in the counter affidavit has to be accepted. The moot question would be whether a 4 person would be entitled for time bound promotion as a matter of right even if he has chequered service record. The scheme of time bound promotion came into force with effect from 1.4.1981 and was part of the package of the recommendation of pay revision committee which only intended to remove the stagnation of an employee on a particular pay scale who could not earn promotion on the higher post and could not also get higher pay scale of such higher post. In such scheme, the State Government had made it clear that only such person who could not earn promotion on account of want of vacancy or even otherwise due to stagnation, would be entitled for at least two time bound promotions one at the end of 10 years or and the other at the end of 25 years of service. There was in fact other rider in the said decision of the State Government to the extent that such time bound was to be given only to an employee whose service record are clean or who had passed necessary departmental examination and therefore was fit in all respects for being given regular promotion. 5 In the facts of this case as noted above, as it has been found that the petitioner was not only convicted by the Sessions court for criminal offence but even charges framed against him in the departmental proceeding was proved and he was punished for such misconduct. The submission of learned counsel for the petitioner that the order of punishment was subsequently reduced by the appellate authority would also not amount to his being completely exonerated from the charges. Reduction of sentence/punishment does not and cannot amount to complete exoneration or a clean acquittal. Considering these aspects this Court will have no option but to hold that the petitioner continued to serve with the department even after being convicted by the court of law for criminal offence as also his service record was not clean. To such a person, in the opinion of this court, time bound promotion would not be available as a matter of right. It was in fact for this reason that the petitioner did not claim his alleged right arising out of a cause of 6 action of the year 1981 and 1987, the two claimed dates of time bound promotion for next 24 years. The petitioner in fact very conveniently had filed this writ application after eight years of his retirement for claiming time bound promotion so that he could get monetary benefit of salary as also enhanced pension or retirement benefits. Such delay, in fact, in claiming time bound promotion in the given circumstances is fatal because the petitioner cannot be heard to say that the appeal against the order of punishment in a departmental proceeding had got nothing to do with the claim of promotion. If the petitioner’s case for time bound promotion was to be considered in his active service, the same had to be also raised by the petitioner at an appropriate point of time when he became eligible in terms of circular of the State Government dated 30.12.1981 for his first time bound promotion w.e.f. 1.4.1981 and second time bound promotion w.e.f. 1987. The delay however having remained wholly unexplained, this writ application clearly suffers from 7 the vice of unexplained delay and laches. Considering all these aspects, this court hold that reliefs prayed in this writ application is wholly misconceived and therefore this writ application being devoid of any merit is, accordingly, dismissed. kanchan (Mihir Kumar Jha, J.)