IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12674 of 2004 1. KRISHNA DEO SINGH SON OF LATE HARI KISHORE SINGH RESIDING AT QR. NO. 54, JHAUWA KOTHI, P.S. BARARI DISTRICT BHAGALPUR. 2. RAJENDRA THAKUR SON OF LATE MUNI LAL THAKUR RESIDENT OF SURKHIKAL TILKA MANJHI, P.S. BARARI, DISTRICT BHAGALPUR. 3. NIRANJAN PRASAD SON OF LATE BHAVTOSH CHANDRA DAS RESIDING AT QR. NO. 5. JHAUWA KOTHI, KHANJARPUR, P.S. BARARI, DISTRICT BHAGALPUR. 4. BINOD KUMAR DUBEY SON OF LATE BASANT KUMAR DUBEY RESIDING AT TULSI NAGAR, TILKA MANJHI, P.S. TILKA MANJHI, DISTRICT BHAGALPUR. 5. DEO NARAYAN JHA SON OF SRI HARI PRASAD JHA RESIDING AT ISAKCHAK, P.S. ISAKCHAK, DISTRICT BHAGALPUR. 6. ARJUN JHA SON OF LATE MAHENDRA NARAYAN JHA RESIDING AT P.W.D. COLONY, BARDWAN HAATA ADAMPUR, P.S. ADAMPUR, DISTRICT BHAGALPUR. 7. PRAMOD KUAR ROY SON OF LATE DEVENDRA ROY RESIDING AT KHANJARPUR KATHALWARI, P.S. BARARI DISTRICT BHAGALPUR. Versus 1. THE STATE OF BIHAR 2. ENGINEER-IN-CHIEF ROAD CONSTRUCTION DEPARTMENT, BIHAR, PATNA. 3. SUPERINTENDING ENGINEER, EAST BIHAR CIRCLE, ROAD CONSTRUCTION DEPARTMENT, BHAGALPUR., 4. SUPERINTENDING ENGINEER, N.H. CIRCLE, ROAD CONSTRUCTION DEPARTMENT, BHAGALPUR. 5. EXECUTIVE ENGINEER, N. H. DIVISION II, BHAGALPUR. 6. EXECUTIVE ENGINEER, ROAD DIVISION, BHAGALPUR. 7. EXECUTIVE ENGINEER, ROAD DIVISION, BANKA, 8. DISTRICT ACCOUNTS OFFICER, BHAGALPUR. 9. ACCOUNTS OFFICER, PAY FIXATION SECTION, COLLECTORATE, BHAGALPUR. ----------- - 2 - 4 11/08/2010 Vide annexure-1 series benefit of time bound promotion given to the petitioners has been taken away. The reason indicated for doing so is that the petitioners had not passed departmental examination but despite the same benefit of promotion was granted to them from the dates indicated in the promotion order. Learned counsel for the petitioners taking cue from annexure-5 dated 12.08.1992 submits that the government has taken a decision by virtue of a Circular that looking at the fact that the departmental examinations are not being held regularly which creates an impediment in the ways of employees in sitting and passing them, then insistence of passing of the examination in grant of promotion even in substantive capacity may not be insisted upon. If that analogy is taken into consideration, then even for time bound promotion there was no necessity to pass a departmental examination. Submission of the learned counsel merited consideration but the Court has certain difficult in accepting such submission in view of a very recent decision rendered in the case of Daya Shankar Singh Vs. State of Bihar and - 3 - others reported in 2010(3) PLJR, 220. In view of the ratio of the said decision, the Court has difficulty in accepting the submission made on behalf of these petitioners. Learned counsel for the petitioners thereafter submits that it is an admitted position that the petitioners did pass their departmental examination but on a later date after the order granting promotion was issued. Atleast in the case of petitioner no. 2 Rajendra Thakur, he passed the examination on 11.11.1995. Others too have passed the said examination sometime in the years 1996-98. In this background the respondents ought to re-consider their decision of withdrawing the benefit from the petitioners who are Class III employees. Learned counsel representing the State states that the benefit of time bound promotion stood withdrawn from 1.1.1996 after recommendation of the 5th Pay Revision Committee came into effect. Passing of examination by some of the petitioners after that date has no meaning because no benefit of time bound promotion could be granted thereafter. If they had not passed the examination, which was mandatory, they cannot be given benefit from a prior date. - 4 - Case of petitioner no. 2 seems to be a little different in the sense that he had passed the departmental examination prior to withdrawal of benefit of time bound promotion as would be evident from the date indicated by him which was 11.11.1995. So far as his claim is concerned, petitioner no. 2 would be entitled to the benefit of time bound promotion not from an earlier date but surely from 11.11.1995 and the order of recovery would be limited to the date prior to 11.11.1995. The Court has been addressed on the next question by learned counsel for the petitioners which is the aspect of recovery. He submits that the decision relied by the State for denying the claim of the petitioner also helps the petitioners in one of the aspect of the matter atleast. Even in the case of Daya Shankar Singh (Supra) the Court in its concluding part has categorically held that non grant is one issue but recovery is another. Since in the above case recovery was not permitted, the petitioners succeed to the extent that the benefit of time bound promotion given to them would not be recovered but - 5 - the benefit cannot remain with them in view of the latest decision of the learned Single Judge. This writ application is allowed only to the extent indicated above. AMIN (Ajay Kumar Tripathi, J.)