IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5831 of 2007 DR.SURENDRA PRASAD THAKUR, Son of Late Ram Bahadur Thakur, resident of village Repura, P.S. Sakara, District Muzaffarpur. Versus 1. THE STATE OF BIHAR 2. The Commissioner-Cum-Secretary, Health and Family Welfare Department, Govt. of Bihar, Patna. 3. The Deputy Secretary, Health and Family Welfare Department, Govt. of Bihar, Patna. 4. The Director, Health Services, Bihar, Patna. 5. The Civil Surgeon Cum Chief Medical Officer, Madhubani. ----------- 2 23.09.2010 Having heard counsel for the parties in respect of the following relief:- “That this is an application for issuance of a writ in the nature of mandamus commanding and directing the respondent-authorities to give the time bound promotion to the petitioner under A.C.P. Scheme with effect from the date he is legally entitled as he has not been given any time bound promotion or regular promotion right from the date of intering into the Government service to till date, and also to give all other consequential benefits such as increments as well as non-practicing allowance which has also not been given to the petitioner till date although he is legally entitled for the same.” this Court is of the considered opinion that grievance of the petitioner of not being given either time bound promotion or A.C.P. was wholly justified, inasmuch as, the petitioner does not controvert the following fact clearly asserted in paragraph no.6 of the counter affidavit :- “That the service conditions of the medical officers are governed by certain rules in which they have4 to pass prescribed examination and an officer who fails to pass the Departmental examination will neither get any increment nor will be given any promotion. The petitioner has himself stated in Annexure-1 that he has not passed the departmental examination. Hence under the existing 2 situation petitioner is not at all entitled for any type of promotion.” that he had not passed the prescribed departmental examination. One of the condition for grant of time bound promotion in the Government Resolution dated 30.12.1981 is that a person should be eligible in all respect for promotion and the condition of eligibility for promotion is that the person must have passed the prescribed departmental examination. Thus, if the petitioner had not passed the departmental examination till the time bound promotion remained in-vogue, i.e. up to 1.1.1996, he would not be entitled for grant of time bound promotion. As with regard to claim of the petitioner for grant of A.C.P. this Court must make it clear that as he claims to have filed the alleged application on 17.2.2009 seeking exemption from appearing in the departmental examination on completion of his age of 50 years on 5th July, 1999, the respondents should take a decision for granting him exemption as per Government Rule, but then its benefit even for A.C.P. will be available only as per the guidelines of the A.C.P. The authorities at the same time would be also required to separately look into the grievance of the petitioner as with regard to payment of non practicing allowance to him and even if the petitioner is found not eligible for A.C.P. due to non passing of the departmental examination, the same having no nexus with the payment of non practicing allowance, an order in 3 this regard will also be passed and communicated to the petitioner. With the aforementioned observations and directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)