IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6247 of 2002 MD.JALALUDDIN Son of late Md. Naziruddin, resident of village and Post Daulatpur, PS Mofassil, District- Bhojpur (Arrah) Versus 1. Bihar State Food & Civil Supplies Corporation Ltd. through its Chairman-cum- Managing Director, 5th floor, Sone Bhawan, Bir Chand Patel Marg, Patna-1 2. Chief Administration, Bihar State Food & Civil Supplies Corporation Ltd. through its Chairman-cum-Managing Director, 5th floor, Sone Bhawan, Bir Chand Patel Marg, Patna- 3. Special Officer, Administration, Bihar State Food & Civil Supplies Corporation Ltd. through its Chairman-cum-Managing Director, 5th floor, Sone Bhawan, Bir Chand Patel Marg, Patna-1 4. Chief Personnel, Bihar State Food & Civil Supplies Corporation Ltd. through its Chairman-cum-Managing Director, 5th floor, Sone Bhawan, Bir Chand Patel Marg, Patna- 5. Chief Finance, Bihar State Food & Civil Supplies Corporation Ltd. through its Chairman-cum-Managing Director, 5th floor, Sone Bhawan, Bir Chand Patel Marg, Patna- -------------------- For the petitioner:- Mr. Gautam Saha, Advocate For the respondent- Corporation: - Mr. R.S. Pradhan, Sr, Advocate ------------------- 7 27-01-2009 Heard learned counsel for the petitioner and learned counsel for the Respondent Corporation. Petitioner has preferred this writ petition in the year 2002 with a prayer that he should be promoted to the post of Assistant Accounts Officer on which he claims to be officiating since 15-12- 1983. On going through a supplementary affidavit filed on behalf of the respondents and particularly annexure-D, this court finds that the transactions of appointment to various posts by way of direct recruitment in the year 1975 cannot be re-opened as petitioner has joined the post of Assistant Accountant at his own free will along with others who had not achieved the required position in the merit list for being appointed on the post of Senior Auditors. On behalf of the petitioner it has been submitted that long back in the year 1980 by a resolution dated 10.6.1980 the Board of - 2 - Directors of the Corporation decided to fill up 50 % of the sanctioned posts of Assistant Accounts Officers from Accountants and a gradation list contained in annexure-17 was placed to show that in the cadre of Accountants petitioner had achieved the top position at serial no.1. It was submitted that although petitioner has been officiating for a number of years and there are about 11 vacancies available for promotion of Accountants to the post of Assistant Accounts Officers, the Corporation is taking no steps to grant regular promotion. On behalf of the Corporation it was submitted that admittedly no junior to the petitioner in the grade of Accountant has been promoted to the post of Assistant Accounts Officer. It was further explained that due to poor financial position and other similar reasons a large number of employees of the Corporation including the petitioner had gone on deputation to other departments and many persons have subsequently retired hence, on account of lack of full information regarding all the concerned Accountants and due to posting of the petitioner on deputation, the exercise of promotion could not be undertaken by the Corporation moreso, when the financial position of the Corporation was not well. The law is well settled that unless there be violation of Articles 14 or 16 of the Constitution of India on account of unjustified supersession, an employee has no right to promotion. The only right in respect of promotion is a right to be considered when the exercise of promotion is undertaken. In the facts and circumstances of the case, it is not possible - 3 - to direct the respondent Corporation to grant promotion to the petitioner unless the exercise of promotion is itself undertaken by the Corporation. Considering the long officiation of the petitioner on the post of Assistant Accounts Officer and a claim that he is senior most Accountant of the Corporation and a further submission that since last one year petitioner is back from deputation and working with the Corporation, the writ petition is disposed of with a direction to the respondent Corporation to consider the desirability of granting promotion to the petitioner on the vacant post of Assistant Accounts Officer to the extent such promotion may be in the interest of the Corporation at an early date preferably within six months. It goes without saying that as soon as such exercise is undertaken petitioner’s case shall also be considered in accordance with law. This court has been informed that petitioner is going to superannuate in March, 2009 and since the respondent Corporation has expressed its inability to produce the original merit list of the year 1975, the petitioner has been prevented from showing discrepancy in respect of promotion to the post of Assistant Accounts Officer. However, it has been submitted that equity demands that petitioner be paid at least 20% of his own pay as additional pay for officiating on the higher post of Assistant Accounts Officer since 1983. On this issue, at this point of time this court is not persuaded to direct the respondents to consider payment of such additional allowance for officiation since 1983 because it is not clear whether any person junior - 4 - to the petitioner has been granted such officiating pay or not but it appears from the averments that some persons in the past had been paid officiating allowance by the Corporation but it is also a fact that since last several years the Corporation was in financial crisis and hence, for the ends of justice and to give some satisfaction to a retiring employee like the petitioner, the Corporation is directed to pay additional allowance for officiating as given to others in the past at least for the period since the petitioner has come back to the services of the Corporation, since last one year or so, till the date of his actual promotion or retirement. Such payment should be made to the petitioner before he superannuates. BKS/ (Shiva Kirti Singh,J.)