IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1797 of 2010 1. SANJEEVAN CHOUDHARY S/O SRI MOTI CHOUDHARY R/O MOHALLA- BEUR HASANPURA ROAD VIDYA NAGAR ANISHABAD, P.S.- BEUR, DISTT.- PATNA Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY MINISTRIAL SECRETARIATE DEPTT., DIRECTORATE OF CIVIL AVIATION DEPTT., CIVIL AERODROM, PATNA, GOVT. OF BIHAR, PATNA 2. THE DIRECTOR, CIVIL AVIATION DEPTT., CIVIL AERODROM, PATNA, GOVT. OF BIHAR, PATNA 3. THE DEPUTY SECRETARY, HOME (SPECIAL) DEPTT., GOVT. OF BIHAR, PATNA 4. THE ADDITIONAL CHIEF AVIATION ENGINEER AND QUALITY CONTROL MANAGER, CIVIL AVIATION DEPTT., GOVT. OF BIHAR, PATNA 5. THE ADMINISTRATIVE OFFICER, CIVIL AVIATION DEPTT., CIVIL AERODROME, PATNA, GOVT. OF BIHAR, PATNA ----------- For the Petitioner : Mr. Barun Kumar Choudhary, Advocate For the State : GP 16 ------ 2. 03.08.2010 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner is stated to have been appointed as Storekeeper in 1998 and claims to be discharging the duties of Chief Storekeeper in an Incharge capacity since 4.12.2004. It is submitted that he has represented on 18.8.2005 that he fulfils the requirements to be considered for promotion substantively to the post of Chief Storekeeper belonging to the reserved category. Though he continues to discharge the duties of Chief Storekeeper he is being paid wages of Storekeeper. Counsel for the State submits that a counter affidavit has been filed on 2.8.2010. The same is not available on the record. The Court therefore requested Counsel for the State to make available his copy for perusal so as not to hold up the proceedings. The respondents in their counter affidavit have acknowledged the eligibility of the petitioner to be considered 2 for promotion to the post of Chief Storekeeper and also that the Departmental Promotion Committee had recommended him for the same in June 1998. The counter affidavit then takes the defence that the promotional post of Chief Storekeeper could be filled up on a recommendation to be made by the Bihar Public Service Commission. The counter affidavit is silent on why the respondents did not take recourse to proper procedure. Since the petitioner has been found fit for promotion by the Departmental Promotion Committee relying on AIR 1999 SC 838 (Selva Raj Vs. Lt. Governor of Island, Port Blair & ors.) this Court holds that the petitioner is entitled to full salary of the post of Chief Storekeeper with effect from 4.12.2004. The relevant extract of para 3 of the aforesaid judgment reads as under:- “3. ……………… Fact remains that the appellant has worked on the higher post though temporarily and in an officiating capacity pursuant to the aforesaid order and his salary was tobe drawn during that time against the post of Secretary (Scouts). It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently, on the principle of quantum merit the respondents authorities should have paid the appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee. This limited relief is required to be given to the appellant only on this ground.” 3 This shall however not tantamount to his promotion which is required to be decided by the respondents finally in accordance with law within a maximum period of four months from the date of receipt and/or presentation of a copy of this order. It is made clear that the direction for payment of the full salary of the post of Chief Storekeeper is based on the premise that he is discharging the duties of that post for long years and the petitioner cannot stake a claim for promotion on that basis alone should the respondents pass an order to his prejudice which shall then take effect with regard to salary from the date of the order. The writ application stands disposed. Snkumar/- (Navin Sinha,J.)