IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3969 of 2009 Upendra Nath Mishra . Versus The State Of Bihar & Ors . ----------- For the Petitioner:- Mr. Akhilesh Kr. Sinha, Adv. For the Respondent State:- Mr. Subhash Pd. Singh, Adv. Mr. Bajrangi Lal, Adv. -------------- 2. 21.07.2011 Heard learned counsel for the petitioner and the State. The petitioner is stated to have superannuated on 31.1.2001. The claim in the writ application is related to the grant of his second A.C.P. Learned counsel for the petitioner submits that during his service tenure he was not informed of any proceedings against him much less an order of punishment dated 16.9.1998 vide order No. 1108. But for the same, he fulfills the other conditions for grant of the A.C.P. It is alternatively argued that even if there was an order of punishment he became eligible to be considered from the date that the order of punishment lost its effect after having remained operative. Counsel for the State submits that the petitioner was punished on 16.9.1998. The duration of the punishment has to be reckoned from that date and expired in 2002. Prior to the same the petitioner superannuated in 2001 itself. Additionally an 2 objection has been raised on the ground of delay that his date of A.C.P. shifted to 9.8.2002 was not challenged and the writ application has been filed seven years later. Counsel for the State next submitted that according to the scheme for A.C.P. in Clause 4(5)(ii) that if the first A.C.P. was delayed on account of any punishment, the time period for grant of the second A.C.P has to be reckoned afresh from the date of the eligibility of the first A.C.P. There can be no quarrel with the said proposition. The punishment imposed on the petitioner on 16.9.1998 was necessary to be entered in his character roll for the year 1987-88. The second punishment was that no promotion was to be given for three years from the due date. Counsel for the petitioner has rightly submitted that the censure lost its effect in 1991. If eligibility for promotion is reckoned from that date, the second punishment lost it effect in 1994. The petitioner was thereafter entitled to be considered for promotion as there was no entry even in his service book of any punishment thereafter. The departmental instructions and circulars as also the legal position of the manner in which a punishment for censure operates stands well quantified as limited to three years from the date of 3 entry in the character roll. The ignorance and apathy displayed by the deponent in the counter affidavit disappoints the Court. The Court is compelled to observe that functionaries of the State are expected to be more careful in making statements on oath in a counter affidavit in a judicial proceeding. There is no circular/notification pointed out on behalf of the respondents for the submission contrary to law that the punishment shall operate for three years from the date of the order and not from the date of entry in the character roll. The Court leaves it to the Principal Secretary, Department of Water Resources to ensure that such counter affidavits contrary to settled law are not filed by those in whom the Government places trust to defend the interest of the Government. The Court now must deal with the aspect of delay. If the action of the respondents and the stand being taken by them before the Court is contrary to well established law, they cannot be permitted to generate litigation where non-exists They cannot be permitted to take advantage of their own lapse to urge that even if they commit a wrong they must get the benefit of the wrong. That the petitioner may have become eligible for consideration in 1994 wrongly 4 denied by the respondents is irrelevant and the petitioner must alone answer. The argument is preposterous and has to be made to be rejected. The pleadings of the parties in the writ application and the counter affidavit do not enable the Court to arrive at conclusive finding with regard to dates for eligibility of the first and second A.C.P. etc. Let the petitioner represent before respondent no. 2 along with a copy of the present order when it is expected that in light of the observations contained herein his eligibility to grant of second A.C.P. shall now be considered in accordance with law and disposed off by a reasoned and speaking order within a maximum period of three months from the date of receipt/production of a copy of this order. Needless to state that if the respondents find justification in the claim or in any part of the claim, necessary consequential order shall be issued simultaneously. The writ application stands disposed. P. Kumar ( Navin Sinha, J.)