IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12954 of 2002 Mahadeo Das, Son of Late Ayodhya Das, Resident of Village Silauta, P.S. Shambhuganj, District Banka, At present Assistant Teacher, Middle School, Hathiyadara (Belhar), District Banka. ---------- Petitioner Versus 1. The State of Bihar through Commissioner-cum-Secretary, Department of Education, New Secretariat, Patna. 2. The Director, Primary Education, New Secretariat, Patna. 3. The Collector-cum-Chairman of Establishment Committee, Banka. 4. The Regional Deputy Director of Education, Bhagalpur. 5. The District Superintendent of Education-cum-Sub Divisional Educational Officer, Banka. ------------ Respondents ----------- 3 28.06.2010 Heard Mr. Rajendra Narayan, learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1(i) Issuance of a writ of or in the nature of mandamus commanding the respondents to pay the arrears of salary of the promoted B.A. Trained Scale of the petitioner with effect from 1.4.1988 the date from which the promoted scale has been granted by order dated 24.12.2001 passed by the respondent no.5 (as contained in Anx.- 5 of the writ application) by which though the promoted scale has been informed to have been granted with effect from 1.4.1988 but the benefits of arrears of the scale have been erroneously and illegally ordered to be effect from the date of joining the 2 promoted post in terms of rule 38 of the Bihar Service Code as mentioned in the order (Annexure- 5) though this rule does not say so and the petitioner has been working on the post of Assistant teacher with B.A. Trained degree even from before 1.4.1988. (ii) Issuance of a writ of or in the nature of mandamus holding that the petitioner who had passed B.A. in 1983 and in terms of government circular of 1988 duly informed the authorities in this regards and who had been considering the matter taking their own time, the petitioner would not be deprived of the benefit of arrears of scale of the promoted scale with effect from 1.4.1988, the date from which he was granted B.A. trained scale.” Mr. Narayan, with reference to the aforementioned prayer, would submit that the petitioner was not at fault if his ultimate grant of promotion in the B.A. Trained Scale of Pay could be notified in the month of December, 2001 though he had become entitled for the same in the year 1988 itself. He would further submit that when the authorities have decided to give retrospective promotion, they were also 3 equally bound to give the monetary benefit thereof from the same date. In this case, a counter affidavit has been filed, wherein the respondents have taken the following stand:- “3. That the present writ application has been filed by the petitioner for a direction to the respondents to pay the arrear of difference of salary of the B.A. trained scale to the petitioner with effect from 01.04.1988, the date from which the promoted scale has been granted by order dated 24.12.2001 by the then District Superintendent of Education, Banka, by which though the promoted scale has been granted with effect from 01.04.1988 but the benefit of arrear of scale have not been given to the petitioner. 4. That it is stated that petitioner has been promoted vide memo No. 1632 dated 24 December, 2009 by the then District Superintendent of Education-cum-Sub Divisional Education Officer, Banka in the B.A. trained scale with effect from 01.04.1988 and as per Bihar Service Code Rule 38 pay all promotional post was given to him from the date when he joined on the promoted post. 5. That payment of promotion post will be payable from the date when he joined on the promoted post hence 4 the petitioner’s claim is not maintainable. However, a protection of promotional pay has been given to the petitioner from 01.04.1988.” Since the respondents have clearly mentioned in their counter affidavit that they are bound by the Government decision dated 4.4.1985 and the petitioner has not assailed or at least challenged the said Government decision, this Court for the time being would not be in a position to accept the submission of the counsel for the petitioner that the petitioner’s actual cash component would be payable with effect from 1.4.1988. There is yet another reason for not holding so in favour of the petitioner, inasmuch as, not a single case has been explained in the counter affidavit by way of illustration much less alleging discrimination that any person junior to the petitioner was also given such promotion with financial benefit prior to the date of promotion of the petitioner. In the opinion of this Court, whenever a question of giving effective date of promotion or its consequential benefit would arise, it is 5 always be referable to a person junior to the petitioner whose cutoff date will have to be reckoned for this purpose. Once this Court would however find that no junior to the petitioner has been given such promotion with financial benefit with retrospective effect and there is a Government Circular prohibiting the same, it would be difficult to grant such benefit in isolation to the petitioner alone. This Court, however, would like to put a last word in this regard because the counsel for the petitioner also is not in a position to say as to whether any junior to the petitioner has been given such financial benefit or not. In that view of the matter, all that can be done is that the petitioner may be given liberty to approach the competent authority by way of filing a representation giving specific instance supported by the document to show that any person junior to the petitioner was given such promotion with financial benefit with retrospective effect. If the petitioner would satisfy the competent authority on this 6 score, the said authority would be under obligation to consider the matter afresh limited only to his aforementioned grievance, such exercise by the competent authority, however, must be completed within a period of six months from the date of filing his representation along with a copy of this order. With the aforementioned observations and directions, this application is disposed of. Rsh (Mihir Kumar Jha, J.)