IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9257 of 2010 1. RASENDRA NARAIN SINGH S/O LATE RAM SHARAN SINGH R/O VILL.- GUMALA, P.S.- KALYANPUR, DISTT.- SAMASTIPUR, AT PRESENT ASSISTANT TEACHER IN GOVERNMENT AMBEDKAR RESIDENTIAL HIGH SCHOOL, BHAVRA, P.S. & DISTT.- BEGUSARAI Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE DIRECTOR WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE DEPUTY DIRECTOR, WELFARE DEPARTMENT MUNGER DIVISION, DISTT.- MUNGER 5. THE DISTRICT WELFARE OFFICER BEGUSARAI, DISTT.- BEGUSARAI ----------- 2 14/02/2011 Heard learned counsel for the petitioner and learned counsel for the State. Annexure-7 is the decision communicated to the petitioner based on the adjudication or the direction made by the High Court in C.W.J.C. No. 587 of 2005 earlier filed by the petitioner and disposed of on 12.08.2008. The said order is annexure-5 to the writ application. Keeping the direction of the High Court in mind, the Departmental Promotion Committee considered the case of the petitioner for granting him benefit of graduate - 2 - trained scale with effect from 4.11.1994 and annexure-7 is the culmination of that decision. What has irked the petitioner is that the Director has decided to restrict the benefit of promotion in the sense that even though the petitioner has been granted graduate trained scale with effect from 31.12.1994, the same is only notional and the actual pay scale will accrue in favour of the petitioner from the date he joins. Submission of the learned counsel is that in light of the decision in the case of Paras Nath Prasad Vs. State of Bihar and others reported in 1990(2) P.L.J.R., 248, petitioner is entitled to the benefit including the monetary kind from the date promotion has been granted to him and notional promotion to that extent is required to be interfered with. The decision of the Departmental Promotion Committee has been annexed as Annexure-A to the counter affidavit. The Departmental Promotion Committee went into the entire gamut of the dispute or the claim of the petitioner including the number of posts which were available to be filled up by promotion. It is evident that at the relevant time when promotions were - 3 - granted to other persons, petitioner did not come within the zone of consideration as petitioner’s name figured at serial no. 259 in the gradation list and promotion could be granted only to 253 persons. It is only because of passage of time certain vacancies arose and taking a sympathetic view of the matter as well as direction of the Court, the case of the petitioner was taken up by the Departmental Promotion Committee on 23.09.2009 and the benefit of graduate trained scale was extended to him, though notionally from 31.12.1994. The stand of the State is that it is not that the petitioner had a right for being granted graduate trained pay scale when the cases of others were taken up because he did not fall within the zone of consideration and it is not a case that the petitioner was otherwise eligible and had a right for consideration of being extended the benefit. A complete picture emerges from a reading of Annexure-(A). The basic factual position also is reflected from reading of annexure-5 which is an adjudication order made by the High Court. If that be the position, then there is some difficulty in finding loop holes in the decision contained in annexure-7. - 4 - Submission of the learned counsel thereafter is that if the case of the petitioner would have been considered by including the so called 34 posts which had remained vacant and had not been filled up at the relevant time, he would have come within the zone of consideration. Such a submission, at this stage, cannot be entertained because that was not the direction of the High Court contained in annexure-5 that any vacancy existing at the relevant time must be included to bring the petitioner within the ambit of consideration. If only 253 promotions had to be granted, were granted and the petitioner did not figure within the list of 253 but stood at serial no. 259 then there was no question of allowing the petitioner to join the rank for the benefit of grant of graduate trained scale from an earlier date. The service rules even otherwise do not provide such a benefit as a matter of course but only in an exceptional circumstance which have been taken note of by the High Court in the case of Paras Nath Prasad (Supra). Since that exception is not made in the present case, the decision to grant benefit to the petitioner from - 5 - the date of joining is a correct decision and no benefit can accrue as of monetary kind from the year 1994 as has been claimed in the present writ application. This writ application is, thus, dismissed. AMIN/ (Ajay Kumar Tripathi, J.)