IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.693 of 2009 KANHAIYA TIWARY, S/O SRI MUNI TIWARY, R/O VILLAGE-RAMPUR, P.S.- CHENARI, DISTRICT- ROHTAS AT PRESENT R/O VILLAGE-BASTIPUR, POST OFFICE-MANIKPUR, P.S.-INDRAPURI, DISTRICT- ROHTAS (BIHAR) ……….(Petitioner)-Appellant Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, HOME (POLICE) DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2. THE DIRECTOR GENERAL OF POLICE, ARMED POLICE BIHAR, BIHAR MILITARY POLICE HEAD QUARTER, PATNA 3. THE ADDITIONAL DIRECTOR GENERAL OF POLICE, ARMED POLICE, MAIN SECRETARIAT, BIHAR, PATNA. 4. THE COMMANDANT, BIHAR MILITARY POLICE-2 DEHRI, DISTRICT-ROHTAS. 5. THE DEPUTY INSPECTOR GENERAL OF POLICE, ARMED POLICE (CENTRAL ZONE) ………….(Respondents)-Respondents ----------- For the Petitioner : Mr. Rajendra Narayan Adv. : Girdhar Gopal Adv. : Anju Narayan Adv. For the State : Pushkhar Narain Shahi AAG-14 : Sanjeet Kumar Singh A/C to A.A.G.-14 ----------- 5. 09.08.2011 This Letters Patent Appeal has been filed against the order dated 17.4.2009 passed in C.W.J.C. No. 4868 of 2009 by which learned single Judge has summarily dismissed the writ petition on the ground of delay. The grievance of the appellants is against the action of respondents is not shifting his date of promotion to that of 1.7.1979 till the date of which the juniors were promoted as sub-inspectors. The case of the appellant is that he made himself eligible for promotion to the post of sub- inspector while he was promoted in Hawaldar on 1.7.1979 having completed the Junior Promotion Course 2 in 1975 and the Senior Promotion Course in 1977 even the juniors have been promoted to the post of Sub- Inspector with effect from 1.7.1979. Juniors have been promoted on that day and some of the persons who were not promoted filed C.W.J.C. No. 2434 of 1980. This court has allowed the said petition and granted them relief. During the pendency of the SLP a provisional gradation list of Havaldars was published on 10.04.1990 (Annexure-1) where the petitioner’s rank was at serial no. 502 and rest of the names, which are relevant, appeared at lower serials i.e. Gandhi Jee Singh (505), Devender Nath Singh (521), Ritendra Singh (545), Laxman Pandey (548) and they were promoted as Sub- Inspector whereas the appellant was promoted as Sub- Inspector on 15.10.1996. A large number of representations have been filed seeking the relief of shifting the date of promotion and the persons of junior rank of Sub-Inspectors, who were holding the post of Hawaldar, have been promoted and one of such case in C.W.J.C. No. 2434 of 1980 a Division Bench of this court passed an order with a direction that the petitioners therein were entitled to the same benefits which their immediate juniors had been given. In the background of the facts the appellants have filed C.W.J.C. No. 202 of 2003 for identical relief, which was disposed of by the order dated 13.01.2003 3 (Annexure-6), whereby respondent no.2 was directed to dispose of the petitioners’ representation within a period of three months. In the meantime, apprehending non- disposal of the representation the petitioner had preferred MJC No. 995 of 2003, which was rejected for non-compliance of the order dated 30.08.2004. The impugned order was passed on 19.7.2003, wherein the appellants’ case was rejected by the respondents committee. Seniority list was prepared in 1983 and they have also referred to a case of one Suryakant Singh at serial no. 1318, saying that he was the junior most as in the rank of Sub-Inspector and he was not promoted as to the appellant who was at serial no. 1661 and hence was not entitle to get the promotion. Meanwhile Suresh Singh and two others had preferred CWJC No. 8859 of 2002 and they were given the benefit by this Court. Respondents issued notification (Annexure-11 to the writ petition) notifying that Suresh Singh, Ram Niwas Singh and Rup Narayan Singh who were senior to Ganjhijee Singh and others were being granted promotion with effect from 1.7.1979. On 31.01.2008, the petitioner superannuated and hence he filed the petition i.e. CWJC No. 4868 of 2009, which was dismissed on 8.4.2009, hence the present LPA was filed. It was contended before us that there is a 4 gradation list of 1983 where the petitioner was shown at serial no. 1661 and 1990 which has already been published and it is also contended that even in the gradation list of 1983 those who have been granted promotions in 2008 vide Annexure-11 to the writ petition, they ranked as follows: Suresh Singh at serial no. 1708, Ram Niwas Singh at serial no. 1693, Rup Narayan Singh at serial no. 1696, they are the parties before this court in CWJC No. 8859 of 2002 which was finally heard and disposed of on 7.11.2006 (Annexure- 10). The gradation list was prepared and published in the year 1990 where the appellant was shown at serial no.502 and some of the names which are relevant and which appeared at lower serials are Gandhijee Singh (505), Devender Nath Singh (521), Ritendra Singh (545), Laxman Pandey (548) and so on. They are all juniors to the appellant but had got promotions to the posts of Sub-Inspector with effect from 1.7.1979. Learned counsel for the appellant has contended that even though no counter was filed in the L.P.A. the stand of the state was that the juniors to the appellant were promoted basing on the gradation list prepared in the year 1983. The stand has been taken by the state in the counter affidavit filed in the L.P.A. that 5 the juniors to the appellant were given promotion basing on the rank in the gradation list of the year 1983 but the learned counsel for the appellant has further argued that the appellant was never subjected to any disciplinary proceedings nor he got any adverse entries in his service. In the back ground of the decision cited (supra) which are part of the record of the C.W.J.C. No. 2434 of 1980, we are of the opinion that the matter is covered by the decision of this court in C.W.J.C. No. 2434 of 1980 where this court had directed to shifting the date of the promotion to the persons who have completed the SPC course would be shown as seniors to others, who have not completed their training course. It is further argued that the juniors to the appellant were being given promotion to the post of Sub-Inspector. The annexures annexed to the writ petition would go to show that the appellant was agitating for the relief from the day his juniors were given promotion and it is not a case when he slept over his right to claim the relief sought in the writ petition. Under the above circumstances, we are of the opinion that the appellant has been discriminated by not granting promotion even he has passed J.P.C. course and as per the decision in the case they are entitled to have the benefit given in the order passed by 6 this court in C.W.J.C. No. 2434 of 1980 dated 14.4.1983. Even though, there is some delay on the part of the appellant to seek the relief, we are of the opinion that in the year of 2003 itself when he was promoted as Sub-Inspector, the appellant was fighting for his rank as senior as he has passed the examination of S.P.C. by filing C.W.J.C. No. 202 of 2003 (annexure-6 to the writ petition) which has been disposed of on 13.01.2003. In the light of the facts as stated above, we are of the opinion that the appellant is entitled to the relief as directed by this court in C.W.J.C. No. 8859 of 2002 dated 7.11.2006. Following the same, the order of the learned Single Judge is set aside and the L.P.A. stands allowed. We also make it clear that the appellant is entitled for all the consequential benefits which arise out of the date of shifting of his promotion, which shall be paid to him within a period of six months from the date of the receipt/production of a copy of this order. Fahad/ Sudip ( T.Meena Kumari, J. ) ( Vikash Jain, J. )