IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4901 of 2006 SATYENDRA KUMAR SHARMA s/o late Surma Singh, resident of village-Maur, P.S.Barbigha in the district of Sheikhpura. Versus 1. THE STATE OF BIHAR though the Secretary cum Commissioner, Road Construction Department, Govt. of Bihar, Patna. 2.The Secretary –cum- Commissioner, Building Construction Department ,Government of Bihar, Patna. 3. The Additional Secretary, Road Construction Department ,Bihar, Patna. 4.TheDeputy Secretary, Road Construction Department, Bihar, Patna. ----------- 3 2.12.2010 A counter affidavit has been filed. With the consent of the parties, the writ petition has been heard for disposal at this stage itself. The petitioner, by this writ petition ,challenges part of memo no. 1953,dated 11.3.2003 (Annexure 5), by which though the petitioner has been held to be entitled to and was grated promotion with retrospective date as an Assistant Engineer i.e. with effect from 1.4.1995, it has been held that it would be a notional promotion with no financial benefit. It is this later part, which has brought the petitioner to this Court. Having heard the arguments, in my view, from the impugned order one thing is clear that the petitioner was entitled to be promoted on 1.4.1995 but was not granted promotion for reasons other than being unfit for promotion. The reasons have been stated in the counter affidavit. The reasons are two folds., Firstly, it is said that when the matter of promotion was being considered, Confidential Character - 2 - Roll was not made available to the Departmental Promotion Committee and secondly was that he being in the Road Construction Department was posted in the area, which was involved in bitumen scam and till the matter was cleared by the Controller-cum- Auditor General, no case of promotion was considered .While waiting the petitioner superannuated on 31.7.2002 without enjoying the benefit of promotion that was due to him way back in 1995.The stand of the State is that though we ought to have granted promotion, which was entitlement of the petitioner way back in the year 1995 but for internal reason we could not do it. The petitioner looses his rights. It is strange to hear such a stand. As noted above, at no point of time, the petitioner was found unfit for promotion. First some persons in the department failed to forward his Confidential Character Roll to Departmental Promotion Committee depriving him of being considered for promotion. The petitioner was not at fault. It is the department, who is at fault. Then merely because of CAG enquiry is going on against all officers of certain division, was no reason to take a policy decision to deprive persons of their promotion. At best the sealed cover procedure ought to have been followed . It may be specified here that there was no specific enquiry of departmental proceeding is pending against the petitioner. Thus, on these facts, the stand of the State would be highly inequitable. All I can say what Chief Justice Chagla has said half a century back in the case of All India Groundnut Syndicate Limited -Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 : “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is - 3 - deprived of his right which the law has given to him under sub-section (2) of S 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” Thus, the writ petition is allowed with a direction to the respondents to ensure payment of all financial benefits due to the petitioner as a consequence of petitioner being given promotion with retrospective i.e. with effect from 1.4.1995 as an Assistant Engineer may be pre-retiral and post-retiral, as the case may be. It shall be the responsibility of the Deputy Secretary, Road Construction Department, Bihar, Patna (respondent no.4) to ensure compliance of the order of this Court preferably within a period of three months from the date of production of a copy of this order before him. singh (Navaniti Prasad Singh,J)