IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11181 of 2009 Shobhit Ram . Versus The State Of Bihar & Ors . ----------- For the Petitioner:- Mr. Satish Chandra Jha, Adv. For he State:- Mr. Shivam Singh, AC to AAG No. 1 ------------ 3. 12.08.2011 Heard learned counsel for the petitioner and the State. The petitioner superannuated on 31.8.2008. He seeks the relief to be considered and promoted to the post of Superintending Engineer with consequential monetary benefits from the date that his juniors have been allowed such promotion. Learned counsel for the petitioner submits that the petitioner was granted regular promotion to the post of Executive Engineer on 25.11.1993 and he was promoted to the post of Superintending Engineer on 18.3.2003 on current charge. His case was considered on 16.6.2004 for substantive promotion. In September, 2004 he was allocated the State of Jharkhand consequent to the reorganization of the State of Bihar and came back to the State of Bihar by mutual transfer on 13.6.2006. His seniority position shifted down from 240 to 245. He could still have been considered for promotion before superannuation. His juniors have been promoted on 2 30.1.2009. The petitioner has wrongly been denied timely consideration for his promotion and cannot be visited with the consequence especially when he was found suitable and given current charge of Superintending Engineer even after return from the State of Jharkhand. He relies on a Bench decision of 2009(3) PLJR 828 (Umesh Chandra Jha Vs. The State of Bihar). The reliance by the petitioner on A.I.R. 1983 SC 1060 (Smt. P. Grover Vs. State of Haryana & Anr.) is misconceived. No judgment can be cited as a ratio devoid of the foundational facts. Unless the foundational fact is placed before the Court with regard to availability of vacancy, fulfillment of conditions for promotion, a mere officiating charge cannot amount to promotion. Counsel for the State submits that no junior to the petitioner has been promoted before his superannuation causing hostile discrimination. He further submits that any direction for consideration of the claim of the petitioner even notional may have a turbulent effect on seniority of others as the DPC meets at fixed schedules only and not at convenience of candidates to consider their case in view of their impending superannuation. 3 In Umesh Chandra Jha (supra) the name of the petitioner was recommended by the DPC. The promotional vacancy was available but Vigilance Clearance was delayed. By the time the Vigilance Clearance came the Departmental Promotion Committee recommendation had lapsed. The submission on behalf of the petitioner that the fact that he was given officiating charge of Superintending Engineer even after his return from the State of Jharkhand though relevant cannot be conclusive of the fact of his eligibility, availability of vacancy roster etc. An officiating charge cannot amount to promotion. If subsequently the person is found fit for promotion undoubtedly the period of officiating charge has to be taken into consideration. In the present case, the petitioner has brought no materials on record that when he came back from the State of Jharkhand, a promotional post was available and on that date he was fulfilling all conditions of eligibility for substantive promotion and that there was no one above him waiting in line for such promotion as per the roster. Had these facts been brought with clarity it may have been possible for the Court to pass a final appropriate order. 4 If on the date that the petitioner came back to the State of Bihar, the time period from 13.6.2006 till 31.8.2008 is considered more than reasonable by the Court for the respondents to consider his claim for promotion by the DPC especially in the background of the earlier recommendations made. The petitioner has not questioned his reassignment of seniority at Serial 245 after return to the State of Bihar. It is not the case of the respondents in the counter affidavit that no promotional vacancy was available after 13.6.2006 till 31.8.2008. When both sides have not brought relevant facts on record it is not possible for the Court to pass any orders except to direct that if the petitioner represents before the authorities and satisfies them that there was a vacancy available for the post of Superintending Engineer after his coming back to the State of Bihar and he fulfilled all the conditions of eligibility, there was no one senior to him waiting for promotion as per roster and only because of the delay on part of the respondents he stood deprived of the same, the Court expects the respondents to consider the same in accordance with law. If the respondents are satisfied for the justification of his claim, the petitioner shall not be 5 entitled to any salary, by any notional promotion that may or may not be granted to him but he shall be entitled to revision of his pension only. Let such representation be considered and disposed off by a reasoned and speaking order within a maximum period of three months from the date of receipt/production of a copy of this order. The writ application stands disposed. P. Kumar ( Navin Sinha, J.)