IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13899 of 2002 DR.HARIHAR PRASAD son of Hari Shankar Prasad, resident of Bazar Samiti Road, Ara, P. O. Nawada, Ara, P. S. Nawada, Ara, District- Bhojpur…. Petitioner. Versus 1. THE STATE OF BIHAR 2. The Secretary-cum-Commissioner, Health, Medical Education and Family Welfare Department, Government of Bihar, Patna. 3. The Secretary-cum-Commissioner, Health and Family Welfare Department, Government of Bihar, Patna. 4. The Additional Secretary, Health Medical Education and Family Welfare Department, Government of Bihar, Patna. 5. The Under Secretary, Health, Medical Education and Family Welfare Department, Government of Bihar, Patna. 6. the Deputy Secretary, health, Medical Education and Family Welfare Department, Govt. of Bihar, Patna. … Respondents. ----------- 03. 30.06.2010 No one appears for the petitioner. The prayer of the petitioner in this writ petition reads as follows:- “(i) For quashing the Notification dated 9.9.98 bearing Memo No. 815(3) issued under the signature of Additional Secretary, Health, Medical Education and Family Welfare Department contained in Annexure-7 whereby his name has been struck off from notification, dated 29.8.1998, contained in Annexure-6., (ii) For quashing the Notification, dated 31.3.1998, bearing Memo No. 240(4) issued under the signature of Deputy Secretary, government of Bihar, Department of Health Medical Education and Family Welfare, contained in Annexure-5, whereby the petitioner has been declared unfit for promotion in super time scale (2 ½ %). (iii) For commanding the respondents to consider the case of the petitioner for 2 promotion in super time scale (2 ½%) with effect from 22.5.1981 with all consequential benefits in salary etc. the due date for promotion of the petitioner as there was nothing adverse against the petitioner at the relevant time or till 1988- 1989. (iv) For declaring that in any event of the matter the petitioner is entitled to promotion in senior selection grade notwithstanding the punishment accorded to him on 19.7.1996.” The aforementioned reliefs basically relates to grant of promotion with effect from 22.5.1981 for which this writ application on 11.12.2002 after a gross delay of more than 4 to 21 years of cause of action. There is no explanation for such delay and thus this writ petition is fit to be dismissed only on the ground of laches and delay. That apart this court would also find that there is sufficient explanation given in the counter affidavit filed by respondents for not granting such promotion to the petitioner who was an officer of Bihar Health Service. In this context, paragraph 6 to 8 of the counter affidavit being relevant 3 are quoted hereinbelow; “6. That it is submitted that the petitioner was promoted to the post of Senior selection Grade vide department Order No. 314(4) dated 5.9.90. Just after a few days the petitioner was suspended for various irregularities committed in course of appointment of third grade and forth grade employees vide department order no. 1323 (18) dated 19.11.1990 and a departmental proceeding was initiated against the petitioner. 7. That the petitioner was found guilty in the enquiry report and in the light of enquiry report and thorough examination of material fact, the petitioner was awarded order no. 1210(18) dated 19.7.96. The above fact clearly shows that just after promotion in senior selection grade in the year 1990 petitioner was put under suspension and a departmental proceeding was pending till 1996. All the cases who were in the Zone of consideration of promotion in the super time scale were up before departmental promotion committee including the petitioner for promotion to the post of super time scale and D.P.c. consideration all the recommendation, the petitioner was not notified in the super time scale and ultimately the petitioner was reduced to rank from Senior Selection Grade of Rs.4100- 5300 to Junior Selection Grade of Rs.3000-4500. 8. That it is submitted that the petitioner 4 has superannuated on 31.7.2000 and a vigilance case is still pending against him. A proceeding under 43(b) of the Bihar Pension Rules has been initiated against him. The petitioner is habitual offender and time and again he has been charged with irregularities and misconduct.” A copy of this counter affidavit even after being served on the counsel for the petitioner on 5.4.2004, there is no rejoinder to it and therefore such uncontroverted stand of the respondents would leave nothing more to this Court to decide but to hold that the petitioner was rightly not given promotion during his service tenure and he having retired on 31.7.2000 cannot claim promotion with retrospective effect when his earlier writ petition against his order of punishment dated 19.7.1996 was dismissed by this Court on 11.5.1998 in CWJC No. 9743 of 1996, which was affirmed by the Division Bench by an order dated 10.8.1999 in L.P.A. No. 750 of 1998 and further by the Apex Court by an order dated 15.12.1999 in S.L.P. No. 18048/1999. Promotion is not a matter of right 5 and only its consideration could be claimed by the petitioner. In course of such consideration, the service records of the petitioner were found to be chequered and it found that not only he had been punished in the departmental proceeding but was also facing criminal prosecution as also a proceeding under Rule 43 B of Bihar Pension Rules. The respondents therefore were not bound to give promotion on higher posts to the petitioner having such a poor service record. That being so, this court would not find any merit in this writ petition and the same is, accordingly, dismissed. kanchan (Mihir Kumar Jha, J.)