IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7391 of 2003 Krishnadeo Prasad Yadav, Son of Late Ram Prasad Mandal, Resident of A/92, Road No.7, Sanjay Gandhi Nagar, Manuman Nagar, P.S. Patrakar Nagar, District Patna (Since dead and substituted by his legal Representative). ------- Petitioner Versus 1. The State of Bihar. 2. The Secretary, Road Construction Department, Government of Bihar, Vishweshwaria Bhawan, Bailey Road, Patna. 3. The Commissioner-cum-Secretary, Finance Department, Government of Bihar, Old Secretariat, Patna. 4. The Joint Secretary, Road Construction Department, Government of Bihar, Vishwesharia Bhawan, Bailey Road, Patna. -------- Respondents ----------- 3 7.12.2009 Learned counsel for the petitioner at the outset while pressing I.A. No. 5427 of 2009 for substitution has submitted that the sole petitioner during the pendency of the writ application has died on 9.1.2008 and therefore, only a limited right to sue for claiming financial benefit payable to the deceased writ petitioner will still survive to his widow and sons. Considering the fact that the prayer made in this writ application has certain financial implications this court would allow the prayer for substitution of the sole writ petitioner and accordingly his wife and sons as per the detail mentioned in paragraph no.2 of the interlocutory application being I.A. No. 5427 of 2009 are 2 directed to be substituted. Let the office be made necessary corrections in cage column of the writ petition by deleting the name of the original writ petitioner and recording the name of substituted petitioners. Heard learned counsel for the petitioners and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1. That this is an application under Article 226 of the Constitution of India for issuance of an appropriate writ(s)order(s)/direction upon the respondents commanding them to grant/pay the petitioner monetary benefits/salary for the period 21.2.97 to 22.10.99 arising out of the Notification of the Government in the Road Construction Department bearing No. 5367(s) dated 10.8.2000 (as contained in Annexure-4) i.e. the period he worked on the post of Superintending Engineer (Mechanical) on Incharge basis vide Government Notification bearing No. 1099(s) dated 20.2.97 (as contained Annexure-2). The petitioner further prays for direction upon the respondents to grant him any other relief(s) to which the petitioner is otherwise found entitled to in the particular facts of the case.” Learned counsel for the petitioners with 3 reference to the aforementioned prayer would submit that ultimately when the State had promoted the original writ petitioner on the post of Superintending Engineer vide Annexure- 3, the notification dated 23.10.1999, the State Government could not have deprieved him of the salary for the period between 21.2.1997 to 22.10.1999 during which he was made to officiate on the higher post of Superintending Engineer by way of current charge arrangement. In the opinion of this Court, such relief cannot be given to the substituted petitioners for two reasons, namely, one that the original writ petitioner had not moved the Court immediately after getting such promotion on 23.10.1999 which could have the effect of assailing his order of promotion vide notification dated 23.10.1999 (Annexure-3) which was only prospective in nature i.e. w.e.f. 23.10.1999. Thus the prayer made by the original writ petitioner claiming a relief which in fact would make his order the promotion retrospective cannot be allowed only on the ground of delay. Moreover the concept of retrospective promotion being very limited 4 and also confined to the extent that only when a junior to the incumbent could have got promotion from an earlier date then alone he could have become entitled for such promotion from that date. That apart, Rule 103 of the Bihar Service Code in fact is a cut out provision for the similar type of cases where a person is assigned the duty of the higher post while being kept in his own pay-scale of a lower post. There also the rule does not provide for full salary of that higher post but only 20% or the specified amount, whichever is higher. The reliance placed by the learned counsel for the petitioner on an order dated 10.8.2000 (Annexure-4) regularising the period of posting of the original petitioner of his current charge arrangement is equally misconceived inasmuch as the same would not amount to his promotion w.e.f. 20.2.1997. As noted above the original petitioner had retired on 31.7.2003 and till date even when he was holding the higher post of Chief Engineer on current charge basis, he did not claim his retrospective promotion w.e.f. 20.2.1997 and therefore after his 5 retirement he could not have claimed such benefit, he being bound with the wordings of his order of current charge posting dated 20.2.1997 envisaging payment of his salary in his own pay scale of Executive Engineer. In that view of the matter, neither the service rule nor the conduct of the original writ petitioner would make him entitled for grant of full salary for the period he had functioned as In-charge Superintending Engineer. Nonetheless, the original petitioner’s grievance as with regard to his being granted 20% of the pay for doing the duties on the post of Superintending Engineer for the period in question having been not raised by the original petitioner in his life time due to pendency of this writ application, if the newly substituted petitioners would file a representation to this effect claiming benefit under Rule 103 of Bihar Service Code the same will be gone into and adjudicated by the competent authority in accordance with law within a period of six months from the date of filing of such representation along with a 6 copy of this order. With the aforementioned observations, this application is disposed of. Rsh (Mihir Kumar Jha, J.)