IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.585 of 2009 VIJAYA UPADHYAY WIDOW OF LATE SHARAT CHANDRA UPADHYAY, RESIDENT OF HOUSE NO. 60, ROAD NO. 14, KRISHNA NAGAR, P.S.- BUDHA COLONY, DISTRICT- PATNA ………………APPELLANT Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER, FINANCE DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE COMMISSIONER, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVT. OF BIHAR, PATNA ……………………………RESPONDNETS ----------- For the Appellant :- Mr. Santosh Kumar Sinha-2, Advocate Mr. Arvind Prasad Singh, Advocate Dr. Vidya Nand Kumar, Advocate For the State :- AC to SC-3 -------------------- 8 10/12/2009 Heard learned counsel for the appellant and learned counsel for the State. By the order under appeal dated 20th March, 2009 the writ petition preferred by the appellant has been summarily dismissed by holding that since appellant’s husband had been granted only notional promotion vide notification contained in Annexure-2 of 29.11.2005, the petitioner cannot claim monetary benefits on behalf of her husband who retired on 31.1.1991 and died on 1.9.1997. Learned counsel for the appellant has pointed out that besides Annexure-2 by which appellant’s husband was granted promotion to the post of Registrar with effect from 1.9.1985, the appellant had also claimed for monetary benefits on account of notification 2 contained in Annexure-5 dated 19.5.2008 whereby appellant’s husband was given notional promotion to the post of Under Secretary with effect from 1.9.1989. It has been pointed out that in Annexure-5, it is clearly mentioned that persons junior to appellant’s husband had been promoted earlier with effect from 1.8.1989, therefore, promotion had been granted with effect from that date. In the counter affidavit the stand of the State is categorical that appellant’s husband was subjected to a departmental proceeding as well as a criminal case in the year 1976 and he was placed under suspension which continued till 1987. It is also admitted that husband of the appellant was not indicted either in the departmental proceeding or in the criminal case. That appears to be the reason why the respondents have ultimately granted notional promotion to the husband of the appellant but they have relied upon certain Rules such as Rule 58 of the Bihar Service Code and Rule 74 of the Bihar Financial Rules for advancing submission that no monetary benefits could be paid to an employee who is promoted subsequently and had not actually worked on the promoted post to earn higher salary. In reply to the aforesaid stand of the State, learned counsel for the appellant has placed reliance 3 upon judgment of this court in the case of Awadhesh Singh Versus State of Bihar & Ors. reported in 2004 (3) BLJ 661. In that case the court held that a government servant is entitled to get his arrears of salary from the date of promotion which was denied to him for no fault of his. A perusal of that judgment shows that several earlier judgments of this court including Division Bench judgments as well judgment of the Supreme Court taking the same view were noticed and discussed. In the present case, on facts no distinction can be made because in the case of Dr. Paras Nath Prasad Vrs. State of Bihar, 1990 (2) PLJR 248 a Division Bench not only clarified that Rule 58 of the Bihar Service Code cannot stand in the way of an employee getting monetary benefits if he was denied promotion from due date for no fault of his, but went on to illustrate by example that where promotion was not considered because of pendency of departmental proceeding/suspension/ criminal case or matter is pending in sealed cover, on completion of such proceeding and promotion from retrospective date a person is entitled for arrears of salary on such retrospective promotion although he may not have worked against the higher post. In view of aforesaid law, we have no option but 4 to allow the appeal. The order of the writ court is therefore, set aside and the respondents are directed to calculate the monetary benefits on account of promotion given to the late husband of the appellant vide notifications contained in Annexure-2 dated 25.11.2005 and Annexure-5 dated 19.5.2008 and pay the lawful arrears without any delay and in any case within four months from today. (Shiva Kirti Singh, ACJ.) (Shyam Kishore Sharma, J.) avin