IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4376 of 2010 1. DAYANAND DAS S/O LATE BHIKH DAS R/O MOHALLA- MAHAVIR NAGAR, BPCL ROAD, P.S.- PHULWARISARIF, PATNA, SUPERANNUATED FROM OFFICIATING ASSISTANT DIRECTOR (SPECIAL EMPLOYMENT FOR PHYSICALLY HANDICAPPED), LABOUR RESOURCES DEPARTMENT, BIHAR PATNA Versus 1. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY, GOVT. OF BIHAR 2. THE PRINCIPAL SECRETARY LABOUR RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE SECRETARY PERSONAL AND ADMINISTRATIVE DEPARTMENT GOVT. OF BIHAR, PATNA 4. THE JOINT SECRETARY, LABOUR RESOURCES DEPARTMENT (EMPLOYMENT AND TRAINING), GOVT. OF BIHAR, PATNA 5. THE COMMISSIONER & SECRETARY LABOUR, (EMPLOYMENT & TRAINING DEPTT.), GOVT. OF BIHAR, PATNA 6. THE DIRECTOR, LABOUR RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA 7. THE ACCOUNTANT GENERAL, GOVT. OF BIHAR, PATNA For the Petitioner: Kumar Mahendra, Adv. For the State : Bijay Kumar Pandey, A.C. to G.P.18. For Accountant General, Bihar: Mr. Binod Kumar Labh, S.C., I.A. & A.D. ----------- 2/ 26/10/2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is stated to have superannuated while holding the post of Assistant Director (Special Employment Exchange for Physically Handicapped) in the Labour Resources Department on 31.1.2004 in an officiating capacity. His junior one Umesh Prasad Sharma has been granted promotion to the Junior Selection Grade/Assistant Director by notification dated 28.3.2008. The petitioner has therefore represented on 16.10.2008 to be considered for promotion likewise and desires the respondents to act upon the same. - 2 - Learned counsel for the petitioner submits that the petitioner becomes eligible to be considered for promotion to Junior Selection Grade/Assistant Director from 21.11.1994 when his junior has been promoted. Upon completion of four years of service on the said post he becomes eligible to be considered for the post of Deputy Director with effect from 21.11.1998 and upon completion of four years of service in the latter post he becomes eligible to be considered for the post of Joint Director on 21.11.2002. It is fairly acknowledged that after his superannuation he has been proceeded against departmentally under Rule-43(b)of the Bihar Pension Rules by a charge memo. dated 2.9.2005 for the charge year-1999-2001. He has been visited with a punishment in the departmental proceeding on 7.3.2007 and therefore his case for promotion to the post of Joint Director could not be considered by the Departmental Promotion Committee on 27.12.2007. But he had preferred C.W.J.C. No.4152/10 challenging his order of punishment under Rule-43(b) of the Bihar Pension Rules which was disposed by the Court on 24.9.2010 with liberty to file a review application. It is therefore fairly submitted that the claim to be considered for promotion to the post of Joint Director shall remain dependent on - 3 - the fate of his review application. The claim therefore presently is to be considered for promotion to Junior Selection Grade/Assistant Director and Deputy Director as the claims arise during a period prior to the charge years. Learned counsel for the State from the counter affidavit filed submits that because the petitioner has been punished in the departmental proceedings on 7.3.2007 the Departmental Promotion Committee did not consider his case on 27.12.2007. Since he has not been promoted to the post of Assistant Director at the Departmental Promotion Committee meeting held on 27.12.2007, the question of any further promotions to the post of Deputy Director and Joint Director therefore does not arise. The Court is satisfied from the submissions of the parties that the claim to be considered for promotion to Junior Selection Grade/Assistant Director and Deputy Director with effect from 21.11.1994 and 21.11.1998 respectively are for a period prior to the charge year in the proceedings under Rule-43(b) of the Bihar Pension Rules, i.e., the charge year-1999-2001. The Court therefore holds that any order of punishment on 7.3.2007 cannot operate as a bar in respect of a claim for promotion prior to the charge years to deny - 4 - consideration. The stand of the respondents denying consideration for a period prior to the charge years by reason of the punishment dated 7.3.2007 is therefore clearly not sustainable. The claim of the petitioner for promotion to the post of Junior Selection Grade/Assistant Director and Deputy Director has to be considered without taking into consideration the order of punishment dated 7.3.2007. Insofar as the claim for promotion to the post of Joint Director is concerned, in view of the fair stand taken on behalf of the petitioner only a formal pronouncement is required that his claim thereunder remains dependent upon the fate of his review application. Let the respondents consider his claim for promotion to the former two posts within a maximum period of three months from the date of receipt/presentation of a copy of this order before them and dispose it off by a reasoned and speaking order. The application stands allowed to the extent indicated. KC ( Navin Sinha, J.)