IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.21 of 2007 ==================================================== MANENDRA KUMAR, SON OF LATE RAJDEO VERMA, RESIDENT OF VILLAGE HASSANPURWA, P.S. HUSSAINGANJ, P.O. BAKARGANJ, DISTRICT- SIWAN, AT PRESENT POSTED AS ASSISTANT COMMISSIONER OF EXCISE, GAYA AND I/C DEPUTY COMMISSIONER OF EXCISE DARBHANGA-CUM-KOSHI-CUM PURNEA PRAMANDAL :--- PETITIONER. Versus 1.THE STATE OF BIHAR 2. THE EXCISE COMMISSIONER-CUM-SECRETARY TO GOVERNMENT, DEPARTMENT OF EXCISE AND PROHIBITION, GOVERNMENT OF BIHAR, VIKASH BHAWAN, PATNA :-- RESPONDENTS-FIRST PARTY. 3. SRI RAM LAKHAN SAHNI, SON OF LATE THAKKO SAHNI, RESIDENT OF ABHANDA POKHAR, SAHNI TOLA, P.O. & P.S.- LAHERIASARAI, DISTRICT- DARBHANGA, AT PRESENT RESIDING AT 34-B, PATLIPUTRA COLONY, P.O. & P.S.- PATLIPUTRA, DISTRICT- PATNA POSTED AS INCHARGE DEPUTY COMMISSIONER OF EXCISE, (DISTILLERY AND WARE HOUSES)-CUM-I/C DEPUTY COMMISSIONER (EXCISE INTELLIGENCE BUREAU), HEAD QUARTER, VIKASH BHAWAN, PATNA-CUM-I/C DEPUTY COMMISSIONER EXCISE, SARAN DIVISION :--RESPONDENT-SECOND PARTY. ==================================================== Appearance : For the Petitioner : MR. VISHNUDEO NARAYAN, SENIOR ADVOCATE MR. NARENDRA KUMAR SINHA, ADVOCATE. For the Respondents: MR. AJEET KUMAR, A.C. TO ADVOCATE GENERAL. ==================================================== 03. 11.07.2011. Heard learned counsel for the petitioner and the State. 2. Petitioner filed this writ petition while he was serving as Assistant Commissioner, Excise, Gaya and incharge Deputy Commissioner, Darbhanga-cum- Kosi-cum-Purnea Division(s). By filing this writ petition he sought mandamus upon the respondents to consider his case for promotion on the post of Deputy Commissioner of Excise with effect from 17.11.1999 the date on which he became eligible for such promotion or with effect from 29.01.2003, the date he is officiating as Deputy Commissioner. According to the petitioner he fulfilled all the norms for 2 such promotion, yet his case for such promotion was not being considered inspite of several request to the authorities under representations annexed with the writ petition vide Annexure-9 series. During the pendency of the writ petition petitioner has been promoted as Deputy Commissioner, Excise under notification bearing no. 823 dated 27.2.2008, Annexure-16 with effect from 12.6.2006 in the light of the proceedings of the Departmental Promotion Committee dated 2.5.2007 against unreserved Roster Point No. 30 as his immediate senior in the cadre of the Excise Officials Respondent No. 3 has been promoted as Deputy Commissioner, Excise with effect from 12.6.2006. During hearing of the writ petition counsel for the petitioner requested that the State- respondents although having promoted the petitioner as Deputy Commissioner, Excise with effect from 12.6.2006 are still required to consider his case for promotion on the said post with effect from due date or in any case from 29.01.2003 the date from which he has been officiating as Deputy Commissioner, Excise. 3. Aforesaid submission is being refuted by the counsel for the State who submitted that Respondent No. 3 who is the immediate senior of the petitioner having been promoted as Deputy Commissioner, Excise with effect from 12.6.2006 the 3 case of the petitioner for such promotion cannot be considered from the due date or the date of his officiation i.e. 29.01.2003. 4. In rejoinder counsel for the petitioner submitted that united State of Bihar was bifurcated under the provisions of the Bihar Reorganization Act, 2000 and thereafter Respondent No. 3 remained in the State of Jharkhand until 11.6.2006 when he came back to the State of Bihar whereafter his case was considered and he was granted promotion as Deputy Commissioner, Excise against an unreserved post with effect from 12.6.2006. Prior to 12.6.2006 petitioner continued to officiate as Deputy Commissioner, Excise with effect from 29.01.2003 and had Respondent No. 3 joined Bihar State prior to 29.1.2003 then he should have been allowed to officiate as Deputy Commissioner, Excise with effect from 29.1.2003 but as Respondent No. 3 did not join the Bihar State during the period between 29.1.2003-11.6.2006 petitioner was asked to officiate as Deputy Commissioner and he having officiated as Deputy Commissioner for the aforesaid period his case for promotion as Deputy Commissioner, Excise should have been considered with effect from the date of the vacancy of Roster Point No. 30 or in any case from the date of officiation when admittedly Respondent No. 3 was not available for being considered for promotion 4 as Deputy Commissioner, Excise. For the failure of Respondent No. 3 to make himself available or for the failure of the authorities to finalize the cadre strength the petitioner cannot be asked to suffer. Roster Point No. 30 which is an unreserved vacancy in the grade of Deputy Commissioner, Excise remained vacant all through as is evident from the proceedings of the Departmental Promotion Committee itself. 5. Accordingly, I direct the State-respondents to consider the case of the petitioner for promotion on the post of Deputy Commissioner, Excise with effect from the date he completed the Kalawadhi for the said post i.e. 17.11.2000 or in any case from 29.01.2003 the date from which he has been officiating on the said post. Necessary consideration in the light of this order be made as early as possible, in any case within a period of two months from the date of receipt/production of a copy of this order. In case date of promotion of the petitioner as Deputy Commissioner, Excise is shifted back, he be paid all consequential benefits. 6. The writ petition is, accordingly, disposed of. P.K.P. (V.N.Sinha,J.)