IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6981 of 1997 AJAY KUMAR JHA, S/O SHRI DEVI KATN JHA, R/O VILLAGE- BATHANAHA, P.S.BATHANAHA, DISTRICT SITAMARHI. …………………PETITIONER. Versus 1.THE STATE OF BIHAR, THROUGH THE COMMISSIONER CUM SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, BISHESHWARAIYA, BAILEY ROAD, PATNA. 2.THE CHIEF ENGINEER (TRANSPORT), NORTH BIHAR RANGE, ROAD CONSTRUCTION DEPARTMENT, DARBHANGA. 3.THE SUPERINTENDING ENGINEER, NORTH BIHAR CIRCLE, ROAD CONSTRUCTION DEPARTMENT, MUZAFFARPUR. 4.THE EXECUTIVE ENGINEER, ROAD CONSTRUCTION DIVISION, SITAMARHI. ………………………RESPONDENTS. ----------- 03/ 18.05.2011 Heard Mr. Kishore Kumar Thakur, learned counsel for the petitioner and counsel for the State. As with regard to the following relief:- To shift-back the date of promotion of the petitioner to the post of Draftsman Grade-II from 11.02.1994 to that of 11.04.1988, i.e. the date with effect from which junior to the petitioner, namely, Shri Arvind Singh was provided with such promotion to the higher post of Draftsman Grade-II. For a further direction on the respondents to fix the seniority of the petitioner in the grade of Draftsman Grade-II treating him to be promoted with effect from 11.04.1988, i.e. the date from which the junior to the petitioner, namely, Arvind Kumar 2 Singh has been so promoted and giving the consequential benefit of seniority and grant of higher pay scale. The respondents be further directed to provide the petitioner with the pay-scale of Dragtsman Grade-II, which has not been given to him, even after his promotion with effect from 11.02.1994.' this Court is of the considered opinion that the plea of petitioner's promotion is solely dependent on the plea of his being discriminated as against one Arvind Kumar Singh who has been given retrospective promotion w.e.f 11.04.1988. Strictly speaking, this Court can not look into the said grievance of the petitioner, inasmuch as, Arvind Kumar Singh, has not been impleaded as a party but then as the respondents themselves have fully explained this aspect of the counter affidavit admitting the fact, that the earlier promotion given to Arvind Kumar singh was cancelled whereas the counsel for the petitioner is still quite emphatic that such promotion given to Arvind Kumar Singh had was still continuing, this Court would find it necessary for the authorities to re-examine the issue of 3 retrospective claim of the petitioner in the light of his service history vis a vis Arvind Kumar Singh. In the event, it is found that the promotion given to Arvind Kumar Singh has not been cancelled and in fact, the order of simultaneous promotion of the petitioner and Arvind Kumar Singh dated 11.02.1994 (Annexure-9) is still operative in case of Arvind Kumar Singh, the petitioner will also be entitled for the same date of promotion which was given to Arvind Kumar Singh. It must be however, noted here that on a con-joint reading of Annexure-7, the letter of Superintending Engineer no. 1531 of 28.07.1993 and subsequent office order no. 267 dated 04.11.1993 would reveal that Arvind Kumar Singh was given promotion vide memo no. 1259 dated 07.06.1993 and was allowed to also appear in examination in terms of letter no. 153 dated 28.07.1993 imposing condition that if he would not pass the examination his promotion would be cancelled, whereafter, the order dated 04.11.1993 (Annexure-A) 4 came to be passed cancelling the promotion of Arvind Kumar Singh, in view of the order of Engineer-in-chief dated 27.07.1993. Thus if despite the order dated 11.04.1993, Arvind Kumar Singh was allowed to continue on the promotional post and despite being shown in the order of promotion dated 11.02.1994 to have been promoted w.e.f. the same date as that of the petitioner Arvind Kumar Singh he has been given the benefit of promotional post of Draftsman Grade-II, w.e.f. 7.6.1993 the petitioner will also be given the same benefit by applying the principles of Rule 78 of Bihar Service code which lays down pay protection of a senior person in the event of grant of higher pay to his junior. Such exercise in the case of the petitioner already retired from service must be completed within a period of six months and any financial benefit either by way of salary or retirement benefits also must be extended to him in the next three months. In the event, the claim of the 5 petitioner for his retrospective promotion is rejected, the respondents will be required to give reasons in their order and also communicate the same to the petitioner by registered post with acknowledgment due. With the aforementioned observations and direction, this application is disposed of. Ranjan (Mihir Kumar Jha,J)