IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.158 of 2010 SHASHI BHUSHAN PRASAD GUPTA Versus THE STATE OF BIHAR & ORS ----------- 4. 11.02.2010 Heard learned counsel for the appellant and the learned counsel for the State. After hearing the parties in detail, the delay in preferring the appeal is condoned. The writ petition preferred by the appellant bearing C.W.J.C.No. 14545 of 2009 has been dismissed by the order under appeal dated 17th November 2009 on the ground of constructive res judica. It has been held that his earlier writ petition bearing C.W.J.C.No. 13363 of 2000 was disposed of on 8th July 2009 and at that stage, the writ petitioner should have raised his grievance that his promotion as Assistant Engineer (Civil) with effect from 4th August 1999 is erroneous and he should have been granted such promotion with effect from 1st April 1995. We have heard the parties and we find no error in the approach of the writ court. However, on going through the order passed in the earlier writ petition dated 8th July 2009, it is found that at that stage when the writ petition was being dismissed as infructuous on account of government having allowed promotion with effect from 4th August 1999, petitioner’s counsel wanted time to take instruction, but in stead of granting time, the writ court gave an observation that if the petitioner has still any further grievance as a consequence of the notification dated 9th March 2009, granting promotion, it will be always open for him to raise the same in the 2 first instance before the concerned respondents who would be obliged to consider the same and pass appropriate reasoned order. In view of the aforesaid liberty, in our view, the petitioner was entitled but first to move the concerned respondents to seek the relief for which he filed subsequent writ petition. In that view of the matter, the learned counsel for the appellant prays that the may be permitted to withdraw the writ petition itself so that the appellant may avail of the liberty granted to him by order dated 8th July 2009 and may point out his grievance to the concerned respondents for granting him promotion with effect from 1st April 1995. It has been submitted before us that even juniors to the appellant have been granted such promotion from earlier dates. The prayer for withdrawal of the writ petition is allowed and as a result, this appeal becomes infructuous. It goes without saying that if the appellant files appropriate representation for raising his aforesaid grievance, the concerned respondents shall consider the same on merit and decide the issue by a reasoned order in accordance with law, preferably within three months from the date of filing the representation. Jay/ (Shiva Kirti Singh,J) ( C.M.Prasad,J )