IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1033 of 2010 1. DR.OM PRAKASH KUMAR SAH S/O SRI GOVIND PRASAD R/O SUSHILA SADAN BAHADURPUR,P.O.RAJENDRA NAGAR,P.S. BAHADURPUR, DISTT-PATNA AT PRESENT WORKING AS DEPUTY DIRECTOR , SURGERY , INDIRA GANDHI INSTITUTE OF CARDIOLOGY,PATNA. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY GOVT. OF BIHAR, PATNA. 2. THE PRINCIPAL SECRETARY , HEALTH DEPARTMENT GOVT. OF BIHAR, PATNA. 3. THE ADDITIONAL SECRETARY, HEALTH DEPARTMENT BIHAR, PATNA. 4. THE SECRETARY, DEPARTMENT OF MEDICAL EDUCATION AND FAMILY WELFARE GOVT. OF BIHAR, PATNA. 5. DIRECTOR IN CHIEF ,HEALTH SERVICES GOVT. OF BIHAR, PATNA. 6. DIRECTOR , INDIRA GANDHI INSTITUTE OF CARDIOLOGY PATNA. 7. THE PRINCIPAL SECRETARY , FINANCE DEPARTMENT GOVT. OF BIHAR, PATNA. ----------- For the Petitioner : Mr. Sanjay Kuamr @ Mannu For the State : Mr. Vinod Kumar, A.C. to S.C.1 2 23.6.2010 With the consent of the parties, the writ petition is being disposed of at this stage itself, as facts are not in dispute. The petitioner, who was a Medical Officer, was posted on 29.6.2002 as Assistant Director (Surgery) at Indira Gandhi Institute of Cardiology, Patna Medical College Hospital, Patna. Petitioner was entitled to promotion to the post of Deputy Director on completion of three years service as Assistant Director (Surgery). Ultimately, the matter was considered by the Departmental Promotion Committee on 19.2.2008 (Annexure 3). The recommendation of Departmental Promotion Committee 2 was that the petitioner be given notional promotion with effect from 29.2.2005 with financial benefits with effect from the date he assumes charge of the post. In other words, promotion being due on 29.2.2005, it was granted from the due date but financial benefits accruing there-from were restricted from the date he actually took charge of the post. Notwithstanding the aforesaid, the State Government in the Department of Health issued a notification dated 15.4.2008 granting promotion to the petitioner from the date he assumed charge , vide Annexure -4 to the writ petition, which was contrary to the recommendation of the Departmental Promotion Committee. Petitioner pursuant to order of promotion aforesaid took charge on 15.4.2008 and as such in view of the notification aforesaid the promotion became effected from 15.4.2008 and not 29.2.2005, as recommended by the Departmental Promotion Committee. Petitioner represented to the department clearly stating that the delay in granting promotion was not on account of any fault of his but on account of delay convening of Departmental Promotion Committee . He could, thus, not be deprived of his due promotion from the due time. In his representation petitioner also pointed out that one Dr. Ashwani Kumar Ashok , who was also posted in the same institution in the department of Pathology, had earlier been granted promotion to the post of Deputy Director with retrospective effect though financial benefits were restricted to the date of notification. This was done by notification dated 3 18.9.2007 (Annexure 9). Petitioner thus prayed to be given similar treatment. The representation of the petitioner was disposed of by the State Government in the Department of Health by order dated 20.6.2009 and communicated to the petitioner under memo no. 468(17), dated 2.7.2009 (Annexure 7) whereby the claim of the petitioner has been rejected. Thus, the petitioner challenges the notification dated 15.4.2008(Annexure 4) notifying his promotion and consequently the order of the State Government dated 30.6.2009 (Annexure 7) by which he has been denied notional promotion with effect from the due date. From the impugned order, as contained in Annexure 7, the only reason given for denying promotion to the petitioner from due date is that the Department of Finance had advised the department that notional promotions retrospectively are only be given where juniors are promoted earlier and the case of a person is decided later on. It is this reasoning that is under challenge. It may be noted that the advise of the Finance Department is contained in its letter dated 24.12.2005. The grievance of the petitioner is that even though clarification was given by the Finance Department on 24.12.2005, as noted above, Dr. Ashwani Kumar Ashok was granted promotion in 2007 giving him retrospective promotion while the same is being denied to the petitioner. 4 Having heard the parties and considered the matter, in my view, the writ petition must succeed. To be considered for promotion is a matter of right of an employee. If promotion was due but got delayed not because of any fault of the employee but because the department took its sweet time to consider the matter that cannot be denied promotion from due date to an employee. For delay caused by the Departmental Promotion Committee or for that matter the department, an employee cannot be made to suffer . It is impermissible otherwise it would lead to putting a premium with regard to consideration of promotional matter. It is well established principle of law that no one can take advantage of his own fault to the detriment of another . In this connection I may also only refer to what Chief Justice Chagla said in AIR 1954 Bombay 232 (All India Groundnut Syndicate Ltd., - Vrs.- Commissioner of Income Tax ,Bombay City), which is noted hereunder: “ But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section(2) of S.24. In other words, the Department wants to benefit from and wants to take advantage of his own default. It is an elementary principle of law that no person- we take it that the Income Tax Department is included in that definition can put forward his 5 own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “ I have committed a default and the right is not lost because of that default.” Thus, petitioner has to be given promotion from the date it was due .That date has already been determined by the Departmental Promotion Committee. That date is neither erroneous nor contrary to any statutory provision . That date has to be accepted. Thus, the petitioner is entitled to promotion with effect from 1.3.2005 (Year 2005 was not a leap year) but while holding so I must clarify that financial benefits automatically do not close from the date of due promotion. Financial benefits are consideration for the work done. Thus, that would be available to the petitioner from the date he assumed charge on the said post. That was also the recommendation of the Departmental Promotion Committee. This is also consistent with the notification of promotion of Dr. Ashwani Kumar Ashok wherein the said notification (Annexure 9) does the same thing . It gives notional promotion from due date but restricted the financial benefits from the date of notification. Thus, the writ petition is allowed with the aforesaid observation and direction. Annexure 3, the promotion notification, stands modified accordingly and Annexure 7, the order of the State Government stands quashed accordingly. singh ( Navaniti Prasad Singh, J.) 6