IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10784 of 2002 SHASHI BODH MISHRA 'SHASHI', son of Late Rajendra Mishra, resident of village and P.S. Ghanshyampur, district- Darbhanga, at present posted acting Deputy Director, (Employment) Saran Division, Chapra. Petitioner. Versus 1. THE STATE OF BIHAR 2. The Commissioner, Cum Secretary, Labour, Employment and Training, Patna, Bihar. Respondents. For the Petitioner: Kalyan Shankar, Adv. For the State : Ajit Kumar (S.C.7) ----------- 5/ 27/2/2009 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by denial of regular promotion to the post of Assistant Director (Employment) and consequently to the post of Deputy Director (Employment). He has been asked to officiate as an Assistant Director (Employment) and he went to officiate as the Deputy Director (Employment). Learned counsel for the petitioner submits that the petitioner along with one Shri Man Mohan Sharma, was appointed as Employment Officer. He stood in the gradation list of employment officers immediately below Sri Sharma. When the issue of consideration of their case for promotion to the post of Assistant Director came up, in accordance with the roster, Shri Man Mohan Sharma stood at serial No.7 of the general category whereafter the posts fell in the reserved category. When the respondents considered 2 the case of Shri Man Mohan Sharma for such promotion on 19.11.1990 he was no more in service and had already left service in 1988. The respondents nonetheless promoted Shri Man Mohan Sharma. The petitioner should therefore legitimately have been promoted on this 7th vacancy as a general category candidate. Learned counsel submits that there is a typing error at column No.7 of annexure-2 as the name of Shri Kameshwar Prasad Shinha has been typed twice. The name at Serial No.7 should be read as Shri Man Mohan Sharma. Counter affidavit has been filed on behalf of the respondents. The counter affidavit does not deny the specific pleading of paragraph-5 of the writ application that Shri Man Mohan Sharma has left service in the year-1988. It also does not deny the assertion that the petitioner was next in seniority in the general category after him. It does not deny eligibility of the petitioner to be considered for promotion to the post of Assistant Director and Deputy Director (Employment). The respondents explicitly acknowledged having given officiating charge to the petitioner of both the posts. This confirms the issue of availability of vacancy on the promotional posts. In any view of the 3 matter, when the respondents promoted Shri Man Mohan Sharma in 1990, when he was no more in service, quite obviously the vacancy stood available in 1990 itself on the post of Assistant Director (Employment). The only contention urged in the counter affidavit is that the petitioner’s name was considered in the departmental promotion committee meeting, held on 12.8.1999, but due to non-availability of his confidential character rolls, his case could not be considered. This again is a lapse attributable to the respondents themselves for which the petitioner cannot be faulted. There is no legal issue involved in the present writ application to be adjudicated by this Court. The facts are admitted. The counter affidavit does not dispute anything. All that was required was the correction of the administrative lapse. The respondents could have done so immediately themselves no sooner than the lapse was brought to their attention by the institution of the writ application in the year-2002 and the filing of the counter affidavit in October, 2002 itself. They preferred to bask in the protection of the pendency of the writ application before this Court raising no legal issues for adjudication. 4 In the facts and circumstances of the present case, where eligibility of the petitioner for promotion to the post of Assistant Director (Employment) and consequently to the post of Deputy Director (Employment), the availability of the post, are factors not in dispute. The petitioner cannot be allowed to suffer for the lapses of the respondents generated by their own apathy and inaction. This Court holds that the petitioner is entitled to regular promotion on the post of Assistant Director (Employment) from 19.11.1990, a date when his case should have been considered as the person next in the seniority after Shri Man Mohan Sharma when the latter had already left service prior to that date in 1988. The petitioner is, therefore, held entitled consequently to promotion to the post of Deputy Director (Employment) from the due date also. This Court also holds that he is also entitled to full salary of the post of Assistant Director (Employment) and Deputy Director (Employment) less what has already been paid to him. In the peculiar facts and circumstances of the case, where the respondents, in stead of deciding an administrative lapse once their attention was drawn to it, preferred to bask in the protection of the pendency of 5 the writ application before this Court, this Court considers it proper to direct that the amount of difference of salary be paid to the petitioner within a maximum period of four months from the date of receipt/production of a copy of this order which shall be recovered from the salary of the officials concerned after fixation of responsibility of official apathy and negligence in discharge of duties as a government servant. This Court finds that the State cannot saddled with penalty/costs/payment of salary for the lapse of its officials. The writ application is allowed. Let affidavit of compliance with regard to recovery of salary from the concerned be filed by the Chief Secretary of the State of Bihar within two months. List appropriately for report thereafter. KC ( Navin Sinha, J.)